State of Rajasthan & Ors Vs.
Union of India [1977] INSC 145 (6 May 1977)
BEG, M. HAMEEDULLAH (CJ) BEG, M. HAMEEDULLAH
(CJ) CHANDRACHUD, Y.V.
BHAGWATI, P.N.
GOSWAMI, P.K.
GUPTA, A.C.
UNTWALIA, N.L.
FAZALALI, SYED MURTAZA
CITATION: 1977 AIR 1361 1978 SCR (1) 1 1977
SCC (3) 592
CITATOR INFO :
D 1978 SC 68 (38,63,143,150,158,196,198,201
RF 1978 SC 499 (14) RF 1979 SC 478 (76,124) RF 1980 SC 653 (11) RF 1980 SC1789
(104) R 1981 SC2138 (4) R 1982 SC 149 (60,618,981) O 1982 SC 710 (25,27) R 1984
SC1675 (10) D 1985 SC1416 (142) E&R 1987 SC 331 (35,36) RF 1992 SC2219 (87)
ACT:
Constitution of India, 1950, Articles 131,
256, 257-Advice by Home Minister, Union of India to Chief Minister of State
dated 18-4-1977 to recommend under Art. 163 to the Governor to dissolve
Legislative Assembly under Art. 174(2)(b).Nature of the advice, whether any
relief as prayed for in the suits and petitions can be granted.
Doctrine of Rough separation of powers-Nature
of-Duty of the court regarding questions involving policy matters and
constitutional issues-Constitution of India, 1950, Article 131.
President's satisfaction under Art.
356-Whether such a satisfaction can be based only on Governor's report-Power of
court to question such satisfaction-Second part of Art. 355 covers Proclamation
under Article 356-Direction by Union Government under Articles 256, 257 to the
State Government to recommend to the Governor to dissolve the State
Legislature, whether such a direction is unconstitutional, illegal and ultra
vires-Constitution of India, 1950, Articles 74, 163, 174, 255, 256, 257, 355
and 356(1)(a).
Words and phrases-"State" whether
means "State Government"Constitution of India, 1950, Article 367 read
with General Clauses Act,
1897. Constitution of India, 1950, Article
131-Whether powers of the Supreme Court to grant relief under Art. 131 are
restricted to "declaratory judgments".
Constitution of India, 1950, Articles 19(1)
(f), 31 and 32, 195 and 356-Rights of Members of Assemblies to draw their
salary under Art. 195-Nature of-Whether as a consequence of the threatened
dissolution of Legislative Assembly or the Proclamation under Art. 356(1)
dissolving States Assemblies the rights guaranteed to the
petitioners/Legislators are violated.
Injunction-Permanent/temporary
injunction-Order XXXIX C.P.C.
read with Order XLVII of the Supreme Court
Rules 1966Whether a proper relief in a suit challenging a proclamation under
Art. 356.
Constitution of India, 1950, Articles 95,
131, maintainability of a suit under Art. 131 and the writ petitions under
Article 32-Constitution of India, Art.
356(1) scope and ambit of the power of the
President.
HEADNOTE:
Under Article 74(1) of the Constitution
"there shall be a Council of Ministers to aid and advise the President in
the exercise of his functions". Under Article 163 of the Constitution
there shall be a Council of Ministers with the Chief Minister at the head to
aid and advise the Governor of a State in the exercise of his functions, except
insofar as by or under the Constitution required to exercise his functions or
any of them in his discretion. Both under Art.
74 and Art. 163 the question whether any, and
if so what, advice was tendered by the Council of Ministers to the
President/Governor shall not be inquired into in any court Under Article
174(2)(b), the Governor may from time to, time dissolve the Legislative
Assembly. Under Article 172(1) a Legislative Assembly of "a State, unless
sooner dissolved, shall continue for six years from the date appointed for its
meeting and no longer and the expiration of the said period of six years shall
operate as a dissolution of the Assembly.
Articles 256 & 257 enjoin that the
executive powers of the Union shall extend to the giving of such directions to
a State as may appear to the Government of India to be necessary for that
purpose. Under Art. 355, "it shall be the duty of the Union to ensure that
the Government of every State is carried on in accordance with the provisions
of the Constitution." Article 356 empowers the President to assume to
himself all or any of the functions of the Government of the State and all or
any of the powers 2 vested in or exercisable by the Governor or anybody or any
authority in the State other than the Legislature of the State, if on receipt
of a report from the Governor of a 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 the Constitution. Under sub-section (5) of
Art. 356 "notwithstanding anything in the Constitution, the satisfaction
of the President in clause (1) shall be final and conclusive and shall not be
questioned in any court on any ground.
The Lok Sabha in which the Congress(R) had an
overwhelming majority was dissolved on January 8, 1977 though under the
Constitution (Forty Second Amendment Act) it had another year to run out its
extended term. In the fresh elections held in March 1977 the ruling party lost
its majority and went out of power which it had exercised since independence.
On March 24, 1977, the, Janata Party which
had secured an overwhelming majority of votes of the electorate, formed the new
Government at the Centre. On the date that the Janata Government took office,
the Congress (R) was in power in various States including Bihar, Haryana,
Himachal Pradesh, Madhya Pradesh, Orissa, Punjab, Rajasthan, Uttar Pradesh and
West Bengal.
On April 18, 1977, the Union Home Minister
addressed a letter to the Chief. Ministers of these States "earnestly
commending" for their consideration that they may advise the Governors of
their respective States "to dissolve the State Assemblies in exercise of
the powers under Art. 174(2)(b) and seek a fresh mandate from the electorate.
This alone according to the Home Minister's letter would be "consistent
with constitutional precedents and democratic practices." In an interview
on April 22, 1977, in the "Spot Light Programme" of All India Radio,
Shri Shanti Bhushan, Minister of Law, Justice and Company Affairs said that
"a clear case had been made out for the dissolution of the Assemblies in
the nine congress-ruled states and holding of fresh elections" since
"a serious doubt has been cast on their enjoying the people's confidence,
their party having been rejected in the recent Lek Sabha elections." A
report of the said interview appeared in various newspapers including the
"Statesman" of the 23rd April. The correctness of the report is not
disputed.
The six plaintiff-States, namely, the State
of Rajasthan, Madhya Pradesh, Punjab, Bihar, Himachal Pradesh and Orissa filed
suits in this court praying for a declaration that the letter of the Home
Minister was illegal, and ultra vires of the Constitution and not binding on
the plaintiffs and prayed for an interim injunction restraining the Central
Government from resorting to Art. 356 of the Constitution.
A permanent injunction was also sought for by
the plaintiffs in order to restrain the Central Government permanently from
taking any step to dissolve the Assemblies until the fixed period of six years
was over. Some of the Members of the Legislative Assembly of Punjab had also
filed a writ petition complaining of violation of their fundamental tights and
prayed for similar injunctions.
The principal common submissions on behalf of
the plaintiffs as well as the petitioners were :Firstly, that the letter dated
18th April 1977 discloses the sole ground of an impending proclamation under
Article 356 of the Constitution to be followed by a dissolution of Legislative
Assembly of the State concerned and that such a proclamation, resulting
necessarily in the dismissal of the Ministries in the six States and the
dissolution of their Legislative Assemblies upon the grounds given in the
letter, is prima facie outside the purview of Art. 356 of the Constitution and
would be destructive of the federal structure.
Secondly, that, in any case, the condition
precedent to the dissolution of the State Assembly is a ratification by both
Houses of Parliament of the Presidential action under Art.
356 so that no dissolution at any rate of a
Legislative Assembly can 'take place without ascertaining the wishes of both
the Houses of Parliament.
3 Thirdly, that the grounds given, being
outside the constitutionally authorised purpose and objectives, the proposed
action on the face of it is mala fide and unconstitutional. 'Me respondents'
reply in defence are :Firstly, that on allegations made in the plaints no suit
could fall within the purview of Art. 131 of the Constitution which is meant
for grievances of States as such, against the Union Government and not those
relating to mere composition of State Governments and Legislatures without
involving constitutional or other legal rights of States as such.
Secondly, the questions which arise for
guaging the existence of a "situation", calling for action under
Article 356 are, by their very nature, non-justiciable and they are also made
non-justiciable expressly by Art. 356(5) of the Constitution so that, even if a
State could, as such, be said to be legally and properly interested in the
dispute between its Government and the Union Government, about the desirability
or need for any action by the Union Government under Article 356of the
Constitution, such a dispute is outside the sphere of justiciable matters. If
the final action or its grounds are non-justiciable, they could not be
indirectly assailed by challenging a process which may or may not actually
produce the apprehended result or action.
Thirdly,the letter of the Union Home Minister
and the speech of the Union Law Minister do not indicate that anything failing
outside the wide spectrum of Article 356 of the Constitution is being or will
be taken into account for taking, action under Art. 356. Hence, on matters
stated there, no cause of action could be said to have arisen.
Fourthly, mere intimation of some facts,
fully within the purview of Art. 356 of the Constitution, does not justify a
prohibition to act in future when the situation may be serious enough on the
strength of facts indicated and possibly others facts also, for action under
Art. 356 of the Constitution. The freedom of constitutionally authorised
executive action of the highest executive organs of the Union should not be
impeded by judicial interference except on grounds of clearest and gravest
possible character.
There was nothing beyond bare possibilities
before the court so that no anticipatory injunction or order could be granted.
Dismissing the suits as well as the petitions
the Court, HELD :
Per Beg, C.J.
(1) The choice between a dissolution and
re-election or a retention of the same membership of the Legislature or the
Government for a certain period could be matters of political expediency and
strategy under a democratic system.
Under our system. quest for political power
through formation of several political powers with different socioeconomic
policies and programmes and ideologies is legal. Hence, a mere attempt to get more
political power for a party as a means of pursuing the Programme of that party,
as opposed to that of other parties is not constitutionally prohibited or per
se illegal. [24 F-G] (2) One purpose of our Constitution and laws is certainly
to give electors a periodic opportunity of choosing their State's legislature
and, thereby, of determining the character of their State Governments also. It
is the object of every democratic constitution to give such opportunities.
Hence a policy devised to serve that end
could not be contrary to the basic structure or scheme of the Constitution. [24
B] (3) Article 356(1) of the Constitution calls for an assessment of "a
situation". In so far as Article 356(1) may embrance matters of political
and executive policy and expediency, Courts cannot interfere with these unless
and 4 until it is shown what constitutional provision the President 'is going
to contravene or has contravened on attempted grounds of action under Art.
356(1) for, while Art. 74(2), disables Courts from inquiring into the very
existence or nature or contents of ministerial advice to the President, Article
356(5) makes it impossible for Courts to question the President's satisfaction
'on any ground'.
Hence Courts can only determine the validity
of the action on whatever remains for them or what is admitted on behalf of the
President to be the grounds of President's satisfaction. [25 D, 26 E-F] (4) If
the Union Government thinks that the circumstances of the situation demand that
the State Governments must seek a fresh mandate to justify their moral rights
in the eyes of the people to continue to exercise power in the interests of
their electors, or else the discontent of the masses may have its repercussion
not only on the law and order situation, but will also affect legal
responsibilities or duties which the Union Government has towards a particular
State or towards Indian citizens in general, an of whom live in some State or
other, it cannot be said that resort to Art. 356 of the Constitution is not called
for. [25 E-F] (5) Questions of political wisdom or executive policy only could
not be subjected to judicial control. No doubt executive policy must also be
subordinated to constitutionally sanctioned purposes. It has its sphere and
limitations. But, so long as it operates within that sphere, its operations are
immune from judicial interference. This is also a part of the doctrine of a
rough separation of power under the supremacy of the Constitution.
[27 A-D] (6) The provisions dealing with the
Proclamation of emergency under Art. 352, which have to be grave and imminent
seem to be covered by the first art of the duty of the Union towards a State
mentioned in Article 355 but the second part of that duty mentioned-in Art.
355, seems to be of somewhat different and broader character. The second part
seems to cover all steps which are enough "to ensure" that the
Government of every State is carried, "in accordance with the provisions
of the Constitution". Its 'sweep seems quite wide. It is this part of the
duty of the Union towards each State which is sought to be covered by a
Proclamation tinder Art. 356. That Proclamation is not of a grave emergency. In
fact. the word "emergency" is not used there. It is a Proclamation
intended either to safeguard against the failure of the constitutional
machinery in a State or to repair the defects of a breakdown. It may be either
a preventive or a curative action. It is enough if the President which, in view
of the amended Art. 73(1) really means the Union Council of Ministers,
concludes that "the Government of the State cannot be carried out in
accordance with the provisions of the Constitution". On the other hand,
action under Art. 352 is, more properly, only defensive and protective action
to be taken to avert or meet a grave and immant danger. [30 C-F] (7) The
language of Art. 356 is so wide and loose that to crib and confine it within a
straight jacket will not be just interpreting or construing it but will be
constitution making legislation, which does not lie in the domain of the
Supreme Court. [31 C-D] H. H. Kesavananda Bharati Sripadagalavaru v. State of
Kerala, [1973] Supp. S.C.R. p. 1 @ 89, Smt. Indira Nehru Gandhi v. Rai Narain
[1976] 2 S.C.R. 347 @ 539; Har Sharan Varma, v. Chandra Bhan Gupta and Ors.,
A.I.R. 1962 All. 301 @ 307 referred to.
(8) A conspectus of the provisions of our
Constitution will indicate that, whatever appearance of a federal structure our
Constitution may have, its operations are certainly, judged both by the
contents of power which a number of its provisions carry with them and the use
that has been made of them, more unitary than federal. [33 F] Shamsher Singh v.
State of Punjab, [1975] 1 S.C.R. p. 814 referred to.
(9) In a sense, the Indian Union is federal.
But the extent of federalism in it is largely watered-down by the needs of
progress and development of 2 5 country which has to be nationally integrated,
politically and economically co-ordinated and socially,, intellectually and
spiritually uplifted. lit such a system, the States cannot stand in the way of
legitimate and comprehensively planned development of the country in the manner
directed by the Central Government. The question of legitimacy of particular
actions of the Central Government taking us in particular directions can often
be tested and determined only by the verdicts of the people at appropriate
times rather than by decisions of Courts. For this reason, they become,
properly speaking matters for political debates.
rather than for legal discussion. If the
special needs of our country to have political coherence, national integration,
and planned economic development of all parts of the country, so as to build a
welfare State where "Justice-Social, economic and political" are to
prevail and rapid strides are to be taken towards fulfilling the other noble
aspirations act out in the Preamble strong Central directions seem inevitable.
[24 C-E] (10) Article 256 of the Constitution covers cases where' the President
may want to give directions in exercise of the executive power of the Union to
a State Government in relation to a matter covered by an existing law made by
Parliament which applies to that State. But, Art. 257(1) imposes a wider
obligation upon a State to exercise its powers in such a way as not to impede
the exercise of executive power of the Union which, as would appear from Art.
73 of the Constitution, read with Art. 248 may cover even a subject on which
there is no existing law, but on which some legislation by Parliament
impossible. It could therefore, be argued that, although, the Constitution
itself does not Jay down specifically when the power of dissolution should be
exercised by the Government on the advice of a Council of Ministers in the
State, yet, if a direction on that matter was properly given by the Union
Government to a State Government, there is a duty to carry it out. The time for
the dissolution of a State Assembly is not covered by any specific provision of
the Constitution or any law made on the subject. It is possible,, however, for
the Union Government, in exercise of its residuary executive power to consider
it a fit subject for the issue of an appropriate direction when it considers
that the political situation in the country is such that a fresh election is
necessary in the interest of political stability or to establish the confidence
of the people in the Government of a State. [36 B-E] (11) Undoubtedly, the
subject is one on which 'appropriate and healthy conventions should develop so
that the power under Art. 356(1) is neither exercised capriciously or
arbitrarily nor fails to be exercised when a political situation really calls
for it. If the views of the Union Government and the State Government differ on
the subject, there is no reason why the Union Government should not aid the
development of what it considers to be a healthy practice or convention by
appropriate advice or direction, and, even to exercise its powers under Art.
356(1) for this purpose when it considers the observance of such a directive to
be so essential that the constitutional machinery cannot function as it was
meant to do unless it interferes. The Supreme Court cannot, at any rate,
interdict such use of powers under Art 356(1 ) unless and until resort to the
provision, in a particular situation, is shown to be so grossly perverse and
unreasonable as to constitute patent misuse of this provision or an excess of
power on admitted facts. It is not for courts to formulate, and, much less, to
enforce a convention, however necessary or just and proper a convention to
regulate the exercise of such an executive power may be. That is a matter
entirely within the executive field of operations. [36 E-H] (12) All that the
Supreme Court can do is to consider whether an action Proposed on such a matter
on certain grounds, would fall under Art. 356(1) of the Constitution if the
Union Government and the State Governments differ on the question whether, in a
particular situation, the dissolution of the State Assembly should take place
or not. The most that one could say is that a 'dissolution against the wishes
of the majority in a State Assembly is a grave and serious matter. Perhaps it
could be observed that it should be resorted to under Art. 356(1) of the
Constitution only when "a critical situation' has arisen. It is not always
necessary that the mere defeat of a State Government in a State Assembly must
necessarily create a situation in which a dissolution of the State Assembly is
obligatory. If an alternate Government is 6 capable of being formed which
commands the majority in the State Assembly it may be unnecessary. The position
may, however, be very different, when a State Government has a majority in the
State Assembly behind it, but the question is whether the party in the majority
in the State Assembly forming the State Government for the time being having
been totally and emphatically rejected by the people, a critical
situation" has arisen or is bound to arise unless the "political
sovereign" is given an opportunity of giving a fresh verdict. A decision
on such a question undoubtedly lies in the Executive realm. It involves a
correct estimate of a "situation". [41 B-E] (13) Article 174(2) (b)of
the Constitution expressly vests the power of resolving the legislative
assembly in the Government even if that had to be on the advice of the Council
of Ministers in the State, but the power to give such advice would
automatically be taken over by the Union Government, for the purposes of
dissolution of State Assembly, when the President assumes Governmental powers
by a Proclamation under Art. 356(1). A dissolution by the President after the
Proclamation would be as good as a dissolution by the Government of a State
whose powers are taken over. [37 C-E] (14) Indeed, the usual practice is that
the President acts under Art. 356(1) of the Constitution only on the Governor's
report. But, the use of the words "or otherwise" (In Article 356)
show that Presidential satisfaction could be based on other materials as well.
This feature of our Constitution indicates most strikingly the extent to which
inroads have been made by it on the federal principles of Government. [38 A-C]
Shamsher Singh v. State of Punjab, [1975] 1 S.C.R. p. 875, referred to.
(15) As the question of the proper time for a
dissolution of a State Assembly is not a matter extraneous to Art. 356(1) of
the Constitution, the most that can be said is that questions raised do not go
beyond sufficiency of grounds for resorting to Art. 356(1) of the Constitution.
[41 H, 42 A] K. K. Aboo v. Union of India, A.I.R. 1965 Kerala 229; Rao Birender,
Singh v. The Union of India A.I.R. 1968 Punjab 441; In re. A. Sreeramulu'
A.I.R. 1974-A.P. 106, Bijenananda Patnaik and. Ors. v. President of India and
Ors., A.I.R. 1974 Orissa 52 referred to.
(16) Attempts to secure political victories
by appeals to the electorate, are parts of the recognised rules of a democratic
system of Government permitting contests between rival parties so as to achieve
certain other objectives. If such a contest with the desire for achieving a
political victory in order to enforce certain programmes, believed by the
members of a party to be beneficial for the people in a State, as a method of
achieving the objects set out in the Preamble, are not_only legal and
permissible under the Constitution, but, obviously constitute the only possible
and legal means of attaining the power to enforce policies believed to be
correct by various parties, according to their own lights, it could not
possibly be asserted that procuring the dissolution of a State Legislative
Assembly with the object of gaining a political victory is, in itself, an
extraneous object which could not fall at all under Art. 356 of the
Constitution. [42 F-F] Attorney General v. Dr. Keyser's Royal Hotel, 1920 AC
508;
Liversidge v. Anderson 1942 AC 206; Addl.
Dist.
Magistrate, Jabalpur v. Shivakant Shukla,
1976 Supp. SCR 173, Bhagat Singh & Ors. v. The Kine Emperor, 50 I.A 169
King Emperor v. Benorilal Sharma 72 I.A. 57, Padfield and Ors. v. Minister Of
Agriculture, Fisheries and Food and Ors., 1968 A.C. 997 @ 1006 (not applicable).
(17) In all the grounds of action taken under
Art, 356(1) are disclosed the public by the Union Government and its own
disclosure of grounds reveals that a constitutionally or legally prohibited or
extraneous or a collateral purpose is sought to be achieved by an impending or
actual proclamation under Art. 356 of the Constitution, the Supreme Court will
not shirk its duty to act in the manner in which the law may then oblige it to
act. But, when allegation made in the plains and in the petitions before the
court relate, in substance, only to the sufficiency of the grounds of action
under Art. 356(1) of the Constitution and go no further, the Court cannot
proceed further with the consideration of the plaints under Art. 131 or the
petitions under Art. 32 of the Constitution.
[46 E-G] 7 (18) Proclamations under Article
356(1) are bound to be placed under Art. 356(3) of the Constitution before each
House of Parliament. However, there is not only nothing in Art. 356 to make a
consideration by either House of Parliament a condition precedent to the
exercise of the power of dissolution of a State Legislative Assembly by the
President under Art. 356 (1), but, on the other hand, Article 356(3) makes it
clear that the only effect of even a failure or refusal by either House of
Parliament to approve the Proclamation is that it ceases to operate after two
months. Obviously, this means that it operates for at least two months. Hence,
whatever is done in these two months cannot be held to be illegal for that reason
alone. [47 A-B] (19) It is true that the exercise of power under Art. 356 of
the Constitution is subject to Parliamentary control. This means that it is
subject to such control as the two Houses out of which the Council of States
really represents the State Assembly may be able to exercise during the period
for which the Proclamation lasts. But, the existence of such Parliamentary
control, as a safeguard cannot possibly nullify the legality of what is done in
the period during which the Proclamation lasts. [47 C-D] (20) Although Art
356(1)(a) of the Constitution imposes a bar against the assumption by
the.President of the legislative powers of the State Legislature, which could
only be transferred to Parliament, its provisions, read with Art. 357 of the
Constitution, do not operate as an absolute bar on any expenditure which could
be legally incurred by the President or under the Presidential authority in
accordance with pre-existing State laws authorising expenditure by other
authorities or bodies whose powers can be taken by the President under Art.
356(1)(a). In any case, the provisions of Art. 357 could not possibly be used
as a bar against a dissolution of the State Assembly by a Presidential
Proclamation. Nor can they be used to introduce as a condition precedent to the
Presidential Proclamation under Art. 356(1)(a), involving, as it usually does,
the dissolution of the State Assembly, an approval of both or either of the
two. Houses of Parliament. [49 A-C] (21) Even if there be some grounds for making
a distinction between a State's interest and rights and those of its Government
or its members, the Court need not take too restrictive or stringent a view of
the States' right to sue for any rights, actual or fancied, which the State
Government chooses to take up on behalf of the State concerned in a suit under
Art. 131. [50 F-G] State of Bihar v. Union of India and Anr., [1970] 2 S.C.R. 522;
explained.
United Provinces v. The Governor General in
Council, 1939 FCR 124; referred to.
Per, Chandrachud J.
(1) The use of the phrase "Government of
India" in Article 131(a) and (b) does not mean that one party to the
dispute has to be the Government of the day at the Centre.
"Government of India" means
"Union of India" The true construction of Article 131(a) true in
substance and true pragmatically is that a dispute must arise between the Union
of India and a State. [53 E-G] (2) The dispute between the Union of India and
the State cannot but be a dispute which arises out of the difference between
the Government in office at the Centre and the Government in office in the
State. But, there is a further prerequisite which narrows down the ambit of the
class of disputes which fall within Article 131. That requirement is that the
dispute must involve a question whether of law or fact, on which the existence
or extent of a legal right depends. it is this qualification which contains
the, true guide for determining whether a particular dispute is comprehended
within Art. 131. Mere wrangles between Governments have no place in the scheme
of that Article.
The purpose of Art. 131 is to afford a forum
for the resolution of disputes which depend for their decision on the existence
or extent of a legal right. It is only when a legal, not a mere political,
issue arises touching upon the existence or extent of a legal right that
Article 131 is attracted. [54 A-C] 8 (3) When the Plaintiff-States by their
suits directly or specifically question the constitutional right and authority
of the Union Government to issue a directive to the State Governments
commending that the Chief Ministers should tender a certain advice to their
Governors and also question the constitutional right of the Union Government to
dissolve the State Assemblies on the grounds mentioned in the Home Minister's
letter to the Chief Ministers, a legal, not a political, issue arising out of
the existence and extent of a legal right squarely arises and the suits cannot
be thrown out as falling outside the purview of Art. 131. [54 D-E] (4) It is
not necessary for attracting the provisions of Art. 131 that the plaintiff must
assert a legal right in itself. Art. 131 contains no such restriction and it is
sufficient in order that its provisions may apply that the plaintiff questions
the legal or constitutional right asserted by the defendant, be it the
Government of India or any other State. Such a challenge brings the suit within
the terms of Article 131 for, the question for the decision of the Court is not
whether this or that particular Legislative Assembly is entitled to continue in
office, but whether the Government of India, which asserts the constitutional
right to dissolve the Assembly on the grounds alleged possesses any such right.
[54 F-G] (5) The States, have the locus and the interest to. contest and seek an
adjudication of the claim set up by the Union Government. The bond of
constitutional obligation between the Government of India and the States
sustains that locus.
[54 H-55A] (6) The expression "legal
right" which occurs in Art. 131 has to be understood in its proper
perspective. The legal right of the States consists in their immunity, in the
sense of freedom from the power of the Union Government. The), are entitled
under Art. 131, to assert that right either by contending in the absolute that
the Centre has no power to dissolve the Legislative Assemblies or with the
qualification that such a power cannot be exercised on the grounds stated. [55
A-D] State of Bihar v. Union of India, [1970] 2 SCR 522; held inapplicable.
(7) By the Proclamation under Art. 356(1) the
Legislative Assemblies of nine States were dissolved and the President's rule
was imposed on those States. As a result the writ petitioners ceased to be
Members of the Legislative Assemblies and as a result of their ceasing to be
such members the right to salary which they could only draw if they were
members of the Assemblies came to an end.
Though the petitioners could not be denied
relief on the ground that it was not intended by issuing the Proclamation to
deprive them of their salary' the writ petitions were liable to be dismissed on
the ground that the injury to the alleged Fundamental Rights of the petitioners
was too indirect and remote. [56 G-H] (8) Whether or not, the Proclamation
issued under Art. 356 of the Constitution is approved as enjoined in Art.
356(3), it has an assured life for a period of two months and its Validity
during that period cannot be whittled down by reading into Art. 356 a condition
precedent in the nature of parliamentary approval which, plainly, is not to be
found therein. [57 D] [His Lordship considered it unnecessary to consider the
implications of clause (5) of Art. 356, introduced by the 38th amendment and
applied "Non-liquet" agreeing with the decision in Stephen Kalang
Ningkan v. Government of Malaysia, L.R. (1970) A.C. 379, 392] Per Bhagwati J.
(On behalf of Gupta J. & himself) (1) The satisfaction of the President is
a subjective one and cannot be decided by reference to objective tests.
It is deliberately and advisedly subjective
because the matter in respect to which he is to be satisfied is ' of such a
nature that its decision must necessarily be left to the executive branch of
Government. It cannot by its very nature be a fit subject-matter of judicial
determination and hence it is left to the subjective satisfaction of the
Central Government which is best in a position to decide it.
The Court cannot, in the circumstances, go
into the question of correctness or adequacy of the facts 9 and circumstances
on which the satisfaction of the Central Government is based. That would be a
dangerous exercise for the court, both because it is not a fit instrument for
determining a question of this kind and also because the court would thereby
usurp the function of a Central Government and in doing so enter the "Political
thicket" which it must avoid if it is to retain its legitimacy with the
people. But, if the satisfaction is mala fide or is based on wholly extraneous
and irrelevant grounds, the court would have jurisdiction to examine it,
because in that case there would be no satisfaction of the President in
regard-to the matter on which he is required to be satisfied. The satisfaction
of the President is a condition precedent to the exercise of power under Art.
356(1) and if it can be shown that there is no satisfaction of the President at
all, the exercise of the power would be constitutionally invalid.
Of course, by reason of clause 5 of Art. 356
the satisfaction of the President is final and conclusive and cannot be
assailed on any ground, but this immunity from attack cannot apply where the
challenge is not that the satisfaction is improper or unjustified; but that
there is no satisfaction at &H. In such a case, it is not the satisfaction
arrived at by the President which. is challenged, but the existence of
satisfaction itself. In most cases it would be difficult, if not impossible, to
challenge the exercise of power under Art. 356 clause (1), even on this limited
ground, because the facts and circumstances on which the satisfaction is based
would not be known, but where it is possible, to know them from declarations
made the existence of satisfaction can always be challenged on the ground that
it is mala fide or based on wholly extraneous or irrelevant ground. [ 81 G, H,
82 A-H, 83 A-B] Nintgkan v. Govt. of Malaysia, 1970 A.C. 379, King Emperor v.
Benoarilal Sarma, 72 I.A. 57 referred to.
(2) The defeat of the ruling party at the Lok
Sabha election cannot by itself without anything more support the inference
that the Government of the State cannot be carried on in accordance with the
provisions of the Constitution.
To dissolve the Legislative Assembly solely
on such ground would be an indirect exercise of the right of recall of all the
members by the President without there being any provision in the Constitution
for recall even by the electorate. Where there has been a total rout of
candidates belonging to the ruling party and in some of the plaintiffStates,
the ruling party has not been able to, secure even a single seat, it is proof
of complete alienation between the Government and the people. It is axiomatic
that no Government can function efficiently and effectively in accordance with
the Constitution in a democratic set up unless it enjoys the goodwill and
support of the people.
Where there is a wall of estrangement which
divides the Government from the people and there is resentment and antipathy in
the hearts of the people against the Government, it is not at all unlikely that
it may lead to instability and even the administration may be paralysed.
The consent of the people is the basis of
democratic form of Government and when that is withdrawn so entirely and
unequivocally as to leave no room for doubt about the intensity of public
feeling against the ruling party, the moral authority of the Government would
be seriously undermined and a situation may arise where the people may cease to
give respect and obedience to Governmental authority and even conflict and
confrontation may develop between the Government and the people leading to
collapse of administration. These are all consequences which cannot be said to
be unlikely to arise from such an unusual State of affairs and they may make it
impossible for the Government of the State to be carried on in accordance with
the provisions of the Constitution. Whether the situation is fraught with such
consequences or not is entirely a matter of political judgment for the
executive branch of Government. But, it cannot be said that such consequences
can never ensue and that the ground that on account of total and massive defeat
of the ruling party in the Lok Sabha elections, the Legislative Assembly of the
State has ceased to reflect the will of the people and there is complete
alienation between the Legislative Assembly and the people is wholly extraneous
or irrelevant to the purpose of Art.
356, Clause (1).
On the facts and circumstances of the present
case this ground is clearly a relevant ground having reasonable nexus with the
matter in regard to which the President is required to be satisfied before taking
action under Article 356, Clause (1). [85 A-H] 10 (3) There are two limitations
in regard to the nature of the suit which can be entertained by the Supreme
Court under Art. 131. One is in regard to parties and the other is in regard to
the subject matter. It does not contemplate any private party being arrayed as
a disputant on. one side or the other. A dispute in which such a private party
is involved must be brought before a court, other than the Supreme Court,
having jurisdiction over the matter.
Moreover, the dispute must be one, relating
to a legal right and not a dispute on political plane not based on legal right.
A legal right which is the subject of dispute need not arise in the context of
the Constitution and the federalism it sets up. So also the power of the
Supreme Court to grant relief in a suit under Article 131 is not restricted
only to "declaratory Judgment". The Supreme Court would have power to
give whatever reliefs are necessary for enforcement of the legal right claimed
in the suit, if such legal right is established.
[64 E-H, 65 A-D, 66 C] State of Bihar v.
Union of India & Anr., (1970) 2 S.C.R.
522, Explained doubted;
Shamsher Singh v. State of Punjab, [1975] 1
S.C.R. 814 referred to.
(4) Unconstitutional exercise of power by the
President under Article 356 clause (1) may injuriously affect rights of several
persons. It may infringe not only the individual rights of the members of the
Legislative Assembly but also the constitutional right of the State to insist
that the federal basis of the political structure set up by the Constitution
shall not be violated by an unconstitutional assault under Art. 356 clause (1).
The present suits seek to enforce legal right of the States arising under the
Constitution and the suits could not be thrown out in limine as being outside
the scope and ambit of Article 131. [68 GH, 69 A] (5) The threatened
dissolution of the Legislative Assembly did not involve any infraction of the
Fundamental right guaranteed to the petitioners under Article 19(1)(f) and 31.
[63 H, 64 A] (6) It is only where there is
direct invasion of a fundamental right or imminent danger of such invasion that
a petitioner can seek relief under Art 32. The impact on the fundamental right
must be direct and immediate and not indirect or remote.
In the instant case, merely because by the
dissolution of the Legislative Assembly, the petitioners would cease to be
members and that would incidentally result in their losing their salary, it
cannot be said that the dissolution would infringe their right to property. The
petitioners, as such, are not entitled to maintain the Writ Petition under Art.
32. [63 D, E, 64 A] (7) The directive of Home
Minister, Government of India, was nothing but an advice or suggestion to the
Chief Minister of each plaintiff state to recommend to the Government
dissolution of the Legislative Assembly of the concerned State. It has been
wrongly described as a "directive." It had no constitutional
authority behind it.
It is always open to the Home Minister of the
Central Government to give advice or suggestion to the Chief Minister of a
State and the Chief Minister may accept or reject such advice or suggestion as
he thinks fit. 'Me advice or suggestion has no binding effect on the Chief
Minister and no legal consequences flow from it. Hence it could not be said
that 'directive' issued by the Home Minister was unconstitutional, illegal or
ultra vires.
There was also no question of giving effect
to the "directive" and no injunction could, therefore, be granted restraining
it,; implementation. The "directive" if not accepted and carried out
could certainly be a precursor to action under Art. 356 Clause (1) and,
therefore, might be regarded as indicative of a threat, but standing by itself
it could not give rise to any cause of action in the State to sue for
declaration or injunction. [77 H, 78 A-B] (8) It is true that if a question
brought before a court is purely a political question not involving
determination of any legal or constitutional right or obligation, the Court
would not entertain it, since the Court is concerned only 11 with adjudication
of legal rights and liabilities. But, merely because a question has a political
complexion that by itself is no ground for the Court to shrink from performing
its duty under the Constitution, if it raises an issue for constitutional
determination. A Constitution is a matter of purest politics and a structure of
power. [79 G-H] (9) Merely because a question has a political colour the court
cannot fold its hand in despair and declare "judicial hands off." So
long as a question arises whether an authority under the Constitution has acted
within the limits of its power or exceeded it, it can certainly be decided by
the Court. Indeed it would be its constitutional obligation to do so. It is
necessary to assert in the clearest terms particularly in the context of recent
history that the Constitution is suprema lex, the paramount law of the land and
there is no department or branch of Government above or beyond it. [80 F-H]
Baker v. Can 369 U.S. 186; Nixon v. Herndon 273 U.S. 536;
Brown V. Board of Education 347 U.S. 483;
Gomillion v. Lightfoot 364 U.S. 339, Colegrore v. Green 328 U.S. 549 quoted
with approval.
Per Goswami J.
(1) Although the expression used in Art. 131
is "any dispute", the width of the expression is limited by the words
that follow in respect of the nature of dispute that can be entertained by the
Supreme Court in its original jurisdiction. It is only a dispute which involves
any question of law or fact on which the existence or extent of a legal right
of the contending party depends that can be subject-matter of a suit under Art.
131. The dispute should be in respect of legal rights and not disputes of
political character. Art 131 refers to the parties that may be arrayed in the
litigation as well as to the subject-matter of the dispute. [86 F-G] State of
Bihar v. Union of India, [1970] 2 S.C.R. 522 referred to.
(2) Article 131 speaks of a legal right. That
legal right must be that of the State. The dispute about a legal right, its
existence or extent, must be capable of agitation between the Government of
India and the States. The character of the dispute within the scope of Article
131 that emerges is with regard to a legal right which States must be able to claim
against the Government. Where the Home Minister, Government of India, is asking
the Chief Ministers of the Government of the States to advise the Governors to
dissolve the Legislative Assemblies, and the Chief Ministers decline to accept
the advice, it is not a dispute between the State on the one hand and the
Government of India on the other hand. It is a real dispute between the
Government of the State and the Government of India. It is no doubt a question
of life and death for the State Government but not so for the State as a legal
entity. Even after the dissolution of the Assembly, the State will continue to
have a Government for the time being as provided for in the Constitution, in
such a contingency. The subject-matter of the dispute does not Pertain to legal
rights of the State concerned to satisfy the requirements of Article 131 of the
Constitution. [87 G, 88 H, 89 A-B, 90 C] (3) Whether there is a case for
permanent injunction or other appropriate writ in these matters are not called
for in view of the fact that the suits and writ petitions are not maintainable.
[92 C-D] (Concurring with Bhagwati and A. C. Gupta, JJ.)
HELD FURTHER: (4) There is no violation of
the Fundamental rights guaranteed to the petitioners under Articles 19(1)(f)
and 31 of the Constitution as a consequence of the threatened dissolution of
the Legislative Assembly. The Writ Petitions are, therefore, not maintainable
and are liable for rejection. [90 C-D] King Emperor v. Benorilal Sarma and Ors.
72 I.A. 57 @ 64;
Bhagat Singh & Ors. v. The King Emperor
58 IA 169; Shamsher Singh v. State of Punjab, [1975] 1 S.C.R. p. 814 referred
to.
2-722SCI/77 12 Per Untwalia. J.
(1) Assuming, that the writ applications
filed by some of the Members of the Punjab Legislators under Art. 32 of the
Constitution of India axe maintainable, the petitioners do not make out a case
for issue of any kind of writ direction or order in the present case. [92 G]
(2) The suits as instituted under Art. 131, in the instant case, are not
maintainable. The dispute of the kind raised in the suits does not involve any
question whether of law or fact on which the existence or extent of any legal
right of the States concerned depends. The facts as disclosed are definitely
and exclusively within the prohibited area into which it is neither permissible
for the Courts, to enter nor should they ever take upon themselves the
hazardous task of entering into such an area. [92 H, 93 A, 95 D-F, 97 D] Bhagat
Singh and Ors. v. TheKing Emperor 58 IA 169; King Emperor v. Benori Lal Sarma
and Ors. 72 IA 57; Lakhi Narayan Das v. The Province of Bihar etc. 1949 F.C.R.
693; Mls. S.
K. G. Sugar Ltd. v. State of Bihar and Ors.,
[1975] 1 S.C.R.
312 relied on.
Stephen Kalang Ningkan v. Govt. of Malaysia
[1970] A.C. 379 referred to. Per Fazal Ali J.
(1) A dispute clearly postulates that there
must be opposing claims which are sought to be put forward by one party and
resisted by the other. One of the essential ingredients of Article 131 is that
the dispute must involve a legal right. based on law or fact. If the Central
Government chooses to advise the President to issue a Proclamation, the
President has got no option but to issue the Proclamation. This manifestly
shows that the Central Government has a legal right to approach the President
to issue a Proclamation for dissolution of an Assembly as a part of the
essential duties which a Council of Ministers have to perform while aiding and
advising the President.
The State Governments, however, do not
possess any such right at all. There is no provision in the Constitution which
enjoins that the State Government should be consulted or their concurrence
should be obtained before the Council of Ministers submit their advice to the
President regarding a matter pertaining to the State so far as the dissolution
of an assembly is concerned. The right of the State Governments to exist
depends on the provisions of the Constitution which is subject to Art. 356. If
the President decides to accept the advice of the Council of Ministers of the
Central Government and issue a proclamation dissolving the Assemblies, the
State Governments have no right object to the constitutional mandate contained
in Art. 356.
[103 B, F-H, 104 A-B] (2) The mere fact that
letters were sent to the State Governments containing gratuitous advice could
not create any dispute, if one does not exist before nor would such a course of
conduct clothe the State Government with a legal right to call for a
determination under Article 131. If the State Governments do not possess such a
legal, right or for that matter any right at all, then they cannot put forward
any claim before a court for a declaration or an injunction.
Unless there is an existing dispute involving
a legal right between the parties,, the forum provided by Art. 131 cannot be
availed of by any party. Having regard to the facts and circumstances of the
present case it has not been established that there was any dispute involving
the legal right between the Government of India and the State Governments and
therefore, one of the essential ingredients of Art. 131 not having been
fulfilled, the suits are not maintainable on this ground alone. [104 C-D, 105
B-C] United Provinces v. The Governor General in Council (1939) F.C.R. 124, 136
followed.
(3) The right of the petitioners as members
of the Legislative Assembly of Punjab is not a Fundamental right as envisaged
in Part III of the Constitution. At the most, the right to receive allowance as
members of the Assembly is merely legal right consequent upon their election as
members of the Assembly. The right of the petitioners is only a limited and
inchoate right in as much as it subsists only so long as the Assembly runs its
usual course of six years.
The right may also cease to exist, if the
Assembly is dissolved by the 13 President by issuing a Proclamation under Art.
356. The right therefore, subsists only SO long as these two contingencies do
not _ occur. The Constitution also does not guarantee any right or allowances
to the Members of the Assembly which are given to them by. local Acts or
Ruler,.
It was not a right which flows, from the
Constitution., Thus, there being no infraction of any Fundamental right,.
the petitioners could not be allowed to take
recourse to Article 32. [107 F-H; 108 G-H] H. M. Maharajadhiraja Madhay Rao
Jivaji Rao Scindia Bahadur and Ors., v. Union of India and Ors, [1971] 3 S.C.R.
9, distinguished.
(4) The letter does not amount to a directive
as contemplated by Art. 256 and 257 and could not be binding on the Chief
Ministers as it pertains purely to tile States concerned, namely, giving of the
advice to the Governors for dissolution of the Assemblies. The Central
Government can not interfere with this executive power of the State Government
by giving directions under Article 256 or Art.
257 of the Constitution because the
dissolution of the Assembly by the Governor was purely a matter concerning the
State and did not fall within the four corners of either Art. 256 or 257. [111
A-F] (His Lordship refrained from expressing any opinion regarding the theory
of the basic structure of the Constitution as the question according to his
Lordship did not actually arise for decision in this case.) (5) Clause (5) of
Art. 356 gives the order passed by the President under Art. 356 complete
immunity from judicial scrutiny. As such the Courts cannot go into the
sufficiency or adequacy of the materials on the basis of which the Council of
Ministers of the Central Government could give any advice to the President.
[116 C-D & 120 G] Bhagat Singh & Ors. v. The Kinq Emperor LR 58 I.A.
169, 172.
Laknt Narayan Das v. Province of Bihar, 1949
F.C.R. 693, 699; M/s S. K. G. Sugar Ltd. v. State of Bihar and Ors.
[1975] 1 S.C.R. 312 applied.
In re. Sreeramulu A.I.R. 1974 A.P. 106,
S.R.K. Manumantha Rao v. State of A.P. (1975) 2 AWR.277 approved.
Colegrove v. Green (1925) 328 U.S. 549
referred to.
King v. Benoari Lal Sarma, L.R. 72 IA 57, 64
explained.
Padfield v. Minister of Agriculture,
Fisheries and Food L.R.
1968 A.C. 997, 1007 Quoted with Approval.
(6) If the opinion of the Central Government
was based on extraneous or irrelevant materials or it was guided by purely
personal considerations or ulterior motives, the Courts will always interfere
and hold such action to be mala fide and strike it down. [119 B] Dr. A. K.
Shaihar and Ors. v. Vice Chancellor, Benaras University, [1961] 3 S.C.R. 386;
followed.
Observation :
As the reasons given by the Council of
Ministers in tendering their advice to the President cannot be inquired into by
the Courts, it is hoped that the Central Government in taking momentous
decisions having far reaching consequence on the working of the Constitution,
will art with great care and circumspection and with some amount of objectivity
so as to consider the pros and cons and the various shades and features of the
problems before them in a coot and collected manner. The guiding principles in
such cases should be the welfare of the people at large and the intention to
strengthen and preserve the Constitution. and that this matter will receive the
serious attention of the Government. The stamp of finality given by Cl. (5) of
Art.
356 of the Constitution does not imply a free
licence to the Central Government to give any advice to the President and get
an order passed on reasons, which are wholly irrelevant or extraneous or which
have absolutely no nexus with the passing of the Order. To this extent the
judicial review remains. [121 B-D] 14
HELD FURTHER: (dissenting from the majority)
(7) The import and purport of Art. 131 is to decide disputes between one state
and another or between the Government of India and one or more States. The
founding fathers of the Constitution have used the words "State' in Art.
131 both deliberately and advisedly so as to contemplate the State as a
constituent unit of the Union along with its territory and permanent
institutions. The question as to the personnel who run these institutions is
only unrelatable to the existence of a dispute between a State and the
Government of India. It is only when there is a complete abolition.of any of
the permanent institution of a State that a real dispute may arise. A mere
temporary dissolution of an assembly under Art. 356 does not amount to
abolition of a State Assembly because after such dissolution, under the
provisions of the Constitution, elections are bound to follow and a new
legislature would evidently come into existence after the voters have elected
the candidates.
[107 B-D] (8) On a true and proper
construction of Art. 131 of the Constitution it may be said that dispute like
the present one is totally outside the scope of Article 131 of the
Constitution. Therefore, the State Governments who have raised the dispute are
not covered by the word 'State' appearing in Article 131 and, therefore, the
suits are not maintainable on this ground also. [107 E]
ORIGINAL JURISDICTION : Original Suit Nos. 1
to 6 of 1977.
(Under Article 131 of the Constitution of
India.) Niren De,S. K. Tewari, Adv. Genl. Rajasthan, S. M. Jain, for the
Plaintiff in Suit No. 1.
Niren De, Ram Panjwani and I. N. Shroff, for
the plaintiff in Suit No. 2 H. R. Gokhale, Ram Panjwani, Vijay Panjwani, O. P.
Sharma, S. K. Bagga and Mrs. S. Bagga, for the plaintiff in Suit No. 3.
Niren De, D. P. Singh, S. C. Agarwal and U.
P. Singh, for the plaintiff in Suit No. 4.
Madan Bhatia, for the plaintiff in Suit No.
5.
G. Rath, Adv. Genl, Orissa, Niren De, R. K.
Mehta, for plaintiff in Suit No. 6.
Soli. J. Sorabjee, Additional Solicitor
General (in O. S.
Nos. 1-3/77), B. Datta, (in Suit Nos. 1-3/77)
and R. N.
Sachthey, for the defendant/respondents in
all the matters.
M. K. Garg, S. C. Agarwal and Y. J. Francis,
for the petitioners in the Writ Petitions.
J. P. Goyal, S. K. Sinha, B. B. Singh and A.
K.
Srivastava, for the
applicant/interveners-Girdhari Lal Bhargva in O. S. No. 1/77.
J. P. Goyal, Sharad Manohar and C. J. Sahu,
for the applicant interveners Chowdhary Devi Lal in Writ Petitions.
The following Judgments of the Court were
delivered BEG. C. J. Original Suits Nos. 1 to 6 of 1977, before us now have
been filed on behalf of the States of Rajasthan, Madhya Pradesh, Punjab, Bihar,
Himachal Pradesh, and Orissa against the Union 15 of India under, Article 131
of the Constitution of India.
There are also before us three writ
Petitions, Nos. 67 to 69 of 1977, by three members of the Legislative Assembly
of the State of Punjab against tile Union of India and Shri Charan Singh, the
Home Minister in the Government of India, and Shri Zail Singh, Chief Minister
of Punjab. The six suits and the, three Writ Petitions raise certain common
questions of law and fact. They were, therefore, permitted to be argued
together. We have already dismissed the suits and petitions after hearing them
at length and now propose to state our reasons for doing so as stated in our
order of 29th April 1977. Before dealing with, the. questions of fact and law I
will indicate the nature of the reliefs, sought by each plaintiff under Article
131 and the grievance of each petitioner under Article 32 of the Constitution.
The State of Rajasthan asked for a
declaration that what it described as a "directive" contained in the
letter dated 18th April, 1977, issued by Shri Charan Singh, the Union Home
Minister, to the Chief Minister of the State' is "unconstitutional,
illegal and ultra vires the Constitution and also a declaration that the
plaintiff State is "not constitutionally or legally obliged to comply with
or to give effect to the directive contained in the said letter.
The State of Madhya Pradesh seeks the
declaration that "the direction /order dated 18th April, 1977, of the
defendant through its Home Minister is ultra vires the Constitution".
The State of Punjab asks for a declaration of
what it describes as "direction/order" as "ultra vires" the
Constitution.
The State of Bihar calls the letter a
"directive' and asks for the declaration that it is "unconstitutional
and void".
it also prays for a declaration that a
refusal by the Chief Minister of Bihar to comply with it "cannot be made
the basis for the issue of proclamation under Article, 356, of the
Constitution". 'It also seeks a declaration that Article 356 of the
Constitution "cannot be invoked for the sole purpose of dissolving the
State Legislative Assembly and holding fresh elections for the said Assembly
after the defeat of the majority partyin the said Assembly in the elections for
the Lok Sabha".
The State of Himachal Pradesh prays for eight
declarations :
firstly, that "the Council of Ministers
of the State is not liable to resign and the Legislative Assembly of the
plaintiff is not liable to be dissolved on the ground that the Congress Party,
which holds a majority in the Legislative Assembly, had lost in the Lok Sabha
elections and the Janata Party has come into power at the centre";
secondly, that "the Executive ,of the Defendant
is not entitled to encroach upon the sole prerogative of the Council of
Ministers as to the nature of the advice which the 'latter thinks fit to render
to the Governor"; thirdly, that "the provisions ,of Article 356 of
the Constitution are not liable to be invoked by the President merely because
the Political party which has been returned to power in the Lok Sabha elections
happens to be different from the party which holds majority in the Legislative
Assembly of the plaintiff and which might have lost heavily in the' said Lok
Sabha elections"; fourthly, that "the Legislative, Assembly of the
plaintiff is not liable to 16 be dissolved before the expiry of the term under
the Constitution because the views of the electorate, have an undergone a
change as stated in the letter. of the defendant's Home Minister dated 18th
April, 1977"; fifthly, that "'the circumstances mentioned in the
letter do not constitute a threat to law and order, and, in, any case,such a
threat to law and order cannot form any constitutional basis for dissolution of
the Legislative Assembly of the plaintiff"; sixthly, that "reasons
and circumstances stated in the letter addressed by the defendant to the
plaintiff's Chief Minister and the,resultant threatened action under Article 356
of the Constitution are Wholly unconstitutional and mala fide and that a
proclamation issued on. the facts and circumstances of the present case, would
be utterly void"; seventhly that the "condition precedent and
prescribed in Article 356(1) of the Constitution, is non-existent";
eighthly, that "the Legislature of the plaintiff cannot be dissolved until
and unless any proclamation issued under Article 356(1) of the Constitution, is
ratified by both Houses of Parliament as envisaged by Article 356 (3) of the
Constitution The State of Orissa asked 'for a declaration that the
"directive" contained in, the letter of 18th April, 1977, is
"Unconstitutional, illegal and ultra vires the Constitution" and also
that the plaintiff State is "not constitutionally or legally obliged to
comply with or to give effect to the directive contained in the said
letter".
In addition, each of the 'plaintiffs in the
six suits asks for a permanent as well as an interim injunction in slightly
differing terms but the object of all these, injunctions sought is abundantly
clear and common.
The State of Rajasthan has sought a permanent
injunction "restraining the defendant from giving effect to the directive
contained in the said letter in any Manner". It also asks for permanent
injunction restraining the defendant resorting to Article 356 of the
Constitution of India to dissolve the Legislative, Assembly of the State of
Rajasthan and from taking any steps for holding fresh elections to the State
Assembly'before March, 1978." "Perpetual" injunctions are sought
by the State of Madhya Pradesh against the defendant Union of India to restrain
its Government "from enforcing directions contained in the letter and,/or
dissolving the Legislature of the State".
The State of Punjab prays for "a perpetual
injunction to restrain the defendant from enforcing the directions contained
it,, the statement dated 18th April 1977 and in the letter dated 18th April
1977 to the Chief Minister of the plaintiff State and restraining the defendant
from dissolving the Legislative Assembly of the plaintiff State or imposing
Presidential Rule under Article 356 before March 1978".
The State of Bihar asks for an injunction
against issue by the defendant Union of a Proclamation under Article 356 of the
Constitution "for the purpose of dissolving the Bihar State Assembly and
holding fresh elections for the State Assembly." 17 The State of Himachal
Pradesh seeks a permanent injunction for restraining the defendant from issuing
any Proclamation under Article 356(1) of the Constitution" except in a
situation contemplated by the provisions and another to restrain the Union
Government from, dissolving the legislative assembly of the State "until
and unless any Proclamation issued under Art. 356 of the Constitution, is
ratified by both the Houses of Parliament". In other words, a prohibitory
order, in the nature of a Writ of "Quo Usquo" (until condition
precedent is fulfilled) is sought.
The State of' Orissa prays for "a
permanent injunction" restraining the defendants from giving effect to the
"directive" contained in the said letter "in any manner"
and, another "permanent injunction restraining the defendants from taking
recourse to Article 56 of the Constitution of India to dissolve the Legislative
Assembly of the State of Orissa and, from taking any steps foe holding fresh
elections to the State Assembly before March 1980". It may be mentioned
that the elections to the Legislative Assembly of the State of Orissa took
place in 1974.
Each of the six States have also asked for
interim injunctions so that the reliefs prayed foil in the suits may not become
in fructuous.
The three petitioners in the Writ Petitions
from Punjab are Members of the Legislative Assembly of the State of Punjab they
assert that there is a threat to their, fundamental right to property in the
shape of a right to receive their "salaries" as Member of the
Legislative Assembly as a result of an impending dissolution. They submit that
such an impending threat is enough, to enable them to invoke the jurisdiction
of this Court under Article 32 of the Constitution.
It is obvious that the cause of action set up
by the plaintiffs in each suit as well as by the petitioners under Article 32
of the Constitution is said to be furnished by the letter of Shri Charan Singh,
the Home Minister in the Union Government, and a statement said to have been
made by Shri Shanti Bhushan, the Law Minister in the Union Government. These,
according to the Plaintiffs under Article 131 as well as petitioners under
Article 32, provide sufficient grounds for inferring that the Legislative
Assembly of each of the States involved will be dissolved, after a Proclamation
under Article 356 if what the letter of Shri Charan Singh describes as
"advice" is not carried out by the Chief Minister of each of the six
states.
The principal common submissions on behalf of
the plaintiffs as well as the petitioners are :
Firstly,, that the letter of. Shri Charan
Singh dated 18th April, 1977, discloses the sole ground of an impending
Proclamation under Art. 356 of the Constitution to be followed by a dissolution
of the ]Legislative Assembly of the State concerned and that such a
proclamation, resulting necessarily in the dismissal of the Ministries in the
six States and the dissolution of their Legislative Assemblies upon the grounds
given in the letter, is prima facie to outside the purview of Article 356 of
the Constitution.
18 Secondly, that, in any case, the condition
precedent to the dissolution of the State Legislative Assemblies is a
ratification by both Houses of Parliament of the Presidential action under
Article 356 so that on dissolution, at any rate, of a Legislative Assembly can
take place without ascertaining the wishes of both the Houses of Parliament.
3 Thirdly, that the grounds given being
outside the constitutionally authorised purposes and objectives make the
proposed action, on the face of it, mala fide and unconstitutional. Our
attention was also drawn to certain assertions in the plaints and petitions for
advancing the pleas of "malice in fact"' and "malice in
law".
The replies on behalf of the Union of India
are Firstly, that on allegations made in the plaints no suit before us would
fall within the purview of Art. 131 of the Constitution which is meant for
grievances of States, as such,. against the Union Government, and not those
relating to mere composition of State Governments and Legislatures without
involving constitutional or other legal rights of States as such.
Secondly, the questions which arise for
gauging the existence of a "situation", calling for action under
Article 356 are, by their very nature, inherently non-jisticiable, and they
have also been made non justiciable expressly by Article 356(5) of the
Constitution so that, even if a State could, as such, be said to be legally and
properly interested in the dispute between its Government and the Union
Government about the desirability or need for any action by the Union
Government under Article 356 of the Constitution, such, a dispute is outside
the sphere of justiciable matters. If the final action or its grounds are non justiciable,
they could not be indirectly assailed, by challenging a process which may or
may not actually produce the apprehended result or action.
Thirdly, the letter of the Union Home
Minister and the speech of the Union Law Minister do not indicate that anything
falling outside the wide spectrum of Article 356 of the Constitutions being or
will be taken into, account for taking action under Article 356. Hence, on
matters stated there, no cause of action could be said to have arisen.
Fourthly , mere intimation of some facts,
fully within the purview of Article 356 of the Constitution, does not justify a
prohibition to act in future when the situation may by serious enough, on the
strength of facts indicated and possibly, other facts also, for action under
Article.356 of the Constitution. In other words, the submission was that it
could not possibly be predicated now whether there were or not other facts or
what other possible facts, which may affect the situation, may arise in future.
It was submitted that the freedom of constitutionally authorised executive
action of the highest executive organs of the Union should not be, impeded by
judicial interference except on grounds of clearest and gravest possible
character. Just now, there was nothing beyond bare possibilities before the
Court so that no anticipatory Injunction or Order could be granted.
19 The first ground of objection on behalf of
the Union is confined to the suits. But, the remaining three grounds of
objection are common to the suits as well as the Writ Petitions.
On behalf of Union of India notices were
accepted and preliminary objections, mentioned above, were taken to the
maintainability of the suits and the petitions on the allegations made therein.
We, therefore proceeded to hear arguments on the preliminary objections. without
requiring defendants or respondents to file written statements or replies or
framing issues formally. I propose to examine the allegations made in the
plaints and in the petitions so as to determine whether assertions made there,
on questions of fact, are sufficient to disclose any cause of action necessary
to maintain the suits or the petitions for reliefs asked for.
As indicated above, the letter of Shri Charan
Singh the Home Minister in the Union Government, to the Chief Minister of each
State provides the primary source of the grievance of the plaintiffs and
petitioners. One of these identically phrased letters (the one to the Chief
Minister of Rajasthan) may be reproduced here. It runs as follows:"D. O.
No. 355/MS/T/77 HOME MINISTER INDIA New Delhi, April 18, 1977.
Dear Shri Joshi, We have given our earnest
and serious consideration to the most unprecedented political situation arising
out of the virtual rejection, in the recent Lok Sabha elections, of candidates
belonging to the ruling party in various States.
The resultant climate of uncertainty is
causing grave concern to us. We have reasons to believe that this has created a
sense of diffidence at different levels of Administration. People at large do
not any longer appreciate the propriety of continuance in power of a party
which has been unmistakably rejected by the electorate. The climate of
uncertainty, diffidence and disrespect has already given rise to serious
threats, to law and order.
2. Eminent constitutional experts have long
been of the opinion :that when a Legislature no longer reflects the wishes or
views of the electorate and when there are reasons to believe 'that the
Legislature and the electorate are at variance, dissolution, with a view to
obtaining a fresh mandate from the electorate would be most appropriate. In the
circumstances prevailing in your State, a fresh appeal to the political
sovereign would not only be permissible, but also, necessary and ,obligatory,
20
3. I would, therefore, earnestly commend for
your consideration that you may advise pour Governor to, dissolve the State
Assembly in exercise of powers under Article 174(2)(b) and seek a fresh mandate
from the electorate.
This alone would, in our considered view, be
consistent with constitutional precedents and democratic practices.
4. I would be grateful if you would kindly
let me know by the 23rd what you propose to do.
With regards, Yours sincerely, Sd/(Charan Singh)
Shri Harideo Joshi, Chief Minister of Rajasthan, Jaipur".
To substantiate the allegation that the
letter, constituted a "threat" of action under Article 356 of the
Constitution to dismiss the Government, to dissolve the Legislative Assembly of
each plaintiff State and to imposer the President's rule upon it, corroboration
was sought from :a report of a talk of Shri Shanti Bhushan, the Minister for
Law, Justice and Company Affairs, on the All India Radio, which appeared in the
Statesman of 23rd April 1977.
Although, reports in newspapers do not
constitute admissible evidence of their truth, yet, I reproduce the extract
which was either attached to or its substance reproduced in the, plaints, only
to test whether, even assuming that its contents were to be proved, by
admissible evidence, to be given in due course, all the allegations will, taken
together, constitute something actionable. The report said :
"Advice to Nine States a Constitutional
duty, says Shanti Bhushan.
Mr. Shanti Bhushan, Union Law Minister, said
on Friday night that a clear case had been made out for dissolution of the
Assemblies in nine Congress-ruled States and holding of fresh elections,
reports Samachar.
In an interview in the, Spot-light programme
of All India Radio he said that the most important basic feature of the
Constitution was democracy, which meant that a Government should function with
the broad consent of the people and only so long as it enjoyed their
confidence. If State Governments chose to govern the people after having lost
the confidence of the people, they would be undemocratic Governments, he said.
Under Article 355, a duty had been cast on
the Union Government to ensure that State Governments were carried on in
accordance with the Constitution.
21 The Home Minister, Mr. Charan Singh, had
appealed to the Chief Ministers of the nine States to advise their Governors to
recommend to the President dissolution of the State Assemblies.-This was
because a serious doubt had been cast on their enjoying the people's confidence,
their party having been rejected in the recent Lok Sabha elections the Law
Minister said.
EXERCISE OF POWER Mr. Shanti Bhushan was
asked whether the Centre would not be failing in its duty if it did not
exercise its power at this crucial juncture to test the legitimacy of a State
Government.
He-replied that after all whenever the power
was conferred by the Constitution. it was not done simply for the sake of
conferring it.
Obviously the Constitution contemplated the
circumstances under which that power should be exercised. When those
circumstances arose it was obligatory on the part of the Centre to exercise
that power.
Mr. Shanti Bhushan said he failed to see why
the State Governments objected to going to the people to seek their mandate.
"If we recognise the real sovereignty and supremacy of the people, there
cannot be any possible objection". If someone claimed a divine right to
rule whether the people wanted him or not, the in of course, there could be an
objection to go to the people.
PREMATURE END Explaining the Constitutional
provisions relating to premature dissolution of State.
Assemblies, Mr. Shanti Bhushan said two
articles deal with this matter. Article 172 provided for the normal term which
was earlier five years. But this had been extended to six years by the
Constitution 42nd Amendment Act.
Then Article 174 gave the Governor the power
to dissolve the Legislative Assembly from time to time even during the normal
period of five or six years. Normally this power was to be exercised with the
aid and advice of the Council of Ministers.
He was asked whether it was permissible for
the President to resort to Article 356 if the Council of Ministers failed to
aid and, advise the Governor to dissolve the Assembly under Article 174.
Mr. Shanti Bhushan explained that under
Article 355 a duty had been, cast on the Union Government to ensure that the
Governments in States were carried on in accordance with the Constitution. The
most important provision in the Constitution. "rather the most important
basic feature of the Constitution" was democracy which meant that a 22
Government should function with the broad consent of the people and only so
long as it enjoyed the confidence of the people.
CONTINUED CONFIDENCE Mr. Shanti Bhushan said
that the mere fact that at one time the Governments in the States enjoyed the
confidence of the people did not give them the right to govern unless they
continued to enjoy that confidence. If a situation arose in which a serious
doubt was cast upon the Government enjoying the continued confidence of the
people, then the provision for premature dissolution of the Assembly
immediately came into operation.
The provision not merely gives the power but
it casts a duty because this power is coupled with duty, namely, the Assembly
must be dissolved immediately and the Government must go to the people to see
whether it has continued confidence of the people to govern.
Even after having lost the confidence of the
people, if the Government chose to govern people, it would be undemocratic.
This would not be in accordance with the provisions of the Constitution.
This was precisely the philosophy behind the
wide powers given to the President under Articles 355 and 356. Obviously some
authority had to be given the power to ensure that the functionaries under the
Constitution were working in accordance with the Constitution.
As there were a number of States, obviously
no single State could be given this power.
Therefore, this power was entrusted to the
Union Government to see that the State Governments were acting in accordance
with the Constitution, which meant in accordance with democratic principles and
conventions.
NOT WHOLLY IMMORAL Answering another
question, Mr. Shanti Bhusban did not agree, that the whole of the Constitution
42nd Amendment Act was immoral.
But there were, serious objections to that
Act on the ground of ethics. When this amendment was rushed through Parliament,
the five years term of the members was over. Their term had really expired and
they did not have the continued mandate to enact such an important Act as the
42nd Amendment. The results of the Lok Sabha elections had also shown that the
people had not really given them the mandate to enact the amendment.
The other objection to the 42nd Amendment was
that during the Emergency important leaders of the opposition parties were in
jail. They could not express their views.
23 Mr. Shanti Bhushan said that the 42nd
Amendment had been enacted. As the Ministers had taken an oath to abide by the
Constitution, they could not ignore the provisions of the 42nd Amendment so
long as it remained. With the result it was not possible to, have elections, in
those States where the State Governments had not lost the mandate of the people
as was, reflected in the Lok Sabha elections".
I have set out the two basic sources of
complaint in the plaints and the petitions in order to consider whether,
assuming such statements had 'been made by the two very responsible and
important Ministers of the Union Government, they could sustain suits for
injunctions under Article 131 of the Constitution or writ petitions by Members,
of a Legislative Assembly to be dissolved.
So far as the letter of Shri Charan Singh is
concerned, it certainly does not contain even a reference to Article 356 of the
Constitution. Nevertheless, the speech of Shri Shanti Bhushan, assuming that it
was correctly reported, does mention Articles 355 and 356 of the Constitution
and expounds a view of one of the basic purposes of the Constitution the
observance of which could, in the opinion of the Law Minister, be secured by,',
resort to Art. 356 of the Constitution. The speech does express the view of the
Law Minister that there was a duty cast upon the Union Government by Article
355 of the Constitution to secure a conformity between the current opinion of
the, electorate and the composition of the legislatures in the different States
where the Governments in power today reflected the opinions of the majority of
electors in each State prevalent only at a time when the last election to the
State Legislative Assembly was held. The question whether these State
Governments retain the confidence of the electorate or not at present could
only be answered decisively by the electors themselves. That was the exclusive
right and privilege of the electors under a democratic constitutional scheme
and the law. According to the Law Minister, the elected representatives cannot
set up a right to continue in power now, despite an overwhelmingly adverse
verdict of the electorate against the party to which members of these
Government belong. In his opinion, to do so would be contrary to the basic
norms of democracy underlying our Constitution.
If what was assumed to be proposed to be
done, under the threat" of a constitutionally prescribed mode of executive
action, could, in, no circumstances, be done under Article 356, we may be able
to check a misuse or excess of constitutional power provided judicial control
over all purported exercise of power of issuing proclamations, under Article
256, is not either impliedly or expressly barred even if a proposed action is
plainly ultra vires' But, if the views of the two Union Ministers state the
constitutional position correctly, no question of in "abuse" or
"misuse of powers' for a collateral purpose or a "detournement de
Pouvoir" or a fraud upon the Constitution" or "malice in face'
or "malice in law" (terms denoting different shades, of culpability
and types of excess, of power), can arise on. the allegations of threatened
action in the cases before us, which really amount only to this;
The Union Government proposes to act under
Article 356 of the Constitution to give electors 24 in the various States a
fresh chance of showing whether they continue to have confidence in the State
Governments concerned and their policies despite the evidence to the contrary
provided by the very recent Lok Sabha elections.
One purpose of our Constitution and laws is
certainly to give electors a periodic opportunity of choosing their State's
legislature and, thereby, of determining the character of their State's
Government also. It is the object of every democratic constitution to give such
opportunities. Hence, a policy devised to serve that and could not be contrary
to the basic structure or scheme of the Constitution. The question whether they
should have that opportunity now or later may be a question of political
expediency or executive policy. Can it be a question of legal right also unless
there is a prohibition against the dissolution of a legislative assembly before
a certain period has expired ? If there had been a constitutional prohibition,
so that the proposed action of the Union Government could have contravened that
constitutional interdict, we would; have been obliged to, interfere, but, can
we do so when there is no constitutional provision which gives the legislature
of a State the right to continue undissolved despite certain supervening
circumstances which may, according to, one view, make its dissolution necessary
? It may have been possible for this Court to act if facts and the
circumstances mentioned to support proposed action were so completely outside
the purview of Art. 356 or so clearly in conflict with a constitutional
provision that a question of excess of power could have apparently arisen. If,
for example, an authoritative statement, (on behalf of a Union,Government, was
issued that a dissolution is proposed only because the Chief Minister or the
whole Council of Ministers of a State belongs to a particular caste or creed,
it could be urged that the proposed action would contravene the fundamental
rights of Indian citizens of equality before the law and absence of
discrimination on such a ground.
There is, however, no such allegation or its
particulars in the plaints before us which may be capable of giving rise to the
inference that any such constitutionally prohibited action is intended by the
Union Government.
The choice between a dissolution and
re-election or a retention of the same memberships of the legislature or the
Government for a certain period could be matters of political expediency and
strategy under a democratic system. Under our system, quest of political power,
through formation of several political parties, with different socioeconomic
policies and programmes and ideologies, is legal. Hence it cannot be said that
a mere attempt to get more political power for a party, as a means of pursuing
the programme of that party, as, opposed to that of other parties, is
constitutionally prohibited or per se illegal.
There may be moral or even political
objections to, such courses in-certain circumstances. It may be urged that
States should be permitted to function undisturbed by any directions or advise
by the Union Government despite their differences with it on matters of
socioeconomic or political policy on complexion. Rights 25 were asserted, on
behalf of State legislators, as though they were legal rights to continue. as
legislators untill the expiry of the; constitutionally fixed spans of lives of
their legislatures, barring cases of earlier dissolution.
We are only concerned here with legal rights
to dissolve and legal obstacles to such dissolution.
It could be argued, with considerable force,
on political and moral grounds, that electors should be given a fresh
opportunity of pronouncing their verdict upon the policies and programmes of
the Governments in the States when very convincing proof of wide, divergence
between their views and those of their Governments has become available. The
Law Minister's view is that, where there is an overwhelmingly large electoral
verdict in a State against the party to which its Government belongs, the
situation not only justifies but makes resort to a fresh election or an appeal
to the political sovereign imperative. This I think, is largely a political and
moral issue. We are only concerned with its relationship to constitutional
provisions. If its impact on the minds and feelings of electors or those
officers who have to carry on the day to, day administration is such that it
will frustrate the very objects of a Government under the Constitution or make
it impossible for the Government in a State to function as it ought to under
the Constitution, it may come to the conclusion that action under Article 356
of the Constitution is called for. We cannot forget that article 356(1) calls
for an assessment of a "situation". We cannot anticipate decisions or
interdict possible actions in situations which may or may not arise due to all
kinds of factors-economic, social, moral and political.
If the Union Government thinks that the
circumstances of the situation demand that the, State Governments must seek a
fresh mandate to justify their moral rights in the eyes of the people to
continue to exercise power in the interests of their electors, or else the
discontent of the masses may have its repercussion not only on the law and
order situation but will also affect legal responsibilities or duties which the
Union Government has towards a particular State or towards Indian citizens in
general, all of whom live in some State or other, can we say that resort to
Article 356 of the Constitution is not called for ? I think that it is
impossible to substitute our judgment for that of the Union Government on such
a matter.
Even if it is possible to see a federal
structure behind the setting up, of separate executive, legislative, and
judicial organs in, the State and to urge, as it has been urged before us, that
so long as the State Governments and their legislatures are not shown to have
committed a dereliction of the ire-constitutional duties or violations of any
constitutional provisions, they ought not to be interfered with by the Union
Government, it is also apparent, both from the mechanism provided by Article
356 of our Constitution, as well as the manner in which it has been used on
numerous occasions in the past, since the inception of our Constitution, that
the Union Government is capable of enforcing its own views on such matters
against those of the State Government as to how the State Governments should
function and who should bold the reins of power in the States so as to enable
the Constitution to work in the manner the Union Government wants 26 it to do
in a situation such as the one now before us.
Article 131 of the Constitution was,
certainly not meant to enable us to sit as a Court of appeal on such a dispute
between the Union Government and a State Government. And, our Constitution is
not an inflexible instrument incapable of meeting the needs of such a
situation.
It may be that, under our Constitution, there
is too great a scope for struggle merely for seats of power so that the grand
purposes, enshrined in the Preamble to our Constitution and the correct
governmental policies needed by the mass of our people to give reality to their
dreams tend to be neglected in scrambles for political power. The issue before
us, however, is not whether one party or another has failed in the very
objectives and purposes for which people give unto themselves Constitutions
such as ours. It is not for us to decide whether a party which has had its
opportunities in the past has adequately met the objects of lodging political
and legal power in its hands, or, whether those who now wield power at the
Centre will do so more wisely, more honestly, or more, effectively, from the
point of view of the interests of the masses of our people or public good.
These are questions for the people themselves to answer.
I think that the two Union Ministers have
stated certain grounds for inferring that the time has come to give the people
the political sovereign a chance to pronounce its verdict on the fates of State
Governments and legislatures in the nine States also in a manner which is
constitutionally not open to objection. In so far as article 356 (1) may
embrace matters of political and executive policy and expediency courts cannot
interfere with these unless and until' it is shown what constitutional
provision the President is going to contravene of has contravened on admitted
grounds of action under Article 356 (1) for, while Article 74(2) disables
Courts from inquiring into the very existence or nature or contents of
ministerial advice to the President, Article 356(5) makes it impossible for
Courts to question the President's satisfaction "on any ground".
Hence, Court$, can only determine the
validity of the action on whatever may remain for them to consider on what are
admitted, on behalf of the President, to be grounds of Presidential
satisfaction. Learned counsel' for the plaintiffs and petitioners, when
confronted with Article 356 (5), said they would challenge its validity as a
provision violating, the basic structure of the Constitution. We, however,
heard objections to the maintainability of suits and petitions even apart from
the specific bar in Article 356(5). And, I propose to deal principally with
those other objections.
This Court has never abandoned its
constitutional function as the final judge of constitutionality of all acts
purported to be done under the authority of the Constitution. It has not
refused to determine questions either of fact or of law so long as it has found
itself possessed' of power to do it and the cause of justice to be capable of
being vindicated by its actions. But, it cannot assume unto itself powers the
Constitution lodges elsewhere or undertake tasks entrusted by the Constitution
to other departments of State which may be better equipped to perform them. The
scrupulously discharged duties of all' guardians of the Constitution include
the duty not to transgress the27 limitations of their Own constitutionally
circumscribed powers by trespassing into what is properly the domain of other
constitutional organs. Questions of political wisdom or executive policy only
could not be subjected to judicial control. No doubt executive policy must also
be subordinated to constitutionally sanctioned purposes. It has its sphere and
limitations. But, so long as it operates within that sphere, its operations are
immune from judicial interference. This is also a part of the doctrine of a
rough separation of powers under the Supremacy of the Constitution repeatedly. Propounded
by this Court and to which the Court unswervingly adheres even when its views
differ or change on the correct interpretation of a particular constitutional
provision.
Assuming, therefore, that the letter of Shri
Charan Singh in the context of the reported speech of the Law Minister formed
the basis of an absolutely correct inference that action under Article 356 of,
the Constitution would be taken by the President if the "advice" to the
Chief Ministers of States contained in it is not accepted, the only question we
need determine here is whether such a use of Article 356 of the Constitution
was, in any way, unconstitutional or legally malafide. Another way of putting
the same issue would be to ask whether the purposes-stated by the Union Law
Minister for the proposed action under Article 356 of the Constitution,
assuming that such a proposal or threat could be found there, could be said to
be extraneous to the purposes of Article 356 of the Constitution.
Mr. R. K. Garg arguing for the petitioners
from Punjab, has put forward what appears to us to be, according to the very
authority cited by the learned counsel, on the mode of construing our
Constitution, a very good justification for the view said to have been
propounded by the Union Law Minister. Mr. Garg relied on a passage from the
judgment of Sikri, C.J., in H. H. Kesavananda Bharati Sripadagalavaru v. State
of Kerala : (1) "I must interpret Art. 368 in the setting of our Constitution,
in the background of our history and in the light of our aspirations and hopes,
and other relevant circumstances.
No other constitution combines under its
wings such diverse people, numbering now more than 550 millions, with different
languages and religions and in different stages of economic development, into
one nation, and no other nation is faced with such vast socio-economic
problems".
It was also said there (at p. 69) :
"I need hardly observe that I am not
interpreting an ordinary statute, but a Constitution which apart from setting
up a machinery for government, has a noble and grand vision. The vision was put
in words in the Preamble and carried out in part by conferring fundamental
rights on the people.
The vision was directed to be further carried
out by the application of directive principles.
(1) [1973] Supp. S.C.R. 1.
3-722SCI/77 28 It seems to me that if
"aspirations and hopes of the people", "the noble and grand
vision found in the preamble" and the chapter on "Directive
Principles of State Policy" are to be taken into account in deciding
whether the provisions of the Constitution are being carried out by a
particular Government or not, the scope of interference under Article 356 of
the Constitution, so that the provisions of the Constitution may be observed,
becomes quite wide and sweeping. So long as we are bound by the majority view
in Kesavananda Bharati's case (supra), the purposes and the doctrines lying
behind its provisions also become, if one may so put it, more or less, parts of
the Constitution. Whether a particular view or proposed action, in a particular
situation, amounts to enforcing or subverting the constitution thus becomes a
highly controversial political issue on which the letter of the Constitution
tends to be relegated to the background.
As I am, strictly speaking, only concerned
with the law, as I find it in the Constitution, I will now proceed to interpret
Article 356 as I find it. It reads :
"356(1) If the President on receipt of a
report from the Governor of a 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(a) assume to himself all or any of the functions of the Government
of the State and all or any of the powers vested in or exercisable by the
Governor or anybody or authority in the State other than the Legislature of the
State;
(b) declare that the powers of the
Legislature of the State shall be exercisable by or under the authority of
Parliament;
(c) make such incidental and consequential
provisions as appear to the President to be necessary or desirable or giving
effect to the objects of the Proclamation, including provision for suspending in
whole or in part the operation of any provisions of this Constitution relating
to any body or authority in the State :
Provided that nothing in this clause shall
authorise that, 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.
(2) Any such Proclamation may be revoked or
varied by a subsequent proclamation.
(3) Every Proclamation under this article
shall be laid before each House of Parliament and shall, except where it is a
Proclamation revoking a previous Proclamation, cease 29 to operate at the
expiration of two months unless before the expiration of that period it has
been approved by resolutions of both Houses of Parliament :
Provided that if any such Proclamation (not
being a Proclamation revoking a previous Proclamation) is issued at a time when
the House of the People is dissolved or the dissolution of the House of the
People takes place during the period of two months referred to in this clause
and if a resolution approving the Proclamation has been passed by the Council
of States, but no resolution with respect to such Proclamation has been 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 the said period of thirty days a resolution
approving the Proclamation has been also passed by the House of the People.
(4) A Proclamation so approved shall, unless
revoked, cease to operate on the expiration of a period of six months from the
date of the passing of the second of the resolutions approving the Proclamation
under clause (3) :
Provided 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 of 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 years :
Provided further that if the dissolution of
the House of the People takes place during any such period of six months and
resolution approving the continuance in force of such Proclamation has been
passed by the Council of States, but no resolution with respect to the
continuance in force of such Proclamation has 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 the said period
of thirty days a resolution approving the continuance in force of the
Proclamation has been also passed by the House of the People.
(5) Notwithstanding anything in this
Constitution, the satisfaction of the President mentioned in clause (1) shall
be final and conclusive and shall not be questioned in any Court on any
ground".
It is true that article 356 occurs in part
XVIII, dealing with "emergency provisions". But there are emergencies
and emergencies. An emergency covered by article 352 can only be declared if
the President is satisfied that a grave emergency exists whereby the security
of India or of any part of the territory thereof is threatened, whether by 30
war or external aggression or internal disturbance", Article 352(3) shows
that what is known as "the present and imminent danger rule;' is
applicable to such emergencies. It is not necessary that the grave emergency
contemplated by article 352 must be preceded by actual occurrence of war or
internal disturbance. The imminence of its danger is enough. But, article 356,
in contrast, does not contain such restrictions. The effects of a
"proclamation of emergency" under article 352 are given in articles
353 and 354 of the Constitution.
After the first three articles of Chap. XVIII
follows article 355 which enacts :
"355. 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." Now, the provisions dealing with the
proclamation of emergency under article 352, which has to be grave and
imminent, seem to be covered by the first part of the duty of the' Union
towards a State mentioned in article 355, but the second part of that duty,
mentioned in article 355, seems to be of a somewhat different and broader
character.
The second part seems to cover all steps
which are enough "to ensure" that the Govt. of every State is carried
on in accordance with the provisions of Constitution. Its sweep seems quite
wide. It is evident that it is this part of the duty of the union towards each
State which. is sought to be covered by a proclamation under article 356. That
proclamation is not of a grave emergency. In fact the word emergency is not used
there. It is a proclamation intended either to safeguard against the failure of
the constitutional machinery in a state or to repair the effects of a
breakdown. It may be either a preventive or a curative action. It is enough if
"the President" which, in view of the amended article 73(1) really
means the union council of Ministers, concludes that "the Government of
the State cannot be carried on in accordance with the provisions of the,
Constitution." On the other hand, action under article 352 is, more
properly, only defensive and protective action to be taken to avert or meet a
grave and imminent danger.
What is the Constitutional machinery whose
failure or imminent failure the President can deal with under article 356 ? Is
it enough if a situation has arisen in which one or more provisions of the
Constitution cannot be observed ? Now what provisions of the Constitution,
which are not being observed in a State, or to what extent they cannot be
observed are matters on which great differences of opinion are possible. If a
broad purpose, such as that of a democratic Government, contained in the
Preamble to our Constitution which was used by this Court, as was done in H.
H. Kesavananda Bharti's case (supra), to
infer what has been called the "basic structure", was meant also to
be served by article 356, the scope of a "situation" in which
proclamation under it can be made would seem wide. If the "basic
structure" embraces basic democratic norms, the Constitutional Machinery
of article 356 could conceivably be used by the Union Government for 31
securing compliance with its view of such norms, when, in its opinion' the
State Government has failed to observe them. The Union Government could say :
"If, what we think is basic to, a democratic system is not done by you, we
will conclude that the Government of your State cannot be carried on by you in
accordance with the provisions of the Constitution. In that case we will take
over your power, under article 356, and do that for the people of your State,
which you should yourself have done."Article 356 (1) of the Constitution,
at any rate, does not seem to us to stand in the way of such a view.
Again, if the directive principles of State,
Policy, which embrace a vast field of legislation for the welfare of the masses
of. our people, are also parts of the basic structure, which has to be ensured
or maintained by the use of the constitutional machinery, the failure of, a
State Government or its legislature to carry out any of the Constitution's
mandates or directives, by appropriate legislation, may, according to a
possible view, be construed as a failure of its duties to carry ,out what the
Constitution requires. Our difficulty is that the language, of article; 356 is
so wide and loose that to crib and confine it within a straight jacket will not
be just interpreting or construing it but will be ,constitution making
legislation which, again, does not, strictly speaking, lie in our domain.
The above mentioned possibilities seem to
follow, quite conceivably from the fairly broad language used in article 356(1)
and the rather loose meaning of the basic structure of the Constitution which
this Court seems to have adopted in Kesavananda Bharati's case (supra). This
view of the "basic structure" seems, so to speak, to annex doctrines
to provisions. If that be so, it becomes impossible for us to say that the
Union Government, even if it resorts to article 356 of the Constitution to
enforce a political doctrine or theory, acts unconstitutionally, so long as
that doctrine or theory is covered by the underlying purposes of the
Constitution found in the Preamble which has been held to be a part of the
Constitution.
We have not sat here to determine whether the
concept of a basic structure, found in Kesavananda Bharati's case (supra),
requires any clarification or a more precise definition. I may mention here
that I gave the following exposition of what I understood to be "the basic
structure" of our Constitution of which, according to Kesavananda
Bharati's case (supra), the doctrine of the supremacy of the Constitution was
apart :
"Neither of the three constitutionally
separate organs of State can, according to the basic scheme, of our
Constitution today, leap outside the boundaries of its own constitutionally
assigned sphere or orbit of authority into that of the other. This is the
logical and natural meaning of the Principle of Supremacy of the
Constitution". (gee : Smt.
Indira Nehru Gandhi v. Rai Narain) (1).
Even if we were to narrow down the concept of
a basic structure to bring it in accordance with the concept found in the
passage cited (1) [1976] 2 S.C.R. 347 at 539.
32 above, we could only strike down that
executive policy which could fairly appear to be a clear deviation from what
the basic structure requires. What would be, as the report of the speech of the
Law Minister shows, fairly and reasonably viewed as a policy intended to
strengthen or secure what is included in that basic structure could not be
struck down or controlled at all by this Court as that would be an attempt to
control executive policy within a sphere which is its own and where its
supremacy must be and has been consistently upheld by this Court.
The basic assumption underlying the views
expressed above, is that each of the three organs of the State-The Executive,
the Legislature and the Judiciary has its own orbit of authority and operation.
It must be left free by the other organs. to operate within that sphere even if
it commits errors there. It is not for one of the three organs of State either
to correct or to point an accusing finger at the other merely because it thinks
that some error has been committed by the other when acting within the limits
of its own powers. But, if either the Executive or the Legislature exceeds the
scope of its powers, it places itself in the region where the effects of that
excess should be capable of removal by the Judiciary which ought to redress the
wrong done when properly brought up before it. A scrupulous adherence to this
scheme is necessary for the smooth operations of our Constitutional mechanisms
of checks and balances. It implies due respect for and confidence in each organ
of our Republic by the other two.
In Har Sharan Varma v. Chandra Bhan Gupta
& Ors., (1) Allahabad High Court, quite rightly observed :"It is not
possible for the Court to assess the political forces and compulsions which
necessitated any political party to act.......... The Executive and the
Judiciary are, independent of each other within their respective spheres. Each
is conversant with the peculiar circumstances within its own sphere and has
special knowledge of complicated questions which is denied to the other. Each
must have the fullest discretion in the discharge of its duties. The acts of
the Executive are not open to review by the Judiciary as long as there is no
violation of the law or the Constitution. it follows that the Court could not
ordinarily comment on any act of the Executive unless the act is such that it
is likely to promote disrespect for the law. This Court must extend the same
courtesy to the other branches of government, which it receives from them and
refrain from making uncalled for comments on the wisdom of the acts of the
ministers of government." It has, however, been vehemently contended
before us that just as it is a part of the Constitutional scheme that neither
the executive nor the legislature should attempt to interfere with the
functions of the judiciary, operating within its own sphere, and, just as the
judiciary does not interfere With executive or legislative function 'so long.
as (1) A.I.R. 1962 All. 301 at 307.
33 there is no excess of power, which may be
questioned before Courts, similarly, the Union Government cannot interfere with
the normal functions of the Government in a State on the plea that there is a
lack of conformity between the legal rights of the State Government and the
opinions of the electorate which could affect only the moral rights of a State
Government to continue in power. It was submitted that such an allegedly moral
ground does not give the Union Government the legal right of action under
article 256 of the Constitution. This, it is urged by Mr. Niren De, raises a
constitutional issue of grave import.
In some of the plaints, it is asserted that
the moral plea sought to be given the colour of a legal right of action under
article 356(1), on behalf of the people of the State, is an attempt to give a
legal and constitutional garb to what is only a matter of political strategy.
it is suggested, that the Union Government wants to take an undue advantage of
the temporary gust of feeling which is believed to be sweeping the country as a
result of the recent overwhelming victory of the Janata party and its political
allies. In other words, both the question of the, extent of State autonomy in a
federal structure, and an alleged misuse of constitutional power under article
356 of the Constitutional, on grounds said to be extraneous to it, have been
raised on behalf of the States. These considerations are placed before us as
aids to a proper construction of article 356(1) as well as matters which
deserve careful scrutiny and adjudication after ascertainment of correct facts.
We are reluctant to embark on a discussion of
the abstract principles of federalism in the face of express provisions of our
Constitution. Nevertheless, as the principles have been mentioned as aids to
the construction of the Constitution whose basic structure may, no doubt, have
to be explored even when interpreting the language of a particular provision of
the document which governs the destiny of the nation, we cannot avoid saying
something on this aspect too.
A conspectus of the provisions of our
Constitution will indicate that, whatever appearances of a federal structure
our constitution may have, its operations are certainly, judged both by the
contents of power which a number of its provisions carry with them and the use
that has been made of them, more unitary than federal. I mention the use that
has been made of the constitutional provisions because constitutional practice
and convention become so interlinked with or attached to constitutional
provisions and are often so important and vital for grasping the real purpose
and function of Constitutional provisions that the two cannot often be viewed
apart. And where the content ,of powers appears so vague and loose from the
language of a provision, as it seems to us to be in article 356(1), for the
reasons given above, practice and convention may so crystallise as to become
more significant than the letter of the law. At any rate, they cannot be
divorced from constitutional law.
They seem to us to be relevant even in
understanding the purpose, the import, and the meaning of the words used in
article 356(1). This will be apparent also from a perusal of the 34 judgment of
this Court in Shamher Singh v. State of Punjab(1).
The two conditions Dicey postulated for the
existence of federalism were : firstly, "a body of countries such as the
Cantons of Switzerland, the Colonies of America, or the Provinces of Canada, so
closely connected by locality, by history, by race, or the like, as be capable
of bearing, in the eyes of their inhabitants an impress of common nationality";
and, secondly, absolutely essential to the founding of a federal system is the
"existence of a very peculiar state of sentiment among the inhabitants of
the countries".
He pointed out that, without the desire to
unite there could be no basis for federalism. But, if the desire to unite goes
to the extent of forming an integrated whole in all substantial matters of
Government, it produces a unitary rather than a federal constitution. Hence, he
said, a federal State "Is a political contrivance intended to reconcile
national unity with the maintenance of State rights." The degree to which
the State rights are separately preserved and safeguarded gives the extent to
which expression is given to one of the two contradictory urges so that there
is a union without a unity in matters of government. In a sense, therefore, the
Indian union is federal. But, the extent of federalism in it is largely watered
down by the needs of progress and development of a country which has to be
nationally integrated, politically and economically coordinated, and socially,
intellectually and spiritually up-lifted. In such a system, the States cannot
stand in the way of legitimate and comprehensively planned development of the
country in the manner directed by the Central Government. The question of
legitimacy of particular actions of the Central Government taking us in
particular directions can often be tested and determined only by the verdicts
of the people at appropriate times rater than by decisions of Courts. For this
reasons, they become, properly speaking, matters for political debates rather
than for legal discussion. If the special needs of our country, to have
political coherence, national integration, and planned economic development of
all parts of the country, so as to build a welfare State where "justice,
social, economic and political" are to prevail and rapid strides are to be
taken towards fulfilling the of her noble aspirations, set out in the Preamble,
strong central directions seems inevitable. It is the country's need.
That, at any rate, seems to be the basic
assumption behind a number of our Constitutional provisions.
Mr. Granville Austin, in "The Indian
Constitution Cornerstone, of a Nation" (see p. 186) in the course of an
account of our Constitution making, points out that the members of our
Constituent assembly believed that India had unique problems which bad not
'confronted other federations in history'. Terms such as 'quasi-federal' and
'statutory decentralization' were not found by the learned author to be
illuminating. The concepts and aspirations of our Constitution makers were
different from those in American or Australia. Our Constitution could not
certainly be said to embody Dr. K. C. Where's notion of "Federalism"
where "The general and regional governments of a country shall be
independent each of the other within its sphere." Mr. Austin thought that
our system, it, it could be called federal, could be described as
"cooperative federalism". This term was used by another author, Mr.
(1) [1975] 1 S.C.R. p. 814.
35 A.H. Birch (see : Federalism, Finance, and
Social Legislation in Canada, Australia, and the United States p.
305), to describe a system in which :
". . . . the practice of administrative
cooperation between general and regional governments, the partial dependence of
the regional governments upon payments from the general governments, and the
fact that the general governments, by the use of conditional grants, frequently
promote developments in matters which are constitutionally assigned to the
regions".
In our country national planning involves
disbursements of vast amounts of money collected as taxes from citizens
residing in all the States and placed at the disposal of the Central Government
for the benefits of the States without even the "conditional grants"
mentioned above. Hence, the manner in which State Governments function and deal
with sums placed at their disposal by the Union Government or how they carry on
the general administration may also be matters of considerable concern to the
Union Government.
Although Dr. Ambedkar thought that our
Constitution is federal "inasmuch as it establishes what may be called a
Dual Polity," he also said, in the Constituent Assembly, that our
Constitution makers bad avoided the 'tight mould of federalism' in which the
American Constitution was forged.
Dr. Ambedkar, one of the principal architects
of our Constitution, considered our Constitution to be both unitary as well as
federal according to the requirements of time and circumstances'.
If then our Constitution creates a Central
Government which is amphibian", in the sense that it can move either on
the federal or unitary plane, according to the needs of the situation and
circumstances of a case, the question which we are driven back to consider is
whether an assessment of the "situation" in which the Union
Government should move either on the federal or unitary plane are matters for
the Union Government itself or for this Court to consider and determine. Each
organ of the Republic, is expected to know the limits of its own powers. The
judiciary comes in generally only when any question of ultra vires action is
involved, because questions relating to vires appertain to its domain.
I may point out that there are various
aspects of relations between the Union and the States governed by different
provisions of the Constitution. I may here refer to those which relate to
giving of "direction" by the Union Government to the State
Governments because article 365 provides :
"365. Where any State has failed to
comply with or to give effect to, any directions given in the exercise of the
executive power of the union under any of the provisions of this constitution,
it shall be lawful for the President to hold that a situation has arisen in
which the government of the State cannot be carried on in accordance with the
provisions of this Constitution." 36 Articles 256 and 257 mention a wide
range of subjects on which the Union Government may give executive directions
to State Governments. Article 73(1) (a) of the Constitution tells us that the
Executive power of the Union extends to all matters on which "parliament
has power to make laws." Article 248 of the Constitution vests exclusively
in the Parliament residuary powers of making laws on any matter not enumerated
in the Concurrent or State Lists. Article 256 of the Constitution covers cases
where the President may want to give directions in exercise of the executive
power of the Union to a State Government in relation to a matter covered by an
existing law made by Parliament which applies to that State. But, article
257(1) imposes a wider obligation upon a State to exercise its powers in such a
way as not to impede the exercise of executive power of the Union which, as
would appear from Article 73 of the Constitution, read with article 248 may
cover even a subject on which there is no existing law but on which some
legislation by Parliament is possible.It could, therefore, be argued that,
although, the. Constitution itselfdoes not lay down specifically when the power
of dissolution should be exercised by the Governor on the advice of a Council
of Ministers in the State, yet if a direction on that matter was properly given
bythe Union Government to a State Government, there is a duty to carry it out.
The time for the dissolution of a State Assembly is not covered by any specific
provision of the Constitution or any law made on the subject. It is possible,
however, for the Union Government, in exercise of its residuary executive power
to consider it a fit subject for the issue of an appropriate direction when it
considers that the political situation in the country is such that a fresh
election is necessary in the interest of political stability or to establish
the confidence of the people in the Govt. of a State.
Undoubtedly, the subject is one on which
appropriate and healthy conventions should develop so that the power under
article 356(1) is neither exercised capriciously or arbitrarily nor fails to be
exercised when a political situation really calls for it. If the views of the
Union Government and the State Government differ on the subject, there is no
reason why the Union Government should not aid the development of what it
considers to be a healthy practice or convention by appropriate advice or
direction, and, even to exercise its powers under article 356(1) for this
purpose when it considers the observance of such a directive to be so essential
that the Constitutional machinery cannot function as it was meant to do unless
it interferes. This Court cannot, at any rate, interdict such use of powers
under article 356(1) unless and until resort to the provision, in a particular
situation, is shown to be so grossly perverse and unreasonable as to constitute
patent misuse of this provision an excess of power on admitted facts. On the
allegations before us we cannot reach such a conclusion. And, it is not for Courts
to formulate, and, much less, to enforce a convention however, necessary or
just and proper a convention to regulate the exercise of such an executive
power may be. That is a matter entirely within the Executive field, of
operations, It is futile to urge that article 172(1) of the Constitution, as
amended, lays down an unalterable duration of six years for a legislative 37
assembly from its first meeting because this article clearly contains the
exception "unless sooner dissolved." As observed above, it is no
where laid down either in the Constitution or any law dealing with holding of
elections to a legislative assembly what circumstances will justify its
dissolution sooner than the duration it would otherwise enjoy.
It was argued that the only authority
empowered to dissolve a legislative assembly under Article 174 (2) (b) of the
Constitution was the Governor of a State who had to act on the advice of the
Council of Ministers in the State. It was submitted that the Union Government
could not either advise, or in the form of advice, direct the State Government
to ask the Governor to dissolve the State Assembly under any circumstances.
Apparently, the principle of construction relied upon was a much used and
easily misused principle;
"expressio unius est exclusio
alterius." We do not think that such a principle could help the plaintiffs
before us at all in as much as article 356 of the Constitution very clearly
provides for the assumption by the President '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." Article 174(2) (b) of the Constitution
expressly vests the power of dissolving the legislative assembly in the
Governor even if that had to be on the advice of the Council of Ministers in
the State, but the power to give such advice would automatically, be taken over
by the Union Government for the purposes of dissolution of the State Assembly
when the President assumes governmental powers by a proclamation under Article
356(1) of the Constitution. A dissolution by the President after the
proclamation would be as good as a dissolution by the Governor of a State whose
powers; are taken 'over.
The position of the Governor as the
Constitutional head of State as a unit of the Indian Union as well) as the
formal channel of communication between the Union and the State Government, who
is appointed under article 155 of the Constitution "by the President by
Warrant under his hand and seal," was also touched in the course of arguments
before us. On the one hand, as the Constitutional head of the State. he is
ordinarily bound, by reason of a constitutional convention, by the advice of
his Council of Ministers conveyed to him through the Chief Minister barring
very exceptional circumstances among which' may be as pointed out by my learned
brothers Bhagwati and Iyer, JJ., in Shamsher Singh's case, supra (p. 875) a
situation in which an appeal to the electorate by a dissolution is called for.
On the other hand, as the defender of "the Constitution and the law"
and the watch-dog of the interests of the whole country and well-being of the
people of his State in particular, the, Governor is vested with certain
discretionary powers in the exercise of which he can act independently. One of
his independent functions is the making of the report to the Union Government
on the strength of which Presidential power under Article 356(1) of the
Constitution could be exercised.
In so far as he acts in the larger interests
of the people, appointed by the President" to defend the Constitution and
the Law" he acts as an observer on behalf of the Union and has to keep a
watch on how the administrative machinery and each organ of constitutional
Government is working in the 38 State. Unless he keeps such a watch over all
governmental activities and the State of public feelings about them he cannot
satisfactorily discharge his function of making the report which may form the
basis of the Presidential satisfaction under Article 356(1) of the Constitution.
Indeed, the usual practice is that the
President acts under Article 356(1) of the Constitution only on the Governor's
report. But, the, use of the words "or otherwise" (in article 356)
show that Presidential satisfaction could be based on other material as well.
This feature of our Constitution indicates most strikingly the extent to which
inroads have been made by it on the federal principles of Government.
Mr. Setalvad in his Tagore Law Lectures,
1974, on "UNION AND STATE RELATIONS" has observed, while dealing with
Governor's role (at p. 164-165) :
"The powers of the President under
Article 356 have been frequently exercised since the commencement of the
Constitution. The occasions for its exercise emphasise not only the importance
of the power in maintaining stable governments in the State, but also the vital
role which the Governor has to play in enabling the Union Executive to exercise
the powers vested in it under Article 356. The Constitutional machinery in a
State may fail to function in numerous ways. There may be a political deadlock;
for example where a Ministry having resigned, the Governor finds it' impossible
to form an alternative government; or, where for some reason, the party having
a majority in the Assembly declines to form a Ministry and the Governor's
attempts to find a coalition Ministry able to command a majority have failed.
The Government of a State can also be regarded as not being carried on in
accordance with the Constitution in cases where a Ministry, although properly
constituted, acts contrary to the provisions of the Constitution or seeks to
use its powers for purposes not authorised by the Constitution and the
Governor's attempts to call the Ministry to order have failed. There could also
be a failure of the constitutional machinery where the Ministry fails to carry
out the directives issued to it validly by the Union Executive in the exercise
of its powers under the Constitution. The very statement of some of the
situations, which may bring about the use of the machinery provided by Article
356 shows the pivotal position which the Governor occupies in respect of these
situations and the grave responsibility of his duties in the matter of
reporting to the President under Articles 355:
and 356 of the Constitution." The
question was then mooted whether that was being done under article 356 of the
Constitution did not amount to taking over by the 39 President, acting on the
advice of the Union Council of Ministers, of powers for dissolving the State
Assemblies upon facts and circumstances which, in the judgment of the Union
Council of Ministers, constituted sufficient grounds for a dissolution of the
State Assembly, whereas the Constitution provides that this had to be done by
the State Government on the advice of the Council of Ministers in a State. Such
an argument is really an argument in a circle.
It assumes that the taking over by the
President, advised by the Union Council of Ministers, of the functions of the
Governor, advised by the State Council of Ministers, on this matter, was
outside the purview of Article 356(1). A situation in which, according to the
view of the Union Government, the State Council of Ministers had wrongly failed
to advise the State Governor to dissolve the State Legislative Assembly, so
that action under Article 3 5 6 ( 1 ) has to be taken, would be exceptional in
which articles governing the exercise of functions normally are suspended and
do not operate at all. If article 356(1) of the Constitution or any other
article contained any provision which amounted to a prohibition against
assumption of powers of dissolution of State Assemblies by the President of
India, it would be a different matter, but that, as we have repeatedly pointed
out, is not the position here. Indeed, such a provision, had it been there,
would have completely nullified article 356(1). Obviously, a proclamation under
Article 356(1) to be effective must suspend the operation of article 174. It is
evident that one of the reasons, perhaps the main reason for bringing about
this exceptional situation in the cases now before us, is the refusal of the
State Chief Ministers to comply with the advice sent to them which they equate
with a 'direction' given in exercise of the executive powers of the Union
Government.
If constitutionally correct practises could
also be pointed out and enforced by the Union Government so that provisions of
our Constitution may operate in the manner in which they were intended to do
and none of their objects is frustrated, it may be useful to glance at the
convention which governs exercise of the Crown's "prerogative" power
of dissolution of Parliament in England. Dicey in his law of the Constitution
10th Edn., (at p. 432) observed "The prerogative, in short, of dissolution
may constitutionally be so employed as to override the will of the
representative body, or as it is popularly called. "The People's House of
Parliament." This looks at first sight like saying that in certain cases
the prerogative can be so used as to set at nought the will of the nation. But
in reality it is far otherwise. The discretionary power of the Crown
occasionally may be, and according to constitutional precedents sometimes ought
to be, used to strip an existing House of Commons of its authority. But the
reason why the House can in accordance with the Constitution be deprived of
power and of existence is that an occasion has arisen on which there is fair
reason to suppose that the opinion of the House is not the opinion of the
electors. A dissolution is in its essence an appeal from the legal to the
political sovereign. A dis-solution is allowable, or necessary, whenever the
wishes of the legislature are, or may fairly be presumed to be different from
the wishes of the nation".
It was pointed out by Diecy that the
conventional use of the 'Prerogative" of the Crown to dissolve Parliament
in an exceptional situation, even when the Government in power had the support
of a majority behind it, was established. He gave two instances; one of a
dissolution of Parliament in 1784 and another in 1834.
Presumably, two instances, with a gap of
fifty years between them, were considered enough by Dicey to establish a
convention governing exceptional situations. A perusal of other authorities,
such as Anson on "The Law & Custom of the Constitution" or
Erskine May's "Parliamentary Practice", leads us to no different result.
Dicey's statement reveals : firstly, there is, according to British convention,
a "right" of a Government, which no longer commands the support of a
majority in the House of Commons, to demand a dissolution or to force an appeal
to the electorate or the "Political sovereign"; and, secondly, there
is an "overriding" discretion in the Crown even to disregard the
advice of the Prime Minister, the spokesman of the whole body of Ministers,
with a majority in the Lower House behind him, and to force a dissolution in an
exceptional situation.
A recent study of "The Theory and
Practice of Dissolution of Parliament", with particular reference to the
experiences of United Kingdom and Greece, by Dr. B. S. Markesinis, in the
Cambridge "International and Comparative Law" series (1972), contains
a detailed discussion of views of various authors and accounts of political
situations which had arisen in more recent times with regard to dissolutions. This
study brings out the grave responsibility of the Crown when assessing what
Prof. Laski called the "Critical circumstances in which the Crown may
exercise its discretion to force a general election" which may result in
"a direct confrontation between the monarch and his people" if the
King acts contrary to the advice of the Government supported by a majority in
the House of Commons. After an illuminating discussion of the views of
Constitutional lawyers and experts, such as Keith, Jennings, Laski, Hubert, and
Morgan, Dr. Markesinis refers to an impressive letter of the British Prime
Minister Mr. Asquith to the King written on 31st July, 1914. That letter
contained the following passage "Sovereign undoubtedly has the power of
changing his advisers but it is relevant to point out that there has been
during the last 130 years, one occasion only on which the King has dismissed
the Ministry which still possessed the confidence of the House of Commons, (be
continues :) Nothing can be more important, in the best interest of the Crown
and the Country, than that a practice, so long established and so well
justified by experience, should remain unimpaired. it frees the occupant of the
throne from all personal responsibility for the acts of the executive and the legislature."
41 The King expressed his gratitude to the Prime Minister for advising him
against being "dragged into arena of party politics" whether the King
"wished it or not" and acted on the Prime Minister's advice.
In so far as growth of healthy conventions on
such a subject are essential for the satisfactory operations of the machinery
of democratic Government, this is a matter on which there could and should be a
broad agreement or consensus between all parties interested in a satisfactory
working of the democratic system in this country. It is not a matter on which
the Court can give its opinion as to what the proper precedent or view to
follow or course of action to pursue in a particular situation is. All that
this Court can do is to consider whether an action proposed on such a matter on
certain grounds, would fall under article 356(1) of the Constitution if the
Union Government and the State Governments differ on the question whether, in a
particular situation, the dissolution of the State Assembly should take place
or not. The most that one could say is that a dissolution against the wishes of
the majority in a State Assembly is a grave and serious matter. Perhaps it
could be observed by us that it should be resorted to under Article 356(1) of
the Constitution only when "a critical situation" has arisen. As the
study of Dr. Aarkesinis shows it is not always necessary that, under a multiple
party system, the mere defeat of a State Government in a State Assembly must
necessarily create a situation in which a dissolution of the State Assembly is
obligatory. If an alternate Government is capable of being formed which
commands the support of a majority in the State Assembly, it may not be ordered
even when a Government in power is defeated in the State Assembly. The position
may, however, be very different when a State Government has a majority in the
State Assembly behind it but the question is whether the State Assembly and the
State Government for the time being have been so totally and emphatically rejected
by 'he people that a "critical situation" has arisen or is bound to
arise unless the political sovereign" is given an opportunity of giving a
fresh verdict. A decision on such a question undoubtedly lies in the Executive
realm.
It may be that, if the need to an appeal to
the electorate is put forward only as a thin disguise for punishing a State
Government by repeated dissolutions within short periods, the use of article
356(1) for such a purpose may appear to be plainly outrageous and extraneous. In
such hypothetical and very exceptional circumstances the action of the Union
Government may appear to be mala fide and in excess of the power under article
356(1) of the Constitution. But, nothing, like that is alleged in any of the
plaints or petitions. On the other band, it seems that the advice given to the
Chief Ministers of different States is based on a matter of a uniform general
policy resulting from an estimate of what, in the opinion of the Union
Government, is a critical juncture in the history of the whole nation so that
the people in the States must be given an opportunity of showing whether the
party in power in the States should or should not pursue policies which may be
at variance with those of the Union Government. No fact is alleged showing any
personal animus of any member of the Union Government against a State
Government or a State Assembly. As 42 the question of the proper time for a
dissolution of the State Assembly is riot a matter extraneous to article 356(1)
of the Constitution, the most ',.hat can be said is that questions raised do
not go beyond sufficiency of grounds for resorting to article 356(1) of the
Constitution.
In our country, the power of dissolving the
State Legislature has been exercised by the Union Government or by the Governor
carrying out the directions of the Union Government after a proclamation under
article 356(1) of the Constitution on more than two dozen occasions since the
commencement of the Constitution. On several of these occasions, Presidential
Proclamations under article 356(1) were assailed on various grounds before High
Courts. On each occasion the attack failed. The cases cited before us were : K.
K. Aboo v. Union of India & Ors.(1) Rao Birinder Singh v. The Union of
India & Ors. (2), In Re A. Sreeamulu(3) and Bijayananda Patnaik & Ors.
v. President of India & Ors.(4).
In no case brought to our notice was the
power of the President to dissolve a State Assembly, either by means of a
Proclamation under article 356(1) itself or after it, challenged on the ground
that it falls outside article 356(1). It was urged before us that the sole
purpose of 'the intended Proclamations being procurement of dissolutions of the
State Legislatures with the object of gaining political victories was both
extraneous and mala fide. It seems to us that the assertions that the exercise
of power was mala fide in fact and in law were made on the assumption that the
whole object of the exercise of the power is only to gain a political victory.
As we have tried to indicate above, attempts
to secure political victories, by appeals to the electorate, are parts of the
recognised rules of a democratic system of government permitting contests
between rival parties so as to achieve certain other objectives. If such a
contest with the desire for achieving a political victory in order to enforce
certain programmes, believed by the members of a party to be beneficial for the
people in a State, as a method of achieving the objects set out in the
Preamble, are not only legal and permissible under the Constitution, but,
obviously, constitute the only possible legitimate and legal means of attaining
the power to enforce policies believed to be correct by various parties,
according to their own lights, it could not possibly be asserted that procuring
the dissolution of a State Legislative Assembly, with the object of gaining a
political victory, is, in itself, an extraneous object which could not fall at
ail under article 356 of the Constitution. In order to apply the doctrine that
something cannot be done indirectly because it could not be done directly, it
must first be established either that the object or the means are legally
prohibited. In the cases before us, it does not appear to us that the object of
gaining a political victory, set out in the plaints is, by itself, legally
prohibited. Nor is there anything in law to prohibit a recourse to the means
adopted. There is no assertion in the plaints or the petitions (1) A.I.R. 1965
Ker. 229.
(2) A.I.R. 1968 Punj. 441.
(3) A.I.R. 1974 AP 106.
(4) A.I.R. 1974 Orissa 52.
43 that anything is being done or attempted
by legally prohibited means for a legally prohibited purpose. All that is
suggested is that it is morally re-presensible to try to obtain an electoral
victory in the States by dissolving the Assemblies so as to get rid of the
Congress Governments in power there. On such a question of moral worth of
either the ends or the means adopted, this Court cannot possibly sit in
judgment. It is enough for our purposes that the plaints and the petitions do
not disclose anything extraneous to the purpose of Article 356 (1) of the
Constitution in the eyes of law. The sufficiency or adequacy of the grounds for
action under article 356(1) of the Constitution is quite another matter. We do
not think that we can go into that at all here.
We find that in the plaint of the State of
Himachal Pradesh the term "prerogative' has been used for the power of the
State Governor to dissolve a Legislative Assembly, under Article 174, as though
there was a violation of that "prerogative" by some paramount
"prerogative" asserted by the Union Government. I do not think that
the term "prerogative" can be correctly used, in its technical sense,
with reference to any power exercised under our Constitution. In English law the
term "prerogative" is used for "the residue of discretionary
power left at any moment in the hands of the Crown whether such power be in
fact exercised by the King himself or by his Ministers". (See : Keir &
Lawson's cases in Constitution Law, 5th Edn. p. 151).
Dicey said : "Every act which the
executive Government can lawfully do without the authority of the Act of
Parliament is done in virtue of ibis prerogative". (Dicey : Law of the
Constitution, 10th Edn., p. 425). It is, however, an established principle of
British Constitutional law that no claim to prerogative could survive the
passing of a statute covering that very subject because the so-called
prerogative merges in the statute (Attorney General v. Dr. Keyser's Royal
Hotel(1). It cannot conflict with statute. Under our Constitution there is no
"prerogative" in that technical sense. All constitutional powers are
regulated by our written Constitution. There may be room for the development of
conventions on a matter not fully covered as to the mode of exercise of a
discretion or power. But, that is a matter distinct from
"prerogative". Under our Constitution, the residue of that power,
which is neither legislative nor judicial, is covered by the caption :
"Executive". Thus, the equivalent of most "prerogative"
powers would fall, under our law, under the heading of "executive"
powers.
Inasmuch as the term "prerogative"
is sometimes used in a wider nontechnical sense, as something which gives preeminence
or an overriding attribute to a power, it may be said that such a power is
lodged in the Union Government under Article 356(1) of the Constitution on all
matters covered by that provision. The only question in such cases is whether
the matter in relation to which the Union Government is proceeding or has acted
is or is not within the purview of Article 356(t) of The Constitution. If it
lies within that sphere, the Courts cannot interfere on the ground, at any
rate,, that it is extraneous.
Whenever the exercise of power to issue a
proclamation under Article 356(1) of the Constitution has been challenged in a
High (1) [1920] A.C. 508.
4-722SCI/77 44 Court it has been held that
sufficiency of grounds on which the order, is based could not be questioned.
Some of the dicta found there seem to lay down that the exercise of power to
issue proclamations is not justiciable at all under any circumstances. This
Court has not gone so far us that.
If it is actually stated on behalf of the
Union Government that an action was taken on a particular ground which really
falls completely outside the purview of Article 356(1), the proclamation will
be vitiated, not because the satisfaction was challenged or called in question
on any ground but because it was admitted to be on matters outside Article
356(1).
A challenge to the exercise of power to issue
a proclamation under-, Article 352 of the Constitution would be even more
difficult to entertain than to one under Article 356(1) as all these
considerations would then arise which Courts take into account when the Executive,
which alone can have all the necessary information and means to judge such an
issue, tells Courts that the nation is faced with a grave national Emergency
during which its very existence or stability may be at stake. That was the
principle which governed the decision of the House of Lords in Liversidge v.
Anderson(1).
The principle is summed up in the salutary
maxim : Salus Populi Supreme Lex. And, it was that principle which this Court,
deprived of the power to examine or questionany materials on which such
declarations may be based, acted in Additional District Magistrate, Jabalpur v.
Shivakant, Shukla(2). We need not go so far as that when we have before us only
a proclamation under Article 356(1).
A reference was made by both sides to Bhagat
Singh and Ors.
v.The King-Emperor,(3), where the Privy
Council interpreted the provisions of section 72 of the Government of India
Act, which authorised the Governor-General in cases of Emergency to promulgate
ordinances "for the peace and good Government of British India or any put
thereof which was not to last beyond six months". In that case, an,
attempt was made to question the existence of a State of Emergency., Viscount
Dunedin, observed (at p. 172) "A state of emergency is something that does
not permit of any exact definition : It cannotes a state of matters calling for
drastic action, which is to be judged as such by someone. It is more than
obvious that someone must be the Governor-General, and he alone. Any other view
would render utterly inapt the whole provision. Emergency demands immediate
action, and that action is prescribed to be taken by the Governor General'.
The power of the Governor-General was
described as "an absolute; power " in Bhagat Singh's case (supra),
but learned counsel for the plaintiffs relied on the observation there that
"it is only to be used in extreme cases of necessity where the good
Government of India' (1) [1942] AC 206.
(2) [1976] Suppl. S.C.R. 172.
(3) 50 I.A. 169, 45 demands it". We do
not think that much assistance can be derived from a provision of the
Government of India Act, 1935, which was really the precurser of Article 123 of
our Constitution and meant for use in a different context in an Imperialistic
era. Nevertheless, it shows that. even without a provision ousting the
jurisdiction of the Courts, the subjective satisfaction of the Governor-General
was held. to be unquestionable. Considerations which have arisen before us
while considering the use and the ambit of article 356(1) of our Constitution
were not before the Privy Council at all in that case.
King Emperor v. Benorilal Sarnia &
Ors.(1), also relating to the, ordinance making powers of the Governor-General
under section 72 of the Government of India Act, 1935, was cited.
In that case, Bhagat Singh's case (supra) was
commented upon. It was observed (at p. 62) "The definition of emergency in
Bhagat Singh's case does not purport to be exhaustive, but it does say that it
connotes a state of matters calling for drastic action, and that it demands immediate
action. Emergency does not mean emergency at large. Under s. 72 of the
Government of India Act the emergency with which the Governor-General is
dealing should be an existing emergency and should call for the particular kind
of immediate action which be proposes to take. If the particular kind of
emergency which a Governor-General's opinion justifies a particular kind of
action.
is in itself wholly in prospect and not
present, then although there may be present an emergency of some other kind,
that would not justify, under S. 72, the ordinance being made. The existence of
the emergency requiring immediate action is, under that section, the basis to a
condition precedent which must be fulfilled by himself alone".
This shows that the Court could inquire into
the existence of a condition precedent to the use of emergency powers.
A reference was also made to the following
passage from Pad field & Ors. v. Minister of Agriculture, Fisheries &
Food and Ors.(2) at p. 1006) "It is said that the decision of the Minister
is administrative and not judicial. But that does not mean that he can do as,
he likes, regardless of right or wrong. Nor does it mean that the courts are
powerless to correct him. Good administration requires that complaints should
be investigated and that grievances should be remedied. When Parliament has set
up machinery for that very purpose, it is not for the Minister to brush it on
one side. He should not refuse to have a complaint investigated without good
reason".
Cases before us are not those of a grave
national emergency of the kind. Covered by article 352 of the Constitution.
Nevertheless, (1) 72 I.A. 57.
(2) [1968] A.C. 997 p. 1006.
46 analogous principles seem to govern the
exercise of extraordinary powers conferred by Article 356(1) on the highest
executive authorities of the Indian Union who are expected to act with the
utmost sense of responsibility.
Such a consideration, combined with the
existence of Parliamentary control on the exercise of such powers by ministers
responsible directly to Parliament, was taken into account, in Liversidge's
case (supra), to abstain from judicial interference.
Courts have consistently held issues raising
questions of mere sufficiency of grounds of executive action, such as the one
under Article 356(1) no doubt is to be non-justiciable.
The amended article 356(5) of the
Constitution indicates that the Constitution makers did not wan+ such an issue
raising a mere question of sufficiency of grounds to be justiciable. To the
same effect are the provisions contained in Article 352(5), 360(5). Similarly,
Articles 123(4), 213(4), 239B(4) bar the jurisdiction of Courts to examine
matters which lie within the executive discretion.
Such discretion is governed by a large
element of policy which is not amenable to the jurisdiction of courts except in
cases of patent or indubitable mala fides or excess of power. Its exercise
rests on materials which are not examinable by Courts. Indeed, it is difficult
to imagine how the grounds of action under article 356(1) could be examined
when article 74(2) lays down that "the question whether any, and if so,
what advice was tendered by the Ministers to the President, shall not be
inquired into in any Court." It is true that, as indicated above, the
advice tendered by the Ministers to the President cannot be inquired into. It
is also clear beyond doubt that the amended article 74(1) of the Constitution,
whose validity has not been challenged before us by any party, makes it
obligatory on the President to act in accordance with the advice tendered by
the Union Council of Ministers, to him through the Prime Minister.
Nevertheless, if all the grounds of action
taken under article 356(1) of the Constitution are disclosed to the public by
the Union Government and its own disclosure of grounds reveals that a
constitutionally or legally prohibited or extraneous or collateral purpose is
sought to be achieved by a proclamation under article 356 of the Constitution,
this Court will not shirk its duty to act in the manner in which the law may
then oblige it to act. But, when we find that allegations made in the plaints
and in the petitions before us relate, in substance, only to the sufficiency of
the grounds of action under article 356(1) of the Constitution, and go no
further, we cannot proceed further with the consideration of the plaints under
Article 131 or the petitions under Article 32 of the Constitution.
I would not like to leave certain other
matters also argued before us untouched in this fairly comprehensive expression
of our views. It was urged that the power of dissolution of a State Legislative
Assembly, even if it could be assumed by the President under Article 356(1) of
the Constitution, after a failure of the State Government to carry out a
direction of the Union Government on the subject, could no+ be exercised unless
and until the matter bad been placed before both the Houses of Parliament so
that it bad been subjected to such control as either of the two Houses of
Parliament may chose to 47 exercise over it. Proclamations under article 356(1)
are bound to be placed under article 356(3) of the Constitution before each
house of Parliament. Unfortunately, however, for this line of argument, there
is not only nothing in article 356 to make a consideration by either House of
Parliament a condition precedent to the exercise of the power of dissolution of
a State Legislative Assembly by the President under article 356(1), but, on the
other hand, article 356(3). Makes it clear that the only effect of even a
failure or refusal by either House of Parliament to approve the proclamation is
that it ceases to operate after two months. Obviously, this means that it
operates for at least two months. Hence, whatever is done in these two months
cannot be held to be illegal for 'hat reason alone.
The interpretation placed before us for
acceptance is directly opposed to the language of the provisions of the
Constitution. It has, therefore, to be rejected by us outright as quite
unreasonable and" unacceptable. It is true that the exercise of power
under article 356 of the Constitution is subject to Parliamentary control. This
means that it is subject to such control as the two Houses, out of which the
Council of States really represents the State Assemblies, may be able to
exercise during the period for which the proclamation lasts. But, the existence
of such Parliamentary control, as a safeguard, cannot possibly nullify the
legality of what is done in the period during which the Proclamation lasts.
It was also contended by Mr. R. K. Garg that,
unless the Parliament acts legislatively for the State Legislature, the
incurring of any expenditure, by the Governor or anybody else after a
Presidential Proclamation under article 356, would not be permissible in view
of Article 357(1) (c) of the Constitution. After making such an assumption, we
were asked to import an implied prohibition against a dissolution of a State
Legislative Assembly unless and until both Houses of Parliament bad discussed
and approved of it.
Article 357 is beaded "Exercise of
legislative powers under Proclamation issued under Article 356". It lays
down :
"357(1). Whereby a Proclamation issued
under clause (1) of article 356, 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(a) for Parliament to confer on the President
the power of the Legislature of the State to make laws, and to authorise the
President to delegate, subject to such conditions as he may think fit to impose,
the power so conferred to any other authority to be specified by him in that
behalf;
(b) for Parliament, or for the President or
other authority in whom such power to make laws is vested under sub-clause (a),
to make laws conferring powers and imposing duties, or authorising the
conferring of powers and the imposition of duties, upon the Union or officers
and authorities thereof;
48 (c)for the 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.
(2)Any law made in exercise of the power of
the Legislature of the Slate by Parliament or the President or other authority
referred to in sub-clause (a) of clause (1) which Parliament or the President
or such other authority would not but for the issued of a Proclamation under
article 356, 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 reenacted
with or without modification by Act of the appropriate Legislature." I
think that article 357 has very little to do with the incurring of any
expenditure by the President after powers of Governments of States have been
assumed by the President under Article 356(1) (a) of the Constitution. It really
governs the position when the legislative ,powers of a State legislature have
been transferred to Parliament by a :Presidential Proclamation under Article
356(1) of the Constitution. ,-By means of such a Proclamation the President may
assume to himself under Article 356(1) (a) all or any of the functions of the
Government of the State and all or any of the powers of any authority or body
in the State other than the State Legislature. The Proclamation may or may not
contain also a declaration contemplated by Article 356(1) (b) of the
Constitution enabling the exercise of the powers of the State Legislature by or
under the authority of Parliament. It is only when the Proclamation contains a
declaration under Article 356(1) (b) also that the question of incurring
expenditure under the authority of the President from the Consolidated Fund of
the State "pending sanction of such expenditure by Parliament" can
arise. The power of the President to authorise expenditure from the
Consolidated Found awaiting a sanction by Parliament is provided for only for
those cases where the State Legislature's power has been transferred by the
Presidential proclamation to Parliament under Article 356(1) (b) of the
Constitution and the Parliament is not in session. That is a contingency which
could only arise when there is a prolonged presidential rule requiring the
vesting of the functions of the State legislature in Parliament so that the
President may be able to authorise expense in anticipation of Parliamentary
sanction when the House of the People is not in session. When the Presidential
proclamation does not contain any declaration under Art.
356(1) (b) of the Constitution. at all
because the Presidential rule is of short duration and for a specific purpose,
there is nothing which will disable the President from incurring expenditure
under some law already made by the Legislature of the State. Incurring of
expenditure in accordance with that law will be covered by the provisions of
Art. 356(1) (a) of the Constitution.
49 In other words, although Art: 356(1) (a)
of the Constitution imposes a bar against the assumption, by the President of
the, legislative 'powers of the State Legislature, which could only be
transferred to Parliament, yet, its provisions, read with Art. 357 of the Constitution,
,do not operate as an absolute bar on any expenditure which could be legally
incurred by the President or under the Presidential authority in accordance
with pre-existing State laws authorising expenditure by other authorities or
bodies whose powers can be taken over by the President under Art. 356(1) (a).
In any case, the provisions of Art. 357 could not possibly be, used as a bar
against a dissolution of the State Assembly by a Presidential Proclamation. Nor
can they be used to import and read, as a condition precedent to the
Presidential proclamation under Art. 356(1) (a) involving, as it usually does,
the dissolution of the State Assembly, an approval of both or either of the
two, Houses of Parliament. To spell out some conditions precedent or bars from
the provisions of Art 357 of the Constitution against the exercise of powers of
the President to, issue Proclamations under Art. 356(1) of the Constitution
would be utterly unsound. Constitutional provisions meant for different
purposes cannot be mingled and confused with each other when each is meant to
regulate different sets of ,powers meant to be exercised by different
authorities or bodies under different circumstances.
Objections were also put forward to the
maintainability of the suits before us under Article 131 of the Constitution on
the ground that this provision covers only disputes between the Government of
India and one or more "States" or between two or more
"States". This provision which may be set out in full here reads as
follows "131. Subject to the provisions of this Constitution, the Supreme
Court shall, to the exclusion of any other court, have original jurisdiction in
any dispute(a)between the Government of India and one or more States; or
(b)between the Government of India and any State or States on one side and one
or more other States on the other; or (c) between two or more States;
if and in so far as the dispute involves any
question (whether of law or fact) on which the existence or extent of a legal
right depends;
Provided that the said jurisdiction shall not
extend to a dispute arising out of any treaty, agreement, covenant, engagement
sanad or other similar instrument which, having been entered into or executed
before the commencement of this Constitution, continues in operation after such
commencement, or which provides that the said jurisdiction shall not extend to
such, a dispute".
50 It was argued that there is a distinction
between a State and a State Government. It was urged that the jurisdiction
under Article 131 is a peculiar one meant for special kinds of disputes in
which States, as such, ought to be interested and not merely Governments of
States which may come and go.
It was pointed out that, if the Union
Government sought to deprive a State of any constitutional right it would be a
different matter which could be taken up by a State Government on behalf of the
State or its people. But, it was submitted, there is no right given to any
State by the Constitution that its Government or Legislative Assembly would
continue undissolved for any period. The dispute before us relates to the time
at which and the authority by which the power of dissolution could be exercised
in the situation which confronted the people in the nine States concerned.
Reference was made to passages from State of
Bihar v. Union of India & Anr.(1) and the United Provinces v. The GovernorGeneral
in Council.(2) It seems to me that the decision of this Court in State of Bihar
and Union of India and Anr. (supra) was largely based upon the assumption that
Article 131 was meant to cover the same area as s. 204 of the Government of
India Act. Moreover, the learned Additional Solicitor General, appearing on
behalf of the Union, did not press the argument that article 131 is confined to
declaratory decrees in view of the fact that (as Mr. Seervai pointed out in the
Constitutional Law of India, 2nd Edn. Vol. 11 at p. 1385) article 142 (1) of
the Constitution provides for enforcement of decrees of this Court. The view
expressed in the Bihar case (supra) seemed to have been affected considerably
by the fact that there was no provision in the Government of India Act of 1935
for the enforcement of the decrees of the Federal Court, but Article 142(1)
seems to have been overlooked in that case.
Article 300 of the Constitution provides,
inter alia, that "the Government of a State may sue or be sued by the name
of the State". From this, Mr. Niren De wanted us to infer that there was
no distinction between a State and the State Government as juristic entities.
Even if there be some grounds for making a distinction between a State's
interests and rights and those of its Government or its members, I do not think
that we need take a too restrictive or a hyper technical view of the State's
rights to sue for any rights, actual or fancied, which the State Government
chooses to take up on behalf of the State concerned in a suit under Article
131. Moreover as we have decided not to grant any reliefs after having heard
detailed arguments and fully considered the merits of contentions advanced by
both sides, I do not think that we need determine, on this occasion, the
precise scope of a suit under Article 131. I prefer to base my judgment on
other grounds.
Having considered the cases set out in the
plaints and the petition before us, from every conceivable angle, I am unable
to find (1) [1970] 2 S.C.R. 522.
(2) [1939] F.C.R. 124.
51 a cause of action for the grant of any
injunction or a writ or order in the nature of a Mandamus against any of the
Defendents Opposite parties.
In my opinion perhaps the technically more
correct order, in the situation before us would have been, on the findings
reached by me, one rejecting the plaints under Order XXIII, Rule 6 of the Rules
of this Court, and rejecting the Writ Petitions in limine. Afterall, we had not
proceeded beyond the stage of hearing certain preliminary objections put
forward by Mr. Soli Sorabji, Additional Solicitor General to the
maintainability of the suits and petitions before us.
Although, we heard very full arguments on
these preliminary objections, we did not even frame any issues which is done,
under the provisions of Part III of the Rules of this Court, applicable to the
exercise of the Original Jurisdiction of this Court, before we generally formally
dismiss a suit.
However, as the form in which we have already
passed our orders, dismissing the suit and petitions, which was approved by us
on 29th April, 1977, has substantially the same effect as the rejection of
plaints for failure to disclose a triable cause of action, I concur in the
orders already recorded. The parties will bear their own costs.
CHANDRACHUD, J.-The Lok Sabha in which the
Congress (R) had an overwhelming majority was dissolved on January 18, 1977
though under the Constitution (42nd Amendment) Act, it had another year to run
out its extended term. Fresh elections were held to the Lok Sabha in March 1977
in which the ruling party lost its majority and went out of power which it had
exercised since Independence. On March 24, 1977 the Janata party which secured
the verdict of the electorate formed the new government at the Centre. This is
an unprecedented event since, for the first time in the history of this
country, the ruling party at the Centre is not in power in any of the federating
States. On the date that the Janata party took office, the Congress (R) was in
power in various States including Bihar. Haryana, Himachal Pradesh, Madhya
Pradesh, Orissa, Punjab. Rajasthan, Uttar Pradesh and West Bengal.
On April 18, 1977 Shri Charan Singh, Union
Home Minister, addressed a letter to the Chief Ministers of these States
"earnestly commending" for their consideration that they may advise
the Governors of their respective States "to dissolve the State Assembly
in exercise of the power under Article 174(2)(b) and seek a fresh mandate from
the electorate." "This alone", according to the Home Minister's
letter, would be "consistent with constitutional precedents and democratic
practices." In an interview on April 22nd in the "Spot-light programme"
of All India Radio, Shri Shanti Bhushan, Minister for Law, Justice, and Company
Affairs said that "a clear case had been made out for the dissolution of
the Assemblies in the nine Congress-ruled States and holding of fresh
elections", since "a serious doubt had been cast on their enjoying
the peoples' confidence, their party having been rejected in the recent Lok
Sabha elections". A report of this interview appeared in various
newspapers including the 'Statesman' of the 23rd. The correctness of the report
is not disputed.
52 On the 25th/26th April, six out of nine
States filed suits in. this Court under Art. 131 of the Constitution. On the
25th, three. members of the Punjab Legislative Assembly filed Writ Petitions in
this %Court under Art. 32. By a unanimous order dated April 29, we dismissed
the suits and writ petitions as also motions for interim relief. Reasons for
the order remained to be given.
With respect, I agree with the conclusion of
my Lord the Chief Justice but considering that the matter is of a singular
nature, I would like to express my view on some of the issues debated before,
us.
In substance, the suits and writ petitions
have been filed to obtain a declaration that the directive contained in the
Home Minister's letter to the Chief Minister's is unconstitutional, that the,
State Governments are not legally or, constitutionally obliged to comply with
it, that the refusal of the Chief Ministers to give effect to the directive
cannot be made a, basis for the issuance of a proclamation under art. 356 and
that the said article cannot be invoked for the sole purpose of. dissolving the
State Assemblies and holding fresh elections. The Writ Petitioners complain of
the deprivation of their right of property: since, if the Legislative
Assemblies are dissolved, they will be denied the right to receive salary as
members of these Assemblies. An injunction is sought by the plaintiffs and the
petitioners to restrain the Union of India, amongst others, from giving effect
to the Home Minister's directive.
The learned Additional Solicitor-General has
raised a preliminary objection to the maintainability of the suits which may
first be disposed of. Article 131(a) of the Constitution confers on the Supreme
Court, subject to the other provisions of the Constitution, exclusive original
jurisdiction in any dispute between the Government of India and one or more
States, if and in so far as the dispute involves any question (whether of law
or fact) on which the existence or extent of a legal right depends. It is urged
by the Additional Solicitor General that the dispute involved in the suits
filed by the State, Governments is outside the scope of art. 131 since the
dispute is not between the Government of India and State as such, but the
dispute is between the Government of India on the one hand and each of the nine
State Governments on the other. The dispute relates to the question whether the
State Assemblies should be dissolved, and that, according to the counsel, does
not involve any question, on which the existence or extent of a legal right
depends. Whether the. State Assemblies should be dissolved or not is a matter
of political expediency and though the Government for the time being in power
in a State may be interested in the continuance of the Legislative Assembly
'for the full term, the State has no legal right to ensure such continuance.
Indeed, it is urged, the State, apart from
the State Government, is not even interested in the question whether a
particular Legislative Assembly should or should not be dissolved because the
State as a constitutional entity is never interested in the complexion of the
Government. The argument, in other words, is that Legislative Assemblies may
come and go but the State lives for ever and therefore the dispute is outside
the purview of Art. 131.
53 The preliminary objection is based on an
un-pragmatic view of the functioning of the-Constitution and has therefore to
be:
rejected. Article 367 of the Constitution
applies the General
Clauses Act, 1897 for the interpretation of the
Constitution but nothing contained in. section 3(58) of that Act, which defines
"State" or in section 3(60) which, defines "State
Government" helps determine the question whether suits of the present
nature are, foreign to the scope of art. 131. The work-a-day definitions of
"State" and "State Government" contained in the General
Clauses Act neither touch upon the problem of alleged
dichotomy between a State and its government nor do they, even if applied
literally, throw any useful light on. the question whether a dispute regarding
the dissolution of a State Assembly can legitimately be propounded or defended
by the State as a perpetual political entity. Truly, the definitions say no,
more than this : "State" means a State specified in the 1st Schedule
of the Constitution and "State Government" means "The
Governor". All of the six States who have filed the suits in this Court
are included in the 1st Schedule. And though there is a point that turns on the
non-use of the expression "State Government" in art. 131, a point
which I will consider presently, the fact remains that there is no occasion for
applying the dictionary of the, General Clauses Act, section 3(60), to the interpretation of art. 13 1.
The absence of the expression "State
Government" and the use in its place of the expression "State"
in art. 131, is said to furnish intrinsic evidence that for a suit to fall
under that Article, the dispute must arise between the Government of India and
a State, not between the Government of India and the Government of a State. The
intrinsic evidence, it is argued, assumes greater credibility in the context
that the article does employ the expression "Government of India"
when what was meant was the government, as contra distinguisbed from the State.
The presence of the particular expressions in art. 131 does not, in my opinion,
support the inference, suggested on behalf of the Union of India. The use of
the phrase "Government of India" in art.
131 (a) and (b) does not mean that one party
to the dispute has to, be the Government of the day at the Centre.
"Government of India" means
"Union of India" because if there be merit in the logic that art. 131
does not comprehend disputes in which the Government of a. State as contrasted
with the State itself is interested, it must follow that correspondingly, the
"Government of India" too cannot mean the Government for the time
being in power at the centre. The true construction of art. 131(a), true in
substance and true pragmatically, is that dispute must arise between the Union
of India and a State.
This may sound paradoxical because if the
preliminary objection is unsustainable, it would be easier to. say that the
expression "Government of India" means "Government in
office" and the expression "State' means the State as a polity and
not "the Government in Office'. But convenient interpretations are apt to
blur the significance of issues involved for interpretations. Therefore, the
effort has to be to accept what the words truly mean and to, work out the
Constitutional scheme as it may reasonably be assumed to have been conceived.
54 The dispute between the Union of India and
a State cannot but be a dispute which arises out of the differences between the
Government in office at the Centre and the Government in office in the State.
'In office' means 'in power' but the use of the latter expression may prudently
be avoided with the realization of what goes with power. But there is a further
prerequisite which narrows down the ambit of the class of disputes which fall
within Art. 131. That requirement is that the dispute must involve a question,
whether of law or fact, on which the existence or extent of a legal right
depends. It is this qualification which affords the true guide for determining whether
a particular dispute is comprehended within art. 131. Mere wrangles between
governments have no place in the scheme of that article. They have to be
resolved elsewhere and by means less solemn and sacrosanct than a court
proceeding. The purpose of art. 131 is to afford a forum for the resolution of
disputes which depend for their decision on the existence or extent of a legal
right. It is only when a legal, not a mere political, issue arises touching
upon the existence or extent of a legal right that art. 131 is attracted.
It seems to me impossible to hold that the
suits filed by the six States do not raise a dispute involving a question
depending upon the existence or extent of a legal right.
The plaintiffs, by their suits, directly and
specifically question the constitutional right and authority of the Union
Government to issue a directive to the State Governments commending that the
Chief Ministers should tender a certain advice to their Governors. The
plaintiffs also question the constitutional right of the Union Government to
dissolve the State Assemblies on the grounds mentioned in the Home Minister's
letter to the Chief Ministers. Thus a legal, not a political, issue arising out
of the existence and extent of a legal right squarely arises and the suits
cannot be thrown out as falling outside the purview of art. 131.
The error of the preliminary objection lies
in the assumption that it is necessary for attracting art. 131 that the
plaintiff must assert a legal right in itself. That article contains no such
restriction and it is sufficient in order that its provisions may apply that
the plaintiff questions the legal or constitutional right asserted by the
defendant, be it the Government of India or any other State.
Such a challenge brings the suit within the
terms of art.
131 for, the question for the decision of the
Court is not whether this or that particular legislative Assembly is entitled
to continue in office but whether the Government of India, which asserts the
constitutional right to dissolve the Assembly on the grounds alleged, possesses
any such right.
I find it difficult to accept that the State
as a polity is not entitled to raise a dispute of this nature. In a federation,
whether classical or quasi-classical, the States are vitally interested in the
definition of the powers of the Federal Government on one hand and their own on
the other. A dispute bearing upon the delineation of those powers is precisely
the one in which the federating States, no less than the Federal Government itself,
are interested.
The States, therefore, have the locus 55 and
the interest to contest and seek an adjudication of the claim set up by the
Union Government. The bond of constitutional obligation between the Government
of India and the States sustains that locus.
The expression "legal right" which
occurs in art. 131 has to be understood in its proper perspective. In a strict
sense, legal rights are correlative of legal duties and are defined as
interests which the law protects by imposing corresponding duties on others.
But in a generic sense, the word "right" is used to mean an immunity
from the legal power of another immunity is exemption from the power of another
in the same way as liberty is exemption from the right of another. Immunity, in
shirt, is no-subjection."(1) R.W.M. Dias says in his
"Jurisprudence" (1976 Ed. pp.-33-4) that the word "right"
has undergone successive shifts in meaning and connotes four different ideas
concerning the activity, or potential activity, of one person with reference to
another. One of these four jural relationships, according to the learned
author, is the "you cannot" relationship, which is the same thing as
the right of immunity which "denotes freedom from the power of
another" (p. 58). Paton's book on Jurisprudence (3rd Ed. p. 256) contains
a similar exposition of legal rights. The legal right of the States consists in
their immunity, in the sense of freedom from the power of the Union Government.
They are entitled, under art. 131, to assert
that right either by contending in the absolute that the Centre has no power to
dissolve the Legislative Assemblies or with the qualification that such a power
cannot be exercised on the ground stated.
It is true that the State, like the British
Monarch, never dies. A Legislative Assembly may be dissolved, a Council of
Ministers may go out of power, the President's rule may be introduced or
imposed, or an emergency may be declared which can conceivably affect the
States' power in matters legislative and executive. The State survives these
upheavals. But it is constitutionally unsound to say that the State, as a
political entity, has no legal interest in such cataclysmic events and no legal
rights to assert in relation thereto. Were it so, which then are, the legal
rights which the State, as distinguished from its Government, can agitate under
Art. 131 ? Whatever be the nature of the claim, the argument can always be put
forward that the Government, not the State, is interested in making that claim.
Such a rigid interpretation of the scope of art. 131 will virtually reduce it
to a dead-letter and destroy a precious safeguard against the use of arbitrary
power. The interpretation canvassed by the learned Additional Solicitor-General
must therefore, be avoided, in so far as the language of the article permits
it, which in my opinion it does.
The debates of the Constituent Assembly (Vol.
8, pp. 588590) do not throw any fight on the question in issue.
The judgment of this Court in State of Bihar
v. Union of India(2) affords no real assistance on the question arising before
us. In that case, the Court raised three issues in the suits filed under art.
131. The (1) Salamond's jurisprudence 11th Ed. PP. 276-7.
(2) [1970] 2 S.C.R. 522.
56 first issue which related to the question
whether the suits were within the scope of art. 131 was not answered by the
Court because it held on the second issue that the suits were not maintainable,
since, a private party was impleaded thereto, The only assistance which may be
derived from the judgment in that case is that it said that the disputes under
art. 131 should be; "in respect of legal rights and not disputes of a
political character" and that though it was unnecessary to define the
scope of art. 131, "this much is certain that the legal right which is the
subject of dispute must arise in the context of the Constitution and the
Federalism it sets up" (p. 529). These observations do not affect the
constitution which I have placed on art. 131.
1 have endeavoured to show that it is
competent to the State Governments to bring suits of the present nature under
that article and that by these suits, the State Governments are raising a
legal, not a political issue. Their assertion is that the Government of India
does not possess the constitutional power claimed by it and therefore, this
Court should declare that they areimmune from the exercise of that power. The
States assert their legal right, of immunity which, as explained above, denotes
freedom from the power of another.
The preliminary objection raised by the
learned Additional Solicitor General to the maintainability of the suits must
therefore be rejected.
The writ petitions have, however, no cause of
action such as can sustain their petitions for the enforcement of fundamental
rights under art. 32 of the Constitution. They contend that the threatened
dissolution of the, Legislative Assembly of which they are members will
inevitably deprive them of their right to draw the salary to which they are
entitled as such members. That, according to them, is an infringement of art.
19(1) (f) of the Constitution which guarantees to all citizens the right to
acquire, hold and dispose of property.
The grievance made by the petitioners is
contingent on the issuance of a proclamation dissolving the Assembly, which was
not issued till the conclusion of arguments in these matters. Petitions
complaining of the invasion of fundamental rights on hypothetical
considerations are to entertained by this Court under art. 32. But the
proclamation having since been issued, it would be hyper technical to dismiss
the writ petitions on the ground that there was no invasion of the petitioners'
rights on the date when the petitions were filed in this Court.
But the violation of the fundamental right to
property complained of by the petitioners is indirect and remote, not direct or
proximate. By the proclamation issued by the President under art. 356(1) of the
Constitution, the Legislative Assemblies of nine States were dissolved and what
is commonly known as the President's rule was imposed on those States. As a
result, the writ petitioners ceased to, be members of the. Legislative
Assembles. And as a result of their ceasing to be such members, their right to
draw salary, which they could only draw if they were members of the Assemblies,
came to an end. Though the petitioner cannot be denied relief on the ground
that it was not intended by issuing the proclamation to deprive them of their
salary, Yet the writ Petitions are liable to be dismissed on the ground that
the injury to the alleged fundamental right of the petitioners is too indirect
and remote.
57 Nevertheless, I would like to deal with
'lie contention raised by Mr. R. K. Garg on behalf of the writ petitioners that
the proclamation issued by the President under Art.
356(1) of the Constitution cannot have any
force and cannot be acted upon without the approval of both Houses of the
Parliament. This contention is wholly misconceived.
Article 356(1) empowers the President to
issue a proclamation if, on receipt of a report from the, Governor of a State
or otherwise, he is, satisfied that a situation has arisen in which the
government of the State cannot be carried on in accordance with the provisions
of the Constitution. Article 356(3) enjoins that every such proclamation 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. It, is impossible to
hold in view of this express provision that the proclamation can have neither
force nor validity until it is approved by the Parliament.
The scheme of art. 356 is that the;
proclamation issued under it will remain in operation for a period of two
months in any event. If it is approved by resolutions of both the Houses of
Parliament before the expiration of two months, its operation is extended for
the period mentioned in clause (4) of art. 356. But whether or not it is so
approved, the proclamation has an assured life for a period of two months and
its validity during that period cannot be, whittled down by reading into art.
356 a condition precedent in the nature of parliamentary approval which,
plainly, is not to be found therein. The proviso to clause (3) of art.. 356
makes this position clearer still. If the proclamation is issued at a time when
the Lok Sabha is dissolved or its dissolution takes place during the period of
two months, and the Rajya Sabha, but not the Lok Sabha, approves of the
proclamation within two months, it ceases to operate at the expiration of
thirty days from the date on which the reconstituted Lok Sabha first sits. If
before the expiry of the aforesaid period of thirty days, the Lok Sabha too
approves it, its life will be extended for the period mentioned in clause (4).
In other words', the prior approval of the Parliament or ally of its two Houses
is not necessary to give validity to the proclamation. What would happen if the
proclamation is disapproved by either or both Houses of Parliament within two
months does not arise for decision in these proceedings, and though, it would
appear as a matter of constitutionality that the proclamation can nevertheless
remain in operation for a period of two months, it is reasonable to suppose
that faced with such disapproval, a mature political judgment would lean in
favour of the revocation of the proclamation.
Such constitutional crises cannot furnish a
safe clue to the interpretation of the Constitution.
The contrast between the provisions of arts.
356 and 123 is illuminating. Article 123 which empowers the President to
promulgate ordinances provides by clause (2) that every such ordinance shall
cease to operate at the expiration of six weeks from the reassembly of
Parliament; if, however, before the expiry of the six week's period,
resolutions disapproving the proclamation are passed by both Houses, it ceases
to operate upon the passing of the second of those resolutions. Thus, whereas a
proclamation issued by the President under Art. 356 58 continues in operation
for a period of two months in any event, an. ordinance issued by the same
dignitary ceases to operate no sooner than the second of the two resolutions
disapproving is passed by a House of Parliament.
The reason for this distinction is evident
from the language and context of the respective provisions. Article 356 which
occurs in the Chapter called "Emergency Provisions" is intended to be
resorted to in that exceptional class of situations, which though have been
occurring too often, where the government of the State cannot be carried on in
accordance with the provisions of the Constitution. The breakdown of the
Constitution in the affairs and administration of the State is the occasion for
the exercise of the emergency provision contained in art. 356. The framers of
the Constitution perhaps intended that such a serious situation can be dealt
with effectively, only if the President is empowered to issue a proclamation
and that proclamation is given a minimum life of two months, whether the
Parliament approves it or not. On the other hand, the power to issue an
ordinance is limited to occasions when neither of the two Houses of Parliament
is in session.
Since that power is co-related partly to both
Houses of Parliament being in recess, if was provided that the ordinance shall
lapse on the expiry of six weeks from the reassembly of Parliament, and if it
is disapproved by both the Houses within that period, upon the passing of the
second of the two resolutions.
Mr. Garg expressed a grave concern for the
future of democracy, if this be the true interpretation of art. 356.
That argument does not appeal to me because
the same Constitution under which the people of this country resolved to constitute
India into a Sovereign "Democratic" Republic, gave to it a law of
laws containing empowerment to detain its citizens, to pass ordinances and to
declare emergencies.
A declaration of emergency brings in its
trail a host of consequences calculated to impair both the democratic
foundation and the federal structure of our Constitution.
The executive power of the Union then extends
to giving of directions to any State as to the manner in which the executive
power thereof is to be exercised; the power of Parliament to make laws extends
to matters not enumerated in the Union List; the restraints of Art. 19 on the
power of the State to make any law or to take any executive action are removed;
and it is a well-known fact of recent history that the right to move tiny Court
for the enforcement of fundamental rights can be suspended. If the power to
apply such drastic remedies and to pass such draconian laws is a part of the
democratic functioning of the Constitution, it is small wonder that not only
does the Presidential proclamation under art. 356 not require the prior
approval of the Parliament but it has full force and effect for a minimum
period of two months, approvals or no approval. The reason of this rule is that
there may be situations in which it is imperative to act expeditiously and
recourse to the parliamentary process may, by reason of the delay involved,
impair rather than strengthen the functioning of democracy The Constitution
ha-, therefore provided safety-valves to meet extra ordinary situations. They
have an imperious garb and a repressive content but they are designed to save,
not destroy, democracy. The fault, if any, is not in the making of the
Constitution but in the working of it.
It is undoubtedly true that within this
impregnable duration of two months 'the President, acting of course on the
advice of the Council of Ministers, may take various steps under clauses (a) to
(c) of art. 356(1) which, though taken without the approval of the Parliament,
may be irrevocable and cannot be retraced. One such step can be the dissolution
of a State Assembly and the holding of fresh elections thereto. But here too,
as on the last point which I have just discussed, the answer is that the
Constitution expressly confers vast and varied powers on the President if he
arrives at a certain satisfaction. The declaration of a financial emergency
under art. 360(1) carries with it the power to issue directions for reducing
the salaries of persons serving in connection with the affairs of the Union,
including-the Judges of the Supreme Court and the High Court. Clause (2) of
art. 360 makes clause (2) of art. 352 applicable to proclamations of financial
emergencies with the result, that anything done or any action taken during the
period of two months after the issuance of the proclamation, remains inviolable
for that period. That in fact, is the common thread which runs through arts.
352, 356 and 360. The suspension of the right to move any Court for the
enforcement of fundamental rights, the lifting of the prohibition of art. 19 as
against the making of laws and taking executive action, the assumption of
powers under clauses (a), (b) and (c) of art. 356 have full effect while the
proclamations are in operation during the minimum period of two months. Action taken
during those two months, if irrevocable, remains un-remedied.
There is also no substance in the contention
that by issuing a proclamation under art. 356, the President cannot assume the
power to dissolve a State Assembly. By clause (a) of art. 356(1), 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." Article 174(2) (b) empowers the Governor to
"dissolve the Legislative Assembly" from time to time.
It seems to me incapable of any serious
controversy that by reason of the provisions contained in art. 356(1) (a), the
President can exercise the power vested in and exercisable by the Governor
under art. 174(2) (b) to dissolve the Legislative Assembly of the State.
That leaves for consideration an argument
advanced on behalf of the State Governments by Shri Niren De, Shri Gokhale and
the learned Advocate of Himachal Pradesh. Shri Ram Panjwani, supporting Shri
Gokhale, cited texts to support that argument. The core of the argument is that
the Constitutional power to dissolve a legislative assembly is being utilised
by the President for an indirect and oblique purpose, that there is no
justification whatsoever for dissolving the nine State Assemblies and that the
reasons contained in the Home Minister's letter to the Chief Ministers are
wholly inadequate and irrelevant for 5-722SCI/77 60 taking the proposed action.
Several other alternatives, it is urged, are open to the Government of India to
adopt for meeting the situation complained of by the Home Minister but instead
of doing so, they have decided to act drastically by threatening the
dissolution of ,the nine Legislative Assemblies in which the Congress (R) has a
majority. Such naked abuse of power, which is being exercised for liquidating
the Congress (R) governments which are in power in the nine states must, it is
stressed, be struck down as unconstitutional. Mr. Gokhale even argued that
clause (5) of Article 356 which was introduced by the 38th Amendment, giving
finality to the satisfaction of the President and putting it beyond the reach
of Courts, is no bar to striking down a mala fide exercise of power. An order
which lacks bona fides has no existence in the eye of law, says the counsel,
and courts ought not to perpetuate injustice by refusing to interfere with such
orders. These arguments have a familiar, though strange, echo but that is
beside the point. There is no gain saying that the various points of view
presented by the learned counsel require a close attention.
I would like to begin with the assumption,
though that is controverted by the Additional Solicitor-General, that the
proposed proclamation is likely to be founded solely on the reasons contained
in the Home Minister's letter. Even then, I find it hard to conclude that those
reasons are wholly extraneous to or irrelevant for the exercise of the power to
issue a proclamation under art. 356 of the Constitution
The sine qua non of the exercise of that
power is the satisfaction of the President that a situation has arisen in which
the government of the State cannot be carried on in accordance with the
provisions of the Constitution. The reasons contained in the Home Minister's
letter may not be such as to necessarily lead to the conclusion that there is a
break-down of constitutional machinery in the nine States.
But the test of proof by preponderance of
probabilities, leave alone the test of circumstances being consistent with a
sole hypothesis, is entirely out of place in considering the constitutional
validity of a Presidential proclamation.
It is for the President to judge whether a
situation of the particular description has arisen necessitating the issuance
of a proclamation for assumption of all or any of the powers mentioned in
clause (a), (b) and (e) of art. 356(1). He is expected and ought to judge
fairly but we cannot sit in judgment over his satisfaction for determining
whether any other view of the situation is not reasonably possible. So long as
the reasons, if any are disclosed, given for the action proposed or taken, bear
a reasonable nexus with the exercise of the particular power, the satisfaction
of the President must be treated as conclusive. It will then not be open to
judicial scrutiny. It, however, the reasons given are wholly extraneous to the
formation of the satisfaction, the proclamation would be open to the attack
that it is vitiated by legal mala fides.
Such is not the case here. The Home
Minister's letter shows that (i) an unprecedented political situation had
arisen by the virtual rejection, in the recent Lok Sabha elections, of
candidates belonging to the ruling party in various states;
(ii) the resultant climate of uncertainty was
such as to cause grave concern; (iii) the situation had created a sense of
diffidence at different levels of administration; (iv) people at 61 large did
not appreciate the propriety of continuance in power of a party which was
unmistakably rejected by the electorate; and (v) the climate of uncertainty,
diffidence and disrespect had given rise to serious threats to law and order.
It is on the basis of these reasons that the Home Minister concluded that a
fresh appeal to the political sovereign was not only permissible but had become
obligatory. These grounds, cannot with any show of reason, be dismissed as
bearing no rational nexus with the necessity for issuing a proclamation with a
view to dissolving the Legislative Assemblies of the nine States.
Probing at any greater depth into the reasons
given by the Home Minister is to enter a field from which Judges must
scrupulously keep away. That field is reserved for the Politician and the
courts must avoid trespassing into it.
That is not always an easy task because the
line of demarcation that separates 'he functions of this Court from those of
the Government tend to become blurred, when constitutional problems raise
issues concerning the high policies of the executive. In the United States, De
Toqueville noted as early as in 1832 that sooner or later every political
question becomes a judicial question. Leo Preffer therefore thought that though
when the Supreme Court decided Constitutional questions it had the trappings of
a Court of Law, "it is supreme, but it is not really a Court"(1).
This is a wanting well worth remembering but it must not deter the courts from
discharging their functions if they find that a constitutional power meant to
be exercised for preserving democracy is being used for destroying it. The Home
Minister's letter is clearly and indubitably on the safe side of the line and I
see no justification either for questioning the ,bona fides of the case made
out by him in the letter or for doubting the authenticity of the facts stated
therein. As said by Justice Harlan F. Stone in his oft-quoted dissenting
opinion : "Courts are not the only agency of Government that must be
assumed to have capacity to govern" (2).
I need not therefore enter into the question
whether the Government of India has reasons apart from those stated in the Home
Minister's letter for advising the President to issue the proclamation. It they
have, so far so good. They may not choose to disclose them but it they do, as
they have done now, they cannot prevent a judicial scrutiny thereof for the
limited purpose of seeing whether the reasons bear any rational nexus with the
action proposed. I am inclined to the opinion that the Government cannot claim
the credit at the people's bar for fairness in disclosing the reasons for the
proposed action and at the same time deny to this Court the limited power of
finding whether the reasons bear the necessary nexus or are wholly extraneous
to the proposed action. The argument that "if the Minister need not give
reasons, what does it matter if he gives bad ones" overlooks that bad
reasons can destroy a possible nexus and may vitiate the order on the ground of
mala fides. The argument, be it stated, was not made by the learned Additional
Solicitor-General but it is interesting to (1)"This Honourable Court"
by Leo Pfeffer, Indian Reprint 1967, P.7. (2) United States v. Butler-297 U.S.
1, 87.
62 know how it was repelled by Lord Denning
M.R. in Padfield v. Minister of Agriculture, Fisheries and Food(1).
It is also unnecessary to consider the
implications of clause (5) of art. 356 which was introduced by the 38thAmendment,
making the satisfaction of the President final and conclusive, not open to be
questioned in any court, on any ground. I have upheld the validity of the
proclamation on the view that the reasons that are cited in its support bear a
nexus with it.
A large number of decisions were cited on
either side on the question whether the Presidents satisfaction on such issues
is justiciable. The learned Additional Solicitor General relied upon the
decisions of this Court, the Federal Court, the Privy Council and of various
High Courts to show that apart from clause (5) of art. 356, the President's
satisfaction is conclusive and the Courts have no power to go behind it. These
decisions have been discussed fully in his judgment by my Lord the Chief
Justice. In the view I have taken, I prefer to express no opinion on this
question except to state that though the question is treated as
"well-settled", the Privy Council in Stephen Kalong Ninskan v.
Government of Malaysia(1) said :
"Whether a proclamation under, statutory
powers by the Supreme Head of the Federation can be challenged before the
courts on some or any grounds is a constitutional question of far-reaching
importance which, on the present state of the authorities, remains unsettled and
debatable." It would appear that in this branch of constitutional law,
which cannot be entirely divorced from considerations of political policies,
only one proposition may be said to be.
well-settled : "No question in this
branch of law is well settled". The 'political question' is an open sesame
expression that can become a password for gaining or preventing admission into
forbidden fields. And it is an accepted fact of constitutional interpretation
that the content of justiciability changes according to how the judge's value
preferences respond to the multi-dimensional problems of the day. An awareness
of history is an integral part of those preferences. In the last analysis, the
people for whom the Constitution is meant, should not turn their faces away
from it in disillusionment for fear that justice is a will-o'-the-wisp.
These then are my reasons in support of the
unanimous order which the Court passed on April, 29, 1977.
BHAGWATI, J.-Two main questions arise for
consideration in these suits and writ petitions. One is whether the suits are
maintainable under Article 131 and the Writ petitions under Article 32 of the
Constitution, and the other is as to what is the scope and ambit of the power
of the President under Article 356, clause (1) and whether and if so, in what
circumstances, can the Court interfere with the exercise of this power by the
President. The facts giving rise to these suits and writ petitions have been
set out in detail in the judgment (1) L.R. [1968] A.C. 997, 1006.
(2) L.R. [1970] A.C. 379, 392.
63 prepared by the learned Chief Justice and
it would be futile exercise on our part to reiterate them. Hence we proceed
straight to consider the questions that arise for determination. These
questions are of great constitutional significance.
We will first examine the question of
maintainability of the suits and the writ petitions. The writ petitions have
been filed by three legislators from the State of Punjab seeking enforcement of
the fundamental right to property guaranteed to them under Articles 19(1) (f)
and 31. They complain that if the Legislative Assembly of the State of Punjab
is dissolved by the President acting under Article 356, clause (1), as
threatened by the Government of India, they would be deprived of their right to
receive salary as members of the Legislative Assembly and the fight to receive
salary being property, there would be unconstitutional infraction of their
right to property under Articles 19 (1) (f) and 31 and hence they are entitled
to move this Court under Article 32 for preventing such threatened infraction.
This contention is clearly unsustainable. Of course, there can be no doubt, and
indeed it must be said in fairness to the learned Additional Solicitor General
who argued the case with great ability, that he did not contend to the
contrary, that if there is a threatened violation of a fundamental right, the
person concerned is entitled to approach this Court under Article 32 and claim
relief by way of injunction as in a quia timet action. But the difficulty here
in the way of the petitioners is that it is not possible to say that by the
threatened dissolution of the Legislative Assembly, any fundamental right of
the petitioners would be infringed. It is only where there is direct invasion
of a fundamental right or imminent danger of such invasion that a petitioner
can seek relief under Article 32. The impact on the fundamental right must be
direct and immediate and not indirect or remote. Merely because, by the
dissolution of the Legislative Assembly, the petitioners would cease to be
members and that would incidentally result in their losing their salary, it
cannot be said that the dissolution would infringe their right to property.
That would be the indirect effect of the dissolution but that is not sufficient
to constitute infraction of the fundamental right to property. If the argument
of the petitioners were correct, even a civil servant dismissed in violation of
a legal or constitutional provision by the Government of India or a State
Government or even an authority falling within the definition of 'State' in
Article 12 would be entitled to complain that by reason of the dismissal, be
has been deprived of his right to salary and hence it is competent to him to
approach this Court under Article 32 challenging his dismissal as invalid on
ground of violation of Articles 19 (1) (f) and 3 1. This surely could never
have been intended by the constitution-makers. The direct impact of the
dissolution of the Legislative Assembly would be, that the petitioners would
cease to be members and obviously no one has a fundamental right to continue as
a member of a legislative assembly. It is true that if the petitioners cease to
be the members of the Legislative Assembly, they would lose their right to
receive salary, but that would be the result of their ceasing to be the members
of the Legislative Assembly and not the direct consequences of the dissolution
of the Legislative Assembly. We are. therefore.
of the view that the threatened dissolution
of the Legislative Assembly does not involve 64 any infraction' of the
fundamental right guaranteed to the petitioners under Articles 19 (1) (f) and
31 and since no other fundamental right has been relied upon by the
petitioners, it must be held that they are not entitled to maintain the writ
petitions under Article 32.
That takes us to the question of
maintainability of the suits. There are six suits before us filed by the States
of Rajasthan, Madhya Pradesh, Punjab, Bihar, Himachal Pradesh and Orissa. Each
of these suits has been filed under Article 131 of the Constitution. This
Article confers original jurisdiction on the Supreme Court, to the exclusion of
all other courts, in respect of certain categories of suits and is in the
following terms "131. Subject to the provisions of this Constitution, the
Supreme Court shall, to the exclusion of any other court, have original
jurisdiction in any dispute(a) between the Government of India and or more
States; or (b) between the Government of India and any State or States on one
side and one or more other States on the other, or (c) between two or more
States, if and in so far as the dispute involves any question (whether of law
or fact) on which the existence or extent of a legal right depends.
Provided that the said jurisdiction shall not
extend to a dispute arising out of any treaty, agreement, covenant, engagement,
sanad or other similar instrument which, having been entered into or executed
before the commencement of the Constitution, continues in operation after such
commencement, or which provides that the said jurisdiction shall not extend to
such a dispute." There are two limitations in regard to the nature of the
suit which can be entertained by the Supreme Court under this Article. One is
in regard to parties and the other is in regard to the subject matter. The
Article provides in so many terms in clauses (a), (b) and (c) that the dispute
must be between the Government of India and one or more States, or between the
Government of India and any other State or States on one side and one or more
other States on the other, or between two or more States. It does not
contemplate any private,, party being arrayed as a disputant on one side or the
other. The par-, ties to the dispute must fall within one or the other category
specified in clauses (a), (b) and (c). That was established by a decision of
this Court in State of Bihar v. Union of India & Anr.(1) where this Court
pointed out : " a dispute which falls within the ambit of Article 131 can
only be determined in the forum mentioned therein, (1) [1970]2 S.C.R. 522 65
namely, the Supreme Court of India, provided there has not been impleaded in
any said dispute any private party, be it a citizen or a firm or a corporation
along with a State either jointly or in the alternative. A dispute in which
such a private party is involved must be brought before a court, other than
this court, having jurisdiction over the matter." This is the limitation
as to parties. The other limitation as to subject-matter flows from the words "if
and in so far as the dispute involves any question (whether of law or fact) on
which the existence or extent of a legal right depends." These words
clearly indicate that the dispute must be one relating to a legal right and not
a dispute on the political plans not based on a legal right, for instance, to
take an example given by Mr. Seervai in his well known work on 'Constitutional
Law of India' at page 1385 : "a claim that a State 'project should be
included in the Five-Year Plan." The dispute must, therefore, involve
assertion or vindication of a legal right of the Government of India or a
State. It is not necessary that the right must be a constitutional right. All
that is necessary is that it must be a legal right. It is true that in the
State of Bihar v. Union of India & Anr. (supra) this Court, while
discussing the scope of the dispute which may be determined by the Supreme
Court under Article 131, happened to make an observation that "this much
is certain that the legal right which is the subject of dispute must arise in
the context of the Constitution and the federalism it sets up." But this
observation, in so far as it suggests that the legal right must be one which
arises under the Constitution, goes much further than what the language of
Article 131 warrants. The Article speaks only of 'legal right' and does not
qualify it by any other words. It may be noted that the provision in the
corresponding section 204 of the Government of India Act, 1935 was
significantly different. It contained a proviso that the dispute must inter
alia concern the interpretation of the Government of India Act, 1935 "or
of an Order in Council made there under or the extent of the legislative or
executive authority vested in the Federation by virtue of the Instrument of
Accession of that State." This provision has been deliberately and
designedly omitted in Article 131 and now any legal right can be enforced by a
suit in the Supreme Court provided the parties fill the character specified in
clauses (a), (b) and (c). The question which therefore requires to be
considered in determining the maintainability of the suits is whether any legal
right of the States is sought to be vindicated in the suits. We shall presently
consider this question, but before we do so, we must point out one other error
in which, with the greatest respect, the learned Judges who decided the case of
State of Bihar v. Union of India & Anr. (supra) seem to have fallen. They
held that in a suit under Article 131 one only order which the Supreme Court.
could make was a declaration adjudicating on the legal right claimed in the
suit and once such a declaration was given., the function of the Supreme Court
under Article 131 was at an end. If this conclusion were correct, then
obviously the present suits seeking permanent injunction restraining the
Government of India from issuing a proclamation under Article 356, clause (1)
could not lie and equally no interim injunction could be granted by this Court
but the learned Additional Solicitor General, with his usual candour, and
fairness, conceded that he was not in a position to support this view. This
view seems to be erroneous and for two very good reasons.
66 In the first place, it overlooks the fact
that whereas subsection (2) of section204 of the Government of India Act, 1935
provided that the Federal Court, in exercise of its original jurisdiction,
shall not pronounce any judgment, other than a declaratory judgment, no such
provision limiting the power of the Supreme Court in regard to the relief to be
granted is to be found in Article 131. The power of the Supreme Court to grant
relief in a suit under Article 131 is not restricted only to 'declaratory
judgment'. Secondly, as pointed out by Mr. Seervai in his book at page 1385,
"when a court is given exclusive jurisdiction in respect of a dispute
between the parties, it is reasonable to hold that the court has power to
resolve the whole dispute", unless its power is limited by express words
or by necessary implication. There is no such limitation in Article 131 and hence
it is not correct to say that the Supreme Court can only give a declaratory
judgment in a suit under Article 131. The Supreme Court would have power to
give whatever reliefs are necessary for enforcement of the legal right claimed
in the suit if such legal right is established.
Turning now to the question whether the
present suits seek to enforce any legal right of the State, it. is necessary to
have a look at a few provisions of the Constitution. Save for the purpose of
Part III 'State' is not defined in the Constitution, but by reason of Article
367, clause (1), it must be given the same meaning which it has under the General Clauses Act,
1897. Section 3, clause (56) of the General
Clauses Act, 1897 defines 'State', inter alia, to
mean "a State specified in the first Schedule to the Constitution".
The States of Rajasthan, Madhya Pradesh, Punjab, Bihar, Himachal Pradesh and
Orissa are States specified in the First Schedule and hence they are States
within the meaning of the Constitution. Article 1, clause (1) declares that
India, that is Bharat, shall be a Union of States and a State is consequently a
constituent part of the Union of India. Part VI of the Constitution contains
provisions regarding the States. Article 153 says that there shall be a
Governor for each State and under Article 154 the executive power of the State
is vested in the Governor and has to be, exercised by him either directly or
through officers subordinate to him in accordance with the Constitution.
Article 163 provides for a Council of Ministers with a Chief Minister at the
head to aid and advice the Governor in the exercise of his functions except in
respect of. a limited area where he is by or under the Constitution required to
exercise his functions or any of them in his discretion. There is no express
provision in the Constitution requiring the Governor to act in accordance with
the advice of the Council of Ministers as there is in the newly amended Article
74, clause (1) in regard to the President, but it is now well settled as a
result of the decision of this Court in Shamsher Singh & Anr. v. State of
Punjab(1) that except in the narrow minimal area covered by Articles 163 (2),
371A(1) (b) and (d), 371A(2) (b) and (f) and sixth Schedule, Para 9(2), the
Governor also is bound to act according to the advice of the Council of
Ministers.
This is broadly the scheme of the provisions
in regard to (1) [1975] S.C.R. 814.
67 the exercise of the executive power of the
States. The legislative power of the State is exercisable by the Legislature
under Article 168 and according to that Article, the Legislature of the State
is to consist of the Governor and the Legislative Assembly, together with the
Legislative Council in some of the States. Article 172 provides that every
Legislative Assembly of a State, unless sooner dissolved, shall continue for
six years from the date appointed for its first meeting. Originally the term
was five years, but it was extended to six years by the Forty Second
Constitution Amendment Act. Article 213 deals with a situation where the
Legislature is not in session and provides that in such a case the Governor may
legislate by promulgating ordinances when he is satisfied that circumstances
exist which render it necessary for him to take immediate action. It will thus
be seen that under the provisions of the Constitution the executive power of
the State is exercisable by the Governor aided and advised by a Council of
Ministers and the Legislative power, by the Legislature of the State and in an
emergent situation when the Legislature is not in session, by the Governor.
Now, in order to determine whose legal right
would be violated by the threatened action under Article 356, clause (1), we
must proceed on the assumption that such action, when taken, would be
constitutionally invalid, because if it were valid, there would be no cause for
complaint. The question is : who would have cause of action if unconstitutional
action were taken under Article 356, clause (1) ? If the executive power of the
State vested in the Governor were taken away by the President or the
legislative power of the State were exercisable not by the Legislature of the
State or the Governor, but by or under the authority of Parliament or the
Legislature of the State were &solvedall these being actions which can be
taken under Article 356, clause (1)-who would be aggrieved ? Can the State say
that its legal right is infringed? We believe it can. Is it not the right of
the State under the Constitution that its executive power shall be exercisable
by the Governor except when any functions of the State Government or any powers
of the Governor are assumed by the President by valid exercise of power under
Article 356, clause (1) ? Is it not competent to the State to insist that it
shall continue to have its legislature for making its laws, until its term
expires or it is validly dissolved? Is it not a constitutional right of the
State that its laws shall be made by its legislature, unless the President
declares, in exercise of the power under Article 356, clause (1), that the
powers of the legislature of the State shall be exercisable by or under the
authority of Parliament ? These rights of the State under the Constitution.
would certainly be affected by invalid exercise of power under Article 356,
clause (1).
The learned Additional Solicitor General or
behalf of the Government of India contended that the expression 'State' in
Article 131 is not synonymous with 'State Government' and there is intrinsic
evidence in the Article that the two are distinct. When the functions of the
State Government are unconstitutionally assumed by the President, it is the
State Government which would be aggrieved and not the State.
68 There is no legal right in a State to be
governed by a particular Council of Ministers. So also when a Legislative
Assembly is dissolved, it is the individual right of the members which may be
affected and not the right of the State. Discussion of a Legislative Assembly
is not tantamount to dissolution of the State, so as to give rise to a cause of
action in the State. The learned Additional Solicitor General fairly conceded
that if the office of the Governor or the Legislative Assembly of the State
were to be abolished altogether, it might affect a legal right of the State,
because the State is entitled to have a Governor and a Legislative Assembly
under the Constitution, but his argument was that mere assumption of the powers
of the State Government or taking away the power to make laws for the State
from the Legislature and making it exercisable by or under the authority of
Parliament or dissolution of the Legislative Assembly would not affect any
legal right of the State. This contention is not well founded and cannot be
sustained.
It is true that there is a distinction
between 'State' and 'State Government' and this distinction is also evident
from the language of' Article 131 'and, therefore, what has to be seen for the
purpose of determining the applicability of that Article is whether any legal
right of the State, as distinct from the State Government, is infringed. Now,
undoubtedly, a State has no legal right to insist that it shall have a
particular Council of Ministers or particular persons as members of the
Legislative Assembly. But a State has certainly a right under the Constitution
to say that its executive and legislative powers shall be exercisable in the
manner provided in the Constitution. If a legal right of a State can be said to
have been infringed when its Legislative Assembly is abolished, it is difficult
to see how any other conclusion can follow when the Legislative Assembly is not
abolished but suspended or dissolved. In the former case, the State is
unconstitutionally deprived of its legislative organ and its legislative power
is given over to another authority : in the letter, the constitutionally
appointed organ remains but it is made ineffectual for a period during which
the legislative power is unconstitutionally vested in another authority. 'We
fail to see any difference in the two situations so far as the State is
concerned. The position is the same whether the constitutionally appointed
organ for exercise of legislative power is amputated or paralysed. If one
affects the legal right of the State, equally the other does. It may be that if
a Legislative Assembly is suspended or dissolved and the legislative power of
the State become,,, exercisable by or under the authority of Parliament by
reason of Presidential action under Article 356, clause (1), the individual
rights (A the members of the Legislative Assembly may be affected, but that
does not mean that the legal right of the State would also not thereby be
infringed. Unconstitutional exercise of power by the President under Article
356, clause (1) may injuriously affect rights of several persons. It may
infringe not only the individual rights of the members of the Legislative
Assembly, but also the constitutional right of the State to insist that the
federal basis of the political structure set up by the constitution shall not
be violated by an unconstitutional assault under Article 356, clause (1), we
are, therefore, of the view, that: the present suits seek to enforce a legal right
of the States arising under the Constitution and the suits cannot be thrown out
in limine as being outside the scope and ambit of Article 131. We must proceed,
to consider the suits on merits.
The important and serious question which
arises for consideration on merits is as to what is the scope and ambit of the
power under Article 356, clause (1). Can the President in exercise of this
power dissolve a State Legislature, and if so, are there any limitations on
this power ?,To answer this question, it is necessary to examine the scheme and
language of different clauses of Article 3,56 and the object and purpose for
which it has been enacted.
Article 356 occurs in Part XVIII which
contains a fasciculus of articles from Article 352 to 360 dealing with emergency
provisions. One of us (Bhagwati, J.) has occasion to point out in Additional
District Magistrate, Jabalpur v. S. S.
Shukla(1) that there are three types of
emergency which may cause crisis in the life of a nation. The first is where
the security of the country is threatened by war or external aggression : the
second arises on account of threat or presence of internal disturbance
calculated to disrupt the life of the country and jeopardize the existence of
constitutional Government and the third is occasioned when there is break down
or potential break down of the economy threatening the financial stability or
credit of the country. The first two types of emergency are dealt with in
Article 352, while the third type is dealt with in Article 360. Article 352,
clause (1) provides that if the President is satisfied that a grave emergency
exists whereby the security of India or of any part of its territory is
threatened, whether by war or external aggression or internal disturbance, be
may, by proclamation, make a declaration to that effect and clause (2) of that
Article requires that such Proclamation shall be laid before each House of
Parliament and "it shall 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". The constitutional implications of a
declaration of emergency under Article 352, clause (1) are vast and they are
provided in Articles 250, 353, 354, 358 and 359. The emergency being an exceptional
situation, arising out of a, national crisis, certain wide and sweeping power-,
have been conferred on the Central Government and Parliament with a view to
combat the situation and restore normal conditions. One such power is that
given by Article 250 which provides that while a Proclamation of Emergency is
in operation, Parliament shall have the power to make laws for the whole or any
part of the territory of India with respect to any of the matters enumerated in
the State List.
The effect of this provision is that the
federal structure based on separation of powers is put out of action for the
time being. Another power of a similar kind is that conferred by Article 353
which says that during the time that Proclamation of Emergency is in force. the
executive power of the Union shall extend to the giving of direction to any
State as to the manner in which the executive power thereof is to be exercised.
This provision also derogates from the federal principle which forms the basis
of the Constitution. This departure from the constitutional principle of
federalism is permitted by the Constitution because of the extraordinary
situation arising out of threat to the continued existence of constitutional
democratic Government. Then we come to Article, 355 which enjoins a duty on 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 the Constitution. Article 356 contains
provisions for dealing with another kind of emergent situation arising from
failure of constitutional machinery in the States and, so far as material,
reads as follows "356. (1) If the President on receipt of a report from
the Governor of a 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 way by Proclamation(a)
assume to himself all or any of the functions of the Government of the State
and all or any of the powers vested in or exercisable by the Governor or anybody
or authority in the State other than the Legislature of the State;
(b) declare that the powers of the
Legislature of the State shall be exercisable by or under the authority of
Parliament, (c) make such incidental and consequential provisions as appear to
the President to be necessary or desirable for giving effect to the objects of
the Proclamation, including provisions for suspending in whole or in part the
operation of any provisions of this Constitution relating to anybody or
authority in the State;
Provided that nothing in this clause shall
authorise the President to assume to himself any of the powers vested in or
exercisable by a High Court, or to suspend in whole or in part the operation of
any provision of this Constitution relating to High Courts.
(2)Any such Proclamation may be revoked or
varied by a subsequent Proclamation.
(3)Every Proclamation under this article
shall be laid before each House of Parliament and shall, except where it is a
Proclamation revoking a previous Proclamation, cease to operate at the
expiration of two months unless before the expiration of that period it has
been approved by resolutions of both Houses of Parliament:
(5)Notwithstanding anything in this
Constitution, the satisfaction of the President mentioned in clause (1) shall
be final and conclusive and shall not be questioned in any court on any
ground." 71 Since some reliance was placed on behalf of the petitioners in
the writ petitions on Article 357, clause (1), we shall reproduce the relevant
part of that clause in these terms :
357. (1) Where by a Proclamation issued under
clause (1) of article 356, 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(c) for the President to authorise 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." Now it is
obvious on a plain natural construction of the language. of Article 356, clause
(1) that the President can take action under this clause only if, on receipt of
a report made by the Governor of a State or otherwise he is satisfied that a
situation has arisen in which the Government of the State cannot be carried on
in accordance with the provisions of the Constitution. The satisfaction of the
President that a situation has arisen in which the government of a State.
cannot be carried on in accordance with the provision of" the Constitution
is a condition precedent which must be fulfilled before the President can take
action under Article 356, clause (1). When this condition precedent is
satisfied, the President may take action under Article 356, clause (1) and
exercise all or any of the powers specified in sub-clauses (a), (b) and (c) of
that clause. The exercise of these powers plainly and unmistakably strikes at
the root of the federal principle because it vests the executive power of the
state which, in the federal structure set up by the Constitution, is
exercisable by the Governor with the aid and advice of his Council of
Ministers, in the President and takes away the powers of the Legislature of the
State and they become exercisable by or under the authority of Parliament. The
administration of the State is for all purposes taken over by the President
which means in effect and sub stance the Central Government since by reason of
Article 74, clause (1) and even otherwise, the President is bound by the advice
of his Council of Ministers and the legislative power of the State is also
transferred to the Parliament. The President can also dissolve the Legislative
Assembly of the State, because when he assumes to himself all the powers of the
Governor under Article 356, clause (1) sub-clause (a) one of the powers assumed
by him would be the power to dissolve the Legislative Assembly under Article
174 (2) (b). It will thus be seen that Article 356, clause (1) authorises
serious inroad into the principle of federalism enacted in the Constitution and
that is permitted because, in the 'subjective satisfaction of the President, a
situation has arisen in which the government of the State cannot be carried on
in accordance with the provisions of the Constitution. It is the duty of the
Union under Article 355 to ensure that the government of the State is carried
on in accordance with the provisions of the Constitution, and, therefore, when
the President finds that a situation has arisen in which the Government of the
State cannot be carried on, he can act under Art. 356 Cl. (1) indeed it 72
would be his constitutional obligation to do so and put the federal mechanism
out of action so far as that State is concerned. This is indeed a very drastic
power which, if misused or abused, can destroy the Constitutional equilibrium
between the Union and the States and its potential for harm was recognised even
by the constitutionmakers. Dr. Ambedkar pointed out in his speech while winding
up the debate on this Article :
"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 the objection applies to every part of the Constitution
which gives power to the Centre to over-ride the Provinces. In fact I share the
sentiments expressed by my honourable friend Mr. Gupta 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." But despite the lurking danger in article, the constitution makers
thought that there was no alternative in case of breakdown of constitutional
machinery in the States and hence they adopted this article, even though it was
analogous to the hated section 93 which disfigured the Government of India Act,
1935 symbolising British dominance over nationalist aspirations. The
constitution-makers, conscious as they were of the serious consequences flowing
from the exercise of this power, limited it by hedging its exercise with the
condition that the President should be satisfied that the Government of the
State cannot be carried on in accordance with the provisions of the
Constitution Now, when On the satisfaction of the condition limiting the
exercise of the power, a proclamation is issued by the President under Article
356, clause (1), it can be revoked or varied at any time by a Subsequent
proclamation under clause (2) of Article 356. Clause (3) of Article 356, Eke
clause (2) of Article 352, require& that every Proclamation issued under
Article 356, clause (1) shall be laid before each House of Parliament and it
shall cease to operate at the expiration of two months unless before the
expiration of that period, it has been approved by resolution of both Houses of
Parliament. The learned counsel appearing on behalf of the petitioners in the
writ petitions contended that it is clear from the provision enacted in Article
356, clause (3) that the exercise of power by the President under cause (1) is
subject to the control of both Houses of Parliament. The Proclamation issued by
the President under Article 356, clause (1) would cease to be in force at the
expiration of two months unless it is approved by both Houses of Parliament,
and, therefore, no irretrievable action such as dissolution of the legislative
Assembly of the State can be taken by the President before the approval of both
the Houses of Parliament is given to the Proclamation. Otherwise the
parliamentary control would be defeated and 73 it would be possible for the
Central Government to present a fait accompli to the two Houses of Parliament
and neither House would be able to remedy the mischief done, even if it
disapproved the Proclamation' Moreover, either House of Parliament may
disapprove the Proclamation even before the expiry of two months and where that
happens, the President would be bound to revoke the Proclamation immediately,
because the proclamation cannot continue in defiance of, the will of either
House of Parliament "without destroying the collective responsibility of
the Council of Ministers to the House. ". It was also urged that during
the period of two months, no power can be exercised in virtue of the
Proclamation which would-bring about a final and irrevocable consequence, if
the President has reason to believe that either House of Parliament may not
approve it, or also the control of both Houses of Parliament would be
completely set at naught and the executive would be able to take irreversible
action like dissolution of the Legislative Assembly by passing both Houses of
Parliament and ignoring their wishes altogether. That would be plainly contrary
to the basic principles of democratic Government. Reliance was also placed on
Article 357, Clause (1), sub-clause (c) and it was pointed out that whereby a
Proclamation issued under clause (1) it has been declared that the powers of
the Legislature of the State shall be exercisable by or under the authority of
Parliament, no expenditure out of the Consolidated Fund of the State can be
incurred without appropriation made by Parliament, but when the House of the
People is not in session, the President can incur such expenditure pending
sanction by Parliament. This means that if the House of the People is in
session at the time of issue of the Proclamation or as soon as it assembles
after the issue of the Proclamation, the President would immediately have to go
to Parliament for sanction of expenditure and if Parliament does not sanction,
the expenditure would be unauthorised and the President would not be able to
exercise his functions. There is thus effective Parliamentary control over the
President, that is, the Central Government, through the purse and hence during
the period of two months, the President cannot take any action involving
expenditure out of the Consolidated Fund of the State unless he is assured that
such expenditure would be sanctioned by Parliament. The suggestion was chat
since the ruling party at the Centre has no majority in the Rajya Sabha, the
President cannot issue a Proclamation authorising him to discharge functions
involving expenditure out of the Consolidated Fund of the State. These
arguments urged on behalf of the petitioners raise a question of construction
of clause (1) to (3) of Article 356.
Now, if we look at the language of clauses
(1) to (3) of Article 356 it is clear that once a Proclamation is validly
issued by the President under clause (1), it has immediate force and effect and
its efficiency is not made dependent on the approval of both Houses of
Parliament. There is no provision in' any clause of Article 356 or in any other
Article of the Constitution that the President shall have no power to issue a
Proclamation under clause (1) when either or both Houses of Parliament are-in
session., The only limitation on the exercise of the power of the President to
issue a proclamation is that he should be satisfied that the Government of the
State cannot be carried on 74 in accordance with the provisions of the
Constitution.
Where the President is so satisfied, and, as
pointed out above, the President means the Central Government, he can issue a
proclamation even when either or both Houses of Parliament are in session. The
President is given this power because immediate action may have to be taken
when an exceptional situation has arisen on account of breakdown of constitutional
machinery in the State. It is an emergency power and it has necessarily to be
vested in the Central Government because quick and immediate action may be
necessary to avert or combat constitutional break down in the State and
moreover a constitutional obligation is laid on the Union to ensure, that the,
Government of every State is carried on in accordance with the provisions of
the Constitution. Any delay in taking action may in conceivable cases frustrate
the very object and purpose of conferment of this power on the President.
Promptness may be the essence of effectiveness in such cases and public
interest may suffer on account of tardiness in action.
Hence the power conferred on the President
under Article 356, clause (1) is not limited by the condition that it cannot be
exercised when either or both 1-louses of Parliament are in session. Then
again, clause (3) of Article 356 provides that a proclamation issued under
clause (1) shall 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. This means that it shall continue to operate for a period
of two months, unless sooner revoked. It is only for the purpose of its
extension beyond two months that the approval of both Houses of Parliament is
required by clause (3) of Article 356. If no such approval is forthcoming the
proclamation cannot continue after the expiration of two months, but until then
it certainly continues and has full force and effect. It may be noted that
clause (3) of Article 356 does not say that the proclamation shall be operative
only on approval by both Houses of Parliament, nor does it provide that it
shall cease to operate even before the expiry of two months, if disapproved by
either House of Parliament, it is interesting to compare the language of Clause
(3) of Article 356 with that of Article, 123. clause (2) in this connection,
Article 123, clause (1) confers power on the President to promulgate an
ordinance during recess of Parliament when he is satisfied that circumstances
exist which render it necessary for him to take immediate action and clause (2)
of that Article provides that such ordinance "shall cease to operate at
the expiration of six weeks from the reassembly of Parliament, or if before the
expiration of that period resolutions disapproving it are passed by both
Houses, upon the passing of the second of those resolutions". The
ordinance would continue to operate until the expiration of six weeks from the
reassembly of Parliament unless before that date is disapproved by both Houses
of Parliament. But when we come to clause (3) of Article 356, we find that a
different scheme in regard to the life of a proclamation issued under clause
(1) is adopted in that clause. Clause (3) of Article 356 does not confer power,
on the two Houses of Parliament to put an end to the proclamation by
disapproval before the expiration of the Period of two months and it is only if
the life of the proclamation is to he extended beyond the period of two months
that is required to be approved by both 75 Houses of Parliament, it is,
therefore, clear that disapproval by the either House of the Parliament before
the expiration of two months has no constitutional relevance to the life of the
Proclamation and the proclamation would continue in force for a period of two
months ,despite such disapproval.
It would be clear from this discussion that
when a proclamation is validly issued by the President under Article 356,
clause (1), it has immediate force and effect, the moment it is issued and
where, by the proclamation, the President has assumed to himself the powers of
the Governor under sub-clause (a), he is entitled to exercise those powers as
fully and effectually as the Governor, during the period of two months when the
Proclamation is in operation.
There is no limitation imposed by any Article
of the Constitution that these powers, of the Governor can be exercised by the
President only when they have no irreversible consequence and where they have
such consequence, they cannot be exercised until the proclamation is approved
by both Houses of Parliament. Whilst the proclamation is in force during the
period of two months, the, President can exercise all the powers of the
Governor assumed by him and the Court cannot read any limitation which would
have the effect of cutting down the width and amplitude of such powers by
confining their exercise only to those cases where no irretrievable consequence
would ensure which would be beyond repair. When any power of the Governor is
assumed by the President under the Proclamation, the President can, during the
two months when the proclamation is in force, do, whatever the Governor could
in exercise of such power, and it would be immaterial whether the consequence
of exercise of such power is final and irrevocable or not. To hold otherwise
would be, to refuse to give full effect to the proclamation which as pointed
out above, continues to operate with full force and vigour during the period of
two months. It would be rewriting Article 356 and making approval of both
Houses of Parliament a condition precedent to the coming into force of the
proclamation so far as the particular power is concerned.
Now one of the powers of the Governor which
can be assumed by the President under the proclamation is the power to dissolve
the Legislative Assembly of the State under Art.
174(2) (b) and, therefore, the President also
can dissolve the Legislative Assembly during the time that the proclamation is
in force. It is difficult to see bow the exercise of this power by the
President can be made conditional on the approval of the proclamation by the
two Houses of Parliament. If the proclamation has full force and effect during
the period of two months even without approval by the two Houses of Parliament,
the President certainly can exercise the power of the Governor to dissolve the
Legislative Assembly of the State without waiting for the approval of the
proclamation by both Houses of Parliament. It is true that once the Legislative
Assembly is dissolved by the President in exercise of the power assumed by him
under the proclamation, it would be impossible to restore the status quo ante
if the proclamation is not approved by both Houses of Parliament, but that is
the inevitable consequence flowing from the exercise, of the power which the
President undoubtedly Possesses during the time that the Proclamation is in
force.
This is clearly a necessary power because
there may conceivably be 6--722SCI/77 76 cases where the exercise of the power
of dissolution of the Legislative Assembly may become imperative in order to
remedy the situation arising on account of breakdown of the constitutional
machinery in the State and failure to exercise this power promptly may
frustrate the basic object and purpose of a proclamation.......... under
Article 356, clause (1). It is, therefore, not possible to accede to the
argument of the petitioners, in the writ petitions that during the period of
two months before approval of the proclamation by the two Houses of Parliament,
no irreversible action, such as dissolution of the Legislative assembly of the
State, can be taken by the President. The power to dissolve the Legislative
Assembly of the State cannot also be denied to the President on the ground that
the proclamation may not be approved by one or the other House of Parliament.
In the first place, the existence of a constitutional power or the validity of
its exercise cannot be determined by reference to a possible contingency. The
Court cannot enter the realm of conjecture and surmise and speculate as to what
would be the position at the expiration of two months whether the proclamation
will be approved by both Houses of Parliament or not. Secondly, it is entirely
immaterial whether or not the proclamation is approved by both Houses of
Parliament, because even if it is not so approved, it would continue to be in
full force and effect for a period of two months, unless sooner revoked. It is
also difficult to appreciate how Article 357, clause (1), sub clause (c) can
possibly assist the argument of the petitioners. That sub-clause provides that
when the House of the People is not in session, the President can authorise
expenditure out of the Consolidated Fund of the State pending receipt of sanction
of such expenditure by the Parliament and consequently, it is possible that if
Parliament does not sanction such expenditure, serious difficulty might arise.
But that is merely a theoretical possibility which in practical reality of
politics would hardly arise and it need not deflect us from placing on the
language of Article 356 the only correct interpretation which its language
bears. When the President issues a proclamation on the advice of the Central
Government, it stands to reason that the House of the People in which the
Central Government enjoys majority would sanction expenditure out of the
Consolidated Fund of the State. We are, therefore, of the view that even during
the period of two months, without the approval of the proclamation by, both
Houses of Parliament, the President can dissolve the Legislative Assembly of
the State in exercise of the power of the Governor under Article 174(2) (b)
assumed by him under the proclamation.
This is the correct constitutional
interpretation of clause (1) and (3) of Article 356 guided by the language of
these clauses and the context and setting in which they occur. It might appear
at first blush that this constitutional interpretation would completely
eliminate the Parliamentary central over the issue of proclamation and exercise
of powers under it and the Central Government would be free to take over the
administration of the State and paralyse or even dissolve the Legislative
Assembly, even if it should appear that one or the other House of Parliament might
not approve it. But 'this apprehension 77 need not cause any undue anxiety, for
it is based primarily on the possibility of abuse of the Power conferred under
Article 356, clause (1). It must be remembered that merely because power may
sometime be abused, it is no ground for denying the existence of the power. The
wisdom of man has not yet been able to conceive of a government with power
sufficient to answer all its legitimate needs and at the same time incapable of
mischief. In the last analysis, a great deal must depend on the wisdom and
honesty, integrity and character of those who are in charge of administration
and the existence of enlightened and alert public opinion.
Moreover, it is apparent that a piquant
situation of considerable complexity and extra-ordinary consequences may arise
if either House of Parliament disapproves of the proclamation and, therefore,
political and pragmatic wisdom of the highest order and circumspection of
utmost anxiety would necessarily inform the Central Government before
exercising the weighty power conferred by Article 356, clause (1). Furthermore,
it must be remembered that the principle of cabinet responsibility to
Parliament lies at the core of our democratic structure of Government and the
Central Government is accountable for all its actions to Parliament which
consists of elected representatives of the people and if any action is taken by
the Central Government which is improper or unjustified by moral, ethical or
political norms, Parliament would certainly be there to bring them to book. The
Political control exercised by Parliament would always be a salutary check
against improper exercise of power or its misuse or abuse by the executive.
And lastly the powers conferred on the
President, that is, the Central Government, being a limited power, its exercise
would, within the narrow minimal area, which we shall indicate later, be
subject to judicial review ability.
These are the safeguards which must alley the
apprehension that the Central Government may act want only or capriciously in
issuing a proclamation under Article 356, clause (1) by passing and ignoring
the two Houses of Parliament.
That takes us to the next question whether
any injunction can be granted against the Union of India restraining it from issuing
a proclamation and dissolving the Legislative Assemblies of the States under
Art. 356, cl. (1), for that is the primary relief claimed by the States in the
suits.
This question has been argued on a demurrer
as if the averments made in the plaints were correct. We shall presently
consider this question, but before that, we may dispose of a short point in
regard to what has been described as a 'directive' by Shri Charan Singh Home
Minister to the Central Government, to the Chief Ministers of the States
concerned in the, suits (hereinafter referred to as the Plaintiff States). Each
of the plaintiff states has sought a declaration that the 'directive' of Shri
Charan Singh is 'Unconstitutional, illegal and ultra vires the
Constitution" and an injunction restraining the Union of India from giving
effect to this 'directive'. We fail to see how such declaration or injunction
can be granted by the Court. The 'directive' of Shri Charan Singh is nothing
but an advice or suggestion to the Chief Minister of each plaintiff State to
recommend to the Governor dissolution of the Legislative Assembly of the
concerned State. It has been wrongly described as a 'directive'. It has no
constitutional authority behind it. It is always open to the Home 78 Minister
of the Central Government to give advice or suggestion to the Chief Minister of
a State and the Chief Minister may accept or reject such advice or suggestion
according as he thinks fit. The advice or suggestion has no binding effect on
the Chief Minister and no legal consequence flow from it. Hence it is not
possible to say that the 'directive' issued by Shri Charan Singh was
unconstitutional, illegal or ultra vires. There is also no, question of giving
effect to the 'directive' and no injunction can, therefore, be granted
restraining its implementation. The 'directive', if not accepted and carried
but would certainly be a precursor to action under Art. 356, cl. (1) and,
therefore, may be regarded as indicative of a threat, but standing by itself,
it does not give rise to any cause of action in the State for declaration or
injunction. Turning to the relief sought against the threatened exercise of
power under Art. 356, cl. (1) we find that what is prayed for in this relief is
'permanent injunction restraining the defendant from taking recourse under Art.
356 of the Constitution of India to dissolve the Legislative Assembly of the
State and from taking any steps from holding fresh elections to the State
Assembly before March, 1978." It is indeed difficult to appreciate, how
such a wide and sweeping injunction can be granted by this Court restraining
the Union of India from exercising altogether its powers under Art. 356, cl.
(1). How can the Union of India be prevented by this Court from discharging its
constitutional obligations to the State. We have already pointed out that there
is a constitutional duty enjoined on the Union of India to ensure that the
Government of every State is carried on in accordance with the provisions of
the Constitution and there is equally a constitutional obligation on the
President that is, the Central Government, to, take action under Art. 356, Cl.
(1), if he finds that a situation has arisen where the Government of the State
cannot be carried on in accordance with the provisions of the Constitution. Can
this Court issue a blanket order against the Union of India that whatever be
the situation which may develop in the State and howsoever necessary it may
become to exercise the power under Art. 356 cl. (1), the Union of India shall
not take recourse, to that power to dissolve the Legislative Assembly of the
State and hold fresh elections, to the State Legislative Assembly before March,
1978. That would clearly obstruct its discharge of the constitutional
obligations by the Central Government and no such injunction can be issued by
this Court. Realising this difficulty in their way, the plaintiff-States sought
to limit the relief of injunction by confining it only to the ground set out in
the 'directive' of Shri Charan Singh and in the statement made by Shri Shanti
Bhushan, Law Minister, at a talk on the All India Radio given by him. That
ground, according to the plaintiff-States, was that since the Congress which
was the ruling party in these States suffered a massive defeat at the General
Elections to the Lok Sabha held in March 1977, the Legislative Assemblies of
these States no longer reflected the wishes or views of the electorate and
hence a fresh appeal to the political sovereign had become necessary and
obligatory and the Legislative Assemblies of these States should, therefore, be
dissolved with a view to obtaining a fresh mandate from the electorate. It was
contended on behalf of the PlaintiffStates that this was the only ground on
which Central Government proposed to take action under Art. 356, cl. (1) and
since this ground was wholly extraneous and 79 irrelevant to the basic
condition for taking action under Art. 356, cl. (1), the Central Government was
constitutionally not entitled to take. action under this clause and if any such
action were taken by the Central Government, it would be outside the limits of
its constitutional authority. The learned Additional Solicitor General combated
this contention by giving a two-fold answer. First, he contended that it was
not correct to say that the points of view expressed by Shri Charan Singh and
Shri Shanti Bhushan constituted the only material or ground for the possible
action under Art. 356, cl. (1). He urged that the points of view of these two
ministers could not be equated with the advice which the Council of Ministers
might give to the President under Art. 74, cl. (1) in regard to the dissolution
of the Legislative Assemblies of the Plaintiff-States. The exercise of power
under Art. 356, cl.
(1), it was said, depends on a wide range, of
situations depending upon varied and diverse considerations and it is not
possible to say what grounds might ultimately weigh with the Council of
Ministers in giving their advice to the President under Art. 74, cl. (1).
Secondly he urged that in any event the ground that the, Legislative Assemblies
of the Plaintiff-States had ceased to reflect the will of the electorate and,
therefore, in order to ascertain the will of the people, and give effect to it,
it was appropriate that the Legislative Assemblies should be dissolved and
election should be held, was a ground which had reasonable nexus with the basic
condition for invoking the exercise of power under Art. 356, cl. (1) and it was
a legitimate and relevant ground which could be taken into account in arriving
at the satisfaction that the Government of the State cannot be carried on in
accordance with the provisions of the Constitution. These were the rival
contentions of the parties which we must now proceed to consider.
But before we do so, we must at the threshold
refer to one other argument of the learned Additional Solicitor General which
sought to exclude the jurisdiction of the Court in relation to a question of
this kind. He contended that the question whether in. a particular State a
situation has arisen where the Government of the State cannot be carried on in
accordance with the provisions of the Constitution and, therefore. action
should be taken under Art. 356, cl. (1) is essentially a political question
entrusted by the Constitution to the Union executive and on that account it is
not justiciable before the Court. He urged that having regard to the political
nature of the problem, it is not amenable to judicial determination and hence
the Court must abstain from inquiring into, it. We do not think we can accept
this argument. Of course, it is true that if a question brought before the
Court is purely a political question not involving determination of any legal
or constitutional right or obligation, the Court would not entertain it, since
the Court is concerned only with adjudication of legal rights and liabilities.
But merely because a question has a political complexion, that by itself is no
ground why the Court should shrink from performing its duty under the
Constitution if it raises an issue of constitutional determination. Every
constitutional question concerns the allocation and exercise of governmental
power and no constitutional question can, therefore, fail to be political. A
constitution is a matter of purest politics, a structure of power and as
pointed out by Charles Black in 80 Perspectives in Constitutional law'
"constitutional law' symbolizes an intersection of law and politics,
wherein issues of political power are acted on by persons trained in the legal
tradition, working in judicial institutions, following the procedures of law,
thinking as lawyers think".
It was pointed out by Mr. Justice Brennan in
the Opinion of the Court delivered by him in Baker v. Carr,(1) an apoch making
decision in American constitutional history, that "the mere fact that the
suit seeks protection, of a political right does not mean that it presents a
political question." This was put in more emphatic terms in Nixon v. Herndon(2)
by saying that such an objection "is little more than a play upon
words". The, decision in Baker v. Carr, (Supra) was indeed a striking
advance in the field of constitutional law in the United States. Even before
Baker v. Carr., the courts in the United States were dealing with a host of
questions 'political' in ordinary comprehension.
Even the desegregation decision of the
Supreme Court in Brown v. Board of Education(3) had a clearly political
complexion. The Supreme Court also entertained questions in regard to the
political right of voting and felt no hesitation about relieving against racial
discrimination in voting and in Gomillion v. Lightfoot(4), it did this even
when the racial discrimination was covert, being achieved by so redrawing a
municipal boundary as to exclude virtually all Negroes, and no whites, from the
city franchise. It is true that in Colegrove v. Green(5) the Supreme Court
refused relief against Congressional districting inequities in illinois, but
only three out of seven Justices who sat in that case based their decision on
the ground that the question presented before them was political and
non-justiciable and this view was in effect and substance reversed by the
Supreme Court in Baker v. Carr. The Supreme Court in Baker v. Carr, held that
it was within the competence of the federal Courts to entertain an action
challenging a statute apportioning legislative districts as contrary to the
equal protection clause. This case clearly decided a controversy which was
political in character, namely, apportioning of legislative districts but it
did so because a constitutional question-of violation of the equal protection
clause was directly involved and that question was plainly and indubitably
within the jurisdiction of the Court to decide.It will, therefore,be seen that
merely because a question has a political colour, the Court cannot fold its
hands in despair and declare as a question arises whether an authority under
the constitution has acted within the limits of its power or exceeded it, it
can certainly be decided by the Court. Indeed it would be its constitutional
obligation to do so. It is necessary to assert in the clearest terms,
particularly in the context of recent history, that the Constitution is Suprema
lex, the paramount law of the land, and there is no department or branch of
government above or beyond it. Every organ of government, be it the executive
or the legislature or the judiciary, derives its authority from the
Constitution and it has to act (1) 369 U.S. 186.
(2) 273 U.S. 536.
(3) 347 U.S. 483.
(4) 364 U.S. 339.
(5 ) 328 U.S. 549.
81 within the limits of its authority. No one
howsoever highly placed and no authority howsoever lofty can claim that it
shall be the sole judge of the extent of its power under the Constitution or
whether its action is within the confines of such power laid down the
Constitution. This Court is the ultimate interpreter of the Constitution and to
this Court is assigned the delicate task of determining what is the power
conferred on each branch of government, whether it is limited, and if so, what
are the limits and whether any action of that branch transgresses such limits.
It is for this Court to uphold the ,constitutional values and to enforce the
constitutional limitations. That is the essence of the rule of law. To quote
the words of Mr. Justice Brennan in Baker v. Carr, "Deciding whether a
matter has in any measure been committed by the Constitution to another branch
of government or whether the action of that branch exceeds whatever authority
has been committed, is itself a delicate exercise in constitutional
interpretation and is a responsibility of this Court as ultimate interpreter of
the Constitution". Where there is manifestly unauthorised exercise of
power under the Constitution, it is the duty of the Court to intervene. Let it
not be forgotten, that to this Court as much as to other branches of
government, is committed the conservation and furtherance of democratic values.
The Court's task is to identify those values in the constitutional plan and to
work them into life in the cases that reach the Court. "Tact and wise
restraint ought to tamper any power but courage and the acceptance of
responsibility have their place too". The Court cannot and should not
shirk this responsibility, because it has sworn the oath of alligance to the
Constitution and is also accountable to the people of this Country. There are
indeed numerous decisions of this Court where constitutional issues have been
adjudicated upon though enmeshed in questions of religious tenets, social
practices, economic doctrines or educational policies. The Court has in these
cases adjudicated not upon the social, religious, economic ,or other issues,
but solely on the constitutional questions brought before it and in doing so,
the Court has not been deterred by the fact that these constitutional questions
may have such other overtones or facets. We cannot, therefore, decline to
examine whether there is any constitutional violation involved in the President
doing what he threatens to do, merely on the facile ground that the question is
political in tone, colour or complexion.
But when we say this, we must make it clear
that the constitutional jurisdiction of this Court is confined only to saying
whether the limits on the power conferred by the Constitution have been
observed or there is transgression of such limits. Here the only limit on the
Power of the President under Art. 356, cl. (1) is that the President should be
satisfied that a situation has arisen where the Government of the State cannot
be carried on in accordance with the provisions of the Constitution. The
satisfaction of the President is a subjective one and cannot be tested by
reference to any objective tests. It is deliberately and advisedly subjective
because the matter in respect to which he is to be satisfied is of such a
nature that its decision must necessarily be left to the executive branch of
Government. There may be a wide range of situations which may arise and their
political implications and consequences may have to be evaluated in order to
decide whether 82 the situation is such that the Government of the State cannot
be carried on in accordance with the provisions of the Constitution. It is not
a decision which can be based on what the Supreme Court of United States has
described as "judicially discoverable and manageable standards." It
would largely be a political judgment based on assessment of diverse and varied
factors, fast changing situations, potential consequences, public reaction,
motivations and responses of different classes of people and their anticipated future
behavior and a host of other considerations, in the light of experience of
public affairs and pragmatic management of complex and often curious
adjustments that go to make up the highly sophisticated mechanism of a modern
democratic government. It cannot, therefore, by its very nature be a fit
subject matter for judicial determination and hence it is left to the
subjective satisfaction of the Central Government which is best in a position
to decide it. The Court cannot in the circumstances, go into the question of
correctness or adequacy of the facts and circumstances on which the
satisfaction of the Central Government is based. That would be a dangerous
exercise for the Court, both because it is not a fit instrument for determining
a question of this kind and also because the Court would thereby usurp the
function of the Central Government and in doing so, enter the 'Political
thicket', which it must avoid if it is to retain its legitimacy with the
people. In fact it would not be possible for the Court to undertake this
exercise, apart from total lack of jurisdiction to do so, since by reason of
Art. 74 cl. (2), the question whether any and if so what advice was tendered by
the Ministers to the President cannot be enquired into by the Court, and
moreover, "the steps taken by the responsible Government may be founded on
information and apprehensions which are not known to and cannot always be made,
known to, those who seek to impugn what has been done.,' (Vide Ningkan v.
Government of Malay sica (1). But one thing is certain that if the satisfaction
is mala fide or is based on wholly extraneous and irrelevant grounds, the Court
would have jurisdiction to examine it, because in that case there would be no
satisfaction of the President in regard to the matter which he is required to
be satisfied. The satisfaction of the President is a condition precedent to the
exercise of power under Art. 356, cl. (1) and if it can be shown that there is
no satisfaction of the President at all, the exercise of the power would be constitutionally
invalid. Of course by reason of cl. (5) of Art. 356, the satisfaction of the
President is final and conclusive and cannot be assailed on any ground but this
immunity from attack cannot apply where the challenge is not that the
satisfaction is improper or unjustified, but that there is, no satisfaction at
all. In such a case it is not the satisfaction arrived at by the President
which is challenged, but the existence of the satisfaction itself.
Take, for example, a case where the President
gives the reason for taking action under Art. 356, cl. (1) and says that he is
doing so, because the Chief Minister of the State is below five feet in height
and, therefore, in his opinion a situation has arisen where the Government of
the State cannot be carried on in accordance with the provisions of the
Constitution. Can the so called satisfaction of the President in such a case
not be challenged on the ground that it is absurd or perverse or mala fide or
based on (1) [1970] A.C. 379.
83 a wholly extraneous and irrelevant ground
and is, therefore, no satisfaction at all. It must of course be concerned that
in most cases it would be difficult, if not impossible, to challenge the
exercise of power under Art. 356, cl. (1 ) even on this limited ground, because
the facts and circumstances on which the satisfaction is based would not be
known, but where it is possible, the existence of the satisfaction can always
be challenged on the ground that it is mala fide or based on wholly extraneous
and irrelevant grounds. This proposition derives support from the decision of
the Judicial Committee of the Privy Council in King Emperor v. Banwari Lal
Sarma(1) where Viscount Simon, L.C.
agreed that the Governor General in declaring
that emergency exists must act bona fide and in accordance with his statutory
powers. This is the narrow minimal area in which the exercise of power under
Art. 356, cl. (1) is subject to judicial review and apart from it, it cannot
rest with the Court to challenge the satisfaction of the President that the
situation contemplated in that clause exists.
Let us now turn to the facts and examine them
in the light of the principle discussed. It would seem from the above
discussion that if it can be established affirmatively (1) that the proposed
action of the President under Art. 356, Cl. (1) would be based only on the
(,round that the Legislative Assemblies of the Plaintiff-States have ceased to
reflect the will of the electorate and they should, therefore, be dissolved
with a view to giving an opportunity to the people to elect their true
representatives and (2) that this ground is wholly extraneous and irrelevant to
the question which the President has to consider for the purpose of arriving at
the requisite satisfaction, the Plaintiff States might have a case for
injunction against the Union of India. But we are afraid that neither of these
two propositions can be said to be established in the present suits.
Re : Proposition 1 : It is not possible to
accede to the argument of the Plaintiff-StaLes that the ground that the
Legislative Assemblies of the Plaintiff-States have lost the mandate of the
people and no longer reflect the will of the electorate is the only ground on
which the President would act, in case he decides to exercise the power under
Art.
356, Cl. (1), which, subsequent to, the
making of our order on 29th April, 1977, he has in fact done. It is true that
this ground is mentioned in the 'directive' of Shri Charan Singh and the
statement of Shri Shanti Bhushan, but it would be hazardous in the extreme to
proceed on the assumption that this would be the only ground before the Council
of Ministers when it considers whether or not to take action under Art. 356,
Cl. (1). There may be other grounds before the Council of Ministers which may not
have been articulated by Shri Charan Singh and Shri Shanti Bhushan. It is also
possible that in a rapidly changing situation, new grounds may emerge by the
time the Council of Ministers considers the question and these grounds may
persuade the Council of Ministers to decide to take action under Art. 356, Cl.
(1).
The Court cannot equate the points of view
expressed by Shri Charan Singh and Shri Shanti Bhushan with the advice of the
Council of Ministers nor can the Court speculate as to what would be (1) 72
I.A. 57.
84 the grounds which would ultimately weigh
with the Council of Ministers. Moreover, it may be noted that this is not the
only ground referred to in the 'directive' of Shri Charan Singh. He has also
after referring to the virtual rejection in the Lok Sabha elections, of the
candidates belonging to the ruling party in the Plaintiff-States, pointed out
The resultant climate of uncertainty is causing grave concern to us. We have
reasons to believe that this has created a sense of diffidence at different
levels of Administration. People at large do not any longer appreciate the
propriety of continuance in power of a party which has been unmistakably
rejected by the electorate. The climate of uncertainty, diffidence and
disrespect has already given rise to serious threats to law and order."
The premise on which the entire superstructure of the argument of the
Plaintiff-States is based is thus wanting.
Re : Proposition 2 : It is not necessary to
consider the question arising under this proposition on the view taken by us in
regard to the first proposition, but since the question was argued before us in
some detail, we think it proper to express our opinion upon it. The question is:
can the ground that the Legislative Assembly
of a State has ceased to reflect the will of the electorate and that the
Legislative Assembly and the electorate are at variance with each other be said
to be wholly extraneous and irrelevant for the purpose of Art. 356. Cl. (1) ?
Has it any nexus with the matter in regard to which the President is required
to be satisfied under Art. 356, Cl. (1) ? Does it bear at all on the carrying
of the Government of the State in accordance with the provisions of the
Constitution ? Now, we have no doubt at all that merely because the ruling
party in a State suffers defeat in the elections to the Lok Sabha or for the
matter of that, in the panchayat elections, that by itself can be no ground for
saying that the Government of the State cannot be carried on in accordance with
the provisions of the Constitution. The Federal structure under our
constitution clearly postulates that there may be one party in power in the
State and another at the Centre. It is also not an unusual phenomenon that the
same electorate may elect a majority of members of one party to the Legislative
Assembly, while at the same time electing a majority of members of another
party to the Lok Sabha.
Moreover, the Legislative Assembly, once
elected, is to continue for a specific term and mere defeat at the elections to
the Lok Sabha prior to the expiration of the term without anything more would
be no ground for its dissolution. The defeat would not necessarily in all cases
indicate that the electorate is no longer supporting the ruling party because
the issues may be different. But even if it were indicative of a definite shift
in the opinion of the electorate, that by itself would be no ground for
dissolution, because the Constitution contemplates that ordinarily the will of
the electorate shall be expressed at the end of the term of the Legislative
Assembly and a change in the electorate's will in between would not be
relevant.
It may be noted that the Constitution does
not 85 provide for a right of recall, individual or collective. If such a
provision were there it might have perhaps justified the argument that the
ruling party in the State having lost in the elections to the Lok Sabha, the
continuance of the Legislative Assembly would not be in accordance With the
provisions of the Constitution. To dissolve the Legislative a provision, the
defeat of the ruling party in a State at the Lok Sabha elections cannot by
itself, without anything more, support the inference that the Government of the
State cannot be carried on in accordance with the provisions of the
Constitution. To dissolve the Legislative Assembly solely on such ground would
be an indirect exercise of the right of recall of all the members by the
President without there being any provision in the Constitution for recall even
by the electorate. The situation here is, however, wholly different. This is
not a case where just an ordinary defeat has been suffered by the ruling party
in a State at the elections to the Lok Sabha. There has been a total rout of
candidates belonging to the ruling party. In some of the Plaintiff States, the
ruling party has not been able to secure a single seat. Never in the history of
this country has such a clear and unequivocal verdict being given by the
people, never a more massive vote of no-confidence in the ruling party. When
there is such crushing defeat suffered by the ruling party and the people have
expressed themselves categorically against its policies, it is symptomatic of
complete alienation between the Government and the people.
It is axiomatic that no Government can
function efficiently and effectively in accordance with the Constitution in a
democratic set up unless it enjoys the goodwill and support of the people.
Where there is a wall of estrangement which divides the Government from the
people, and there is resentment and antipathy in the hearts of the people
against the Government, it is not at all unlikely that it may lead to
instability and even the administration may be paralysed.
The consent of the people is the basis of
democratic form of Government and when that is withdrawn so entirely and unequivocally
as to leave no room for doubt about the intensity of public feeling against the
ruling party, the moral authority of the Government would be seriously
undermined and a situation may arise where the people may cease to give respect
and obedience to governmental authority and even conflict and confrontation may
develop between the Government and the people leading to collapse of
administration. These are all consequences which cannot be said to be unlikely
to arise from such an unusual state of affairs and they may make it impossible
for the Government of the State to be carried on in accordance with the
provisions of the Constitution, Whether the situation is fraught with such
consequences or not is entirely a matter of political judgment for the
executive branch of Government. But it cannot be said that ,such consequences
can never ensue and that the ground that on account of total and massive defeat
of the ruling party in the Lok Sabha elections, the Legislative Assembly of the
State has ceased to reflect the will of the people and there is complete
alienation between the Legislative Assembly and the people is wholly extraneous
or irrelevant to the purpose of Art.
356, Cl. (1). We hold that on the facts and
circumstances of the present case this ground is clearly a relevant ground
having reasonable nexus with the matter in regard to which the President is
required to be satisfied before taking action under Art. 356. Cl. (1).
86 These are the reasons which have prevailed
with us in making our order dated 29th April, 1977 dismissing the Suits and
Writ Petitions and rejecting the prayer for interim injunction.
GOSWAMI, J.-We already dismissed the suits
and the writ petitions on April 29,1977, and accordingly rejected the prayers
for interim injunctions. We promised to give our reasons later and the same may
now be stated.
The facts of all these matters appear in the
judgment of the learned Chief Justice and need not be repeated.
The fundamental questions 'involved in these
suits are these, (1) Do the suits lie under Article 131 of the Constitution of
India ? (2) What is the scope of Article 356 vis-avis the Court's jurisdiction
? (3) If the suits lie, is there a case, for permanent injunction and,. as an
intermediate step, for an interim temporary injunction ? (4) Have the writ
petitioners any fundamental rights to maintain their applications under Article
32 of the Constitution?' In these suits as well as in the Writ Petitions the
central issue that is involved is the constitutional right of a Council of
Ministers to function as the Government of a State and of a Legislative
Assembly to continue until expiry of its term provided for in the Constitution.
The suits are filed under Article 131 of the,
Constitution.
Article 131 gives this Court exclusive
original jurisdiction in any dispute(a) between the Government of India and one
or more States or (b) between the Government of India and any State or States,
on one side and one or more other States on the other : or (c) between two or
more States.
Although the expression used in Article 131
is any dispute, the width of the expression is limited by the words that follow
in respect of the nature of dispute that can be entertained by this Court in
its original jurisdiction. It is only a dispute which involves any question of
law or fact on which the, existence or extent of a legal right of the
contending party depends that can be the subject matter of a suit under Article
131. The dispute should be in respect of legal rights and not disputes of
political character. The Article, thus, refers to the parties that may be
arrayed in the litigation as well as to the subject matter of the dispute. (See
State of Bihar v. Union of India & Anr.).(1) (1)[1970] 2 S.C.R. 522.
87 The suits are, in form, being filed by the
States of Rajasthan, Madhya Pradesh, Punjab, Bihar, Himachal Pradesh and
Orissa. But is the dispute sought for adjudication within the scope or ambit of
Article 131 ? That is the first question.
In a parliamentary form of Government when
one Government is replaced by another, the State's continuity is not snapped.
There may come a moment in the life of a
Government when it may cease to be truly representative of the people and,
therefore, the. interest of the State as a polity or legal entity and that of
the Government established on party system may cease to be identical. In such a
situation, factual or imminent, a suit by a State Government in the name of the
State against the Union Government's action in defence, of the former's
legitimate existence and right of continuance will not relate to the legal
right of the State.
The judgment, whether in truth and reality a
particular situation exists or is portentously imminent, may be correct or
incorrect, but it is a political issue. The Court's jurisdiction is not
political but entirely judicial.
The right of a particular State to sue is not
always equivalent to the right of the Council of Ministers in all matters. Even
if a Government goes the State lives.
Whether a particular Council of Ministers can
survive threats to their existence depends no doubt immediately on its ability
to enjoy the confidence of the majority in the Legislature, but also, in the
last resort, in its ability to enjoy the confidence of the political sovereign,
the electorate. The questions affecting the latter domain are.
of highly political complexion and appertain
to political rights of the Government and not to legal rights of the State. The
rights agitated by the plaintiffs are principally of the Governments concerned
who are interested in continuing the legislatures whose confidence they enjoy.
On the other hand, it is claimed by the Home
Minister in his letter that these Legislatures have lost the mandate of the
people and that there is clear evidence ,of their having lost the confidence of
the people as a result of the verdict in the recent general election to the
Parliament. The Court is not concerned whether this is a (correct assessment or
not. The Union Government is entitled to take political decisions. However,
even if a political decision of the Government of India affects legal rights of
the State as a legal entity, the existence and extent of that right will be
triable under Article 131. The question is, are legal rights of the State
involved in the dispute ? Article 131 speaks of a legal right. That legal right
must he that ,of the State. The dispute about a legal right, its existence or
extent, must be capable of agitation between the Government of India and the
States. The character of the dispute within the scope of Article 131 that
emerges is with regard to, a legal right which the States may be able to claim
against the Government. For example, the State as a party must affirm a legal
right of its own which the Government of India has denied or is interested in
denying giving rise to a cause of action. For the purpose of deciding whether
Article 131 is attracted the subject matter of the dispute, therefore, assumes
great importance.
Part VI deals with the States. The word
"State" is not defined for the purpose of Article 131 in Part V. The
"State" is, however, defined under Article 12 for the purpose Part
III (Fundamental Rights). This is the definition also for Part IV (Directive
principles of State, Policy). Under Article 367(1), the provisions of the General Clauses Act,
1897, are a applicable for interpretation of the constitution. Section 3(58) of
the General Clauses Act defines State, after the
commencement of the Constitution (Seventh Amendment), Act, 1956, to mean a
State specified in the First Schedule to the Constitution and shall include a
Union Territory. The First Schedule to the Constitution describes 22 States and
9 Union Territories. The State Government is separately defined under section
3(60) of the General Clauses Act-thus keeping the distinction. Article 131 of
the Constitution relates to legal rights of the State or of the Government of
India.
Any violation of the provisions of the
Constitution impinging on the rights of the States or of the Government of
India will be justiciable under Article 131. Similarly, boundary disputes or
disputes relating to rival claims to receipts from taxes and other duties
between two States are cognizable by this Court, to refer only to a few
instances.
Now in these above mentioned cases the rights
of the State as a legal entity distinguished from the Government, being the
executive agent, will be involved. Even if one Government is replaced by
another Government, such a dispute will not abate or disappear since the State
endures and the cause of action survives.
Keeping in view the, above concept, we will
undertake to examine the nature of the dispute which is involved in these
suits. Shortly stated the States apprehend a grave threat to the assumption of
the executive functions of, the State by the President on non compliance with
the advice or direction contained in the letter of the Home Minister. It is
true that the threat to an illegal action also furnishes a cause of action for
a suit or proceeding.
Under Article 172(1) all the State
Assemblies, except Orissa, will continue, if not dissolved earlier, for a
period of six years from the date appointed for its first meeting and in that
view in the normal course will continue for some more months. The Legislative
Assembly of' the State of Orissa, on the other hand, having held its election
in 1974, will in the normal course continue till 1980 unless earlier dissolved.
The States apprehend that this normal life of the Legislatures is going to be
snapped resulting in the, annihilation of their legal and constitutional rights
under Article 172(1). That furnishes a cause of action for the suits for
permanent injunction according to the plaintiffs.
The dispute is this : The Home, Minister,
Government of India, is asking the Chief Ministers of the Governments of the
States to advise the Governors to dissolve the Legislative Assemblies. The
Chief Ministers declined to accept the advice and filed the suits. What is the,
nature of this dispute ? On the one hand there is the claim 89 of a right to
continue the present Government of the State and necessarily to continue the
Legislative Assembly and on the other the right to take action under Article
356 by the President to assume functions of the State Government.
'This dispute involves a major issue of great
constitutional importance and the aggrieved party may have other appropriate. Forum
to complain against any substantial injury Even so, it is not a dispute between
the State on the one hand and the Government of India on the other. It is a
real dispute between the Government of the State and the Government of India.
It is, no doubt a question of life and death for the State Government but not
so for the State as a legal entity. Even after the dissolution of the Assembly
the State will continue to have a Government for the time being as provided for
in the Constitution in such a (contingency.
A Legislature of the State under Article 168
consists of the Governor and the Legislative Assembly or where there is a
Legislative Council both the, Houses. This also has its significance in
comprehending the nature of the dispute.
The members constituting the State
Legislature of which the Council of Ministers is the executive body, alone, do
not even constitute the State Legislature. The Governor is an integral part of
the State Legislature under the Constitution. The rights of the Council of
Ministers or of the members of the State Legislature cannot, therefore, be
equated with the rights of the State even though those rights may be those of
the State Government, pro tempore.
The distinction between the, State and the
Government is brought out with conspicuous clarity in the following passages :"The
distinction between the State and its Government is analogous to that between a
given human individual, as a moral and intellectual person, and his material
physical body : By the term State is understood the political person or entity
which possesses the law making right. By the term Government is understood the
agency through which the will of the State is formulated, expressed and
executed. The Government thus acts as the machinery of the State, and those who
operate this machinery............. act as the agents of the
State."(") "In all constitutionally organised States the State
is permitted to sue in the courts not only with reference to its own
proprietary or contractual interests, but also in behalf of the general
interests of its citizen body.
When appearing as plaintiff in the latter
capacity it is known as Parens Patriae. This jurisprudential doctrine is stated
in the Cyclopedia of Law and Procedure as follows :'A State, like any other
party, cannot maintain a suit unless it appears that it has such an interest in
the subject-matter thereof as to authorise the bringing of the suit by it.
(1) The Fundamental Concepts of Public Law by
Westel W. Willoughly, page 49.
90 In this connection, however, a distinction,
should be noted between actions by the people or by the State in a sovereign
capacity, and suits founded on some pecuniary interest for proprietary
right'." (1) "The value of the distinction between State and
government is the possibility it offers of creating institutional mechanisms
for changing the agents of the state, that is, the government, when the latter
shows itself inadequate to its responsibilities." (2) I am clearly of
opinion that the, subject matter of the dispute in these suits does not
appertain to legal rights of the States concerned to satisfy the requirement of
Article 131 of the Constitution. These suits are, therefore, not maintainable
in law and on this ground they are liable to be dismissed.
With regard to the Writ Petitions I had the
opportunity to go through the judgments of my brothers Bhagwati and Gupta and I
entirely agree with their reasoning and conclusion. I am clearly of opinion
that there is no violation of the fundamental rights guaranteed to the
petitioners under Articles 19(1)(f) and 31 of the Constitution as a consequence
of the threatened dissolution of the Legislative Assembly. 'the Writ Petitions
are, therefore, not maintainable and are liable for rejection.
Since, however, the question of mala fides of
the proposed action of the Home Minister was argued at length with a pointed
focus on the ensuing Presidential, election, I should touch on the point.
It is submitted that these grounds, ex facie,
are completely irrelevant and extraneous and even mala fide. Mr. Niren De
referred to the decision of the Privy Council in KingEmperor v. Benoari Lal
Sarma and Others(3) and read to us the following passage :
"It is to be observed that the section
(72 of Government of India Act, 1935) does not require the Governor-General to
state that there is an emergency, or what the emergency is either in the text
of the ordinance or at all, and assuming that he acts bona fide and in
accordance with his statutory powers, it cannot rest with the courts to
challenge his review that the emergency exists." Relying on the above
passage, Mr. De submits that this Court is entitled to examine whether the
direction is mala fide or not.
(1) The Fundamental Concepts of Public Law by
Westel W. Willoughly pp. 487-488.
(2) The State in Theory and practice by
Harold J. Laski, page 25.
(3) 72 I.A. 57, 64.
91 The Additional Solicitor General has drawn
our attention to Bhagat Singh and Others v. The King-Emperor(1) which is a
decision of the Privy Council followed in Benoari Lai Sarma's case (supra) He
read to us the following passage "A state of emergency is something that
does not permit of any exact definition. If connotes a state of matters calling
for drastic action, which is to be judged as such by someone. It is more than
obvious that someone must be the Governor-General, and he alone. Any other view
would render utterly inept the whole provision. Emergency demands immediate
action, and that action is prescribed to be taken by the GovernorGeneral. It is
he alone who can promulgate the Ordnance." The President in our
Constitution is a constitutional head and is bound to act on the aid and advice
of the Council of Ministers (Article 74). This was the position even before the
amendment of Article 74(1) of the Constitution by the 42nd Amendment (See
Shamsher Singh & Anr. v. State of Punjab) (2). The position has been made
absolutely explicit by the amendment of Article 74(1) by the Constitution 42nd
Amendment which says "there shall be a Council of Ministers with the Prime
Minister at the head to aid and advise the President who shall, in the exercise
of his functions, act in accordance with such advise." What was judicially
interpreted even under the un-amended Article 74(1) has now been given
parliamentary recognition by the Constitution Amendment. There can, therefore,
be no doubt that the decision under Article 356 of the Constitution which is
made by the President is a decision of the Council of Ministers.
Because certain reasons ate given in the
letter of the Home Minister, it cannot be said that those will, be the only
grounds which will weigh with the Council of Ministers when they finally take a
decision when the advise has been rejected by the Chief Ministers. There are so
many imponderables that may intervene between the time of the letter and the
actual advice of the Council of Ministers to the President. There may be
further developments or apprehension of developments which the Government may
have to take not of and finally when the Council of Ministers decides and
advises the President to issue a proclamation under Article 356, the Court will
be barred from enquiring into the advice that was tendered by the Cabinet to
the President (Article 74(2). Then again under Article 356(5), the satisfaction
of the President in issuing the proclamation under Article 356(1) shall be
final and conclusive and shall not be questioned in any court on, any ground.
In the view I have taken, I am not required to consider in the matters before
us whether Article 356(5) of the Constitution is ultra vires the Constitution
or not.
Even the Additional Solicitor General based
his arguments on the very terms of Article 356(1) de hors Article 356(5)
relying upon Bhagat Singh's case (supra) that the subjective satisfaction of
the President is not justiciable. It is in (1) 58 I.A. 169, 172.
(2) [1975] 1 S.C.R. 814.
7-722 SCI/77 92 view of this stand of the
Union that Mr. De drew our attention to Benoari Lai Sarma's case (supra) where
the Privy Council seems to have indicated that the question of mala fides could
be gone in to by the court. Mr. De submits that a mala fide order under Article
356 will be no order in the eye of law.
I am not prepared to say that this Court,
which is the last recourse for the oppressed and the bewildered, will, for
good, refuse to consider when there may be sufficient materials to establish
that a proclamation under Article 356(1) is tainted with mala fides. I would,
however, hasten to add that the grounds given in the Home Minister's letter
cannot be any strength of imagination be held to be mala fide or extraneous or
irrelevant. These ground will have reasonable nexus with the subject of a
proclamation under Article 356(1) of the Constitution. The matter would have
been entirely different if there were no proposal, pari passu, for an appeal to
the electorate by holding elections to these Assemblies.
In view of my conclusion that the suits and
Writ Petitions are not maintainable I do not feel called upon to deal with the
question whether there is a case for permanent injunction or other appropriate
writ in these matters. The suits and the Writ Petitions were, therefore,
already dismissed.
I part with the records with a cold shudder.
The Chief Justice was good enough to tell us that the acting President saw him
during the time we were considering judgment after having already announced the
order and there was mention of this pending matter during the conversation. I
have given this revelation the most anxious thought and even the strongest
judicial restraint which a Judge would prefer to exercise, leaves me no option
but to place this on record hoping that the majesty of the High Office of the
President, who should be beyond the high-watermark of any controversy, suffers
not in future.
UNTWALIA, J. The unanimous order of the Bench
in these cases was delivered on April 29, 1977. The judgments in support of the
order are now being delivered. While generally agreeing with the reasons given
in the leading judgment of the learned Chief Justice, on some of the points I
would like to add a few words and make some observations of my own.
As to the maintainability of the writ
applications filed by some of the members of the Punjab Legislature under
Article 32 of the Constitution of India, I would, as at present advised, not
like to express any opinion one way or the other. I will assume in their favour
that at the threshold the applications are maintainable. Yet they do not make
out a case for issuance of any kind of writ, direction, or order.
But as to the maintainability of the suits
filed under Article 131 by the various States I would like to say that,
although the point is highly debatable and not free from difficulty, the
dispute of the kind raised in the suits does not involve any question whether
of law or fact on which the existence or extent of any legal right of the
States concerned depends. To my mind the dispute raised is between the
Government of India and the Government or the Legislative Assembly of the
States concerned. One or more limbs, namely, and the Government, the Legislature
or the Judiciary of a State cannot be equated with the State.
Although the expression "legal
right" occurring in Article 131 embraces within its ambit not only the
constitutional rights of the States but also other kinds of legal rights, the
dispute must relate to the territory, property or some other kind of legal
right of the State. Broadly speaking, the nature of the dispute in these cases
is that the President on the advice of the Council of Ministers, in other
words, the Government of India proposes to exercise his powers under Article
356 for making a proclamation in order to dissolve the Legislative Assembly of
the State concerned and to dislodge the Council of Ministers, the particular
Government in power in that State. Such a dispute, in my opinion, is not a
dispute vis-a-vis the legal right of the State a unit of the Union of India. It
falls short of that. What is alleged is that pursuant to the impugned
proclamation the President will 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 including the power to dissolve the Assembly under
Article 174(2) (b). Such a proposed or threatened action does affect the legal
right of the Government in power and the Legislative Assembly a part of the
State Legislature, but not of the State itself. The State undoubtedly is
entitled to have a Governor a Government in one form or the other and the
Legislature. No part of it can be abolished.
Abolition would affect the legal right of the
State. But it is not quite correct to say that a State has legal right to have
a particular Governor or a particular Government or a particular Legislative
Assembly. In contrast to the word "dissolved" used in Article 174 I
would point ,out the provision of "abolition" of the Legislative
Council of a State mentioned in Article 169. Similarly, to illustrate my view
point, I may refer to Article 153 which provides "there shall be a
Governor for each State", and Article 156 which provides for a particular
Governor holding office during the pleasure of the President. if a dispute
arises in relation to an action or threat of the Government of India under
Article 153 it will affect the legal right of the State as the State cannot
exist without a Governor. But if the dispute concerns merely the removal of a
particular Governor by the President, it only affects the legal right of the
person holding the office or the Government of the State but not of the State
itself. That the distinction, though subtle, is significant and appreciable, is
clear from the language of the various clauses of Article 131 itself as also
from the definitions of State Governments given in section 3 (5 8) and 3 (60)
of the General
Clauses Act. In my considered judgment, therefore,
the suits as instituted under Article 131 are not maintainable.
But I would not rest content to maintain the
dismissal of the suits only on this technical ground.
Putting the matter briefly in some words of
my own as to the merits of the suits I would like to emphasize, in the first
instance, that it is difficult to presume, assume or conclude that the only
basis of the proposed action by the President is the facts mentioned in the
letter of the 94 Home Minister to the Chief Ministers of the States concerned
or the speech of the Law Minister of the Government of India. There is no
warrant nor any adequate material disclosed in any of the plaints in support of
any assertion to the contrary. Secondly, even if one were to assume such a fact
in favour of the plaintiffs or the petitioners the facts disclosed,
undoubtedly, lie in the field or an area purely of a political nature, which
are essentially non justiciable. It would be legitimate to characterise such a
field as prohibited area in which it is neither permissible for the Courts to
enter nor should they ever take upon themselves the hazardous task of entering
into such an area.
In the very nature of things the President must
be left to be the sole Judge, of course, on the advice of his Council of
Ministers, for his satisfaction as to whether there exists or not a situation
in which the Government of a State cannot be carried on in accordance with the
provisions of the Constitution. Such a satisfaction may be based on receipt of
a report from the Governor of a State or otherwise. Neither can the President
be compelled to disclose all the facts and materials leading to his
satisfaction for an action under Article 356 nor is his conclusion as to the
arising of a situation of the kind envisaged in Article 356(1), generally
speaking, open to challenge even on the disclosed facts.
I, however, must hasten to add that I cannot
persuade myself to subscribe to the view that under no circumstances an order
of proclamation made by the President under Article 356 can be challenged in a
Court of Law. And, I am saying so notwithstanding the provision contained in
clause (5) of the said Article introduced by the Constitution (38th Amendment)
Act, 1975. In support of the divergent views canvassed before us either in
relation to the proclamation of emergency under Article 352 or a proclamation
under Article 356, extreme hypothetical examples were cited on one side or the
other. From a practical point of view most of such examples remain only in
hypothesis and in an imaginary world. It is difficult to find them in realty
but yet not impossible in a: given case or cases. Then, where lies the
difference? Even before the introduction of clause (5) in Article 356 or a
similar clause in some other Articles, such as Articles 352 and 123, the doors
were closed for the Courts to enter the prohibited area which is popularly and
generally called the political field. If the validity of the action taken by
the President in exercise of his power, say, under any of the three Articles
referred to above is challenged attracting the necessity of entering the
prohibited field to peep into the reality of the situation by examination of
the facts for themselves, either on the ground of legality or mala fides the
Courts have always resisted and shall continue to resist the inducement to
enter the Prohibited field; for example, Bhagat Singh and others v. The
King-Emperor, (1) King-Emperor v. Benoari Lal Sarma and others; (2) (1) 58,
Indian Appeals, 169.
(2) 72 Indian Appeals, 57.
95 Lakhi Naryana Das v. The Province of Bihar
etc. etc.(1) and M/s S.K. G. Sugar Ltd. v. State of Bihar and Ors. (2).
To put it graphically clause (5)has merely
put a seal on such closed doors to check more emphatically the temptation or
the urge to make the Courts enter the prohibited field.
Attempts have always been made by the party
who is out of the field of power, if I can equate it with the prohibited field
aforesaid, to induce the Court to enter that field in order to give relief
against the taking of the extraordinary steps by the President on the advice of
the Government in power. On the other hand, the party in power has always
resisted such move. In a democracy the current of public opinion and franchise
may push a particular ship on one side of the shore or the other. But this
Court, like the Pole Star, has to guide and has guided the path of all mariners
in an even manner remaining aloof from the current and irrespective of the fact
whether a particular ship is on this shore or that.
But then, what did I mean by saying that a
situation may arise in a given case where the jurisdiction of the Court is not
completely ousted? I mean this. If, without entering into the prohibited area,
remaining on the fence, almost on the face of the impugned order or the
threatened action of the President it is reasonably possible to say that in the
eye of law it is no order or action as it is in flagrant violation of the very
words of a particular Article, justifying the conclusion that the order is
ultra vires, wholly illegal or passed mala fide, in such a situation it will be
tantamount in law to be, no order at all. Then this Court is not powerless to
interfere with such an order and may, rather, must strike it down. But it is
incompetent and hazardous for the Court to draw such conclusions by
investigation of facts by entering into the prohibited area.. It would be
equally untenable to say that the Court would be powerless to strike down the order,
if on its face, or, if I may put it, by going round the circumference of the
prohibited area, the Court finds the order as a mere pretense or a colourable
exercise of the extra-ordinary powers given under certain Articles of the
Constitution. In a given case it may be possible to conclude that it is a fraud
on the exercise of the power. But as I have said above in all such types of
cases from a practical point of view are likely to seldom occur and even if
they occur may be few and far between, the Courts have to arrive at such
conclusions by checking their temptation to enter the prohibited area of facts
which are essentially of a political nature. It is in this context Lord Mac
Dermott seems to have observed in the case of Stephen Kalong Ningkan and Government
of Malaysia(3) at pages 391-92 :
"The issue of justiciability raised by
the Government of Malaysia led to a difference of opinion in the Federal Court,
the Lord President of Malaysia and the Chief Justice of Malaya holding that the
validity of the proclamation was not justiciable and Ong J.
holding that it was. Whether a proclamation
under statutory powers by the Supreme Head of (1) [1949] F.C.R.693.
(2) [1975] 1 S.C.R., 312.
(3) [1970] Appeal Cases, 379.
96 the Federation can be challenged before
the courts on, some or any grounds is a constitutional question 6( far-reaching
importance which, on the present state of the authorities, remains unsettled
and debatable." In the application of the principle enunciated by me, and.
in the demarcation of the prohibited area,
opinions may sometimes differ, mistakes may sometimes be committed either by
unduly enlarging the area of the prohibited field or by unduly limiting. But
such differences are inherent in the very nature of administration of justice
through human agency. No way out has yet been involved nor can one conceive of
a better methodology. Nonetheless the Courts and the Judges manning them are
the best arbiters of judging, their own limits of jurisdiction as the custodian
of the functions to watch and see every Limb of the State acting under the
constitution in accordance with it. It is intrinsic and not uncommon to find
that a party in control of the field which I have described as a prohibited
area would be trying to view and make that area as large as possible and the
party outside that field will Endeavour to narrow it down as far as feasible.
But the Courts do keep and have got to keep that area the same as far as it is
humanly and legally possible to do so either for the one or the other party. It
is neither possible nor advisable or useful to make an attempt to define such
area by taking examples one way or the other to illustrate as to when the Court
would be able to say that : "I am striking out a particular order of the
President without entering the prohibited area or vice versa". In these
cases I would rest content by saying that, as I view the facts placed before
us, they are exclusively within the prohibited area.
The main theme of contention has been that
the President cannot make the proclamation because when laid before each House
of the Parliament in accordance with clause (3) of Article 356 it is sure Or
very likely that it will not be approved by the Rajya Sabha where the party in
power in the concerned States is in clear majority; in any event, the President
cannot and should not be permitted to take any action pursuant to the
proclamation of dissolving the Assembly without the approval of both the Houses
of Parliament, as the act of dissolution will be irretrievable and in flagrant
violation of the federal structure of the constitution. I find no words of such
limitation on the power of the President either in the original Article as
framed and passed by the Constituent Assembly or in any of the amendments
brought therein from time to time. The proclamation made and an action taken
pursuant thereto, if otherwise valid and not open to challenge in the manner
and within the limitation I have indicated above, arc valid till the
proclamation lasts, the maximum period of which is two months even without the
approval of the Houses of Parliament. On the revocation of the proclamation by
the President or its disapproval or non-approval by either House of the
Parliament the proclamation merely ceases to operate without in any way affecting
or invalidating the action taken pursuant to the proclamation before its cesser
of operation. Nobody has yet suggested, nor could anyone do so, with any
semblance of justification that such a wide power conferred on the President
even by the original constitution as passed and adopted by the people of India
could have any relevancy to the so called destruction of the basic federal
structure of the constitution. In this respect I, for myself, do not see any
appreciable or relevant difference between the action of dissolution of an
Assembly by the Governor of a State in exercise of his power under Article
1740) (b), or such an action taken pursuant to the proclamation under Article
356(1) (a). There may be justifiable and genuine differences of opinion between
the politicians, political thinkers, jurists and others whether the grounds of
the proposed action disclosed so far in the letter of the Home Minister or the
speech of the Law Minister of the Government of India can necessarily lead to
the conclusion whether a situation has arisen in which the Government of the
State cannot be carried on in accordance with the provisions of the
constitution. Firstly, the possibility of other grounds being there for the
proposed action under Article 356 cannot be ruled out. Even if ruled out, the
conclusion drawn on the facts disclosed cannot be said to be so perverse,
erroneous and palpably unsustainable so as to enable this Court to say that
standing on the, fence the Court can, declare that the proposed action of
proclamation on these facts falls in the category of the cases where the Court
will be justified to prevent the threatened action by injuncting the President
either to issue the proclamation or to dissolve the Assembly of a particular
State. 1, for one, would meticulously guard myself against expressing any
opinion one way or the other except saying that the facts disclosed so far, in
my considered judgment, are definitely and exclusively within the prohibited
area and the conclusions drawn there from are reasonably possible, especially
in the background of Article 355. On the facts, as they are, it is difficult,
rather, impossible to say that the proposed proclamation is going to be made
mala fide with an ulterior motive. Apart from the other technical and
insurmountable difficulties which are therein the way of the plaintiffs or the
petitioners in getting any of the reliefs sought I have thought it advisable to
pin-point in my own humble way the main grounds in support of the order we have
already declared.
FAZAL ALI, J. In a big democracy like our's
the popularly elected executive Government has sometimes to face a difficult
and delicate situation and in. the exercise of its functions it has to perform
onerous duties and discharge heavy responsibilities which are none too easy or
pleasant a task. Circumstances may arise where problems facing the Government
are political, moral, legal or ethical calling for a careful and cautious exercise
of discretion of powers conferred on the Government by the Constitution of the
country. Even though the Government may have acted with the best of intentions,
its actions may displease some and please others, as a result of which serious
controversies and problems arise calling for an immediate and satisfactory
solution. The present suits filed by some of the States and the writ petitions
filed by three members of the Legislative Assembly of Punjab are ridden with
legal and constitutional problems due to ,an action taken by the Central
Government to meet, what in its opinion was, an unprecedented political
situation. My Lord the Chief Justice has succinctly detailed the facts of the
present suits and the petitions and it is not necessary for me to repeat the
same, except in 98 so far as they may be relevant for the decision of the
conclusions to which I arrive. I might also mention that I fully agree with the
judgment proposed by my Lord the Chief Justice giving complete reasons for the
order which the Court had unanimously passed on April 29, 1977, dismissing the
suits as also the writ petitions and rejecting the injunctions sought for and
other interim orders. I would, however, like to give my own reasons
high-lighting some of the important aspects that arise in the case.
By virtue of the President's order dated the
18th January 1977 published in the Gazette of India-Extraordinary, Part
1-section 1-by a notification dated the 19th January 1977 the President in
exercise of the powers conferred upon him by sub-clause (b) of clause (2) of
Art. 85 of the Constitution dissolved the Lok Sabha. Thus notification was soon
followed by another notification dated the 10th February 1977 issued by the
Ministry of Law, Justice and Company Affairs calling upon all the parliamentary
constituencies to elect members in accordance with S. 14(2) of the
Representation of the, People Act, 1951. In pursuance of this Notification the
Election Commission on the same day appointed the dates when elections were to
be held in various constituencies. This order was passed under s. 30 of the
Representation of the People Act, 1951.
Further details are not necessary for the
purpose of deciding the issues arising in this case. Suffice it to mention that
in consequence of the elections which were held in March 1977, the Congress
Party was almost routed in Bihar, U.P., Himachal Pradesh, Haryana, Madhya
Pradesh, Orissa, Punjab, Rajasthan and West Bengal, and particularly in some of
the States not a single candidate set up by the Congress Party was returned.
The Congress also lost its majority in the Lok Sabha as a result of. which the
Government at the centre was formed by the Janata Party in coalition with the
Congress for Democracy. Mr. Morarji Desai the present Prime Minister was sworn
in after being elected as the party leader on March 24, 1977 and he selected
his Council of Ministers on March 25, 1977. Soon thereafter the Union Home
Minister addressed a letter to the aforesaid nine states, namely, Bihar, U.P.,
Himachal Pradesh, Haryana, Madhya Pradesh, Orissa, Punjab, Rajasthan and West
Bengal, asking them to advise their respective Governors to dissolve the
Assemblies and seek a fresh mandate from the people.
The six plaintiffs, namely, the States of
Rajasthan, Madhya Pradesh, Punjab, Bihar, Himachal Pradesh and Orissa have
filed suits in this Court praying for a declaration that the matter of the Home
Minister was illegal and ultra vires of the Constitution and not binding on the
plaintiffs and prayed for an interim injunction restraining the Central
Government from resorting to Art. 356 of the Constitution.
A permanent injunction was also sought for by
the plaintiffs in order to restrain the Central Government permanently from
taking any steps to dissolve the Assemblies until their normal period of six
years was over. The writ petitioners who are some members of the Legislative
Assembly of Punjab have filed writ petition complaining of violation of their
fundamental rights and have also prayed for similar injunctions. The prayer of
the plaintiffs as also that of the 99 petitioners has been seriously contested
by the defendant/respondent Union of India on whose behalf the Additional
Solicitor-General raised several preliminary objections and also contested the
claim on merits.
Having discussed the nature of the claim by
the plaintiffs, if may now be germane to examine the preliminary objections
taken by the defendant to the maintainability of the suits by the plaintiffs as
also of the petitions. The first preliminary objection raised by the Additional
Solicitor General was that the suits were not maintainable under Art.
131 of the Constitution because one of the
essential requirements of Art. 131 was that there must be a dispute between the
Government of India and one or more States, and the present dispute is, on the
very face of the allegations made by the plaintiffs, not between the Government
of India and one or more States, but it is between the Government of India and
the States Governments which is not contemplated by Art. 131 of the
Constitution. Mr. Niren De, appearing for some of the plaintiffs, however,
submitted that the language of Art. 131 is wide enough to include not only the
States but also the State Governments which alone can represent the states and
context any legal right on behalf of the States.
It was next contended by the Additional Solicitor-General
that even if the first condition of Art. 131 is satisfied, there was no
dispute, as contemplated by Art. 131. Mr. Niren De rebutted this argument by
contending that the letter of the Home Minister disclosing the grounds on which
the Central Government proposed to take action (or dissolution of the
Assemblies was a sufficient dispute which entitled the plaintiffs to approach
this Court under Art.
Lastly, it was submitted by the Additional
Solicitor-General that while the plaintiffs have prayed for the relief of both
temporary and permanent injunctions, this Court, hearing a suit under Art. 131
of the Constitution, cannot grant the relief for injunction and the only relief
which this Court can give would be purely of a declaratory character. This
point, however, was later on given up by the Additional Solicitor-General, and
in our opinion rightly, because s.
204 of the Government of India Act, 1935,
which preceded the Constitution contained an express provision, viz. sub-s. (2)
which expressly barred the right of the Court to grant any relief excepting a
declaratory one, whereas in Art. 131 of the Constitution that particular clause
has been deliberately omitted and the restriction imposed under that clause by
the Government of India Act has been removed, as a result of which this Court
can grant any relief which it thinks suitable and which is justified by the
necessities of a particular case.
In order to examine the validity of the
contentions put forward by counsel for the parties, it may be necessary to
extract the provisions of Art. 131 of the Constitution, the relevant part of
which runs thus :
"131. Original jurisdiction of the
Supreme Court.-Subject to the provisions of this Constitution, the Supreme 100
Court shall, to the exclusion of any other Court, have original jurisdiction in
any dispute(a) between the Government of India and one or more States; or (b)
between the Government of India and any State or States on one side and one or
more other States on the other, or (c) between two or more States, if and in so
far as the dispute involves any question (whether of law or fact) on which the
existence or extent of a legal right depends." An analysis of this
provision would indicate that before a suit can be entertained by this Court
under this provision, the following conditions must be satisfied :
(i) that there must be a dispute;
(ii) that the dispute must be between the
Government of India and one or more States or between Government of India and
any State or States on one side and one or more other States on the other, or
between two or more States,, (iii) that the dispute must involve any question
(whether of law or fact) on which the existence or extent of a legal right
depends;
and (iv) that there is no other provision in
the Constitution which can be resorted to solve such a dispute.
Before we apply these conditions to the facts
of the present case, it may be necessary to run through the contents of the
letter of the Home Minister as also the Press interviews given by him and by
the, Law Minister which according to the plaintiffs form an integral part of
the communication received by them from the Home Minister. My Lord the Chief
Justice has extracted in extenso the press statements as also the contents of
the letter of the Home Minister written to the various Chief Ministers of the
States and I would like, however, to indicate the main points contained therein
for the purpose of deciding whether or not a real dispute arose in the case.
The statement of. the Home Minister to the
Press is extracted at p. 25 in Original Suit No. 2 of 1977 and the relevant
part of the same runs thus :
"We have given our most earnest
consideration to the unprecedented political situation arising out of the
virtual rejection, in the recent Lok Sabha Elections of the Congress candidates
in several States. I have in mind Punjab, Haryana, Himachal Pradesh, Rajasthan,
Madhya Pradesh, Bihar, Orissa, Uttar Pradesh and West Bengal.
101 propriety of the Congress Governments in
these States, continuing in power without seeking a 'fresh mandate from the
electorate." Similarly the relevant part-of the contents of the Home
Minister's letter to the Chief Ministers may be extracted thus "We have
given our earnest and serious consideration to the most unprecedented political
situation arising out of the virtual rejection, in the recent Lok Sabha
elections, of candidates belonging to the ruling party in various States. We
have reasons to believe that this has created a sense of diffidence at
different levels of administration. People at large do not any longer
appreciate the propriety of continuance in power of a party which has been
unmistakably rejected by the electorate.
(Emphasis supplied) Relevant portions of the
extracts from the interview given by Mr. Shanti Bhushan in a spotlight
programme of the All India Radio-may also be quoted from Annexure 'B' of the
Paper Book in Original Suit No. 1 of 1977 filed by the State of Rajasthan which
run thus :
"In an interview in the spot-light
programme of All India Radio he said that the most important basic feature of
the Constitution was democracy, which meant that a Government should function
with the broad consent of the people and only solong as it enjoyed their
confidence. If State Governmentschose to govern the people after having lost
the confidence of the people, they would be undemocratic Governments he
said".
(Emphasis supplied) Constitution was
democracy which meant that a Government should function with the broad consent
of the people and only so long as it enjoyed the confidence of the people.
Mr. Shanti Bhushan said that the mere fact
that at one time the Government in the States enjoyed the confidence of the
people did not give them the right to govern unless they continued to enjoy
that confidence. If a situation arose in which a serious doubt was cast upon
the Government enjoying the continued confidence of the people, then the
provision for premature dissolution of the Assembly immediately came into
operation.
The provision not merely gives the power but
it casts a duty because this power is coupled with duty, namely, the Assembly
must be dissolved immediately and the Government must go to the people to see
whether it has the continued confidence of the people to govern." 102 Thus
analysing the stands taken by the Home Minister and the Law Minister, the
following grounds appear to have been relied on by them for the purpose of
maintaining that the Assemblies should be dissolved and the Chief Ministers
themselves should advise the Governors accordingly (1) that an unprecedented
political situation had arisen by the virtual rejection, in the recent Lok
Sabha elections, of the Congress candidates in the States concerned, namely the
plaintiffs in the six suits including Uttar Pradesh, Haryana and West Bengal);
(2) that the people at large did not consider
it expedient for the Congress Governments to continue without seeking a fresh
mandate, when the Congress party was completely routed in the Lok Sabha
elections from the States concerned;
(3) that the constitutional experts have also
advised the Home Minister that the State Governments have impliedly forfeited
the confidence of the people;
(4) that there is a climate of uncertainty
which has created a sense of diffidence at different levels of administration;
(5) that such a climate of uncertainty has
given rise to serious threats to law and order;
(6) that the most important basic feature of
the Constitution being democracy, a Government had to function with the broad
consent of the people so long as it enjoyed its confidence.
If the State Government lost the confidence
of the people, then it would be undemocratic for them to continue;
(7) that if a situation arises in which a
serious doubt was cast upon the Government enjoying the continued confidence of
the people, then the provision for premature dissolution of the Assembly would
at once be attracted. Where such a situation arises, the power contained in the
Constitution is coupled with a duty to dissolve the Assembly and direct the
Government to go to the people in order to see whether it has the continued
confidence of the people to govern them.
The correctness of the extracts quoted above
from the documents filed by the plaintiffs has not been disputed by the
Additional Solicitor-General. Mr. Niren De contends that in view of the stand
taken by the Law Minister and the Home Minister there arose a clear dispute
between the Government of India and the State Governments so as to call for an
adjudication by this Court. In my opinion, the crucial question to be
considered is whether or not there is a dispute. Statements by Ministers or
even by the Government or made by one party and denied by the other may not
amount to a dispute, unless 103 such a dispute is based on a legal right. A
"dispute?' has been defined in the Webster's Third New International
Dictionary as follows "verbal controversy : strife by opposing argument or
expression of opposing views or claims : controversial discussion." A
dispute, therefore, clearly postulates that there must be opposing claims which
are sought to be put forward by one party and resisted by the others. One of
the essential ingredients of Art. 131 is that the dispute must involve a legal
right based on law or fact. The question which one would ask is what is the
legal right which is involved in the 'statements given by the Home Minister or
the Law Minister or the letter addressed by the Home Minister to the Chief
Ministers The governmental authorities have merely expounded the consequences
of the interpretation of the constitutional provisions relating to the
dissolution of the Assemblies. There can be no doubt that under Art. 356 it is
the Central Government alone which, through its Council of Ministers, can
advise the President to issue a proclamation dissolving the Assemblies. The
word "otherwise" clearly includes a contingency where the President
acts not on the report of the Governor but through other modes, one of which
may be the advice tendered by the Council of Ministers.
Under Art. 74 as amended by the Constitution
(Forty-second Amendment) Act, 1976, the relevant part of which may be extracted
below :
"There shall be a Council of Ministers
with the Prime Minister at the head to aid and advise the President who shall,
in the exercise of his functions, act in accordance with such advice." the
Council of Ministers has to aid and advise the President and once the advice is
given, the President has got to accept it, there being no discretion left in
him. Thus if the Central Government chooses to advise the President to issue a
proclamation dissolving an Assembly, the President has got no option but to
issue the proclamation. This manifestly shows that the Central Government has a
legal right to approach the President to issue a Proclamation for dissolution
of an Assembly as a part of the essential duties which the Council of Ministers
have to perform while aiding and advising the President. The State Governments,
however, do not possess any such right at all. There is no provision in the
Constitution which enjoins that the State Government should be consulted or
their concurrence should be obtained before the Council of Ministers submit
their advice to the President regarding a matter pertaining to the State so far
as the dissolution of an Assembly is concerned. Article 356 also which confers
a power on the President to issue a Proclamation dissolving all Assembly does
not contain any provision which requires either prior or subsequent
consultation or concurrence of the State Government before the President
exercises this power. In these circumstances, can it be said that the State
Governments have a right to assert that an order under Art. 356 shall not be
passed by the President or to file 104 a suit for a declaration that the
President may be in juncted from passing such an order ? The right of the State
Governments to exist depends on the provisions of the Constitution which is
subject to Art. 356. If the President decides to accept the advice of the
Council of Ministers of the Central Government and issues a proclamation
dissolving the Assemblies, the State Governments have no right to object to the
constitutional mandate contained in Art. 356.
It is conceded by Mr. Niren De that if the
President, on the advice of the Council of Ministers, would have passed a
notification dissolving the State Assemblies under Art. 356, the plaintiffs
were completely out of court and the suits would not have been maintainable. It
is not understandable how the position would be any different or worse, if the
Central Government chose to be fair to the State Governments concerned by
informing them of the grounds on the basis of Which they were asked to advise
their Governors to dissolve the Assemblies. The mere fact that such letters
were sent to the State Government containing gratuitous advice would not create
any dispute, if one did not exist before, nor would such a course of conduct
clothe the State Government with a legal right to call for a determination
under Art. 131. If the State Governments do not possess such a legal right, or
for that matter any right at all, then they cannot put forward any claim before
a Court for a declaration or injunction. Mr. Niren De, however, submitted that
the very fact that the Home Minister was compelled to address a communication
to the Chief Ministers of the State Governments for advising the Governors to
dissolve the respective Assemblies and the Chief Ministers refused to accept
the advice of the Home Minister shows that a dispute arose. In my opinion,
however, the contention does not appear to be well founded. Assuming that the
Home Minister's letter to the Chief Ministers raised some sort of a dispute,
the moment the Chief Ministers answered that letter and spurned the advice
given by the Home Minister, the dispute came to an end and ceased to exist.
Unless there is on existing dispute involving a legal right between the
parties, the forum provided by Art. 131 cannot be availed of by any party. I am
fortified in my view by a decision of the Federal Court in The United Provinces
v. The Governor-General in Council,(1) where Gwyer, C.J., speaking for the
Court observed thus :
"The Federal Court has by s. 204(1) of
the Constitution Act an exclusive original jurisdiction in any dispute between
the Governor-General in Council (or, after federation, the Federation) and any
Province, if and in so far as the dispute involves any question, whether of law
or fact, on which the existence or extent of a legal right depends.
It is admitted that the legal right of the
Province to have the fines now under discussion credited to Provincial revenues
and not to the Cantonment Funds depends upon the validity or otherwise of s.
106 of the Act of 1924. The plaintiffs deny the validity of the section, the
defendant asserts it; and it seems to me that this is clearly a dispute
involving a question on which the existence of a legal right depends." (1)
[1939] F.C.R. 124,136.
10 5 This case effords a clear illustration
of a real dispute involving a legal; right. In that case the main dispute was
regarding the question whether the fines credited to Provincial revenues and
not to the Cantonment Funds belonged to the Province or the Central Government
through the Cantonment. It will be noticed that the Federal Court clearly held
that such a dispute clearly fell within the purview of S. 204(1) of the
Government of India Act which was in pari materia to Art. 131 of the
Constitution. That case is purely illustrative and decides that it is only such
type of disputes as are contemplated by Art. 131. For these reasons, therefore,
I am clearly of the view that having regard to the facts and circumstances of
the present case, it has not been established that there was any dispute
involving a legal right between the Government of India and the State
Governments, and therefore one of the essential ingredients of Art. 131 not
having been fulfilled the suits are not maintainable on this ground alone.
The next preliminary objection taken by the
Additional Solicitor General was that there is no dispute between the
Government of India and the States because what Art. 131 postulates is that the
dispute must be between the Government of India and the States as understood in
the proper sense, namely, the territories comprising the State or the permanent
institutions comprised in it, e.g., the Governor, the Legislature, the High
Court, the Public Service Commission and the like. In other words, where the
Central Government wants to oblish the Legislature completely or to abolish the
institution of the Governor or the High Court, this will be a matter which will
concern the State and the State Government as such. I am inclined to agree with
the contention put forward by the Additional Solicitor-General. What Art. 131
takes within its fold is not the State Government comprising of a particular
set of Ministers, but the Government itself, which exists for ever, even though
the personnel running the Government may change, from time to time. Article 12
of the Constitution, the scope of which is restricted only to the fundamental
rights, does provide that the "State" includes the Government and
Parliament of India and the Government and the Legislature of each of the
States. Here the term "State" has been given a very broad spectrum
because the definition is dealing with the exposition of fundamental rights and
its various incidents which have to be interpreted in the broadest possible
sense so as to protect the citizen from any institution included in the term
"State" which even includes not only the Government of the State but
also Government of India. Article 12, however, does not apply to Chapter IV
where Art. 131 occurs and which deals with the Union Judiciary. In fact the
word "State" as mentioned in Art.
131 has not been defined anywhere in the
Constitution.
Under Art. 367 if any term is not defined in
the Constitution recourse can be had to the General Causes Act, 1897, for the
purpose of understanding the meaning of such a term. Section 3(58) of the General Clauses Act defines "State" thus :
"State".lm15 (a)as respects any
period before the commencement of the Constitution (Seventh Amendment) Act,
1956, shall mean a Part A State, a Part B State or a Part C State; and 10 6
(b)as respects any period after such commencement, shall mean a State specified
in the First Schedule to the Constitution and shall include a Union territory
:" On the other hand S. 3(23) defines the word "Government" or
"the Government" as including both the Central Government and any
State Government. Thus it will be clear from the definition of "State'
given in s. 3(58) of the General Clauses Act that the "State" does not include the State
Government.
The relevant parts of Arts. 1 and 3 of the
Constitution run thus " 1. Name and territory of the Union :(1) India,
that is Bharat, shall be a Union of States.
(2) The States and the territories thereof
shall be as specified in the first schedule.
(3) The territory of India shall comprise(a)
the territories of the States;
(b) the Union territories specified in the
First Schedule; and (c) such other territories as may be acquired."
"3. Formation of new States and alteration of areas, boundaries or names
of existing States Parliament may by law(a) form a new State by separation of
territory from any State or by uniting two or more States or parts of States or
by uniting any territory to a part of any State;
(b) increase the area of any State;
(c) diminish the area of any State;
(d) alter the boundaries of any State;
(e) alter the name of any State : " A
perusal of these Articles would reveal in unequivocal terms that wherever the
Constitution has used the word "State" without any qualification it
means "State" in the ordinary sense of its term, namely, the State
along with its territory or institutions. Article 3 expressly empowers the
Parliament to increase or diminish the area or territory of any State. It has no
reference to the State Government at all or for that matter to a particular
State Government run by a particular party. In my opinion, therefore, the word
"State" in Art. 131 has also been used in this ordinary sense so as
to include only the territory of the State and the permanent institutions
contained therein. A dispute arising between the personnel running the
institutions is beyond the ambit of Art. 131. Furthermore, it would appear that
cls. (a) & (b) of Art. 131 deliberately and advisedly use the word
"Government of 107 India and one or more States". If the intention
was to bring even, a Stale Government as run by the Council of Ministers within
the purview of this provision, then the words "one or more State
Governments" should have been used instead of using the word
"State". This is, therefore, an intrinsic circumstance which shows
that the founding fathers of the Constitution intended that the dispute should
be contained only to the Government of India and the States as a polity or a
constituent unit of the republic instead of bringing in dispute raised by the
Government run by a particular Council of Ministers which does not pertain to
the State as such.
Thus, summarising my conclusions on this
point, the position is that the import & purport of Art. 131 is to decide
disputes between one State and another or between the Government of India and
one or more States. The founding fathers of the Constitution have used the word
"State" in Art. 131 both deliberately and advisedly so as to
contemplate the State as a constituent unit of the Union along with its
territory and permanent institutions. The question as to the personnel who run
these institutions is wholly unrelatable to the existence of a dispute between
a State and the Government of India. It is only when there is a complete
abolition of any of the permanent institutions of a State that a real dispute
may arise. A mere temporary dissolution of an Assembly under Art. 356 does not
amount to an abolition of a State Assembly, because after such dissolution under
the provisions of the Constitution elections are bound to follow and a new
Legislature would evidently come into existence after the voters have elected
the candidates. Unfortunately, there is no clear decision of this Court
directly on this point, but on a true and proper construction of Art. 131, 1 am
of the view that a dispute like the present is totally outside the scope of
Art. 131 of the Constitution. For these reasons, therefore.
I hold that the State Governments who have
raised the dispute in this case are not covered by the word "State"
appearing in Art. 131 and therefore the suits are not maintainable on this
ground also. 1, therefore, record my respectful dissent from the view taken by
my lord the Chief Justice and brother Judges on this particular point.
Similarly in the case of writ petitions, the
Additional Solicitor-General raised a preliminary objection as to the
maintainability of the petitions. It was contended that the right of the
petitioners as members of the Legislative Assembly of Punjab was not a
fundamental right as envisaged by part III of the Constitution. At the most,
the right to receive allowances as members of the Assembly was merely a legal
right consequent upon their election as members of the Assembly. It was not a right
which flowed from the Constitution. Thus argued the Additional
Solicitor-General that there being no infraction of any fundamental right, the
petitioners cannot be allowed to take recourse to Art. 32 of the Constitution
of India. This argument was sought to be repelled by Mr. Garg, Counsel for the
petitioners, on the ground that in view of the decision of this Court in H. H.
Maharajadhiraja Madhav Rao Jiwaji Rao Scindia
Bahadur & Ors. v. Union of India(1) commonly known as "Privy Purses
Case"the right to receive allowances by the petitioners was undoubtedly a
right to property and by the (1) [1971] 3 S.C.R. 9.
8-722SCI/77 108 threatened dissolution of the
Assembly there was a direct threat to the fundamental right to property which
the petitioners had both under Art. 19 (1 ) (f) and Art. 31 of the
Constitution. Very attractive though they are, we are, however, unable to
accept the arguments put forward by Mr. Garg. This Court in the Privy Purses
Case was considering a legal right in quite a different context, namely, Art.
291 of the Constitution which has since been repealed by the Constitution
(Twenty-sixth Amendment) Act, 1971. Article 291 as it stood then may be
extracted thus "291. Privy purse sums of Rulers:Where under any covenant
or agreement entered into by the Ruler of any Indian State before the
commencement of this Constitution, the payment of any sums, free of tax, has
been guaranteed or assured by the Government of the Dominion of India to any
Ruler or such State as privy purse(a) such sums shall be charged on, and paid
out of, the Consolidated Fund of India, and (b) the sums so paid to any Ruler
shall be exempt from all taxes on income." A perusal of this provision
would clearly indicate that the founding fathers of the Constitution sought to
guarantee certain legal rights conferred on the Rulers by making the sums paid
to them a charge on the Consolidated Fund of India. The payments made to the
Rulers were guaranteed by the Constitution itself and it was in view of this
peculiar and special provision that this Court held that the right of the
Rulers to receive payments free of tax was not only a legal right flowing from
the Constitution but also a right to property, because a charge was created on
the Consolidated Fund of India for the payments to be received by the Rulers.
In other words, the right to property arose directly from the status occupied
by the Rulers under the Constitutional provision itself and it was not
consequent upon the Rulers obtaining a particular status as members of the
Assembly or otherwise which may be consequential to the acquisition of their
'subsequent status. In the instant case, the right of the petitioners is only a
limited right inasmuch as it subsists only so long as the Assembly runs its
usual course of six years. The right may also cease to exist if the Assembly is
dissolved by the President by issuing a proclamation under Art. 356. The right,
therefore, subsists only so long as these two contingencies do not occur. Furthermore,
the Constitution does not guarantee any right or allowances to the Members of
the Assembly which are given to them by local Acts or Rules. In these
circumstances, therefore, the ratio decided of the Privy Purses Case cannot
apply to the petitioners. Hedge, J., while dealing with the nature of the legal
right possessed by the Rulers in the Privy Purses case observed as follows
"As I am satisfied that the rights under Arts.
31 and 19(1)(f) have been contravened it is
not necessary to examine the alleged contravention of other rights.
109 I have earlier come to the conclusion
that the right to get the privy purse under Art. 291 is a legal right. from
that it follows that it is a right enforceable through the courts of law.
That right is undoubtedly a property. A right
to receive cash grants annually has been considered by this Court to be a
property-see State of M.P. v. Ranojirao Shinde and Anr(1968) 3 SCR 489. Even if
it is considered as a pension as the same is payable under law namely Art. 291,
the same is property-see Madhaorao Phalke v. State of Madhya Bharat(1961) 1 SCR
957." It is obvious that the observations of this Court cannot apply to
the petitioners who cannot be said to have any fundamental right contained in
Part III of the Constitution.
For these reasons, therefore, I am of the
opinion that the preliminary objection raised by the Additional SolicitorGeneral
is well founded and must prevail.
Since we have heard the suits and the
petitions on merits at great length also, even if we assume that the writ
petitions are maintainable, we shall deal with the merits of both the suits and
the writ petitions. We now proceed to deal with the merits of the suits and the
writ petitions, although we think that the suits of the plaintiffs as also the
petitions are liable to be rejected on the preliminary objections raised by the
Additional Solicitor-General.
Coming to the merits, three contentions were
put forward before us by counsel for the plaintiffs and the petitioners :
(1) that the letter sent by the Home Minister
to the Chief Ministers amounted to a directive by the Central Government to the
Chief Ministers to advice the respective Governors for dissolving the
Assemblies resulting in interference in the federal set up of the States
contemplated by the Constitution;
(2) that even if the letter of the Home
Minister was not a directive, it clearly amounted to a threat to the right of
the present Government to continue in office and to be dissolved if the
directions given to the Chief Ministers were not carried out;
(3) that the circumstances mentioned in the
letter did not constitute sufficient reason for dissolution of the Assemblies
under Art.
356 and the action of the Central Government
in writing the letter to the Chief Ministers and giving interviews at the Press
and the All India Radio amounted to a mala fide and colourable action which was
sufficient to vitiate the advice which the Council of Ministers might give to
the President for resorting to Art. 356 of the Constitution.
Lastly, Mr. Niren De as also Mr. Garg submitted
that Art.
356 would have no application to the facts of
the present case.
We shall now deal separately with the
contentions raised by counsel for the parties. As, regards the first contention
that the letter of 110 the Home Minister to the Chief Ministers of the
plaintiffStates amounted to a directive issued by the Central Government, it
was clarified by counsel for the plaintiffs that the Central Government had no
authority under any provision of the Constitution to give a directive to the Chief
Ministers in the matter concerning purely the States.
In the first place, a careful perusal and an
adroit analysis of the contents of the letter does not at all show that it
amounts to a directive given by the Central Government to the Chief Ministers.
Although the Home Minister has expressed his views in the matter, but in the
concluding portion of the letter he has merely advised the Chief Ministers
without interfering with their absolute discretion. The concluding portion of
the letter extracted thrust would, therefore earnestly command for your
consideration that you may advise your Governor to dissolve the State Assembly
in exercise of powers under Article 174(2) (b) and seek a fresh mandate from
the electorate.
This alone would in our considered view, be
consistent with constitutional precedents and democratic practices."
Clearly shows that no compulsion was brought to bear on the Chief Ministers by
the Home Minister and he sought to state certain facts with great stress for
the consideration of the Chief Ministers. The words "earnestly commend for
your consideration that you may advise" clearly show that the Home
Minister sought to give a friend advice to the Chief Ministers as to what they
should do in the facts and circumstances of the situation. The words "may
advise" further indicate that the Home Minister did not intend to give any
mandator) directions to the Chief Ministers in the matter. In of the words, the
aforesaid letter if properly construed is no more than an act of political
courtesy containing a suggestion or an advice or a fervent appeal to the Chief
Ministers lo consider the desirability of advising the Governors to dissolve
the Assemblies in view of the facts and circumstances disclosed in the said
document. It is in no measure binding on the Chief Ministers and it is open to
them to refuse to act on the gratuitous advice tendered by the Home Minister
which the Chief Ministers have already done. Reading the letter as a whole, as
I do, I am unable to regard the letter as a directive issued by the Central
Government and as contemplated by Arts. 256 and 257 of the Constitution of
India. In fact Art. 256 which runs thus "Obligation of States and the
Union ;
The executive power of every State shall be
so exercised as to ensure compliance with the laws made by Parliament and any
existing laws which apply in that Stale, and the executive power of the Union
shall extend to the giving of such directions to a State as may appear to the
Government of India to be necessary for that purpose." clearly defines the
limits within which the executive power of Parliament may exist and the
directions contemplated by Art. 256 can be given to the States only within the
limited sphere as prescribed by Art. 256 i.e., in relation to existing laws
made by Parliament and those 111 laws which apply in the States. Article 257
contains a note of warning and caution to both the Union and the States against
functioning in such a way so as to impede or prejudice exercise of the
executive power of the Union.
Article 257 contains a further restriction on
the Government of India in that the power has to be exercised only for the
purposes mentioned in Arts. 256 and 257.
With due respects of my Lord the Chief
Justice, I am unable to subscribe to his view that the directive contained in
the letter must be carried out, as I am clearly of the opinion that the letter
does not amount to a directive as contemplated by Arts. 256 and 257 of the
Constitution and cannot be binding on the Chief Ministers as it pertains purely
to the States concerned, namely, giving of the advice to the Governors for
dissolution of the Assemblies. Our Constitution contains a well distributed
system of checks and balances on the various constituents, namely, the Union,
the States, the Executive, the Legislature and the Judiciary. An analysis of
the provisions of the Constitution would show that a separate sphere for each
of the constituent units has been carved out and they have to function within
the limits of their sphere, or within the limits of the orbit, as my lord the
Chief Justice has put it. In order to ensure a smooth and efficient, pragmatic
and purposeful working of the Constitution, it is necessary that the Union and
the States should work n close cooperation and absolute coordination with each
other. Any confrontation may lead to a constitutional breakdown which may be
avoided in all circumstances. Under Art. 174(2) clauses (a) and (b) the
Governor has the power to prorogue the House or to dissolve the Legislative
Assembly. It is obvious that this power has to be exercised by the Governor
generally on the advice of the Council of Ministers. The Chief Minister, as the
head of the Council of Ministers in the State, has the undoubted discretion to
advise the Governor to dissolve the Assembly if a particular situation demands
such a step. The Chief Minister is the best judge to assess the circumstances
under which such an advice should be given to the Governor. The Central
Government cannot interfere with this executive power of the State Government
by giving directions under Art. 256 or Art. 257 of the Constitution, because
the dissolution of the Assembly by the Governor is purely a matter concerning
the State and does not fall within the four comers of either Art. 256 or Art.
257 of the Constitution.
It was also contended that the direction
contained in the letter of the Home Minister amounts to a serious interference
with the federal set-up contemplated by the Constitution and is likely to bring
the autonomy enjoyed by the States into jeopardy. My Lord the Chief Justice has
dealt with the federal aspect of the Constitution in great length and has
pointed out that while our Constitution is based on a federal pattern it is, to
quote Dr. Ambedkar "a tight mold of Federalism" so that it can move
from a federal to unitary plane, according as the situation requires. The
federal nature of our Constitution has been clearly explained by my Lord the
Chief Justice and I fully agree with his views and have nothing useful to add.
It is, however, not necessary for me to dilate on this point, because in 112 my
view the letter of the Home Minister does not amount to a directive at all and
therefore the question of interference with the autonomous rights of the State
Government does not arise. As to what would have happened if a directive was
given by the Central Government in a matter like this is a purely hypothetical
question which does not call for any answer in the facts and circumstances of
the present case as the same does not arise. In this view of the matter itis
obvious that the plaintiffs cannot get a relief for a declaration that the
letter amounted to a directive and being against the authority of law was ultra
vires and hence not binding on the plaintiffs. In fact it seems to me that the
plaintiffs themselves did not take the letter as a directive at all and had,
therefore, written back to the Home Minister refusing to accept the advice
given to them.
The next question that arises for
consideration is whether the letter of the Home Minister amounts to a threat to
dissolve the Assembly. Although there are no clear words in the letter or in
the interviews to show that any kind of threat or force was used against the
Chief Ministers concerned, but even assuming that the letter contained a veiled
threat, I fail to see what kind of relief the plaintiffs could get, even if
this is so. The Chief Ministers of the States had the right to advise the
Governors to dissolve the Assemblies or not to do so. Even if there was a
threat given by the Home Minister they could have ignored the threat because
the right to advise the Governors to dissolve the Assemblies belonged to the
Chief Ministers of the States themselves, and as indicated by me the Central
Government had no right to interfere with this discretion of the Chief
Ministers.
Mr. Garg appearing for the petitioners,
however, submitted that the action of the Central Government amounted to a
threat of the fundamental right of the petitioners and be was entitled to ask
for an injunction restraining the Central Government from resorting to Art.
356. In the first place, I have already held that the petitioners had no
fundamental right at all so as to approach this Court under Art. 32 of the
Constitution. Assuming that they had the right the threat was not so imminent and
the prayer made by the petitioners was premature as no action appears to have
been taken by the Central Government at the time when the petitions were filed.
Finally, if the Central Government had a constitutional power to advise the
President to dissolve the Assemblies under Art. 356, the Courts could not
interfere with the exercise of that power, because the fundamental right of the
Petitioners itself existed so long as the Assembly was not dissolved. Article
172 of the Constitution itself provides that the Assembly of every State shall
continue for six years, unless dissolved earlier. The petitioners therefore
could not have a better right than what was conferred by Art. 172. If the
Assembly was dissolved earlier than six years, i.e. before its full duration
expired, under the provisions of the Constitution itself no complaint could be
made by the petitioners that there had been an infringement of their
fundamental right.
It was not a case where the petitioners had
indefeasible right to property which itself was threatened. The right of the
petitioners, if any, was merely a temporary and inchoate right. For these
reasons, therefore, even 113 if the letter of the Home Minister be treated to
be a veiled threat, the petitioners cannot get any relief from this Court.
Coming to the third contention that the
circumstances mentioned in the letter did not constitute sufficient reason for
dissolution of the Assemblies under Art. 356, the same was repelled by the
Additional Solicitor-General mainly on the ground that the Courts could not go
into the sufficiency or adequacy of the materials on the basis of which the
Council of Ministers of the Central Government could give any advice to the
President. It was also argued that this matter was not a justiciable issue. In
order to answer this contention we have to consider two different facets.
Firstly, whether or not the issue was
justiciable. Apart from Cl. (5) of Art. 356 which gives the order passed by the
President under this Article complete immunity from judicial scrutiny it was
pointed out by the Additional SolicitorGeneral that even before Cl. (5) which
was added by the Constitution (Forty second Amendment) Act, 1976 the law laid
down by this Court, Privy Council and the High Court’s was the same. Reliance
was placed on a decision of the Privy Council in Bhagat Singh and others v. The
King-Emperor,(") where the Privy Council, dwelling on the question whether
the existence of an emergency was justiciable or not observed thus :
" A state of emergency is something that
does not permit of any exact definition; It connotes a state of matters calling
for drastic action, which is to be judged as such by someone. It is more than
obvious that that someone must be the Governor General, and he alone. Any other
view would render utterly inept the whole provision.
x x x x x x Yet, if the view urged by the
petitioners is right, the judgment of the Governor-General could he upset
either (a) by this Board declaring that once the Ordinance was challenged in
proceedings by way of habeas corpus the crown ought to prove affirmatively
before a Court that a state of emergency existed, or (b) by a finding of this
Board after a contentious and protracted inquiry that no state of emergency
existed, and that the Ordinance with all that followed on it was illegal.
In fact, the contention is so completely
without foundation on the face of it that it would be idle to allow an
appellant to argue about it." A similar view was taken by the federal
Court in Lakhi Naravan Das v. Province of Bihar(2), where describing the nature
and incidents of art Ordinance, the Court observed as follows :
"The language of the section shows
clearly that it is the Governor and the Governor alone who has got to satisfy
himself as to the existence of circumstances necessitating the (1) L.R. 58 I.A.
169, 172.
(2) [1949] F.C.R. 693. 699.
114 .lm15 promulgation of an Ordinance. The
existence of such necessity is not a justiciable matter which the Courts could
be called upon to determine by applying an objective test.'-' The same view was
taken by this Court in M/s S. K. G. Sugar Ltd. v. state of Bihar and others(1)
where it was observed thus :
"It is however well-settled that the
necessity of immediate action and of "Promulgating an Ordinance is a
matter purely for the subjective satisfaction of the Governor. He is the sole
Judge as to the existence of the circumstances necessitating the making of an
Ordinance. His satisfaction is not a justiciable matter. It cannot be
questioned on ground of error of judgment or otherwise in court-see State of
Punjab v. Sat Pal Dang (1969) 1 S.C.R. 633." The Andhra Pradesh High Court
has also expressed the same view in In re. A. S. Sreeramulu(2) where it was
observed thus :
"We have seen that there is a wide range
of situations when the President may act under Article 356. The important thing
to notice is that the Constitution does not enumerate the situations and there
is no 'satisfactory criteria for a judicial determination' of what are relevant
considerations.
The very absence of satisfactory criteria
makes the question one which is intrinsically political and beyond the reach of
the Courts. The considerations which are relevant for action under Article 356
and the weighing of those considerations appear to be clearly matters of
political wisdom, not for judicial scrutiny." I find myself in complete
agreement with the observations made by the learned Judge.
The same view was taken by another Division
Bench of the Andhra Pradesh High Court in S. R. K. Hanumantha Rao v. State of
Andhra Pradesh. (3) It is obvious that exercise of discretion under Art. 356 by
the President is purely a political matter and depends on the advice that the
President gets from the Council of Ministers. The Council of Ministers are the
best judge to assess the needs of the situation, the surrounding circumstances,
the feelings and aspirations of the people and the temper of the times. If on
an overall assessment of these factors the Council of Ministers in their
political wisdom or administrative expediency decide to tender a particular
advice to the President. The Courts cannot enter into this arena which is
completely beyond judicial scrutiny. Even if the Chief Ministers did not think
it advisable to dissolve the Assemblies, their views are not binding (1) [1975]
1 S.C.R. 312, 317.
(2) A.I.R. 1974 A.P. 106.
(3) (1975) 2 A.W.R. 277.
115 on the Central Government which can form
its own opinion.
The exercise of the power under Art. 356 by
the President is a matter which falls directly within the exercise of the
powers of the Union and the Council of Ministers need not be guided by the
views of the Chief Ministers in the exercise of this power. In colegrove v.
Green(1) Justice Frankfurter very aptly observed thus :
"We are of opinion that the petitioners
ask of this Court what is beyond its competence to grant. This is one of those
demands on judicial power which cannot be met by verbal fencing about
"jurisdiction." It must be resolved by considerations on the basis of
which this Court, from time to time, has refused to intervene in controversies.
It is hostile to a democratic system to
involve the judiciary in the politics of the people. And it is not less
pernicious if such judicial intervention in an essentially political contest be
dressed up in the abstract phrases of the law." It is manifestly clear
that the Court does not possess the resources which are in the hands of the
Government to find out the political needs that they seek to subserve and the
feelings or the aspirations of the nation that require a particular action to
be taken at a particular time. It is difficult for the Court to embark on an
inquiry of that type. Thus what the Constitution (Forty-second Amendment) Act,
1976 has done by adding clause (5) to Art. 356 is to give statutory recognition
to the law laid down by the Courts long before.
Mr. Niren De submitted in reply to the
argument of the learned Additional Solicitor-General that in two cases the
Privy Council had taken a contrary view. Reliance was placed on a decision of
the, Privy Council in King Emperor v. Benoari Lal Sarma (2) where Viscount
Simon, L. C.
observed thus :
"Their Lordships entirely agree with
Rowland J's view that such circumstances might, if necessary, properly be
considered in determining whether an emergency had arisen;
but, as that learned judge goes on to point
out, and, as had already been emphasized in the High Court, the question
whether an emergency existed at the time when an ordinance is made and
promulgated is a matter of which the Governor-General is the sole judge.
This proposition was laid down by the Board
in Bhagat Singh v. The King Emperor-L.R. 58 I.A.
169".
Although the first part of the observations
of their Lordships supports the argument of Mr. Niren De to some extent, the
second part of the observations clearly shows that their Lordships had fully
endorsed the proposition laid down by the Court in Bhagat Singh's case (supra).
In these circumstances, therefore, this authority does not appear to be of any
assistance to Mr. Niren De.
(1) [1945] 328 U.S. 549, (2) L.R. 72 I.A. 57,
64.
116 Reliance was also placed on Padfield v.
Minister of Agricultural, Fisheries and Food() where Lord Denning, M. R.,
observed as follows :
"If it appears to the court that the
Minister has been, or must have been, influenced by extraneous considerations
which ought not to have influenced him-or, conversely, has failed, or must have
failed, to take into account considerations which ought to have influenced
him-the court has power to interfere." These observations, however, do not
support the argument of Mr. Niren De at all. Even if an issue is not
justiciable, if the circumstances relied upon by the executive authority are
absolutely extraneous and irrelevant, the Courts have the undoubted power to
scrutinise such an exercise of the executive power. Such a judicial scrutiny is
one which comes into operation when the exercise of the executive power is
colourable or mala fide and based on extraneous or irrelevant considerations. I
shall deal with this aspect of the matter a little later. It is, however,
'sufficient to indicate here that an order passed under Art. 356 is immune from
judicial scrutiny and unless it is shown that the President has been guided by
extraneous considerations it cannot be examined by the Courts.
This brings us to the second facet of this
argument, namely, whether the facts stated in the letter of the Home Minister
or in the press or the radio interviews are sufficient to enable the Central
Government to take a decision to advise the President to dissolve the State
Assemblies. We have already extracted the important portions of the statements
made in the letter of the Home Minister and in the radio interview of the Law
Minister and the Press interview of the Home Minister. These assertions made by
the Ministers of the Central Government have, however, to be read and
understood in the light of the prevailing circumstances which are established
from the notifications issued by the Government of India from time to time
which we shall deal with hereafter.
By virtue of Ministry of Home Affairs,
Notification No. G.S.R. 353 (E) dated June 26, 1975 the President of India
issued a proclamation declaring that a grave emergency exists whereby the,
security of India was threatened by internal disturbance. This notification was
followed by another Ministry of Home Affairs Notification No. G.S.R. 361 (E)
dated June 27, 1975 issued by the President under clause (1) of Art. 359 of the
Constitution by which the right of any person to move any Court for the
enforcement of the rights conferred by article 14, article 21 and article 22 of
the Constitution were suspended for the period during which the proclamation of
emergency was in force. Then followed the Maintenance of Internal Security
(Amendment) Ordinance, 1975 (No. 4 of 1975) which was promulgated an June 29,
1975 and published in the Government of India Gazette, Extraordinary, Part 11,
Section I dated June, 1975. pp. 213-15.
Section 5 of the Ordinance added s. 16A and
sub-s. (1) L.R. [1968] A.C. 997,1007.
117 (6) of s. 16A provided that it shall not
be necessary to disclose to any person detained under a detention order the
grounds on which the order had been made during the period the declaration made
in respect of such a person was in force. This was followed by the Maintenance
of Internal Security (Amendment) Act, 1976 passed on January 25, 1976 which
added sub-s. (9) to s. 16A of the principal Act which provided that the grounds
on which an order of detention was made or purported to be made under s. 3
against any person in respect of whom a declaration was made under sub-s. (2)
or sub-s. (3) and any information or materials on which such grounds or a
declaration under sub-s. (2) or a declaration or confirmation under sub-s. (3)
etc. was made was to be treated as confidential and shall be deemed to refer to
matters of State and it would be against the public interest to disclose the
same. Thus the effect of this provision was that no Court could call for the
materials on the basis of which the order of detention was passed. In other
words, any detention made during this period was put beyond judicial scrutiny.
While this state of affairs existed, the President by order dated January 18,
1977 dissolved the Lok Sabha under Art.85 of the Constitution as would appear
the Lok Sabha Secretariat Notification dated January 19, 1977 published in the
Government of India Gazette Extraordinary, Part I, Section 1, dated January 19,
1977. This was followed by notification dated February 10, 1977 by the Ministry
of Law. Justice and Company Affairs passed under sub-s. (2) of s. 14 of the
Representation of the People Act, 1951 by which the President called upon the
parliamentary constituencies to elect members in accordance with the provisions
of the said Act and of the rules and orders made there under. In pursuance of
this notification the Election Commission of India issued a notification on the
same day appointing the dates of elections to be held in various constituencies
which varied from 16th to 20th March, 1977.
According to this Notification there were 54
constituencies in Bihar, 10 constituencies in Haryana, 4 in Himachal Pradesh,
40 in Madhya Pradesh, 25 in Rajasthan, 85 in Uttar Pradesh, 42 in West Bengal,
21 in Orissa and 13 in Punjab.
All these constituencies elected their
representatives and from the results of the Lok Sabha as published in the
Indian Express of March 25, 1977 it would appear that out of 85 constituencies
in Uttar Pradesh not a single candidate belonging to the Congress party was
returned. Similarly in Bihar out of 54 constituencies not a single candidate of
the Congress party was elected. Similarly out of 13 constituencies in Punjab
and 10 constituencies in Haryana not a single candidate of the Congress party
was returned.
The same position obtained in Himachal
Pradesh where out of 4 constituencies not a Single Congress candidate was
elected. In the States of Madhya Pradesh, Rajasthan, West Bengal and Orissa,
the Congress party appears to have fared very badly also. In Madhya Pradesh out
of 40 seats, the Congress party could bag only one seat, whereas in Rajasthan
also the Congress met with a similar fate where it got only I seat out of 25
seats. In Orissa, also the Congress got only 4 seats out of 21 and in West
Bengal it got only 3 seats out of 42. It would thus appear that in the nine
states referred to above, the Congress party was practically routed. It is also
clear that the voters who voted for the candidates standing for the Lok Sabha
in the States 118 were more or less the same who had voted the Congress party
in the State Assemblies during the previous elections.
Thus, summarizing the position in short, it
is clear (1) that a grave emergency was clamped in the whole country;
(2) that civil liberties were withdrawn to a
great extent;
(3) that important fundamental rights of the
people were suspended;
(4) that strict censorship on the press was
placed; and (5) that the judicial powers were crippled to a large extent.
In the new elections the Congress party
suffered a major reverse in the nine states and the people displayed complete
lack of confidence in the Congress party. The cumulative effect of the
circumstances mentioned above may lead to a reasonable inference that the
people had given a massive verdict not only against the Congress candidates who
fought the elections to the Lok Sabha but also to the policies and ideologies
followed by the Congress Governments as a whole whether at the Centre or in the
States during the twenty months preceding the elections. In these circumstances
it cannot be said that the inference drawn by the Home Minister that the State
Governments may have forfeited the confidence of the people is not a reasonable
one or had no nexus with the action proposed to be taken under Art. 356 for dissolution
of the Assemblies.
It was in the background of these admitted
facts that the Central Government formed the opinion that the State Governments
should seek a fresh mandate from the people because they ceased to enjoy the
confidence of the people of the States concerned. In other words. the Central
Government thought that from the nature of the concerned, results of the
elections a reasonable inference could be drawn that the State Governments
concerned had forfeited the confidence of the people. It was, however,
vehemently argued by the plaintiffs and the petitioners that the mere fact that
the Congress party lost its majority in the Lok Sabha was not sufficient to
lead to the irresistible inference that the Congress Governments in the States
also forfeited the confidence of the people in the States where they were in
overwhelming majority so as to call for dissolution of the Assemblies and fresh
elections. Mr. H.
R. Gokhale, appearing for the State of
Punjab, argued that even in the past it had often happened that the people had
voted candidates of one party for the Lok Sabha and another party for the
States and a similar distinction seems to have been made by the voters this
time also. The instance cited by Mr. Gokhale was of 1967 elections. This
solitary circumstance in my opinion does not appear to be of much avail,
because having regard to the circumstances prevailing before the last elections
what inference should be drawn is a matter to be considered by the Central
Government and not by the Courts. The Central Government, on a complete and
overall assessment of the election results and the circumstances prevailing
during the emergency as detailed above, in that the funda119 mental rights of
the people were suspended, the right of the detenus to move the Courts was
almost crippled, strict censorship was placed on the press, and this state of
affairs having prevailed for about 20 months when elections were held after
which the people gave their clear verdict against the Congress so far as the
Lok Sabha election were concerned may have had some justification for coming to
the conclusion that the State Governments had forfeited the confidence of the
people. It is true that if the opinion of the Central Government was based on
extraneous or irrelevant materials or it was guided by purely personal
considerations or ulterior motives, the Court could have held such an action to
be mala fide and struck it down. In Dr. Akshabar Lal & Ors. v. Vice
Chancellor, Banaras Hindu University(1) this Court explained as to what was the
true nature and character of a mala fide action, and quoted the following
observations of Warrington, L. J., where it observed thus :
"The appellants characterised the whole
action as lacking in bona fide. The action can only be questioned if it is
ultra vires, and proof of alien or irrelevant motive is only an example of the
ultra vires character of the action, as observed by Warrington, L. J., in the
following passage :
"My view then is that only case in which
the Court can interfere with an act of a public body which is, on the face of
it, regular and within its powers, is when it is proved to be in fact ultra
vires, and that the references in the judgments in the several cases cited in
argument to bad faith, corruption, alien and irrelevant motives, collateral and
indirect objects, and so forth, are merely intended when properly understood as
examples of matters which if proved to exist might establish the ultra vires
character of the action in question." " I find myself in complete
agreement with the observations made by Warrington, L. J., extracted above.
But the serious question to be considered
here is as to whether the action of the Central Government in trying to
persuade the Chief Ministers to advise the Governors to dissolve the Assemblies
can be mid to be mala fide or tainted by personal motives or extraneous
considerations.
It was suggested that the present ruling
party wanted to have a President of its own choice and, therefore, it wanted to
dissolve all the Assemblies and order fresh elections so that they are able to
get candidates of their own choice elected to the various Assemblies. In the
first place, there is no reliable material to prove this fact or to show that
the Central Government was in any way swayed by those considerations. Secondly,
if the Congress Governments in the States Concerned Were so sure of their
position, I do not see any reason why they should not be able to face the
challenge and after taking fresh mandate from the people vindicate their stand.
Furthermore, we have to look at the circumstances catalogued above in order to
find out whether an inference drawn by the Central Government from those
circumstances can be said to be a reasonable one. Even assuming (1) [1961] 3
S.C.R. 386.
120 that from the circumstances mentioned
above, the other inference that the electorate might choose different
candidates for the States and the Lok Sabha is equally possible that by itself
does not make the action of the Central Government mala fide or ultra vires. If
two inferences are reasonably possible, the very foundation of mala fide
disappears. On the other hand, the important question to ask oneself is, could
under the circumstances mentioned above and the manner in which the people have
acted and reacted to the emergency and the post emergency era by returning a
massive verdict against the Congress, it be said that the Central Government
was guided by purely irrelevant or inept considerations or external or
extraneous motives in wanting to have fresh elections to the Assemblies? The
answer must be in the negative. I am convinced that having regard to the
circumstances detailed above, the view taken by the Home Minister and the Law
Minister cannot be said to be either extraneous or irrelevant or mala fide. The
contention of the counsel for the plaintiffs and the petitioners on this score
is, therefore, overruled.
There is yet another facet of this problem.
Assuming that the reasons and the grounds disclosed by the Home Minister in his
letter are extraneous or irrelevant this is only the first stage of the matter.
The second stage-which is the most vital stage-is the one which comes into
existence when the Council of Ministers deliberate and finally decide to advise
the President. As to what further grounds may be considered by them at that
time is anybody's guess. It is quite possible that the Council of Ministers may
base the advice on grounds other than those mentioned in the letter of the Home
Minister. Article 74(2) which runs thus :
"(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." completely bars any inquiry by any Court into the
matters which form the subject-matter of the advice given by the Council of
Ministers to the President. This Court, therefore, cannot probe into that
matter. In these circumstances, the argument of counsel for the plaintiffs and
the petitioners cannot be accepted at this stage. It is true that while an
order passed by the President under Art.
356 is put beyond judicial scrutiny by cl.
(5) of Art. 356, but this does not mean that the Court possesses no
jurisdiction in the matter at all. Even in respect of cl.
(5) of Art. 356, the Courts have a limited
sphere of operation in that on the reasons given by the President in his order
if the Courts find that they are absolutely extraneous and irrelevant and based
on personal and illegal considerations the Courts are not powerless to strike
down the order on the ground of mala fide if proved. We must, however, hasten
to add that this does not mean that the Central Government has a free licence
to pass any arbitrary or despotic order or to clothe it with a blanket power to
do anything it Ekes against the well established legal norms or principles of
political ethics. Such an arbitrary or naked action in a suitable case may
amount to a fraud on the Constitution and destroy the very roots of the power
exercised. In fact the Additional Solicitor-General candidly conceded that if
the 121 action under Art. 356 is absolutely and demonstrably absurd or perverse
or self-evidently mala fide and there is total absence of any nexus whatsoever
between the action taken and the scope and object of Art. 356, judicial
intervention may be available in such a case. For the reasons that I have
already given, this is, in my opinion, not the position here. We, however,
think that this is the least expected of such a high and mature authority as
the Council of Ministers of the Central Government. We might also like to
stress the fact that as the reasons given by the Council of Ministers in
tendering their advice to the President cannot be inquired into by the Courts,
we expect the Central Government in taking momentous decisions having far
reaching consequences on the working of the. Constitution, to act with great
care and circumspection and with some amount of objectivity so as to consider
the pros and cons and the various shades and features of the problems before
them in a cool and collected manner. The guiding principles in such cases should
be the welfare of the people at large and the intention to strengthen and
preserve the Constitution, and we do hope that this matter will receive the
serious attention of the Government. The stamp of finality given by Cl. (5) of
Art. 356 of the Constitution does not imply a free licence to the Central
Government to give any advice to the President and get an order passed on
reasons which are wholly irrelevant or extraneous or which have absolutely no
nexus with the passing of the Order. To this extent the judicial review
remains. In the instant case, however, considering the circumstances indicated
above, I feel that the grounds taken by the Home Minister have got a clear
nexus with the issue in question, namely, the passing of an order by the President
under Art. 356 in order to dissolve the State Assemblies. The argument of mala
fide put forward by the plaintiffs and the petitioners is, therefore, rejected.
I now come to the last contention raised by
counsel for the plaintiffs and the petitioners. Mr. Garg, appearing for the
petitioners vehemently contended that Art. 356 has absolutely no application to
the facts of the present case, as it does not give any power to the President
to dissolve the Assembly. In order to examine this argument closely, it may be,
necessary to extract the relevant part of Art. 356 thus :
"356. (1) If the President on receipt of
report from the Governor of a 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(a) assume to himself all or any of the functions of the Government
of the State and all or any of the powers vested in or exercisable by the
Governor or anybody or authority in the State other than the Legislature of the
State;
xx x x x x (3) Every proclamation under this
article shall be laid before each House of Parliament and shall, except 122
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 resolution of both Houses of Parliament :
x x x x x x (5) Notwithstanding anything in
this Constitution, the satisfaction of the President mentioned in Clause (1)
shall be final and conclusive and shall not be questioned in any court on any
ground".
The first part of Art. 356(1) gives power to
the President to issue a proclamation if he is satisfied on a report of the
Governor of the State or otherwise to make a proclamation. In the instant case
as there is no report of the Governor of any of the States, the President can
act on other methods which includes the advice given to him by the Council of
Ministers. Another condition thatis necessary for the application of Art. 356
is that the President must be satisfied that the Government of the State cannot
be carried on in accordance with the provisions of the Constitution. Great
stress was laid on this part of the ingredient of Art. 356(1) by counsel for
the plaintiffs and the Petitioners who contended that there is not an iota of
material to show that there was any apprehension that the Government of the
State could not be carried on in accordance With the provisions of the
Constitution or there was any break-down of the Constitutional machinery. This
is, however, a matter which depends on the subjective satisfaction of the
President based on the advice of the Council of Ministers. It is not for the
Court to make an objective assessment of this question as if it were sitting in
appeal over the advice given by the Council of Ministers or the order passed by
the President, Even so, there can be no doubt that having regard to the
circumstances in which the Congress was completely routed in the nine States
during the Lok Sabha Elections, the possibility of the State Governments having
lost the confidence of the people cannot be ruled out. If so, to continue in
office even after this would be purely undemocratic in character. As our
Constitution is wedded to a democratic pattern of Government, if a particular
State Government ceases to be democratic or acts in an undemocratic fashion, it
cannot be said that the Government of the State is carried on in accordance
with the provisions of the Constitution. Such a course of action is opposed to
the very tenor and spirit of the Constitution. In these circumstances,
therefore, on the facts and materials placed before us, the second part
mentioned in Art. 356 appears to have been prima facie satisfied and the argument
of the learned counsel for the plaintiffs and the petitioners on this ground is
not tenable.
It was then contended by Mr. Garg that a
perusal of clause (3) of Art. 356 and the proviso thereof clearly shows that
the proclamation can operate only for the period of two months and
automatically expires at the expiration of this period. It is argued that if
the Assembly is dissolved and this action is not capable of being confirmed by
the Parliament within two months, then it is incapable of 123 ratification by
the Parliament, and therefore, the reasonable inference should be that Art. 356
clearly excludes any power to do anything which cannot be ratified including
dissolution of the Assemblies in the States. The argument is undoubtedly
attractive and interesting, but on closer scrutiny it does not impress me. In
the first place, under Art. 356(1) (a) the President is empowered to 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. The power to
dissolve the Assembly is contained in Art. 174(2) of the Constitution which
empowers the Governor to prorogue or dissolve the Legislative Assembly. This
very power by force of Art.
356(1) (a) is conferred on the President
implicitly, and once this power is conferred by the application of Art.
356(1) (a) the President has the undoubted
jurisdiction to dissolve the Legislative Assembly by assuming the same power
which the Governor has under Art. 174(2). A Division Bench of the Kerala High
Court in K. K. Aboo v. Union of India and others,(1) while interpreting this
particular aspect of Art.
356 observed as follows :
"Art. 356(1) (b) empowers the President,
whenever he is satisfied of a Constitutional breakdown in the State, to issue a
Proclamation declaring inter alia, "that the powers of the Legislature of
the State shall be exercisable by or under the authority of Parliament."
That necessarily implies a power to dissolve the State Legislature. No resort
therefore need be had by the President to the provisions of Art. 356 (1) (a)
read with Art.
172 or Art. 174 to dissolve the State
Legislative Assembly. The power to dissolve the State Legislature is implicit
in Cl. _(1) (b) of Art. 356 itself".
I full endorse the aforesaid observations
which lay down the correct law on the subject on this particular aspect of the
matter.
As Art. 356 occurs in Part XVIII of the
Constitution which relates to emergency provisions, it is obvious that when the
Assembly is dissolved no Council of Ministers is in existence and, therefore
there is no occasion for either the Governor or the President to take the
advise of the Council of Ministers of the State. In these circumstances,
therefore, I am clearly of the opinion that Art. 356(1) (a) confers the powers
of the Governor under Art. 174(2) on the President in clear and categorical
terms and I cannot infer exclusion of the power merely from the fact that the
proclamation is to expire after two months. Even if the order dissolving the
Assembly cannot be ratified by the Parliament under Cl. (3) of Art. 356 that
makes no difference, because Cl. (3) does not touch actions taken, proceedings
completed, consequences ensued and orders executed. At the time when Parliament
exercises the control, all these actions have already taken place and it is not
possible to put the clock back or to reverse actions which have already been
taken and completed, nor was such a contingency contemplated by the founding
fathers of the Constitution. I am, therefore, unable to accent the argument of
Mr. Garg on this point.
(1) A.I.R. 1965 Ker. 229, 231.
9-722SCI/77 124 It was further argued by Mr.
Garg as also by Mr. Bhatia appearing for the State of Himachal Pradesh that
even assuming that Art. 356() (a) confers the power given to the Governor by
Art. 174(2) it would be a proper exercise of the discretion of the President to
prorogue the Assembly instead of taking the extreme course of dissolving it.
This, however, is purely a matter which lies
within the domain of politics. The Court cannot substitute its discretion for
that of the President nor is it for the Court to play the role of an Advisor as
to what the President or the Council of Ministers should do in a particular
event.
The Central Government which advises the President
is the best Judge of facts to decide as to what course should be adopted in a
particular case, namely, whether the Legislative Assembly should be prorogued
or should be dissolved and it is open to the President to take any of these two
actions and if he prefers one to the other, this matter is beyond judicial
review. For these reasons, therefore, I am clearly of the opinion that Art. 356
does not contain any express or implied limitations on the nature or functions
of the Governor which are to be exercised by the President under Art. 356(1)
(a)..
I generally agree with my Lord the Chief
Justice on the other points lucidly discussed by him, except with regard to his
observations regarding the theory of the basic structure of the Constitution on
which I would refrain from expressing any opinion, because the question does
not actually arise for decision in this Case.
These are my reasons in-support of the
unanimous order passed by this Court on April 29, 1977 dismissing the suits and writ petitions and rejecting the prayers for injunctions and interim reliefs.
There will be no order as to costs.
S.R. (Suits & Petitions dismissed).
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