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

RAMESHWARPRASADv. U.0.1. [SABHARWAL,CJ.] 631 act/order of Government of India, though expressed in the name of the A President. It is for the concerned Minister or Ministry, to whom the function is allocate4 under the Rules of Business to defend and justify such action/ order.

In our respectful opinion, the above obligation cannot be evaded by seeking refuge under Art. 74(2). The argument that the advice tendered to the President comprises material as well and, therefore, calling upon the Union of India to disclose the material would amount to compelling the disclosure of the advice is, if we can say so respectfully, to indulge in sophistry. The material placed before the President by the Minister/Council of Ministers does not thereby become part of advice. Advice is what is based upon the said material. Material is not advice. The material may be placed before the President to acquaint him - and if need be to satisfy him - that the advice being tendered to him is the proper one. But it cannot mean that such material, by dint of being placed before the President in support of the advice, becomes advice· itself. One can understand if the advice is tendered in writing; in such a case that writing is the advice and is covered by the protection provided by Art. 74(2). But it is difficult to appreciate how does the supporting material, becomes part of advice. The respondents cannot .say that whatever the President sees - or whatever is placed before the President becomes prohibited material and cannot be seen or summoned by the Court. Art. 74(2) must be interpreted and understood in the context of entire constitutional system. Undue emphasis and expansion of its parameters would engulf valuable constitutional guarantees. For these reasons, we find if difficult to agree with the reasoning in State of Rajasthan on this score, insofar as it runs contrary to our holding." F The scope of judicial review has been expanded by Bommai and dissent has been expressed from the view taken in State of Rajasthan 's case.

The above approach shows objectivity even in subjectivity. The constitutionalism or constitutional system of Government abhors absolutism- G it is premised on the Rule of Law in which subjective satisfaction is substituted ( by objectivity provided by the provisions of the Constitution itself. This line is clear also from Maru Ram v. Union of India and Ors., [1981] I SCC 107. It would also be clear on in depth examination of Bommai that declared the dissolution of three Assemblies illegal but before we further revert to that H

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A decision, a brief historical background including the apprehension of its •r. abuse expressed by our founding fathers may be noted.

Articles 355 and 356 of the Constitution set the tenor for the precedence of the Union over the States. It has been explained that the rationale for introducing Article 355 was to distinctly demarcate the functioning of the B State and Union governments and to prevent any form of unprincipled invasions by the Union into the affairs of the State. It was felt that through the unambiguous language of Articles 355 and 356, the Union shall be constitutionally obliged to interfere only under certain limited circumstances as laid down in the provisions. c Referring to what is now Article 355, Dr. Ambedkar had reasoned that "in view of the fact that we are endowing the Provinces with plenary powers and making them sovereign within their own fields it is necessary to provide that if any invasion of the provincial field is done, it is in virtue of this obligation." (T.K. Thope, Dr. Ambedkar and Article 356 of the Constitution D [1993] 4 SCC (Jour) I]. Pursuant to this reasoning, Dr. Ambedkar further explained that before resorting to Article 356 "the first thing the President will do would be to issue warning to a province that has erred, that things were not happening in the way in which they were intended to happen in the Constitution. If the warning fails the second thing for him to do will be to E order an election allowing the people of the province to settle matters by themselves. It is only when those two remedies fail that he would resort to this Article." Dr. Ambedkar admitted that these articles were "liable to be abused" and that he cannot "altogether deny that there is a possibility of these articles being employed for political purposes." But he reasoned that such an "objection applies to every part of the Constitution which gives power to the F Centre to override the Provinces" and added that the "proper thing we ought to expect is that such articles will never be called into operation and they would remain a dead letter." (Constituent Assembly Debates (Volume IX, Revised Edition) at pp.175-177).

Scope of Judicial Review under Article 356 State of Rajasthan v. Union of G India:

In State of Rajasthan 's case, there was a broad consensus among five ) of the seven Judges that the Court can interfere if it is satisfied that the power has been exercised ma/a fide or on "wholly extraneous or irrelevant grounds". H Some learned Judges have stated the rule in narrow terms and some others

RAMESHWARPRASADv. U.0.1. [SABHARWAL,CJ.] 633

,.,. .... ·"-; · in a little less narrow terms but not a single learned Judge held that the A proclamation is immune from judicial scrutiny. It must be remembered that at that time clause (5) was there barring judicial review of the proclamation and yet they said that Court can interfere on the ground of ma/a fides. Surely, the deletion of clause (5) has not restricted the scope of judicial review but has widened it. B Justice Reddy in Bommai 's case has noticed, in so far as it was relew.nt, the ratio underlying each of the six opinions delivered by Seven Judge Bench in the case of State of Rajasthan (supra) as under :

"Beg, C. J. The opinion of Beg, C. J. contains several strands of thought. They may be stated briefly thus: c (i) The language of Article 356 and the practice since 1950 shows that the Central Government can enforce its will against the State Governments with respect to the question how the State Governments should function and who should hold reins of power. D ( J (ii) By virtue of Article 365(5) and Article 74(2), it is impossible for the Court to question the satisfaction of the President. It has to decide the case on the basis of only those facts as may have been admitted by or placed by the President before the Court.

(iii) The language of Article 356(1) is very wide. It is desirable that conventions are developed 'Channelising the exercise of this power. The Court can interfere only when the power is used in a grossly perverse and pnreasonable manner so as to constitute patent misuse )- . of the provisions or to an abuse of power. The same idea is expressed at another place saying that if "a constitutionally or legally prohibited or extraneous or collateral purpose is sought to be achieved" by the proclamation, it would be liable to be struck down. The question whether the majority party in the Legislative Assembly of a State has become totally estranged from the electorate is not a matter for the Court to determine. G (iv) The assessment of the Central Government that a fresh chance should be given to the electorate in certain States as well as the l question when to dissolve the Legislative Assemblies are not matters alien to Article 356. It cannot be said that the reasons assigned by the Central Government for the steps taken by them are not relevant ~ to the purposes underlying Article 356. H

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A We may say at once that we are in respectful disagreement with propositions (i), (ii) and (iv) altogether. So far as proposition (iii) is concerned, it is not far off the mark and in substance accords with our view, as we shall presently show.

Y. V. Chandrachud, J. On the scope of judicial review, the learned B Judge held that where the reasons disclosed by the Union of India are wholly extraneous, the Court can interfere on the ground of ma/a fides. Judicial scrutiny, said the learned Judge, is available "for the limited purpose of seeing whether the reasons bear any rational nexus with the action proposed". The Court cannot sit in judgment over the satisfaction of the President for determining whether any other view c of the situation is reasonably possible, opined the learned Judge. Turning to the facts of the case before him, the learned Judge observed that the grounds assigned by the Central Government in its counter- affidavit cannot be said to be irrelevant to Article 356. The Court cannot go deeper mto the matter nor shall the Court enquire whether D there were any other reasons besides those disclosed in the counter- affidavit. )

' P. N. Bhagwati and A. C. Gupta, JJ. The learned Judges enunciated the following propositions in their opinion: The action under Article 356 has to be taken on the subjective satisfaction of the President. E The satisfaction is not objective. There are no judicially discoverable and manageable standards by which the Court can' examine the correctness of the satisfaction of the President. The satisfaction to be arrived at is largely political in nature, based on an assessment of various and varied facts and factors besides several imponderables and fast changing situations. The Court is not a fit body to enquire F into or determine the correctness of the said satisfaction or assessment, as it may be called. However, if the power is exercised ma/a fide or is based upon wholly extraneous or irrelevant grounds, the Court would have jurisdiction to examine it. Even clause (5) is not a bar when the contention is that there was no satisfaction at all. G The scope of judicial review of the action under Article 356, - the learned Judges held - is confined to a "narrow minimal area: May be that in most cases, it would be difficult, if not impo~5ible, to challenge the exercise of power under Article 356(1) on the aforesaid limited ground, because the facts and circumstances on which the H satisfaction is based, would not be known. However, where it is

, RAMESHWAR PRASAD v. U.0.1. [SABHAR WAL, CJ.] 635 possible, the existence of satisfaction can always be challenged on A t:.-' the ground that it is mala fide or based on wholly extraneous and irrelevant grounds."

We may say with great respect that we find it difficult to agree with the above formulations in toto. We agree only with the statements regarding the permissible grounds of interference by Court and the B effect of clause (5), as it then obtained. We also agree broad1y with the first proposition, though not in the absolute terms indicated therein. ~ ~ Goswami and Untwalia, JJ. The separate opinions of Goswami and Untwalia, JJ. emphasise one single fact, namely, that inasmuch as the facts stated in the counter-affidavit filed by the Home Minister cannot c be said to be "malafide, extraneous or irrelevant", the action impugned cannot be assailed in the Court.

Fazal Ali, J. The learned Judge held that:

(i) the action under Article 356 is immune from judicial scrutiny D ~ unless the action is "guided by extraneous consideration" or "personal I .> considerations".

(ii) the inference drawn by the Central Government following the 1977 elections to the Lok Sabha cannot be said to be unreasonable. It cannot be said that the inference drawn had no nexus with Article E 356."

Bommai's case

The Nine Judge Bench considered the validity of dissolution of Legislative Assembly of States of Karnataka, Meghalaya, Nagaland, Madhya F Pradesh, Himachal Pradesh and Rajasthan. Out of six States, the majority held as unconstitutional the dissolution of Assemblies of Karnataka, Nagaland and Meghalaya as well. Six opinions have been expressed. There is unanimity on some issues, likewise there is diversity amongst several opinions on various issues. G Karnataka Facts

~ In the case of Karnataka, the facts were that the Janta Party being the majority party in the State Legislature had formed the Government under the leadership ofShri S.R. Bommai on August 30, 1988 following the resignation on August 1, 1988 of the earlier Chief Minister Shri Hegde who headed the H

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A ministry from March 1985 till his resignation. On 17th April, 1989 one legislator presented a letter to the Governor withdrawing his support to the Ministry. '.t On the next day he presented to the Governor 19 letters allegedly written by 17 Janta Dal legislators, one independent but associate legislator and one legislator belonging to the BJP which was supporting the ministry, withdrawing their support to the ministry. On receipt of these letters, the Governor is said B to have called the Secretary of the Legislature Department and got the authenticity of the signatures on the said letters verified. On April 19, 1989, the Governor sent a report to the President stating therein that there were dissensions in the Janta Party which had led to the resignation of Shri Hegde and even after the formation of the new party viz. Janta Dal, there were c dissensions and defections. In support, the Governor referred to the 19 letters received by him. He further stated that in view of the withdrawal of the support by the said legislators, the Chief Minister Shri Bommai did not command a majority in the Assembly and hence it was inappropriate under the Constitution, to have the State administered by an Executive consisting of Council of Ministers which did not command the majority in the House. D He also added that no other political party was in a position to form the Government. He, therefore, recommended to the President that he should ' exercise power under Article 356( I). The Governor did not ascertain the view of Shri Bommai either after the receipt of the 19 letters or before makinK his report to the President. On the next day i.e. April 20, 1989, 7 out of the 19 legislators who had allegedly sent the letters to the Governor complained that their signatures were obtained on the earlier letters by misrepresentation and affinned their support to the Ministry. The State Cabinet met on the same day and decided to convene the Session of the Assembly within a week i.e. on April 27, 1989. The Chief Minister and his Law Minister met the Governor on the same day and informed him about the decision to summon the Assembly Session. The Chief Minister offered to prove his majority on the floor of the House, even by pre-poning the Assembly Session, if needed. To the same effect, the Governor however sent yet another report to the President on the same day i.e. April 20, 1989, in particular, referring to the letters of seven Members pledging their support to the Ministry and withdrawing their earlier letters. He however opined in the report that the letters from the 7 legislators were obtained by the Chief Minister by pressurising them and added that horse-trading was going on and atmosphere was getting vitiated. In the end, he reiterated his opinion that the Chief > Minister had lost the confidence of the majority in the House and repeated his earlier request for action under Article 356(1) of the Constitution. On that very day, the President issued the Proclamation in dissolving the House. The »

Rt\MESHWARPRASADv. U.0.1. [SABHARWAL,CJ.] 637 Proclamation was thereafter approved by the Parliament as required by Article A 356(3).

A writ petition filed in the High Court challenging the validity of dissolution was dismissed by a three Judge Bench inter alia holding that the facts stated in the Governors report cannot be held to be irrelevant and that the Governor's satisfaction that no other party was in a position to form the B Government had to be accepted since his personal bona fides were not questioned and his satisfaction was based upon reasonable assessment of all the relevant facts. The High Court relied upon the test laid down in the State of Rajasthan case and held that on the basis of materials disclosed, the satisfaction arrived at by the President could not be faulted. C Nagaland Facts

In the case of Nagaland, the Presidential Proclamation dated August 7, 1988 was issued under Article 356(1) imposing President's rule. At the relevant time in the Nagaland Assembly there were 60 legislators, 34 belonging to D Congress (I), 18 to Naga National Democratic Party and I to Naga Peoples' Party and seven were independent legislators. On July 28, 1988, 13 out of the 34 MLAs of the ruling Congress (I) party informed the Speaker of the Assembly that they have formed a separate party and requested him for allotment of separate seats for them in the House. The Session was to commence on August 28, 1988. By decision dated July 30, 1988 the Speaker E held that there was a split in the party within the meaning of the Tenth Schedule of the Constitution. On July 31, 1988, Shri Vamuzo, one of the 13 defecting MLAs who had formed a separate party, informed the Governor that he commanded the support of 35 out of the then 59 Members in the Assembly and was in a position to form the Government.On August 3, 1988, F the Chief Secretary of the State wrote to Shri Vamuzo that according to his information, Shri Vamuzo had wrongfully confined the MLAs who had formed the new party. The allegations were denied by Shri Vamuzo and he asked the Chief Secretary to verify the truth from the Members themselves. On verification, the Members told the Chief Secretary that none of them was confined as alleged. On August 6, 1988 the Governor sent a report to the G President of India about the formation of a new party by the 13 MLAs. He also stated that the said MLAs were allured by money. He further stated that the said MLAs were kept in forcible confinement by Mr. Vamuzo and one other person, and that the story of split in the ruling party was not true. He . added that the Speaker was hasty in according recognition to the new group H

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A of the 13 members and commented that hor5e-trading was going on in the 1 State. He made a special reference to the insurgency in Nagaland and also 1 stated that some of the Members of the Assembly were having contacts with the insurgents. He expressed the apprehension that if the affairs were allowed to continue as they were, it would affect the stability of the State. In the meantime the Chief Minister submitted his resignation to the Governor and B recommended the imposition of the President's rule. The President thereafter issued the impugned Proclamation and dismissed the Government and dissolved the Assembly. Shri Vamuzo, the leader of the new group challenged the validity of the Proclamation in the Gauhati High Court. The Petition was heard by a Division B.ench. The Bench differed on the effective operation of C Article 74(2) and hence the matter was referred to the third Judge. But before the third learned Judge could hear the matter, the Union of India moved this Court for grant of Special Leave which was granted and the proceedings in the High Court were stayed.

Dealing with the implications of Article 74(2) of the Constitution Justice D Sawant speaking for himself and Justice Kuldip Singh came to the conclusion that althi.:>ugh the advice given by the Council of Ministers is free from the gaze of the Court, the material on the basis of which the advice is given cannot be kept away from it and is open to judicial scrutiny. On the facts, Justice Sawant expressed the view that the Governor should have allowed E Shri Vamuzo to test his strength on the floor of the House notwithstanding the fact that the Governor in his report has stated that during the preceding 25 years, no less than 11 Governments had been formed and according to his information, the Congress (I) MLAs were allured by the monetary benefits and that amounted to incredible lack of political morality and complete disregard of the wishes of the electorate. F Meghalaya

Insofar as the Proclamation in respect of the Meghalaya is concerned, that was also held to be invalid. The ground on which dissolution was invalidated was the constitutional functionary had failed to realize the binding G legal consequences of the orders of this Court and the constitutional obligation to give effect to the said order.

Facts of Madhya Pradesh, Rajasthan and Himachal Pradesh > Insofar as the cases of States of Madhya Pradesh, Rajasthan and H Himachal Pradesh are concerned the dismissal of the Governments was a

RAMESHWARPRASADv. U.0.1.[SABHARWAL,CJ.] 639 consequence of violent reactions in India and abroad as well as in the A neighbouring countries where some temples were destroyed, as a result of demolition of Bahri Masjid structure on 6th December, 1992. The Union of India is said to have tried to c;ope up the situation by taking several steps including banning of some organizations which had along with BJP given a call for Kar sevaks to march towards Ayodhya on December 6, 1992. The Proclamation in respect of these States was issued on January 15, 1993. The B Proclamations dissolving the assemblies were issued on arriving at satisfaction as contemplated by Article 356(1) on the basis of Governor's report. It was held that the Governor's reports are based on relevant materials and are made bona fide and after due verification.

The Conclusion Nos. I, II, IV, VI, VII, IX and X in the opinion of c Justice Sawant are as under:

"I. The validity of the Proclamation issued by the President under Article 356(1) is judicially reviewable to the extent of examining ,. whether it was issued on the basis of any material at all or whether D ) the material was relevant or whether the Proclamation was issued in the ma/a fide exercise of the power. When aprimafacie case is made out in the challenge to the Proclamation, the burden is on the Union Government to prove that the relevant material did in fact exist. Such material may be either the report of the Governor or other than the report. E II. Article 74(2) is not a bar against the scrutiny of the material on the basis of which the President had arrived at his satisfaction. ~- IV. Since the provisions contained in cl. (3) of Article 356 are intended to be a, check on the powers of the President under clause ( 1) thereof, F it will not be permissible for the President to exercise powers under sub-clauses (a); (b) and (c) of the latter clause, to take irreversible actions till at least both the Houses of Parliament have approved of the Proclamation. It is for this reason that the President will not be justified in dissolving the Legislative Assembly by using the powers of the Governor under Article 174(2}(b) read with Article 356(1)(a) G till at least both the Houses of Parliament approve of the Proclamation. , 1 VI. In appropriate cases, the Court will have power by an interim injunction, to restrain the holding of fresh elections to the Legislative Assembly pending the final disposal of the challenge to the validity H ·::

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A of the Proclamation to avoid the fait accompli and the remedy of judicial review being rendered fruitless. However, the Court will not interdict the issuance of the Proclamation or the exercise of any other power under the Proclamation.

VII. While restoring the status quo ante, it will be open for the Court B io mould the relief suitably and declare as valid actions taken by the President till that date. It will also be open for the Parliament and the Legislature of the State to validate the said actions of the President.

IX. The Proclamations dated April 21, 1989 and October 11, 1991 and the action taken by the President in removing the respective c Ministries and the Legislative Assemblies of the State of Kamataka and the State of Meghalaya challenged in Civil Appeal No. 3645 of 1989 and Transfer Case Nos. 5 and 7 of 1992 respectively are unconstitutional. The Proclamation dated August 7, 1988 in respect of State of Nagaland is also held unconstitutional. However, in view of the fact that fresh elections have since taken place and the new D Legislative Assemblies and Ministries have been constituted in all the three States, no relief is granted consequent upon the above declarations. However, it is declared that all actions which might have been taken during the period the Proclamation operated, are valid. The Civil Appeal No. 3645 of 1989 and Transfer case Nos. 5 E and 7 of 1992 are allowed accordingly with no order as to costs. Civil Appeal Nos. 193-194 of 1989 are disposed of by allowing the writ petitions filed in the Gauhati High Court accordingly but without costs.

X. The Proclamations dated 15th December, 1992 and the actions F taken by the President removing the Ministries and· dissolving the Legislative Assemblies in the States of Madhya Pradesh, Rajasthan and Himachal Pradesh pursuant to the said proclamations are not unconstitutional. Civil Appeals Nos. 1692, 1692A-1692C, 4627-30 of 1993 are accordingly allowed and Transfer case Nos. 8 and 9 of 1993 are dismissed with no order as to costs." G Justice Jeevan Reddy has expressed opinion for himself and Justice Agrawal. The conclusions Nos. 2, 3, 7, 8 and 12 in paragraph 434 are relevant for our purpose and the same read as under:

"(2) The power conferred by Art. 356 upon the President is a H

j RAMESHWAR PRASADv. U.0.1. [SABHARWAL, CJ.] 641

conditioned power. It is not an absolute power. The existence of A material - which may comprise of or include the report(s) of the Governor - is a pre-condition. The satisfaction must be formed on relevant material. The recommendations of the Sarkaria Commission with respect to the exercise of power under Art. 356 do merit serious consideration at the hands of all concerned B (3) Though the power of dissolving of the Legislative Assembly can be said to be implicit in clause (I) of Art. 356, it must be held, having .\ regard to the overall constitutional scheme that the President shall exercise it only after the proclamation is approved by both Houses of Parliament under clause (3) and not before. Until such approval, the C President can only suspend the Legislative Assembly by suspending the provisions of Constitution relating to the Legislative Assembly under sub-clause (c) of clause (1). The dissolution of Legislative Assembly is not a matter of course. It should be resorted to only where it is found necessary for achieving the purposes of the proclamation.

(7) The proclamation under Article 356(1) is not immune from judicial review. The Supreme Court or the High Court can strike down the proclamation if it is found to be mala fide or based on wholly irrelevant or extraneous grounds. The deletion of clause (5) (which was introduced by 38th (Amendment) Act) by the 44th (Amendment) Act, removes the cloud on the reviewability of the action. When called upon, the Union of India has to produce the material on the basis of which action was taken. It cannot refuse to do so. if it seeks to defend the action. The court will not go into the correctness of the material or its adequacy. Its enquiry is limited to see whether the material was relevant to the action. Even if part of the material is irrelevant, the court cannot interfere so long as, there is some material which is relevant to the action taken.

(8) If the court strikes down the proclamation, it has the power to restore the dismissed Government to office and revive and reactivate the Legislative Assembly wherever it may have been dissolved or kept under suspension. In such a case, the court has the power to declare that acts done, orders passed and laws made during the period the proclamation was in force shall remain unaffected and be treated as valid. Such declaration, however, shall not preclude the Government/ H Legislative Assembly or other competent authority to review, repeal

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

A or modify such act orders and laws.

(12) The proclamations dated January 15, 1993 in respect of Madhya Pradesh, Rajasthan and Himachal Pradesh concerned in Civil Appeals Nos. 1692, 1692A-1692C of 1993, 4627-4630of1990, Transferred Case (C) No. 9 of 1993 and Transferred Case No. 8 of 1993 respectively are B not unconstitutional. The Civil Appeals are allowed and the judgment of the High Court of Madhya Pradesh in M.P.(C) No. 237 of I 993 is set aside. The Transferred Cases are dismissed."

Justice Jeevan Reddy has also expressed agreement with the conclusions C I, II and IV to VII in the Judgment of Justice Sawant delivered on behalf of himself and Justice Kuldip Singh.

Justice Pandian has expressed agreement with the opinion of Justice P.B. Sawant on his conclusions I, II and IV to VIII but so far as the reasoning and other conclusions are concerned, the learned Judge has agreed with the D Judgment of Justice Reddy.

For determining the scope of judicial review in terms of law enunciated by Bommai, it is vital to keep in view that majority opinion in that case declared as illegal the dissolution of assemblies of Karnataka and Nagaland. At an appropriate place later, we will note the reason that led to this declaration. E Some observations made in the minority opinion of Justice K. Ramaswamy are also very significant. Learned Judge has said that the motivating factor for action under Article 356(1) should never be for political gain to the party in power at the Centre, rather it must be only when it is satisfied that the constitutional machinery has failed. It has been further observed that the frequent elections would belie the people's belief and faith in parliamentary form of Government, apart from enormous election expenditure to the State and the candidates. The Court, if upon the material placed before it, finds that satisfaction reached by the President is unconstitutional, highly irrational or without any nexus, then the Court would consider the contents of the Proclamation or reasons disclosed therein and in extreme cases the material produced pursuant to discovery order nisi to find the action is wholly irrelevant or bears no nexus between purpose of the action and the satisfaction reached by the President or does not bear any rationale to the proximate purpose of the Proclamation. In that event, the H Court may declare that the satisfaction reached by the President was either

RAMESH WAR PRASAD v. U.0.1. [SABHARWAL, CJ.] 643 t on wholly irre\e.vant grounds or colourable exercise of power and consequently, A Proclamation issued under Article 356 would be declared unconstitutional.

It is appa~ent that Justice Ahmadi and Justice Ramaswamy though in minority, yet learned Judges have frowned upon the highly irrational action.

Now, let us see the opinion of Justice Sawant, who spoke for himself and Justice Kuldip Singh and with whom Justice Pandian, Justice Jeevan Reddy and Justice Agrawal agreed, to reach the conclusion as to the invalidity of Proclamation dissolving assemblies of Karnataka and Nagaland. :. . .

Learned ·Judge has opined that the President's satisfaction has to be based on objective material. That material may be available in the report sent to the President by the Governor or otherwise or both from the report and other sources. Further opines Justice Sawant that the objective material, so available must indicate that the Government of State cannot be carried on in accordance with the provisions of the Constitution. The existence of the objective material showing that the Government of the State cannot be carried on in accordance with the provisions of the Constitution is a condition precedent before the issue of the Proclamation.

Reference has been made to a decision of the Supreme Court of Pakistan on the same subject, although the language of the provisions of the relevant E Articles of Pakistan Constitution is not couched in the same terms. In Muhammad Sharif v. Federation of Pakistan, PLD 1988 (LAH) 725, the question was whether the order of the President dissolving the National Assembly on 29th May, 1988 was in accordance with the powers conferred on him under Article 58(2)(b) of the P.akistan Constitution. It was held in that case that it is not quite right to contend that since it was the discretion of the F President, on the basis of his opinion, the President could dissolve the National Assembly but he has to have the reasons which are justifiable in the eyes of the people and supportable by law in a court of justice. He could not rely upon the reasons which have no nexus to the action, are bald, vague, general or such as can always be given and have been given with disastrous effects G (Emphasis supplied by us). It wouid be instructive to note as to what was stated by the learned Chief Justice and Justice R.S. Sidhwa, as reproduced in the opinion of Justice Sawant:

"Whether it is 'subjective' or 'objective' satisfaction of the President or it is his 'discretion' or 'opinion', this much is quite H

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A clear that the President cannot exercise his powers under the 1

Constitution on wish or whim. He has to have facts, circumstances ' which can lead a person of his status to form an intelligent opinion requiring exercise of discretion of such a grave nature that the representative of the people who are primarily entrusted with the duty of running the affairs of the State are removed with B a stroke of the pen. His action must appear to be called for and justifiable under the Constitution if challenged in a Court of Law. No doubt, the Courts will be chary to interfere in his 'discretion' or formation of the 'opinion' about the 'situation' but ifthere be no basis or justification for the order under the Constitution, the c Courts will have to perform their duty cast on them under the Constitution. While doing so, they will not be entering in the political arena for which appeal to electorate is provided for." Dealing with the second argument, the learned Chief Justice held:

D "If the argument be correct then the provision 'Notwithstanding ) anything contained in clause (2) of Article 48" would be rendered redundant as if it was no part of the Constitution. It is obvious and patent that no letter or part of a provision of the Constitution can be said to be redundant or non-existent under any principle of construction of Constitutions. The argument may be correct in exercise of other discretionary powers but it cannot be employed with reference to the dissolution of National Assembly. Blanket coverage of validity and unquestionability of discretion under Article 48(2) was given up when it was provided under Article 58(2) that 'Notwithstanding clause (2) of Article 48 ..... the discretion can be exercised in the given circumstances. Specific provision will govern the situation. This will " also avoid expressly stated; otherwise it is presumed to be there in Courts of record.Therefore, it is not quite rig'it to contend that since it was in his 'discretion', on the basis of his 'opinion' the President could dissolve the National Assembly. He has to have reasons which are justifiable in the eyes of the people and supportable by law in a Court of Justice ..... It is understandable that if the President has any justifiable reason to exercise his 'discretion' in his 'opinion' but does not wish to disclose, he may say so and may be believed or if called upon to explain the reason he may take the Court in confidence without disclosing the reason in public, may be for reason of security of State. After all patriotism is not confined to the office holder for

l RAMESHW AR PRASAD v. U. 0. I. [SABHARWAL, CJ.] 645

-{ the time being. He cannot simply say like Caesar it is my will, opinion or discretion. Nor give reasons which have no nexus to the action, are bald, vague; general or such as can always be given and have been given with disastrous effects ...... ".

Dealing with the same arguments, R,S. Sidhwa, J. stated as follows: B " .... .I have no doubt that both the Governments are not compelled to disclose all the reasons they may have when dissolving the Assemblies \ under Arts. 58(2)(b) and 112(2) (b ). If they do not choose to disclose all the material, but only some, it is their pigeon, for the case will be decided on a judicial scrutiny of the limited material placed before the Court and if it happens to be totally.irrelevant or extraneous, they c must suffer."

It is well settled that if the satisfaction is ma/a fide or is based on wholly extraneous or irrelevant grounds, the court would have the jurisdiction to examine it because in that case there would be no satisfaction of the '( President in regard to the matter on which he is required to be satisfied. On D ' • consideration of these observations made in the case of State of Rajasthan as also the other decisions {Kehar Singh & Anr. v. Union of India & Anr., [1989] 1SCC204 and Maru Ram v. Union of India, [1981] l SCC 107, Justice Sawant concluded that the exercise of power to issue proclamation under Article 356(1) is subject to judicial review at least to the extent of examining whether the conditions precedent to the issue of Proclamation have been satisfied or not. This examination will necessarily involve the scrutiny as to whether there existed material for the satisfaction of the President that the situation )-- had arisen in which the Government of the State could not be carried on in accordance with the provisions of the Constitution. While considering the question of material, it was held that it is not the personal whim, wish, view or opinion or the ipse dixit of the President de hors the material but a legitimate inference drawn from the material placed before him which is relevant for the purpose. In other words, the President has to be convinced of or has to have sufficient proof of information with regard to or has to be free from doubt or uncertainty about the state of things indicating that the G ,, situation in question has arisen. (Emphasis supplied by us). Although, therefore, the sufficiency or otherwise of the material cannot be questioned, ~ the legitimacy of inference drawn from material is certainly open to judicial review.

It has been further held that when the Proclamation is challenged by H

646 SUPREME COURT REPORTS [2006] 1 S.C.R.

A making a prima facie case with regard to its invalidity, the burden would be -- i' on the Union 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 106 of the Evidence Act, the burden of proof would be on the Union Government. B Thus having reached the aforesaid conclusions as to the parameters of the judicial review that the satisfaction cannot be based on the personal whim, wish, view, opinion or ipse dixit de hors the legitimate inference from the relevant material and that the legitimacy of the inference drawn was open ... c to judicial review, the report on basis whereof Proclamation dissolving the Assembly of Karnataka had been issued was subjected to a close scrutiny, as is evident from paragraphs 118, 119 and 120 of the opinion of Justice Sawant which read as under:

"118. In vi~w of the conclusions that we have reached with regard to D the parameters of the judicial review, it is clear that the High Court 'J had committed an error in ignoring the most relevant fact that in view of the conflicting letters of the seven legislators, it was improper on the part of the Governor to have arrogated to himself the task of holding, firstly, that the earlier nineteen letters were genuine and were written by the said legislators of their free will and volition. He E had not even cared to interview the said legislators, but had merely got the authenticity of the signatures verified through the legislature Secretariat. Secondly, he also took upon himself the task of deciding that the seven out of the nineteen legislators had written the subsequent letters on account of the pressure from the Chief Minister and not out of their free will. Again he had not cared even to interview the said legislators. Thirdly, it is not known from where the Governor got the information that there was horse-trading going on between the legislators. Even assuming that it was so, the correct and the proper course for him lo adopt was to await the test on the floor of the House which test the Chief Minister had willingly undertaken to go through on any day that the Governor chose. In fact, the State Cabinet had itself taken an initiative to convene the meeting of the Assembly .. on April 27, 1989, i.e., only a week ahead of the date on which the )-

Governor chose to send his report to the President. Lastly, what is important to note in connection with this episode is that the Governor at no time asked the Chief Minister even to produce the legislators H

{ RAMESHWAR PRASADv. U.O.L [SABHARW AL, CJ.] 647 before him who were supporting the Chief Minister, if the Governor A ~ thought that the situation posed such grave threat to the governance of the State that he could not await the result of the floor-test in the House. We are of the view that this is a case where all canons of propriety were thrown to wind and the undue haste made by the Governor in inviting the President to issue the Proclamation under Article 356(1) clearly smacked of malafides. The Proclamation issued B by the President on the basis of the said report of the Governor and in the circumstances so obtaining, therefore, equally suffered from \ ma/a fides. A duly constituted Ministry was dismissed on the basis of ,#, material which was neither tested nor allowed to be tested and was no more than the ipse dixit of the Governor. The action of the Governor c was more objectionable since as a high constitutional functionary, he was expected to conduct himself more firmly, cautiously and circumspectly. Instead, it appears that the Governor was in a hurry to dismiss the Ministry and dissolve the Assembly. The Proclamation having been based on the said report and so-called other i11formation '( which is not disclosed was, therefore, liable to be struck down. D j

(Emphasis supplied by us)

119. In this connection, it is necessary to stress that in all cases where the support to the Ministry is claimed to have been withdrawn by some Legislators, the proper course for testing the strength of the E Ministry is holding the test on the floor of the House. That alone is the constitutionally ordained forum for seeking openly and objectively the claims and counter-claims in that behalf. The assessment of the ~- strength of the Ministry is not a matter of private opinion of any individual, be he the Governor or the President. It is capable of being F demonstrated and ascertained publicly in the House. Hence when such demonstration is possible, it is not open to bypass it and instead depend upon the subjective satisfaction of the Governor or the President. Such private assessment is an anathema to the democratic principle, apart from being open to serious objections of personal ma/a fides~ It is possible that on some rare occasions, the floor-test G .... may be impossible, although it is difficult to envisage such situation . ...( Even assuming that there arises one, it should be obligatory on the Governor in such circumstances, to state in writing, the reasons for not holding the floor-test. The High Court was, therefore, wrong in ~ • holding that the floor test was neither compulsory nor obligatory or H

648 SUPREME COURT REPORTS f2006) I S.C.R.

A that it was not a pre-requisite to sending the report to the President ..,' recommending action under Article 356(1). Since we have already referred to the recommendations of the Sarkaria Commission in this connection, it is not necessary to repeat them here.

(Emphasis supplied by us) B

120. The High Court was further wrong in taking the view that the facts stated in the Governor's report were not irrelevant when the Governor without ascertaining either from the Chief Minister or from the seven MLAs whether their retraction was genuine or not, proceeded to give his unverified opinion in the matter. What was further forgotten ... c by the High Comt was that assuming that the support was withdrawn to the Ministry by the 19 MLAs, it was incumbent upon the Governor to ascertain whether any other Ministry could be formed. The question of personal bona fides of the Governor is irrelevant in such matters. What is to be ascertained is whether the Governor had proceeded D legally and explored all possibilities of ensuring a constitutional ~ Government in the State before reporting that the constitutional machinery had broken down. Even if this meant installing the Government belonging to a minority party, the Governor was duty bound to opt for it so long as the Government could enjoy the confidence of the House. That is also the recommendation of the E Five-member Committee of the Governors appointed by the President pursuant to the decision taken at the Conference of Governors held in New Delhi in November 1970, and of the Sarkaria Commission quoted above. It is also obvious that beyond the report of the Governor, there was no other material before the President before he issued the Proclamation. Since the "facts" stated by the Governor in his report, F as pointed out above contained his own opinion based on unascertained material, in the circumstances, they could hardly be said to form an objective material on which the President could have acted. The Proclamation issued was, therefore, invalid. "

G (Emphasis supplied by us)

The view of the High Court that the facts stated in the Governor's ,. report had to be accepted was not upheld despite the fact that the Governor }..

had got the authenticity of the signatures of 19 MLAs on letters verified from the Legislature Secretariat, on the ground that he had not cared to interview the legislators and that there were conflicting letters from the seven legislators. •

RAMESHW AR PRASAD v. U.0.1. [SABHARW AL, CJ. J 649

':;.. The conclusion drawn by the Governor that those seven legislators had written the subsequent letters on account of the pressure from the Chief Minister and not out of their own free will was frowned upon, particularly when they had not been interviewed by the Governor. It was further observed that it is not known from where the Governor got the information about the horse-trading going on between the legislators. Further conclusion reached was that the Governor had thrown all cannons of propriety to the winds and showed undue haste in inviting the President to issue Proclamation under Article 356(1) which clearly smacked of ma/a fides. It was noticed that the facts \ stated by the Governor in his report were his own opinion based on unascertained material and in the circumstances they could hardly be said to form the objective material on which the President could have acted. c When the facts of the present case are examined in light of the scope of the judicial review as is clear from the aforesaid which represents ratio decidendi of majority opinion of Bommai's case, it becomes evident that the challenge to the impugned Proclamation must succeed. D The case in hand is squarely covered against the Government by the dicta laid down in Bommai's case. There cannot be any presumption of allurement or horse-trading only for the reason that some MLAs, expressed the view which was opposed to the public posture of their leader and decided to support the formation of the Government by the leader of another political party. The minority Governments are not unknown. It is also not unknown that the Governor, in a given circumstance, may not accept the claim to fonii the Government, if satisfied that the party or the group staking claim would not be able to provide to the State a stable Government. It is also not unknown )-·· that despite various differences of perception, the party, group or MLAs may still not opt to take a step which may lead to the fall of the Government for various reasons including their being not prepared to face the elections. These and many other imponderables can result in MLAs belonging to even different political parties to come together. It does not necessarily lead to assumption of allurement and horse-trading.

As opposed to the cases of dissolution of Kamataka and Nagaland, G '. while considering the cases of dissolution of assemblies of Madhya Pradesh, Rajasthan and Himachal Pradesh, it was held in Bommai that the reports of .{ the Governors disclosed that the State Governments had miserably failed to protect the citizens and property of the State against internal disturbances, it ~ was found that the Governor's re;mrts are based on relevant material and are H

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

A made bona fide and after due verification. It is in the light of these findings that the validity of the Proclamation was unanimously upheld in respect of T t .. these three States.

Now, let us revert to the reasoning given in the opinion of Justice B.P. Jeevan Reddy, speaking for himself and Justice Agrawal. B As already noticed, Justice Reddy to the extent stated in para 324 expressed his dissent with the reasoning of State of Rajasthan case.

Before we examine paragraph 389, wherein Justice Reddy has noticed, ~ in brief, eight reasons given by the Special Bench of the High Court in c dismissing the writ petition and the opinion of learned Judge as contained in para 391, we feel that to fully appreciate Bommai 's case which reversed Full Bench decision of Karnataka High Court, it would be quite useful to note what exactly was stated by the High Court in Paragraphs 28 to 34 of its judgment reported in S.R. Bommai & Ors. v. Union of India & Ors., AIR (1990) Karnataka 5]. The said paragraphs read as under : D ~

''28. Coming to the second facet of the contention of Mr. Soli Sorabjee, we find that the criticism levelled is that the inference drawn by the Governor that there is no other party which is in a position to form the Government, is not only vague but factually incorrect and hence the President had no relevant material to arrive at his satisfaction for proclamation issued by him.

The aforesaid contention again is without any merit for the reasons: (i) that the Governor formed the said satisfaction which can necessarily be the result of his own impressions. Narration of events in no way advances the case of satisfaction because the very satisfaction of the Governor is an integral part of the material relevant fact. It may also be that the Governor would have met several MLAs and enquired of them. But whl>at transpired between them cannot be a matter of record. In the context where the Governor's personal bona fides are not in question, his satisfaction expressed is to be assumed as part of the relevant material facts in the sense that the very satisfaction stated therein comprehends within itself the idea of all the other necessary ~

factors, (ii) the report of 19th April, 1989 has to be read with the }- second report of 20th April, 1989 wherein "atmosphere getting vitiated" and "horse-trading" were referred. "Pressurisation of MLAs", H "Horse-trading" and "vitiating atmosphere" referred to in the report

RAMESHWAR PRASAD v: U.0.1. [SABHARW AL, CJ.] 651 necessarily indicate the existence of facts for the satisfaction that no A '\- other party was in a position to fonn the Government in accordance with the Constitution: The report could have been more explicit and, not adopting such a course by itself cannot nullify the essence of the report. If the President had any reason to doubt the veracity of those statements it was for him to seek a cl~rification or further report. However, if the President chose to accept the statement of the Governor B as to the satisfaction that none else was in a position to fonn the Government;it is .because the President found it to be a sufficient arid \ acceptable statement as to the existence of factual situation. This statement in para 3 of the first report may also be weighed and understood in the background of the principle that in case the existing c Ministry was found to have lost the majority in the House, it is left to the discretion of the Goven)or to call upon someone else to fonn the Ministry, whom he thinks is in a position to command majority in the House. Further, absolutely no material has been placed before us to show that any other party or individual staked his or her claim to fonn a stable Ministry; rather, throughout, the petitioners' case has D '( ,. been that the existing Ministry headed by Sri S. R. Bommai continued to enjoy the support of the majority in the House. This premise was held to be not correct for which material facts were given in both the reports made by the Governor.

29. It may be emphasised that a person holding majority does not require time to prove that majority. Instead of telling the Governor that he would prove majority on the floor of the House, the Chief Minister could have as well obtained the signatures of 113 MLAs and >-- placed before the Governor to demonstrate his strength. Moreover, the second report of the Governor also conveys certain material facts; some of the ML As who withdrew their support to Sri S. R. Bommai wrote again withdrawing the earlier letters with oscillation and ficklemindedness. Fluctuating loyalties leading to unhealthy practice are pointed out in the report. The democratic culture was being vulgarised. Vitiation of the atmosphere was felt by the Governor. In the context of the prevailing situation the Governor was certainly entitled to report to the President the aforesaid facts. We, are therefore, of the firm view that the two reports of the Governor conveyed to the President the essential and relevant facts from which the President could assess the situation for an action under Art. 356 of the Constitution. H

\ 652 SUPREME COURT REPORTS [20061 I S.C.R.

A 30. Another major attack levelled against the reports of the Governor by Mr. Soli Sorabjee was that nowhere in the report's it is stated that the State Government cannot be carried on in accordance with the Constitution. In other words, there is no material on the record to show that there has been Constitutional breakdown of the machinery in the Stale. In support of his argument the learned counsel drew our B attention to the statement in the report which reads:

"It is not appropriate under the circumstances to have the State administered by an Executive consisting of Council of Ministers who do not command the majority in the House." C What was sought to be argued by the learned counsel was to say that it is not appropriate is quite different from saying that there is a constitutional breakdown, and as the Governor only feels that it is not appropriate, there was no legal justification for taking the impugned action.

D Again we find ourselves unable to agree with Mr. Soli Sorabjee. The words "it is not appropriate under the circumstances" have to be understood in the context of the report, especially the next sentence, so as to convey the meaning that the Executive which does not command the support of the majority in the House cannot administer the State in accordance with the Constitution. 'Inappropriateness' E stated here is referable to the meaning 'is not in accordance with law'. Reference to any dictionary would show that 'appropriateness' and 'compatibility' are interchangeable and, therefore, when something is said to be not appropriate it conveys the meaning that it is not compatible or not in accordance with law. Hence the statement of the ., F Governor in this sentence clearly asserts his understanding of the true principle that an Executive having no majority support in the Legislature, if carries on the Government, will be administering the State not in accordance with the Constitution.

31. In view of the aforesaid discussion, we find no escape from the G conclusion that the grounds stated and material supplied in the reports of the Governor are neither irrelevant nor vague, that the reasons ., disclosed bear a reasonable nexus with the exercise of the particular power and hence the satisfaction of the President must be treated as conclusive, and that there is no scope at all for a finding that the action of the President is in flagrant violation of the very words of H

=::)' RAMESHWARPRASAD v. U.0.1. [SABHARW AL, CJ.] 653 Art. 3 56(1 ). A ,, '(

32. Mr. Soli Sorabjee also contended that the factors like the alleged 'unethical methods adopted during the formation of Janata Dal' 'expansion of cabinet', 'horse-trading' and 'atmosphere getting ~ vitiated'•1ue not only vague but have no nexus at all with the question of failure of Constitutional machinery. The learned counsel also laid B great stress by contending that the Governor by acting upon the letters given by 19 legislators had circumvented the Anti Defection legislation, the primary aim of which is to discourage the toppling game by

" legislators by changing their loyalties, and by acting upon those letters the legislators were permitted, in substance, to play the game of toppling the ruling Ministry without incurring the consequences of c Anti-Defection law because; if these legislators had withdrawn their support in the House and voted against the Ministry, they would have incurred disqualification under Anti-Defection Law. Reliunce upon these letters is contrary to the underlying purpose and the essence of Anti-Defection legislation and therefore illegitimate and prohibited. D r •' The learned counsel buttressed his arguments by contending that if the floor test had been held the legislators who had written letters might have changed their mind for several valid reasons e.g. (i) change in the style of functioning of leadership, (ii) change in the leadership, (iii) realisation for maintaining party unity, (iv) unwillingness to incur disqualification under Anti-Defection legislation and (v) not giving a E pretext for imposition of President's Rule. In support of the contention that. the floor test has always been recognised as the legitimate and relevant method, Sri Soli Sorabjee relied on the judgment of the )- Orissa High Court in Bijayananda v. President of India, Sarkaria Commission Report page 173 para6.5.0l, the judgment of Gauhati F High Co•Jrt in Vamuzo v. Union of India, (1988) 2 Gaub LJ 468 at p. 483, Report of the Committee of Governors dated 1-10-1971, pages 208, 209, 210, 217-219, 221-219, 221-223 and 234, and Address by Speaker of Lok Sabha on the occasion of Speakers' Conference on 16-7-1970 paras 13 and 14. G

33. In our view, the aforesaid contentions/ points urged by the learned counsel do not iii any way destroy the effect of the two material -( grounds on the basis of which the subjective satisfaction was arrived at by the President. The Governor honestly and truly has stated all the facts. They are not vague at all and are narrati~ in nature. What was H

\' 654 SUPREME COURT REPORTS (2006] I S.C.R.

A happening in the State, the Governor has disclosed in the report. The Governor was assessing whether the first petitioner was commanding majority and he (Governor) was entitled to take into consideration the behaviour of the MLAs one way or the other.

It is expected that a Government to be effective should not only B command a majority in the House but should also be backed by the majority members outside the house so that the Government would not be under a perennial pressure of being dislodged whenever the House meets again. r We have gone through the judgments of the Orissa and Gauhati High c Courts mentioned above and find that the same are distinguishable. In Bijayanand's case the main fact was that the Leader of the Opposition who had shown his majority in the House was not tailed upon to form the Ministry not because he had no majority but because the Governor expected that the majority might fall at any moment ..._ and there may be no stable Ministry, and on this aspect G. K. ~isra, D C.J. observed that the Governor is not concerned whether the Ministry ) • could be stable in future. If the Ministry which would have been formed by the Leader of the Opposition would have fallen afterwards, the Governor would have been justified to recommend for the President's Rule if at that time no other person was in a position to E from an alternative Ministry by having majority support. But, in the instant case, the position is entirely different as at the initial stage itself the Governor has in unequivocal terms stated in his report that he is also satisfied that there is no other party which is in a position

-- to form the Government. -(

F Coming to the case of Vamuzo, ( 1988(2) Gauh LJ 468) the facts are:

"Hokishe Serna formed the Government in 1987. Chishi attempted to bring down and destabilise the Government. To achieve that

G end he offered money and lured the separated group of 13 to step out from the ruling party. The Governor called the episode 'incredible lack of political morality and complete disregard of - the wishe~ of the electorates on the part of the breakway congressmen'. That none of them therefore had ever expressed any grievances to the Chief Minister at any time in the past. The 13 persons are kept under forcible confinement by K. L. Chishi and Vamuzo. The split of the party is not true. It is obvious that H

RAMESHWARPRASADv. U.0.l. [SABHARWAL,CJ.] 655 what may be called a political group of the darkest hue has been A .., '~ stated in his absence contrary to the, noble Naga character and democratic traditions'. The recognition by the Speaker was done in haste. The entire incident manifests political horse trading and machinations. He added there is proof that they are the group of 13 persons have not separated from the ruling party voluntarily B If we look at those facts, again we find that there is absolutely no similarity of the aforesaid facts to the two material facts in the case on hand. In the said case, as found on those facts, the Governor was held to have exceeded his jurisdiction and the facts stated therein were found to be irrelevant to the provisions of Art. 356(1), by the c Gauhati High Court.

So far as Sarkara Commission Report, the report of the Committee of Governors and the Address of the Speaker of Lok Sabha are concerned, the views expressed therein are really commendable and it is expected that wherever any such drastic action, like the exercise of power under D 1 Art. 356(1), is taken, it should be ensured that the subjective satisfaction of the President is not based on any irrelevant, irrational or perverse ground. But, in the view we have taken on the facts of this case, the views expressed in those reports are of no assistance to the petitioners. Moreover, these recommendations are to alter the E existing laws, which implies that till these recommendations are moulded into constitutionally enforceable norms the existing law would prevail.

34. Mr. Soli Sorabjee had made pointed reference to the Tenth Schedule \-- i.e. Anti Defection Law, for bringing home his point that the factum of the withdrawal of the support by 19 legislators was wholly irrelevant. F This argument was advanced to prove his point that in the .context of Anti Defection Legislation, floor test was the most relevant, legitimate and surest method to determine whether the Council of Ministers headed by Sri S.R. Bommai commanded the majority in the House or not. We are afraid, we are unable to agree with this submission of the learned counsel. The introduction of Tenth Schedule in the G Constitution has not in any way affected the exercise of power under -( Art. 356 nor has it amended Art. 356 in any manner. The amending body which inserted the Tenth Schedule to the Constitution had before it several decisions (speciaHy the Rajasthan Case as to the scope of Art. 356. There is a presumption that the law-making body H I

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

A was aware of the existing interpretation given by the Supreme Court on a provision of law or of a Constitutional provision. If the said ..' Constitutional provision (Art. 356) was untouched while adding a new schedule to the Constitution elsewhere without reference to the existing provision (Art. 356), we have to presume that the existing interpretation of the said provision continues to govern the situation. It is not B possible to hold that the interpretation given to Art. 356 in Rajasthan Case, if continued to govern it, would destroy the efficacy of the Tenth Schedule. Tenth Schedule to the Constitution is applicable to _,I- the transaction of business inside the House of Legislature. The ami defection activity outside the House is not penalised in any manner c by Tenth Schedule. Concept of the failure of the Constitutional machinery of the Government is not confined to the loss of majority by a ministry in the House; it may be due to several reasons. Therefore, if meeting of the Legislature. was contemplated as a mandatory requirement preceding a report of the Governor for an action under Art. 356 and floor test was impliedly made the sole and exclusive test - D to judge the stability of the Ministry (after the Tenth Schedule was . added to the Constitution), the Tenth Schedule would have been suitably worded, or Art. 356 would have been altered."

In para 389, Justice Reddy states that the High Court has dismissed the writ petition giving following reasoning : E "(I) The proclamation under Article 356(1) is not immune from judicial scrutiny. The court can examine Whether the satisfacdon has

F been formed on wholly extraneous material or whether there is a rational nexus between the material and the satisfaction.

(2) In Article 356, the President means the Union council of ministers. The satisfaction referred to therein is subjective satisfaction. This ~

- satisfaction has no doubt to be formed on a consideration of all the facts and circumstances.

(3) The two reports of the Governor conveyed to the President essential G and relevant facts which were relevant for the purpose of Article 356. The facts stated in the Governor's report cannot be stated to be irrelevant. They are perfectly relevant. )

(4) Where the Governor's "personal bona jides" are not questioned,

H his satisfaction that no other party is in a position to form the -

j RAMESHW AR PRASAD v. U.0 .I. [SABHAR WAL, CJ.] 657 ....., ~ government has to be accepted as true and is based upon a reasonable A assessment of all the relevant facts.

(5) Recourse to floor test was neither compulsory nor obligatory. It was not a prerequisite to sending up a report recommending action under Article 356(1 ), B (6) The introduction of Xth Schedule to the Constitution has not affected in any manner the content of the power under Article 356. J...' (7) Since the proclamation has to be issued on the satisfaction of the Union council of ministers the Governor's report cannot be faulted on the ground of legal ma/a jides. c (8) Applying the test indicated in the State of Rajasthan v. Union of India, the court must hold, on the basis of material disclosed, that the subjective satisfaction arrived at by the President is conclusive and cannot be faulted. The proclamation, therefore, is unobjectionable."

Except for aforesaid reasons I and 2, other reasons were not accepted by Justice Reddy. Learned Judge did not accept the reasoning of the High Court that where Governor's personal bona jides are not questioned, his satisfaction that no party is in a position to form the Government has to be accepted as true as it is based on reasonable assessment of all the relevant facts. The Court also did not accept the reasoning that the Governor's report cannot be faulted on the ground of ma/a fides. Learned Judge has stated that the question whether government has lost the confidence of the House is not a matter. to be determined by the Governor or for that matter anywhere else ~- except the floor of the House. The House is the place where the democracy is in action. It is not a question of subjective satisfaction of the Governor. It would be useful to note what has been observed in paragraph 391 which reads thus:'·

"391. We must also say that the observation under point (7) is equally misplaced. It is true that action under Article 356 is taken on the basis of satisfaction of the Uni0n Council of Ministers but on that score it cannot be said that 'legal ma/a jides' of the Governor is irrelevant. ...... When the Article speaks of the satisfaction being formed on the basis .... of the Governor's report, the legal malajides, if any, of the Governor

- cannot be said to be irrelevant. The Governor's report may not be conclusive but its relevance is undeniable. Action under Article 356 can be based only and exclusively upon such report. Governor is a H

658 SUPREME COURf REPORTS [2006] I S.C.R.

A very high constitutional functionary. He is supposed to act fairly and honestly consistent with his oath. He is actually reporting against his own Government. It is for this reason that Article 356 places such implicit faith on his report. If, however, in a given case his report is vitiated by legal ma/a fides, it is bound to vitiate the President's action as well. Regarding the other points made in the judgment of B the High Court, we must say that the High Court went wrong in law in approving and upholding the Governor's report and the action of the President under Article 356. The Governor's report is vitiated by / more than one assumption totally unsustainable in law. The Constitution does not create an obligation that the political party c forming the ministry should necessarily have a majority in the Legislature. Minority Governments are not unknown. What is necessary is that that Government should enjoy the confidence of the House. This aspect does not appear to have been kept in mind by the Governor. Secondly and more importantly whether the council of ministers have lost the confidence of the House is not a matter to be determined by the Governor or for that matter anywhere else except the floor of the House. The principle of democracy underlying our Constitution necessarily means that any such question should be decided on the floor of the House. The House is the place where the democracy is in action. It is not for the Governor to determine the said question on his own or on his own verification. This is not a matter within his subjective satisfaction. It is an objective fact capable of being established ')n the floor of the House. It is gratifying to note that Sri R. Venkataraman, the former President of India has affirmed this view in his Rajaji Memorial Lecture (Hindustan Times dated February 24, 1994). F The substantial reasons given by the High Court in paragraphs 28 to 34 for dismissing the writ petition did not find favour with this :::ourt. Dealing with the report of the Governor in respect of Karnataka, it was held that in the circumstances it cannot be said that the Governor's report contained or was based upon relevant material. There could be no question of the Governor making an assumption of his own.

Clearly, Bommai's case expanded the scope of judicial review. True, ... observations by Justice Reddy were made in the context of a situation where the incumbent Chief Minister is alleged to have lost the majority support or the confidence of the House and not in the context of a situation arisen after

) RAMESHWARPRASADv. U.0.1. [SABHARWAL,CJ.] 659 ~ a general election in respect whereof no opinion was expressed, but, in our view the principles of scope of judicial review in such matters cannot be any different. By and large, same principles will apply when making recommendation for dissolution of a newly elected Assembly and again plunging the State to elections.

Justice Reddy, for upholding the dissolution of the State Legislatures of B Madhya Pradesh, Rajasthan and Himachal Pradesh also came to the conclusion \. that the reports of the Governor disclosed that the State Government had miserably failed to protect the citizens and the property of the State against the internal disturbances and on the basis of the said report, the President fonned the requisite satisfaction. Dealing with the circumstances in the State C of Madhya Pradesh, it was held that 'Governor's reports are based upon relevant material and are made bona fide and after due verification'. (Emphasis supplied by us)

Thus, it is open to the Court, in exercise of judicial review, to examine ! the question whether the Governor's report is based upon relevant material or not; whether it is made bona fide or not; and whether the facts have been duly verified or not. The absence of these factors resulted in the majority declaring the dissolution of State Legislatures of Kall).ataka and Nagaland as invalid.

In view of the above, we are unable to accept the contention urged by the Id. Attorney General for India, Solicitor General of India and Additional Solicitor General, appearing for the Government that the report of the Governor ~- itself is the material and that it is not permissible within the scope of judicial review to go into the material on which the report of the Governor may be based and the question whether the same was duly verified by the Governor F or not. In the present case, we have nothing except the reports of the Governor. In absence of the relevant material much less due verification, the report of the Governor has to be treated as the personal ipse dixit of the Governor. The drastic and extreme action under Article 356 cannot be justified on mere ipse dixit, suspicion, whims and fancies of the Governor. This Court cannot remain a silent spectator watching the subversion of the Constitution. It is to be G remembered that this Court is the sentinel on the qui vive. In the facts and circumstances of this case, the Governor may be main player, but Council of Ministers should have verified facts stated in the report of the Governor before hurriedly accepting it as a gospel truth as to what Governor stated. Clearly, the Governor has mislead the Council of Ministers which lead to aid H

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

A and advice being given by the Council of Ministers to the President leading to the issue of the impugned Proclamation.

Regarding the argument urged on behalf of the Government of lack of judicially manageable standards and, therefore, the court should leave such complex questions to be determined by the President, Union Council of B Ministers and the Governor, as the situation like the one in Bihar, is full of many imponderables, nuances, implications and intricacies and there are too many ifs and buts not susceptible of judicial scrutiny, the untenability of the ,./ argument becomes evident when it is examined in the light of decision in Bommai' case upholding the challenge made to dissolution of the Assemblies c of Karnataka and Nagaland. Similar argument defending the dissolution of these two assemblies having not found favour before a Nine Judge Bench, cannot be accepted by us. There too, argument was that there were no judicially manageable standards for judging Horse-trading, Pressure, Atmosphere being vitiated, wrongful confinement, Allurement by money, contacts with insurgents

D in Nagaland. The argument was rejected. ., The position was different when Court considered validity of dissolution of Assemblies of Madhya Pradesh, Rajasthan and Himachal Pradesh.

In paragraphs 432 and 433 of the opinion of Justice Jeevan Reddy in Bommai 's case, after noticing the events that led to demolition of Babri E Masjid on 6th December, 1992, the assurances that had been given prior to the said date, the extraordinary situation that had arisen after demolition, the prevailing tense communal situation, the learned Judge came to the conclusion that on material placed before the Court including the reports of the Governors, -I ~

it was not possible to say that the President had no relevant material before him on the basis of which he could form satisfaction that BJP Governments F of Madhya Pradesh, Rajasthan and Himachal Pradesh cannot disassociate themselves from the action and its consequences and that thtse Governments, controlled by one and the same party, whose leading lights were actively campaigning for the demolition of structure, cannot be disassociated from the acts and deeds of the leaders of BJP. It was further held that if the President G was satisfied that the faith of these BJP Governments in the concept of secularism was suspected in view of the acts and conduct of the party controlling these Governments and that in the volatile situation that developed ~.

pursuant to the demolition, the Government of these States cannot be carried on in accordance with the provisions of the Constitution the Court is not able to say that there was no relevant material upon which he could be so H

I RAMESHW AR PRASAD v. U.0 .I. [SABHARWAL, CJ.} 661 • y satisfied. Under these circumstances, it was observed that the Court cannot A question the correctness of the material produced and that even if part of it is not relevant to the action. The Court cannot interfere so long as there is some relevant material to sustain the action. For appreciating this line of reasoning, it has to be borne in mind that the same learned Judge, while examining the validity of dissolution of Karnataka and Nagaland Assemblies, agreeing with the reasoning and conclusions given in the opinion of Justice · B Sawant which held that the material relied upon by the Governor was nothing

- but his ipse dixit came to the conclusion that the said dissolution were illegal. The majority opinion and the correct ratio thereof can only be appreciated if it is kept in view that the majority has declared invalid the dissolution of Assemblies of Karnataka and Nagaland and held as valid the dissolution of c the Assemblies of Madhya Pradesh, Rajasthan and Himachal Pradesh. Once this factor is kept in full focus; it becomes absolutely clear that the plea of perception of the same facts or the argument of lack of any judicially manageable standards would have no legs to stand.

~-...- In the present case, like in Bommai 's case, there is no material whatsoever except the ipse dixit of the Governor. The action which results in preventing a political party from staking claim to form a Government after election, on such fanciful assumptions, if allowed to stand, would be destructive of the democratic fabric. It is one thing to come to the conclusion that the majority staking claim to form the Government, would not be able to provide stable Government to the State but it is altogether different thing to say that they have garnered majority by illegal means and, therefore, their claim to form the Government cannot be accepted. In the latter case, the matter may have to be left to the wisdom and will of the people, either in the same House it being taken up by the opposition or left to be determined by the people in the elections to follow. Without highly cogent material, it would be wholly irrational for constitutional authority to deny the claim made by a majority to form the Government only on the ground that the majority has been obtained by offering allurements and bribe which deals have taken place in the cover of darkness but his undisclosed sources have confirmed such deals. The extra-ordinary emergency power of recommending dissolution of a Legislative Assembly is not a matter of course to be resorted to for good governance or cleansing of the politics for the stated reasons without any authentic material. ~ These are the matters better left to the wisdom of others including opposition and electorate.

It was also contended that the present is not a case of undue haste. H

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

A The Governor was concerned to see the trend and could legitimately come to the conclusion that ultimately. people would decide whether there was an , 'ideological realignment", then there verdict will prevail and the such realigned group would win elections, to be held as a consequence of dissolution. It is urged that given a choice between going back to the electorate and accepting B a majority obtained improperly, only the former is the real alternative. The proposition is too broad and wide to merit acceptance. Acceptance of such a proposition as a relevant consideration to invoke exceptional power under Article 356 may open a floodgate of dissolutions and has far reaching alarming and dangerous consequences. It may also be a handle to reject post-election alignments and realignments on the ground of same being unethical, plunging the country or the State to another election. This aspect assumes great significance in situation of fractured verdicts and in the formation of coalition Governments. If, after polls two or more parties come together, it may be difficult to deny their claim of majority on the stated ground of such illegality. These are the aspects better left to be determined by the political parties which, of course, must set healthy and ethical standards for themselves, but, in any case, the ultimate judgment has to be left to the electorate and the legislature comprising also of members of opposition.

To illustrate the aforesaid point, we may give two examples in a situation where none of the political party was able to secure majority on its own :

E l. After polls, two or more political parties come together to form the majority and stake claim on that basis for formation of the Government. There may be reports in the media about bribe having been offered to the elected members of one of the political parties for its consenting to become part of majority. If the contention of the respondents is to be accepted, then the constitutional functionary can decline the formation of the Government by such majority or dissoive the House or recommend its dissolution on the ground that such a group has to be prevented to stake claim to form the Government and, therefore, a situation has arisen in wh;ch the Government of the State cannot be carried on in accordance with the provisions of the Constitution.

2. A political party stakes claim to form the Government with the support of independent elected candidates so as to make the deficient number for getting majority. According to the media reports, under cover of darkness, large sums of bribe were paid by the particular party to independent elected candidates to get

RAMESHWARPRASADv. U.0.1. [SABHARWAL, CJ.) 663 ....y their support for formation of Government. The acceptance of the contention of the respondents would mean that without any cogent material the constitutional functionary can decline the formation of the Government or recommend its dissolution even before such a claim is made so as to prevent staking of claim to form the Government. B We are afraid that resort to action under Article 3 56( I) under the aforesaid or similar eventualities would be clearly impermissible. These are not the matters of perception or of the inference being drawn and assumptions being made on the basis whereof it could be argued that there are no judicial manageable standards and, therefore, the Court must keep its hands off from examining these matters in its power of judicial review. In fact, these matters, c particularly without very cogent material, are outside the purview of the constitutional functionary for coming to the conclusion that a situation has arisen in which the Government of the State cannot be carried on in accordance . with the provisions of the Constitution. D ..'Y' ;. The contention that the installation of the Government is different than removal of an existing Government as a consequence of dissolution as was the factual situation before the Nine Judge Bench in Bommai 's case and, therefore, same parameters cannot be applied in these different situations, has already been dealt with hereinbefore. Further, it is to be remembered that a political party prima facie having majority has to be permitted to continue with the Government or permitted to form the Government, as the case may be. In both categories, ultimately the majority shall have to be proved on the floor of the House. The contention also overlooks the basic issue. It being )-- that a party even, prima facie, having majority can be prevented to continue to run the Government or claim to form the Government declined on the purported assumption of the said majority having been obtained by illegal means. There is no question of such basic issues allegedly falling in the category of "political thicket" being closed on the ground that there are many imponderables for which there is no judicially manageable standards and, thus, outside the scope of judicial review. G The further contention that the expression 'situation has arisen in which -( the Government of the State cannot be carried on in accordance with the ( provisions of the Constitution' in Article 356 shows that the power is both

l preventive and/or curative and, therefore, a constitutional functionary would be well within his rights to deny formation of the Government to a group of H ~ parties or elected candidates on the ground of purity of political process is

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

A of no avail on the facts and circumstances of this case, in view of what we have already stated. Even if preventive, power cannot be abused.

Another contention urged is that the power under Article 3 56 is legislative in character and, therefore, the parameters relevant for examining the validity of a legislative action alone are required to be considered and in that light of the expressions such as 'ma/a fide' or 'irrational' or 'extraneous' have to be seen with a view to ultimately find out whether the action is ultra vires or not. The contention is that the concept of malajides as generally understood in the context of executive action is unavailable while deciding I the validity of legislative action. The submission is that that the malajides or extraneous consideration cannot be attributed to a legislative act which when challenged the scope of inquiry is very limited.

For more than one reason, we are unable to accept the contention of the proclamation of the nature in question being a legislative act. Firstly, if the contention was to be accepted, Bommai's case would not have held the proclamation in case of Karnataka and Nagaland as illegal and invalid. Secondly, the contention was specifically rejected in the majority opinion of Justice Jeevan Reddy in paragraph 377. The contention was that the proclamation of the present nature assumes the character of legislation and that it can be struck down only on the ground on which a legislation can be struck down. Rejecting the contention, it was held that every act of Parliament E does not amount to and does not result in legislation and that the Parliament performs many other functions. One of such functions is the approval of the proclamation under clause (3) of Article 356. Such approval can, by no stretch of imagination, be called 'legislation'. Its legal character is wholly different. It is a constitutional function, a check upon the exercise of power under clause (I) of Article 356. It is a safeguard conceived in the interest of ensuring proper exercise of power under clause ( 1). It is certainly not legislation nor legislative in character.

Mr. Subramaniam, learned Additional Solicitor General, however, contended that Bommai 's case proceeded on the assumption that the proclamation under Article 356(1) is not legislative but when that issue is examined in depth with reference to earlier decisions in the cases of In Re: The Delhi Laws Act, 1912, the Ajmer-Merwara (Extension of Laws) Act, )-

1947 and the Part C States (Laws) Act, 1950 (1951 SCR 747 at page 970-' 971); Jayantilal Amrit Lal Shodhan v. F.N. Rana and Ors., (1964) 5 SCR 294 H at 205-206; Rameshchandra Kachardas Porwal & Ors. State of Maharashtra

RAMESHWARPRASAD v. U.0.1. [SABHARWAL, CJ.) 665 •& Ors., [1981] 2 SCC 722], A.K. Roy v. Union ofIndia & Ors., [1982] l SCC A 271, it would be clear that the conclusion of Justice Reddy in para 377 requires re-look in the light of these decisions. We are unable to accept the contention. The decision of Nine Judge Bench is binding on us.

Though Bommai has widened the scope of judicial review, but going even by principles laid in State of Rajasthan 's case, the existence of the satisfaction can always be challenged on the ground that it is ma/a fide or based on wholly extraneous and irrelevant grounds. Apart from the fact that the narrow minima,! area of judicial review as advocated in State of Rajasthan 's case is no longer the law of the land in view of its extension in Bommai's case but the present case even when considered by applying limited judicial review, cannot stand judicial scrutiny as the satisfaction herein is based on wholly extraneous and irrelevant ground. The main ground being to prevent a party to stake claim to form the Government.

In State of Rajasthan 's case, in para 185, Justice Untwalia observed that this Court is not powerless to interfere with such an order which is ultra vires, wholly illegal or ma/a fide as in such a situation it will tantamount in law to be no order at all. Further observing that it is incompetent and hazardous for the Court to draw conclusions by investigation of facts by entering into the prohibited area but at the same time it would be equally untenable to say that the Court would be powerless to strike down the order, if on its face, or, by going round the circumference of the prohibited area, the Court finds the order as a mere pretence or colourable exercise of the .extraordinary powers given under certain Articles of the Constitution and thus in a given case it ,._ may be possible to conclude that it is a fraud on the exercise of the power. In the present case, we have reached the conclusion that the action of the Governor was a mere pretence, the real object being to keep away a political party from staking a claim to form the Government.

Referring to the opinion of Justice Reddy, in Bommai's case, it was contended for the respondents that the approach adopted in Barium Chemicals Ltd. and Anr. v. Company Law Board and Ors., [ 1966] Supt. SCR 311 and other cases where action under challenge is taken by statutory or administrative authorities, is not applicable when testing the validity of the constitutional action like the present one. For proper appreciation of the contention, it may -( be useful to reproduce in full paragraphs 372 and 373 from which certain observations were relied upon. The same read as under: H "372. Having noticed various decisions projecting different points of

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

A view, we may now proceed to examine what should be the scope and reach of judicial review when a proclamation under Article 356( I) is questioned. While answering this question, we should be, and we are, aware that the power conferred by Article 356( 1) upon the President is of an exceptional character designed to ensure that the Government of the States is carried on in accordance with the Constitution. We are B equally aware that any misuse or abuse of this power is bound to play havoc with our constitutional system. Having regard to the form of Government we have adopted, the power is really that of the Union Council of Ministers with the Prime Minister at its head. In a I sense, it is not really a power but an obligation cast upon the President C in the interest of preservation of constitutional Government in the States. It is not a power conceived to preserve or promote the interests of the political party in power at the centre for the time being nor is it supposed to be a weapon with which to strike your political opponent. The very enormity of this power -undoing the will of the people of a State by dismissing the duly constituted Government and dissolving the duly elected Legislative Assembly - must itself act as a warning against its frequent use or misuse, as the case may be. Every misuse of this power has its consequences which may not be evident immediately but surface in a vicious form a few years later. Sow a wind and you will reap the whirlwind. Wisdom lies in moderation and not in excess.''

(Emphasis supplied by us)

Further, learned Judge states that :

F "373. Whenever a proclamation under Article 356 is questioned, the court will no doubt start with the presumption that it was validly issued but it will not and it should not hesitate to interfere if the invalidity or unconstitutionality of the proclamation is clearly made out. Refusal to interfere in such a case would amount to abdication of the duty cast upon the court - Supreme Court and High Courts G - by the Constitution. Now, what are the grounds upon which the court can interfere and strike down the proclamation? While discussing the decisions herein-above, we have indicated the unacceptability of the approach adopted by the Privy Council in Bhagai Singh v. Emperor, AIR (1931) PC 111 and King Emperor v. Bengari Lal Sarma, H AIR ( 1945) PC 48. That was in the years 1931 and 1944, long before the concept of judicial review had acquired its present efficacy. As

RAMESHWAR PRASAD v. U.0.1. [SABHARWAL, CJ.] 667

stated by the Pakistan Supreme Court, that view is totally unsuited to A a democratic polity. Even the Privy Council has not stuck to that view, as is evident from its decision in the case from Malaysia Stephen Kalong Ningkan v. Government of Malaysia, (I 970) AC 379. In this case, the Privy Council proceeded on the assumption that such a proclamation is amenable to judicial review. On facts and circumstances of this case, it found the action justified. Now, coming to the approach adopted by the Pakistan Supreme Court, it must be said-as indicated herein before-that it is coloured by the nature of the power conferred upon the President by Section 58(2)(b) of the Pakistani Constitution. The power to dismiss the federal Government and the National Assembly is vested in the President and President alone. He has to exercise that power in his personal discretion and judgment. One man against the entire system, so to speak-even though that man too is elected by the representatives of the people. That is not true of our Constitution. Here the President acts on the aid and advice of the Union Council of Ministers and not in his personal capacity. Moreover, there is the check of approval by Parliament which contains members from that State (against the Government/Legislative Assembly of which State, action is taken) as well. So far as the approach adopted by this Court in Barium Chemicals is concerned, it is a decision concerning subjective satisfaction of an authority created by a statute. The principles evolved then cannot ipso facto be extended to the exercise of a constitutional power under Article 356. Having regard to the fact that this is a high constitutional power exercised by the highest constitutional functionary of the Nation, it may not be appropriate to adopt the tests applicable in the case of action taken by statutory or administrative authorities - nor at any rate, in their entirety. We would rather adopt the formulation evolved "Y this court in State of F Rajasthan as we shall presently elaborate. We also recognise, as did the House of Lords in C.C.S. U. v. Minister for the Civil Service, (1985) AC 374 that there are certain areas including those elaborated therein where the court would leave the matter almost entirely to the President/Union Government. The court would desist from entering G those arenas, because of the very nature of those functions. They are not the matters which the court is equipped to deal with. The court has never interfered in those matters because they do not admit of judicial review by their very nature. Matters concerning foreign policy, relations with other countries, defence policy, power to enter into treaties with foreign powers, issues relating to war and peace are H

668 Sl'PREME COURT REPORTS [2006] I S.C.R.

.. A some of the matters where the court would decline to entertain any petition for judicial review. But the same cannot be said of the power l' under Article 356. It is another matter that in a given case the court may not interfere. It is necessary to affirm that the proclamation under Article 356(1) is not immune from judicial review, though the parameters thereof may vary from an ordinary case of subjective satisfaction." B The aforesaid paragraphs cannot be read in isolation and have to be seen while bearing in mind that learned Judge invalidated dissolution of Assembly of Kamataka and Nagaland. Be that as it may, in the present case, I the validity of the impugned notification is not being judged on application of principles available for judging the validity of administrative actions. Further, para 376 of the opinion of Justice Jeevan Reddy is very instructive and it may be reproduced as under :

"We recognise that judicial process has certain inherent limitations. It is suited more for adjudication of disputes rather than for administering the country. The task of governance is the job of the Executive. The Executive is supposed to know how to administer the country, while the function of the judiciary is limited to ensure that the Government is carried on in accordance with the Constitution and the Laws. Judiciary accords, as it should, due weight to the opinion of the E Executive in such matters but that is not to say, it defers to the opinion of Executive altogether. What ultimately determines the scope ofjudicial review is the facts and circumstances of the given case. A case may be a clear one ·- like Meghalaya and Karnataka cases - where the court can find unhesitatingly that the proclamation is bad. There may also be cases ·- like those relating to Madhya Pradesh, F Rajasthan and Himachal Pradesh -where the situation is so complex, full of imponderables and a fast-evolving one that the court finds it not a matter which admits of judicial prognosis, that it is a matter which should be leji to the judgment of and to be handled by the Executive and may be in the ultimate analysis by the people themselves. G The best way of demonstrating what we say is by dealing with the concrete cases before us.

(Emphasis supplied by us)

It is evident from the above that what ultimately determines the scope H of judicial review is the facts and circumstances of the given case and it is

RAMESHWARPRASADv. U.0.1. [SABHARWAL,CJ.] 669 for this reason that the Proclamations in respect of Karnataka and Nagaland A ··were held to be bad and nm those relating to Madhya Pradesh, Rajasthan and Himachal Pradesh.