Of India Vs. Sushil  Insc 33 (23 January 2006)
Pasayat & S.H. Kapadia @ (Arising Out Of Slp(C) No.26572 Of 2004) Arijit Pasayat,
in this appeal is to the order passed by a Division Bench of the Bombay High Court,
Nagpur Bench, Nagpur. The respondent had secured
employment in the Life Insurance Corporation of India (hereinafter referred to as the 'LIC') the appellant in
this appeal on the basis that he belongs to Scheduled Tribe. Undisputedly, his
caste was recorded as Halba. Committee for Scrutiny and Verification of Tribe
Claims, Amaravati vide its order dated 30.4.2004 held that respondent's claim
of belonging to Scheduled Tribe was wrong, unfounded and was a fraudulent
claim. The order was questioned by respondent before the High Court by filing a
writ petition. Before the High Court, learned counsel for the writ petitioner
submitted that the writ petitioner was willing to file an undertaking to the
effect that he will not claim any benefit on the basis of his case as Halba
either in his service or anywhere else at any time for himself as well as for
his legal heirs. With reference to a judgment of this Court in State of Maharashtra v. Milind and ors. (2001(1) SCC 4),
the High Court held that in view of the undertaking the writ petitioner's
services were not to be terminated notwithstanding invalidation order passed by
the Scrutiny Committee.
counsel for the LIC submitted that the approach of the High Court is clearly
erroneous. In Milind's case (supra) this Court never laid down any principle of
law having universal application. The observations in para 38 of the judgment
were limited to the peculiar facts of the case. The High Court erroneously
proceeded on the basis that the decision laid down a rule of universal
response, learned counsel for the respondent submitted that the respondent had
already rendered about 14 years of uninterrupted and blemishless service and
merely because he could not establish his Scheduled Tribe claim, the benefit
already granted should not have been withdrawn. It was pointed out that
undertaking in the lines noted by the High Court had already been filed.
Court in R. Vishwanatha Pillai v. State of Kerala and Others (2004(2) SCC 105)
and Lillykutty v. Scrutiny Committee, SC & ST and Others. (2005(8) SCC 283)
have considered the effect of non-genuine certificates in the case of Scheduled
Castes and Scheduled Tribes' claims.
protection under the Milind's case (supra) cannot be extended to the respondent
no.1-employee as the protection was given under the peculiar factual background
of that case. The employee concerned was a doctor and had rendered long years
of service. This Court noted that on a doctor public money has been spent and,
therefore, it will not be desirable to deprive the society of a doctor's
service. Respondent no.1-employee in the present case is an LIC employee and
the factor which weighed with this Court cannot be applied to him.
above position was elaborated in Bank of India and Anr. v. Avinash D. Mandivikar
and Ors. (2005 (7) SCC 690).
noted that in spite of six opportunities the respondent No.1 did not appear
before the Scrutiny Committee. That being the position the Scrutiny Committee
had no other option than to take a decision in the matter. We also find that
the Scrutiny Committee referred to documents which were before it and came to
the conclusion about the claim of respondent No. 1 being not genuine.
case (supra), filing of the undertaking was not to be treated as the ratio of
the judgment. Before us it was urged on behalf of respondent No.1 that in State
of Maharashtra at the relevant time there were resolutions/Government Orders
which made respondent believe that there was no fraudulent intention in
claiming to be Halba. Mr. Lalit, learned counsel for respondent submitted that
none of these aspects (including various G.Rs.) have been considered. The High
Court in the present case proceeded on the basis as if mere filing of an
undertaking in the line suggested by the writ petitioner was sufficient to
bring the case under the umbrella of decision in Milind's case (supra). That is
clearly not so.
High Court has not considered the matter in its proper perspective, except
relying on Milind's case (supra) we think it appropriate to remit the matter to
the High Court for a fresh consideration on merits of case on the grounds, if
any, without influenced by any observation in this order.
appeal is allowed to the aforesaid extent without any order as to costs. + 3
257 2005 ! Rameshwar Prasad and Ors. Union
of India and Anr. @ January 24, 2006 # ARIJIT PASAYAT (With WP (C) Nos.
255, 258 and 353 of 2005) ARIJIT PASAYAT J.
last few years the attack on actions of Governors in the matter of installation/dissolution
of ministries has increased, which itself is a disturbing feature. A Governor
has been assigned the role of a Constitutional sentinel and a vital link
between the Union and the State. A Governor has also
been described as a useful player in the channel of communication between the Union and the State in matters of mutual interest and
responsibility. His oath of office binds him to preserve, protect and defend
the Constitution of India, 1950 (in short 'the Constitution') and the law, and
also to devote himself to the service and the well being of the people of the
State concerned. When allegations are made that he is partisan and/or is acting
like an agent of a political party, un- mind of his Constitutional duties, it
naturally is a serious matter.
cases at hand relate to acts of the Governor of Bihar.
in these writ petitions is to the constitutionality, legality and validity of a
Notification GSR 333(E) dated 23.5.2005 of the Union of India in ordering
dissolution of the Bihar Legislative Assembly. Writ Petition (C) No.257 of 2005
has been filed by four persons who were elected to the dissolved Legislative
Assembly. Petitioner No.1 Shri Rameshwar Prasad was elected as a candidate of
the Bhartiya Janta Party (in short 'BJP'). Petitioner No.2 Shri Kishore Kumar
was elected as an independent candidate.
No.3 Shri Rampravesh Rai was elected as a candidate of the Janta Dal United (in
short 'JDU') while petitioner NO.4 Dr. Anil Kumar was elected as a candidate of
the Lok Janshakti Party (in short 'LJP').
Petition (C) No.353 of 2005 has been filed by Smt. Purnima Yadav who was
elected as an independent candidate.
Petition (C) No.258 of 2005 has been filed by Shri Viplav Sharma, an Advocate,
styled as a Public Interest litigation.
these writ petitions have been filed under Article 32 of the Constitution. In Viplav
Sharma's Writ Petition in addition to the challenges made by the writ
petitioners in other two writ petitions, prayer has been made for a direction
to the Governor of Bihar to administer oath to all the elected members of the
13th Legislative Assembly of the State of Bihar and make such assembly
functional, purportedly in terms of Articles 172 and 176 of the Constitution
and appoint the Chief Minister and Council of Ministers in terms of Article
164(1) of the Constitution. Further, consequential prayers have been made for a
direction to the Election Commission of India (in short the 'Election
Commission') not to hold fresh elections for the constitution of 14th State
Legislative Assembly. It has also been prayed to direct stay the effect and
operation of the purported report dated 22.5.2005 of the Governor of Bihar to
the Union Cabinet inter-alia recommending the dissolution of the Assembly and
the Presidential Proclamation dated 7.3.2005 placing the 13th State Legislative
Assembly under suspended animation and the Presidential Proclamation dated
23.5.2005. In essence, his stand was that since the State Legislative Assembly
was yet to be functional there was no question of dissolving the same. Certain
other prayers have been made for laying down the guidelines and directions with
which we shall deal with in detail later on. It is to be noted that by order
dated 25.7.2005 it was noted that Mr. Viplav Sharma had stated before the Bench
hearing the matter that he does not press the prayers (i), (ii), (vii) and
(viii) in the writ petition.
challenges in essence, as culled out from the submissions made by the
petitioners are essentially as follows:
of the Legislative Assembly by the impugned Notification dated 23.5.2005 in
exercise of the powers conferred by sub-clause (b) of Clause (2) of Article 174
of the Constitution read with clause (a) of the Proclamation number GSR 162(E)
dated 7th March, 2005 issued under Article 356 of the Constitution in relation
to the State of Bihar has been made on the basis of a tainted and clearly
unsustainable report of the Governor of Bihar. It is stated by Mr. Sorabjee
that the Governor's report which led to imposition of President's Rule over the
State of Bihar was not based on an objective
assessment of the ground realities. The Home Minister in his speech made on
21.3.2005 when the Bihar Appropriation (Vote on Account) Bill, 2005 was being
discussed in Rajya Sabha clearly indicated that it is not good for democracy to
let the President's rule continue for a long time. It was unfortunate that no
political party could get a majority and more parties could not come together
to form the Government. The minority government also would not be proper to be
installed where the difference between the requisite majority and the minority
was not very small. The House was assured that the Government was not
interested in continuation of President's Rule for a long time. It was
categorically stated that sooner it disappears the better it would be for the
State of Bihar, for democracy and for the system
that has been followed in this country. The Governor was requested to explore
the possibilities of formation of a Government. This could be achieved by
talking to the elected representatives. Contrary to what was held out by the
Home Minister, on totally untenable premises and with the sole objective of
preventing Shri Nitish Kumar who was projected to be as the Chief Ministerial
candidate by the National Democratic Alliance (in short the 'NDA') with support
of a break away group of LJP and independents. In hot-haste, a report was
given, which was attended to with unbelievable speed and the President's
approval was obtained. The hot- haste and speed with which action was taken
clearly indicates mala-fides. Though the Governor made reference to some horse
trading or allurements the same was clearly on the basis of untested materials
without details. Action of the Governor is of the nature which was condemned by
this Court in S.R. Bommai and Ors. v. Union
of India and Ors. (1994 (3) SCC 1).
submitted that similar views expressed by respective Governors did not find
acceptance in the cases of dissolution of Assemblies in Karnataka and Meghalaya
in the said case.
the Proclamations in respect of Madhya Pradesh, Rajasthan and Himachal Pradesh
were held to be not unconstitutional, yet the parameters of the scope of
judicial review were highlighted. Even if it is accepted that the Governor's
opinion is to be given respect and honour in view of the fact that he holds a
high constitutional office, yet when the view is tainted with mala-fides the
same has to be struck down. In the instant case according to learned counsel for
petitioners, the background facts clearly established that the Governor was not
acting bona fide and his objective was to prevent installation of a majority
Government. Even if it is accepted for the sake of arguments that the majority
was cobbled by unfair means that is a matter with which the Governor has no
role to play. It is for the Speaker of the Assembly, when there is a floor test
to consider whether there was any floor crossing. If any material existed to
show that any Legislature was lured by unfair means that is for the electorate
to take care of and the media to expose. That cannot be a ground for the
Governor to prevent somebody from staking a claim when he has the support of
majority number of legislatures. It is submitted that similar views regarding
horse trading etc. were made in the report of the Governor so far as the
dissolution of the Karnataka Assembly is concerned and this Court in S.R. Bommai's
case (supra) found that the same cannot be the foundation for directing
the last few years formation of government by a party having majority has
become rare. Therefore, the coalition governments are in place in several
States and in fact at the Centre. There is nothing wrong in post poll
adjustments and when ideological similarity weighs with any political party to
support another political party though there was no pre-poll alliance, there is
nothing wrong in it. Majority of the legislatures of the LJP party had decided
to support JDU in its efforts to form a Government. Clear decisions were taken
in that regard. Some Independent M.L.As had also extended their support to Mr. Nitish
Kumar. The Governor cannot refuse to allow formation of a Government once the
majority is established. The only exception can be where the Governor is of the
view that a stable Government may not be formed by the claimants. It is not the
position in the case at hand. Mr. Nitish Kumar had support of legislators, more
than the requisite number and in fact the number was far in excess of the
requisite number. The Governor's actions show that he was acting in a partisan
manner to help some particular political parties.
scope of judicial review was delineated by this Court in State of Rajasthan and Ors. v. Union of India and Ors.
(1977 (3) SCC 592) and was further expanded in Bommai's case (supra). Tested on
the touchstone of the guidelines set out in Rajasthan's case (supra) and Bommai's
case (supra) the Governor's report is clearly unsustainable and consequential
Presidential Proclamation is unconstitutional. It is to be noted that the
Presidential Proclamation was based solely on the Governor's report as has been
accepted by the Union of India.
P.S. Narasimha and Mr. Viplav Sharma supported the stand. Additionally, with
reference to their additional stands noted supra in the writ petitions, they
submitted that the President's Notification is not sustainable and is
response, Mr. Milon K. Banerjee, learned Attorney General, Mr. Goolam E. Vahanvati,
learned Solicitor General, Mr. Gopal Subramaniam, learned Additional Solicitor
General, Mr. P.P. Rao, learned senior counsel and Mr. B.B. Singh, learned
counsel submitted that there is no quarrel about the scope of judicial review
of this Court in matters relating to Proclamation under Article 356(1) and
consequentially Article 174(2) of the Constitution. But the factual scenario as
projected by the petitioners is really not so.
instant case, the Governor had not in reality prevented anybody from staking a
claim. It is nobody's case that somebody had staked a claim. What the Governor
had indicated in his report dated 21.5.2005 (not dated 22.5.2005 as stated in
the writ petitions by the writ petitioners) was that effort was to get the
majority by tainted means by allurements like money, caste, posts and such
unfair and other objectionable means. When the foundation for the claim was
tainted the obvious inference is that it would not lead to a stable government
and the same is clearly visible. It has been submitted that the parameters of
judicial review are extremely limited so far as the Governor's report is
concerned and consequential actions taken by the President. The Governor cannot
be a mute spectator when democratic process is tampered with by unfair means.
The effort is to grab power by presenting a majority, the foundation of which
is based on factors which are clearly anti democratic in their conception.
democracy is a part of the basic structure of the Constitution and when the
majority itself is the outcome of foul means it is clearly against the mandate
given by the electorate. It can never be said that the electorate wanted that
their legislatures after getting their mandate would become the object of
corrupt means. When the sole object is to grab power at any cost even by
apparent unfair and tainted means, the Governor cannot allow such a government
to be installed. By doing so, the Governor would be acting contrary to very
essence of democracy. The purity of electorate process would get polluted. The
framers of the Constitution never intended that democracy or governance would
strike at the root of representative government. They are unconstitutional,
illegal, illegitimate, unethical and improper. The Tenth Schedule cannot take
care of all situations and certainly not in the case of independents. It would
be too hollow to contend that the floor test would cure all impurity in
gathering support of the legislatures. Floor test cannot always be a measure to
restrain the corrupt means adopted and in cobbling the majority. It is also too
much to expect that by exposure of the corrupt means so far as a particular
legislature is concerned, by the people or by the media the situation would
improve. Since there is no material to show that any party staked a claim and
on the contrary as is evident from the initial report of the Governor dated
6.3.2005 that nobody was in a position to stake a claim and the fact that
passage of about three months did not improve the situation, the Governor was
not expected to wait indefinitely and in the process encourage defections or
adoption of other objectionable activities. It is submitted that ratio in State
of Rajasthan's case (supra) so far as the scope
of judicial review is concerned has not been expanded in Bommai's case (supra),
and the parameters remain the same.
reference to Tenth Schedule more particularly sub- paragraphs 2 and 4 it is
submitted that dis-qualification had been clearly incurred by the members of
LJP break away group. There was in fact no merger of the so-called break away
group with JDU. The documents filed by the petitioners amply show that there
was only a proposal and in fact not any merger. Documents on the other hand
show that the so called resolution was also manipulated. One person had signed
for several persons and even the signatures differ. If really the persons were
present in the so called meeting, adopted the resolution purported to have been
taken, there was no reason as to why concerned participants did not sign the
resolution and somebody else signed it in their favour. This clearly shows that
on the basis of manipulated documents it was attempted to be projected as if Shri
Nitish Kumar had a majority.
Shri Nitish Kumar has not filed any petition and only four members have filed
the petitions though claim was that more than 122 had extended support. Though
that by itself may not be a ground to throw out the petitions, yet the
petitions certainly suffer from legal infirmity. As amply proved, the petitioners
have not approached this Court with clean hands and therefore are not entitled
to any relief. It is submitted that the petitioners in WP (C) No.257 and 353
have not questioned the correctness of the President's Notification dated
7.3.2005, and interestingly in the so called Public Interest Litigation, it has
been challenged. After having given up challenge to the major portion of the
challenges it has not been explained by the petitioner in person as to how and
in which way any of his rights has been affected. If the persons affected have
not questioned the correctness of the Notification dated 7.3.2005 the
petitioner in person should not be permitted to raise that question. It is the
basic requirement of a Public Interest Litigation that persons who are affected
are unable to approach the Court. It is strange that learned counsel for the
legislators-writ petitioners have accepted the Notification dated 7.3.2005 to
be valid and in order. The plea taken in the so called Public Interest
Litigation is to the contrary. The factual position in Bommai's case (supra)
was different. It related to cases where elected governments were in office and
the Governors directed dissolution. The position is different here. Further it
is submitted that the power exercised by the Governor is legislative in
character and it can only be nullified on the ground of ultra-vires. The
reports of the National Commission To Review the Working Of The Constitution
and Sarkaria Commission have amply indicated the role to be played by the
Governors' and sanctity to be attached to their report. Even when the
parameters of judicial review spelt out in the State of Rajasthan and Bommai's cases (supra) are kept
in view, the impugned report and consequential President's Notification do not
suffer from any infirmity to warrant interference. It is further submitted that
the Election Commission had notified fresh elections and even if for the sake
of arguments if any defect is noticed in the Governor's report or the
consequential President's Notification, that cannot be a ground to stall the
election already notified.
can give their mandate afresh and the plea that large sums of money would be
spent if the fresh elections are held is really no answer to preventing
installation of a government whose foundation is shaky. It is submitted that
the report does not even show a trend of any partisan approach vis-a-vis any
political party by the Governor who was acting independently. In fact before
the report dated 21.5.2005 on which the final decision for the Presidential
Proclamation was taken a report dated 27.4.2005 was given which clearly
indicated that no party was in a position to form the Government. The Governor
has clearly indicated the source from which he came to know about the efforts
to form the Government by illegal means. It is pointed out that the decision
relied upon by Mr. P.S. Narasimha and Mr. Viplav Sharma i.e. Udai Narain Sinha
v. State of U.P. and Ors. (AIR 1987 Allahabad 293)
does not really reflect the correct position in law and was rendered in the
peculiar fact situation. On the contrary, the decision of the Kerala High Court
in K.K. Aboo v. Union of India (AIR 1965 Kerala 229) lays the correct position.
that because of Articles 172 or 174 of the Constitution there is no scope of
dissolving the Assembly before it was summoned to hold the meeting is not
acceptable on the face of Section 73 of the Representation of People Act, 1951
(in short the 'RP Act'). It is pointed out that the decision in K.K. Aboo's
case (supra) was approved to be laying down the correct law by a Constitution
Bench of this Court in Special Reference No.1 of 2002 (2002 (8) SCC 237).
reports of the Governor dated 6.3.2005, 27.4.2005 and 21.5.2005 need to be
reproduced. They read as under:
Patna, the 6th March, 2005 Respected Rashtrapati Jee, The present Bihar
Legislative Assembly has come to an end on 6th March, 2005. The Election
Commission's notification with reference to the recent elections in regard to
constitution of the new Assembly issued vide No.308/B.R.L.A./2005 dated 4th
March, 2005 and 464/Bihar-LA/2005, dated the 4th March, 2005 is enclosed
Based on the results that have come
up, the following is the party-wise position:
R.J.D. : 75
J.D.(U) : 55
B.J.P. : 37
Cong.(I) : 10
B.S.P. : 02
L.J.P. : 29
C.P.I. : 03
C.P.I.(M) : 01
C.P.I. (M.L.) :
N.C.P. : 03
S.P. : 04
Independent : 17
________________________ 243 ________________________ The R.J.D. and its
alliance position is as follows:
R.J.D. : 75
Cong (I) : 10
C.P.I. : 03(support letter not
C.P.I.(M) : 01
N.C.P. : 03 ________________________
92 ________________________ The N.D.A. alliance position is as follows:
1. B.J.P. : 37
2. J.D.(U) : 55
________________________ 92 ________________________ 3. The present Chief
Minister, Bihar, Smt. Rabri Devi met me on
28.2.2005 and submitted her resignation alongwith her Council of Ministers. I
have accepted the same and asked her to continue till an alternative
arrangement is made.
A delegation of members of L.J.P.
met me in the afternoon of 28.2.2005 and they submitted a letter (Annexure II)
signed by Shri Ram Vilas Paswan, President of the Party, stating therein that
they will neither support the R.J.D. nor the B.J.P. in the formation of government.
The State President of Congress Party, Shri Ram Jatan Sinha, also met me in the
evening of 28.2.2005.
The State President of B.J.P., Shri Gopal
Narayan Singh alongwith supporters met me on 1.3.2005. They have submitted a
letter (Annexure III) stating that apart from combined alliance strength of 92
(BJP and JD(U) they have support of another 10 to 12 Independents. The request
in the letter is not to allow the R.J.D. to form a Government.
Shri Dadan Singh, State President of
Samajwadi Party, has sent a letter (Annexure IV) indicating their decision not
to support the R.J.D. or N.D.A. in the formation of the Govt. He also met me on
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
Shri Ram Vilas Paswan, National
President of L.J.P. alongwith 15 others met me and submitted another letter
(Annexure VI). They have re-iterated their earlier stand.
The R.J.D. met me on 5.3.2005 in the
forenoon and they staked claim to form a Government indicating the support from
the following parties:
Cong.(I) : 10
N.C.P. : 03
C.P.I. (M) : 01
B.S.P. : 02(copy
enclosed as Annex.VII) The R.J.D. with the above will have only 91.
have further claimed that some of the Independent members may support the
R.J.D. However, it has not been disclosed as to the number of Independent M.L.As.
from whom they expect support nor their names.
if we assume the entire independents totalling 17 to extend support to R.J.D.
alliance, which has a combined strength of 91, the total would be 108, which is
still short of the minimum requirement of 122 in a House of 243.
The N.D.A. delegation led by Shri Sushil
Kumar Modi, M.P., met me in the evening of 5.3.2005. They have not submitted
any further letter. However, they stated that apart from their pre-election
alliance of 92, another 10 Independents will also support them and they further
stated that they would be submitting letters separately. This has not been
received so far. Even assuming that they have support of 10 Independents, their
strength will be only 102, which is short of the minimum requirement of 122.
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
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.
Commission in its report has said that Governor while going through the process
of selection should select a leader who in his judgment is most likely to
command a majority in the Assembly. The Book "Constitution of India"
written by Shri V.N. Shukla (10th Edition) while dealing with Articles 75 and
164 of the Constitution of India has dealt with this subject wherein it has
quoted the manner of selection by the Governor, in the following words:
normal circumstances the Governor need have no doubt as to who is the proper
person to be appointed; it is leader of majority party in the Legislative
Assembly, but circumstances can arise when it may be doubtful who that leader
is and the Governor may have to exercise his personal judgment in selecting the
C.M. Under the Constitutional scheme which envisages that a person who enjoys
the confidence of the Legislature should alone be appointed as C.M.".
case referred to above in para 153 S.C. has stated with regard to the position
where, I quote:
after the General Elections held, no political party or coalition of parties or
groups is able to secure absolute majority in the Legislative Assembly and
despite the Governor's exploring the alternatives, the situation has arisen in
which no political party is able to form stable Government, it would be case of
completely demonstrable inability of any political party to form a stable
Government commanding the confidence of the majority members of the Legislature.
It would be a case of failure of constitutional machinery".
I explored all possibilities and
from the facts stated above, I am fully satisfied that no political party or
coalition of parties or groups is able to substantiate a claim of majority in
the Legislative Assembly, and having explored the alternatives with all the
political parties and groups and Independents M.L.As., a situation has emerged
in which no political party or groups appears to be able to form a Government
commanding a majority in the House. Thus, it is a case of complete inability of
any political party to form a stable Government commanding the confidence of
the majority members. This is a case of failure of constitutional machinery.
I, as Governor of Bihar, am not able
to form a popular Government in Bihar,
because of the situation created by the election results mentioned above.
I, therefore, recommend that the
present newly Constituent Assembly be kept in suspended animation for the
present and the President of India is requested to take such appropriate
action/decision, as required. With regards, Yours sincerely, (Buta Singh) Dr.
A.P.J. Abdul Kalam, President of India, Rashtrapati Bhavan, New Delhi.
D.O. No. 52/GB Patna, the 27th April,2005 Respected Rashtrapati Jee, I invite a
reference to my D.O. No.33/GB dated the 6th March, 2005 through which a
detailed analysis of the results of the Assembly elections were made and a
recommendation was also made to keep the newly constituted Assembly
(Constituted vide Election Commission's notification No.308/B.R.- L.A./2005
dated the 4th March, 2005 and 464/Bihar-LA/2005, dated the 4th March, 2005) in
a suspended animation and also to issue appropriate direction/decision. In the
light of the same, the President was pleased to issue a proclamation under
Article 356 of the Constitution vide notification No.G.S.R. 162(E), dated 7th March, 2005 and the proclamation has been
approved and assented by the Parliament.
As none of the
parties either individually or with the then pre-election combination or with
post-election alliance combination could stake a claim to form a popular
Government wherein they could claim a support of a simple majority of 122 in a
House of 243, I had no alternative but to send the above mentioned report with
the said recommendation.
I am given to
understand that serious attempts are being made by JD-U and BJP to cobble a
majority and lay claim to form the Government in the State. Contacts in JD-U
and BJP have informed that 16-17 LJP MLAs have been won over by various means
and attempt is being made to win over others. The JD-U is also targeting
Congress for creating a split. It is felt in JD-U circle that in case LJP does
not split then it can still form the Government with the support of
Independent, NCP, BSP and SP MLAs and two third of Congress MLAs after it
splits from the main Congress party. The JD-U and BJP MLAs are quite convinced
that by the end of this month or latest by the first week of May JD-U will be
in a position to form the Government. The high pressure moves of JD-U/BJP is
also affecting the RJD MLAs who have become restive. According to a report
there is a lot of pressure by the RJD MLAs on Lalu Pd. Yadav to either form the
Government in Bihar on UPA pattern in the Centre, with
the support of Congress, LJP and others or he should at least ensure the
continuance of President's rule in the State.
Commission To Review The Working Of The Constitution has also noticed that the
reasons for increasing instability of elected Governments was attributable to
unprincipled and opportunistic political realignment from time to time. A
reasonable degree of stability of Government and a strong Government is
important. It has also been noticed that the changing alignment of the members
of political parties so openly really makes a mockery of our democracy.
the Constitutional Scheme a political party goes before the electorate with a
particular programme and it sets up candidates at the election on the basis of
such programmes. The 10th Schedule of the Constitution was introduced on the
premise that political propriety and morality demands that if such persons
after the elections changes his affiliation, that should be discouraged. This
is on the basis that the loyalty to a party is a norm being based on shared
beliefs. A divided party is looked on with suspicion by the electorate.
reports in the recent time and other reports gathered through meeting with
various party functionaries/leaders and also intelligence reports received by
me, indicate a trend to gain over elected representatives of the people and
various elements within the party and also outside the party being approached
through various allurements like money, caste, posts, etc. which is a
disturbing feature. This would affect the constitutional provisions and
safeguards built therein. Any such move may also distort the verdict of the
people as shown by results of the recent elections. If these attempts are
allowed to continue then it would be amounting to tampering with constitutional
Keeping in view
the above mentioned circumstances the present situation is fast approaching a
scenario wherein if the trend is not arrested immediately, the consequent
political instability will further give rise to horse trading being practised
by various political parties/groups trying to allure elected MLAs. Consequently
it may not be possible to contain the situation without giving the people
another opportunity to give their mandate through a fresh poll.
I am submitting
these facts before the Hon'ble President for taking such action as deemed
appropriate. With regards, Yours sincerely, (Buta Singh) Dr. A.P.J. Abdul Kalam,
President of India, Rashtrapati Bhavan, New Delhi." D.O. No. 140/PS-GB/BN Patna,
the 21st May, 2005 Respected Rashtrapati Jee, I invite a reference to my D.O.
letter No. 52/GB dated 27th April 2005 through which I had given a detailed
account of the attempts made by some of the parties notably the JD-U and BJP to
cobble a majority and lay a claim to form a Government in the State. I had
informed that around 16-17 MLAs belonging to LJP were being wooed by various
means so that a split could be effected in the LJP. Attention was also drawn to
the fact that the RJD MLAs had also become restive in the light of the above
moves made by the JD-U.
are aware after the Assembly Elections in February this year, none of the
political parties either individually or with the then pre-election combination
or with post election alliance combination could stake a claim to form a popular
Government since they could not claim a support of a simple majority of 122 in
a House of 243 and hence the President was pleased to issue a proclamation
under Article 356 of the Constitution vide notification No. GSR- 162 (E) dated
7th March 2005 and the Assembly was kept in
reports received by me in the recent past through the media and also through
meeting with various political functionaries, as also intelligence reports,
indicate a trend to win over elected representatives of the people. Report has
also been received of one of the LJP MLA, who is General Secretary of the party
having resigned today and also 17-18 more perhaps are moving towards the JD-U
clearly indicating that various allurements have been offered which is a very
disturbing and alarming feature. Any move by the break away action to align
with any other party to cobble a majority and stake claim to form a Government
would positively affect the Constitutional provisions and safeguards built
therein and distort the verdict of the people as shown by the results in the
recent Elections. If these attempts are allowed it would be amounting to
tampering with Constitutional provisions.
the above mentioned circumstances, I am of the considered view that if the
trend is not arrested immediately, it may not be possible to contain the
situation. Hence in my view a situation has arisen in the State wherein it
would be desirable in the interest of the State that the Assembly presently
kept in suspended animation is dissolved, so that the people/electorate can be
provided with one more opportunity to seek the mandate of the people at an
appropriate time to be decided in due course.
regards, Yours sincerely Sd/- (Buta Singh) Dr. A.P.J. Abdul Kalam, President of
India, Rashtrapati Bhavan, New Delhi. We
shall first deal with the question as to the essence of the judgment in Bommai's
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.
A.K. Kaul and Anr. v. Union of India and Anr. (1995 (4) SCC 73), the position was summed up as
It would thus appear that in S. R. Bommai though all the learned Judges have held
that the exercise of powers under Article 356(1) is subject to judicial review
but in the matter of justiciability of the satisfaction of the President, the
view of the majority (Pandian, Ahmadi, Verma Agrawal, Yogeshwar Dayal and Jeevan
Reedy, JJ.) is that the principles evolved in Barium Chemicals for adjudging
the validity of an action based on the subjective satisfaction of the authority
created by statute do not, in their entirety, apply to the exercise of a
constitutional power under Article 356. On the basis of the judgment of Jeevan
Reddy, J., which takes a narrower view than that taken by Sawant, J., it can be
said that the view of the majority (Pandian, Kuldip Singh, Sawant, Agrawal and Jeevan
Reddy, JJ.) is that:
of the President while making a Proclamation under Article 356 (1) is justiciable;
it would be open
to challenge on the ground of mala fides or being based wholly on extraneous
and or irrelevant grounds;
even if some of
the materials on which the action is taken is found to be irrelevant, the court
would still not interferes so long as there is some relevant material
sustaining the action;
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 also not substitute it opinion
for that of the President;
the ground of mala
fides takes in inter alia situations where the Proclamation is found to be a
clear case a abuse of power or what is sometimes called fraud on power;
the court will
not lightly presume abuse or misuse of power and will make allowance of the
fact that the president and the Union Council of Ministers are the best judge
of the situation and that they are also in possession of information and
material and that the Constitution has trusted their judgment in the matter;
this does not
mean that the President and the Council of Ministers are the final arbiters in
the matter or that their opinion is conclusive." If the State of Rajasthan's case (supra) and Bommai's case
(supra) are read together it is crystal clear that in Bommai's case, the scope
of judicial review as set out in the State of Rajasthan's case (supra) was elaborated as is clear from the
summation in A.K. Kaul's case (supra).
Greene said in 1948 in the famous Wednesbury case (1948 (1) KB 223s) that when
a statute gave discretion to an administrator to take a decision, the scope of
judicial review would remain limited. He said that interference was not
permissible unless one or the other of the following conditions was satisfied,
namely the order was contrary to law, or relevant factors were not considered,
or irrelevant factors were considered; or the decision was one which no
reasonable person could have taken. Lord Diplock in Council for Civil Services
Union v. Minister of Civil Service [(1983) 1 AC 768] (called the CCSU case)
summarized the principles of judicial review of administrative action as based
upon one or other of the following viz., illegality, procedural irregularity
and irrationality. He, however, opined that "proportionality" was a
In Om Kumar and Ors. v. Union of India (2001 (2) SCC 386), this Court
observed, inter alia, as follows:
principle originated in Prussia in the nineteenth century and has
since been adopted in Germany, France and other European countries. The European Court of Justice
at Luxembourg and the European Court of Human
Rights at Strasbourg have applied the principle while
judging the validity of administrative action. But even long before that, the
Indian Supreme Court has applied the principle of "proportionality"
to legislative action since 1950, as stated in detail below.
"proportionality", we mean the question whether, while regulating
exercise of fundamental rights, the appropriate or least- restrictive choice of
measures has been made by the legislature or the administrator so as to achieve
the object of the legislation or the purpose of the administrative order, as
the case may be. Under the principle, the court will see that the legislature
and the administrative authority "maintain a proper balance between the
adverse effects which the legislation or the administrative order may have on
the rights, liberties or interests of persons keeping in mind the purpose which
they were intended to serve". The legislature and the administrative
authority are, however, given an area of discretion or a range of choices but
as to whether the choice made infringes the rights excessively or not is for
the court. That is what is meant by proportionality. xxx xxx xxx xxx xxx The
development of the principle of "strict scrutiny" or
"proportionality" in administrative law in England is, however, recent.
action was traditionally being tested on Wednesbury grounds. But in the last
few years, administrative action affecting the freedom of expression or liberty
has been declared invalid in several cases applying the principle of
"strict scrutiny". In the case of these freedoms, Wednesbury
principles are no longer applied. The courts in England could not expressly apply proportionality in the absence of
the convention but tried to safeguard the rights zealously by treating the said
rights as basic to the common law and the courts then applied the strict
scrutiny test. In the Spycatcher case Attorney General v. Guardian Newspapers
Ltd. (No.2) (1990) 1 AC 109 (at pp. 283-284), Lord Goff stated that there was
no inconsistency between the convention and the common law. In Derbyshire
County Council v. Times Newspapers Ltd. (1993) AC 534, Lord Keith treated freedom
of expression as part of common law. Recently, in R. v. Secy. Of State for Home
Deptt., ex p. Simms (1999) 3 All ER 400 (HL), the right of a prisoner to grant
an interview to a journalist was upheld treating the right as part of the
common law. Lord Hobhouse held that the policy of the administrator was
disproportionate. The need for a more intense and anxious judicial scrutiny in
administrative decisions which engage fundamental human rights was re- emphasised
in in R. v. Lord Saville ex p (1999) 4 All ER 860 (CA), at pp.870,872) . In all
these cases, the English Courts applied the "strict scrutiny" test
rather than describe the test as one of "proportionality". But, in
any event, in respect of these rights "Wednesbury" rule has ceased to
the principle of "strict scrutiny" or "proportionality" and
primary review came to be explained in R. v. Secy. of State for the Home Deptt.
ex p Brind (1991) 1 AC 696. That case related to directions given by the Home
Secretary under the Broadcasting Act, 1981 requiring BBC and IBA to refrain
from broadcasting certain matters through persons who represented organizations
which were proscribed under legislation concerning the prevention of terrorism.
The extent of prohibition was linked with the direct statement made by the
members of the organizations. It did not however, for example, preclude the
broadcasting by such persons through the medium of a film, provided there was a
"voice-over" account, paraphrasing what they said. The applicant's
claim was based directly on the European Convention of Human Rights. Lord Bridge noticed
that the Convention rights were not still expressly engrafted into English law
but stated that freedom of expression was basic to the Common law and that,
even in the absence of the Convention, English Courts could go into the
question (see p. 748-49).
the Secretary of State, in the exercise of his discretion, could reasonably
impose the restriction he has imposed on the broadcasting organisations"
and that the courts were "not perfectly entitled to start from the premise
that any restriction of the right to freedom of expression requires to be
justified and nothing less than an important public interest will be sufficient
to justify it".
also said in the above case that the courts could go into the question whether
a reasonable minister could reasonably have concluded that the interference
with this freedom was justifiable.
said that "in terms of the Convention" any such interference must be
both necessary and proportionate (ibid pp. 750-51).
famous passage, the seeds of the principle of primary and secondary review by
courts were planted in the administrative law by Lord Bridge in the Brind case (1991) 1 AC 696.
Where Convention rights were in question the courts could exercise a right of
primary review. However, the courts would exercise a right of secondary review
based only on Wednesbury principles in cases not affecting the rights under the
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:
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.
we are entitled to exercise a secondary judgment by asking whether a reasonable
Secretary of State, on the material before him, could reasonably make the
primary judgment." In Union of India and Anr. vs. G. Ganayutham (1997
 SCC 463), in paragraph 31 this Court observed as follows:
"The current position of proportionality in administrative law in England and India can be summarized as follows:
To judge the
validity of any administrative order or statutory discretion, normally the Wednesbury
test is to be applied to find out if the decision was illegal or suffered from
procedural improprieties or was one which no sensible decision-maker could, on
the material before him and within the framework of the law, have arrived at.
court would consider whether relevant matters had not been taken into account
or whether irrelevant matters had been taken into account or whether the action
was not bona fide. The court would also consider whether the decision was
absurd or perverse. The court would not however go into the correctness of the
choice made by the administrator amongst the various alternatives open to him.
Nor could the court substitute its decision to that of the administrator.
is the Wednesbury (1948 1 KB 223) test.
The court would
not interfere with the administrator's decision unless it was illegal or
suffered from procedural impropriety or was irrational in the sense that it
was in outrageous defiance of logic or moral standards. The possibility of
other tests, including proportionality being brought into English
administrative law in future is not ruled out. These are the CCSU (1985 AC 374)
As per Bugdaycay (1987 AC 514), Brind
(1991 (1) AC 696) and Smith (1996 (1) All ER 257) as long as the Convention is
not incorporated into English law, the English courts merely exercise a
secondary judgment to find out if the decision-maker could have, on the
material before him, arrived at the primary judgment in the manner he has done.
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 and find out if the restriction is
disproportionate or excessive or is not based upon a fair balancing of the
fundamental freedom and the need for the restriction thereupon.
in our country, in administrative law, where no fundamental freedoms as
aforesaid are involved, is that the courts/tribunals will only play a secondary
role while the primary judgment as to reasonableness will remain with the
executive or administrative authority. The secondary judgment of the court is
to be based on Wednesbury and CCSU principles as stated by Lord Greene and Lord
Diplock respectively to find if the executive or administrative authority has
reasonably arrived at his decision as the primary authority".
common thread running through in all these decisions is that the Court should
not interfere with the administrator's decision unless it was illogical or
suffers from procedural impropriety or was shocking to the conscience of the
Court, in the sense that it was in defiance of logic or moral standards. In
view of what has been stated in the Wednesbury's case (supra) the Court would
not go into the correctness of the choice made by the administrator open to him
and the Court should not substitute its decision to that of the administrator.
The scope of judicial review is limited to the deficiency in decision-making
process and not the decision.
to Wade, Administrative Law (9th Edition) is the law relating to the control of
powers of the executive authorities.
consider why such a law became necessary, we have to consider its historical
background. Up to the 19th century the functions of the State in England were confined to (i) defence of the
country from foreign invasion, and (ii) maintenance of law and order within the
vast expansion in the State functions resulted in large number of legislations
and also for wide delegation of State functions by Parliament to executive
authorities, so also was there a need to create a body of legal principles to
control and to check misuse of these new powers conferred on the State
authorities in this new situation in the public interest. Thus, emerged
Administrative Law. Maitland pointed out in his Constitutional History:
by year the subordinate Government of England is becoming more and more
important. We are becoming a much governed nation, governed by all manner of
councils and boards and officers, central and local, high and low, exercising
the powers which have been committed to them by modern statutes." But in
the early 20th century following the tradition of Dicey's classic exposition in
his: The Law of the Constitution, there was a spate of attacks on parliamentary
delegation culminating in the book New Despotism by the then Chief Justice of England, Lord Hewart published in 1929. In
response, the British Government in 1932 set up a committee called the
Committee on Ministerial Powers headed by Lord Donoughmore, to examine these
complaints and criticisms.
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.
v. Lancashire CC, ex p Huddleston [1986 (2) All ER 941 (CA)], it was said about
Administrative Law that it "has created a new relationship between the
courts and those who derive their authority from the public law, one of
partnership based on a common aim, namely, the maintenance of the highest
standards of public administration".
v. Anderson (1941 (3) All E.R. 338 (HL) the
case related to the Defence (General) Regulations, 1939 which provided:
the Secretary of State has reasonable cause to believe any person to be of
hostile origin or association he may make an order against that person
directing that he be detained." The detenu Liversidge challenged the
detention order passed against him by the Secretary of State. The majority of
the House of Lords, except Lord Atkin, held that the Court could not interfere
because the Secretary of State had mentioned in his order that he had
reasonable cause to believe that Liversidge was a person of hostile origin or
was delivered during the Second World War when the executive authority had
unbridled powers to detain a person without even disclosing to the Court on
what basis the Secretary had reached to his belief. However, subsequently, the
British courts accepted Lord Atkin's dissenting view that there must be some
relevant material on the basis of which the satisfaction of the Secretary of
State could be formed. Also, the discretion must be exercised keeping in view
the purpose for which it was conferred and the object sought to be achieved,
and must be exercised within the four corners of the statute (See: Clariant
International Ltd. and Another v. Securities and Exchange Board of India
(2004(8) SCC 524) Sometimes a power is coupled with a duty. Thus, a limited
judicial review against administrative action is always available to the
Courts. Even after elaboration in Bommai's case (supra) the scope for judicial
review in respect of Governors' action cannot be put on the same pedestal as
that of other administrative orders. As observed in Para 376 of judgment in Bommai's case (supra) the scope
of judicial review would depend upon facts of the given case. There may be
cases which do not admit of judicial prognosis. The principles which are
applicable when an administrative action is challenged cannot be applied stricto
sensu to challenges made in respect of proclamation under Article 356. However,
in view of what is observed explicitly in Bommai's case (supra), the
proclamation under Article 356(1) is not legislative in character.
person entrusted with discretion must, so to speak, direct himself properly in
law. He must call his attention to matters which he is bound to consider. He
must exclude from his consideration matters which are irrelevant to what he has
to consider. If he does not obey those rules he may truly be said to be acting
unreasonably. Similarly, there may be something so absurd that no sensible
person could ever dream that it lay within the powers of the authority.
an unwritten rule of the law, constitutional and administrative, that whenever
a decision-making function is entrusted to the subjective satisfaction of a
statutory functionary, there is an implicit obligation to apply his mind to
pertinent and proximate matters only, eschewing the irrelevant and the remote. (See:
Smt. Shalini Soni and Ors. v. Union of India and others 1980 (4) SCC 544).
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
it is based on
wholly irrelevant material or wholly irrelevant consideration,
it has ignored a
very relevant material which it should have taken into consideration, or
it is so absurd
that no sensible person could ever have reached to it.
observed by Lord Diplock in CCSU's case (supra) a decision will be said to
suffer from Wednesbury unreasonableness if it is "so outrageous in its
defiance of logic or of accepted moral standards that no sensible person who
had applied his mind to the question to be decided could have arrived at
Constitution is a unique legal document. It enshrines a special kind of norm
and stands at the top of normative pyramid. Difficult to amend, it is designed
to direct human behavior for years to come. It shapes the appearance of the
State and its aspirations throughout history. It determines the State's
fundamental political views. It lays the foundation for its social values. It
determines its commitments and orientations. It reflects the events of the
past. It lays the foundation for the present. It determines how the future will
look. It is philosophy, politics, society, and law all in one.
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:
task of expounding a constitution is crucially different from that of
construing a statute. A statute defines present rights and obligations. It is
easily enacted and as easily repealed. A constitution, by contrast, is drafted
with an eye to the future. Its function is to provide a continuing framework
for the legitimate exercise of governmental power and, when joined by a Bill or
Charter of rights, for the unremitting protection of individual rights and
liberties. Once enacted, its provisions cannot easily be repealed or amended.
It must, therefore, be capable of growth and development over time to meet new
social, political and historical realities often unimagined by it framers. The
judiciary is the guardian of the constitution and must, in interpreting its
provisions, bear these considerations in mind." The political question
doctrine, in particular, remits entire areas of public life to Congress and the
President, on the grounds that the Constitution assigns responsibility for
these areas to the other branches, or that their resolution will involve
discretionary, polycentric decisions that lack discrete criteria for
adjudication and thus are better handled by the more democratic branches. By
foreclosing judicial review, even regarding the minimal rationality of the
political branches' discretionary choices, the doctrine denies federal judges a
role in "giving proper meaning to our public value" in important
substantive fields. (Quoted from an Article in Harvard Law Review).
Theory is based on a notion of human dignity: as beings worthy of respect
because of their very nature, adults must enjoy a large degree of autonomy, a
status principally attainable in the modern world by being able to share in the
Governance of their community. Because direct rule is not feasible for the mass
of citizens, most people can share in self government only by delegating
authority to freely chosen representatives. Thus Justice Hugo L. Black
expressed a critical tenet of democratic theory when he wrote:
right is more precious in a free country than that of having a voice in the
election of those who make the laws under which we...must live." For
democratic theory, what makes governmental decisions morally binding is
process: the people's freely choosing representatives, those representatives'
debating and enacting policy and later standing for re-election, and
administrators' enforcing that policy. Democratic theory, therefore, tends to
embrace both positivism and moral relativism.
democratic theory turns to moral relativism, constitutionalism turns to moral
realism. It presumes that "out there" lurk discoverable standards to
judge whether public policies infringe on human dignity. The legitimacy of a
policy depends not simply on the authenticity of decision makers' credentials
but also on substantive criteria. Even with the enthusiastic urging of a
massive majority whose representatives have meticulously observed proper
processes, government may not trample on fundamental rights. For
constitutionalists, political morality cannot be weighed on a scale in which
"opinion is an omnipotence," only against the moral criterion of
sacred, individual rights. They agree with Jafferson: "An elective
despotism was not the government we fought for......" (From Constitutions,
Constitutionalism, and Democracy by Walter F. Murphy).
of mala-fides without any supportable basis is the last feeble attempt of a
losing litigant, otherwise it will create a smokescreen on the scope of judicial
review. This is a pivotal issue around which the fate of this case revolves. As
was noted in A.K. Kaul's case (supra) the satisfaction of the President is justiciable.
It would be open to challenge on the ground of mala fides or being based wholly
on extraneous or irrelevant grounds. The sufficiency or the correctness of the
factual position indicated in the report is not open to judicial review. The
truth or correctness of the materials cannot be questioned by the Court nor
would it go into the adequacy of the material and it would also not substitute
its opinion for that of the President. Interference is called for only when
there is clear case of abuse of power or what is some times called fraud on
power. The Court will not lightly presume abuse or misuse of power and will
make allowance for the fact that the decision making authority is the best
judge of the situation. If the Governor would have formed his opinion for
dissolution with the sole objective of preventing somebody from staking a claim
it would clearly be extraneous and irrational. The question whether such person
would be in a position to form a stable government is essentially the
subjective opinion of the Governor; of course to be based on objective
materials. The basic issue therefore is did the Governor act on extraneous and
irrelevant materials for coming to the conclusion that there was no possibility
of stable government.
to the petitioners, the question whether there was any allurement or horse
trading (an expression frequently used in such cases) or allurement of any kind
is not a matter which can be considered by the Governor. The scope of judicial
review of Governor's decision does not and cannot stand on the same footing as
that of any other administrative decision. In almost all legal inquiries
intention as distinguished from motive is the all important factor and in
common parlance a malicious act stands equated with an intentional act without
just cause or excuse. Whereas fairness is synonymous with reasonableness bias stand
included within the attributes and broader purview of the word
"malice" which in common acceptation implies "spite" or
"ill will". Mere general statements will not be sufficient for the
purpose of indication of ill will. There must be cogent evidence available on
record to come to a conclusion as to whether in fact there was bias or mala
fide involved which resulted in the miscarriage of justice. The tests of real
likelihood and reasonable suspicion are really inconsistent with each other.
S. Parthasarthi v. State of A.P. (1974 (3)
SCC 459). The word 'bias' is to denote a departure from the standing of even
handed justice. (See: Franklin vs. Minister of Town and Country
Planning (1947 2 All ER 289 (HL).
State of Punjab v. V.K. Khanna and Ors. (2001 (2)
SCC 330), it was observed as follows:
Lord Thankerton in Franklin v. Minister of Town and Country
Planning (1948 AC 87 : (1947) 2 All ER 289 (HL) opined that the word
"bias" is to denote a departure from the standing of even-handed
justice. Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar case ((2001) 1 SCC
182) further noted the different note sounded by the English Courts in the
manner following : (SCC pp.199-201, paras 30-34) "30. Recently however,
the English courts have sounded a different note, though may not be substantial
but the automatic disqualification theory rule stands to some extent diluted.
The affirmation of this dilution however is dependent upon the facts and
circumstances of the matter in issue. The House of Lords in the case of R. v.
Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No. 2)
((2000) 1 AC 119) observed:
In civil litigation the matters in issue will normally have an economic impact;
therefore a Judge is automatically disqualified if he stands to make a
financial gain as a consequence of his own decision of the case. But if, as in
the present case, the matter at issue does not relate to money or economic
advantage but is concerned with the promotion of the cause, the rationale
disqualifying a Judge applies just as much if the Judge's decision will lead to
the promotion of a cause in which the Judge is involved together with one of
Lord Brown-Wilkinson at p. 136 of
the report stated :
important not to overstate what is being decided. It was suggested in argument
that a decision setting aside the order of 25-11-1998 would lead to a position
where Judges would be unable to sit on cases involving charities in whose work
they are involved. It is suggested that, because of such involvement, a Judge
would be disqualified. That is not correct. The facts of this present case are
exceptional. The critical elements are (1) that A.I. was a party to the appeal;
(2) that A.I. was joined in order to argue for a particular result; (3) the
Judge was a director of a charity closely allied to A.I. and sharing, in this
respect, A.I.'s objects. Only in cases where a Judge is taking an active role
as trustee or director of a charity which is closely allied to and acting with
a party to the litigation should a Judge normally be concerned either to recuse
himself or disclose the position to the parties. However, there may well be
other exceptional cases in which the Judge would be well advised to disclose a
Lord Hutton also in Pinochet case ((2000) 1
AC 119) observed :
could be cases where the interest of the Judge in the subject- matter of the
proceedings arising from his strong commitment to some cause or belief or his
association with a person or body involved in the proceedings could shake
public confidence in the administration of justice as much as a shareholding
(which might be small) in a public company involved in the litigation.'
Incidentally in Locabail [Locabail
(U.K.) Ltd. v. Bayfield Properties Ltd. (2000 QB 451)] the Court of Appeal upon
a detail analysis of the oft-cited decision in R. v. Gough (1993 AC 646)
together with the Dimes case (Dimes v. Grand Junction Canal, (1853) 3 HL Cas
759 : 10 ER 301), Pinochet case ((2000) 1 AC 119), Australian High Court's
decision in the case of J.R.L., ex p C.J.L., Re ((1986) 161 CLR 342) as also
the Federal Court in Ebner, Re ((1999) 161 ALR 557) and on the decision of the
Constitutional Court of South Africa in President of the Republic of South Africa
v. South African Rugby Football Union ((1999) 4 SA 147) stated that it would be
rather dangerous and futile to attempt to define or list the factors which may
or may not give rise to a real danger of bias. The Court of Appeal continued to
the effect that everything will depend upon facts which may include the nature
of the issue to be decided. It further observed :
contrast, a real danger of bias might well be thought to arise if there were
personal friendship or animosity between the Judge and any member of the public
involved in the case; or if the Judge were closely acquainted with any member
of the public involved in the case, particularly if the credibility of that
individual could be significant in the decision of the case; or if, in a case where
the credibility of any individual were an issue to be decided by the Judge, he
had in a previous case rejected the evidence of that person in such outspoken
terms as to throw doubt on his ability to approach such person's evidence with
an open mind on any later occasion; or if on any question at issue in the
proceedings before him the Judge had expressed views, particularly in the
course of the hearing, in such extreme and unbalanced terms as to throw doubt
on his ability to try the issue with an objective judicial mind (Vakuta v.
Kelly ((1989) 167 CLR 568)); or if, for any other reason, there were real
ground for doubting the ability of the Judge to ignore extraneous
considerations, prejudices and predilections and bring an objective judgment to
bear on the issues before him. The mere fact that a Judge, earlier in the same
case or in a previous case, had commented adversely on a party-witness, or
found the evidence of a party or witness to be unreliable, would not without
more found a sustainable objection. In most cases, we think, the answer, one
way or the other, will be obvious. But if in any case there is real ground for
doubt, that doubt should be resolved in favour of recusal. We repeat: every
application must be decided on the facts and circumstances of the individual
case. The greater the passage of time between the event relied on as showing a
danger of bias and the case in which the objection is raised, the weaker (other
things being equal) the objection will be.'
The Court of Appeal judgment in Locabail
(200 QB 451) though apparently as noticed above sounded a different note but in
fact, in more occasions than one in the judgment itself, it has been clarified
that conceptually the issue of bias ought to be decided on the facts and
circumstances of the individual case - a slight shift undoubtedly from the
original thinking pertaining to the concept of bias to the effect that a mere
apprehension of bias could otherwise be sufficient." In Bommai's case
(supra) though all the learned Judges held that exercise of power under Article
356(1) of the Constitution is subject to judicial review but in the matter of justiciability
of the satisfaction of the President, the majority view was to the effect that
the principles evolved in Barium Chemicals Ltd. and Anr. v. Company Law Board
and Ors. (AIR 1967 SC 295) for adjudging the validity of an action based on the
subjective satisfaction of the authority created by the Statute do not in their
entirety apply to the exercise of constitutional power under Article 356 of the
fide intent or biased attitude cannot to be put on a strait- jacket formula but
depend upon facts and circumstances of each case and in that perspective
judicial precedent would not be of much assistance. It is important to note
that in Bommai's case (supra) this Court was concerned with cases of
dissolution of Assemblies when cabinets were in office. Though at first flush,
it appears that the factual background in Karnataka's case (supra) dealt with
in Bommai's case (supra) has lot of similarity with the factual position in
hand, yet on a deeper analysis the position does not appear to be so. The
factual position was peculiar. In the instant case, the Governor's report
reveals that the source of his opinion was intelligence reports, media reports
and discussions with functionaries of various parties. A plea was raised by the
petitioners that it has not been indicated as to functionaries of which party
the Governor had discussed with. That cannot be a ground to hold the report to
be vulnerable. As was noted in Bommai's case (supra) the sufficiency or
correctness of factual aspects cannot be dealt with. Therefore, as noted above,
the only question which needs to be decided is whether the conclusions of the
Governor that if foul means are adopted to cobble the majority it would be
against the spirit of democracy.
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.
report dated 27.4.2005 to which reference has been made in the report dated
21.5.2005 reference is made to allurements like money, caste, posts etc. and
this has been termed as a disturbing feature. In both the reports, the opinion
of the Governor is that if these attempts are allowed to continue, it would
amount to tampering with constitutional provisions. Stand of the petitioners is
that even if it is accepted to be correct, there is no constitutional provision
empowering the Governor to make the same basis for not allowing a claim to be
staked. This argument does not appear to be totally sound.
Hollohan v. Zachillhu and Ors. (1992 Supp (2) SCC 651) the menace of defection
was noted with concern and the validity of the Tenth Schedule was upheld. While
upholding the validity of the provision this Court in no uncertain terms
deprecated the change of loyalties to parties and the craze for power. The
Statement of Objects and Reasons appended to the Constitution (52nd Amendment)
Act, 1985 refer to the evil of political defection which has been the matter of
national concern. It was noted that if it is not combated it is likely to
undermine the very foundation of our democracy and the principles which sustain
it. It was noted as follows:
"In expounding the processes of
the fundamental law, the Constitution must be treated as a logical whole. Westel
Woodbury Willoughby in The Constitutional Law of the
United States (2nd Edn. Vol.1 p.65) states:
Constitution is a logical whole, each provision of which is an integral part
thereof, and it is, therefore, logically proper, and indeed imperative, to
construe one part in the light of the provisions of the other parts."
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
Constitutional Limitations (8th edn. Vol.1, p.129) says:
the adoption of an amendment to a Constitution, the amendment becomes a part
much so as it had been originally incorporated in the Constitution; and it is
to be construed accordingly." Again, in paragraph 41, the position was
illuminatingly stated by Mr. Justice M.N. Venkatachaliah (as His Lordship then
was). A right to elect, fundamental though it is to democracy is anomalously
enough neither a fundamental right nor a common law right. It is pure and
simple, a statutory right. So it is the right to be elected. So is the right to
dispute an election. Outside of statute, there is no right to elect, no right
to be elected and no right to dispute an election.
creations they are and therefore subject to statutory limitation. (See Jyoti Basu
and Ors. v. Debi Ghosal and Ors. (1982 (1) SCC 691).
as noted above is the basic feature of the Constitution. In paragraphs 44 and
49 of Kihoto's case (supra) it was noted as follows:
"But a political party
functions on the strength of shared beliefs. Its own political stability and
social utility depends on such shared beliefs and concerted action of its
Members in furtherance of those commonly held principles. Any freedom of its
Members to vote as they please independently of the political party's declared
policies will not only embarrass its public image and popularity but also
undermine public confidence in it which, in the ultimate analysis, is its
source f sustenance nay, indeed, its very survival.
party debates are of course a different thing. But a public image of disparate
stands by Members of the same political party is not looked upon, in political
tradition, as a desirable state of things. Griffith and Ryle on Parliament
Functions, Practice and Procedure (1989 Edn., p.119) says;
to party is the norm, being based on shared beliefs. A divided party is looked
on with suspicion by the electorate. It is natural for Members to accept the
opinion of their Leaders and Spokesmen on the wide variety of matters on which
those members have no specialist knowledge.
Members will accept majority decisions in the party even when they disagree. It
is understandable therefore that a Member who rejects the party whip even on a
single occasion will attract attention and more criticism than sympathy. To
abstain from voting when required by party to vote is to suggest a degree of
unreliability. To vote against party is disloyalty. To join with others in
abstention or voting with the other side smacks of conspiracy.
Indeed, in a sense an anti-defection
law is a statutory variant of its moral principle and justification underlying
the power of recall.
might justify a provision for recall would justify a provision for dis-qualification
for defection. Unprincipled defection is a political and social evil. It is
perceived as such by the legislature. People, apparently, have grown
distrustful of the emotive political exultations that such floor-crossing
belong to the sacred area of freedom of conscience, or of the right to dissent
or of intellectual freedom. The anti- defection law seeks to recognize the
practical need to place the proprieties of political and personal conduct 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.
should, we think, defer to this legislative wisdom and perception. The choices
in constitutional adjudications quite clearly indicate the need for such
deference. "Let the end be legitimate, let it be within the scope of the
Constitution and all means which are appropriate, which are adopted to that
end..." are constitutional." Therefore, the well recognised position
in law is that purity in the electorate process and the conduct of the elected
representative cannot be isolated from the constitutional requirements.
"Democracy" and "Free and Fair Election" are inseparable
twins. There is almost an inseverable umbilical cord joining them. In a
democracy the little man- voter has overwhelming importance and cannot be
hijacked from the course of free and fair elections. His freedom to elect a
candidate of his choice is the foundation of a free and fair election. But
after getting elected, if the elected candidate deviates from the course of
fairness and purity and becomes a "Purchasable commodity" he not only
betrays the electorate, but also pollutes the pure stream of democracy.
the governor whose constitutional duty is to safeguard the purity throw up his
hands in abject helplessness in such situations? As noted by this Court in
People's Union for Civil Liberties (PUCL) and Anr.
v. Union of India and Anr. (2003 (4) SCC 399) a well informed voter is the
foundation of democratic structure. If that be so, can it be said that the
Governor will remain mute and silent spectator when the elected representatives
act in a manner contrary to the expectations of the voters who had voted for
them. In paragraph 94 of it was noted as follows:
"The trite saying that
'democracy is for the people, of the people and by the people' has to be
remembered for ever. In a democratic republic, it is the will of the people
that is paramount and becomes the basis of the authority of the Government. The
will is expressed in periodic elections based on universal adult suffrage held by
means of secret ballot. It is through the ballot that the voter expresses his
choice or preference for a candidate. "Voting is formal expression of will
or opinion by the person entitled to exercise the right on the subject or
issue", as observed Sabha [(1993) 4 SCC 234] quoting from Black's Law
Dictionary. The citizens of the country are enabled to take part in the
Government through their chosen representatives. In a Parliamentary democracy
like ours, the Government of the day is responsible to the people through their
elected representative acts or is supposed to act as a live link between the
people and the Government. The peoples' representatives fill the role of
law-makers and custodians of Government. People look to them for ventilation
and redressal of their grievances.
are the focal point of the will and authority of the people at large. The
moment they put in papers for contesting the election, they are subjected to
public gaze and public scrutiny. The character, strength and weakness of the
candidate is widely debated.
is therefore more important for sustenance of democratic polity than the voter
making an intelligent and rational choice of his or her representative. For
this, the voter should be in a position to effectively formulate his/her
opinion and to ultimately express that opinion through ballot by casting the
vote. The concomitant of the right to vote which is the basic postulate of
democracy is thus two fold:
formulation of opinion about the candidates and second, the expression of
choice by casting the vote in favour of the preferred candidate at the polling
booth. The first step is complementary to the other. Many a voter will be
handicapped in formulating the opinion and making a proper choice of the
candidate unless the essential information regarding the candidate is
available. The voter/citizen should have at least the basic information about
the contesting candidate, such as his involvement in serious criminal offences.
To scuttle the flow of information- relevant and essential would affect the
electorate's ability to evaluate the candidate.
only that, the information relating to the candidates will pave the way for
public debate on the merits and demerits of the candidates.
once there is public disclosure of the relevant details concerning the
candidates, the Press, as a media of mass communication and voluntary
organizations vigilant enough to channel the public opinion on right lines will
be able to disseminate the information and thereby enlighten and alert the
public at large regarding the adverse antecedents of a candidate. It will go a
long way in promoting the freedom of speech and expression. That goal would be
accomplished in two ways. It will help the voter who is interested in seeking
and receiving information about the candidate to form an opinion according to
his or her conscience and best of judgment and secondly it will facilitate the
Press and voluntary organizations in imparting information on a matter of vital
public concern. An informed voter-whether he acquires information directly by
keeping track of disclosures or through the Press and other channels of
communication, will be able to fulfil his responsibility in a more satisfactory
manner. An enlightened and informed citizenry would undoubtedly enhance
democratic values. Thus, the availability of proper and relevant information
about the candidate fosters and promotes the freedom of speech and expression
both from the point of view of imparting and receiving the information. In
turn, it would lead to the preservation of the integrity of electoral process
which is so essential for the growth of democracy. Though I do not go to the
extent of remarking that the election will be a farce if the candidates' antecedents
are not known to the voters, I would say that such information will certainly
be conducive to fairness in election process and integrity in public life.
disclosure of information would facilitate and augment the freedom of
expression both from the point of view of the voter as well as the media
through which the information is publicized and openly debated." There is
no place for hypocrisy in democracy. The Governor's perception about his power
may be erroneous, but it is certainly not extraneous or irrational. It has been
rightly contended by learned counsel for the Union of India that apart of
Governor's role to ensure that the Government is stable, the case may not be
covered by the Tenth Schedule and it cannot be said that by avoiding the Tenth
Schedule by illegitimate or tainted means a majority if gathered leaves the
Governor helpless, and a silent onlooker to the tampering of mandate by
dishonest means. It is not and cannot be said that by preventing a claim to be
staked the Governor does not act irrationally or on extraneous premises. Had
the Governor acted with the object of preventing anyone from staking a claim
his action would have been vulnerable. The conduct of the Governor may be
suspicious and may be so in the present case, but if his opinion about the
adoption of tainted means is supportable by tested materials, certainly it
cannot be extraneous or irrational. It would all depend upon the facts of each
case. If the Governor in a particular case without tested or unimpeachable material
merely makes an observation that tainted means are being adopted, the same
would attract judicial review. But in the instant case there is some material
on which the Governor has acted. This ultimately is a case of subjective
satisfaction based on objective materials. On the factual background one thing
is very clear i.e. no claim was staked and on the contrary the materials on
record show what was being projected. It is also clear from a bare perusal of
the documents which the petitioners have themselves enclosed to the writ
petitions that authenticity of the documents is suspect.
response to human rights cannot be blunted by legal jugglery. (See: Bhupinder
Sharma v. State of Himachal Pradesh 2003(8) SCC 551). Justice has no favourite
other than the truth. Reasonableness, rationality, legality as well as
philosophically provide colour to the meaning of fundamental rights. What is
morally wrong cannot be politically right. The petitioners themselves have
founded their claims on documents which do not have even shadow of genuineness
so far as claim of majority is concerned. If the Governor felt that what was
being done was morally wrong, it cannot be treated as politically right. This
is his perception. It may be erroneous.
not be specifically spelt out by the Constitution so far as his powers are
concerned. But it ultimately is a perception.
erroneous it cannot be termed as extraneous or irrational. Therefore however
suspicious conduct of the Governor may be, and even if it is accepted that he
had acted in hot haste it cannot be a ground to term his action as extraneous.
A shadow of doubt about bona fides does not lead to an inevitable conclusion
about mala fides.
hasten to add that similar perceptions by Governors may lead to chaotic
conditions. There may be human errors. Therefore, the concerned Governor has to
act carefully with care and caution and can draw his inference from tested and
unimpeachable material; otherwise not. In B.R. Kapur v. State of Tamil Nadu and Anr. (AIR 2001 SC 3435)
this Court considered the role of the Governor in appointing the Chief
Minister. It was held that the Governor can exercise his discretion and can
decline to make the appointment when the person chosen by the majority party is
not qualified to be member of Legislature. It was observed that in such a case
the Constitution prevails over the will of the people. It was further observed
that accepting submissions as were made in that case that the Governor
exercising powers under Article 164(1) read with (4) was obliged to appoint as
Chief Minister whosoever the majority party in the Legislature nominated,
regardless of whether or not the person nominated was qualified to be a member
of the legislature under Article 173 or was disqualified in that behalf under
Article 191,and the only manner in which a Chief Minister who was not qualified
or who was disqualified could be removed was by a vote of no-confidence in the
legislature or by the electorate at the next elections and that the Governor was
so obliged even when the person recommended was, to the Governor's 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.
situation cannot be different when the Chief Minister nominated was to head a
Ministry which had its foundation on taint and the majority is cobbled by unethical
means or corrupt means. As was observed in B.R. Kapur's case (supra) in such an
event the constitutional purity has to be maintained and the Constitution has
to prevail over the will of the people.
these conclusions the writ applications could have been disposed of. But,
taking note of some of the disturbing features highlighted by learned counsel
about the suspicious and apparently indefensible roles of some Governors, it is
necessary to deal with some of the relevant aspects.
relevant to take note of what the Sarkaria Committee had said about the role of
The role of the Governor has emerged as one of the key issues in Union State relations. The Indian political scene was dominated by a
single party for a number of years after Independence. Problems which arose in the working of Union-State
relations were mostly matters for adjustment in the intra-party forum and the
Governor had very little occasion for using his discretionary powers. The
institution of Governor remained largely latent. Events in Kerala in 1959 when
President's rule was imposed, brought into some prominence the role of the
Governor, but thereafter it did not attract much attention for some years. A
major change occurred after the Fourth General Elections in 1967. In a number
of States, the party in power was different from that in the Union. The subsequent decades saw the fragmentation of
political parties and emergence of new regional parties frequent, sometimes
unpredictable realignments of political parties and groups took place for the
purpose of forming governments. These developments gave rise to chronic
instability in several State Governments. As a consequence, the Governors were
called upon to exercise their discretionary powers more frequently. The manner
in which they exercised these functions has had a direct impact on Union- State relations. Points of friction between the Union and the States began to multiply.
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.
been alleged that the Governors have not acted with necessary objectivity
either in the manner of exercise of their discretion or in their role as a
vital link between the Union and the States. Many have traced
this mainly to the fact that the Governor is appointed by, and holds office
during the pleasure of, the President, (in effect, the Union Council of
Ministers). The part played by some Governors, particularly in recommending
President's rule and in reserving States Bills for the consideration of the
President, has evoked strong resentment. Frequent removals and transfers of
Governors before the end of their tenure has lowered the prestige of this
has also been levelled that the Union Government utilizes the Governor's for
its own political ends. Many Governors, looking forward to further office under
the Union or active role in politics after
their tenure, came to regard themselves as agents of the Union. (Underlined for emphasis)
The Government of India Act, 1858 transferred the responsibility for
administration of India from the East India Company to the
British Crown. The Governor then became an agent of the Crown, functioning
under the general supervision of the Governor-General. The Montagu- Chelmsford
Reforms (1919) ushered in responsible Government, albeit in a rudimentary form.
However, the Governor continued to be the pivot of the Provincial
The Government of India Act, 1935 introduced provincial autonomy. The Governor
was now required to act on the advice of Ministers responsible to the
Legislature. Even so, it placed certain special responsibilities on the
Governor, such as prevention of grave menace to the peace or tranquility of the
Province, safeguarding the legitimate interests of minorities and so on. The
Governor could also act in his discretion in specified matters.
functioned under the general superintendence and control of the Governor
General, whenever he acted in his individual judgment or discretion.
In 1937 when the Government of India Act,
1935 came into force, the Congress party commanded a majority in six provincial
legislatures. They foresaw certain difficulties in functioning under the new
system which expected Ministers to accept, without demur, the censure implied,
if the Governor exercised his individual judgment for the discharge of his
special responsibilities. The Congress Party agreed to assume office in these
Provinces only after it received an assurance from the Viceroy that the
Governors would not provoke a conflict with the elected Government.
Independence inevitably brought about a change
in the role of the Governor.
the Constitution came into force, the provisions of the Government of India
Act, 1935 as adapted by the India
(Provisional Constitution) Order, 1947 were applicable.
Order omitted the expressions 'in his discretion', 'acting in his discretion'
and 'exercising his individual judgment', wherever they occurred in the Act.
Whereas, earlier, certain functions were to be exercised by the Governor either
in his discretion or in his individual judgment, the Adaptation Order made it
incumbent on the Governor to exercise these as well as all other functions only
on the advice of his Council of Ministers.
The framers of the Constitution accepted, in principle, the Parliamentary or
Cabinet system of Government of the British model both for the Union and the States. While the pattern of the two levels
of government with demarcated powers remained broadly similar to the
pre-independence arrangements, their roles and inter-relationships were given a
The Constituent Assembly discussed at length the various provisions relating to
the Governor. Two important issues were considered. The first issue was whether
there should be an elected Governor. It was recognized that the co-existence of
an elected Governor and a Chief Minister responsible to the Legislature might
lead to friction and consequent weakness in administration. The concept of an
elected Governor was therefore given up in favour of a nominated Governor.
in the Constituent Assembly why a Governor should be nominated by the President
and not elected Jawaharlal Nehru observed that "an elected Governor would
to some extent encourage that separatist provincial tendency more than
will be far fewer common links with the Centre." 4.2.07 The second issue
related to the extent of discretionary powers to be allowed to the Governor.
Following the decision to have a nominated Governor, references in the various
Articles of the Draft Constitution relating to the exercise of specified
functioned by the Governor 'in his discretion' were deleted. The only explicit
provisions retained were those relating to Tribal Areas in Assam where the administration was made a
Central responsibility. The Governor as agent of the Central Government during
the transitional period could act independently of his Council of Ministers.
Nonetheless, no change was made in Draft Article 143, which referred to the
discretionary powers of the Governor. This provision in Draft Article 143 (now
Article 163) generated considerable discussion. Replying to it, Dr. Ambedkar
maintained that vesting the Governor with certain discretionary powers was not
contrary to responsible Government.
Xx xx xx
xx 4.3.09 The Constitution contains certain provisions expressly providing for
the Governor to Act:-
individual judgment; or
the State Council of Ministers; vis.
Governors of all the
States-Reservation for the consideration of the President of any Bill which, in
the opinion of the Governor would, if it became law, so derogate from the powers
of the High Court as to endanger the position which that Court is by the
Constitution designed to fill (Second Proviso to Article 200).
The Governors of Arunachal Pradesh, Assam, Meghalaya, Mizoram, Nagaland, Sikkim
and Tripura have been entrusted with some specific functions to be exercised by
them in their discretion (vide Articles 371A, 371F and 371H and paragraph 9 of
the Sixth Schedule). These have been dealt with in detail in Section 14 of this
The Governors of Arunachal Pradesh
and Nagaland have been entrusted with a special responsibility with respect to
law and order in their respective States. In the discharge of this
responsibility, they are required to exercise their "individual
judgment" after consulting their Council of Ministers. This aspect also
has been discussed in Section 14 of this Chapter.
Governors as Administrator of Union
TerritoryAny Governor, on being appointed by the President as the administrator
of an adjoining Union Territory, has to exercise his functions as administrator,
independently of the State Council of Ministers ( Article 239(2). In fact, as
administrator of the Union Territory, the Governor is in the position of an agent of the
Xx xx xx
4.4.01 The three important facets of the Governor's role arising out of the
Constitutional provisions, are:-
as the constitutional head of the
State operating normally under a system of Parliamentary democracy;
as a vital link between the Union
Government and the State Government; and
As an agent of the Union Government
in a few specific areas during normal times (e.g. Article 239(2) and in a
number of areas during abnormal situations (e.g. article 356(1)) 4.4.02 There
is little controversy about ) above. But the manner in which he has performed
the dull role, as envisaged in (a) and (b) above, has attracted much criticism.
The burden of the complaints against the behaviour of Governors, in general, is
that they are unable to shed their political inclinations, predilections and
prejudices while dealing with different political parties within the State. As
a result, sometimes the decisions they take in their discretion appear as partisan
and intended to promote the interests of the ruling party in the Union
Government, particularly if the Governor was earlier in active politics or
intends to enter politics at the end of his term.
behaviour, it is said, tends to impair the system of Parliamentary democracy,
detracts from the autonomy of the States, and generates strain in Union State relations.
Report of the "National Commission To Review The Working Of The
Constitution" the role of the Governor has been dealt with in the
powers of the President in the matter of selection and appointment of Governors
should not be diluted. However, the Governor of a State should be appointed by
the President only after consultation with the Chief Minister of that State.
the five year term should be adhered to and removal or transfer should be by
following a similar procedure as for appointment i.e. after consultation with
the Chief Minister of the concerned State.
(Para 8.14.2) In the matter of selection of a Governor,
the following matters mentioned in para 4.16.01 of Volume I of the Sarkaria
Commission Report should be kept in mind:-
He should be
eminent in some walk of life.
He should be a
person outside the State.
He should be a
detached figure and not too intimately connected with the local politics of the
He should be a
person who has not taken too great a part in politics generally, and
particularly in the recent past.
selecting a Governor in accordance with the above criteria, persons, belonging
to the minority groups continue to be given a chance as hitherto.
8.14.3) 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 decision whether to accord his
assent or to direct the Governor to return it to the State Legislature or to
seek the opinion of the Supreme Court regarding the constitutionality of the
Act under Article 143.
(Para 8.14.4.) 8.14.6 Suitable amendment should be made in
the Constitution so that the assent given by the President should avail for all
purposes of relevant articles of the Constitution. However, it is desirable
that when a Bill is sent for the President's assent, it would be appropriate to
draw the attention of the President to all the articles of the Constitution,
which refer to the need for the assent of the President to avoid any doubts in
A suitable article should be inserted in the Constitution to the effect that an
assent given by the President to an Act shall not be permitted to be argued as
to whether it was given for one purpose or another. When the President gives
his assent to the Bill, it shall be deemed to have been given for all purposes
of the Constitution.
The following proviso may be added to Article 111 of the Constitution:
that when the President declares that he assents to the Bill, the assent shall
be deemed to be a general assent for all purposes of the Constitution."
Suitable amendment may also be made in Article 200.
356 should not be deleted. But it must be used sparingly and only as a remedy
of the last resort and after exhausting action under other articles like 256,
257 and 355.
8.18 and 8.19.2) 8.16-Use-Misuse of Article 356 "Since the coming into
force of the Constitution on 26th January, 1950, Article 356 and analogous
provisions have been invoked 111 times. According to a Lok Sabha Secretariat
study, on 13 occasions the analogous provision namely Section 51 of the Government
of Union Territories Act, 1963 was applied to Union Territories of which only Pondicherry had a legislative assembly until
the occasion when it was last applied. In the remaining 98 instances the
Article was applied 10 times technically due to the mechanics of the
Constitution in circumstances like re-organisation of the States, delay in
completion of the process of elections, for revision of proclamation and there
being no party with clear majority at the end of an election. In the remaining
88 instances a close scrutiny of records would show that in as many as 54 cases
there were apparent circumstances to warrant invocation of Article 356. These
were instances of large scale defections leading to reduction of the ruling
party into minority, withdrawal of support of coalition partners, voluntary
resignation by the government in view of widespread agitations, large scale
militancy, judicial disqualification of some members of the ruling party
causing loss of majority in the House and there being no alternate party
capable of forming a Government. About 13 cases of possible misuse are such in
which defections and dissensions could have been alleged to be result of
political manoeuvre or cases in which floor tests could have finally proved
loss of support but were not resorted to. In 18 cases common perception is that
of clear misuse. These involved the dismissal of 9 State Governments in April 1977
and an equal number in February 1980. This analysis shows that number of cases
of imposition of President's Rule out of 111, which could be considered as a mis-use
for dealing with political problems or considerations irrelevant for the
purposes in that Article such as mal-administration in the State are a little
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
Commission- Chapter 6 of the Sarkaria Commission Report deals with emergency
provisions, namely, Articles 352 to 360. The Sarkaria Commission has made 12
recommendations; 11 of which are related to Article 356 while 1 is related to
Article 355 of the Constitution. Sarkaria Commission also made specific
recommendations for amendment of the Constitution with a view to protecting the
States from what could be perceived as a politically driven interference in
self-governance of States. The underlined theme of the recommendations is to
promote a constitutional structure and culture that promotes co-operative and
sustained growth of federal institutions set down by the Constitution.
Need for conventions- Xx xx xx xx 8.19.5- In case of political breakdown, the
Commission recommends that before issuing a proclamation under Article 356 the
concerned State should be given an opportunity to explain its position and
redress the situation, unless the situation is such, that following the above
course would not be in the interest of security of State, or defence of the
country, or for other reasons necessitating urgent action.
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 or not, should be decided only on the floor of the
Assembly and nowhere else. If necessary, the Union Government should take the
required steps, to enable the Legislative Assembly to meet and freely transact
its business. The Governor should not be allowed to dismiss the Ministry, so
long as it enjoys the confidence of the House. It is only where a Chief
Minister refuses to resign, after his Ministry is defeated on a motion of
no-confidence, that the Governor can dismiss the State Government. In a
situation of political breakdown, the Governor should explore all possibilities
of having a Government enjoying majority support in the Assembly. If it is not
possible for such a Government to be installed and if fresh elections can be
held without avoidable delay, he should ask the outgoing Ministry, (if there is
one), to continue as a caretaker government, provided the Ministry was defeated
solely on a issue, unconnected with any allegations of maladministration or
corruption and is agreeable to continue. The Governor should then dissolve the
Legislative Assembly, leaving the resolution of the constitutional crisis to
The problem of political breakdown would stand largely resolved if the
recommendations made in para 4.20.7 in Chapter 4 in regard to the election of
the leader of the House (Chief Minister) and the removal of the Government only
by a constructive vote of no-confidence are accepted and implemented.
Normally President's Rule in a State should be proclaimed on the basis of
Governor's Report under article 356(1). The Governor's report should be a
"speaking document", containing a precise and clear statement of all
material facts and grounds, on the basis of which the President may satisfy
himself, as to the existence or otherwise of the situation contemplated in
Constitutional Amendments 8.21.1- Article 356 has been amended 10 times
principally by way of amendment of clause 356(4) and by substitution/omission
of proviso to Article 356(5). These were basically procedural changes.
356, as amended by Constitution (44th Amendment) provides that a resolution
with respect to the continuance in force of a proclamation for any period
beyond one year from the date of issue of such proclamation shall not be passed
by either House of Parliament unless two conditions are satisfied, viz:-
proclamation of Emergency is in operation in the whole of India or as the case may be, in the whole
or any part of the State; and
Election Commission certifies that the continuance in force of the proclamation
during the extended period is necessary on account of difficulties in holding
general elections to the Legislative Assembly of the State concerned.
The fulfillment of these two conditions together are a requirement precedent to
the continuation of the proclamation. It could give rise to occasions for
amendment of the Constitution from time to time merely for the purpose of this
clause as happened in case of Punjab.
may arise where even without the proclamation of Emergency under Article 352,
it may be difficult to hold general elections to the State Assembly. In such a
situation continuation of President's Rule may become necessary. It may,
therefore, be more practicable to delink the two conditions allowing for
operation of each condition in its own specific circumstances for continuation
of the President's Rule. This would allow for flexibility and save the
Constitution from the need to amend it from time to time.
The Commission recommends that in clause (5) of Article 356 of the
Constitution, in sub- clause (a) the word "and" occurring at the end
should be substituted by "or" so that even without the State being
under a proclamation of Emergency, President's rule may be continued if
elections cannot be held.
Whenever a proclamation under Article 356 has been issued and approved by the
Parliament it may become necessary to review the continuance in force of the
proclamation and to restore the democratic processes earlier than the expiry of
the stipulated period. The Commission are of the view that this could be
secured by incorporating safeguards corresponding, in principal, to clauses (7)
and (8) of Article 352. The Commission, therefore, recommends that clauses (6)
and (7) under Article 356 may be added on the following lines: "(6)
Notwithstanding anything contained in the foregoing clauses, the President
shall revoke a proclamation issued under clause (1) or a proclamation varying
such proclamation if the House of the People passes a resolution disapproving,
or, as the case may be, disapproving the continuance in force of, such
proclamation. (7) Where a notice in writing signed by not less than one-tenth
of the total number of members of the House of the People has been given, of
their intention to move a resolution for disapproving, or, as the case may be,
for disapproving the continuance in force of, a proclamation issued under
clause (1) or a proclamation varying such proclamation:
to the Speaker,
if the House is in session; or
President, if the House is not in session, a special sitting of the House shall
be held within fourteen days from the date on which such notice is received by
the Speaker, or, as the case may be, by the President, for the purpose of
considering such resolution." 8.22- Dissolution of Assembly 8.22.1- When
it is decided to issue a proclamation under Article 356(1), a matter for
consideration that arises is whether the Legislative Assembly should also be
dissolved or not. Article 356 does not explicitly provide for dissolution of
the Assembly. One opinion is that if till expiry of two months from the
Presidential Proclamation and on the approval received from both Houses of
Parliament the Legislative Assembly is not dissolved, it would give rise to
operational disharmony. Since the executive power of the Union or State is co-extensive with their legislative
powers respectively, bicameral operations of the legislative and executive
powers, both of the State Legislature and Parliament in List II of VII
Schedule, is an anathema to the democratic principle and the constitutional
scheme. However, the majority opinion in the Bommai judgment holds that the
rationale of clause (3) that every proclamation issued under Article 356 shall
be laid before both Houses of Parliament and shall cease to operate at the
expiry of two months unless before the expiration of that period it has been
approved by resolutions passed by both Houses of Parliament, is to provide a
salutary check on the executive power entrenching parliamentary supremacy over
The Commission having considered these two opinions in the background of
repeated criticism of arbitrary use of Article 356 by the executive, is of the
view that the check provided under clause 3 of Article 356 would be ineffective
by an irreversible decision before Parliament has had an opportunity to
consider it. The power of dissolution has been inferred by reading sub-clause
(a) of clause I of Article 356 along with Article 174 which empowers the
Governor to dissolve Legislative Assembly. Having regard to the overall
constitutional scheme it would be necessary to secure the exercise of
consideration of the proclamation by the Parliament before the Assembly is
The Commission, therefore, recommends that Article 356 should be amended to
ensure that the State Legislative Assembly should not be dissolved either by
the Governor or the President before the Proclamation issued under Article
356(1) has been laid before Parliament and it as had an opportunity to consider
would also be appropriate to take note of very enlightening discussions in the
Constituent Assembly which throw beacon light on the role of Governors,
parameters of powers exercisable under Articles 174 and 356 of the
Assembly met on Ist June, 1949 Article 143 (Amendment Nos. 2155 and 2156 were
not moved) H. V. Kamath (C.P. & Berar: General): Mr. President, Sir, I
in clause (1) of Article 143, the words 'except in so far as he is by or under
this Constitution required to exercise his functions or any of them in his
discretion' be deleted." If this amendment were accepted by the House,
this clause of Article 143 would read thus :- "There shall be a Council of
Ministers with the Chief Minister at the head to aid and advise the President
in the exercise of his functions." Sir, it appears from a reading of this
clause that the Government of India Act of 1935 has been copied more or less
blindly without mature consideration. There is no strong or valid reason for
giving the Governor more authority either in his discretion or otherwise vis-a-vis
his ministers, than has been given to the President in relation to his
ministers. If we turn to Article 61 (1), we find it reads as follows :-
"There shall be a Council of Ministers with the Chief Minister at the head
to aid and advise the Governor in the exercise of his functions." When
you, Sir, raised a very important issue, the other day, Dr. Ambedkar clarified
this clause by saying that the President is bound to accept the advice of his ministers
in the exercise of all of his functions. But here Article 143 vests certain
discretionary powers in the Governor, and to me it seems that even as it was,
it was bad enough, but now after having amended Article 131 regarding election
of the Governor and accepted nominated Governors, it would be wrong in
principle and contrary to the tenets and principles of constitutional
Government, which you are going to build up in this country. It would be wrong
I say, to invest a Governor with these additional powers, namely, discretionary
powers. I feel that no departure from the principles of constitutional
Government should be favoured except for reasons of emergency and these
discretionary powers must be done away with. I hope this amendment of mine will
commend itself to the House. I move, Sir. Prof. K. T. Shah (Bihar: General) : Mr. President, I beg to move:
in clause (1) of Article 143, after the word 'head a comma be placed and the
words 'who shall be responsible to the Governor and shall' be inserted and the
word to' be deleted." So, that the amended Article would read.
There shall be a Council of Ministers with the Chief Minister at the head who
shall be responsible to the Governor and shall aid and advise the Governor in
the exercise of his functions ......etc." Sir, this is a logical
consequence of the general principle of this Draft Constitution, namely, that
the Government is to be upon the collective responsibility of the entire
Cabinet to the legislature. At the same time, in the Cabinet the Prime Minister
or the Chief Minister or by whatever title he is described would be the
Principal Adviser and I would like to fix the responsibility definitely by the
Constitution on the Chief Minister, the individual Ministers not being in the
same position. Whatever may be the procedure or convention within the Cabinet
itself, however the decisions of the Cabinet may be taken, so far as the
Governor is concerned, I take it that the responsibility would be of the Chief
Minister who will advise also about the appointment of his colleagues or their
removal if it should be necessary. It is but in the fitness of things that he
should be made directly responsible for any advice tendered to the
Constitutional head of the State, namely, the Governor. As it is, in my
opinion, a clear corollary from the principles we have so far accepted, I hope
there would be no objection to this amendment.
Nos. 2159 to 2163 were not moved.) Mr. President: There is no other amendment.
The Article and the amendments are open to discussion.
T. T. Krishnamachari : Mr. President, I am afraid I will have to oppose the
amendment moved by my honourable Friend Mr. Kamath, only for the reason that he
has not understood the scope of the clearly and his amendment arises out of a
it is no doubt true, that certain words from this Article may be removed,
namely, those which refer to the exercise by the Governor of his functions
where he has to use his discretion irrespective of the advice tendered by his
Ministers. Actually, I think this is more by way of a safeguard, because there
are specific provisions in this Draft Constitution which occur subsequently
where the Governor is empowered to act in his discretion irrespective of the
advice tendered by his Council of Ministers. There are two ways of formulating
the idea underlying it. One is to make a mention of this exception in this
Article 143 and enumerating the specific power of the Governor where he can
exercise his discretion in the s that occur subsequently, or to leave out any
mention of this power here and only state is in the appropriate . The former
method has been followed. Here the general proposition is stated that the
Governor has normally to act on the advice of his Ministers except in so far as
the exercise of his discretions covered by those in the Constitution in which
he is specifically empowered to act in his discretion. So long as there are
Articles occurring subsequently in the Constitution where he is asked to act in
his discretion, which completely cover all cases of departure from the normal
practice to which I see my honourable Friend Mr. Kamath has no objection, I may
refer to Article 188, I see no harm in the provision in this Article being as
it is. It happens that this House decides that in all the subsequent Articles,
the discretionary power should not be there, as it may conceivably do, this
particular provision will be of no use and will fall into desuetude. The point
that my honourable Friend is trying to make, while he concedes that the
discretionary power of the Governor can be given under Article 188, seems to be
pointless. If it is to be given in Article 188, there is no harm in the mention
of it remaining here. No harm can arise by specific mention of this exception
of Article 143.
the serious objection that Mr. Kamath finds for mention of this exception is
pointless. I therefore think that the Article had better be passed without any
amendment. If it is necessary for the House either to limit the discretionary
power of the Governor or completely do away with it, it could be done in the
Articles that occur subsequently where specific mention is made without which
this power that is mentioned here cannot at all be exercised. That is the point
I would like to draw the attention of the House to and I think the Article had
better be passed as it is.
S. Deshmukh (C. P. & Berar: General): Mr. President, Mr. T. T. Krishnamachari
has clarified the position with regard to this exception which has been added
to clause (1) of Article 143. If the Governor is, in fact, going to have a
discretionary power, then it is necessary that this clause which Mr. Kamath
seeks to omit must remain.
this, I do not know if the Drafting Committee has deliberately omitted or they
are going to provide it at a later stage, and I would like to ask Dr. Ambedkar
whether it is not necessary to provide for the Governor to preside at the
meetings of the Council of Ministers. I do not find any provision here to this
effect. Since this Article 143 is a mere reproduction of section 50 of the
Government of India Act, 1935, where this provision does exist that the
Governor in his discretion may preside at the meetings of the Council of
Minister, I think this power is very necessary. Otherwise, the Ministers may
exclude the Governor from any meetings whatever and this power unless
specifically provided for, would not be available to the Governor. I would like
to draw the attention of the members of the Drafting Committee to this and to see
if it is possible either to accept an amendment to Article 143 by leaving it
over or by making this provision in some other part. I think this power of the
Governor to preside over the meetings of the Cabinet is an essential one and
ought to be provided for.
Prasad: Mr. President, Sir, the Article provides-- "That there shall be a
Council of Minister with the Chief Minister at the head to aid and advise the
Governor in the exercise of his functions".
am not a constitutional lawyer but I feel that by the Provisions of this
Article the Governor is not bound to act according to the advice tendered to
him by his Council of Ministers. It only means that the Ministers have the
right to tender advice to Governor. The Governor is quite free to accept or to
reject the advice so tendered. In another sphere of administration the Governor
can act in the exercise of his functions in his discretion. In this sphere the
Ministry has not got the power to tender any advice.
course it is left open to the Governor to seed the advice of the Ministers even
in this sphere.
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
necessity of the hour requires that the Governor should be vested not only with
the power to act in his discretion but also with the power to act in his
individual judgment. I feel that the Governor should be vested with the power
of special responsibilities which the Governor under the British regime were
vested in this country. I feel that there is a dearth of leadership in the
men are not available and there are all kinds of things going on in the various
provinces. Unless the Governor is vested with large powers it will be difficult
to effect any improvement in the Provincial administration.
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 class intelligentsia of this country. They seem to have become bereft of
initiative and enterprise. The masses who ought to be the rulers of this land
are down- trodden and exploited in all ways. Under these circumstances there is
no way left open but for the Government of India to take the Provincial
administrations in its own hands. I feel that we are on the threshold of a
revolution in this country. There will be revolution, bloodshed and anarchy in
this country. I feel that at this juncture it is necessary that all powers
should remain centralised in the hands of the Government of India. In certain
provinces the machinery of law and order seems to have completely broken down.
arson, loot, murder and inflationary conditions are rampant. I am opposed to
this Article, because I am convinced that federalism cannot succeed in a
country which is passing through a transitory period. The national economy of America is fully developed. It can afford
to have a federal form of Government. In a country where there is no room for
expansion and for economic development, there is no necessity for a centralised
economy. In India when our agriculture, industry,
minerals etc. are in an incipient stage of development, it is necessary that power
must be vested in the hands of the Government of India. Federalism was in vogue
in the 19th century when the means of communications were undeveloped. The
technical knowledge and resources at the disposal of Governments in ancient
times were of a very meager character. Today the situation has completely
changed. Means of communications have developed rapidly. Technical knowledge
and the necessary personnel at the disposal of the Government of India are of
such a wide character that it can undertake to perform all the functions which
a modern Government is expected to perform. There is another reason why I am
opposed to this Article. In this country there is no scope for federalism. All
governments have become more or less unitary in character. If we are to escape
political debacles, economic strangulation and military defeats on all fronts,
then our leaders and statesmen must learn to think in unorthodox terms:
otherwise there is no future for this country.
Hirday Kunzru: (United Provinces: General): Mr. President, I should like to ask
Dr. Ambedkar whether it is necessary to retain after the words "that the
Governor will be aided and advised by his Ministers", the words
"except in regard to certain matter in respect of which he is to exercise
his discretion". Supposing these words, which are reminiscent of the old
Government of India Act and the old order, are omitted, what harm will be done?
The functions of the Ministers legally will be only to aid and advice the
Governor. The Article in which these words occur does not lay down that the
Governor shall be guided by the advice of his Ministers but it is expected that
in accordance with the Constitutional practice prevailing in all countries
where responsible Government exists the Governor will in all matters accept the
advice of his Ministers. This does not however mean that where the Statute
clearly lays down that action in regard to specified matters may be taken by
him on his own authority this Article 143 will stand in his way.
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, he assured us, Article 188 was deleted later, the
wording of Article 143 could be reconsidered. I fully understand this position
and appreciate it, but I should like the words that have been objected to by my
Friend Mr. Kamath to be deleted. I do not personally think that any harm will
be done if they are not retained and we can then consider not merely Article
188 but also Article 175 on their merits; but in spite of the assurance of Mr. Krishnamachari
the retention of the words objected to does psychologically create the
impression that the House is being asked by the Drafting Committee to commit
itself in a way to a principle that it might be found undesirable to accept
later on. I shall say nothing with regard to the merits of Article 188. I have
already briefly expressed my own views regarding it and shall have an
opportunity of discussing it fully later when that Article is considered by the
House. But why should we, to being with, use a phraseology that it an
unpleasant reminder of the old order and that makes us feel that though it may
be possible later to reverse any decision that the House may come to now, it
may for all practical purposes be regarded as an accomplished fact? I think
Sir, for these reasons that it will be better to accept the amendment of my honourable
Friend Mr. Kamath, and then to discuss Articles 157 and 188 on their merits.
should like to say one word more before I close. If Article 143 is passed in
its present form, it may give rise to misapprehensions of the kind that my honourable
Friend Dr, Deshmukh seemed to be labouring under when he asked that a provision
should be inserted entitling the Governor to preside over the meetings of the
Council of Ministers. The Draft Constitution does not provide for this and I
think wisely does not provide for this. It would be contrary to the traditions
of responsible government as they have been established in Great British and
the British Dominions, that the Governor or the Governor-General should, as a
matter of right, preside over the meetings of his cabinet. All that the Draft
Constitution does is to lay on the Chief Ministers the duty of informing the
Governor of the decisions come to by the Council of Ministers in regard to
administrative matter and the legislative programme of the government.
spite of this, we see that the Article 143, as it is worded, has created a
misunderstanding in the mind of a member like Dr. Deshmukh who takes pains to
follow every of the Constitution with care. This is an additional reason why
the discretionary power of the Governor should not be referred to in Article
143. The speech of my friend Mr. Krishnamachari does not hold out the hope that
the suggestion that I have made has any chance of being accepted. Nevertheless,
I feel it my duty to say that the course proposed by Mr. Kamath is better than
what the Drafting Sub-Committee seem to approve.
Lal Saksena (United Provinces: General):
President, Sir, I heard very carefully the speech of my honourable Friend, Mr. krishnamachari,
and his arguments for the retention of the words which Mr. Kamath wants to
omit. If the Governor were an elected Governor, I could have understood that he
should have these discretionary powers. But now we are having nominated
Governors who will function during the pleasure of the President, and I do not
think such persons should be given powers which are contemplated in Article
if Article 188 is yet to be discussed--and it may well be rejected--then it is
not proper to give these powers in this Article beforehand. If Article 188 is
passed, then we may reconsider this Article and add this clause if it is
necessary. We must not anticipate that we shall pass Article 188, after all that
has been said in the House about the powers of the Governor.
words are a reminder of the humiliating past. I am afraid that if these words
are retained, some Governor may try to imitate the Governors of the past and
quote them as precedents, that this is how the Governor on such an occasion
acted in his discretion. I think in our Constitution as we are now framing it,
these powers of the Governors are out of place; and no less a person than the honourable
Pandit Govind Ballabh Pant had given notice of the amendment which Mr. Kamath
has moved. I think the wisdom of Pandit Pant should be sufficient, guarantee
that this amendment be accepted. It is just possible that Article 188 may not
be passed by this House. If there is an emergency, the Premier of the province
himself will come forward to request the Governor that an emergency should be
declared, and the aid of the Centre should be obtained to meet the emergency.
Why should the Governor declare an emergency over the head of the Premier of
the Province? We should see that the Premier and the Governor of a Province are
not at logger heads on such an occasion. A situation should not be allowed to
arise when the Premier says that he must carry on the Government, and yet the
Governor declares an emergency over his head and in spite of his protestations.
This will make the Premier absolutely impotent. I think a mischievous Governor
may even try to create such a situation if he so decides, or if the President
wants him to do so in a province when a party opposite to that in power at the
Centre is in power.
think Article 188, even if it is to be retained should be so modified that the
emergency should be declared by the Governor on the advice of the Premier of
the province. I suggest to Dr. Ambedkar that these words should not find a
place in this Article, and as a consequential amendment, sub-section (ii) of
this Article should also be deleted.
Tyagi (United Provinces: General): Sir, I beg to differ from my honourable
radical Friends Mr. Kamath and Prof. Shibban Lal Saksena, and I think the more
powers are given to the provinces, the stiffer must be the guardianship and
control of the Centre in the exercise of those powers. That is my view. We have
now given up the Centre, and we are going to have nominated Governors.
Governors are not to be there for nothing. After all, we have to see that the
policy of the Centre is carried out.
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.
whole body politic of a country is affected and influenced by the policy of the
Centre. Take for instance subjects like Defence involving questions of peace or
war, of relationship with foreign countries; of our commercial relations,
exports and imports. All these are subjects which affect the whole body
politic, and the provinces cannot remain unaffected, they cannot be left free
of the policy of the Centre. The policy which is evoked in the Centre should be
followed by all the States, and if the Governors were to be in the hands of the
provincial Ministers then there will be various policies in various provinces
and the policy of each province shall be as unstable as the ministry. For there
would be ministers of various types having different party labels and different
programmes to follow. Their policies must differ from one another; it will
therefore be all the more necessary that there must be coordination of programmes
and policies between the States and the Central Government. The Governor being
the agency of the Centre is the only guarantee to integrate the various
Provinces or States.
Central Government also expresses itself through the provincial States; along
with their own administration, they have also to function on behalf of the
Central Government. A Governor shall act as the agency of the Centre and will
see that the Central policy is sincerely carried out. Therefore the Governor's
discretionary powers should not be interfered with. Democratic trends are like
a wild beast. Say what you will, democracy goes by the whims and fancies of
parties and the masses.
must be some such machinery which will keep this wild beast under control. I do
not deprecate 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.
may change after months or years; with them will change their policies. The
Governors may change too, but the policy and instructions given by the Centre
to the Governors will remain practically unchanged. The more the powers given
to the States the more vigilant must be the control. The Governor must remain
as the guardian of the Central policy on the one side, and the Constitution on
the other. His powers therefore should not be interfered with.
B. M. Gupta (Bombay: General): Sir, I think the
explanation given by my honourable Friend Mr. T. T. Krishnamachari Should be
accepted by the House and the words concerning discretion of the Governor
should be allowed to stand till we dispose of Article 175 and Article 188.
regard to the suggestion made by the honourable Dr. Deshmukh about the power being
given to the Governor to preside over the meetings of the cabinet I have to
oppose it. He enquired whether the Drafting Committee intended to make that
provision later on. I do not know the intentions of the Drafting Committee for
the future but as far as the Draft before us is concerned I think the Drafting
Committee has definitely rejected it.
would invite the attention of the honourable House to Article 147 under which
the Governor shall be entitled only to information. If we allow him to preside over
the meetings of the Cabinet we would be departing from the position we want to
give him, namely that of a constitutional head. If he presides over the meeting
of the Cabinet be shall have an effective voice in shaping the decisions of the
Cabinet in the entire field of administration, even in fields which are not
reserved for his discretionary power. If certain powers have to be given to
him, our endeavour should be to restrict them as far as possible, so that the
Governor's position as a constitutional head may be maintained. Therefore, Sir,
I oppose the proposal of Dr. Deshmukh. Shri Alladi Krishnaswami Ayyar (Madras: General): Sir, there is really no
difference between those who oppose and those who approve the amendment. In the
first place, the general principle is laid down in Article 143 namely, the
principle of ministerial responsibility, that the Governor in the various
spheres of executive activity should act on the advice of his ministers. Then
the Article goes on to provide "except in so far as he is by or under this
Constitution required to exercise his functions or any of them in his
discretion." So long as there are Articles in the Constitution which
enable the Governor to act in his discretion and in certain circumstances, it
may be, to over-ride the cabinet or to refer to the President, this Article as
it is framed is perfectly in order. If later on the House comes to the
conclusion that those Articles which enable the Governor to act in his
discretion in specific cases should be deleted, it will be open to revise this
Article. But so long as there are later Articles which permit the Governor to
act in his discretion and not on ministerial responsibility, the Article as
drafted is perfectly in order.
only other question is whether first to make a provision in Article 143 that
the Governor shall act on ministerial responsibility and then to go on
providing "Notwithstanding anything contained in Article 143........he can
do this" or "Notwithstanding anything contained in Article 143 he can
act in his discretion." I should think it is a much better method of
drafting to provide in Article 143 itself that the Governor shall always act on
ministerial responsibility excepting in particular or specific cases where he
is empowered to act in his discretion. If of course the House comes to the
conclusion that in no case shall the Governor act in his discretion, that he
shall in every case act only on ministerial responsibility, then there will be
a consequential change in this Article. That is, after those Articles are
considered and passed it will be quite open to the House to delete the latter
part of Article 143 as being consequential on the decision come to by the House
on the later Articles. But, as it is, this is perfectly, in order and I do not
think any change is warranted in the language of Article 143. It will be
cumbrous to say at the opening of each "Notwithstanding anything contained
in Article 143 the Governor can act on his own responsibility".
H. V. Kamath: Sir, on a point of clarification, Sir, I know why it is that
though emergency powers have been conferred on the President by the
Constitution no less than on Governors, perhaps more so, discretionary power as
such have not been vested in the President but only in Governors? Pandit Thakur
Das Bhargava (East
Punjab: General): Sir,
I beg to oppose the amendment of Mr. Kamath. Under Article 143 the Governor
shall be aided in the exercise of his functions by a Council of Ministers. It
is clear so far. I gave notice of an amendment which appears on the order paper
as Article 142-A which I have not moved. In the amendment I have suggested that
the Governor will be bound to accept the advice of his ministers on all matters
except those which are under this Constitution required to be exercised by him
in his discretion. My submission in that it is wrong to say that the Governor
shall be a dummy or an automaton. As a matter of fact according to me the
Governor shall exercise very wide powers and very significant powers too. If we
look at Article 144 it says:
Governor's ministers shall be appointed by him and shall hold office during his
pleasure." 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.
again, when the Governor calls upon the leader of a party for the choice of
ministers, after a previous ministry has been dissolved, in that case there
will be no ministry in existence; and who will be there to advise him?
Therefore he will be exercising his functions in his discretion. It is wrong to
assume that the Governor will not be charged with any functions which he will
exercise in his discretion. Articles 175 and 188 are the other Articles which
give him certain functions which he has to exercise in his discretion.
Article 144 (4) there is a mention of the Instrument of Instructions which is
given in the Fourth Schedule. The last paragraph of it runs thus:
Governor shall do all that in him lies to maintain standards of good
administration, to promote all measures making for moral, social and economic
welfare and tending to fit all classes of the population to take their due
share in the public life and government of the state, and to secure amongst all
classes and creeds co-operation, goodwill and mutual respect for religions
beliefs and sentiments." My submission is that according to me the
Governor shall be a guide, philosopher and friend of the Ministry as well as
the people in general, so that he will exercise certain functions some of which
will be in the nature of unwritten conventions and some will be such as will be
expressly conferred by this Constitutions. He will be a man above party and he
will look at the Minister and government from a detached standpoint. He will be
able to influence the ministers and members of the legislature in such a manner
that the administration will run smoothly. In fact to say that a person like
him is merely a dummy, an automaton or a dignitary without powers is perfectly
wrong. It is quite right that so far as our conception of a constitutional
governor goes he will have to accept the advice of his ministers in many
matters but there are many other matters in which the advice will neither be
available nor will he be bound to accept that advice. (underlined for emphasis)
Under Article 147 the Governor has power for calling for information and part
(c) says: This will be the duty of the Chief Minister.
the Governor so requires, to submit for the consideration of the Council of
Ministers any matter on which a decision has been taken by a Minister but which
has not been considered by the Council." This is specifically a matter
which is of great importance.
Governor is competent to ask the Chief Minister to place any matter before the
Council of Ministers which one minister might have decided. When he calls for
information he will be acting in the exercise of his discretion. He may call
for any kind of information. With this power he will be able to control and
restrain the ministry from doing irresponsible acts. In my opinion taking the
Governor as he is conceived to be under the Constitution he will exercise very
important functions and therefore it is very necessary to retain the words
relating to his discretion in Article 143.
H. V. Pataskar (Bombay: General): Sir, Article 143 is
perfectly clear. With regard to the amendment of my honourable Friend Mr. Kamath
various points were raised, whether the Governor is to be merely a figure-
head, whether he is to be a constitutional head only or whether he is to have
discretionary powers. To my mind the question should be looked at from and
entirely different point of view. Article 143 merely relates to the functions
of the ministers. It does not primarily relate to the power and functions of a
Governor. It only says:
shall be a Council of Ministers with the Chief Minister at the head to aid and advise
the Governor in the exercise of his functions." Granting that we stop
there, is it likely that any complications will arise or that it will interfere
with the discretionary powers which are proposed to be given to the Governor?
In my view Article 188 is probably necessary and I do not mean to suggest for a
moment that the Governor's powers to act in an emergency which powers are given
under Article 188, should not be there.
point is this, whether if this Provision, viz., "except in so far as he is
by or under this Constitution required to exercise his functions or any of them
in his discretion", is not there, is it going to affect the powers that
are going to be given to him to act in his discretion under Article 188? I have
carefully listened to my honourable Friend and respected constitutional lawyer.
Mr. Alladi Krishnaswami Ayyer, but I was not able to follow why a provision
like this is necessary. He said that instead later on, while considering
Article 188, we might have to say "Notwithstanding anything contained in
Article 143." In the first place to my mind it is not necessary. In the
next place, even granting that it becomes necessary at a later stage to make
provision on Article 188 by saying "notwithstanding anything contained in
Article 143", it looks so obnoxious to keep these words here and they are
likely to enable certain people to create a sort of unnecessary and unwarranted
prejudice against certain people. Article 143 primarily relates to the
functions of the ministers. Why is it necessary at this stage to remind the ministers
of the powers of the Governor and his functions, by telling them that they
shall not give any aid or advice in so far as he, the Governor is required to
act in his discretion? This is an Article which is intended to define the
powers and functions of the Chief Minister. At that point to suggest this,
looks like lacking in courtesy and politeness. Therefore I think the question
should be considered in that way. The question is not whether we are going to
give discretionary power to the Governors or not. The question is not whether
he is to be merely a figure-head or otherwise. These are question to be debated
at their proper time and place. When we are considering Article 143 which
defines the function of the Chief minister it looks so awkward and unnecessary
to say in the same "except in so far as he is by or under this
Constitution required to exercise his functions or any of them in his
discretion." Though I entirely agree that Article 188 is absolutely
necessary I suggest that in this Article 143 these words are entirely
unnecessary and should not be there. Looked at from a practical point of view
this provision is misplaced and it is not courteous, nor polite, nor justified
nor relevant. I therefore suggest that nothing would be lost by deleting these
words. I do not know whether my suggestion would be acceptable but I think it
is worth being considered from a higher point of view.
Krishna Chandra Sharma (United Provinces: General): Sir, the position is that
under Article 41 the executive powers of the Union are vested in the President
and these may be exercised by him in accordance with the Constitution and the
law. Now, the President of the Union is
responsible for the maintenance of law and order and for good Government. The
Cabinet of the State is responsible to the people through the majority in the
Legislature. Now, what is the link between the President and the State? The
link is the Governor. Therefore through the Governor alone the President can
discharge his functions for the good Government of the country. In abnormal
circumstances it is the Governor who can have recourse to the emergency powers
under Article 188.
the power to act in his discretion under Article 143 ipso facto follows and
Article 188 is necessary and cannot be done away with. Therefore certain
emergency powers such as under Article 188 are necessary for the Governor to
discharge his function of maintaining law and order and to carry on the orderly
government of the State.
to say word more with regard to Professor Shah's amendment that the Minister
shall be responsible to the Governor. The Minister has a majority in the
legislature and as such, through the majority, he is responsible to the people.
If he is responsible to the Governor, as distinguished from his responsibility
to the Legislature and through the legislature to the people of the State, then
he can be overthrown by the majority in the legislature and he cannot maintain
his position. He cannot hold the office. Therefore it is an impossible proposition
that a Minister could ever be responsible to the Governor as distinguished from
his responsibility to the people through the majority in the legislature. He
should therefore be responsible to the Legislature and the people and not to
the President. That is the only way in which under the scheme in the Draft
Constitution the government of the country can he carried on. (underlined for
emphasis) Shri Rohini Kumar Chaudhari: (Assam: General): I rise to speak more in quest of clarification and enlightenment
than out of any ambition to make a valuable contribution to this debate.
one point which largely influenced this House in accepting the Article which
provided for having nominated Governors was that the Honourable Dr. Ambedkar
was pleased to assure us that the Governor would be merely a symbol. I ask the honourable
Dr. Ambedkar now, whether any person who has the right to act in his discretion
can be said to be a mere symbol. I am told that this provision for nominated
governorship was made on the model of the British Constitution. I would like to
ask Dr. Ambedkar if His Majesty the king of English acts in his discretions in
any matter. I am told--I may perhaps be wrong--that His Majesty has no
discretion even in the matter of the selection of his bride.
is always done for him by the Prime Minister of England.
know to my cost and to the cost of my Province what 'acting by the Governor in
the exercise of his discretion' means. It was in the year 1942 that a Governor
acting in his discretion selected his Ministry from a minority party and that
minority was ultimately converted into a majority. I know also, and the House
will remember too, that the exercise of his discretion by the Governor of the Province of Sindh led to the dismissal of one of the popular Ministers-- Mr.
Allah Bux. Sir, if in spite of this experience of ours we are asked to clothe
the Governors with the powers to act in the exercise of their discretion, I am
afraid we are still living in the past which we all wanted to forget.
have always thought that it is better to be governed by the will of the people
than to be governed by the will of a single person who nominates the Governor
who could act in his discretion. If this Governor is given the power to act in
his discretion there is no power on earth to prevent him from doing so. He can
be a veritable king Stork. Furthermore, as the Article says, whenever the
Governor thinks that he is acting in his discretion nowhere can he be
questioned. There may be a dispute between the Ministers and the Governor about
the competence of the former to advise the Governor; the Governor's voice would
prevail and the voice of the Ministers would count for nothing. Should we in
this age countenance such a state of affairs? Should we take more then a minute
to dismiss the idea of having a Governor acting in the exercise of his
discretion? It may be said that this matter may be considered hereafter. But I
feel that when once we agree to this provision, it would not take long for us
to realise that we have made a mistake. Why should that be so? Is there any
room for doubt in this matter? Is there any room for thinking that anyone in
this country, not to speak of the members of the legislature, will ever
countenance the idea of giving the power to the Governor nominated by a single
person to act in the exercise of his discretion? I would submit, Sir, if my
premise is correct, we should not waste a single moment in discarding the
provisions which empower the Governor to act in his discretion.
for emphasis) I also find in the last clause of this Article that the question
as to what advice was given by a Minister should not be enquired into in any
court. I only want to make myself clear on this point. There are two functions
to be discharged by a Governor. In one case he has to act on the advice of the
Minister and in the other case he has to act in the exercise of his discretion.
Will the Ministry be competent to advise the Governor in matters where he can
exercise his discretion? If I remember a right, in 1937 when there was a
controversy over this matter whether Ministers would be competent to advise the
Governor in matters where the Governor could use his discretion, it was
understood that Ministers would be competent to advise the Governor in the
exercise of his discretion also and if the Governor did not accept their
advice, the Ministers were at liberty to say what advice they gave. I do not
know that is the intention at present.
may be cases where the Ministers are competent to give advice to the Governor
but the Governor does not accept their advice and does something which is
unpopular. A Governor who is nominated by the Centre can afford to be unpopular
in the province where he is acting as Governor. He may be nervous about public
opinion if he serves in his own province but he may not care about the public
opinion in a province where he is only acting. Suppose a Governor, instead of
acting on the advice of his Minister, acts in a different way. If the Minister
are criticised for anything the Governor does on his own, and the Ministers
want to prosecute a party for such criticism, would not the Ministers have the
right to say that they advised the Governor to act in a certain way but that
the Governor acted in a different way? Why should we not allow the Ministers
the liberty to prosecute a paper, a scurrilous paper, a misinformed paper,
which indulged in such criticism of the Ministers? Why should not the Ministers
be allowed to say before a court what advice they gave to the Governor? I would
say, Sir--and I may be excused for saying so-- that the best that can be said
in favour of this Article is that it is a close imitation of a similar
provision in the Government of India Act, 1935, which many Members of this
House said, when is was published, that they would not touch even with a pair
for emphasis) The Honourable Dr. B. R. Ambedkar : Mr. President, Sir, I did not
think that it would have been necessary for me to speak and take part in this
debate after what my Friend, Mr. T. T. Krishnamachari, had said on this
amendment of Mr. Kamath, but as my Friend, Pandit Kunzru, pointedly asked me
the question and demanded a reply, I thought that out of courtesy I should say
a few words. Sir, the main and the crucial question is, should the Governor
have discretionary powers? It is that question which is the main and the
we come to some decision on this question, the other question whether the words
used in the last part of clause (1) of Article 143 should be retained in that
Article or should be transferred somewhere else could be usefully considered.
The first thing, therefore, that I propose to do so is to devote myself of this
question which, as I said, is the crucial question. It has been said in the
course of the debate that the retention of discretionary power in the Governor
is contrary to responsible government in the provinces. It has also been said
that the retention of discretionary power in the Governor smells of the Government
of India Act, 1935, which in the main was undemocratic. Now, speaking for
myself, I have no doubt in my mind that the retention on the vesting the
Governor with certain discretionary powers is in no sense contrary to or in no sense
a negation of responsible government. I do not wish to rake up the point
because on this point I can very well satisfy the House by reference to the
provisions in the Constitution of Canada and the Constitution of Australia.
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
55.--Where a Bill passed by the House of Parliament is presented to the
Governor- General for the Queen's assent, he shall, according to his
discretion, and subject to the provisions of this Act, either assent thereto in
the Queen's name, or withhold the Queen's assent or reserve the Bill for the
signification of the Queen's pleasure." (underlined for emphasis) Pandit Hirday
Nath Kunzru: May I ask Dr. Ambedkar when the British North America Act was
passed? The Honourable Dr. B. R. Ambedkar : That does not matter at all. The
date of the Act does not matter. Shri H. V. Kamath: Nearly a century ago.
Dr. B.R. Ambedkar : This is my reply.
Canadians and the Australians have not found it necessary to delete this
provision even at this stage. They are quite satisfied that the retention of
this provision in section 55 of the Canadian Act is fully compatible with
responsible government. If they had left that this provision was not compatible
with responsible government, they have even today, as Dominions, the fullest
right to abrogate this provision. They have not done so. Therefore in reply to Pandit
Kunzru I can very well say that the Canadians and the Australians do not think
such a provision is an infringement of responsible government.
Misra (Orissa : General): On a point of order, Sir, are we going to have the
status of Canada or Australia? Or are, we going to have a Republic Constitution? The Honourable
Dr. B. R. Ambedkar : I could not follow what he said. If, as I hope, the House
is satisfied that the existence of a provision vesting a certain amount of
discretion in the Governor is not incompatible or inconsistent with responsible
government, there can be no dispute that the retention of this clause is
desirable and, in my judgment, necessary. The only question that arises is.... Pandit
Hirday Nath Kunzru : Well, Dr. Ambedkar has missed the point of the criticism
altogether. The criticism is not that in Article 175 some powers might not be
given to the Governor, the criticism is against vesting the Governor with
certain discretionary powers of a general nature in the Article under
Dr. B. R. Ambedkar: I think he has misread the Article. I am sorry I do not
have the Draft Constitution with me. "Except in so far as he is by or
under this Constitution," those are the words. If the words were
"except whenever he thinks that he should exercise this power of
discretion against the wishes or against the advice of the ministers",
then I think the criticism made by my honourable Friend Pandit Kunzru would
have been valid. The clause is a very limited clause; it says: "except in
so far as he is by or under this Constitution". Therefore, Article 143
will have to be read in conjunction with such other Articles which specifically
reserve the power to the Governor. It is not a general clause giving the
Governor power to disregard the advice of his ministers in any matter in which
he finds he ought to disregard. There, I think, lies the fallacy of the
argument of my honourable Friend, Pandit Kunzru.
as I said, having stated that there is nothing incompatible with the retention
of the discretionary power in the Governor in specified cases with the system
of responsible Government, the only question that arises is, how should we
provide for the mention of this discretionary power? It seems to me that there
are three ways by which this could be done. One way is to omit the words from
Article 143 as my honourable Friend, Pandit Kunzru, and others desire and to
add to such Articles as 175, or 188 or such other provisions which the House
may hereafter introduce, vesting the Governor with the discretionary power,
saying notwithstanding Article 143, the Governor shall have this or that power.
The other way would be to say in Article 143, "that except as provided in
Articles so and so specifically mentioned-Article 175, 188, 200 or whatever
they are". But the point I am trying to submit to the House is that the
House cannot escape from mentioning in some manner that the Governor shall have
the matter which seems to find some kind of favour with my honourable Friend, Pandit
Kunzru and those who have spoken in the same way is that the words should be
omitted from here and should be transferred somewhere else or that the specific
Articles should be mentioned in Article 143. It seems to me that this is a mere
method of drafting. There is no question of substance and no question of
principle. I personally myself would be quite willing to amend the last portion
of clause (1) of Article 143 if I knew at this stage what are the provisions
that this Constituent Assembly proposes to make with regard to the vesting of
the Governor with discretionary power. My difficulty is that we have not as yet
come either to Articles 175 or 188 nor have we exhausted all the possibilities
of other provisions being made, vesting the Governor with discretionary power.
If I knew that, I would very readily agree to amend Article 143 and to mention
the specific, but that cannot be done now. Therefore, my submission is that no
wrong could be done if the words as they stand in Article 143 remains as they
are. They are certainly not inconsistent.
H. V. Kamath: Is there no material difference between Article 61(1) relating to
the President vis-a-vis his ministers and this ? The Honourable Dr. B. R. Ambedkar
: Of course there is because we do not want to vest the President with any
discretionary power. Because the provincial Governments are required to work in
subordination to the Central Government, and therefore, in order to see that
they do act in subordination to the Central Government the Governor will
reserve certain things in order to give the President the opportunity to see
that the rules under which the provincial Governments are supposed to act
according to the Constitution or in subordination to the Central Government are
H. V. Kamath: Will it not be better to specify certain Articles in the
Constitution with regard to discretionary power, instead of conferring general
discretionary powers like this? The Honourable Dr. B. R. Ambedkar : I said so,
that I would very readily do it. I am prepared to introduce specific Articles,
if I knew what are the Articles which the House is going to incorporate in the
Constitution regarding vesting of the discretionary powers in the Governor.
H. V. Kamath: Why not hold it over? The Honourable Dr. B. R. Ambedkar : We can
revise. This House is perfectly competent to revise Article 143. If after going
through the whole of it, the House feels that the better way would be to
mention the Articles specifically, it can do so. It is purely a logomachy.
H. V. Kamath: Why go backwards and forwards? Mr. President: The question is:
in clause (1) of Article 143, the words 'except in so far as he is by or under
this Constitution required to exercise his functions or any of them in his
discretion be deleted." The amendment was negatived.
President: The question is:
in clause (1) of Article 143, after the word 'head' a comma be placed and the
words 'who shall be responsible to the Governor and shall' be inserted and the
word 'to' be deleted." The amendment was negatived.
President: The question is:
Article 143 stand part of the Constitution." The motion was adopted.
143 was added to the Constitution.
Assembly met on 2nd
June, 1949 ARTICLE 153
Mr. President: Article 153 is for the consideration of the House.
regard to the very first amendment, No. 2321, as we had a similar amendment
with regard to Article 69 which was discussed at great length the other day,
does Professor Shah wish to move it? Prof. K. T. Shah: If I am in order I would
like to move it. But if you rule it out, it cannot be moved.
It is not a question of ruling it out. If it is moved, there will be a
repetition of the argument once put forward.
K. T. Shah: I agree that this is a similar amendment, but not identical.
President: I have not said it is identical.
K. T. Shah: All right. I do not move it, Sir.
President: Amendment Nos. 2322, 2323, 2324, 2325 and 2326 are not moved, as
they are verbal amendments.
K. T. Shah: As my amendment No. 2327 is part of the amendment not moved, I do
not move it.
President: Then amendments Nos. 2328, 2329 and 2330 also go. Amendment No. 2331
is not moved.
Tahir (Bihar: Muslim): Mr. President, I move:
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.
want that some reasons may be enumerated which necessitate the dissolution of a
House. I find that to clause (3) of Article 153 there is an amendment of Dr. Ambedkar
in which he wants to omit the clause which runs thus: "(3) the functions
of the Governor under sub-clause (a) and (c) of clause (2) of this Article
shall be exercised by him in his discretion." I, on the other hand, want
that some reasons should be given for the dissolution. Nowhere in the
Constitution are we enumerating the conditions and circumstances under which
the House can be dissolved. If we do not put any condition, there might be
in some province there is a party in power with whose views the some reasons to
dissolve the Assembly and make arrangements for fresh elections. If such things
happen there will be no justification for a dissolution of the House.
because a Governor does not subscribe to the views of the majority party the
Assembly should not be dissolved. To avoid such difficulties I think it is
necessary that some conditions and circumstances should be enumerated in the
Constitution under which alone the Governor can dissolve the House. There
should be no other reason for dissolution of the House except
mal-administration or instability of the Ministry and its unfitness to work.
Therefore this matter should be considered and we should provide for certain
conditions and circumstances under which the Governor can dissolve the House.
for emphasis) Mr. President: The next amendment, No. 2333, is not moved.
may move amendment No. 2334.
Dr.B.R. Ambedkar: Sir, I move:
clause (3) of Article 153 be omitted." This clause is apparently
inconsistent with the scheme for a Constitutional Governor.
President: Amendment No. 2335 is the same as the amendment just moved.
Amendment No. 2336 is not moved.
H.V. Kamath: Mr. President, Sir, may I have your leave to touch upon the
meaning or interpretation of the amendment that has just been moved by my
learned Friend, Dr.
If this amendment is accepted by the House it would do away with the
discretionary powers given to the Governor. There is, however, sub-clause (b).
Am I to understand that so far as proroguing of the House is concerned, the
Governor acts in consultation with the Chief Minister or the Cabinet and
therefore no reference to it is necessary in clause (3)? Mr. President: He
wants clause (3) to be deleted.
H.V. Kamath: In clause (3) there is references to sub- clauses (a) and (c). I
put (a) and (b) on a par with each other.
Governor can summon the Houses or either House to meet at such time and place
as he thinks fit. Then I do not know why the act of prorogation should be on a
President: That is exactly what is not being done now. All the three are being
put on a par.
H. V. Kamath: Then I would like to refer to another aspect of this deletion.
That is the point which you were good enough to raise in this House the other
day, that is to say, that the President of the Union shall have a Council of Ministers to aid and advise him in
the exercise of his functions.
corresponding Article here is 143:
shall be a Council of Minister with the Chief Minister at the head to aid and advise
the Governor in the exercise of his functions......" Sir, as you pointed
out in connection with an Article relating to the President vis-a-vis his
Council of Ministers, is there any provision in the Constitution which binds
the Governor to accept or to follow always the advice tendered to him by his Council
of Ministers? Power is being conferred upon him under this Article to dissolve
the Legislative Assembly. This is a fairly serious matter in all democracies.
There have been instances in various democracies, even in our own provinces
sometimes, when a Cabinet seeking to gain time against a motion of censure
being brought against them, have sought the Governor's aid, in getting the
Assembly prorogued. This of course is not so serious as dissolution of the
Legislative Assembly. Here the Article blindly says, "subject to the
provisions of this Article." As regards clause (1) of the Article, I am
glad that our Parliament and our other Legislatures would meet more often and
for longer periods. I hope that will be considered and will be given effect to
at the appropriate time. Clause (2) of this Article is important because it
deals with the dissolution of the Assembly by the Governor of a State and in
view of the fact that there is no specific provision-of course it may be
understood and reading between the lines Dr. Ambedkar might say that the
substance of it is there, but we have not yet decided even to do away with the
discretionary powers of the Governor to accept the advice tendered to him by
his Council of Ministers, there is a lacuna in the Constitution.
Notwithstanding this, we are conferring upon him the power to dissolve the
Legislative Assembly, without even mentioning that he should consult or be
guided by the advice of his Ministers in this regard. I am constrained to say
that this power which we are conferring upon the Governor will be out of tune
with the new set-up that we are going to create in the country unless we bind
the Governor to accept the advice tendered to him by his Minister. I hope that
this Article will be held over and the Drafting Committee will bring forward
another motion later on revising or altering this Article in a suitable manner.
Narain (United Provinces: General): Mr. President, Sir, before speaking on
this, I wish to lodge a complaint and seek redress from you. I am one of those
who have attended all the meetings of this Assembly and sit from beginning to
the end, but my patience has been exhausted now. I find that there are a few honourable
Members of this House who have monopolised all the debates, who must speak on
every Article, on every amendment and every amendment to amendment. I know, Sir,
that you have your own limitations and you cannot stop them under the rules,
though I see from your face that also feel sometimes bored, but you cannot stop
them. I suggest to you, Sir, that some time-limit may be imposed upon some
Members. They should not be allowed to speak for more than two or three
minutes. So far as this Article is concerned, it has already taken fifteen
minutes, though there is nothing new in it, and it only provides discretionary
powers to the Governor. Still a Member comes and oppose it. I seek redress from
you, but if you cannot do this, then you must allow us at least to sleep in our
seats or do something else than sit in this House. Sir, I support this Article.
President: I am afraid I am helpless in this matter. I leave it to the good
sense of the Members.
Prasad: (Rose to speak).
President: Do you wish to speak after this? (Laughter).
Dr. B.R. Ambedkar: I do not think I need reply. This matter has been debated
President: Then I will put the amendments to vote.
at the end of sub-clause (c) of clause (2) of Article 153, the words `if the
Governor is satisfied that the administration is failing and the ministry has
become unstable' be inserted." The amendment was negatived.
President: The question is:
clause (3) of Article 153 be omitted." The amendment was adopted.
President: The question is:
Article 153, as amended, stand part of the Constitution." The motion was
153, as amended, was added to the Constitution Constituent Assembly met on 3rd August, 1949 Article 278. Provisions in case of
Failure of Constitutional machinery in States.
xxx xxx Pandit Hirday Nath Kunzru (United Provinces: General): Mr. President, I
am really very glad that the framers of the Constitution have at last accepted
the view that Article 188 should not find a place in our Constitution. That
Article was inconsistent with the establishment of responsible Government in
the provinces and the new position of the Governor. It is satisfactory that
this has at last been recognised and that the Governor is not going to be
invested with the power that Article 188 proposed to confer on him. It is,
however, now proposed to achieve the purpose of Article 188 and the old Article
278 by a revision of Article 278. We have today to direct our attention not
merely to Articles 278 and 278-A, but also to Article 277-A. This Article lays
down that it will be the duty of the Union
to ensure that the government of every State is carried on in accordance with
the provisions of this Constitution. It does not merely authorise the Central
Government to protect the State against external aggression or internal
Commotion; it goes much further and casts on it the duty of seeing that the
Government of a province is carried on in accordance with the provision of this
Constitution. What exactly do these words mean? This should be clearly
explained since the power to ensure that the provincial constitutions are being
worked in a proper way makes a considerable addition to the powers that the
Central Government will enjoy to protect a State against external aggression or
internal disturbance. I think, Sir, that it will be desirable in this
connection to consider Articles 275 and 276, for their provisions have vital
bearing on the s that have been placed before us. Article 275 says that, when
the President is satisfied that a grave emergency exists threatening the
security of India or of any part of India, then he may make a declaration to
that effect. Such a declaration will cease to operate at the end of two months,
unless before the expiry of this period, it has been approved by resolutions
passed by both Houses of Parliament. If it is so approved, then, the
declaration of emergency may remain in force indefinitely, that is, so long as
the Executive desires it to remain in force, or so long as Parliament allows it
to remain in force. So long as the Proclamation operates, under Article 276,
the Central Government will be empowered to issue directions to the government
of any province as regards the manner in which its executive authority should
be exercised and the Central Parliament will be empowered to make laws with
regard to any matter even though it may not be included in the Union List. It
will thus have the power of passing laws on subjects included in the State
List. Further, the Central Legislature will be able to confer powers and impose
duties on the officers and authorities of the Government of India in regard to
any matter in respect of which it is competent to pass legislation. Now the
effect of these two Articles is to enable the Central Government to intervene
when owing to external or internal causes the peace and tranquility of India or any part of it is threatened.
if misgovernment in a province creates so much dissatisfaction as to endanger
the public peace, the Government of India will have sufficient power, under
these Articles to deal with the situation. What more is needed then in order to
enable the Central Government to see that the government of a province is
carried on in a proper manner. It is obvious that the framers of the
Constitution arc thinking not of the peace and tranquility of the country, of
the maintenance of law and order but of good government in provinces. They will
intervene not merely to protect provinces against external aggression and
internal disturbances but also to ensure good government within their limits.
In other words, the Central Government will have the power to intervene to
protect the electors against themselves. If there is mismanagement or
inefficiency or corruption in a province, I take it that under Articles 277, 278
and 278-A taken together the Central Government will have the power. I do not
use the word 'President' because he will be guided by the advice of his
Ministers to take the government of that province into its own hands. My honourable
Friend, Mr. Santhanam gave some instances in order to show how a breakdown
might occur in a province even when there was no external aggression, no war
and no internal disturbance. He gave one very unfortunate illustration to
explain his point. He asked us to suppose that a number of factions existed in
a province which prevented the government of that province from being carried
on in accordance with the provisions of this Act i.e., I suppose efficiently.
He placed before us his view that in such a case a dissolution of the provincial
legislature should take place so that it might be found out whether the
electors were capable of applying a proper remedy to the situation. If,
however, in the new legislature the old factions-I suppose by factions he meant
parties-re-appeared, then the Central Government in his opinion would be
justified in taking over the administration of the province. Sir, if there is a
multiplicity of parties in any province we may not welcome it, but is that fact
by itself sufficient to warrant the Central Government's Interference in
provincial administration? There are many parties in some countries making
ministries unstable. Yet the Governments of those countries are carried on
without any danger to their security or existence. It may be a matter of regret
if too many parties exist in a province and they are not able to work together
or arrive at an agreement on important matters in the interests of their
province; but however regrettable this may be, it will not justify in my
opinion, the Central Government in intervening and making itself jointly with
Parliament responsible for the government of the province concerned. As I have
already said, if mismanagement in a province takes place to such an extent as
to create a grave situation in India or in
any part of it, then the Central Government will have the right to intervene
under Articles 275 and 276. Is it right to go further than this? We hear
serious complaints against the governments of many provinces at present, but it
has not been suggested so far that it will be in the ultimate interests of the
country and the provinces concerned that the Central Government should set
aside the provincial governments and practically administer the provinces
concerned, as if they were Centrally administered areas. It may be said, Sir,
that the provincial governments at present have the right to intervene when a
municipality or District Board is guilty of gross and persistent
mal-administration, but a municipality or a District Board is too small to be
compared for a moment in any respect with a province. The very size of a
province and the number of electors in it place it on a footing of its own. If
responsible government is to be maintained, then the electors must be made to
feel that the power to apply the proper remedy when misgovernment occurs rests
with them. They should know that it depends upon them to choose new
representatives who will be more capable of acting in accordance with their
best interests. If the Central Government and Parliament are given the power
that Articles 277, 278 and 278-A read together propose to confer on them, there
is a serious danger that whenever there is dissatisfaction in a province with
its government, appeals will be made to the Central Government to come to its
rescue. The provincial electors will be able to throw their responsibility on
the shoulders of the Central Government. Is it right that such a tendency
should be encouraged? Responsible Government is the most difficult form of
government. It requires patience, and it requires the courage to take risks. If
we have neither the patience nor the courage that is needed, our Constitution
will virtually be still- born. I think, therefore, Sir, that the Articles that
we are discussing are not needed. Articles 275 and 276 give the Central
Executive and Parliament all the power that can reasonably be conferred on them
in order to enable them to see that law and order do not break down in the
country, or that misgovernment in any part of India is not carried to such
lengths as to jeopardise the maintenance of law and order. It is not necessary
to go any further. The excessive caution that the framers of the Constitution
seem to be desirous of exercising will, in my opinion, be inconsistent with the
spirit of the Constitution, and be detrimental, gravel detrimental, to the
growth of a sense of responsibility among the provincial electors.
concluding, Sir, I should like to draw the attention of the House to the
Government of India Act, 1935 as adopted by the India (Provisional Constitution) Order, 1947. Section 93 which
formed an important part of this Act as originally passed, has been omitted
from the Act as adopted in 1947, and I suppose it was omitted because it was
thought to be inconsistent with the new order of things. My honourable Friend
Mr. Santhanam said that in the Government of India Act, 1935, the Governor who
was allowed to act in his discretion would not have been responsible to any
I think, is a mistake I may point out that the Governor, in respect of all
powers that he could exercise in his discretion, was subject to the authority
of the Governor-General and through him and the Secretary of State for India, to the British Parliament. The
only difference now is that our executive, instead of being responsible to an
electorate 5,000 miles away, will be responsible to the Indian electors. This
is an important fact that must be clearly recognised, but I do not think that
the lapse of two years since the adapted Government of India Act, 1935, came
into force, warrants the acceptance of the Articles now before us. The purpose
of section 93 was political.
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.
such antagonism between the people and the Government of India can exist in
future. Whatever differences there may be, will arise in regard to
administrative or financial or economic questions. Suppose a province in
respect of economic problems, takes a more radical line than the Government of
India would approve. I think this will be no reason for the interference of the
Government of India.
T. T. Krishnamachari (Madras: General): What happens if the provincial government
deliberately refuses to obey the provisions of the Constitution and impedes the
Central Government taking action under Article 275 and 276? Pandit Hirday Nath Kunzru:
No province can do it. It cannot because it would be totally illegal. But if
such a situation arises the Central Government will have sufficient power under
Articles 275 and 276 to intervene at once. It will have adequate power to take
any action that it likes. It can ask its own officers to take certain duties on
themselves and if those officers are impeded in the discharge, of their duties,
or, if force is used against them-to take an extreme case-the Central
Government will be able to meet such a challenge effectively, without our
accepting the Articles now before us. I should like the House to consider the
point raised by my honourable Friend Mr. Krishnamachari very carefully. I have
thought over such a situation in my own mind, over and over again, and every
time I have come to the conclusion that Articles 275 and 276 will enable the
Government of India to meet effectively such a manifestation oil recalcitrance,
such a rebellious attitude as that supposed by Mr. Krishnamachari. In such a
grave situation, the Government of India will have the power to take effective
action under Articles 275 and 276. What need is there then for the Articles
that have been placed before us? Sir, one of the speakers said that we should
not be legalistic.
has discussed the Articles moved by Dr. Ambedkar in a legalistic spirit. I
certainly have not discussed it in a narrow, legal way. I am considering the
question from a broad political point of view from the point of view of the
best interests of the country and the realization by provincial electors of the
important fact that they and they alone are responsible for the government of
their province. They must understand that it rests with them to decide how it
should be carried on.
even if the framers of the Constitution are not satisfied with the arguments
that I have put forward and want that the Central Government should have more
power than that given to it by Articles 275 and 276, I should ask them to pause
and consider whether there was not a better way of approaching this question
for the time being. In view of the discussions that have taken place in this
House and outside, it seems to me that there is a respectable body of opinion
in favour of not making the Constitution rigid, that is, there are many people
who desire that for some time to come amendments to the Constitution should be
allowed to be made in the same way as those of ordinary laws are. I think that
the Prime Minister in a speech that he made here some months ago expressed the
same view. If this idea is accepted by the House, if say for five years the
Constitution can be amended in the same way as an ordinary law, then we shall
have sufficient time to see how the Provinces develop and how their government
is carried on. If experience shows that the position is so unfortunate as to
require that the Central Government should make itself responsible not merely
for the safety of every Province but also for its good government, then you can
come forward with every justification for an amendment of the Constitution. But
I do not see that there is any reason why the House should agree to the
Articles placed before us today by Dr. Ambedkar.
oppose these Articles.
L. Krishnaswami Bharathi (Madras:
General): Sir, I felt impelled by a sense of duty to place a certain point of
view before the House, or else I would not have come before the mike. I feel
the need for a brief speech. I accord my wholehearted support to the new
Articles moved by Dr. Ambedkar, but I am not at all convinced of the wisdom of
the Drafting Committee in deleting Article 188. It is this point of view which
I want to emphasise.
that Article has a history behind it. There was a full-dress debate on it for
two days when eminent Premiers participated in it. We must understand what
Article 188 is for. It is not for normal conditions. It is in a state of grave
emergency that a Governor was, under this Article, invested with some powers. I
may remind the House of the debate where it was Mr. Munshi's amendment which
ultimately formed part of Article 188. In moving the amendment Dr. Ambedkar
said that no useful purpose would be served by allowing the Governor to suspend
the Constitution and that the President must come into the picture even
earlier. Article 188 provides for such a possibility. It merely says that when
the Governor is satisfied that there is such a grave menace to peace and
tranquility he can suspend the Constitution. It is totally wrong to imagine
that he was given the power to suspend the Constitution for a duration of two
weeks. Clause (3) provides that it is his duty to forthwith communicate his
Proclamation to the President and the President will become seized of the
matter under Article 188. That is an important point which seems lost sight of.
The Governor has to immediately communicate his Proclamation.
Article was necessitated because it was convincingly put forward by certain
Premiers. There may be a possibility that it is not at all possible to contact
the President. Do you rule out the possibility of a state of inability to
contact the Central Government? Time is of the essence of the matter. By the
time you contact and get the permission, many things would have happened and
the delay would have defeated the very purpose before us. The, honourable Mr. Kher
said that it is not necessary to keep this Article because we have all sorts of
communications available. In Bombay I know
of instances where we have not been able to contact the Governor for not less
than twenty-four hours What is the provision under Article 278? The Governor of
Madras says there is a danger to peace and tranquility. Assuming for a moment
that the communications are all right, the President cannot act. He has to
convene the Cabinet; the members of the Cabinet may not be readily available;
and by the time he convenes the Cabinet and gets their consent the purpose of the
Article would be defeated. Therefore, it was only with a view to see in such a
contingency where the Governor finds, that delay will defeat the very objective,
that Article 188 was provided for. I see no reason why the Drafting Committee
in their wisdom ruled out such a possibility. It is no doubt true that the
Article was framed two years ago, but since those two years many things have
happened that show that there is urgent need for the man on the spot to decide
and act quickly so that a catastrophe may be prevented. Today there is an open
defiance of authority everywhere and that defiance is well- organised. Before
the act, they cut off the telephone wires, as they did in the Calcutta
Exchange. That is what is happening in many parts of the country. Therefore,
when there is a coup d'etat it is just possible they will cut off
communications and difficulties may arise. It is only to provide for this
possibility that the Governor is given these powers. I do not think there will
be any fool of a Governor who will, if there is time, fail to inform the
President. I would like to have an explanation as to why this fool-proof
arrangement has been changed and why we have become suspicious that the
Governor will act in a wrong manner. According to the provision, he has to
forthwith communicate to the President and the President may say, "Well, I
am not convinced; cancel it." You must take into consideration that the
Governor will be responsible, acting wisely and in order to save the country
from disaster. The President comes into the picture directly, because the
Governor has to communicate the matter forthwith according to clause (3) of
Article 188. As Mr. President said, it is sheer commonsense that the man on the
spot should be given the powers to deal with the situation, so that it may not
deteriorate. I am not at all convinced of the wisdom of the change. The
provision as now proposed is not as fool-proof as it ought to be.
for emphasis) Besides, I would like to have an explanation as to why the Drafting
Committee goes out of the way to delete the provision which was considered and
accepted by the House previously.
view it is improper, because the House had decided it. If we appoint a Drafting
Committee, we direct them to draft on the basis of the decisions taken by us.
Is this the way in which they should draft? Their duty was to scrutinise the
decisions already arrived at and then draft on that basis. Therefore, I would
like to have an explanation ----a convincing explanation---as to what happened
within these two years which has made the members of the Drafting Committee
delete this wholesome, healthy and useful provision.
Ahmad: Mr. President, Sir, I think that the amendments moved by Dr. Ambedkar
constitute startling and revolutionary changes in the Constitution. I submit a
radical departure has been made from our own decisions. We took important
decisions in this House as to the principles of the Constitution and we adopted
certain definite principles and Resolutions and the Draft Constitution was
prepared in accordance with them. Now, everything has to be given up. Not only
the Draft Constitution has been given up, but the official amendments which
were submitted by Members of the House within the prescribed period which are
printed in the official blue book have also been given up. During the last
recess some additional amendments to those amendments were printed and
circulated. Those have also been given up. I beg to point out that all the
amendments and amendments to amendments which have been moved today are to be
found for the first time only on the amendment lists for this week which have
been circulated only within a day or two from today. So serious and radical
changes should not have been introduced at the last minute when there is not
sufficient time for slow people like us to see what is happening and whether
these changes really fit in with our original decisions and with other parts of
the Constitution as a whole. I submit that the Drafting Committee has been drifting
from our original decisions, from the Draft Constitution and from our original
amendments. It would perhaps be more fitting to call the Drafting Committee
"the Drifting Committee". I submit that the deletion of Article 188
is a very important and serious departure from principles which the House
solemnly accepted before. Some honourable Members who usually take the business
of the House seriously have attempted to support these changes on the ground
that some emergency powers are highly necessary. I agree with them that
emergency powers are necessary and I also agree that serious forces of disorder
are working in a systematic manner in the country and drastic powers are
necessary. But what I fail to appreciate is the attempt to take away the normal
power of the Governor or the Ruler of a State to intervene and pass emergency
orders. It is that which is the most serious change. In fact, originally the
Governor was to be elected on adult suffrage of the province, but now we have
made a serious departure that the Governor is now to be appointed by the
President. This is the first blow to Provincial Autonomy. Again, we have
deprived the Upper Houses in the States of real powers; not merely have we
taken away all effective powers from Upper Houses in the Provinces, but also
made it impossible for them to function properly and effectively. We are now
going to take away the right of the Ministers of a State and the Members of the
Legislatures and especially the people at large from solving their own
as we deprive the Governor or a Ruler of his right to interfere in grave
emergencies, at once we deprive the elected representatives and the Ministers
from having any say in the matter. As soon as the right to initiate emergency
measures is vested exclusively in the President, from that moment you absolve
the Ministers and Members of the local legislatures entirely from any
responsibility. The effect of this would mean that their moral strength and
moral responsibility will be seriously undermined. It is the aspect of the
problem to which I wish to draw the attention of the House.
for emphasis) This aspect of the matter, I submit, has not received sufficient
or adequate consideration in this House. If there is trouble in a State, the
initial responsibility for quelling it must rest with the Ministers. If they
fail, then the right to initiate emergency measures must lie initially with the
Governor or the Ruler. If you do not allow this, the result would be that the
local legislature and the Ministers would have responsibility of maintaining
law and order without any powers. That would easily and inevitably develop a
kind of irresponsibility. Any outside interference with the right of a State to
give and ensure their own good Government will not only receive no sympathy
from the Ministers and the members, but the action of the President will be
jeered at, tabooed and boycotted by the people of the State, the Members of the
Legislature and the Ministers themselves.
xxx xxx Pandit Thakur Das Bhargava : I think the constitutional machinery
cannot be regarded ordinarily to have failed unless the dissolution powers are
exercised by the Governor under section 153.
xxx xxx I think we are drifting, perhaps unconsciously, towards a dictatorship.
Democracy will flourish only in a democratic atmosphere and under democratic
conditions. Let people commit mistakes and learn by experience. Experience is a
great tutor. The arguments to the contrary which we have heard today were the
old discarded arguments of the British bureaucracy. The British said that they
must have overriding powers, that we cannot manage our affairs and that they
only knew how to manage our affairs. They said also that if we mismanaged
things they will supersede the constitution and do what they thought fit. What
has been our reply to this? It was that "Unless you make us responsible
for our acts, we can never learn the business of government. If we mismanage
the great constitutional machinery, we must be made responsible for our acts.
We must be given the opportunity to remedy the defects". This argument of
ours is being forgotten. The old British argument that they must intervene in
petty Provincial matters is again being revived and adopted by the very
opponents of that argument. In fact, very respected Members of this House are
adopting almost unconsciously the old argument of the British Government. I
submit that even the hated British did not go so far as we do. I submit our
reply to that will be the same as our respected leaders gave to the British
Government. I submit, therefore, that too much interference by the Centre will
create unpleasant reactions in the States. If you abolish provincial autonomy
altogether that would be logical. But to make them responsible while making
them powerless would be not a proper thing to do.
for emphasis) Then I come to the proviso to clause (1) of Article 278. It
safeguards against the rights of the High Court in dealing with matters within
their special jurisdiction. A Proclamation of emergency will not deprive the
High Court of its jurisdiction.
is the effect of this proviso. But it conveniently forgets the existence of the
Supreme Court. While it takes care to guarantee the rights of the High Courts
against the Proclamation, the rights of the Supreme Court are not guaranteed. I
only express the hope that the absence of any mention of the Supreme Court in
the proviso will not affect the powers of that Court.
T. T. Krisnamachari: It is not necessary because the Central Government is
subject to the jurisdiction of the Supreme Court under all conditions.
for emphasis) Mr. Naziruddin Ahmad: As the honourable Member himself has on a
previous occasion said, this Constitution would be the lawyers' heaven. Speaking
from experience, I think that this proviso will lead to much legal battle, and
lawyers alone will be benefited by this. I wish that the interpretation put
forward by Mr. T. T. Krishnamachari is right, but it is not apparent to me.
When we come to clause (2) of Article 278, in this clause it is stated that any
such proclamation may be revoked or varied by a subsequent proclamation.
for emphasis) Constituent Assembly met on 4th August 1949 The Constituent
Assembly of India met in the Constitution Hall, New Delhi, at Nine of the Clock, Mr.
President (The Honourable Dr. Rajendra Prasad) in the Chair.
188, 277-A and 278-continued.
xxx xxx Then coming to proposed Article 278-A sub-clause (a) and (b) of clause
(1) are new. Clause (a) is new and (b) is consequential. The new point which
has been introduced is also revolutionary. Instead of allowing the Provincial
Legislatures to have their say on the emergency legislation and thereby giving
the Provincial Assemblies an opportunity to assess the guilt or innocence of
the Ministers or other person or to give a verdict, the responsibility is
thrown on the Parliament. 'That would again, as I submitted yesterday, go to
make the Central Government and the Parliament unpopular in the State
concerned. It may happen that Provincial Ministers and others are guilty of
mismanagement and misgovernment; but if we do not allow the Provincial
Assemblies to sit in judgment over them, the result would be that guilty or
innocent persons, lawbreakers and law-abiding persons, good or bad people in
the State should all be combined. The result would be that those for whose
misdeeds the Emergency Powers would be necessary, would be made so many heroes;
they would be lionised, and the object of teaching them a lesson would be
frustrated. The Centre would be unpopular on the ground that it is poking its
nose unnecessarily and mischievously into their domestic affairs.
Sir, in sub-clause (c) of clause (1) of this Article 278-A, the President is
expected to authorize and sanction the Budget as the head of the Parliament.
This would be an encroachment on the domestic budget of the Provinces and the
States. That would be regarded with a great deal of dis-favour. It would have
been better to allow the Governor or the Ruler to function and allow their own
budget to be managed in their own way.
may be granted but that expenditure should not be directly managed by the
to clause (d) there is an exception in favour of Ordinances under Article 102
to the effect that "the President may issue Ordinances except when the
Houses of Parliament are in session". The sub-clause is misplaced in the
present Article. There is an appropriate place where Ordinances are dealt with.
Sub-clause (d) should find a place among the group of Articles dealing with
Ordinances and not here. This is again the result of hasty drafting.
are some of the difficulties that have been created.
not here necessary to deal with them in detail. The most important consequence
of this encroachment on the States sphere would be that we would be helping the
communist techniques. Their technique is that by creating trouble in a Province
or a State, they would partially paralyse the administration and thereby force
the Emergency Powers.
they will try to make those drastic powers unpopular.
is more, they will make the guilty Ministers and guilty officers heroes. The
legislature of the State would, as I have submitted, be deprived of the right
of discussion. If the President takes upon himself the responsibility of
emergency powers, then his action, I suppose, cannot be discussed in the States
legislatures. The only way of ventilating Provincial and States grievances is
to allow the Provinces and the States to find out the guilty persons and hold
them up to ridicule and contempt and that would be entirely lost. This would
have the effect of bringing all sorts of people good and bad, law- breaking and
law-abiding persons into one congregation. The Centre will be unpopular and the
guilty States would be regarded as so many martyrs and the Centre would be
flouted and would be forced to use more and more Emergency Powers and would be
caught in a vicious circle. Then, the States will gradually get dissatisfied and
they will show centrifugal tendencies and this will be reflected in the general
elections to the House of the People at the Centre. The result would be that
very soon these very drastic powers calculated to strengthen the hands of the
Centre will be rather a source of weakness in no distant time.
for emphasis) xxx xxx xxx There is an implication in Article 278 which is
something like saying, that you must overcome evil by good and meet lawlessness
with law. The President has no powers to meet undemocratic forces in the
country except in a cratic manner.
like saying that the forces of evil must be overcome by the forces of
non-violence and good. Practical statesmen and law- makers will not accept this
xxx Mr. President: Dr. Ambedkar.
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
would first of all like to touch for a minute on the amendment suggested by my
Friend Mr. Kamath in Article 277-A. His amendment was that the word
"and" should be substituted by the word "or". I do not
think that that is necessary, because the word "and" in the context
in which it is placed is both conjunctive as well as disjunctive, which can be
read in both ways, "and" or "or", as the occasion may
therefore, do not think that it is necessary for me to accept that amendment,
although I appreciate his intention in making the amendment.
second amendment to which I should like to refer is that moved by my Friend
Prof. Saksena, in which he has proposed that one of the things which the
President may do under the Proclamation is to dissolve the legislature. I think
that is his amendment in substance. I entirely agree that that is one of the
things which should be provided for because the people of the province ought to
be given an opportunity to set matters right-by reference to the legislature.
But I find that that is already covered by sub-clause (a) of clause (1) of
Article 278, because sub-clause (a) proposes that the President may assume to
himself the powers exercisable by the Governor or the ruler. One of the powers
which is vested and which is exercisable by the Governor is to dissolve the
when the President issues a Proclamation and assumes these powers under
sub-clause (a), that power of dissolving the legislature and holding a now
election will be automatically transferred to the President which powers no
doubt the President will exercise on the advice of his Ministers. Consequently
my submission is that the proposition enunciated by my Friend Prof. Saksena is
already covered by sub-clause (a), it is implicit in it and there is therefore
no necessity for making any express provision of that character.
come to the remarks made by my Friend Pandit Kunzru.
first point, if I remember correctly, which was raised by him was that the
power to take over the administration when the constitutional machinery fails
is a new thing, which is not to be found in any constitution. I beg to differ
from him and I would like to draw his attention to the Article contained in the
American Constitution, where the duty of the United States is definitely expressed to be to maintain the Republican
form of the Constitution. When we say that the Constitution must be maintained
in accordance with the provisions contained in this Constitution we practically
mean what the American Constitution means, namely that the form of the
constitution prescribed in this Constitution must be maintained. Therefore, so
far as that point is concerned we do not think that the Drafting Committee has
made any departure from an established principle.
other point of criticism was that Articles 278 and 278-A were unnecessary in
view of the fact that there are already in the Constitution Articles 275 and
276. With all respect I must submit that he (Pandit Kunzru) has altogether
misunderstood the purposes and intentions which underlie Article 275 and the
present Article 278. His argument was that after all what you want is the right
to legislate on provincial subjects. That right you get by the terms of Article
276, because under that the Centre gets the power, once the Proclamation is
issued, to legislate on all subjects mentioned in List II. I think that is a
very limited understanding of the provisions contained either in Articles 275
and 276 or in Articles 278 and 278-A.
should like first of all to draw the attention of the House to the fact that
the occasions on which the two sets of Articles will come into operation are
quite different. Article 275 limits the intervention of the Centre to a state
of affairs when there is war or aggression, internal or external. Article 278
refers to the failure of the machinery by reasons other than war or aggression.
Consequently the operative clauses, as I said, are quite different. For
instance, when a proclamation of war has been issued under Article 275, you get
no authority to suspend the provincial constitution. The provincial constitution
would continue in operation. The legislature will continue to function and
possess the powers which the constitution gives it; the executive will retain
its executive power and continue to administer the province in accordance with
the law of the province. All that happens under Article 276 is that the Centre
also gets concurrent power of legislation and concurrent power of
administration. That is what happens under Article 276. But when Article 278
comes into operation, the situation would be totally different. There will be
no legislature in the province, because the legislature would have been
suspended. There will be practically no executive authority in the province
unless any is left by the proclamation by the President or by Parliament or by the
Governor. The two situations are quite different. I think it is essential that
we ought to keep the demarcation which we have made by component words of
Articles 275 and 278. I think mixing the two things up would cause a great deal
xxx xxx The Honourable Dr. B.R. Ambedkar: Only when the government is not
carried on in consonance with the provisions laid down for the constitutional
government of the provinces, whether there is good government or not in the
province is for the Centre to determine. I am quite clear on the point.
xxx xxx The Honorable Dr. B.R. Ambedkar: It would take me very long now to go
into a detailed examination of the whole thing and, referring to each say, this
is the print which is established in it and say, if any government or any
legislature of a province does not act in accordance with it, that would act as
a failure of machinery. The expression "failure of machinery" I find
has been used in the Government of India Act, 1935. Everybody must be quite
familiar therefore with its de facto and de jure meaning. I do not think any
further explanation is necessary.
xxx xxx The Honourable Dr. B. R. Ambedkar: In regard to the general debate
which has taken place in which it has been suggested that these Articles are
liable to be abused, I may say that I do not altogether deny that there is a
possibility of these Articles being abused or employed for political purposes.
But that objection applies to every part of the Constitution which gives power
to the Centre to override the Provinces. In fact I share the sentiments
expressed by my honourable Friend Mr. Gupte yesterday that the proper thing we
ought to expect is that such Articles will never be called into operation and
that they would remain a dead letter. If at all they are brought into
operation, I hope the President, who is endowed with these powers, will take
proper precautions before actually suspending the administration of the
provinces. I hope the first thing he will do would be to issue a mere warning
to a province that has erred, that things were not happening, in the way in
which they were intended to happen in the Constitution. If that warning fails,
the second thing for him to do will be to order an election allowing the people
of the province to settle matters by themselves. It is only when these two
remedies fail that he would resort to this Article. It is only in those
circumstances he would resort to this Article. I do not think we could then say
that these Articles were imported in vain or that the President had acted
H. V. Kamath : Is Dr. Ambedkar in a position to assure the House that Article
143 will now be suitably amended? The Honourable Dr. B. R. Ambedkar : I have
said so and I say now that when the Drafting Committee meets after the Second
Reading, it will look into the provisions as a whole and Article 143 will be
suitably amended if necessary.
President: I will now put the amendment to vote one after another.
question is :
Article 188 be deleted." The motion was adopted.
188 was deleted from the Constitution.
President: Then I will take up Article 277-A.
question is :
in amendment No. 121 of List I (Second Week) of Amendments to Amendments, in
the proposed new Article 277-A, for the word 'Union' the words 'Union
Government' be substituted." The amendment was negatived.
President: Now I will put amendment No. 221.
question is :
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.
President: The question is:
in Amendment No. 121 of List I (Second Week) of Amendments to Amendments, for
the words 'internal disturbance' the words 'internal insurrection or chaos' be
substituted." The amendment was negatived.
: The question is :
after Article 277 the following new Article be inserted:- '277-A. It shall be
the duty of the Union to protect every State against
external aggression and internal disturbance and to ensure that the government
of every State is carried on in accordance with the provisions of this
Constitution." The motion was adopted, Mr. President: The question is.:
Article 277-A stand part of the Constitution." The motion was adopted.
277-A was added to the Constitution.
President: The question is:
in amendment No. 160 of List II.
Week), of Amendments to Amendments in clause (1) of the proposed Article 278,
for the word 'Ruler' the words the Rajpramukh' be substituted." The
amendment was negatived.
President: The question is:
in amendment No. 160 of List II (Second Week) of Amendments to Amendments, in
clause (1) of the proposed Article 278, the words 'or otherwise' be
deleted." The amendment was negatived.
: The question is:
in amendment No. 160 of List II (Second Week): of Amendments to Amendments, in
clause (1) of the proposed Article 278, after the words 'is satisfied that' the
words 'a grave emergency has arisen which threatens the peace and tranquillity
of the State and that' be added." The amendment was negatived.
President: The question is:
in amendment No. 160 of List II (Second Week) of Amendments to Amendments for
the first proviso to clause (4) of the proposed Article 278, the following be
substituted- 'Provided that the President may if he so thinks fit order at any
time, during this period a dissolution of the State legislature followed by a
fresh general election, and the Proclamation shall cease to have effect from
the day on which the newly elected legislature meets in session'." The
amendment was negatived.
President: The question is:
for Article 278, the following articles be substituted 278
case of failure of constitutional machinery in States. - If the President, on
receipt of a report from the Governor or Ruler of a State or otherwise, is
satisfied that the government of the State cannot be carried on in accordance
with the provisions of the Constitution, the President may by Proclamation-
assume to himself all or any of the
functions of the Government of the State and all or any, of the powers vested
in or exercisable by I the Governor or Ruler, as the case may be, or any body
or authority in the State other than the Legislature of the State;
declare that the powers of the
Legislature of the State shall be exercisable by or under the authority of
make such incidental and
consequential provisions as appear to the President to be necessary or
desirable for giving effect to the objects of the Proclamation, including
provisions for suspending in whole or in part the operation of any provisions
of this Constitution relating to any body or authority in the State :
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.
Proclamation may be revoked or varied by a subsequent Proclamation.
Proclamation under this Article shall be laid before each House of Parliament
and shall, except where it is a Proclamation revoking a previous Proclamation,
cease to operate at the expiration of two months unless before the expiration
of that period it has been approved by resolutions of both Houses of Parliament
that if any such Proclamation is issued at a time when the House of the People
is dissolved or if the dissolution of the House of the People takes place
during the period of two months referred to in this clause and the Proclamation
has not been approved by a resolution passed by the House of the People before
the expiration of that period, the Proclamation shall cease to operate at the
expiration of thirty days from the date on which the House of the People first
sits after its reconstitution unless before the expiration of that period
resolutions approving the Proclamation have been passed by both Houses of
so approved shall, unless revoked, cease to operate on the expiration of six
months form the date of the passing of the second of the resolutions approving
the Proclamation under clause (3) of this Article :
that if and so often as a resolution approving the continuance in force of such
a proclamation is passed: by both Houses of Parliament, the Proclamation shall,
unless revoked, continue in force for a further period of six months from the
date on which under this clause it would otherwise have ceased to operate, but
no such Proclamation shall in any case remain in force for more than three
further that if the dissolution of the House of the People takes place during
any, such period of six months and a resolution approving the continuance in
force of such Proclamation has not been passed by the House of the People
during the said period, the Proclamation shall cease to operate at the
expiration of thirty days from the date on which the House of the People first
sits after its reconstitution unless before the expiration of that period
resolutions approving the Proclamation have been passed by both Houses of
Exercise of legislative powers under proclamation issued under Article 278.
by a Proclamation issued under clause (1) of Article 278 of this Constitution
it has been declared that the powers of the Legislature of the State shall be
exercisable by or under the authority of Parliament, it shall be competent-
to delegate the power to make laws for, the State to the President or any other
authority specified by him in, that behalf-
or for the President or other authority to whom the power to make laws is
delegated under sub-clause (a) of this clause to make laws conferring powers
and imposing duties or authorising the conferring of powers and the imposition
of duties upon the Government of India or officers and authorities of the
Government of India.
President to authorise when the House of the People is not in session
expenditure from the Consolidated Fund of the State pending the sanction of
such expenditure by Parliament;
President to promulgate Ordinances under Article 102 of this Constitution
except when both Houses of Parliament are in session.
Any law made by
or under the authority of Parliament which Parliament or the President or other
authority referred to in sub-clause (a) of clause (1) of this Article would
not, but for the issue of a Proclamation under Article 278 of this
Constitution, have been competent to make shall to the extent of the incompetency
cease to have effect on the expiration of a period of one year after the
Proclamation has ceased to operate except as respects things done or omitted to
be done before the expiration of the said period unless the provisions which
shall so cease to have effect are sooner repealed or re-enacted with or without
modification by an Act of the Legislature of the State." The amendment was
President: The question is:
the proposed Article 278 stand part of the Constitution." The motion was
278 was added to the Constitution.
President: The question is:
proposed Article 278-A stand part of the Constitution." The motion was
278-A was added to the Constitution.
Adoption of the Constitution the speech of Dr. B.R.
on 25.11.1949 contained the following significant observations:
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, it is sure to turn out bad because those who are
called to work it, happen to be a bad lot.
bad a Constitution may be, it may turn out to be good if those who are called
to work it, happen to be a good lot. The working of a Constitution does not
depend wholly upon the nature of the Constitution. The Constitution can provide
only the organs of State such as the legislature, the executive and the
judiciary. The factors on which the working of those organs of State depends
are the people and the political parties they will set up as their instrument
to carry out their wishes and their politics. Who can say how the people of India and their parties will behave? Will
they uphold constitutional methods of achieving their purposes or will they
prefer revolutionary methods of achieving them? If they adopt the revolutionary
methods, however good the Constitution may be, it requires no prophet to say
that it will fail. It is, therefore, futile to pass any judgment upon the
Constitution without reference to the part which the people and their parties
are likely to play................ Jefferson, the great American statesman who
played so great a part in the making of the American Constitution, has
expressed some very weighty views which makers of Constitutions can never
afford to ignore. In one place, he has said:
may consider each generation as a distinct nation, with a right, by the will of
the majority, to bind themselves, but none to bind the succeeding generation,
more than the inhabitants of another country." In another place, he has
idea that institutions established for the use of the nation cannot be touched
or modified, even to make them answer their end, because of rights gratuitously
supposed in those employed to manage them in the trust for the public, may
perhaps be a salutary provision against the abuses of a monarch, but is mot
absurd against the nation itself. Yet our lawyers and priests generally
inculcate this doctrine, and suppose that preceding generations held the earth
more freely than we do; had a right to impose laws on us, unalterable by
ourselves, and that we, in the like manner, can make laws and impose burdens on
future generations, which they will have no right to alter; in fine, that the
earth belongs to the dead and not the living." I admit that what Jefferson has said is not merely true, but is
absolutely true. There can be no question about it. Had the Constituent
Assembly departed from this principle laid down by Jefferson it would certainly be liable to
blame even to condemnation. But I ask, has it? Quite the contrary. One has only
to examine the provisions relating to the amendment of the Constitution. The
Assembly has not only refrained from putting a seal of finality and
infallibility upon this Constitution by denying to the people the right to
amend the Constitution as in Canada or by making the amendment of the
Constitution subject to the fulfillment of extraordinary terms and conditions
as in America or Australia, but has provided a most facile procedure for
amending the Constitution. I challenge any of the critics of the Constitution
to prove that any Constituent Assembly anywhere in the world has, in the
circumstances in which this country finds itself, provided such a facile
procedure for the amendment of the Constitution. If those who are dissatisfied
with the Constitution have only to obtain a two- thirds majority and if they
cannot obtain even a two-thirds majority in the Parliament elected on adult
franchise in their favour, their dissatisfaction with the Constitution cannot
be deemed to be shared by the general public.
is only one point of constitutional import to which I propose to make a
serious complaint is made on the ground that there is too much of
centralization and that the States have been reduced to municipalities. It is
clear that this view is not only an exaggeration, but is also founded on a mis-understanding
of what exactly the Constitution contrives to do. As to the relation between
the Centre and the State, it is necessary to bear in mind the fundamental
principle on which it rests. The basic principle of federalism is that the
legislative and executive authority is partitioned between the Centre and the
States not by any law to be made by the Centre but by the Constitution itself.
That is what the Constitution does. The States under our Constitution are in no
way dependent upon the Centre for their legislative or executive authority. The
Centre and the States are co-equal in this matter. It is difficult to see how
such a Constitution can be called centralism. It may be that the Constitution
assigns to the Centre a larger field for the operation of its legislative and
executive authority than is to be found in any other federal Constitution. It
may be that the residuary powers are given to the Centre and not to the States.
But these features do not form the essence of federalism. The chief mark of
federalism, as I said, lies in the partition of the legislative and executive
authority between the Centre and the units by the Constitution.
is the principle embodied in our Constitution. There can be no mistake about
it. It is, therefore, wrong to say that the States have been placed under the
Centre. The Centre cannot by its own will alter the boundary of that partition.
Nor can the judiciary. For as has been well said:
may modify, they cannot replace. They can revise earlier interpretations as new
arguments, new points of view are presented, they can shift the dividing line
in marginal cases, but there are barriers they cannot pass, definite
assignments of power they cannot reallocate. They can give a broadening
construction of existing powers, but they cannot assign to one authority powers
explicitly granted to another." The first charge of centralization
defeating federalism must therefore fall.
noted above, the Governor occupies a very important and significant post in the
democratic set up. When his credibility is at stake on the basis of allegations
that he was not performing his constitutional obligations or functions in the
correct way, it is a sad reflection on the person chosen to be the executive
Head of a particular State. A person appointed as a Governor should add glory
to the post and not be a symbolic figure oblivious of the duties and functions
which he has is expected to carry out. It is interesting to note that
allegations of favouratism and mala fides are hurled by other parties at
Governors who belonged or belong to the ruling party at the Centre, and if the
Governor at any point of time was a functionary of the ruling party. The
position does not change when another party comes to rule at the Centre. It
appears to be a matter of convenience for different political parties to allege
mala fides. This unfortunate situation could have been and can be avoided by
acting on the recommendations of the Sarkaria Commission and the Committee of
the National Commission To Review The Working Of The Constitution in the matter
of appointment of Governors. This does not appear to be convenient for the
parties because they want to take advantage of the situation at a particular
time and cry foul when the situation does not seem favourable to them. This is
a sad reflection on the morals of the political parties who do not loose the
opportunity of politicizing the post of the Governor. Sooner remedial measures
are taken would be better for the democracy.
not deficiency in the Constitution which is responsible for the situation. It
is clearly attributable to the people who elect the Governors on considerations
other than merit. It is a disturbing feature, and if media reports are to be
believed, Raj Bhawans are increasingly turning into extensions of party offices
and the Governors are behaving like party functionaries of a particular party.
This is not healthy for the democracy.
key actor in the Centre-State relations is the Governor who is a bridge between
the Union and the State.
founding fathers deliberately avoided election to the office of the Governor,
as is in vogue in the U.S.A. to insulate the office from the linguistic
chauvinism. The President has been empowered to appoint him as executive head
of the State under Article 155 in Part VI, Chapter II. The executive power of
the State is vested in him by Article 154 and exercised by him with the aid and
advice of the Council of Ministers, the Chief Minister as its head. Under
Article 159 the Governor shall discharge his functions in accordance with the
oath to protect and defend the Constitution and the law. The office of the
Governor, therefore, is intended to ensure protection and sustenance of the
constitutional process of the working of the Constitution by the elected
executive and given him an umpire's role. When a Gandhian economist Member of
the Constituent Assembly wrote a letter to Gandhiji of his plea for abolition
of the office of the Governor, Gandhiji wrote to him for its retention, thus;
the Governor had been given a very useful and necessary place in the scheme of
the team. He would be an arbiter when there was a constitutional dead lock in
the State and he would be able to play an impartial role.
would be administrative mechanism through which the constitutional crisis would
be resolved in the State. The Governor thus should play an important role. In
his dual undivided capacity as a head of the State he should impartially assist
the President. As a constitutional head of the State Government in times of
constitutional crisis he should bring about sobriety. The link is apparent when
we find that Article 356 would be put into operation normally based on
Governor's report. He should truthfully and with high degree of constitutional
responsibility, in terms of oath, inform the President that a situation has
arisen in which the constitutional machinery in the State has failed and the
Government of State cannot be carried on in accordance with the provisions of
the Constitution, with necessary detailed factual foundation.
incumbent on each occupant of every high office to be constantly aware of the
power in the High Office he holds that is meant to be exercised in public
interest and only for public good, and that it is not meant to be used for any
personal benefit or merely to elevate the personal status of the current holder
of that office.
Commission's report it was lamented that some Governors were not displaying the
qualities of impartiality and sagacity expected of them. The situation does not
seem to have improved since then.
to Report of the Committee of Governors (1971) would also be relevant. Some
relevant extracts read as follows:
to British constitutional conventions, though the power to grant to a Prime
Minister a dissolution of Parliament is one of the personal prerogatives of the
Sovereign, it is now recognized that the Sovereign will normally accept the
advice of the Prime Minister since to refuse would be tantamount to dismissal
and involve the Sovereign in the political controversy which inevitably follows
the resignation of a Ministry. A Prime Minister is entitled to choose his own
time within the statutory five year limit for testing whether his majority in
the House of Commons still reflects the will of the electorate. Only if a break
up of the main political parties takes place can the personal discretion of the
Sovereign become the paramount consideration. There are, however, circumstances
when a Sovereign may be free to seek informal advice against that of the Prime
Wade, in Constitutional Law (Wade and Phillips, Eighth Edn. 1970), states these
the Sovereign can be satisfied that
Parliament is still vital and capable of doing its job,
election would be detrimental to the national economy, more particularly if it
followed closely on the last election, and
he could rely on
finding another 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 office".
Wade further observes:
will be seldom that all these conditions can be satisfied. Particularly
dangerous to a constitutional Sovereign is the situation which would arise if
having refused a dissolution to the outgoing Prime Minister he was faced by an
early request from his successor for a general election. Refusal might be
justified if there was general agreement inside and outside the House of
Commons that a general election should be delayed and clearly it would be
improper for a Prime Minister to rely on defeat on a snap vote to justify an
observations of Hood Phillips in his latest book, Reform of the Constitution
(1970), are relevant:
is no precedent in this country of a Prime Minister, whose party has a majority
in the Commons, asking for a dissolution in order to strengthen his weakening
hold over his own party. If he did ask for a dissolution the better opinion is
that the Queen would be entitled, perhaps would have a duty, to refuse. In the
normal case when the Sovereign grants a dissolution this is on assumption that
the Prime Minister is acting as leader on behalf of his party.
the electorate could not be expected to decide the question of leadership. So
if the Sovereign could find another Prime Minister who was able to carry on the
government for a reasonable period, she would be justified in refusing a
dissolution. Something like this happened in South Africa in 1939 when the question was whether South Africa should enter the war: the Governor-
General refused a dissolution to Hertzog, who resigned and was replaced by
Smuts who succeeded in forming a Government.
xxx We may first examine the precise import of Article 356 which sanctions
President's rule in a State in the event of a break-down of the constitutional
machinery. Four our present purpose, it is enough to read the language of
clause (1) of the Article:
Provisions in case of failure of constitutional machinery in State.--(1) If the
President, on receipt of report from the Governor of the State or otherwise, is
satisfied that a situation has arisen in which the government of the State
cannot be carried on in accordance with the provisions of this Constitution,
the President may by Proclamation
assume to himself all or any of the
functions of the Government of the State and all or any of the powers vested in
or exercisable by the Governor or any body or authority in the State other than
the Legislature of the State;
declare that the powers of the
Legislature of the State shall be exercisable by or under the authority of
make such incidental and
consequential provisions as appear to the President to be necessary or
desirable for giving effect to the objects of the Proclamation, including
provisions for suspending in whole or in part the operation of any provisions
of this Constitution relating to any body or authority in the State:
that nothing in this clause shall authorise the President to assume to himself
any of the powers vested in or exercisable by a High Court, or to suspend in
whole or in part the operation of any provision of this Constitution relating
to High Courts.
salient features of this provision', in the words of Shri Alladi Krishnaswami Ayyar
(speaking in the Constituent Assembly), "are that immediately the proclamation
is made, the executive functions (of the State) are assumed by the President.
What exactly does this mean? As members need not be repeatedly reminded on this
point, 'the President' means the Central Cabinet responsible to the whole
Parliament in which are represented representatives from the various units
which form the component parts of the Federal Government. Therefore, the State
machinery having failed, the Central Government assumes the responsibility
instead of the State Cabinet. Then, so far as the executive government is
concerned, it will be responsible to the Union Parliament for the proper
working of the Government in the State. If responsible government in a State
functioned properly, the Centre would not and could not interfere.
the Proclamation is in operation, Parliament becomes the Legislature for the
State, and the Council of Ministers at the Centre is answerable to Parliament
in all matters concerning the administration of the State. Any law made
pursuant to the powers delegated by Parliament by virtue of the Proclamation is
required to be laid before Parliament and is liable to modification by
Parliament. Thus, a state under President's rule under Article 356 virtually
comes under the executive responsibility and control of the Union Government.
Responsible 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.
discussing Article 356, attention is inevitably drawn to Section 93 of the
Government of India Act, 1935. This section had attained a certain notoriety in
view of the enormous power that it vested in the Governor and the possibility
of its misuse, the Governor being the agent of the British Government.
of the leading members of the Constituent Assembly had occupied important
positions as Ministers in the Provinces following the inauguration of
Provincial autonomy and had thus first-hand experience of the working of this
particular section and the possible effect of having in the Constitution a
provision like Section 93. There was, therefore, considerable discussion, both
in the Constituent Assembly and in the Committees, on the advisability, or
necessity, of incorporating the provision in the Constitution. Pandit H.N. Kunzru,
who had serious apprehensions regarding this provision, suggested the limiting
of the Governor's functions to merely making a report to the President, it
being left to the President to take such action as he considered appropriate on
the report. Pandit Govind Ballabh Pant agreed with Pandit Kunzru in principle.
The former referred in particular to the administrative difficulties that would
be created by giving powers to the Governor to act on his own initiative over
the head of his Ministers.
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
Krishnaswami Ayyar tried to allay apprehensions in the minds of the members of
the Constituent Assembly about the similarity between Section 93 of the
Government of India Act and the provision made in Article 356 of the
Constitution. He said in the Constituent Assembly:
is no correspondence whatever between the old section 93 (of the Government of
India Act, 1935) and this except in regard to the language in some parts. Under
Section 93, the ultimate responsibility for the working of Section 93 was the
Parliament of great Britain which was certainly representative of the people of
India, whereas under the present article the responsibility is that of the
Parliament of India which is elected on the basis of universal franchise, and I
have no doubt that not merely the conscience of the representatives of the
State concerned but also the conscience of the representatives of the other
units will be quickened and they will see to it that the provision is properly
worked. Under those circumstances, except on the sentimental objection that it
is just a repetition of the old Section 93, there is no necessity for taking exception
to the main principle underlying this article".
winding up the debate on the emergency provisions, Dr. Abmedkar observed:
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.
that objection applies to every part of the Constitution which gives power to
the Centre to override the Provinces. In fact I share the sentiments expressed
by my honourable friend Mr. Gupte yesterday that the proper thing we ought to
expect is that such articles will never be called into operation and that they
would remain a dead letter. If at all they are brought into operation, I hope
the President, who is endowed with these powers, will take proper precautions
before actually suspending the administration of the provinces".
hope that this provision would be used sparingly, it must be admitted, has not
been fulfilled. During the twenty-one years of the functioning of the
Constitution, President's rule has been imposed twenty-four times- the
imposition of President's rule in Kerala on November 1, 1956, was a
continuation of President's rule in Travancore- Cochin imposed earlier on March
23, 1956- the State of Kerala having been under President's rule five times and
for the longest period. Out of seventeen States (not taking into account PEPSU
which later merged into Punjab, and excluding Himachal Pradesh which became a
State only recently), eleven have had spells of President's rule. The kind of
political instability in some of the states that we have witnessed and the
politics of defection which has so much tarnished the political life of this
country were not perhaps envisaged in any measure at the time the Constituent
Assembly considered the draft Constitution. No Governor would, it can be safely
asserted, want the State to be brought under President's rule except in
circumstances which leave him with no alternative.
article, as finally adopted, limits the functions of the Governor to making a
report to the President that a situation has arisen in which there has been
failure of the constitutional machinery. The decision whether a Proclamation
may be issued under Article 356 rests with the President, that is to say, the
Union Government. Significantly, the President can exercise the power "on
receipt of a report from the Governor or otherwise" if he is satisfied
that the situation requires the issue of such a Proclamation.
of the circumstances in which President's rule may have to be imposed have
already been discussed. What is important to remember is that recourse to
Article 356 should be the last resort for a Governor to seek. A frequent
criticism of the Governor in this connection is that he sometimes acts at the
behest of the Union Government. This criticism emanates largely from a lack of
appreciation of the situations which confront the Governors.
of President's rule normally results in the President vesting the Governor with
executive functions which belong to his Council of Ministers This is a
responsibility which no Governor would lightly accept. Under President's rule
he functions in relation to the administration of the State under the
superintendence, direction and control of the President and concurrently with
him by virtue of an order of the President.
Head of the State, the Governor has a duty to see that the administration of
the State does not break down due to political instability. He has equally to
take care that responsible Government in the State is not lightly disturbed or
superseded. In ensuring these, it is not the Governor alone but also the
political parties which must play a proper role.
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.
leaving this issue, we would like to state that it is not in the event of
political instability alone that a Governor may report to the President under
Article 356. Reference has been made elsewhere in this report to occasions
where a Governor may have to report to the President about any serious internal
disturbances in the State, or more especially of the existence or possibility
of a danger of external aggression. In such situations also it may become
necessary for the Governor to report to the President for action pursuant to
difficult to lay down any precise guidelines in regard to the imposition of
President's rule. The Governor has to act on each occasion according to his
best judgment, the guiding principle being, as already stated, that the
constitutional machinery in the State should, as far as possible, be
of the Constitution, according to Dicey's classic definition, consist of
"customs, practices, maxims, or precepts which are not enforced or
recognized by the Courts", but "make up a body not of laws, but of
constitutional or political ethics". The broad basis of the operation of
conventions has been set out in Prof. Wade's Introduction of Dicey's Law of the
Constitution (1962 edn.). The dominant motives which secure obedience to
conventions are stated to be:
"the desire to carry on the
traditions of constitutional government;
the wish to keep the intricate
machinery of the ship of State in working order;
the anxiety to retain the confidence
of the public, and with it office and power".
influences secure that the conventions of Cabinet Government, which are based
on binding precedent and convenient usage, are observed by successive
generations of Ministers. The exact content of a convention may change or even
be reversed, but each departure from the previous practice is defended by those
responsible as not violating the older precedents. Objections are only silenced
when time has proved that the departure from precedent has created a new
convention, or has shown itself to be a bad precedent and, therefore,
constituted in itself a breach of convention.
exposition of the nature of conventions will show that, if they have to be
observed and followed, the primary responsibility therefor will rest on those
charged with the responsibility of government. In a parliamentary system, this
responsibility unquestionably belongs to the elected representatives of the
people who function in the Legislatures. They are mostly members of political
parties who seek the suffrage of the electorate on the basis of promises made
and programmes announced. The political parties, therefore, are concerned in
the evolution of healthy conventions so that they "retain the confidence
of the public, and, with it, office and power".
feel that it (the Constitution) is workable, it is flexible and it is strong
enough to hold the country together both in peace time and in war time. Indeed
if I may say so, if things go wrong under the new Constitution, the reason will
not be that we had a bad Constitution. What we will have to say is, that Man
was vile." These words were uttered by Dr. Ambedkar in the Constituent
Assembly in moving consideration of the draft Constitution. It has become the
fashion, when situations arise which may not be the liking of a particular
political party, to blame the Constitution.
Governors also inevitably get their share of the blame either because, it is
alleged they take a distorted view of the Constitution, or, as is also alleged,
because the Constitution permits them to resort to "unconstitutional"
acts. The essential structure of our Constitution relating to the functioning
of the different branches of government is sound and capable of meeting all
requirements. The conventions, or the guide-lines, that we are called upon to
consider should be viewed in this background.
evolve from experience and from trial and error. The working of our
Constitution during the past twenty-one years has exposed not so much any
weaknesses in our political life. Some of the weaknesses will be evident from
the discussions in the earlier part of this Report. The Governors, under our
Constitution, do not govern; government is the primary concern of the Council
of Ministers which is responsible to the Legislature and the people. Therefore,
for a purposeful evolution of conventions, the willing co-operation of the
political parties and their readiness to adhere to such conventions are of
paramount importance. In recent years, it has been a regrettable feature of
political life in some of the States, with the growing number of splinter
parties, some of them formed on the basis of individual or group alignments and
not of well- defined programmes or policies, that governments are formed with a
leader- a Chief Minister - who comes to that office not as of a right, with the
previous acquiescence of followers and the deference of his colleagues, but as
being the most "acceptable" candidate for the time. Much of his time
and efforts are, therefore, inevitably spent in finding expedients to keep
himself in power and the Cabinet alive".
Special Reference NO.1 of 2002 case (supra) in paragraphs 55 and 56 it was
observed as follows:
"It was then urged on behalf of
the Union that under Article 174 what is
dissolved is an Assembly while what is prorogued is a House. Even when an
Assembly is dissolved, the House continues to be in existence. The Speaker
continues under Article 94 in the case of the House of the People or under
Article 179 in the case of the State Legislative Assembly till the new House of
the People or the Assembly is constituted. On that premise, it was further
urged that the fresh elections for constituting a new Legislative Assembly have
to be held within six months from the last session of the dissolved Assembly.
At first glance, the argument appeared
to be very attractive, but after going deeper into the matter we do not find
any substance for the reasons stated hereinafter" Article 172 provides for
duration of the State Legislatures. The Superintendence, direction and control
of the elections to Parliament and to the Legislatures of every State vest in
the Election Commission under Article 324.
327 provides that Parliament may make provision with respect to all matters
relating to, or in connection with, elections to the Legislative Assembly of a
State and all other matters necessary for securing the due constitution of the
House of the Legislature. Conjoint reading of Article 327 of the Constitution
and Section 73 of the R.P. Act makes the position clear that the Legislative
Assembly had been constituted. No provision of the Constitution stipulates that
the dissolution can only be after the first meeting of the Legislature. Once by
operation of Section 73 of the R.P. Act the House or Assembly is deemed to be
constituted, there is no bar on its dissolution.
to the plea that there was no Legislative Assembly in existence as contended by
Mr. Viplav Sharma, appearing in person the same clearly overlooks Section 73 of
the R.P. Act. There is no provision providing differently in the Constitution.
There is no challenge to the validity of the Section 73 of the R.P. Act, which
is in no way repugnant by any provision to the Constitution. That being so, by
operation of Section 73 of the R.P. Act the Assembly was duly constituted. The
stand that the Governor was obliged to convene the Session for administering
oath to the members and for formation of a Cabinet thereafter has no relevance
and is also not backed by any constitutional mandate. There was no compulsion
on the Governor to convene a session or to install a Cabinet unless the
pre-requisites in that regard were fulfilled. The reports of the Governor
clearly indicated that it was not possible to convene a session for choosing a
Chief Minister or for formation of a Cabinet.
if hypothetically it is held that the dissolution notifications are
unsustainable, yet restoration of status quo ante is not in the present case
the proper relief. As noted supra, no stake was claimed by any person before
the Governor. The documents relied upon to show that a majority existed lack
authenticity and some of them even have the stamp of manipulation. The
elections as scheduled had reached on an advanced stage. Undisputedly, the
Election Commission had made elaborate arrangements. It would be inequitable to
put the clock back and direct restoration of stats quo ante.
Public Law 2005, some interesting write-ups are there which have relevance.
They read as follows:
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.
French welfare law, agreements relating to unemployment allowances are private
agreements signed by unions and employers' associations- but they enter into
force only if approved by the Minister for Social Affairs. They then become
compulsory for all. Several associations defending the rights of the unemployed
brought an action against ministerial decisions approving such agreements. Standing
was granted. The decisions were quashed on procedural grounds, i.e. the
composition of the committee which had to be consulted and the way the
consultation took place. The issues at stake related to the date at which this
annulment would enter into force and to its effects. The matter was an
extremely sensitive one, socially and politically; the scope and amount of
unemployment allowances. To say nothing would have led to the application of
the principle according to which nullity is retroactive. An annulled decision
is supposed never to have existed. It is therefore impossible to maintain its
effects for a certain time.
are the strict requirements of the principle of legality. On the other hand,
the court cannot disregard the practical consequences of its decision, not only
for the parties, but for a larger public, especially in such an area. These
consequences may affect not only the functioning of a public service but also
the rights of individuals. They may create a legal void, and social havoc.
the idea of allowing the court, when it annuls an administrative decision, to
include in its judgment specific orders as to whether and when the annulment
will produce effects and, if so, which persons might be in a special position.
Such a discretion has been used for a long time by both European courts. The
European Court of Human Right' judgment in Marckx v. Belgium (1979-80) 2 E.H.R.R. 330, is an apt
illustration. As for the ECJ, it construed broadly the second paragraph of Art.
231 EC (formerly Art.174) according to which: "In the case of a
regulation, however, the Court of Justice shall, if it considers this
necessary, state which of the effects of the regulation which it has declared
void shall be considered as definitive". This derogation to the ex tunc
effect has been applied in cases relating not only to regulations, but also to
preliminary rulings concerning interpretation (Case C-43/75 Defrenne v. Sabena
(1976 E.C.R. 455; Case C-61/79 Denkjavit Italiana (1980 E.C.R. 1205; Case
C-4/79 Societe Cooperative Providence agricole de la Champagne (1980 ECR 2823;
Case C-109/79 Maiseies de Beauce (1980 E.C.R. 2882; Case-145/79 Societe Roquette
Freres (1980 E.C.R. 2917), directives (Case C-295/90 European Parliament v.
Council (1992 E.C.R. I-4193) and decisions (Case C-22/96) European Parliament v
Council (1998 E.C.R. I-3231). The ECJ held that the use of such a power was
justified in order to take into account "imperious considerations of legal
certainty relating to all interests at stake, public and private". In
doing so, however, the Court's decisions could harm the rights of the very
petitioners who wanted the Court to arrive at the decision it took. Hence the
dissenting decisions of several national higher courts, such as the Italian Constitutional Court (April 21, 1989, Fragd) and the Conseil
d'Etat (June 28, 1985, Office national interprofessionnel
des cereales o Societe Maiseries de Beauce, concl. Genevois, RTDE, 1986, 145; July 26, 1985; Office national interprofessionnel
des cereales, p.233, concl. Genevois AJDA, 1985; June 13, 1986, Office national interprofessionnel des cereales, concl. Bonichot,
RTDE 1986, 533). This is why the ECJ took some precautions to protect the
rights of persons who had previously brought an action or an equivalent claim.
Some ECJ judgments led to the inclusion of special clauses into the EC Treaty,
as shown by the Maastricht Treaty Protocol 2 (the "Barber
Declaration") following the ECJ's judgment in Case C-262/88 Barber v.
Guardian Royal Exchange Assurance Group (1991 (1) Q.B. 344). This Protocol
limits the effects ratione temporis (before May 17, 1990) of Article 141 EC. The ECJ has
been explicit on the considerations it takes into account to use such powers.
They relate, on the whole, to legal certainty lato sensu, i.e. to the concrete
effects of its decision on existing legal situations, and the desirability of
avoiding the creation of a legal void. Many European constitutional courts have
a similar power.
d'Etat had never affirmed that it had such a faculty. It was not, however,
entirely unaware of the issue; in Vassilikiotis, June 26, 2001, p. 303 it
annulled a ministerial decision in so far as it did not state how the permit
necessary for guides in museums and historical monuments would be granted to persons
with diplomas of other EU Member States.
judgment added precise and compulsory prescriptions telling the Administration
exactly what it should do, even before revising the regulation.
an unlawful domestic regulation would have remained in force, perpetuating
discrimination contrary to EC law. It thus held that the Administration was
under an obligation to enact, after a reasonable delay, the rules applying to
the persons mentioned above. Meanwhile the decision forbade the Administration
to prevent EU nationals from guiding visits on the ground that they did not
possess French diplomas. It belonged to the competent authorities to take, on a
case-by-case basis, the appropriate decisions and to appreciate the value of
the foreign diplomas (see also July 27, 2001, Titran, P.411) In Association AC,
a case that lent itself to such a move, the Conseil d'Etat decided to innovate
and to give administrative courts new powers. The new principles affirmed may
be summed up as follows:
The principle is
that an annulled administrative decision is supposed never to have existed.
However, such a
retroactive effect may have manifestly excessive consequences in view of (a)
the previous effects of the annulled decision and of the situations thus
created and (b) the general interest which could make it desirable to maintain
its effects temporarily.
administrative courts are empowered to take specific decisions as to the
limitation of the effects, in time, of the annulment.
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.
They must take
of the retroactivity of the annulment for the public and private interests at stake
the effects of
such a limitation on the principle of legality and on the right to an effective
limitation should be exceptional.
The rights of
the persons who brought an action, before the court's judgment, against the
annulled decision must be preserved.
The court may
decide that all or part of the effects of the decision prior to its annulment
will be regarded as definitive, or that the annulment will come into force at a
later time as determined by the judgment.
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
effects of a third group of annulled decisions were declared to be definitive,
with the same reservation.
comments are in order on this important judgment. The influence of the ECJ's
case law and of its use of the ex nunc/ex tunc effect is evident. The judgment
is also an apt illustration of a renewal of the conception of the role of
administrative courts. It no longer stops when judgment is given.
and more attention is given to its effects, its practical consequences for all,
the way it must be implemented by the Administration and its repercussions on
the rights of individuals. Hence the attention given to the ways and means to
conciliate the two basic principles of legality and of legal certainty (securite
juridique). The latter is more and more seen as a pressing social need, to
borrow the vocabulary of the European Court of Human Rights. A strong
illustration is the recent case law of the Cour de cassation restricting the
scope not only of lois de validation but also of retroactive "interpretative
statutes", on the basis of Articles 6(1) and 13 ECHIR: see Cass.plen. Janaury
24, 2003, Mme X o Association Promotion des handicape's dans le Loiret, and
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.
last-prospective-remark: might the next step be the limitation, by the courts,
of the effects in time of a change in the case law?" To Sum up:
as scope of Article 361 granting immunity to the Governor is concerned, I am in
respectful agreement with the view expressed by Hon'ble the Chief Justice of
Proclamation under Article 356 is
open to judicial review, but to a very limited extent. Only when the power is
exercised mala fide or is based on wholly extraneous or irrelevant grounds, the
power of judicial review can be exercised.
of judicial review which are applicable when an administrative action is challenged,
cannot be applied stricto sensu.
The impugned Notifications do not
suffer from any constitutional invalidity. Had the Governor tried to stall
staking of claim regarding majority that would have fallen foul of the
Constitution and the notifications of dissolution would have been invalid. But,
the Governor recommended dissolution on the ground that the majority projected
had its foundation on unethical and corrupt means which had been and were being
adopted to cobble a majority, and such action is not constitutional. It may be
a wrong perception of the Governor. But it is his duty to prevent installation
of a Cabinet where the majority has been cobbled in the aforesaid manner.
in a given case be an erroneous approach, it may be a wrong perception, but it
is certainly not irrational or irrelevant or extraneous.
A Public Interest Litigation cannot
be entertained where the stand taken was contrary to the stand taken by those
who are affected by any action. In such a case the Public Interest Litigation
is not to be entertained. That is the case here.
Hypothetically even if it is said
that the dissolution notifications were unconstitutional, the natural
consequence is not restoration of status quo ante. The Court declaring the
dissolution notifications to be invalid can assess the ground realities and the
relevant factors and can mould the reliefs as the circumstances warrant. In the
present case restoration of the status quo ante would not have been the proper
relief even if the notifications were declared invalid.
The Assembly is constituted in terms
of Section 73 of the R.P. Act on the conditions indicated therein being
fulfilled and there is no provision in the Constitution which is in any manner
contrary or repugnant to the said provision. On the contrary, Article 327 of
the Constitution is the source of power for enactment of Section 73.
In terms of Article 361 Governor
enjoys complete immunity. Governor is not answerable to any Court for exercise
and performance of powers and duties of his office or for any act done or
purporting to be done by him in the exercise of those powers and duties.
However, such immunity does not take away power of the Court to examine
validity of the action including on the ground of mala fides.
It has become imperative and
necessary that right persons are chosen as Governors if the sanctity of the
post as the Head of the Executive of a State is to be maintained.
writ applications are accordingly dismissed but without any order as to costs.