U.N. R. Rao Vs. Smt. Indira Gandhi
[1971] INSC 82 (17 March 1971)
SIKRI, S.M. (CJ) SIKRI, S.M. (CJ) MITTER,
G.K.
HEGDE, K.S.
GROVER, A.N.
REDDY, P. JAGANMOHAN
CITATION: 1971 AIR 1002 1971 SCR 46 1971 SCC
(2) 63
CITATOR INFO:
R 1971 SC1551 (1) RF 1973 SC1461 (224) F 1974
SC2192 (33,36,47,132,134) C 1982 SC 149 (618,709,745) RF 1987 SC2106 (6)
ACT:
Constitution of India, 1950, Arts,. 74(1) and
75(3)--House of People dissolved--If Prime Minister ceases to hold office.
HEADNOTE:
The House of the People was dissolved by the
President of India on 27th December 1970. On the question whether the
respondent, who was the Prime Minister before the dissolution, ceased to hold
office thereafter,
HELD: There is nothing in the Constitution
and in particular in Art. 75(3) which renders the respondent functioning as
Prime Minister contrary to the Constitution.
The Indian Constitution establishes a
Parliamentary system of Government with a Cabinet, and not a Presidential form.
Article 75(3) brings into existence responsible
Government, that is, the Council of Ministers must enjoy the confidence of the
House of the People. In the context, it can only mean that Art. 75(3) applies
when the House of the People does not stand dissolved or prorogued, for, when
it is dissolved, the Council of Ministers cannot naturally enjoy the confidence
of the House. But such dissolution of the House does not require that the Prime
Minister and other ministers must resign, or cease to hold office or must be
dismissed by the President, because, Art. 74(1). is mandatory and the President
cannot exercise his executive power without the aid and advice of the Council
of Ministers, with the Prime Minister at the head. [51 B-C, DH] This view is
also in accordance with the conventions followed not only in the United Kingdom
but in the countries following a similar system of responsible government. [52
DI CIVIL APPELLATE JURISDICTION: Civil Appeal No. 196 of 1971.
Appeal from the judgment and order dated
January 21, and February 5, 1971 of the Madras High Court in Writ Petition No.
63 of 1971.
The appellant appeared in person.
Niren De, Attorney.-General, R. H. Dhebar,
Ram Panjwani, J. B. Dadachanji, 0. C. Mathur and Ravinder Narain, for the
respondent.
Niren De, Attorney General, Ram Panjwani, R.
H. Dhebar and S. P. Nayar, for the Union of India.
ORDER The appeal is dismissed. No order as to
costs. We will give our reasons later.
47 The Judgment of the Court was delivered by
Sikri, C. J,-This appeal by certificate is directed against the judgment of the
High Court of, Judgment Madras dismissing Writ Petition No. 63 of 1971 filed by
U. N. R.
Rao, appellant before us. In this petition
the appellant had prayed that a writ of qua warranto be issued to the
respondent, Smt. Indira Gandhi, and it be declared that the respondent has no
constitutional authority to the office of and to function as Prime Minister of
India.
In brief, the appellant contends that under
the Constitution as soon as the House of the People is dissolved under art.
85(2) of the Constitution the Council of
Ministers, i.e., the Prime Minister and other Ministers, cease to hold office.
According to him this follows plainly from the wording of art. 75(3), which
provides that "the Council of Ministers shall be collectively responsible
to the House of the People". How can the Council of Ministers be
responsible to the House of the People when it has been dissolved under art.
85(2) ? According to him no void in the carrying out of Government will be
created because the President can. exercise the Executive Power of the Union
either directly or through officers subordinate in accordance with the
Constitution as provided in art. 53(1) of the Constitution.
In constitutional matters it is advisable to
decide only those points which necessarily arise for determination on the facts
of the case. It seems to us that a very marrow point arises on the facts of the
present case. The House of the People was dissolved by the President on
27-12-1970.
The respondent was the Prime Minister before
the dissolution. Is: there anything in the Constitution, and in particular in
art. 75(3), which renders her carrying on as Prime Minister contrary to the
Constitution ? It was said that we must interpret Art. 75(3) according to its
own terms regardless of the conventions that prevail in the United Kingdom. If
the words of an article are clear, notwithstanding any relevant convention,
effect will no doubt be given to the words. But it must be remembered that we
are interpreting a Constitution and not :an Act of Parliament, a Constitution
which establishes a Parliamentary system of Government with, a Cabinet. In
trying to understand one may well keep in mind the conventions prevalent at the
time the Constitution was framed.
Speaking for the Court (Mukherjea, C. J.)
observed in Ram Jawaya Kapur v. State of Punjab(1).
"The limits within which the executive
Government can function under the Indian Constitution can be ascertained
without much difficulty by reference to the form (1) [1955] 2 S. C. R. 225,
236-37.
48 of the executive which our Constitution
has set up. Our Constitution, though federal in its structure, is modeled on
the British Parliamentary system where the executive is deemed to have the
primary responsibility for the formulation of governmental policy and its transmission
into law though the condition precedent to the exercise of this responsibility
is its retaining the confidence of the legislative branch of the State. The
executive function comprises both the determination of the policy as well as
carrying it into execution. This evidently includes the initiation of
legislation, the maintenance of order, the promotion of social and economic
welfare, the direction of foreign policy, in fact the carrying on or
supervision of the general administration of the State.
In India, as in, England, the executive has
to act subject to the control of the legislature; but in what way is this
control exercisable by the legislature ? Under article 53(1) of our
Constitution, the executive power of the Union is vested in the President but
under article 75 there is to be a Council of Ministers with the Prime Minister
at the head to aid and advise the President in the exercise of his functions.
The President has thus been made a formal or constitutional head of the
executive and the real executive powers are vested in the Ministers or the
Cabinet. The same provisions obtain in regard to the Government of States-, the
Governor or the Rajpramukh, as the case may be, occupies the position of the
head of the executive in the State but it is virtually the Council of Ministers
in each State that carries on the executive Government. In the Indian
Constitution, therefore, we have the same system of parliamentary executive as
in England and the Council of Ministers consisting, as it does, of the members
of the legislature is, like the British Cabinet, "a hyphen which joins, a
buckle which fastens the legislative part of the State to the executive
part". The Cabinet enjoying, as it does, a majority in the legislature
concentrates in itself the virtual control of both legislative and executive
functions; and as the Ministers constituting the Cabinet are presumably agreed
on fundamentals and act on the principle of collective responsibility, the most
important questions of policy are all formulated by them." In A. Sanjeevi
Naidu v. State of Madras (1) it was urged on behalf of the appellants in case
that, "the Parliament has conferred power under Section 68(C) of the
(Motor 1) A. I. R 1970 S.C.R 1102, 1106.
49 Vehicles Act, 1939) to a designated authority.
The power can be exercised only by that authority and by no one else.
The authority concerned in the present case
is the State Government. The Government could not have delegated its statutory
functions to anyone else. The Government means the Governor aided and advised
by his Ministers. Therefore the required opinion' should have been formed by
the Minister to whom the business had been allocated by 'the Rules'. It was
further urged that if the functions of the Government can be discharged by anyone
else then the doctrine of ministerial responsibility which is the very essence
of the cabinet form of Government disappears; such a situation is impermeable
under our Constitution." Speaking on behalf of the Court, Hegde J.,
repelled the contentions in the following words :
"We think that the above submissions
advanced on behalf of the appellants are without force and are based on a
misconception of the principles underlying our Constitution. Under our
Constitution, the Governor is essentially a constitutional head, the
administration of State is run by the Council of Ministers. But in the very
nature of things, it is impossible for the Council of Ministers to deal with
each and every matter that comes before the Government. In order to obviate
that difficulty the Constitution has authorized the Governor under sub article
3 of Article 166 to make rules for the more convenient transaction of business
of the Government of the State and for the allocation amongst its Ministers,
the business of the Government. All matters excepting those in which Governor
is required to act in his discretion have to be allocated to one or the other
of the Ministers on the advice of the Chief Minister. Apart from allocating
business among the Ministers, the Governor can also make rules on the advice of
his Council of Ministers for more convenient transaction of business. He can,
not only allocate the various subjects amongst the Ministers but may go further
and designate a particular official to discharge any particular function. But
this again he can do only on the advice of the Council of Ministers.
The Cabinet is responsible to the legislature
for every action taken in any of the Ministries. That is the essence of joint
responsibility." Let us now look at the relevant articles of the
Constitution in the context of which we must interpret art. 75(3) of the
Constitution.
Chapter I of Part V of the 50 Constitution
deal-, with the Executive. Article 52 provides that there shall be a President
of India and Art. 53(1) vests the executive power of the Union in the President
and provides that it shall be exercised by him either directly or through
officers subordinate to him in accordance with this Constitution. The last five
words are important inasmuch as they control the President's action under
Article 53(1). Any exercise of the executive power not in accordance with the
Constitution will be liable to be set aside. There is no doubt that the
President of India is a person who has to be elected in accordance with the
relevant provisions of the Constitution but even so he is bound by the
provisions of the Constitution'. Article 60 prescribes the oath or affirmation
which the President has to take. It reads :
"I, A. B., do swear in the name of
God/solemnly affirm that I will faithfully execute the office of President (or
discharge the functions of the President) of India and will to the best of my
ability preserve, protect and defend the Constitution and the law and that I
will devote myself to the service and well-being of the people of India".
Articles 74 and 75 deals with the Council of
Ministers.
They read thus :
"74. (1) There shall be a Council of
Ministers with the Prime Minister at the head to aid and advise the President
in the exercise of his functions.
(2) The question whether any, and if so what,
advice was tendered by Ministers to the President shall not be inquired into in
any court.
75. (1) The Prime Minister shall be appointed
by the President and the other Ministers shall be appointed, by the President
on the advice of the Prime Minister.
(2) The Ministers shall hold office during
the pleasure of the President.
(3) The Council of Ministers shall be
collectively responsible to the House of the People.
(4) Before a Minister enters upon his office,
the President shall administer to him the oaths of office and of secrecy
according to the forms set out for the purpose in the Third schedule.
(5) A Minister who for any period of six
consecutive months is not a member of either House of Parliament shall at the
expiration of that period cease to be a Minister.
51 (7) The salaries and allowances of
Ministers shall 'be such as Parliament may from time to time by law determine
and, until Parliament to determines, shall be as specified in the Second
Schedule".
It will be noticed that article 74(1) is
mandatory in form.
We are unable to agree with the appellant
that in the context the word "shall" should be read as
"may". Article 52 is mandatory. In other words 'there shall be a
President of India'. So is article 74(1). The Constituent Assembly did not
choose the Presidential system of Government. If we were to give effect to this
contention of the appellant we would be changing the whole concept of the
Executive. It would mean that the President need not have. a Prime Minister and
Ministers to aid and advise in the exercise of his functions. As there would be
no 'Council of Ministers' nobody y would be responsible to the House of the
People.
With the aid of advisers he would be able to
rule the country at least till he is impeached under Article, 61.
It seems to us that we must read the word
"shall" as meaning "shall' and not "may". If Article
74(1) is read in this manner the rest of the provisions dealing with the
Executive must be read in harmony with. Indeed they fall into place.
Under Article 75(1) the President appoints
the Prime Minister and appoints the other Ministers on the advice of the Prime
Minister, and under art. 75(2) they hold office during the pleasure of the
President. The President has not said that it is his pleasure that the
respondent shall not hold office.
Now comes the crucial clause three of Article
75. The appellant urges that the House of People having been dissolved this
clause cannot be complied with. According to him it follows from the provisions
of this clause that it was contemplated that on the dissolution of the House of
People the Prime Minister and the other ministers must resign or be dismissed
by the President and the President must carry on the Government as best as he
can with the aid of the Services. As we have shown above, Article 74(1) is
mandatory and, therefore the President cannot exercise 'the executive power
without the aid and advice of the Council of Ministers. We must then harmonize
the provisions of Article 75(3) with Article 74(1) and Article 75(2). Article
75(3) brings into existence what is usually called "Responsible
Government". In other words the Council of Ministers must enjoy the
confidence of the House of People. While the House of People is not dissolved
under Article 85(2)(b), Article 75(3) has full operation. But :when it is
dissolved the Council of Ministers cannot naturally enjoy the confidence of the
House of People. Nobody has said ;that the Council of Ministers does not enjoy
the confidence of 52 the House of People when it is prorogued. In the context,
therefore, this clause must be read as meaning that Article 75(3) only applies
when the House of People does not stand dissolved or prorogued. We are not
concerned with the case where dissolution of the House of People takes place
under Article 83(2) on the expiration of the period of five years prescribed
therein, for Parliament has provided for that contingency in S. 14 of the
Representation of Peoples Act, 1951.
On our interpretation other articles of the
Constitution also have full play, e.g. Article 77(3) which contemplates
allocation of business among Ministers, and Article 78 which prescribes certain
duties of Prime Minister.
We are grateful to the learned Attorney
General and the appellant for having supplied to us compilations containing
extracts from various books on Constitutional Law and extracts from the debates
in the Constituent Assembly. We need not burden this judgment with them. But
on, the whole we receive assurance from the learned authors and the speeches
that the view we have taken is the right one, and is in accordance with
conventions followed not only in the United Kingdom but in other countries
following a similar system of responsible Government.
In the result the appeal fails and is
dismissed, but there will be no order as to costs in this Court.
V.P.S. Appeal dismissed.
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