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

A

JANUARY 24, 2006

B

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

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

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

Articles 159, 163, 164, I 74(2)(b) and 356--/nsta/lation of new G Government after election-Duty of Governor.

Articles 79, 168, 245 and 246-Parliament-Nature of acts o.f-When legislative.

RAMESHWAR PRASAD v.U.0.1. 563

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

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

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

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

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

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

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

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A not have attempted to act on that basis and arrogated to himself such an authority. Relying heavily on the Nine Judge Bench judgment of this Court in S.R.. Bommai and Ors. v. Union of India and Ors .. 1199413 SCC I, it was contended that action of the Governor is ma/a fide in law; irrational, without any cogent material to support the conclusion arrived at and is based on mere ipse dixit and, thus, was not sustainable in law. It was B contended that in exercise of judicial review this Court should quash the impugned notification and as a consequence restore the legislative assembly constituted by the Election Commission notification dated 4th March, 2005.

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

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

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

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

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

After hearing elaborate arguments, by a brief order dated 7th H October, 2005, the notification dated 23rd May, 2005 was held to be

-J RAMESHWAR PRASAD v.U.0.1. 565 unconstitutional but having regard to the facts and circumstances of the A case, relief directing status quo ante to restore the Legislative Assembly as it stood on 7th March, 2005, was declined.

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

1.1. Section 73 of the RP Act, 1951 enjoins upon the Election c Commission to issue notification after declaration of results of the elections in all the constituencies. The superintendence, direction and control of elections to Parliament and to the Legislature of every State vests in Election Commission under Article 324 of the Constitution. Article 327 provides that Parliament may make provision with respect to all matters relating to, or in connection with, elections to the Legislative Assembly of a State and all other matters necessary for securing the 'due constitution' of the House of the Legislature. Article 329 bars the interference by courts in electoral matters except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature. Article 327 read with Section 73 of the RP Act, 1951 provide for as to when the House or Assembly shall be 'duly constituted'. No provision, constitutional or statutory, stipulates that the 'due constitution' is only for the purposes of Articles 324, 327 and 329 and not for the purpose of enabling the Governor to exercise power under Article 174(2)(b) of the Constitution. In so far as the argument based on Article 172 is concerned, it seems clear that the due constitution of the Legislative Assembly is different than its duration which is five years - to be computed from the date appointed for its first meeting and np longer. There is no restriction under Article 174(2)(b) stipulating that the power to dissolve the Legislative Assembly can be exercised only after its first meeting. Clause (b) of proviso to Section 73 of the RP Act, 1951 also does not limit the deemed constitution of the Assembly for only specific purpose of the said Act or Articles 324, 327 and 329 of the Constitution. The said clause provides that the issue of notification under Section 73 shall not be deemed to affect the duration of the State H

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

1.2. The Assembly, for all intends and purposes, is deemed to be duly constituted on issue of notification under Section 73 and the duration D thereof is distinct from its due constitution. The interpretation which may lead to a situation of constitutional breakdown deserves to be avoided, unless the provisions are so clear as not to call for any other interpretation. 1611-A-BI

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

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

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

Udai Narain Sinha v. State of U.P. and Ors .. AIR [19871 All. 203, disapproved.

G 2. I. The proclamation dated 23rd May, 2005 is unconstitutional. Under Article 356 of the Constitution, the dissolution of an Assembly can be ordered on the satisfaction that a situation has arisen in which th~ . Government of the State cannot be carried on in accordance with the Constitution. Such a satisfaction can be reached by the President on receipt of report from the Governor of a State or otherwise. It is permissible to

RAMESHWAR PRASAD v.U.0.1. 567 arrive at the satisfaction on receipt of the report from Governor and on other material. Such a satisfaction can also be reached only on the report of the Governor. It is also permissible to reach such a conclusion even without the report of the Governor in case the President has other relevant material for reaching ~he satisfaction contemplated by Article 356. The expression 'or otherwise' is of wide amplitude. [611-H; 612-A, Bl B 2.2. In the present case, it is not in dispute that the satisfaction that a situation has arisen in which the Government of State cannot be carried on in accordance with the provisions of the Constitution has been arrived at only on the basis of the reports of the Governor. It is not the case of the Union of India that it has relied upon any material other than the reports of the Governor. (612-C, DI

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

2.4. The expression "required" found in Article 163(1) is stated to signify that the Governor can exercise his discretionary powers only if there is a compelling necessity to do so. It has been reasoned that the expression "by or under the Constitution" means that the necessity to exercise such powers may arise from any express provision of the Constitution or by necessary implication. The Sarkaria Commission Report further adds that such necessity may arise even from rules and orders made "under" the Constitution. Observing that the Governor needs to discharge "dual responsibility" - to the Union and the State - the F Sarkaria Commission has sought to evaluate the role of the Governors in certain controversial circumstances, such as, in appointing the Chief Minister, in ascertaining the majority, in dismissal of the Chief Minister, in dissolving the Legislative Assembly, in recommending President's Rule and in reserving Bills for President's consideration. [615-C-E[ G 2.5. It is seen that one day a person is in active politics in as much as he holds the office of the Chief Minister or Minister or a party post and·almosfon the following day or, in any case, soon thereafter, the same person is appointed as the Governor in another State with hardly any cooling period. Ordinarily, it is difficult to expect detachment from party H

568 Sl PRE\1E COURT HPORTS [2006[ 1 S.C.R.

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

2.6. Undisputedly, a Governor is charged with the duty to preserve, protect and defend the Constitution and the laws, has a concomitant duty and obligation to preserve democracy and not to permit the 'canker' of political defections to tear into the vitals of the Indian democracy. But on facts of the present case, this Court is unable to accept that the Governor by reports dated 27th April and 21st May, 2005 sought to achieve the aforesaid objective. There was no material, let alone relevant, with the Governor to assume that there was no legitimate realignment of political parties and there was blatant distortion of democracy by induced defections through unfair, illegal, unethical and unconstitutional means. [624-H; 625-A, B[

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

RAMESHWAR PRASAD v. U.0.1. 569· any material which are quite easy to be made if any political party not gaining absolute majority is to be kept out of governance. No assumption without any basis whatever could be drawn that the reason for a group to support the claim to form the Government by Nitish Kumar, was only the aforesaid distortions. That stage had not reached. It was not allowed to be reached. If such majority had been presented and the Governor B forms a legitimate opinion that the party staking claim would not be able to provide stable Government to the State, that may be a different situation. Under no circumstances, the action of Governor can be held to ~ be bona fide when it is intended to prevent a political party to stake claim for formation of the Government. After elections, every genuine attempt is to be made which helps in installation of a popular Government, C whichever be the political party. 1625-C-H; 626-AI

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

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

570 SUPREME COURT REPOR rs (2001

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

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

2.11. When the facts of the present case are examined in light of the scope of judicial review as is clear from the aforesaid which represents ratio decidendi of majority opinion of Bommai 's case, it becomes evident that the challenge to the impugned Proclamation must succeed. The case in hand is squarely covered against the Government by the dicta laid down in Bommui 's case. There cannot be any presumption of allurement or horse-trading only for the reason that some MLAs, expressed the view which was opposed to the public posture of their leader and decided to support the formation of the Government by the leader of another political party. The minority Governments are not unknown. It is also not unknown that the Governor, in a given circumstance, may not accept the claim to form the Government, if satisfied that the party or the group staking claim would not be able to provide to the State a stable Government. It is also not unknown that despite various differences of perception, the party, group or MLAs may still not opt to take a step which may lead to the fall of the Government for various reasons including their being not prepared to face the elections. These and many other imponderables can result in MLAs belonging to even different political parties to come together. It does not necessarily lead to assumption of allurement and horse-trading. 1649-C-Ff G 2.12. As opposed to the cases of dissolution of Karnataka and Nagaland, while considering the cases of dissolution of assemblies of Madhya Pradesh, Rajasthan and Himachal Pradesh, it was held in Bommai that the reports of the Governors disclosed that the State Governments had miserably failed to protect the citizens and property .of the State H against internal disturbances, it was found that the Governor's reports

RAMESHWAR PRASAD v. U.0.1. 571

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

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

2.14. In the present case, there is nothing except the reports of the c Governor. In absence of the relevant material much less due verification, the report of the Governor has to be treated as the personal ipse dixit of the Governor. The drastic and extreme action under Article 356 cannot be justified on mere ipse dixit, suspicion, whims and fancies of the Governor. This Court cannot remain a silent spectator watching the D subversion of the Constitution. It is to be remembered that this Court is the sentinel on the qui vive. In the facts and circumstances of this case, the Governor may be main player, but Council of Ministers should have verified facts stated in the report of the Governor before hurriedly accepting it as a gospel truth as to what Governor stated. Clearly, the E Governor has mislead the Council of Ministers which lead to aid and advice being given by the Council of Ministers to the President leading to the issue of the impugned Proclamation. (659-F-H; 660-A)

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

572 SUPREME (_'()l :RT REPfJRTS [20061 I S.C.R.

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

2.16. The proposition that given a choice between going back to the c electorate and accepting a majority obtained improperly, only the former is the real alternative, is too broad and wide to merit acceptance. Acceptance of such a proposition as a relevant consideration to invoke exceptional power under Article 356 may open a floodgate of dissolutions and has far reaching alarming and dangerous consequences. It may also be a handle to reject post-election alignments and realignments on the ground of same being unethical, plunging the country or the State to another election. This aspect assumes great significance in situation of fractured verdicts and in the formation of coalition Governments. If, after polls two or more parties come together, it may be difficult to deny their claim of majority on the stated ground of such illegality. These are the aspects better left to be determined by the political parties which, of course, must set healthy and ethical standards for themselves, but, in any case, the ultimate judgment has to be left to the electorate and the legislature comprising also of members of opposition. 1662-DI • 2.17. A political party primajacie having majority has to be permitted to continue with the Government or permitted to form the Government, as the case may be. In both categories, ultimately the majority shall have to be proved on the floor of the House. The contention also overlooks the basic issue. It being that a party even, prima facie, having majority can be prevented to continue to run the Government or claim to form the Government declined on the purported assumption of the said majority having been obtained by illegal means. There is no question of such basic issues allegedly falling in the category of "political thicket" being closed on the ground that there are many imponderables for which there is.no judicially manageable standards and, thus, outside the scope of judicial review. 1663-E-GI H i /' RAMESHWAR PRASAD v.U.0.1. 573

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

2.21. The provision of the Tenth Schedule dealing with defections, those of AA Act of 1951 dealing with corrupt practice, electoral offences and disqualification and the provisions of Prevention of Corruption Act, 1988 are legal safeguards available for ensuring purity of public life in a H

574 Sl'PREME COl RI RL\'ORIS l2006J I S.C.R.

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

2.22. There cannot be any doubt that the oath prescribed under Article 159 requires the Governor to faithfully perform duties of his office and to the best of his ability preserve, protect and defend the Constitution and the laws. The Governor cannot, in the exercise of his discretion or otherwise, do anything what is prohibited to be done. The Constitution enjoins upon the Governor that after the conclusion of elections, every possible atte~pt is made for formation of a popular Government representing the will of the people expressed through the electoral process. If the Governor acts to the contrary by creating a situation whereby a party is prevented even to stake a claim and recommends dissolution to achieve that object, the only inescapable inference to be drawn is that the exercise of jurisdiction is wholly illegal and unconstitutiollal. Governor's report dated 21st May, 2UUS, inter u!iu, stated that 17 - 18 MLAs belonging to LJP party arc moving towards JDU which would mean JDU may be in a position to stake claim to form the Government. The further assumption that the move of the said members was itself indicative of various allurements having been offered to them and on that basis drawing an assumption that the claim that may be staked to form a Government would affect the constitutional provisions and safeguards built therein and distort the verdict of the people would be arbitrary. This shows that the approach was to stall JDU from staking a claim to form the Government. At that ' F stage, such a view cannot be said to be consistent with the provisions of Tenth Schedule. In fact, the provisions of the said Schedule at that stage had no relevance. It is not a case of 'assumption', or 'perception' as to the provisions of Constitution by the Governor. It is a clear case where attempt was to somehow or the other prevent the formation of a G Government by a political party - an area wholly prohibited in so far as the functions, duties and obligations of the Governor are concerned. It was thus a wholly unconstitutional act. 1669-H; 670-A-E]

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

RAMESHW AR PRASAD v. U .0.1. 575 the defections have to be dealt with in the manner permissible in law. A (670-F)

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

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

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

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

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

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

3. As a consequence of the view taken, the Court could have made an order of status quo ante as prev'liling before dissolution of Assembly. However, having regard to the facts and the circumstances of the case, in terms of order of this Court dated 7th October, 2005, such a relief was declined. Reasons are the larger public interest, keeping in view the ground realities and taking a pragmatic view. As a result of the impugned Proclamation, the Election Commission of India had not only made preparations for the four phase election to be conducted in the State of

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

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

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

A volition is one thing than issue of direction by the Court to file an affidavit. The personal immunity under Article 361(1) is complete and, therefore, there is no question of the President or the Governor being made answerable to the Court in respect of even charges of malajides. 1674-B-FI

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

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

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

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

1.2. From S. R. Bommai ·s decision, it can be discerned that the majority was of the view that so far as the scope and ambit of judicial review is very limited when a proclamation under Article 356 is questioned and similar parameters would apply in a case where a Notification is

RAMESHWAR PRASAD v.U.0.1. 579 '\ passed under Article 174(2) (b) dissolving the State Legislative Assembly. A The plea that the Notification dissolving Assembly is of a legislative character and could be challenged only on the ground of absence of legislative competence or ultra vires of the Constitution, cannot be accepted. 1690-C-E]

1.3. In view of Article 7 4(2) of the Constitution, the court cannot go B into the question as to what manner of advice was tendered by the Council \ of Ministers to the President. The power conferred on the President is not absolute; it has got checks and balances. It is true that the power exercised by the President is of serious significance and it sometime amounts to undoing the will of the people of the State by dismissing the duly c constituted Government and dissolving the duly constituted Legislative Assembly. Any misuse of such power is to be curbed if it is exercised for mala fide purposes or for wholly extraneous reasons based on irrelevant grounds. The Court can certainly go into the materials placed by the Governor which led to the decision of dissolving the State Assembly. }. 1690-E-G] D

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

580 SUPREME COURT REPORTS [2006) I S.C.R.

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

1.5. It is important to note that the writ petitioners have no case that JD(U) or any other alliance had acquired majority and that they had approached the Governor staking their claim for forming a Government. No material is placed before this Court to show that the JD(U) or its alliance with BJP had ever met the Governor praying that they had got the right to form a Government. The plea that they were about to form a Government and in order to scuttle that plan the Governor sent a report whereby the Assembly was dissolved to defeat that plan is without any basis. The Governor in his report stated that 17 or 18 members of the LJP had joined the JD (U)-BJP alliance, but no materials have been placed to show that they had, in fact, joined the alliance to form a Government. One letter has been produced by one of the petitioners and the same is not signed by all the MLAs and as regards some of them, some others had put their signatures. Therefore, it is incorrect to ~ay !hat the Governor had taken steps to see that the Assembly was dissolved ha~tily to prevent the formation of a Government under the leadership of the political party JD(U). If any responsible political party had any case that they had obtained majority support or were about to get a majority support or were in a position to form minority Government with the support of some political parties and if their plea was rejected by the Governor, the position would have been totally different. No such situation had been reached in the instant case. It is also very pertinent to note that the order for dissolution of the State Assembly was passed after about three months of the proclamation imposing the President's Rule was issued under Article F 356(1 ). When there was such a situation, the only possible way was to seek a fresh election and if it was done by the President, it cannot be said that it was a ma/a fide exercise of power and the dissolution of the Assembly was wholly on extraneous or irrelevant grounds. It is also equally important that in Karnataka, Meghalaya and Nagaland cases, there was G a democratically-elected Government functioning and when there is an allegation that it had lost its majority in the Assembly, the primary duty was to seek a vote of confidence in the Assembly and test the strength on the floor of the Assembly. Such a situation was not available in the present

H case. It was clear that not a single political party or alliance was in a position to form the Government and when the Assembly was dissolved after waiting· for a reasonable period, the same cannot be challenged on -

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

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

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

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

582 S!PRF:vlr. COl'RT RFPORfS [2006] I S.C.R.

A 1.2. A person entrusted with discretion must, so to speak, direct himself properly in law. He must call his attention to matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules he may truly be said to be acting unreasonably. Similarly, there may be something so absurd that no sensible person could ever dream that it lay B within the powers of the authority. It is an unwritten rule of the law, constitutional and adininistrative, that whenever a decision-making function is entrusted to the subjective satisfaction of a statutory .. functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote. C (715-B, CJ

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

E 1.4. Allegation of mala-jides without any supportable basis is the last feeble attempt of a losing litigant, otherwise it will create a smokescreen on the scope of judicial review. This is a pivotal issue around which the fate of this case revolves. The satisfaction of the President is justiciable. It would be open to challenge on the ground of malafides or being based wholly on extraneous or irrelevant grounds. The sufficiency or the correctness of the factual position indicated in the report is not open to judicial review. The truth or correctness of the materials cannot be questioned by the Court nor would it go into the adequacy of the material and it would also not substitute its opinion for that of the President. Interference is called for only when there is clear case of abuse of power or what is some times called fraud on power. The Court will not lightly presume abuse or misuse of power and will make allowance for the fact that the decision making authority is the best judge of the situation. If the Governor would have formed his opinion for dissolution with the sole objective of preventing somebody from staking a claim it would clearly be extraneous and irrational. The question whether such person would be in a position to form a stable Government is essentially the subjective

; J RAMESHWAR PRASAD v.U.0.1. 583 opinion of the Governor; of course to be based on objective materials. The A basic issue therefore is did the Governor act on extraneous and irrelevant materials for coming to the conclusion that there was no possibility of stable Government. [717-D, G[

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

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

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

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

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

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

Sarkaria Commission's Report on Centre-State Relations (1988), paras H

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

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

.. Walter F. Murphy, referred to . ~

2.1. The Governor occupies a very important and significant post in the democratic set up. When his credibility is at stake on the basis of c allegations that he was not performing his constitutional obligations or functions in the correct way, it is a sad reflection on the person chosen to be the executive Head of a particular State. A person appointed as a Governor should add glory to the post and not be a symbolic figure ' oblivious of the duties and functions which he is expected to carry out. It is interesting to note that allegations of favouratism and ma/a jides are hurled by other parties at Governors who belonged or belong to the ruling party at the Centre, and if the Governor at any point of time was a functionary of the ruling party. The position does not change when another party comes to rule at the Centre. It appears to be a matter of convenience for different political parties to allege malajides. This unfortunate situation could have been and can be avoided by acting on the recommendations of the Sarkaria Commission and the Committee of the National, Commission to review the working of the Constitution in the matter of appointment of Governors. This does not appear to be convenient for the

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

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

586 SU PREM!- COUR I' REPORTS [20061 I S.C.R.

A democracy. 1789-B, q 2.3. The key actor in the Centre-State relations is the Governor who is a bridge between the Union and the State. The founding fathers deliberately avoided election to the office of the Governor, as is in vogue in the U.S.A. to insulate the office from the linguistic chauvinism. The B President has been empowered to appoint him as executive head of the State under Article t 55 in Part VI, Chapter ll. The executive power of the State is vested in him by Article 154 and exercised by him with the aid and advice of the Council of Ministers, the Chief Minister as its head. Under Article 159 the Governor shall discharge his functions in accordance with the oath to protect and defeVJd the Constitution and the law. The office of the Governor, therefore, is intended to ensure protection and sustenance of the constitutional process of the working of the Constitution by the elected executive and given him an umpire's role. He would be an arbiter when there was a constitutional dead lock in the State and he would be able to play an impartial role. There would be administrative mechanism through which the constitutional crisis would be resolved in the State. The Governor thus should play an important role. In his dual undivided capacity as a head of the State he should impartially assist the President. As a constitutional head of the ~tate Government in times of constitutional crisis he should bring about sobriety. The link is apparent when one finds that Article 356 would be put into operation normally based on Governor's E report. He should truthfully and with high degree of constitutional responsibility, in terms of oath, inform the President that a situation has ' arisen in which the constitutional machinery in the State has failed and the Government of State cannot be carried on in accordance with the provisions of the Constitution, with necessary detailed factual foundation. It is incumbent on each occupant of every high office to be constantly F aware of the power in the High Office he holds that is meant to be exercised in public interest and only for public good, and that it is not meant to be used for any personal benefit or merely to elevate the personal status of the current holder of that office. [789-C-H; 790-A, Bl

2.4. Article 356, as finally adopted, limits the functions of the G Governor to making a report to the President that a situation has arisen in which there has been failure of the constitutional machinery. The decision whether a Proclamation may be issued under Article 356 rests with the President, that is to say, the Union Government. Significantly, the President can exercise the power "on receipt of a report from the H Governor or otherwise" if he is satisfied that the situation requires the

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

2.6. It is not in the event of political instability alone that a Governor may report to the President under Article 356. Governor may have to report to the President about any serious internal disturbances in the State, or more especially of the existence or possibility of a danger of external aggression. In such situations also it may become necessary for the Governor to report to the President for action pursuant to Article 356. It is difficult to lay down any precise guidelines in regard to the imposition of President's rule. The Governor has to act on each occasion according to his best judgment, the guiding principle being that the constitutional machinery in the State should, as far as possible, be maintained. (795-F-H; 796-Al

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

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

3. There is no challenge to the validity of Section 73 of the R.P. Act, which is in no way repugnant by any provision to the Constitution. That being so, by operation of Section 73 of the R.P. Act the Assembly was duly H

588 SUPREME COURT REPORTS (2006] l S.C.R.

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

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

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

Milon K. Banerjee, AG, Goolam E. Vahanvati, SG, Gopal Subramaniam, ASG, Soli J. Sorabjee, Ranjit Kumar, P.P. Rao, H.L. Aggarwal, Maninder Singh, Ms. Pratibha M. Singh, Preetesh Kapur, Abhinav Mukherji, Sunil F Fernandes, A.K. Prasad, Saurabh Mishra, Ms. Jaspreet Kaur, Satyajeet Kumar, Ms. Shweta Singh, Ray Vikram Nath, Syed Ali Ahmed, Syed Tanweer Ahmed, Girdhar Upadhyay, S.S. Bandyopadhyay, Vinita G. Upadhyay, Awadhesh Kumar Singh, Rajeev Sharma, R.D. Upadhyay, Syed Tanweer Akhtar, R.D. Upadhyay, P.S. Narasimha, Sridhar Potaraju, Ananga Bhattacharya, Avijeet Kumar Lala, Asutosh Pandey, B.K. Prasad, R.M. Sharma, Ms. Sushma Suri, G Navin Prakash, Ms. Sandhya Goswami, Gaurav Agrawal, S. Muralidhar, S.K. Mendiratta, Amit Sharma, B.B. Singh, Kumar Rajesh Singh, B.P. Yadav, Ramjee Prasad Kushwaha, Wahid Hussain, Mushtaq Ahmad and Viplav Sharma in-person for the appearing parties. ...