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

12Copy pinpoint12. Independent: 17 A 243

The R.J.D. and its alliance positic-n is as follows: I. R.J.D. 75

2. Cong.(I) JO B

3. C.P.I. 03 (support letter not recd.)

4. C.P.I.(M) OJ

5. N.C.P. 03 c 92

The N.D.A. alliance position is as follows: I. B.J.P. 37

2. J.D.(U) 55 D 92

3. The present C.M., Bihar, Smt. Rabri Devi met me on 28.2.2005 and submitted her resignation along with her Council of Ministers. I have accepted the same and asked her to continue till an alternative E arrangement is made.

4. A delegation of members of LJP met me in the afternoon of 28.2.2005 and they submitted a letter (Annexure II) signed by Shri Ram Vilas Paswan, President of the Party, stating therein that they will neither support the RJD nor the BJP in the formation of F Government. The State President of Congress Party, Shri Ram Jatan Sinha, also met in the evening of 28.2.2005.

5. The State President of BJP, Shri Gopal Narayan Singh along with supporters met me on 1.3.2005. They have submitted a letter (Annexure III) stating that apart from combined alliance strength of G 92 (BJP & JD(U) they have support of another 10 to 12 Independents. The request in the letter is not to allow the RJD to form a Government.

6. Shri Dadan Singh, State President of Samajwadi Party, has sent a letter (Annexure IV) indicating their decision not to support the RJD H

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

A or NDA in the fonnation of the Govt. He also met me on 2.3.2005.

7. Shri Ram Naresh Ram, Leader of the CPI (ML-Lib.), Legislature Party along with 4 others met me and submitted a letter (AnnexureV) that they woula not support any group in the fonnation of Government.

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

9. The RJD met me on 5.3.2005 in the forenoon and they staked claim to form a Government indicating the support from the following c parties : I. Cong(!) 10

2. NCP 03

3. CPl(M) 01

4. BSP 02 D ~

(Copy enclosed as Ann. VII)

The RJD with the above will have only 91.

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

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

RAMESHWARPRASADv. U.⁰.1. [SABHARWAL,CJ.] 593

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

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

"In normal circumstances the Governor need have no doubt as to who is the proper person to be appointed; it is leader of majority party in the Legislative Assembly, but circumstances can arise when it may be doubtfol who that leader is and the E Governor may have to exercise his personal judgment in selecting the C.M. Under the Constitutional scheme which envisages that a person who enjoys the confidence of the Legislature should alone be appointed as C.M."

In Bommai 's case referred to above in para 153, S.C. has stated with regard to the position where, I quote :

"After the General Elections held, no political party or coalition of parties or group is able to secure absolute majority in the Legislative Assembly and despite the Governor's exploring the alternatives, the situation has arisen in which no political party is able to fonr stable Government, it would be case of completely demonstrable inability of any political party to form a stable Government commanding the confidence of the majority members of the Legislature. It would be a case of failUre of constitutional machinery." H

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

13Copy pinpoint13. I explored all possibilities and from the facts stated above, I am fully satisfied that no political party or coalition of parties or groups is able to substantiate a claim of majority in the Legislative Assembly, and having explored the alternatives with all the political parties and groups and Independents MLAs, a situation has emerged in which no political party or groups appears to be able to form a Government B commanding a majority in the House. Thus, it is a case of complete inability of any political party to form a stable Government commanding the confidence of the majority members. This is a case of failure of constitutional machinery.

14Copy pinpoint14. I, as Governor of Bihar, am not able to form a popular Government c in Bihar, because of the situation created by the election results mentioned above.

15Copy pinpoint15. I, therefore, recommend that the present newly constituted Assembly be kept in suspended animation for the present, and the President oflndia is requested to take such appropriate action/decision, D as required."

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

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

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

} ' RAMESHWARPRASADv. U.⁰.1. [SABHARWAL,CJ.] 595

cannot take pleasure in saying "Look we did this". We are not happy about it. I would ensure that the President's Rule is not continued for a long time. The sooner it disappear, the better it would be for Bihar, for democracy and for the system we are following in our country. But, who is to take steps in this regard? It is the elected representatives who have to take steps in this respect. The Governor can and, I would like to request in this House that elected representatives should talk to each other and create a situation in which it becomes possible for them to form a Government. Even if it is minority Government with a slight margin, there is no problem .. "

The Home Minister gave a solemn assurance to the nation that the imposition of President's rule was temporary and transient and was intended to explore the possibility of forming a popular Government.

According to the petitioners, process of realignment of forces was set in motion and several political parties and independent MLAs re-considered their position in terms of their commitment to provide a majority Government D in deference to the popular wishes of the people and announced support to the NOA Jed by Shri Nitish Kumar. First such announcement was made by the entire group of 17 independent MLAs on 8th April, 2005. The signed declaration was released by these MLAs to the media. With the support of 17 independent MLAs the support base of the NOA ro~e to I09 MLAs. Later E on, it rose to 115 MLAs with the declaration of support by the Samajwadi Party (SP), the Bahujan Samaj Party (BSP) and the Nationalist Congress Party (NCP).

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

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

A "Respected Rashtrapati Jee, , ii

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

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

3. I am given to understand that serious attempts are being made by JD-U and BJP to cobble a majority and lay claim to form the E Government in the State. Contacts in JD-U and BJP have informed that 16-17 LJP MLAs have been won over by various means and attempt is being made to win over others. The JD-U is also targetting Congress for creating a split. It is felt in JD-U circle that in case LJP does not split then it can still form the Government with the support of Independent, NCP, BSP and SP MLAs and two-third of Congress F MLAs after it splits from the main Congress party. The JD-U and BJP MLAs are quite convinced that by the end of this month or latest by the first week of May JD-U will be in a position to form the Government. The high pressure moves of JD-U/BJP is also affecting the RJD MLAs who have become restive. According to a report there is a lot of pressure by the RJD MLAs on Lalu Pd. Yadav to either G form the Government in Bihar on UPA pattern in the centre, with the support of Congress, LJP and others or he should at least ensure the • continuance of President's rule in the State.

4. The National Commission to review the working of the Constitution H has also noticed that the reasons for increasing instability of elected

RAMESHWARPRASAD v. U.⁰.1. [SABHARWAL, CJ.] 597

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

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

5. Newspaper reports in the recent time and other reports gathered through meeting with various party functionaries/leaders and also intelligence reports received by me, indicate a trend to gain over elected representatives of the people and various elements within the party and also outside the party being approached through various allurements like money, caste, posts etc., which is a disturbing feature. This would affect the constitutional provisions and safeguards built therein. Any such move may also distort the verdict of the people as shown by results of the recent elections. If these attempts are allowed to contiirne then it would be amounting to tampering with constitutional provisions.

6. Keeping in view the above mentioned circumstances the present situation is fast approaching a scenario wherein if the trend is not arrested immediately, the consequent political instability will further give rise to horse trading being practiced by various political parties/ groups trying to allure elected MLAs. Consequently it may not be possible to contain the situation without giving the people another opportunity to give their mandate through a fresh poll.

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

According to the petitioners, Lok Janashakti Party (LJP) had contested elections on the plank of opposing the then Government Jed by Rashtriya Janata Dal (RJD), which again is a constituent of United Progressive Alliance H

598 SUPREME COURT REPORTS [2006] I S.C.R. A (UPA) in the Centre. It had a strength of 29 MLAs in the new assembly. The leader of LJP Shri Ram Vilas Paswan had taken the stand ihat he was opposed to RJD as well as NOA led by the BJP. MLAs belonging to LJP were in a rebellious mood. A.bout 22 MLAs belonging to the LJP assembled on or around 21st May, 2005 and started working towards a major political realignment in the stand of the said party. According to them, 22 LJP members B of the Legislative wing supported by members of the original political party reached a consensus subsequently to merge their party with the JD(U). That, with this the repolarisation of political forces was complete. According to them the proposed merger between two political formations was in consonance

C with the principles enumerated in para 4 of the Tenth Schedule to the Constitution. It provides that on a merger of the political party, all the members ·- of the new political party with which the merger has taken place if and only if not less than two-third of the members of the said party have agreed to the said merger. It is their allegation that in order to thwart the formation of a Government led by JD(U) the Governor of Bihar sent another report from its Camp Office in Delhi on 21st May, 2005 to the President of India. It was reiterated in the report that from the information gathered through reports from media, meeting with various political functionaries, as also intelligence reports, a trend was indicated to win over elected representatives of the people. In his view a situation had arisen in the State wherein it would be desirable in the interest of State that assembly which has been kept in suspended animation be dissolved so that the people.lelectorate could be provided with one more opportunity to seek the mandate of the people at an appropriate time to be decided in due course. The report dated 21st May, 2005 is reproduced in its entirety as follows :

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

As you are aware after the Assembly Elections in February this year, none of the political parties either individually or with the then pre-election combination or with post-election alliance combination

/ RAMESHWAR PRASAD v. U.⁰.1. [SABHARW AL, CJ.] 599

could stake a claim to form a popular Government since they could not claim a support of a simple majority of 122.in a House of 243 and hence the President was pleased to issue a proclamation under Article 356 of the Constitution vide notification No. GSR 162 (E) dated 7th March, 2005 and the Assembly was kept in suspended animation. B The reports received by me in the recent past through the media and also through meeting with various political functionaries, as also intelligence reports, indicate a trend to win over elected representatives of the people. Report has also been received of one of the LJP MLA, who is General Secretary of the party having resigned today and also C 17-18 more perhaps are moving towards the JD-U clearly indicating that various allurements have been offered which is very disturbing and alarming feature. Any move by the break away faction to align with any other party to cobble a majority and stake claim to form a Government would positively affect the Constitutional provisions and safeguards built therein and distort the verdict of the people as shown by the results in the recent Elections. If these attempts are allowed it would be amounting to tampering with Constitutional provisions.

Keeping the above mentioned circumstances, I am of the considered view that if the trend is not arrested immediately, it may not be possible to contain the situation. Hence in my view a situation has arisen in the State wherein it would be desirabl.e in the interest of . the State that the Assembly presently kept in suspended animation is dissolved, so that the people/electorate can be provided with one more opportunity to seek the mandate of the people at an appropriate time to be decided in due course." F The report of the Governor was received by Union of India on 22nd May, 2005 and on the same day, the Union cabinet met at about 11.⁰ P.M. and decided to accept the report of the Governor and sent the fax message to the President of India, who had already left for Moscow, recommending the dissolution of the Legislative Assembly of Bihar. This message was G received by the President of India at his Camp office in Moscow at 0152 hrs. (!ST). President of India accorded his approval and sent the same through the _fax message which was received at 0350 hrs. (!ST) on 23rd May, 2005. After due process the notification was issued formally at 1430 hrs. (!ST) on 23rd May, 2005 dissolving the Bihar Assembly which has been impugned in these H

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

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

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

F That allegations in the Governor's report of horse trading was factually incorrect and fictional. It was incumbent upon the Governor to verify the facts personally from the MLAs. That under the scheme of the Constitution the decision with regard to mergers and disqualifications on the ground of defection or horse trading is vested in the Speaker. The Governor could not have attempted to act on that basis and arrogated to himself such an authority. Relying heavily on the Nine Judge Bench judgment of this Court in S.R.Bommai and Ors. v. Union of India & Ors., [1994] 3 SCC l, it was contended that action of the Governor is ma/a fide in law; irrational, without any cogent material to support the conclusion arrived at and is based on mere ipse dixit and, thus, was not sustainable in law. It was contended that in exercise of judicial review this Court should quash the impugned notification

RAMESHWARPRASADv. U.⁰.1. [SABHARWAL,CJ.] 601 and as a consequence restore the legislative assembly constituted by the A Election Commission notification dated 4th March, 2005.

Mr.Soli Sorabjee led the arguments in support of the challenge to the validity of the impugned notification contending that the dissolution of the Assembly when examined in the light of law laid down in Bommai's case (supra) is clearly unconstitutional and deserves to be set aside and the status quo ante at least as on 7th March, 2005 may be directed.

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

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

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

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

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

B The Constitution of India grants immunity to the Governor as provided in Article 361. Article 361 (I), inter alia, provides that the Governor shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in exercise and performance of those powers and duties. It is submitted by learned Attorney General c and Additional Solicitor General that in view of Article 361 (I), this Court may not issue notice to the Governor. While we accept the submission but, at the same time, it is also necessary to note that the immunity granted to the Governor does not affect the power of the Court to judicially scrutinize the attack made to the proclamation issued under Article 356( I) of the Constitution of India on the ground of ma/a fides or it being ultra vires. It would be for the Government to satisfy the court and adequately meet such ground of challenge. A ma/a fide act is wholly outside the scope of the power and has no existence in the eyes of law. Even, the expression "purporting to be done" in Article 361 does not cover acts which are ma/a fide or ultra vires and, thus, the Government supporting the proclamation under Article 356(1) shall have to meet the challenge. The immunity granted under Article 361 does not mean that in the absence of Governor, the ground of ma/a fides or proclamation being ultra vires would not be examined by the Court. At this stage, we have not examined the . F question whether the exercise of power by the Governor was ma/a fide or ultra vires or not. That is a question still to be argued.

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

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

J RAMESHWARPRASADv. U.⁰.1. (SABHARW AL, CJ.) 603

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

(4) What is the scope of Article 361 granting immunity to the Governor? B After hearing elaborate arguments, by a brief order dated 7th October, 2005, the notification dated 23rd May, 2005 was held to be unconstitutional but having regard to the facts and circumstances of. the case, relief directing status quo ante to restore the Legislative Assembly as it stood on 7th March, 2005, was declined. The Order dated 7th October reads as under : c "The General Elections to the Legislative Assembly of Bihar were held in the month of February 2005. The Election Commission of India, in pursuance of Section 73 of the Representation of the People Act, 1951 in terms of Notification dated 4th March, 2005 notified the names of the elected members. D .. As no party or coalition of the parties was in a position to secure 122 seats so as to have majority in the Assembly, the Governor of Bihar made a report dated 6th March, 2005 to the President of India, whereupon in terms of Notification G.S.R. t62(E) dated 7th March, 2005, issued in exercise of powers under Article 356 of the Constitution E of India, the State was brought under President's Rule and the Assembly was kept in suspended animation. By another Notification G .S.R. l 63(E) of the same date, 7th March, 2005, it was notified that . all powers which have been assumed by the President of India, shall, subject to the superintendence direction and control of the President, be exercisable also by the Governor of the State. The Home Minister F in a speech made on 21st March, 2005 when the Bihar Appropriation (Vote on Account) Bill, 2005 was being discussed in the Rajya Sabha said that the Government was not happy to impose President's Rule in Bihar and would have been happy if Government would have been formed by the elected representatives after the election. That was, G however, not possible and, therefore, President's Rule was imposed. It was also said that the Government would not like to see that President's Rule is continued for a long time but it is for elected representatives to take steps in this respect; the Governor can ask them and request them and he would also request that the elected representatives should talk to each other and create a situation in H

\ 604 SUPREME COURT REPORTS [2006] I S.C.R.

A which it becomes possible for them to form a Government. The ,. Presidential Proclamation dated 7th March, 2005 was approved by the Lok Sabha at its sitting held on 19th March, 2005 and Rajya Sabha at its sitting held on 21st March, 2005.

The Governor of Bihar made two reports to the President of B India, one dated 27th April, 2005 and the other dated 2 lst May,

2005. On consideration of these reports, Notification dated 23rd fyiay, 2005 was issued in exercise of the powers conferred by sub-clause (b) of Clause (2) of Article 174 of the Constitution, read with clause (a) of the Notification G.S.R.162(E) dated 7th March, 2005 issued c under Article 356 of the Constitution and the Legislative Assembly of the State of Bihar was dissolved with immediate effect.

These writ petitions have been filed challenging constitutional validity of the aforesaid Proclamation dated 23rd May, 2005. Mr. Soli J. Sorabjee, Senior Advocate and Mr. P.S. Narasimha, Advocate D and Mr. Viplav Sharma, advocate appearing-in-person have made elaborate submissions in support of the challenge to the impugned action of dismissing the assembly.

On the other hand, Mr. Milon K. Banerjee, Attorney-General for India, Mr. Goolam E. Vahanavati, Solicitor General and Mr. Gopal E Subramaniam, Additional Solicitor General appearing for Union of India and Mr. P.P. Rao, Senior Advocate appearing for the State of Bihar also made elaborate submissions supporting the impugned Proclamation dated 23rd May, 2005.

Many intricate and important questions of law having far reaching F impact have been addressed from both sides. After the conclusion of the hearing of oral arguments, written submissions have also been filed by learned counse I.

Fresh elections in State of Bihar have been notified. As per press note dated 3rd September, 2005 issued by Election Commission of G India, the schedule for general elections to the Legislative Assembly of Bihar has been announced. According to it, the polling is to take place in four phases commencing from 18th October, 2005 and ending with the fourth phase voting on 19th November, 2005. As per the said press note, the date of Notification for first and second phase of H. poll was 23rd September and 28th September, 2005, date of poll

RAMESHWARPRASAD v. U.⁰.1. [SABHAR WAL, CJ.] 605 being 18th October, 2005 and 26th October, 2005 respectively. A Notifications for third and fourth phases of poll are to be issued on 19th and 26th October, 2005 respectively.

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

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

l. The Proclamation dated 23rd May, 2005 dissolving the Legislative Assembly of the State ofBihar is unconstitutional. C

2. Despite unconstitutionality of the impugned Proclamation, but having regard to the facts and circumstances of the case, the present is not a case where in exercise of discretionary jurisdiction the status quo ante deserves to be ordered to restore the Legislative Assembly as it stood on the date of D Proclamation dated 7th March, 2005 whereunder it was kept under suspended animation."

POINT NO. I - Is it permissible to dissolve the Legislative Assembly under Article 174(2) (b) of the Constitution without its first meeting taking place? E Article 174 of the Constitution deals with the power of the Governor to summon the House, prorogue the House and dissolve the Legislative Assembly. This Court never had the occasion to consider the question of legality of dissolution of a Legislative Assembly even before its first meeting contemplated under Article 172 of the Constitution. It has been contended on behalf of the JJetitioners by Mr. Narsimha and Mr. Viplav Sharma, appearing- in-person, that a Legislative Assembly can be dissolved under Article l 74(2)(b) only after its first meeting is held as postulated by Article l 72 of the Constitution. The argument is that there cannot be any dissolution without even members taking oath and the Legislative Assembly coming into existence. What does not exist, cannot be dissolved, is the submission. In this regard, the question to be considered also is whether the date for first meeting of the Legislative Assembly can be fixed without anyone being in a position to .form the Government.

Let us first examine the relevant constitutional and statutory provisions. H

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

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

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

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

The contention urged is that the function of the Governor in summoning G the House and administering the oath or affirmation to the members of the Legislative Assembly are not the matters of privilege, prerogative or discretion of the Governor but are his primary and fundamental constitutional obligations on which the principles of parliamentary democracy, federalism and even > 'separation of power' are dependent. Further contention is that another constitutional obligation of the Governor is to constitute the executive H Government.

RAMESHWARPRASADv. U.O.l.[SABHARWAL,CJ.] 607

According to Mr. Narasimha, the Governor failed to fulfill these A constitutional obligations. Neither the executive Government nor the Legislative Assembly has been constituted by the Governor. On the other hand, the Governor has frustrated the very object of exercise of his constitutional obligation by dissolving the Legislative Assembly under Article 174(2)(b) without the Legislative Assembly being even constituted. When B the Legislative Assembly is not even constituted, where is the question of its dissolution, is the contention urged. The submission is that under the scheme of Indian Constitution, it is impermissible to dissolve a Legislative Assembly before its first meeting and members making oath or affirmation as required by Article 188. According to the petitioners, tinder Indian Constitution, the Legislative Assembly is duly constituted .only upon the House being summoned and from the date appointed for its first meeting. Article 172 which provides for duration of State Legislatures reads as under:

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

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

by.law.

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

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

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

B Reference on behalf of the petitioners has also been made to law existing prior to the enforcement of the Constitution of India contemplating the commencement of the Council of State and Legislative Assembly from the date of its first meeting. It was pointed out that Section 63(d) in the Government of India Act, 1915 which dealt with Indian Legislature provided that every Council of State shall continue for five years and every Legislative Assembly C for three years from the date of its first meeting. Likewise, Section 72(b) provided that every Governor's Legislative Council shall continue for three years from its first meeting. The Government of India Act, 1919, repealing 1915 Act, provided in Section 8(1) that every Governor's Legislative Council shall continue for three years from its first meeting and in Section 21 provided that every Council of State shall continue for five years and every Legislative Assembly for three years from its first meeting. Likewise, the Government of India Act, 1935 repealing 1919 Act, had provision identical to Article 172 of the Constitution.

Section 73 of the R.P. Act 1951, in so far as relevant for our purposes, is as under:

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

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

In the present case, Notification under Section 73 of the RP Act, 1951 H

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

Section 73 of the RP Act, 1951 enjoins upon the Election Commission to issue notification after declaration of results of the elections in all the 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 I 74(2)(b) of the Constitution. In so far as the argument based on Article 172 is concerned, it seems clear that the due constitution of the Legislative Assembly is different than its duration which is five years to be computed from the date appointed for its first meeting and no longer. There is no restriction under Article 174(2)(b) stipulating that the power to dissolve the Legislative Assembly can be exercised only after its first meeting. Clause (b) of proviso to Section 73 of the RP Act, 1951 also does not limit the deemed constitution of the Assembly for only specific purpose of the said Act or Articles 324, 327 and 329 of the Constitution. The said clause provides that the issue of notification under Section 73 shall not be deemed to affect • the duration of the State Legislative Assembly, if any, functioning immediately before the issue of the said notification. In fact, clause (b) further fortifies the conclusion that the duration of the Legislative Assembly is different than the due constitution thereof. In the present case, we are not concerned with the question of duration of the Assembly but with the question whether the

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

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

In K.K. Abu v. Union ofIndia and Ors., AIR(l965) Kerala 229, a learned C Single Judge of the High Court rightly came to the conclusion that neither Article 172 nor Article 174 prescribe that dissolution of a State Legislature can only be after commencement of its term or after the date fixed for its first meeting. Once the Assembly is constituted, it becomes capable of dissolution. This decision has been referred to by one of us (Arijit Pasayat, J.) in Special Reference No. I of 2002 (popularly known as Gujarat Assembly Election D matter) [2002] 8 sec237. No provision of the Constitution stipulates that the dissolution can only be after the first meeting of the State Legislature. The acceptance of the contention of the petitioners can also lead to a breakdown of the Constitution. In a given case, none may come forth to stake claim to form the Government, for want of requisite strength to provide a stable E Government. If petitioners' contention is accepted, in such an eventuality, the Governor will neither be able to appoint Executive Government nor would he be able to exercise power of dissolution under Article I 74(2)(b). The Constitution does not postulate a live Assembly without the Executive Government.

F On behalf of the petitioners, reliance has, however, been placed upon a decision of a Division Bench of Allahabad High Court in the case of Udai Narain Sinha v. State of U.P. and Ors., AIR [1987] All.203]. Disagreeing with the Kerala High Court, it was held that in the absence of the appointment of a date for the first meeting of the Assembly in accordance with Article 172(1 ), G its life did not commence for the purposes of that article, even though it might have been constituted by virtue of notification under Section 73 of the RP Act, 1951 so as to entitle the Governor to dissolve it by exercising power under Article 174(2). It was held by the Division Bench that Section 73 of the RP Act, 1951 only created a fiction for limited purpose for paving the way for the Governor to appoint a date for first meeting of either House or the H Assembly so as to enable them to function after being summoned to meet

RAMESHW AR PRASAD v. U. 0.1. [SABHARWAL, CJ.] 611

,J under Article 174 of the Constitution. We are unable to read any such A limitation. In our view, the Assembly, for all intends and purposes, is deemed to be duly constituted on issue of notification under Section 73 and the duration thereof is distinct from its due constitution. The interpretation which may lead to a situation of constitutional breakdown deserves to be avoided, unless the provisions are so clear as not to call for any other interpretation. B This case does not fall in the later category.

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

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

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

Under Article 356 of the Constitution, the dissolution of an Assembly can be ordered on the satisfaction that a situation has arisen in which the H

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

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

In the present case, it is not in dispute that the satisfaction that a C situation has arisen in which the Government of State cannot be carried on in accordance with the provisions of the Constitution has been arrived at only on the basis of the reports of the Governor. It is not the case of the Union of India that it has relied upon any material other than the reports of the Governor which have been earlier reproduced in extenso.

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

Role of Governor

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

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

t f RAMESHWARPRASADv. U.⁰.1. [SABHARWAL,CJ.] 613

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

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

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

Fortifying the same, Justice V .R. Krishna Iyer has observed that the mode of appointment can never legitimize any form of interference in the working of the Governor, else the concept of "judicial independence" would not be tenable, as even the judges of the High Courts and the Supreme Court are appointed by the President. ( V. R. Krisnha Iyer, A Constitutional Miscellany (Second Edition, Lucknow:Eastern Book Co., 2003) at p.44).

The then Vice-President of India, Shri G.S. Pathak, had remarked in 1970 that "in the sphere which is bound by the advice of the Council of G Ministers, for obvious reasons, the Governor must be independent of the Centre" as there may be cases "where the advice of the Centre may clash with advice of the State Council of Ministers" and that "in such cases the -Governor must ignore the Centre's "advice" and act on the advice of his Council of Ministers." H

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

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

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

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

Querying as to what could be an objective and representative body which will fit into our Constitutional framework to facilitate the appointment of Governors on meritorious basis, the Sarkaria Commission has observed that "There is no gainsaying that a procedure must be devised which can ensure objectivity in selection and adherence to the criteria for selection and insulate the system from political pressures. Also, the new procedure must not only be fair but should be seen to be fair." (Chapter IV "Role of the Governor", Report of the Sarkaria Commission on Centre-State Relations (1988) at para 4.6.30). Recommending that the Vice-President of India and the Speaker of the Lok Sabha should be consulted by the Prime Minister in selecting a Governor, the Sarkaria Commission has noted that "such consultation will greatly enhance the credibility of the selection process." -

/ RAMESHWARPRASADv. U.⁰.1. [SABHARWAL,CJ.] 615 The other related issue of debate was regarding the extent of discretionary powers to be allowed to the Governor. Following the decision to have a nominated Governor, references in the various articles of the Draft Constitution relating to the exercise of specified functions by the Governor 'in his discretion' were deleted. (Chapter IV "Role of the Governor", Report of the Sarkaria Commission on Centre-State Relations (1988) at para 4.2.07). Article 163 of the Constitution (then Draft Article 143) generated considerable discussion, and Dr. Ambedkar is stated to have "maintained that vesting th1 Governor with certain discretionary powers was not contrary to responsible Government." (Constituent Assembly Debates (Volume VIII, Revised Edition) ·at pp. 00-502).

The expression "required" found in Article 163(1) is stated to signify c that the Governor can exercise his discretionary powers only if there is a compelling necessity to do so. It has been reasoned that the expressiOn "by or under the Constitution" means that the necessity to exercise such powers may arise from any express provision of the Constitution or by necessary . implication. The Sarkaria Commission Report further adds that such necessity may arise even from rules and orders made "under" the Constitution.

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

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

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

A charge against a Governor." Instrument of Instructions:

The Constituent Assembly, pursuant to the Report of the Provincial Constitution Committee, had decided to insert an Instrument of Instructions B to the Governors in the form of a Schedule to the Constitution. Such an instrument was found to be necessary, "because of the mode of appointment and the injunction to act upon the advice of Ministers were not contained in the Constitution itself." (The framing of India India's Constitution Select Documents (Volume IV, B. Shiva Rao (ed.), New Delhi: Universal Law Publishing Cp, 2004) at p. 86. The complete test of the suggested Instructions is reprroduced in pp. 88-90). In the Government of India Act, 1935, the Instrument of Instructions appeared as instructions from the Sovereign. • The suggested list of instructions considered by the Constituent Assembly included value based standards that are expected of a Governor in discharging his duties vis-a-vis appointment of the Chief Minister after ascertaining a "stable majority"; appointments of Council of Ministers who ''will best be in a position collectively to command the confidence of the Legislature"; to constitute an Advisory Board comprising of duly elected members of the Legislature, including the Leader of the Opposition, "to aid the Governor in the matter of making appointments under the Constitution" such as that of the E Auditor-in-Chief for the State, Chairman of the State Public Services Commission; and mandating the Governor to do "all that in him lies to maintain standards of good administration, to promote all measures making for moral, social and economic welfare and tending to fit all classes of the population to take their due share in the public life and government of the F State, and to secure amongst all classes and creeds co-operation, goodwill and mutual respect for religious beliefs and sentiments."

The instructions were proposed as a Schedule to the Co:lstitution as the Assembly felt that "it is preferable not to put them into the body of the Constitution, because they are conventions rather than legal rules." However, G the same was not appended to the Constitution and lamenting about it, Shri A.G. Noorani has stated that the Instrument of Instructions could have codified conventions between the President and the Governors if allowed to exist. (A.G. Noorani, Constitutional Questions in India-The President, Parliament and the States (New Delhi: Oxford University Press, 2000) at p.11)

H The P.V. Rajamannar Committee (1969), Inquiry Committee constituted

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

Discretionary Powers of the Governor:

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

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

Dismissal of the Chief Minister-Recommending a test of majority on the floor of the House to ascertain whether an incumbent Chief H

618 SUPREME COURT REPORTS [2006) l S.C.R.

A Minister continues to enjoy the majority, the Commission clearly , dissuades the Governor from dismissing the Ministry based only on ,.. his "subjective satisfaction".

Dissolution of the Assembly--Despite best efforts, if ultimately a viable Ministry fails to emerge, a Governor is faced with two- B alternatives he may either dissolve the Assembly or recommend President's rule under Article 356, leaving it to the Union Government to decide the question of dissolution. The Commission expressed its firm view that the proper course would be "to allow the people of the State to settle matters themselves". The Commission recommended that "the Governor should first consider dissolving the Assembly and c arranging for a fresh election and before taking a decision, he should consult the leaders of the political parties concerned and the Chief Election Commissioner."

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

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

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

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

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

The Sarkaria Commission has noticed that in a number of situations of political instability in States, the Governors recommended President's Rule under Article 356 without exhausting all possible steps under the Constitution G to induct or maintain a stable Government. The Governors concerned neither gave a fair chance to contending parties to form a Ministry, nor allowed a fresh appeal to the electorate after dissolving the Legislative Assembly. Almost all these cases have been criticized on the ground that the Governor", while making their recommendations to the President behaved in a partisan manner. The report further states that there has been no uniformity of approach in H such situations and that these aspects have been dealt with in Chapter VI

I RAMESHWAR PRASAD v. U.⁰.1. [SABHARWAL, CJ.] 619 'Emergency Provisions'. A In Chapter VI, Sarkaria Commission dealt with the emergency provisions noting the concern of framers of the Constitution of need for such provision in a country of our dimensions, diversities, disparities and "multitudinous people, with possibly divided loyalties". They took care to provide that, in a situation of such emergency, the Union shall have overriding powers to B control and direct all aspects of administration and legislation throughout the country. They realised that a failure or breakdown of the constitutional ,\ machinery in a State could not be ruled out as an impossibility and a situation may arise in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution. c The common thread in all the emergency provisions is that the resort to such provision has to be in exceptional circumstances when there be the real and grave situation calling for the drastic action.

Sarkaria Commission as also this Court has noted the persistent criticism in ever-mounting intensity, both in regard to the frequency and the manner of the use of the power under Article 356. The Sarkaria Commission has noticed that gravemen of the criticism is that, more often than not, these provisions have been misused, to promote the political interests of the party in power at the Centre. Some examples have been noted of situations in which the power of Article 356 was invoked improperly if not illegally. It is noted that the constitutional framers did not intend that this power should be exercised for the purpose of securing good Government. It also notices that this power cannot be invoked, merely on the ground that there are serious allegations of corruption against the Ministry.

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

(i) He should be eminent in some walk of Hfe; (ii) He should be a person from outside the State; H

620 SUPREME COURT RHORTS (2006] I S.C.R.

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

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

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

Defections

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

Undoubtedly, defection is a great evil. It was contended for the Government that the unprincipled defections induced by allurements of office, monetary consideration, pressure, etc. were destroying the democratic fabric. F With a view to control this evil, Tenth Schedule was added by the Constitution (Fifty-Second Amendment) Act, 1985. Since the desired goal to check defection by the legislative measure could not be achieved, law was further strengthened by the Constitution (Ninety-first Amendment) Act, 2003. The contention is that the Governor's action was directed to check this evil, so that a Government based on such defections is not formed. G Reliance has been placed on the decision in the case of Kihoto Hollohan v. Zachi/lhu and Ors., [1992] Supp. (2) SCC 651 to bring home the point that defections undermine the cherished values of democracy and Tenth Schedule was added to the Constitution to combat this evil. It is also correct that to further strengthen the law in this direction, as the existing provisions of the H Tenth Schedule were not able to achieve the desired goal of checking defection, I

RAMESHWARPRASADv. U.⁰.1. [SABHARWAL,CJ.] 621 by 91 st Amendment, defection was made more difficult by deleting provision A :y which did not treat mass shifting of loyalty by 1/3 as defection and by making the defection, altogether impermissible and only permitting merger of the parties in the manner provided in the Tenth Schedule as amended by 91 st Amendment.

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

.. 622 SUPREME COURT REPORTS [2006] l S.C.R.

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

B It was contended that the Governor was only trying to prevent members from crossing the floor as the concept of the freedom of its members to vote as they please independently of the political party's declared policies will not only embarrass its public image and popularity but would also undem1ine public confidence in it which, in the ultimate analysis, is its source of sustenance - nay, indeed, its very survival. The contention is based on Para 144 of the judgment in Kihoto 's case which reads thus :

"But a political party functions on the strength of shared beliefs. Its own politisal stability and socidl utility depends on such shared beliefs and concerted action of its Members in furtherance of those commonly held principles. Any freedom of its Members to vote as they please independently of the political party's declared policies will not only embarrass its public image and popularity but also undermine public confidence in it which, in the ultimate analysis, is its source of sustenance - nay, indeed, its very survival. Intra-party debates are .... of course a different thing. But a public image of disparate stands by E Members of the same political party is not looked upon, in political tradition, as a desirable state of things. Griffith and Ryle on "Parliament, Functions, Practice & Procedure" ( 1989 Edn. page 119) say: "Loyalty to party is the norm, being based on shared beliefs. A -' F divided party is looked on with suspicion by the electorate. It is natural for members to accept the opinion of their Leaders and Spokesmen on the wide variety of matters on which those Members have no specialist knowledge. Generally Members will accept majority decisions in the party even when they disagree. It is G understandable therefore that a Member who rejects the party whip even on a single occasion will attract attention and more criticism than sympathy. To iibstain from voting when required by party to vote is to suggest a degree of unreliability. To vote against party is disloyalty. To join with others in abstention or voting with the other side smacks of conspiracy." H

RAMESHWAR PRASAD v. U.⁰.1. [SABHARW AL, CJ.) 623 Clause (b) of sub-para ( 1) of Paragraph 2 of the Tenth Schedule gives effect to this pri1Jciple and sentiment by imposing a disqualification on a Member who votes or abstains from voting contrary to "any directions" issued by the political party. The provision, however, recognises two exceptions : one when the Member obtains from the political party prior permission to vote or abstain from voting and the other when the Member has voted without obtaining such permission but his action has been condoned by the political party. This provision itself accommodates the possibility that there may be occasions when a Member may vote or abstain from voting contrary to the direction of the party to which he belongs. This, in itse If again, may provide a clue to the proper understanding and construction of the expression C "Any Direction" in clause (b) of Paragraph 2( I) whether really all directions or whips from the party entail the statutory consequences or whether having regard to the extra-ordinary nature and sweep of the power and the very serious consequences that flow including the extreme penalty of disqualification the expression should be given a D meaning confining its operation to the contexts indicated by the objects ( .} and purposes of the Tenth Schedule. We shall deal with this aspect separately."

Our attention was also drawn to the objects and reasons for the 9lst Constitutional Amendment. It states that demands were made from time to E time in certain quarters for strengthening and amending the Anti-defection law as contained in the Tenth Schedule to the Constitution of India, on the ground that these provisions had not been able to achieve the desired goals of checking defections. The Tenth Schedule was also criticized on the ground that it allowed bulk defections while declaring individual defections as illegal. F The provision for exemption from disqualification in case of splits as provided in paragraph 3 of the Tenth Schedule to the Constitution of India had, in particular, come under severe criticism on account of its destabilising effect on the Government.

Reliance has also been placed to the exposition of Lord Diplock in a G d.ecision of House of Lords in the case of Council of Civil Service Unions v. Minister for the Civil Service, [1984] 3 All.ER 935 on the aspect of irrationality to the effect that "it applies to a decision may be so outrageous , or in defiance of logic or of accepted moral standards that no sensible person who had applied his 'mind to the question to be decided, could have arrived at it". It is contended that the Governor has many sources info1mation H

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

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

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

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

The question in the present case is not about MLAs voting in violation of provisions of Tenth Schedule as amended by the Constitution (91 st Amendment), as we would presently show. F Certainly, there can be no quarrel with the principles laid in Kihoto 's case about evil effects of defections but the same have no relevance for determination of point in issue. The stage of preventing members to vote against declared policies of the political party to which they belonged had not reached. If MLAs vote in a manner so as to run the risk of getting disqualified, it is for them to face the legal consequences. That stage had not reached. In fact, the reports of the Governor intended to forestall any voting and staking of claim to form the Government.

Undisputedly, a Governor is charged with the duty to preserve, protect and defend the Constitution and the laws, has a concomitant duty and

RAMESHWARPRASAD v. U.⁰.1. [SABHARWAL, CJ.] 625 obligation to preserve democracy and not to permit the 'canker' of political defections to tear into the vitals, of the Indian democracy. But on facts of the present case, we are unable to accept that the Governor by reports dated 27th April and 21st May, 2005 sought to achieve the aforesaid objective. There was no material, let alone relevant, with the Governor to assume that there were no legitimate realignment of political parties and there was blatant distortion of democracy by induced defections through unfair, illegal, unethical and unconstitutional means.

The report dated 27th April, 2005 refers to ( i) serious attempt to cobble a majority; (2) winning over MLAs by various means; (3) targeting parties for a split; (4) high pressure moves; (5) offering various allurements like castes, posts, money etc.; and (6) Horse-trading. Almost similar report was sent by the Governors of Karnataka and Nagaland leading to the dissolution of the Assembly of Karnataka and Nagaland, invalidated in Bommai 's case. Further, the contention that the Central Government did not act upon the report dated 27th April, 2005 is of no relevance and cannot be considered in '; ) isolation since the question is about the manner in which the Governor moved, very swiftly and with undue haste, finding that one political party may be close to getting majority and the situation had reached where claim may be staked to form the Government which led to the report dated 2 Ist May, 2005. It is in this context that the Governor says that instead of installing a Government based on a majority achieved by a distortion of the system, it would be preferable that the people/electorate could be provided with cine more opportunity to seek the mandate of the people. This approach makes it evide.nt that the object was to prevent a particular political party from staking Y·· a claim and not the professed object of anxiety not to permit the dis<ortion of the political system, as sought to be urged. Such a course is nothing but wholly illegal and irregular and has to be described as mala fide. The F recommendation for dissolution of the Assembly to prevent the staking of claim to form the Government purportedly on the ground that the majority was achieved by distortion of system by allurement, corruption and bribery was based on such general assumptions without any material which are quite easy to be made if any political party not gaining absolute majority is to be G kept out of governance. No assum~tion without any basis whatever could be drawn that the reason for a group to support the claim to form the Government .. by Nitish Kumar, was only the aforesaid distortions. That stage had not reached. It was not allowed to be reached. If such majority had been presented and the Governor forms a legitimate opinion that the party staking claim would not be able to provide stable Government to the State, tha! may be a H

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

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

B Interpretation of a Constitution and Importance of Political Parties

For principles relevant for interpretation of a Constitution, our attention was drawn to what Justice Aharon Barak, President of Supreme Court of Israel says in Harvard Law Review, Vol.116 (2002-2003) dealing particularly C with the aspect of purposive interpretation of Constitution. Learned Judge has noticed as under :

"The task of expounding a constitution is crucially different from that of construing a statute. A statute defines present rights and obligations. It is easily enacted and as easily repealed. A constitution, by contrast, is drafted with an eye to the future. Its function is to provide a D ' continuing framework for the legitimate exercise of governmental power and, when joined by a Bill or Charter of rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the constitution and must, in interpreting its provisions, bear these considerations in mind."

It is further said that the political question doctrine, in particular, remits entire areas of public life to Congress and the President, on the grounds that the Constitution assigns responsibility for these areas to the other branches, or that their resolution will involve discretionary, polycentric decisions that lack discrete criteria for adjudication and thus are better handled by the more democratic branches.

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

In support of the proposition that in Parliament Democracy there is importance of political parties and that interpretation of the constitutional provisions should advance the said basic structure based on political parties, H our attention was drawn to write up Designing Federalism-A Theory of Self-

RAMESHWARPRASADv. U.⁰.1. [SABHARWAL,CJ.] 627 · Sustainable Federal Institution and what is said about political parties in a A Federal State which is as under:

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

Schattschneider 1942 : I B Here is a factor in the organisation of federal Government which is of primary importance but which cannot be ensured or provided for in \ a constitution-a good party system

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

Riker 1964 : 136

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

't-- Hofstadter 1969: 70-I

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

We are afraid that on fae-:s of present case, the aforesaid concept and relevance of political parties is not quite relevant for our purpose to decide why and how the members of political parties had allegedly decided to adopt ( the course which they did, to allegedly support the claim for formation of the Government.

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

A Morality !~ We may also deal with the aspect of morality sought to be urged. The question of morality is of course very serious and important matter. It has been engaging the attention of many constitutional experts, legal luminaries, jurists and political leaders. The concept of morality has also been changing B from time to time also having regard to the ground realities and the compulsion of the situation including the aspect and relevance of coalition governance as opposed to a single party Government. Even in the economic field, the concept of morality has been a matter of policy and priorities of the Government. The Government may give incentive, which ideally may be considered unethical c and immoral, but in so far as Government is concerned, it may become necessary to give incentive to unearth black money. R.K. Garg & Ors. v. Union ofIndia and Ors.. [1981] 4 SCC 675, paras 18 and 31. It may be difficult to leave such aspects to be determined by high constitutional functionaries, on case to case basis, depending upon the facts of the case, and personal mould of the constitutional functionaries. With all these imponderables, the D constitution does not contemplate the dissolution of Assemblies based on the assumption of such immoralities for formation of the satisfaction that - ' ' situation has arisen in which the Government cannot be of the Constitution of India.

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

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

(c) make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the H

j I RAMESHWARPRASADv. U.⁰.l. [SABHARWAL,CJ.] 629

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

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

Power under Article 356(1) is an emergency power but it is not an \ absolute power. Emergency means a situation which is not normal, a situation which calls for urgent remedial action. Article 356 confers a power to be exercised by the President in exceptional circumstances to discharge the c obligation cast upon him by Article 355. It is a measure to protect and preserve the Constitution. The Governor takes the oath, prescribed by Article . 159 to preserve, protect and defend the Constitution and the laws to the best of his ability. Power under Article 356 is conditional, condition being formation of satisfaction of the President as contemplated by Article 356(1). The '( D satisfaction of the President is the satisfaction of Council of Ministers. As / provided in Article 74(1), the President acts on the aid and advice of Council of Ministers. The plain reading of Article 74(2) stating that the question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any Court, may seem to convey that the Court is debarred from inquiring into such advice but Bommai has held that Article E 74(2) is not a bar against scrutiny of the material on the basis of which the President has issued the proclamation under Article 356. Justice Sawant, in Para 86 states that : }-

"What is further, although Article 74(2) bars judicial review so far as the advice given by the Ministers is concerned, it does not bar scrutiny F of the material on the basis of which the advice is given. The Courts are not interested in either the advice given by the Ministers to the President or the reasons for such advice. The Courts are, however, justified in probing as to whether there was any material on the basis of which the advice was given, and whether it was relevant for such · G advice and the President could have acted on it. Hence when the Courts undertake an enquiry into the existence of such material, the ( prohibition contained in Article 74(2) does not negate their right to know about the factual existence of any such ·material."

It was further said that the Parliament would be entitled to go into the H

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

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

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

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

"Clause (2) of Art. 74, understood in its proper perspective, is thus confined to a limited aspect. It protects and preserves the secrecy of the deliberations between the President and his Council of Ministers. ' In fact, Cl. (2) is a reproduction of sub-sec. (4) of S. 10 of the '· Government of India Act, 1935. (The Government of India Act did not contain a provision corresponding to Art. 74(1) as it stood before or after the Amendments aforementioned). The scope of CI. (2) should not be extended beyond its legitimate fields. In any event, it cannot be read or understood as conferring an immunity upon the council of ministers or the Minister/Ministry concerned to explain, defend and justify the orders and acts of the President done in exercise of his functions. The limited provision contained in Art. 74(2) cannot override the basic provisions in the Constitution relating to judicial review. If and when any action taken by the President in exercise of his functions is questioned m a Court of Law, it is for the Council of Ministers to justify the same, since the action or order of the President is presumed Jo have been taken in accordance with Art. 74(1). As to which Minister or which official of which Ministry comes forward to defend the order/ action is for them to decide and for the Court to be satisfied about it. Where, of course, the act/order questioned is one pertaining to the executive power of the Government of India, the J position is much simpler. It does not represent the act/order of the President done/taken in exercise of his functions and hence there is no occasion for any aid or advice by the Ministers to him. It is the H