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

We are not impressed with the argument based on a possible disqualification under Tenth Schedule if the MLAs belonging to LJP party had supported the claim of Nitish Kumar to form the Government. At that B stage, it was a wholly extraneous to take into consideration that some of the members would incur the disqualification if they supported a particular party against the professed stand of the political party to which they belong. The intricate question as to whether the case would fall within the permissible category of merger or not could not be taken into consideration. Assuming C it did not fall in the permissible arena of merger and the MLAs would earn the risk of disqualification, it is for the MLAs or the appropriate functionary to decide and not for the Governor to assume disqualification and thereby prevent staking of claim by recommending dissolution. It is not necessary for us to ex<1mine, for the present purpose, para 4 of the Tenth Schedule dealing with merger and/or deemed merger. In this view the question sought to be raised that there cannot be merger of legislative party without the first merger of the original party is not necessary to be examined. The contention sought · to be raised was that even if two-third legislators of LJP legislative party had agreed to merge, in law there cannot be any merger without merger of original party and even in that situation those two-third MLAs would have earned disqualification. Presently, it is not necessary to decide this question. It could not have been gone into by the Governor for recommending dissolution.

The provision of the Tenth Schedule dealing with defections, those of RP Act of 1951 dealing with corrupt practice, electoral offences and disqualification and the provisions of Prevention of Corruption Act, 1988 are legal safeguards available for ensuring purity of public life in a democracy. But, in so far as the present case is concerned, these had no relevance at the stage when the dissolution of the Assembly was recommended without existence of any material whatsoever. There was no material for the assumption that claim may be staked based not on democratic principles and based on manipulation by breaking political parties.

There cannot be any doubt that the oath prescribed under Article 159 requires the Governor to faithfully perform duties of his office and to the best of his ability preserve, protect and defend the Constitution and the laws. The Governor cannot, in the exercise of his discretion or otherwise, do anything H

670 SUPREl'v!E COURT REPORTS [2006 I I S.C.R.

A what is prohibited to be done. The Constitution enjoins upon the Governor that after the conclusion of elections, every possible attempt is made for formation of a popular Government representing the will of the people expressed through the electoral process. If the Governor acts to the contrary by creating a situation whereby a party is prevented even to stake a claim and recommends dissolution to achieve that object, the only inescapable inference to be drawn is that the exercise of jurisdiction is wholly illegal and unconstitutional. We have already referred to the Governor report dated 21st May, 2005, inter alia, stating that 17-18 MLAs belonging to LJP party are moving towards JDU / which would mean JOU may be in a position to stake claim to forn1 the Government. The further assumption that the move of the said members was itself indicative of various allurements having been offered to them and on that basis drawing an assumption that the claim that may be staked to form a Government would affect the constitutional provisions and safeguards built therein and distort the verdict of the people would be arbitrary. This shows that the approach was to stall JDU from staking a claim to form the Government. D At that stage, such a view cannot be said to be consistent with the provisions of Tenth Schedule. In fact, the provisions of the said Schedule at that stage had no relevance. It is not a case of ·assumption', or 'perception' as to the provisions of Constitution by the Governor. It is a clear case where attempt was to somehow or the other prevent the formation of a Government by a political party - an area wholly prohibited in so fa,r as the functions, duties and obligations of the Governor are concerned. It was thus a Wholly unconstitutional act.

It is true as has been repeatedly opined in various reports and by various constitutional experts that the defections have been a bane of the Indian j ~ Democracy but, at the same time, it is to be remembered that the defections have to be dealt with in the manner permissible in law.

If a political party with the support of other political party or other MLA' s stakes claim to form a Government and satisfies the Governor about its majority to form a stable Government, the Governor cannot refuse formation of Government and override the majority claim because of his subjective assessment that the majority was cobbled by illegal and unethical means. No such power has been vested with !he Governor. Such a power would be . --- against the democratic principles of majority rule. Governor is not an autocratic political Ombudsman. If such a power is vested in the Governor and/or the • President, the consequences can be horrendous. The ground of ma! H administration by a State Government enjoying majority is not available for -

RAMESHWARPRASADv. U.0.1.[SABHARWAL,CJ.] 671 invoking power under Article 356. The remedy for corruption or similar ills and evils lies elsewhere and not in Article 356(1). In the same vein, it has to be held that the power under Tenth Schedule for defection lies with the Speaker of the House and not with the Governor. The power exercised by the Speaker under the Tenth Schedule is of judicial nature. Dealing with the question whether power of disqualification of members of the House vests exclusively with the House to the exclusion of judiciary which in Britain was based on certain British legislature practices, as far as India is concerned, it was said in Kihoto 's case that :

"It is, therefore, inappropriate to claim that the det.erminative jurisdiction of the Speaker or the Chairman in the Tenth Schedule is not a judicial power and is within the non-justiciable legislative area."

For all the aforesaid reasons, the Proclamation dated 23rd May, 2005 F is held to be unconstitutional.

POINT N0.3 : If the answer to the aforesaid questions is in affirmative, is it necessary to direct status quo ante as on 7th March, 2005 or 4th March, 2005? G As a consequence of the aforesaid view on point no. 2, we could have -( made an order of status quo ante as prevailing before dissolution of Assembly. However, having regard to the facts and the circumstances of the case, in terms of order of this Court dated 7th October, 2005, such a relief was declined. Reasons are the larger public interest, keeping in view the ground H

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

A realities and taking a pragmatic view. As a result of the impugned Proclamation, the Election Commission of India had not only made preparations for the four phase election to be conducted in the State of Bihar but had also issued Notification in regard to first two phases before conclusion of arguments. Further, in regard to these two phases, before 7th October, 2005, even the last date for making nominations and scrutiny thereof was also over. In respect of l st phase of election, even the last date for withdrawal of nominations also expired and polling was fixed for I 8th October, 2005. The election process had been set in motion and was at an advanced stage. Judicial notice could be I taken of the fact that considerable amount must have been spent; enormous preparations made and ground works done in the process of election and that too for election in a State like the one under consideration. Having regard to these subsequent developments coupled with numbers belonging to different political parties, it was thought fit not to put the State in another spell of uncertainty. Having regard to the peculiar facts, despite unconstitutionality of the Proclamation, the relief was moulded by not directing status quo ante and consequently permitting the completion of the ongoing election process with the fond hope that the electorate may again not give fractured verdict \ and may give a clear majority to one or other political party the Indian electorate possessing utmost intelligence and having risen to the occasion on various such occasions in the past.

POINT N0.4: What is the scope of Article 361 granting immunity to the Governor?

By order dated 8th September, 2005, we held that the Constitution of India grants immunity to the Governor as provided in Article 361.

F Article 361 (I), inter alia, provides that the Governor shall not be answerable to any Court for the exercise and performance of the powers and duties of his office or for any act done or purported to be done by him in the exercise and performance of those powers and duties. We accepted the submissions made on behalf of the respondents that in view of this Article notice could not be issued to the Governor, at the same time, further noticing G that the immunity granted does not affect the power of this Court to judicial scrutinise attack made on the Proclamation issued under Article 356(1) of the Constitution of India on the ground of ma/afides or it being ultra vires and that it would be for the Government to satisfy the Court and adequately meet

H such ground of challenge. A ma/a fide act is wholly outside the scope of the power and has no existence in the eyes of the law. We, further held that the ..

/ >- RAMESHWARPRASADv. U.0.1. [SABHARWAL,CJ.] 673

expression 'purported to be done' in Article 361 does not cover acts which are ma/a fide or ultra vires and thus, the Government supporting the Proclamation under Article 356(1) shall have to meet the challenge. The immunity granted under Article 361 does not mean that in the absence of Governor, the grounds of ma/a fide or being ultra vires would not be examined by the Court. This order was made at the stage when we had not examined the question whether the exercise of power by the Governor was ma/a fide or ultra vires or not. This question was argued later.

In our order dated 8th September, 2005 while giving the brief reasons we stated that detailed reasons will be given later.

Article 361 (I) which grants protection to the President and the Governor c reads as under :

"361. Protection of President and Governors and Rajpramukhs.--{I) The President, or the Governor or Rajpramukh of a State, shall not be answerable to any court for the exercise and performance of the D I powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties :

Provided that the .conduct of the President may be brought under review by any court, tribunal or body appointed or designated by either House of Parliament for the investigation of a charge under article 61: Provided further that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Government of India or the Government of a State.

(2) No criminal proceedings whatsoever shall be instituted or continued against the President, or the Governor of a State, in any court during his term of office.

(3) No process for the arrest or imprisonment of the President, or the Governor of a State, shall issue from any court during his term of office. G (4) No civil proceedings in which relief is claimed against the President, or the Governor of a Slate, shall be instituted during his term of office in any court in respect of any act done or purporting to be done by him in his personal capacity, whether before or after he entered upon his office as President, or as Governor of such Stale, H

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

A until the expiration of two months next after notice in writing has been delivered to the President or the Governor, as the case may be, or left at his office stating the nature of the proceedings, the cause of action therefor, the name, description and place of residence of the party by whom such proceedings are to be instituted and the relief which he claims." B A plain reading of the aforesaid Article shows that there is a complete bar to the impleading, and issue of notice to the President or the Governor inasmuch as they are not answerable to any Court for the ex1ircise and performance of their powers and duties. Most of the actions are taken on aid C and advice of Council of Ministers. The personal immunity from answerability provided in Article 361 does not bar the challenge that may be made to their actions. Under law, such actions including those actions where the challenge may be based on the allegations of malajides are required to be defended by Union of India or the State, as the case may be. Even in cases where the personal malajides are alleged and established, it would not be open to the D Governments to urge that the same cannot be satisfactorily answered because of the immunity granted. In such an eventuality, it is for the respondent \ defending the action to satisfy the Court either on the basis of the material on record or even filing the affidavit of the person against whom such allegation of personal malafides are made. Article 361 does not bar filing of an affidavit if one wants to file on his own. The bar is only against the power of the Court to issue notice or making the President or the Governor answerable. In view of the bar, the Court cannot issue direction to President or Governor for even filing of affidavit to assist the Court. Filing of an affidavit on one's own volition is one thing than issue of direction by the --! Court to file an affidavit. The personal immunity under Article 361 (I) is complete and, therefore, there is no question of the President or the Governor being made answerable to the Court in respect of even charges of malajides.

In Union Carbide Corporation, etc., etc. v. Union of India, etc. etc., [ 199 I] 4 SCC 584, dealing with Article 361 (2) of the Constitution, Justice Venkataha!liah referred to the famous case of Richard Nixon [(1982) 457 US G 731) about theoretical basis for the need for such immunity. It was said

"Article 361(2) of the Constitution confers on the President and the Governors immunity even in respect of their personal acts and enjoins that no criminal proceedings shall be instituted against them during their term of office. As to the theoretical basis for the need for such H immunity. the Supreme Court of the United States in a case concerning

I f RAMESHWARPRASADv. U.0.1. [SABHARWAL,CJ.] 675

"-, immunity from civil liability (Richard Nixon v. Ernest Fitzgerald, 457 A US 731 : 73 Law Ed 2d 349) said:

" .....This Court necessarily also has weighed concerns of public policy, especially as illuminated by our history and the structure ,, of our Government... .. " .... .In the case of the President the inquiries into history and policy though mandated independently by our case, tend to converge. Because the Presidency did not exist through most of the development of common law, any historical analysis must draw its evidence primarily from our constitutional heritage and structure. Historical inquiry thus merges almost at its inception c with the kind of "public policy" analysis appropriately undertaken by a federal court. This inquiry involves policies and principles "'- .' that may be considered implicit in the nature of the President's office in a system structured to achieve effective Government under, a constitutionally mandated separation" of powers." D 'f .> (L Ed p.367)

" .... .In view of the special nature of the President's constitutional office and functions, we think it appropriate to recognise absolute Presidential immunity from damages liability for acts within the "outer perimeter" of his official responsibility. E Under the Constitution and laws of the United States the President has discretionary responsibilities in a broad variety of areas, many of ~ )- them highly sensitive. In many cases it would be difficult to determine which of the President's innumerable "functions" encompassed a particular action ..... " F

A division Bench of the Bombay High Court in the case of Shri Pratapsing Raojirao Rane & Ors v. The Governor of Goa & Ors., AIR (1999) Bombay 53 has correctly held that in respect of his official acts, the Governor is not answerable to the Court even in respect of charge of ma/a G fide and that in such an eventuality the Governor cannot be said to be under the duty to deal with the allegations of ma/a fide. The Constitutional Law of India, 4th Edn. by H.M.Seervai has been rightly relied upon in the said judgment. The observations made by full Bench of the Madras High Court in K.A. Mathialagan & Ors. v. The Governor of Tamil Nadu & Ors. AIR (1973) Madras 198 that the Governor would be under duty to deal with H

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

A allegations of ma/a fide in order to assist the Court has been rightly described ,:- in Seervai' s commentary being in direct conflict with the complete personal immunity of the Governor.

The words 'purported to be done' are of wide amplitude. In Biman Chandra v. Governor, West Bengal, AIR (1952) Calcutta 799 it was held that B Article 361 affords immunity in respect of its exercise and performance of the power and duties of the office and any act done or purported to be done by him in exercise and performance of those powers and duties.

In G.D.Karkare '" TL.Shevde, AIR (1952) Nagpur 330 construing the expression 'purporting to be done' it was held that any act, though not done in pursuance of the Constitution, may nevertheless be accorded this protection if the act professes or purports to be done in pursuance of the Constitution. It was further explained that though the Governor is not amenable to the process of the Court but it cannot be said that the High Court cannot examine his action and grant relief in the absence of authority making the decision. D In State v. Kawas Manekshaw Nanavati, AIR (1960) Bombay 502 full Bench of the High Court held that Article 361 only gives personal protection to the Governor. It is not necessary that the Governor should be a party to the proceeding. Validity of actions can be considered and decided in the absence of the Governor. In The State of West Bengal and Ors. v. Sallendra E Nath Bose, AIR (19640 Calcutta 184] it was held that a citizen is not without redress even though he cannot implead the Governor as a party but can be given relief.

The position in law, therefore, is that the Governor enjoys complete F immunity. Governor is not answerable to any Court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and rerformance of those powers and duties. The immunity granted by Article 361 (I) does not, however, take away the power of the Court to examine the validity of the action including on the ground of malajides. G In view of the above, while holding the impugned Proclamation dated 23rd May, 2005 unconstitutional, we have moulded the relief and declined to grant status quo ante and consequentially permitted the completion of ongoing election process.

H All petitions are disposed of accordingly.

RAMESH WAR PRASAD v. U.0.1. [BALAKRISHNAN, J.) 677

K.G. BALAKRISHNAN, J. I have had the advantage of reading in'draft A the judgment prepared by Hon'ble the Chief Justice of India, Shri Y. K. Sabharwal and I find myself unable to agree with the decision on point No. 2 formulated in the judgment. On all other points, I gratefully adopt the exposition of, law and agree with the decisiOn proposed by the learned Chief Justice. Point No. 2 is as follows :-" B (1) ................................................ ..

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

Few factual details are necessary to decide the question. The election c to the Bihar State Legislature was held in the month of February, 2005 and the results of the election were declared on 23rd March, 2005. The names of the members elected to the Bihar State Legislature were notified by the Election Commission. Certain political groups and political parties participated and the National Democratic Alliance (for short 'NOA'), a coalition comprising - Bhartatiya Janata Party (for short 'BJP')·and Janata Dal (United) (for short D ,J1 •'JO(U)") secured the largest support of MLAs. The_ party-wise strength in the Assembly was as follows :- "(1) NDA 92 (2) RID 75 E (3) UP ·~

(4) Congress (I) 10 (5) CPI (ML) 07 (6) Samajwadi Party 04 (7) NCP 03 F (8) Bahujan Samaj Party 02 (9) Independents 17 (10) Others 09"

In order to secure an absolute majority to form a Government in the G State ofBihar, support of 122 Members of Legislative Assembly was required. -i NOA could secure only 92 seats and no other political parties or group came forward to support NOA to form a Government. RJD was also in the same dilemma. UP, another political party which was under the leadership of Shri Ram Vilas Paswan had .secured 29 seats in the State Legislature. This political H

678 SUPREME COURT REPOP.TS [2006] I S.C.R.

A party did not extend support either to NOA or RJO. As none could form a I' ,, Government, Governor of the State of Bihar sent a Report on 6th March, 2005 to the President of India recommending President's Rule in the State and for keeping the Assembly in suspended animation for the time being. On 7th March, 2005 the President's Rule was imposed in the State of Bihar and the Assembly was kept in suspended animation. This order passed by the President B of India under Article 356 of the Constitution on 7th March, 2005 is not challenged in most of the petitions before us. In one of the petitions, the Notification issued on 7th March, 2005 under Article 356 of the Constitution I. is also challenged but the petitioner could not substantiate his contentions and the very challenge itself is highly belated. c While the Assembly was in suspended animation, the two political groups, the NOA which had secured 92 seats and the RJO which had secured 75 seats in the State Legislature made attempts to form a Government in the State of Bihar. It appears that the LJP, which had secured 29 seats in the State Legislature was not prepared to extend support either to NOA or RJO. When D the (Vote on Account) Bill of 2005 for the State of Bihar was presented ~ before the Parliament, the Home Minister made a statement to the effect that the President's Rule would not be continued for a long time and they would have been happy if a Government had been formed by the elected representatives and that the elected representative should talk to each other and create a situation in which it becomes possible for them to form a E Government. The discussion must have been continued between the political parties.

On 27th April, 2005 the Governor of Bihar sent a Report to the President of India wherein he stated that he had received Intelligence Reports to the effect that some elected representatives were said to have been approached by factions within the party and outside the party with various allurements like money, castes and posts etc. and the same was a disturbing trend. He also cautioned that if the trend is not arrested immediately, the political instability would further deepen and the horse .. trading would be indulged in by various political parties and it would not be possible to contain the situation and the people should be given a fresh opportunity to elect their representatives.

It seems that pursuant to letter dated 27th April, 2005 sent by the Governor of Bihar to the President, no decision was taken by the President • for dissolution of the State Assembly. Again on 2 Ist May, 2005 the Governor of Bihar sent a letter to the President and this is the crucial document on the H

RAMESHWAR PRASAD v.U.0.1. [BALAKRISHNAN. J.] 679

·~ basis of which the Bihar State Legislative Assembly was dissolved under~ A Article 174 (2) (b) of the Constitution. The letter is as follows :-"

"Respected Rashtrapati Jee,

I invite a reference to my D.O. letter No. 52/GB dated 27th April, 2005 through which I had given a detailed account of the attempts B made by some of the parties notably the JD-U and BJP to cobble a majority and lay a claim to form a Government in the State. I had informed that around 16-17 MLAs belonging to LJP were being wooed by various means so that a split could be effected in the LJP. Attention . was also drawn to the fact that the RJD MLAs had also become restive in the light of the above moves made by the JDU. c As you are aware after the Assembly Elections in February this year, none of the political parties either individually or with the then pre-election combination or with post-election alliance combination could stake a claim to form a popular Government since they could not claim a support of a simple majority of 122 in a House of 243 D and hence the President was pleased to issue a proclamation under Article 356 of the Constitution vide notification No. GSR 162 (E) dated 7th March, 2005 and the Assembly was kept in suspended animation.

The reports received by me in the recent past through the media and also through meeting with various political functionaries, as also intelligence reports, indicate a trend to win over elected representatives of the people. Report has also been received of one of the LJP MLA, who is General Secretary of the party having registered today and also 17-18 more perhaps are moving towards the JD-U clearly indicating that various allurements have been offered which is very disturbing and alarming feature. Any move by the break away faction to align with any other party to cobble a majority and stake claim to form a Government would positively affect the Constitutional provisions and safeguards built therein and distort the verdict of the people as shown by the results in the recent Elections. If these attempts are allowed it would be amounting to tampering with Constitutional provisions.

Keeping the above mentioned circumstances, I am of the considered view that if the trend is not arrested immediately, it may not be H

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

A possible to contain the situation. Hence in my view a situation has y arisen in the State wherein it would be desirable in the interest of the State that the Assembly presently kept in suspended animation is dissolved, so that the people/electorate can be provided with one more opportunity to seek the mandate of the people at an appropriate time to be decided in due course." B The gist of the letter written by the Governor is that political parties either individually or with the then pre-election combination or with post- election alliance combination could not stake a claim to form a popular Government since none could claim support of a simple majority of 122 in C a House of 243 members and, therefore, the Preside'!t issued a Proclamation under Article 356. The Governor further stated that he had received information through media and reports gathered through meeting with various political functionaries that there had been a trend to win over elected representatives of the people and 17-18 MLAs were moving towards JD(U) and various allurements had been offered to them. Governor also if!dicated that any move by the break-away faction to align with any other party, to cobble a majority and stake a claim to form a Government would positively affect the Constitutional provisions and safeguards provided therein. The Governor was of the view that if the Assembly is dissolved, the political parties would get another opportunity to seek a fresh mandate of the people. From the letter, it is clear that no political party or group or alliance had approached the Governor claiming absolute majority in the State Legislature nor did they try to form a Government "ith the help of other political parties or independent MLAs.

The Report of the Governor was received by the Union of India on F 22nd May, 2005. The Union Cabinet which met at about 11.00 P.M., took a decision and sent a fax message to the President of India recommending dissolution of the Legislative Assembly of Bihar. On 23rd May, 2005 the Bihar Assembly was dissolved and that order of dissolution is under challenge before us.

G We heard learned Attorney General, Mr. Milon K. Banerji; learned Solicitor General, Mr. Ghoolam E. Yahanvati; learned Additional Solicitor General, Mr. Gopal Subramaniam; Mr. Soli Sorabjee, learned Senior Advocate; Mr. P.S. Narasimha, learned counsel for the petitioner and Mr. Viplav Sharma, Advocate, who appeared in person. Many other counsel who were supporting H the petitioner submitted their written arguments. Most of the arguments

, RAMESH WAR PRASAD v. U.0.1. [BALAKRISHNAN, J.] 681

-........... centered around the decision rendered by this Hon'ble Court in S.R. Bommai A and Ors. v. Union of India and Ors., [1994] 3 SCC I. The decision in S.R. Bommai's case was rendered by a Nine Judge Bench and several opinions were expressed. Justice B.P. Jeevan Reddy gave a separate judgment with which Justice S.C. Agrawal agreed. Justice A.M. Ahmadi, Justice J.S. Verma, Justice K. Ramaswamy and Justice Yogeshwar Dayal agreed with certain B propositions given by Justice B.P. Jeevan Reddy. Although there was a broad concurrence with the views expressed by Justice Jeevan Reddy, Justice Sawant & Kuldip Singh, JJ. struck a different note and their approach, reasoning and conclusion are not similar.

In order to understand the scope and ambit of the decision in S.R. C Bommai 's case it is necessary to see the earlier decision in State of Rajas than and Ors. v. Union of India and Ors., reported in [ 1977] 3 SCC 592. The facts which had led to the filing of that case was that in March, 1977 elections were held to the Lok Sabha and the result of the elections was interpreted to mean that the Congress party had lost people's mandate. The Union Home Minister sent a letter to the Chitf Ministers of certain States asking them to advise their respective Governors to dissolve the Assemblies and seek a fresh mandate from the people. The letter together with the statement made by the Union Law Minister was treated as a threat to dismiss those State Governments. They approached this Hon'ble Court by filing suits and writ petitions. In that case, six opinions were delivered by the Seven Judge Bench. Though all of them agreed that the writ petitions and suits be dismissed, the reasonin'g were not uniform. Some of the opinions in that judgment can be briefly stated as follows :-

Bhagwati, J. on behalf of Gupta, J and himself, while dealing with the "satisfaction of the President" prior to the issuance of the Proclamation under F Article 356 (I), stated as follows :-

"So long as a question arises whether an authority under the Constitution has acted within the limits of its power or exceeded it, it can certainly be decided by the Court. Indeed it would be its Constitutional obligation to do so ........ This Court is the ultimate G interpreter of the Constitution and to this Court is assigned the delicate task of determining what is the power conferred on each branch of Government, whether it is limited, and if so, what are the limits and whether any action of that branch transgresses such limits. It is for this Court to uphold the Constitutional values and to enforce the H

682 SUPREME COURf REPORTS (20061 I S.C.R.

A Constitutional limitations. That is the essP.nce of the Rule of Law ....." r" He went on to say :-

" .... Here the only limit on the power of the President under Art. 356, clause (I) is that the President should be satisfied that a situation has arisen where the Government of the State cannot be carried on in B accordance with the provisions of the Constitution. The satisfaction of the President is a subjective one and cannot be tested by reference to any objective tests. It is deliberately and advisedly subjective because the matter in respect to which he is to be satisfied is of such a nature that its decision must necessarily be left to the executive c branch of Government. There may be a wide range of situations which may-arise and their political implications and consequences may have to be evaluated in order to decide whether the situation is such that the Government of the State cannot be carried on in accordance with the provisions of the Constitution. It is not a decision which can be based on what the Supreme Court of United States has described as 'judicially discoverable and manageable standards'. It would largely be a political judgment based on assessment of diverse and varied factors, fast changing situations, potential consequences, public reaction, motivations and responses of different classes of people and their anticipated fufure behaviour and a host of other considerations ..... "

He further stated :-

" ..... .// mus/ of course be conceded that in most cases it would be difficult, if not impossible, to challenge the exercise of power under Art. 356, clause ( 1) even on this limited ground, because the facts and circumstances on which the satisfaction is based would not be known. but where ii is possible, the existence of the satisfaction can always be challenged on !he ground that ii is mala fide or based on wholly extraneous and irrelevant grounds. .. This is the narrow minimal area in which the exercise of power under Article 356, Clause(/) is subject to judicial review and apart from it. it cannot rest with the Court lo challenge the sati~factwn of the President that the situation contemplated in that clause exists".

(Emphasis supplied)

H Beg, CJ was of the opinion that by virtue of Article 356 and Article 74(2)

RAMESHWAR PRASAD v.U.0.1. [BALAKRISHNAN, J.] 683 of the Constitution, it is impossible for the court to question the 'satisfaction' A of the. President. It is to be decided on the basis of only those facts as may have been admitted or placed before the court. Beg CJ was Jiso of the opinion that the language of Article 356 and the practice since 1950 shows that the Central Government can enforce its will against the State Government with respect to the question as to how the State Government should function and should hold reigns of power. But these views were not accepted by the majority. YV Chandrachud, J, speaking on the scope of judicial review held ), that if 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, if any other view is reasonably possible." As regards the facts disclosed in the case, the learned Judge was of the view that the facts disclosed by the Central Government in its counter affidavit cannot be said to be irrelevant to Article

356. Goswami and Untwalia, JJ. gave separate opinions and expressed the D .--{ view that the facts stated cannot be said to be e·xtraneous or irrelevant. j ·.

From the dicta laid down in State of Rajasthan.'s case, it is clear that the power of judicial review could be exercised when an order passed under Article 356 is challenged before the court on the ground of ma/a jides or upon wholly extraneous or irrelevant grounds and then only the court would have E the jurisdiction to examine it. The plea raised by the learned Attorney General that a proclamation passed under Article 356 is legislative in character and outside the ken of judicial scrutiny was rejected by the majority of the Judges ·t . in State of Rajasthan 's case.

On a careful examination of the various opinions expressed in S.R F Bommai 's case, it is clear that the majority broadly accepted the dict:i laid down in Rajasthan 's case. It was also held that the principles of judicial review that are to be applied when an administrative action is challenged cannot be applied when a challenge is made against a Presidential order passed under Article 356. G P.B. Sawant, J. speaking for himself ~nd Kuldip Singh, J. took a different view and held that the same principles would apply when a proclamation under Article 356 also is challenged. Some of the observations made by the learned Judges would make the position clear.

In S. R Bommai 's case, a plea was raised that the principles of judicial H

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

A review as laid down in Barium Chemicals f.td & Anr. v. The Company Law Board and Ors.. [ 1966] Suppl. 3 SCR 311 are applicable and the subjective satisfaction of the President as contemplated under Article 356 could be examined. In the Barium Chemical's case, the Corppany Law Board under Section 237(b) of the Companies Act appointed four inspectors to investigate the affa~rs of the appellant-company on the ground that the Board was of the opinion that there were circumstances suggesting that the business of the appellant-company was being conducted with intent to defraud its creditors, members or any other persons and that the persons concerned in the management of the affairs of the company had in connection therewith, been guilty of fraud, misfeasance and other misconduct towards the company and its members. The company filed a writ petition challenging the said order. In reply to the writ petition, the Chairman of the Company Law Board filed an affidavit and contended that there was material on the basis of which the order was issued and that he had himself examined this material and formed the necessary opinion within the meaning of the said Section 237(b) of the D Companies Act. The majority of the Judges held that the circumstances disclosed in the .affidavit must be regarded as the only material on the basis ,_ of which the Board formed the opinion before ordering an investigation under Section 237(b) and that the circumstances could not reasonably suggest that the company was being conducted to defraud the creditors, members or other persons and, therefore, the impugned order was held ultra vires the section. E Hidayatullah, J. as he then was, stated that the power under Section 237(b) is discretionary power and the first requirement for its exercise is the honest formation of an opinion that an investigation is necessary and the next requirement is that there are circumstances suggesting the inferences set out in the section. An action not based on circumstances suggesting an inference F of the enumerated kind will not be valid. Although the formation of opinion is subjective, the existence of circumstances relevant to the inference as the sine quo non for action must be demonstrable. If their existence is questioned, it has to be proved at least prima facie. It is not sufficient to assert that the circumstances must be such as to lead to conclusions of action definiteness.

G These principles were also applied in some of the later decisions where the administrative action was challenged before the court. (See M.A. Rashid & Ors. v. State of Kera/a, [ 1975] 2 SCR 93 ).

There was also a plea that the principles of judicial review enunciated by Lord Diplock in "Council of Civil Services Union & Ors. v. Minister for H Civil Services. (1985) AC 374 GCHQ would apply when Presidential

RAMESH WAR PRASAD v. U.O.l. [BALAKRISHNAN, J.] 685

Proclamation under Article 356 is challenged. This plea also was not accepted A by the majority of the Judges in S.R. Bommai's case.

The broad view expressed by Sawant. J., to which Kuldip Singh, J. also agreed, could be gathered from the observations on page 102 in the S. R. Bommai 's case which is to the following effect: B "From these authorities, one of the conclusions which may safely be drawn is that the exercise of power by the President under Article 356(1) to issue Proclamation is subject to the judicial review at least to the extent of examining whether the conditions precedent to the issuance of the Proclamation have been satisfied or not. This examination will necessarily involve the scrutiny as to whether there c existed material for the satisfaction of the President that a situation had arisen in which the Government of the State could not be carried on in accordance with the provisions of the Constitution......... .

In other words, the President has to be convinced of, or has to have D sufficient proof of information with regard to or has to be free from doubt or uncertainty about the state of things indicating that the situation in question has arisen. Al1hough, 1herefore, Lhe sufficiency or otherwise of the material cannol be queslioned, the legilimacy of inference drawn from such ma/erial is cer/ainly open to judicial review. E The above opinion expressed by Sawant J., to which Kuldip Singh, J. also agreed was not fully accepted by other Judges. B.P. Jeevan Reddy, J. speaking for himself and Agrawal, J., held that the proclamation under Article 356 is liable to judicial review and held that the principles of judicial review, which are applicable when an administrative action is challenged, cannot be F applied stricto sensu.

At the end of the judgment, Jeevan Redddy, J. summarized the conclusions and conclusions (6) and (7) speak of the scope and ambit of judicial review. Clause (l), (2), (6) and (7) are relevant for the purpose of the present case. These are as follows: G (I) Article 356 of the Constitution confers a power upon the President to be exercised on!y where he is satisfied that a situation has arisen where the government of a State cannot be carried on in accordance with the provisions of the Constitution, Under our Constitution, the H

686 SUPREME COURT REPORTS [2006 J I S.C.R.

A power is really that of the Union Council of Ministers with the Prime ,. ' Minister at its head. The satisfaction contemplated by the Article is subjective in nature.

(2) The power conferred by Art. 356 upon the President is a conditioned power. It is not an absolute power. The existence of B 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 t_ consideration at the hands of all concerned.

(6) Article 74(2) merely bars an enquiry into the question whether any, and if so, what advice was tendered by the ministers to the ..,. President. It does not bar the court from calling upon the Union .. Council of Ministers (Union of India) to disclose to the court the material upon which the President haJ formed the requisite satisfaction. The material on the basis of which advice was tendered does not become part of the advice. Even if the material is looked into by or shown to the President, it does not partake the character of advice. Article 74(2) and S. 123 of the Evidence Act cover different fields. It may happen that while defending the proclamation, the minister or the concerned official may claim the privilege under S. 123. If and .( when such privilege is claimed, it will be decided on its own merits in accordance with the provisions of S. 123.

(7) The proclamation under Article 356( I) is not immune from judicial review. The Supreme Court or the High Court can strike down the proclamation if it is found to be ma/a fide or based un whully irrelevant or extraneuus 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 intu the correctness of the material or its adequacy. Its enquiry is limited to S<-'e whetha the

RAMESH WAR PRASAD v.U.0.1. [BALAKRISHNAN. J.] 687 ... material was relevant to the action. Even if part of the material is A "" irrelevant, the court cannot interfere so long as there is some material which is relevant to the action taken.

[Emphasis supplied]

Justice Ratnavel Pandian agreed with Jeevan Reddy J. on his conclusions on all the above points. He disagreed with only Clause (3) of the summary of conclusions. Clause (3) deals only with the power of dissolving the .~ legislative assembly which shall be exercised by the President only after proclamation under clause {I) of Article 356 is approved by both the Houses of Parliament and until such approval the President can only suspend the Legislative Assembly by suspending the provisions of the Constitution relating to the Legislative Assembly.

J.S. Verma, Ahmadi and Ramaswami, JJ. took a different note. Ahmadi, J. was of the opinion that the court cannot interdict the use of the constitutional ,..( power conferred on the President under Article 356 unless the same is shown D i to be malajide. Before exercise of the Court's jurisdiction, sufficient caution must be administered and unless a strong and cogent prima facie case is made out, the President, i.e. the executive must not be caJled upon to answer the charge. Ramaswamy, J. was also of the same opinion.

Verma, J. was of the view that the test for adjudging the validity indicated in the The Barium Chemicals Ltd. 's case and other cases of that category have no application for testing and invalidating a proclamation issued under Article 356. He was of the opinion that only cases which permit application of totally objective standards for deciding whether the constitutional machinery has failed are amenable to judicial review and the remaining cases wherein there is any significant area of subjective satisfaction dependent on some imponderables or inferences are not justiciable because there are no judicially manageable standards for resolving that controversy and those cases are subject only to political scrutiny and correction for whatever its value in the 'existing political scenario.

It is important to note that in S. R. Bommai's case, majority of Judges G held, that as regards the imposition of President's Rule in Karnataka, Meghalaya and Nagaland, the Presidential proclamations were unconstitutional. The facts which ultimately led to the Presidential proclamation under Article 356(\) in two States are significant to understand the law laid down in S.R. Bommai's case. H

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

A In the case of Karnataka, the President dismissed the government and dissolved the State Assembly. The Janta Party was ruling the State and it had fonned the Government under the leadership ofShri S.R. Bommai. One member of the legislature defected from the party and presented a letter to the Governor withdrawing his support to the Ministry. On the next day, he B presented to the Governor 19 letters allegedly signed by 17 Janta Dal legislators, one independent but associate legislator and one legislator belonging to Bhartiya Janata Party which was supporting the Minstry, withdrawing their support to the Minstry. On receipt of these letters, the Governor is said to have called the Secretary of the Legislative Department and got the authenticity of the signatures on the said letters verifled. Governor C then 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 he referred to the 19 letters received by him and in view of withdrawal of support by the said legislators , the Chief Minister Shri Bommai did not command a majority m the Assembly and no other political party was in a position to fonn the government and, therefore, recommended to the President D to exercise power under Article 356( I). The Governor did not ascertain the view of the Chief Minister, Shri Bommai, and on the next day, seven out of the nineteen legislators who had allegedly written the said letters to the Governor made a complaint that their signatures were obtained by misrepresentation. The Governor also did not take any steps directing the E Chief Minister to seek a vote of confidence in the legislature nor met any of the legislators who had allegedly defected from the Janta Party. It was in this background that the proclamation issued by the President on the basis of the said report of the Governor and in the circumstances so obtaining, equally suffered from malafides. The duly constituted Ministry was dismissed on the basis of the material which was no more than the ipse dixit of the Governor. F In the case of Meghalaya, Meghalaya United Parliamentrary Party (MUPP) which had a majority in the Legislative Assembly fonned the government in March, 1990 under the leadership of Shri B.B. Lyngdoh. One Kyndiah Arthree was at the relevant time the Speaker of the House. He was G elected as the leader of the opposition known as United Meghalaya Parliamentary Forum (UMPF). On his election, Shri Arthree claimed support of majority of the members in the Assembly and requested the Governor to invite him to fonn the government. The .Governor asked the Chief Minister Shri Lyngdoh to prove his majority on the floor of the House. A special sessions was convened on 7.8.91 and a Motion of Confidence in the Ministry H was moved. Thirty Legislators supported the Motion and 27 voted against

RAMESHW AR PRASAD v. U.0.1. [BALAKRISHNAN. J.) 689

690 SUPREME COURT REPORTS (20061 I S.C.R.

A In the case ofNagaland also, similar si!Uation had arisen. The facts are not necessary to be stated in detail.

In all thes.: three cases where the Presidential Proclamations issued under Article 356 were quashed by this Court, were States wherein the Government was functioning on the strength of the majority, whereas in the B instant case the decision of dissolution of the Assembly was evidently passed on the report of the Governor when the Assembly was in suspended animation and there was no democratically elected Government in the State and, therefore, there was no question of testing the majority of the Government on the floor of the Assembly. c From the S. R. Bommai 's decision, it can be discerned that the majority was of the view that so far as the scope and ambit of judicial review is very limited when a proclamation under Article 356 is questioned and similar parameters would apply in a case where a Notification is passed under Article 174(2) (b) dissolving the State Legislative Assembly. The plea raised by the D Additional Solicitor General, Shri Gopal Subramaniam that the Notification dissolving Assembly is of a legislative character and could be challenged only on the ground of absence of legislative compctcn~.: or ultra vires of the Constitution, cannot be accepted. This plea was raised ir1 Rujasthan 's case as well as in S. R. Bommai's case, but it was rightly rejected in both the cases. E However, the power exercised by the President is exceptional in character and it cannot be treated on par with an administrative action and grounds available for challenging the administrative action cannot be applied. In view of Article 74(2) of the Constitution, the court cannot go into the question as to what manner of advice was tendered by the Council of Ministers to the President. The power conferred on the President is not absolute; it has got checks and balances. It is true that the power exercised by the President is of serious significance and it sometime amounts to undoing the will of the people of the State by dismissing the duly constituted Government and dissolving the duly constituted Legislative Assembly. Any misuse of such power is to be curbed if it is exercised for malu fide purposes or for wholly extraneous reasons based on irrelevant grounds. The Court can certainly go into the materials placed by the Governor which led to the decision of dissolving the State Assembly.

The Presidential proclamation dissolving the Bihar State Legislative Assembly was issued pursuant to two reports sent in by the Governor. It may be remembered that Article 356( I) Proclamation imposing President's Rule was

RAMESHWAR PRASADv.U.0.1. [BALAKRISHNAN, JJ 691

issued on 7th March, 2005. Thereafter, on 22nd April, 2005, the Governor sent A a report wherein he stated that none of the political parties. either individually or with the then pre-election combination or with post-election alliance, could stake a claim to form a popular Government wherein they could claim support of a simple majority of 122 in a House of243. The Governor had also indicated that there are certain newspaper reports and other reports gathered through B meeting with different parties' functionaries that some steps are being taken to win over the elected representatives of the people through various allurements like money, caste, post, etc. Thereafter, on 21.5.2005, the Governor of Bihar sent another report and based on that, the Bihar State Assembly was dissolved on 23rd May, 2005. In the report dated 21st May, 2005, the Governor reiterated his earlier report that no party had approached him to form a C popular Government since nune could claim the support of a simple majority of 122 in a House. of 243. In that report, the Governor had also stated that 17/18, or more perhaps, LJP MLAs are moving tawards the JD(U)_a_nd that various allurements have been offe~ed to them and it was an alarming feature and the Governor was also of the opinion that it was positively affecting the D -( .... Constitutional provisions and safeguards built therein and distorted the verdict of the people.

The contention urged by learned ASG, Shri Gopal Subramaniam was that this is the material which was placed before the President before a Proclamation was issued under Article I74(2)(b) of the Constitution. It is important to note that the writ petitioners have no case that JD(U) or any other alliance had acquired majority and that they had approached the Governor staking their claim for forming a Government. No material is placed before \- us to show that the JD(U) or its alliance with BJP had ever met the Governor praying that they had got the right to form a Government. The plea of the petitioners' counsel is that they were about to form a Government and in order to scuttle that plan the Governor sent a report whereby the Assembly was dissolved to defeat that plan is without any basis. The Governor in his report stated that 17 or 18 members of the LJP had joined the JD(U)-BJP alliance, but no materials have been placed before us to show that they had, in fact, joined the alliance to form a Government. One letter has been produced by one of the petitior.'!rs and the same is not signed by all the MLAs and as regards some of them. some others had put their signatures. Therefore, it is incorrect to say that the Governor had taken steps to see that the Assembly 1

was dissolved hastily to prevent the formation of a Government under the leadership of the political party JD(U). If any responsible political party had an·y case that they had obtained majority support or were about to get a

692 SUPREME COURT REPORTS [2006 J I S.C.R.

A majority support or were in a position to form minority Government with the .,, ,. support of some political parties and if their plea was rejected by the Governor, the position would have been totally different. No such situation had been reached in the instant case. It is also very pertinent to note that the order for dissolution of the State Assembly was passed after about three months of the proclamation imposing the President's Rule was issued under Article B 356(1 ). When there was such a situation, the only possible way was to seek a fresh election and if it was done by the President, it cannot be said that it was a ma/a.fide exercise of power and the dissolution of the Assembly was wholly on extraneous or irrelevant grounds. It is also equally important that ' in Karnataka, Meghalaya and Nagaland cases, there was a democratically- c elected Government functioning and when there is an allegation that it had lost its majority in the Assembly, the primary duty was to seek a vote of confidence in the Assembly and test the strength on the floor of the Assembly. Such a situation was not available in the present case. It was clear that not a single political party or alliance was in a position to form the Go\ernment D and when the Assembly was dissolved after waiting for a reasonable period, "). the same cannot be challenged on the ground that the liuv.:rnor in his report • had stated that some horse-trading is going on and some MLAs are being won over by allurements. These are certainly facts to be taken into consideration by the Governor. If by any foul means the Government is formed, it cannot be said to be a democratically-elected Government. If Governor has got a E reasonable apprehension and reliable information such unethical means are being adopted by the political parties to get majority, they are certainly matters to be brought to the notice of the President and at least they are not irrelevant matters. Governor is not the decision-making authority. His report would be scrutinized by the Council of Ministers and a final decision is taken -f • F by t.he President under Article 174 of the Constitution. Therefore, it c~nnot be said that the decision to dissolve the Bihar State Legislative Assembly, is ma/a fide exercise of power based on totally i-relevant grounds.

Applying the parameters of judicial review of Presidential action in this regard, I do not think that the petitioners in these writ petitions have made G out a case for setting, aside the Notification issued by the President on 23rd May, 2005. The Writ Petitions are without any merit they are liable to be dismissed.

ARIJIT PASA YAT J. In the last few years the attack on actions of ' Governors in the matter of installation/dissolution of ministries has increased, H

RAMESH WAR PRASAD v. U.0.1. {PASA YAT. J.] 693 which itself is a disturbing feature. A Governor has been assigned the role of A a Constitutional sentinel and a vital link between the Union and the State. A Governor has also been described as a useful player in the channel of communication between the Union and the State in matters of mutual interest and responsibility. His oath of office binds him to preserve, protect and ... defend the Constitution of India, 1950 (in short 'the Constitution') and the .. law, and also to .de.vote himself to thei·service and the well being of the B . people of the State concerned. When allegations are made that he is partisan A- and/or is acting like an agent ofa political party, un-mind of his Constitutional duties, it naturally is a serious matter.

The cases at hand relate to acts of the Governor of Bihar. c Challenge in these writ petitions is to the constitutionality, legality and validity of a Notification GSR 333(E) dated 23.5.2005 of the Union of India in ordering dissolution of the Bihar Legislative Assembly. Writ Petition (C) No.257 of 2005 has. been filed by four persons who were elected to the dissolved Legislative Assembly. Petitioner No. l Shri Rameshwar Prasad was D elected as a candidate of the Bhartiya Janta Party (in short 'BJP'). Petitioner No.2 Shri Kishore Kumar was elected as an independent candidate. Petitioner No.3 Shri Rampravesh Rai was elected as a candidate of the Janta Dal United (in short 'JOU') while petitioner No. 4 Dr. Anil Kumar was elected as a candidate of the Lok Janshakti Party (in short 'LJP'). E Writ Petition (C) No.353 of 2005 has been filed by Smt. Purnima Yadav who was elected as an independent candidate. Writ Petition (C) No.258 of 2005 has been filed by Shri Viplav Sharma, an Advocate, styled as a Public Interest litigation.

All these writ petitions have been filed under Article 32 of the F Constitution. In Viplav Sharma' s Writ Petition in addition to the challenges made by the writ petitioners in other two writ petitions, prayer has been made for a direction to the Governor of Bihar to administer oath to all the elected members of the 13th Legislative Assembly of the State of Bihar and make such assembly functional, purportedly in terms of Articles 172 and 176 of the G Constitution and appoint the Chief Minister and Council of Ministers in terms of Article 164( I) of the Constitution. Further, consequential prayers have been made for a direction to the Election Commission of India (in short the 'Election Commission') not to hold fresh elections for the constitution of 14th State Legislative Assembly. It has also been prayed to direct stay the effect and operation of the purported report dated 22.5.2005 of the Governor H

694 SUPREME COURT REPORTS 12006] I S.C.R.

A of Bihar to the Union Cabinet inter-alia recommending the dissolution of the r Assembly and the Presidential Proclamation dated 7.3.2005 placing the 13th State Legislative Assembly under suspended animation and the Presidential Proclamation dated 23.5.2005. In essence, his stand was that since the State Legislative Assembly was yet to be functional there was no question of dissolving the same: Certain other prayers have been made for laying down B the guidelines and directions with which we shall deal with in detail later on. It is to be noted that by order dated 25. 7.2005 it was noted that Mr. Viplav Sharma had stated before the Bench hearing the matter that he does not press the prayers (i), (ii), (vii) and (viii) in the writ petition.

C The challenges in essence, as culled out from the submissions made by the petitioners are essentially as follows:

The dissolution of the Legislative Assembly by the impugned Notification dat~d 23.5.2005 in exercise of the powers conferred by sub- clause (b) of Clause (2) of Article 174 of the Constitution read with clause D (a) of the Proclamation number GSR l62(E) dated 7th March, 2005 issued under Article 356 of the Constitution in relation to the State of Bihar has been made on the basis of a tainted and clearly unsustainable report of the Governor of Bihar. It is stated by Mr. Sorabjee that the Governor's report which led to imposition of President's Rule over the State of Bihar was not based on an objective assessment of the ground realities. The Home Minister E in his speech made on 21.3.2005 when the Bihar Appropriation (Vote on Account) Bill, 2005 was being discussed in Rajya Sabha clearly indicated that it is not good for democracy to let the President's rule continue for a long time. It was unfortunate that no political party could get a majority and more parties could not come together to form the Government. The minority government also would not be proper to be installed where the difference between the requisite majority and the minority was not very small. The House was assured that the Government was not interes\ed in continuation of President's Rule for a long time. It was categorically stated that sooner it disappears the better it would be for the State of Bihar, for democracy and for the system that has been followed in this country. The Governor was requested to explore the possibilities of formation of a Government. This could be achieved by talking to the elected representatives. Contrary to what was held out by the Home Minister, on totally untenable premises and with the sole objective of preventing Shri Nitish Kumar who was projected to be as the Chief Ministerial candidate by the National Democratic Alliance (in short the · NDA') with support of a break away group of LJP and independents.

RAMESHWARPRASADv. U.0.1. [PASAYAT,J.] 695

In hot-haste, a report was given, which was attended to with unbelievable speed and the President's approval was obtained. The hot-haste and speed with which action was taken clearly indicates mala-fides. Though the Governor made reference to some horse trading or allurements the same was clearly on the basis of untested materials without details. Action of the Governor is of the nature which was condemned by this Court in SR. Bommai and Ors. v. B Union of India and Ors., [ 1994] 3 SCC I. It was submitted that similar views expressed by respective Governors did not find acceptancein the cases of dissolution of Assemblies in . Karnataka and Meghalaya. in the said case. Though the Proclamations in respect of Madhya Pradesh, Rajasthan and Himachal Pradesh were held to be not unconstitutional, yet the parameters of the scope of judicial review were highlighted. Even if it is accepted that the C Governor's opinion is to be given respect and honour in view of the fact that he holds a high constitutional office, yet when the view is tainted with ma/a- fides the same has to be struck down. In the instant case according to learned counsel for petitioners, the background facts clearly established that the Governor was not acting bona fide and his objective was to prevent installation of a majority Government. Even if it is accepted for the sake of arguments D that the majority was cobbled by unfair means that is a matter with which the Governor has no role to play. It is for the Speaker of the Assembly, when there is a floor test to consider whether there was any floor crossing. If any material existed to show that any Legislature was lured by unfair means that is for the electorate to take care of and the media to expose. That cannot be E a ground for the Governor to prevent somebody from staking a claim when he bas the support of majority number of legislatures. It is submitted that similar views regarding horse trading etc. were made in the report of the Governor so far as the dissolution of the Karnataka Assembly is concerned and this Court in S.R. Bommai's case (supra) found that the same cannot be the foundation for directing dissolution. F For the last few years formation of government by a party having majority has become rare. Therefore, the coalition governments are in place in several States and in fact at the Centre. There is nothing wrong in post poll adjustments and when ideological similarity weighs with any political party G to support another political party though there was no pre-poll alliance, there is nothing wrong in it. Majority of the legislatures of the LJP party had decided to support JOU in its efforts to form a Government. Clear decisions were taken in that regard. Some Independent M.L.As had also extended, their support to Mr. Nitish Kumar. The Governor cannot refuse to allow formation of a Government once the majority is established. The only exception can be H

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

A where the Governor is of the view that a stable Government may not be )" formed by the claimants. It is not the position in the case at hand. Mr. Nitish Kumar had support of legislators, more than the requisite number and in fact the number was far in excess of the requisite number. The Governor's actions show that he was acting in a partisan manner to help some particular political B parties.

The scope of judicial review was delineated by this Court in State of Rajasthan and Ors. v. Union of India and Ors., [ 1977] 3 SCC 592) and was J further expanded in Bommai 's case (supra). Tested on the touchstone of the • guidelines set out in Rajasthan 's case (supra) and Bommai's case (supra) the C Governor's report is clearly unsustainable and consequential Presidential Proclamation is unconstitutional. It is to be noteel that the Presidential Proclamation was based solely on the Governor's report as has been accepted by the Union of India.

Mr. P.S. Narasimha and Mr. Viplav Sharma supported the stand. D Additionally, with reference to their additional stands noted supra in the writ petitior.s, they submitted that the President's Notification is not sustainable and is unconstitutional.

In response, Mr. Milon K. Banerjee, learned Attorney General, Mr. Goolam E. Vahanvati, learned Solicitor General, Mr. Gopal Subramaniam, E learned Additional Solicitor General, Mr. P.P. Rao, learned senior counsel and Mr. B.B. Singh, learned counsel submitted that there is no quarrel about the scope of judicial review of this Court in matters relating to Proclamation under Article 356(1) and consequentially Article 174(2) of the Constitution. But the factual scenario as projected by the petitioners is really not so. i F In the instant case, the Governor had not in reality prevented anybody from staking a claim. It is nobody's case that somebody had staked a claim. What the Governor had indicated in his report dated 21.5.2005 (not dated 22.5.2005 as stated in the writ petitions by the writ petitioners) was that effort was to get the majority by tainted means by allurements like money, caste, posts and such unfair and other objectionable means. When the foundation for the claim was tainted the obvious inference is that it would not lead to a stable government and the same is clearly visible. It has been submitted that the parameters of judicial review are extremely limited so far as the Governor's report is concerned and consequential actions taken by the President. The Governor cannot be a mute spectator when democratic process is tampered with by unfair means. The effort is to grab power by presenting

RAMESHWAR PRASAD v. U.0.1. (PASAYAT, J.] 697

a majority, the foundation of which is based on factors which are clearly anti democratic in their conception. Parliamentary democracy is a part of the basic structure of the Constitution and when the majority itself is the outcome of foul means it is clearly against the mandate given by the electorate. It can never be said that the electorate wanted that their legislatures after getting their mandate would become the object of corrupt means. When the sole object is to grab power at any cost even by apparent unfair and tainted means, the Governor cannot allow such a government to be installed. By doing so, the Governor would be acting contrary to very essence of democracy. The purity of electorate process would get polluted. The framers of the Constitution never intended that democracy or governance would be manipulated. Defections strike at the root of representative government. They C are unconstitutional, illegal, illegitimate, unethical and improper. The Tenth Schedule cannot take care of all situations and certainly not in the case of independents. It would be too hollow to contend that the floor test would cure all impurity in gathering support of the legislatures. Floor test cannot always be a measure to restrain the corrupt means adopted and in cobbling the majority. It is also too much to expect that by exposure of the corrupt means so far as a particular legislature is concerned, by the people or by the media the situation would improve. Since there is no material to show that any party staked a claim and on the contrary as is evident from the initial report of the Governor dated 6.3 .2005 that nobody was in a position to stake a claim and the fact that passage of about three months did not improve the situation, the Governor was not expected to wait indefinitely and in the process encourage defections or adoption of other objectionable activities. It is submitted that ratio in State of Rajasthan 's case (supra) so far as the scope of judicial review is concerned has not been expanded in Bommai 's case (supra), and the parameters remain the same. F With reference to Tenth Schedule more particularly sub-paragraphs 2 and 4 it is submitted that dis-qualification had been clearly incurred by the members of LJP break away group. There was in fact no merger of the so- called break away group with JOU. The documents filed by the petitioners amply show that there was only a proposal and in fact not any merger. G Documents on the other hand show that the so called resolution was also manipulated. One person had signed for several persons and even the signatures -\ differ. If really the persons were present in the so called meeting, adopted the resolution purported to have been taken, there was no reason as to why concerned participants did not sign the resolution ~nd somebody else signed it in their favour. This clearly shows that on the basis of manipulated documents H

698 SUPRE~E COl'RT RF!'ORTS [2006[ I S.C.R.

A it was attempted to be projected as if Shri Nitish Kumar had a majority. Interestingly, Shri Nitish Kumar has not filed any petition and only four members have filed the petitions though claim was that more than 122 had extended support. Though that by itself may not be a ground to throw out the petitions, yet the petitions certainly suffer from legal infirmity. As amply proved, the petitioners have not approached this Court with clean hands and therefore are not entitled to any relief. It is submitted that the petitioners in WP (C) No.257 and 353 have not questioned the correctness of the President's Notification dated 7.3.2005, and interestingly in the so called Public Interest Litigation, it has been challenged. After having given up challenge to the major portion of the challenges it has not been explained by the petitioner in person as to how ~nd in which way any of his rights has been affected. If the persons affected have not questioned the correctness of the Notification dated 7.3.2005 the petitioner in person should not be permitted to raise that question. It is the basic requirement of a Public Interest Litigation that persons who are affected are unable to approach the Court. It is strange that learned counsel for the legislators-writ petitioners have accepted the Notification dated 7.3.2005 D to be valid and in order. The plea taken in the so called Public Interest )

Litigation is to the contrary. The factual position in Bommai 's case (supra) was different. It related to cases where elected governments were in office and the Governors directed dissolution. The position is different here. Further it is submitted that the power exercised by the Governor is legislative in E character and it can only be nullified on the ground of ultra-vi res. The reports of the National Commission To Review the Working of The Constitution and Sarkaria Commission have amply indicated the role to be played by the Governors and sanctity to be attached to their report. Even when the parameters of judicial review spelt out in the State uf Rajas than and Bommai 's cases (supra) are kept in view, the impugned report and consequential President's F Notification do not suffer from any infirmity to warrant interference. It is further submitted that the Election Commission had notified fresh elections and even if for the sake of arguments if any defect is noticed in the Governor's report or the consequential President's Notification, that cannot be a ground to stall the election already notified. People can give their mandate afresh and G the plea that large sums of money would be spent if the fresh elections are held is really 110 answer to preventing installation of a government whose foundation is shaky. It is submitted that the report does not even show a trend of any partisan approach vis-u-vis any political party by the Governor who was acting independently. In fact before the report dated 21.5.2005 on which the final decision for th.: Presidential Proclamation was taken a report dated H 27.4.2005 was given which clearly indicated that no party was in a position

) RAMESHWAR PRASAD v. U.0.l. [PASAYAT,J.) 699 to fonn the Government. The Governor has clearly indicated the source from which he came to know about the efforts to fonn the Government by illegal means. It is pointed out that the decision relied upon by Mr. P.S. Narasimha and Mr. Viplav Shanna i.e. Udai Narain Sinha v. State of UP. and Ors., AIR ( 1987) Allahabad 293 does not really reflect the correct position in law and was rendered in the peculiar fact situation. On the contrary, the decision of the Kerala High Court in K.K. Aboo v. Union of India, AIR (1965) Kerala 229) lays the correct position. Stand that because of Articles 172 or 174 of the Constitution there is no scope of dissolving the Assembly before it was summoned to hold the meeting is not acceptable on the face of Section 73 of the Representation of People Act, 1951 (in short the 'RP Act'). It is pointed out that the decision in K.K. Aboo 's case (supra) was approved to be laying down the correct law by a Constitution Bench of this Court in Special Reference No. I of 2002 (2002 (8) SCC 23 7.

The reports of the Governor dated 6.3.2005, 27.4.2005 and 21.5.2005 need to be reproduced. They read as under: D "D.O.No.33/GB Patna, the 6th March, 2005

Respected Rashtrapati Jee,

The present Bihar Legislative Assembly has come to an end on 6th March, 2005. The Election Commission's notification with reference to the recent elections in regard to constitution of the new Assembly issued vide No.308/B.R.L.A./2005 dated 4th March, 2005 and 464/Bihar-LA/2005, dated the 4th March, 2005 is enclosed (Annexure-I)

2. Based on the results that have come up, the following is the party-wise position: I. R.J.D. 75

2. J.D.(U) 55

3. B.J.P. 37

4. Cong.(!) 10 G

5. B.S.P. 02

6. L.J.P. 29

7. C.P.I. 03 H

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

A 8. C.P.l.(M) 01 ,, ,

9. C.P.I. (M.L.) 07 IO. N.C.P. 03

12. Independent 17 B 243

The R.J.D. and its alliance position is as follows: I. R.J.D. 75 c 2. Cong (I) 10

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

4. C.P.l.(M) 01

D 5. N.C.P. 03 )- 92

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

2. J.D.(U) Si

F 3. The present Chief Minister, Bihar, Smt. Rabri Devi met me on 28.2.2005 and s11bmitted her resignation alongwith her Council of Ministers. I have accepted the same and asked her to continue till an alternative arrangement is made.

4. A delegation of members of L.J.P. met me in the afternoon of G 28.2.2005 and they submitted a letter (Annexure II) signed by Shri Ram Vilas Paswan, President of the Party, stating therein that they will neither support the R.J.D. nor the B.J.P. in the formation of government. The State President of Congress Party, Shri Ram Jatan Sinha, also met me in the evening of 28.2.2005.

H 5. The State President of B.J.P., Shri Gopal Narayan Singh alongwith

RAMESHWAR PRASAD v. U.0.1. [PASAYAT, J.] 701 supporters met me on 1.3.2005. They have submitted a letter A (Annexure Ill) stating that apart from combined alliance strength of 92 (BJP and JD(U) they have support of another 10 to 12 Independents. The request in the letter is not to allow the R.J.D. to form a Government.

6. Shri Dadan Singh, State President of Samajwadi Party, has sent a B letter (Annexure IV) indicating their decision not to support the R.J.D. or N.D.A. in the formation of the Govt. He also met me on 2.3.2005.

7. Shri Ram Naresh Ram, Leader of the C.P.I. (M.L.-Lib), Legislature Party alongwith 4 others met me and submitted a letter (Annexure V) that they would not support any group in the formation of Government. C

8. Shri Ram Vilas Paswan, National President of L.J.P. alongwith 15 others met me and submitted another letter (Annexure VJ). They have re-iterated their earlier stand.

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

2. N.C.P. 03

3. C.P.I. (M) 01 E

4. B.S.P. 02 (copy enclosed as Annex.VII) --) The R.J.D. with the above will have only 91.

They have further claimed that some of the Independent members may support the R.J.D. However, it has not been disclosed as to the number of Independent M.L.As. from whom they expect support nor their names.

Even if we assume the entire independents totalling 17 to extend support to R.J.D. alliance, which has a combined strength of 91, the total would be I08, which is still short of the minimum requireme~t. of 122 in a House of 243.

10. The N.D.A. delegation led by Shri Sushi! Kumar Modi, M.P.; met me in the evening of 5.3.2005. They have not submitted any further letter. However, they stated that apart from their pre-election alliance H

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

A of 92, another I0 Independents will also support them and they further stated that they would be submitting letters separately. This has not been received so far. Even assuming that they have support of 10 Independents, their strength will be only I02, which is short of the minimum requirement of 122.

B 11. Six Independents M.L.As. met me on 5.3.2005 and submitted a letter in which they have claimed that they may be called to form a Government and they will be able to get support of others (Annexure VIII). They have not submitted any authorisization letter supporting '• their claim.

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

"In normal circumstances the Governor need have no doubt as to who is the proper person to be appointed; it is leader of majority party in the Legislative Assembly, but circumstances can arise r when it may be doubtful who that leader is and the Governor may have to exercise his personal judgment in selecting the C.M. Under the Constitutional scheme which envisages that a person who enjoys the confidence of the Legislature should alone be appointed as C.M.". In Bommai case referred to above in para 153 S.C. has stated with regard to the position where. I quote: "Suppose after the General Elections held, no political party or coalition of parties or groups is able to secure absolute majority in the Legislative Assembly and despite the Governor's exploring the alternatives, the situation has arisen in which no political party is able to form stable Government, it would be case of

RAMESHWAR PRASAD v. U.0.1. [PASA YAT. J.] 703 ... .... 'i completely demonstrable inability of any political party to fonn A a stable Government commanding the confidence of the majority members of the Legislature. It would be a case of failure of constitutional machinery".

13. I explored all possibilities and from the facts stated above, I am fully satisfied that no political party or coalition of parties or groups B is able tu substantiate a claim of majority in the Legislative Assembly, and having explored the alternatives with all the political parties and 1' groups and Independents M.L.As., a situation has emerged in which no political party or groups appears to be able to fonn a Government commanding a majority in the House. 'Thus, it is a case of complete inability of any political party to forni a stable Government c commanding the confidence of the majority members. This is a case of failure of constitutional machinery.

14. I, as Governor ofBihar, am not able to fonn ·a popular Government in Bihar, because of the situation created by the election results -( mentioned above. D ~

15. I, therefore, recommend that the present newly Constituent Assembly be kept in suspended animation for. the present and the President of India is requested to take such a.ppropriate action/decision, .. I as required. E With regards,

Yours sincerely, -~ " Dr. A.P.J. Abdul ~ala~, (Buta Singh) F President of India, Rashtrapati Bhavan, New Delhi. D.O. No. 52/GB Patna, the 27th April,2005 G Respected Rashtrapati Jee, r ~ I invite a reference to my D.O. No.33/GB dated the 6th March, I 2005 through which a detailed analysis oftlie results of the Assembly

~ elections were made and a recommendation was also made to keep the newly constituted Assembly (C.onstituted vide Election H

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

A Commission's notification No.308/B.R.-L.A./2005 dated the 4th March, 2005 and 464/Bihar-LA/2005, dated the 4th March, 2005) in a suspended animation and also to issue appropriate direction/decision. ln the light of the same, the President was pleased to issue a proclamation under Article 356 of the Constitution vide notification No.G.S.R. 162(E), dated 7th March, 2005 and the proclamation has B been approved and assented by the Parliament.

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

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

4. The National Commission to Review the working of the Constitutiqn has also noticed that the reasons for increasing instability of elected Governments was attributable to unprincipled and opportunistic political realignment from time to time. A reasonable degree of stability of Government and a strong Government is important. lt has also been noticed that the changing alignment of the members of political parties so openly really makes a mockery of our democracy.

RAMESHWAR PRASAD v. U.0.1. [PASAYA T. J.] 705 Under the Constitutional Scheme a political party goes before the electorate with a particular programme and it sets up candidates at the election on the basis of such programmes. The I0th Schedule of the Constitution was introduced on the premise that political propriety and morality demands that if such persons after the elections changes his affiliation, that should be discouraged. This is on the basis that the loyalty to a party is a norm being based on shared beliefs. A divided party is looked on with suspicion by the electorate.

5. Newspaper reports in the recent time and other reports gathered through meeting with various party functionaries/leaders and also intelligence reports received by me, indicate a trend to gain over elected representatives of the people and various elements within the .. party and also outside the party being approached through various allurements like money, caste, posts, etc. which is a disturbing feature. This would affect the constitutional provisions and safeguards built

. -( ' therein. Any such move may also distort the verdict of the people as shown by results of the recent elections. If these attempts are allowed to continue then it would be amounting to tampering with constitutional provisions . . D

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

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

With regards,

Yours sincerely, G (Buta Singh)

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

A Dr. A.P.J. Abdul Kalam. President of India, ,. .. Rashtrapati Bhavan, New Delhi." D.O. No. 140/PS-GB/BN Patna, the 21st May, 2005

B Respected Rashtrapati Jee,

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

As you are aware after the Assembly Elections in February this D year, none of the political parties either individually or with the then pre-election combination or with post election alliance combination could stake a claim to form a popular Government since they could not claim a support of a simple majority of 122 in a House of 243 and hence the President was pleased to issue a proclamation under E Article 356 of the Constitution vide notification No. GSR- 162 (E) dated 7th March 2005 and the Assembly was kept in suspended animation.

The reports received by me in the recent past through the media 4 - and also through meeting with various political functionaries, as also intelligence reports, indicate a trend to win over elected representatives of the people. Report has also been received of one of the LJP MLA, who is General Secretary of the party having resigned today and also 17-18 more perhaps are movin6 towards the JD-U clearly indicating that various allurements have been offered which is a very disturbing and alarming feature. Any move by the break away action to align with any other party to cobble a majority and stake claim to form :o. Government would positively affect the Constitutional provisions and safeguards built therein and distort the verdict of the people as shown by the results in the recent Elections. If these attempts are allowed it would be amounting to tampering with Constitutional provisions. H

RAMESHWAR PRASADv. U.0.1. [PASAYAT, J.] 707 Keeping the above mentioned circumstances, I am of the considered view that if the trend is not arrested immediately, it may not be possible to contain the situation. Hence in my view a situation has arisen in the State wherein it would be desirable in the interest of the State that the Assembly presently kept in suspended animation is dissolved, so that the people/electorate can be provided with one more opportunity to seek the mandate of the people at an appropriate time to be decided in due course. r" With regards,

Yours sincerely c Sd/- (Buta Singh) Dr. A.P.J. Abdul Kalam, President of India, ~ -( . Rashtrapati Bhavan, D New Delhi.

We shall first deal with the question as to the essence of the judgment in Bommai 's case (supra). . E Lot of arguments have been advanced as to the true essence of the conclusions arrived at in Bommai 's case (supra) and the view expressed as regards the scope of judicial review. In A.K. Kaul and Anr. v. Union of India and Anr., [1995] 4 SCC 73, the position was summed up as follows:

"21. It would thus appear that in S. R. Bommai though all the learned F Judges have held that the exercise of powers under Article 356( I) is subject to judicial review but in the matter of justiciability of the satisfac!Nn of the President, the view of the majority (Pandian, Ahmadi, Verma Agrawal, Yogeshwar Dayal and Jeevan Reedy, JJ.) is that the principles evolved in Barium Chemicals for adjudging the G valid1iy of an action based on the subjective satisfaction of the authority created by statute do not, in their entirety, apply to the exercise of a constitutional power under Article 356. On the basis of the judgment of Jeevan Reddy, J., which takes a narrower view than that taken by Sa want, J ., it can be said that the. view of the majority (Pandian, Kuldip Singh. Sawant. Agrawal and Jeevan Reddy, JJ.) is that: H

708 5UPRF.ME l'Ol'RT REPORTS [2006] I S.C.R.

A (i) the satisfaction of the President while making a Proclamation under Article 356 (I) is justiciable;

(ii) it would be open to challenge on the ground of ma/a fides or being based wholly on extraneous and or irrelevant grounds;

B (iii) even if some of the materials on which the action is taken is found to be irrelevant, the court would still not interfere so long as there is some relevant material sustaining the action;

(iv) the truth or correctness of the material cannot be questioned by the court nor will it go into the adequacy of the material and it will '· c also not substitute it opinion for that of the President;

(v) the ground of ma/a /ides takes in inter alia situations where the Proclamation is found to be a clear case a abuse of power or what is sometimes called fraud on power;

(vi) the court will not lightly presume abuse or misuse of power and D will make allowance of the fact that the Pr..:sidt:nt and the Union Council of Ministers are the best judge of the si!aation and that they "' are also in possession of information and mataial and that the Constitution has trusted their judgment in the matter; and

(vii) this does not mean that the President and the Council of Ministers E are the final arbiters in the matter or that their opinion is conclusive."

If the State of Rajasthan 's case (supra) and Bommai 's case (supra) are read together it is crystal clear that in Bommai 's case, the scope of judicial review as set out in the State of Rajasthan 's case (supra) was elaborated as -i - • is clear from the summation in A.K. Kau/'s case (supra). F Lord Greene said in 1948 in the famous Wednesbury case ( 1948 (I) KB 223s) that when a statute gave discretion to an administrator to take a decision, the scope of judicial review would remain limited. He said that interference was not permissible unless one or the other of the following conditions was G satisfied, namely the order was contrary to law. or relevant factors were not considered, or irrelevant factors were considered; or the decision was one which no reasonable person could have taken. Lord Dip lock in Council for ~ Civil Services Union v. Minister of Civil Service (1983) I AC 768 (called the CCSU case) summarized the principles of judicial review of administrative action as based upon one or other of the following viz .. illegality, procedural H

RAMESHWAR PRASADv. U.0.1. [PASAYAT. J.] 709 irregularity and irrationality. He, however, opined that "proportionality" was A "'" a "future possibility".

In Om Kumar and Ors. v. Union of India, [200 I] 2 SCC 386, this Court observed, inter alia, as follows: