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

"The principle originated in Prussia in the nineteenth century and has since been adopted in Germany, France and other European countries. The European Court of Justice at Luxembourg and the European Court of Human Rights at Strasbourg have applied the principle while judging the validity of administrative action. But even long before that, the Indian Supreme Court has applied the principle of"proportionality" to legislative action since 1950, as stated in detail below.

By "proportionality", we mean the question whether, while regulating exercise of fundamental rights, the appropriate or least- restrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case may be. Under the principle, the court will see that the legislature and the administrative authority "maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve". The legislature and the administrative authority are, however, given an area of discretion or a range of choices but as to whether the choice made infringes the rights excessively or not is for the court. That is what is meant by proportionality. F xxx xxx xxx xxx xxx

The development of the principle of "strict scrutiny" or "proportionality" in administrative law in England is, however, recent. Administrative action was traditionally being tested on Wednesbury grounds. But in the last few years, administrative action affecting the G freedom of expression or liberty has been declared invalid in several cases applying the principle of "strict scrutiny". In the case of these freedoms, Wednesbury principles are no longer applied. The courts in England could not expressly apply proportionality in the absence of the convention but tried to safeguard the rights zealously by treating H

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RAMESHWARPRASAD v. U.0.1. [PASA YAT. J.) 711 and that the courts were A "not perfectly entitled to start from the premise that any restriction ·of the right to freedom of expression requires to be justified and nothing less than an important public interest will be sufficient to justify it".

Lord Templeman also said in the above case that the courts could go B into th.e question whether a reasonable minister could reasonably have concluded that the interference with this freedom was justifiable. He said that "in terms of the Convention" any such interference must be both necessary and proportionate (ibid pp. 750-51 )..

In the famous passage, the seeds of the principle of primary and c secondary review by courts were planted in the administrative law by Lord Bridge in the Brind case ( 1991) I AC 696. Where Convention rights were in question the courts could exercise a right of primary review. However, the courts would exercise a right of secondary --( review based only on Wednesbury principles in cases not _affecting D j ' the rights under the Convention. Adverting to cases where fundamental freedoms were not invoked and where administrative action was questioned, it was said that the courts were then confined only to a secondary review while the primary decision would be with the administrator. Lord Bridge explained the primary and secondary review as follows: E "The primary judgment as to whether the particular competing public interest justifying the particular restriction imposed falls to be made by the Secretary of State to whom Parliament has entrusted the discretion. But, we are entitled to exercise a secondary F judgment by asking whether a reasonable Secretary of State, on the material before him; could reasonably make the primary judgment."

In Union of India and Anr. v. G. Ganayutham, [ 1997] 7 SCC 463, in . paragraph 31 this Court observed as follows: G ."31. The current position of proportionality in administrative law in England and India can be st1mmarized as. follows:

(I) To judge the val{dity of any ad1ninistrative order or statutory discretion, normally the Wednes.bury test is to be applied to find out if the decision was illegal or suffered from procedural improprieti.es H

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A or was one which no sensible decision-maker could, on the material before him and within the framework of the law, have arrived at. The court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bona fide. The court would also consider whether the decision was absurd or perverse. The court would not B however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the court substitute its decision to that of the administrator. This is the Wednesbury (1948 I KB 223) test. ; . (2) The court would not interfere with the administrator's decision c unless it was illegal or suffered from procedural impropriety or was irrational in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other tests, including proportionality being brought into English administrative law in future is not ruled out. These are the CCSU ( 1985 AC 374) principles. D (3)(a) As p~r Bugdaycay (1987 AC 514), Brind (1991 (I) AC 696) and Smith ( 1996 (I) All ER 257) as. long as the Convention is not incorporated into English law, the English courts merely exercise a secondary judgment to find out if the decision-maker could have, on the material before him, arrived at the primary judgment in the manner he has done.

(3 )(b) If the Convention is incorporated in England making available the principle of proportionality, then the English courts will render primary judgment on the validity of the administrative action l •

and find out ifthe restriction is disproportionate or excessive or is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon.

(4)(a) The position in our country, in administrative law, where no fundamental freedoms as aforesaid are involved, is that the courts/ tribunals will only play a secondary role while the primary judgment as to reasonableness will remain with the executive or administrative authority. The secondary judgment of the court is to be based on Wednesbury and CCSU principles as stated by Lord Greene and Lord Diplock respectively to find if the executive or administrative authority has reasonably arrived at his decision as the primary authority". H

RAMESHWAR PRASAD v. U.0.1. [PASAYAT, J.) 713 ~ The common thread running through in all these decisions is that the A Court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in the Wednesbury 's case (supra) the Court would not go into the correctness of the choice made by the B administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the , 1o. deficiency in decision-making process and not the decision.

According to Wade, Administrative Law (9th Edition) is the law relating to the control of powers of the executive authorities. To consider why such C a law became necessary, we have to consider its historical background.

Up to the 19th century the functions of the State in England were · confined to (i) defence of the country from foreign invasion, and (ii) maintenance of law and order within the country. D This vast expansion in the State functions resulted in large number of legislations and also for wide delegation of State functions by Parliament to executive authorities, so also was there a need to create a body of legal principles to c9ntrol and to check misuse of these new powers conferred on the State auth6rities in this new situation in the public interest. Thus, emerged Administrative Law. Maitland pointed out in his Constitutional History; E "Year by year the subordinate Government of E~glatid is becoming more and more important. We are becoming a much governed nation, governed by all manner of councils and boards and officers, central and local, high and low, exercising the powers which have been committed to them by modern statutes." F

But in the early 20th century following the tradition of Dicey's classic exposition in his: The Law of the Constitulion, there was a spate of attacks on parliamentary delegation culminating in the book New Despotism by the then Chief Jlistice of England, Lord Hewart published in 1929. In response, G the British Government in 1932 set up a committee called the Committee on Ministerial Powers headed by Lord Donoughmore, to examine these complaints --{_ and criticisms .. However, the Donoughmore Committee rejected the argument of Lord Hewart and accepted the reality that a modern State cannot function without delegation of vast powers to the executive authorities, though there must be some control on them. · H

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A In R. v. Lancashire CC. exp Huddleston (1986] 2 All ER 941 CA, it was said about Administrative Law that it

"has created a new relationship between the courts and those who derive their authority from the public law. one of partnership based on a common aim. namely, the maintenance of the highest standards of public administration".

In liversidge v. Anderson [ 1941] 3 All E.R. 338 (HL) the .case related to the Defence (General) Regulations, 1939 which provided: J,

"If the Secretary of State has reasonable cause to believe any person to be of hostile origin or association he may make an order against that person directing that he be detained.''

The detenu Liversidge challenged the detention order passed against him by the Secretary of State. The majority of the House of Lords, except Lord Atkin, held that the Court could not interfere because the Secretary of D State had mentioned in his order that he had reasonable cause to believe that liversidge was a person of hostile origin or association. Liversidge was delivered during the Second World War when the executive authority had unbridled powers to detain a person without even disclosing to the Court on what basis the Secretary had reached to his belief. However, subsequently, E · the British courts accepted Lord Atkin' s dissenting view that there must be some relevant material on the basis of which the satisfaction of the Secretary of State could be formed. Also, the discretion must be exercised keeping in view the purpose for which it was conferred and the object sought to be achieved, and must be exercised within the four corners of the statute (See: I • Clariant International ltd. and Anr. v. Securities and Exchange Board of F India, [2004] 8 sec 524) Sometimes a power is coupled with a duty. Thus, a limited judicial review against administrative action is always available to the Courts. Even after elaboration in Bommai 's case (supra) the scope for judicial review in respect of Governors' action cannot be put on the same pedestal as that of other administrative orders. As observed in Para 376 of judgment in Bommai 's case (supra) the scope of judicial review would depend upon facts of the given case. There may be cases which do not admit of judicial prognosis. The principles which are applicable when an administrative action is challenged • cannot be applied stricto sensu to challenges made in respect of proclamation under Article 356. However, in view of what is observed explicitly in

RAMESl-IWAR PRASAD v. U.0.1. [PASAYAT, J.] 715 ~ ~.,, Bommai 's case (supra), the proclamation under Article 356(1) is not legislative in character.

A person entrusted with discretion must, so to speak, direct himself properly in law. He must call his attention to matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules he may truly be said to be acting unreasonably. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority.

It is an unwritten rule of the law, constitutional and administrative, that whenever a decision-making function is entrusted to the subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote. (See: Smt. Shalini Soni and Ors. v. Union of India and Ors., [1980] 4 sec 544). -( D The Wednesbury principle is often _misunderstood to mean that any administrative decision which is regarded by the Court to be unreasonable must be struck down. The correct understanding of the Wednesbury principle is that a decision will be said to be unreasonable in the Wednesbury sense if (i) it is based on wholly irrelevant material or wholly irrelevant consideration, (ii) it has ignored a very relevant material which it should have taken into consideration, or (iii) it is so absurd that no sensible person could ever have reuched to it.

As observed by Lord Diplock in CCSU's case (supra) a decision will be said to suffer from Wednesbury unreasonableness if it is "so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it".

A Constitution is a unique legal document. It enshrines a special kind of norm and stands at the top of normative pyramid. Difficult to amend, it is designed to direct human behavior for years to come: It shapes the appearance of the State and its aspirations throughout history. It determines ~I the State's fundamental political views. It lays the foundation for its social values. It determi-nes its.commitments and orientations. It reflects the events of the past. It lays the foundation for the present. It determines how the future will look. It is philosophy, politics, society, and law all in one. Performance H

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A of all these tasks by a Constitution requires a balance of its subjective and objective elements, because "it is a constitution we are expounding." As Chief Justice Dickson of the Supreme Court of Canada noted:

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

D The political question doctrine, in particular, remits entire areas of public life to Congress and the President, on the grounds that the Constitution assigns responsibility for these areas to the other branches, or that their resolution will involve discretionary, polycentric decisions that lack discrete criteria for adjudication and thus are better handled by the more democratic branches. By foreclosing judicial review, even regarding the minimal rationality of the political branches' discretionary choices, the doctrine denies federal judges a role in "giving proper meaning to our public value" in important substantive fields. (Quoted from an Article in Harvard Law Review). 1 • Democratic Theory is based on a notion of human dignity: as beings worthy of respect because of their very nature, adults must enjoy a large degree of autonomy, a status principally attainable in the modern world by being able to share in the Governance of their community. Because direct rule is not feasible for the mass of citizens, most people can share in self government only by delegating authority to freely chosen representatives. Thus Justice Hugo L. Black expressed a critical tenet of democratic theory when he wrote: "No right is more precious in a free country than that of having a voice in the election of those who make the laws under which we ... must live."

For democratic theory, what makes governmental decisions morally binding is process: the people's freely choosing representatives, those representatives' debating and enacting policy and later standing for re-election,

RAMESHWARPRASAD v. U.0.L [PASAYAT,J.] 717 ~ " and administrators' enforcing that policy. Democratic theory, therefore, tends to embrace both positivism and moral relativism.

Whereas democratic theory turns to moral relativism, constitutionalism turns to moral realism. It presumes that "out there" lurk discoverable standards to judge whether public policies infringe on human dignity. The legitimacy of a policy depends not simply on the authenticity of decision makers' B credentials but also. on substantive criteria. Even with the enthusiastic urging > t of a massive majority whose representatives have meticulously observed proper processes, government may not trample on fundamental rights. For constitutionalists, political morality cannot be weighed on a scale in which "opinion is an omnipotence," only against the moral criterion of sacred, individual rights. They agree with ~afferson: "An elective despotism was not the government we fought for.. ...." .(From Constitutions, Constitutiona/ism, and Democracy by Walter F. Murphy).

Allegation of ma/a-jides without any supportable basis is the last feeble -( attempt of a losing litigant, otherwise it will create a smokescreen on the scope of judicial review. This is a pivotal issue around which the fate of this case revolves. As was noted in A.K. Kau/'s case (supra) the satisfaction of the President is justiciable. It would be open to challenge on the ground of ma/a fides or being based wholly on extraneous or irrelevant grounds. The sufficiency or the correctness of the factual position indicated in the report is not open to judicial review. The truth or correctness of the materials cannot be questioned by the Court nor would it go into the adequacy of the material and it would also not substitute its opinion for that of the President. Interference 1 ~ is called for only when there is clear case of abuse of power or what is some times called fraud on power. The Court will not lightly presume abuse or misuse of power and will make allowance for the fact that the decision p making authority is the best judge of the situation. If the Governor would have formed his opinion for dissolution with the sole objective of preventing somebody from staking a claim it would clearly be extraneous and irrational. The question whether such person would be in a position to form a stable government is essentially the subjective opinion of the Governor; of course to be based on objective materials. The basic issue therefore is did the Governor G act on extraneous and irrelevant materials for coming to the conclusion that ~: there was no possibility of stable government.

According to the petitioners, the question whether there was any allurement or horse trading (an expression frequently used in such cases) or H

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A allurement of any kind is not a matter which can be considered by the Governor. The scope of judicial review of Governor's decision does not and cannot stand on the same footing as that of any other administrative decision . . In almost all legal inquiries intention as distinguished from motive is the all important factor and in common parlance a malicious act stands equated with an intentional act without just cause or excuse. Whereas fairness is synonymous with reasonableness bias stand included within the attributes and broader purview of the word "malice" which in common acceptation implies "spite" or "ill will". Mere general statements will not be sufficient for the purpose of indication of ill will. There must be cogent evidence available on record to come to a conclusion as to whether in fact there was bias or mala fide involved which resulted in the miscarriage of justice. The tests of real likelihood and reasonable suspicion are really inconsistent with each other. (See S. Parthasarthi v. State of A.P., (1974) 3 SCC 459). The word 'bias' is to denote a departure from the standing of even handed justice. (See: Franklin v. Minister of Town and Country Planning [l 947) 2 All ER 289 (HL).

D In State of Punjab v. V.K. Khanna and Ors., (200 l] 2 SCC 330, it was observed as follows:

"Incidentally, Lord Thankerton in Franklin v. Minister of Town and Country Planning, (1948 AC 87: [1947) 2 All ER 289 (HL) opined E that the word "bias" is to denote a departure from the standing of even-handed justice. Kumaon Manda/ Vikas Nigam Ltd. v. Girja Shankar case (200 I) I SCC 182 further noted the different note sounded by the English Courts in the manner following: (SCC pp.199- ~ I

20 I, paras 30-34) F "30. Recently however, the English courts have sounded a different note, though may not be substantial but the automatic disqualification theory rule stands to some extent diluted. The affirmation of this dilution however is dependent upon the facts and circumstances of the matter in issue. The House of Lords in the case of R. v. Bow G Street Metropolitan Stipendiary Magistrate. ex p Pinochet Ugarte (No. 2) (2000) I AC 119) observed:

' ... In civil litigation the matters in issue will normally have <tn economic impact: therefore a Judge is automatically disqualified if he stands to make a financial gain as a consequence of his own decision of the cas• But if. as in the present case, the matter at

RAMESHWARPRASADv. U.O.L [PASAYAT.J.] 719

issue does not relate to money or economic advantage but is concerned with :he promotion of the cause, the rationale disqualifying a Judge applies just as much ifthe Judge's decision will lead to the promotion of a cause in which the Judge is involved together with one of the parties.'

31. Lord Brown-Wilkinson at p. 136 of the report stated : B 'It is important not to overstate what is being decided. It was suggested in argument. that a decision setting aside the order of 25-11-1998 would lead to a position where Judges would be unable to sit on cases involving charities in whose work they are involved. It is suggested that, because of such involvement, a C Judge would be disqualified. That is not correct. The facts of this present case are exceptional. The critical elements are ( 1) that A.I. was a party to the appeal; (2) that A.I. was joined in order to argue for a particular result; (3) the Judge was a director of a charity closely allied to A.I. and sharing, in this respect, A.I. 's D I -( objects. Only in cases where a Judge is taking an active PJle as tru~tee or director of a charity which is closely allied to and acting with a party to the litigation should a Judge normally be concerned either to recuse himself or disclose the position to the parties. However, there may well be other exceptional cases in which the Judge would be well advised to disclose a possible interest.'

32. Lord Hutton also in Pinochet case (2000) 1 AC 119) observed : 'There could be cases where the interest of the Judge in the subject-matter of the proceedings arising from his strong commitment to some cause or belief or his association with a person or body involved in the proceedings could shake public confidence in the administration of justice as much as a shareholding (which might be small)' in a public company involved in the litigation.'

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A (1986) 161 CLR 342) as also the Federal Court in Ebner, Re (1999) 161 ALR 557) and on the decision of the Constitutional Court of South Africa in President of the Republic of South Africa v. South African Rugby Football Union, (1999) 4 SA 147 stated that it would be rather dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias. The Court B of Appeal continued to the effect that everything will depend upon facts which may include the nature of the issue to be decided. It further observed :

'By contrast, a real danger of bias might well be thought to arise if there were personal friendship or animosity between the Judge c and any member of the public involved in the case; or if .he Judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case; or if, in a case where the credibility of any individual were an issue to be decided by the Judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person's evidence with an open mind on any later occasion; or if on any question at issue in the proceedings before him the Judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind (Vakuta v. Kelly (1989) 167 CLR 568)); or if, for any other reason, there were real ground for doubting the ability of the Judge to ignore extraneous considerations, prejudices and j •

predilections and bring an objective judgment to bear on the issues before him. The mere fact that a Judge, earlier in the same case or in a previous case, had commented adversely on a party-witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection. In most cases, we think, the answer, one way or the other, will be obvious. But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal. We repeat: every application must be decided on the facts and circumstances of the individual case. The greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection w iII be.'

RAMESHWAR PRASAD v. U.0.1. [PASAY AT. J.] 721

34. The Court of Appeal judgment in locabail (200 QB 451) though apparently as noticed above sounded a different note but in fact, in more occasions than one in the judgment itself, it has been clarified that conceptually the issue of bias ought to be decided on the facts and circumstances of the individual case - a slight shift undoubtedly from the original thinking pertaining to the concept of bias to the effect that a mere apprehension of bias could otherwise be sufficient." B In Bommai's case (supra) though all the learned Judges held that exercise of power under Article 356(1) of the Constitution is subject to judicial review but in the matter of justiciability of the satisfaction of the President, the majority view was to the effect that the principles evolved in Barium Chemicals C ltd. and Anr. v. Company law Board and Ors., AIR (1967) SC 295 for adjudging the validity of an action based on the subjective satisfaction of the authority created by the Statute do not in their entirety apply to the exercise of constitutional power under Article 356 of the Constitution . .Mala fide intent or biased attitude cannot to be put on a strait-jacket formula but depend upon facts and circumstances of each case and in that perspective judicial D precedent would not be of much assistance. It is important to note that in Bommai 's case (supra) this Court was concerned with cases of dissolution of Assemblies when cabinets were in office. Though at first flush, it appears that the factual background in Karnataka's case (supra) dealt with in Bommai's •· case (supra) has lot of similarity with the factual position in hand, yet on a E deeper analysis the position does not appear to be so. The factual position was peculiar. In the instant case, the Governor's report reveals that the source of his opinion was intelligence reports, media reports and discussions with functionaries of various parties. A plea was raised by the petitioners that it has not been indicated as to functionaries of which party the Governor had discussed with. That cannot be a ground to hold the report to be vulnerable. F As was not'ed in Bommai's case (supra) the sufficiency or correctness of factual aspects cannot be dealt with. Therefore, as noted above, the only question which needs to be decided is whether the conclusions of the Governor that if foul means are adopted to cobble the majority it would be against the spirit of democracy. AgaitJ the question would be if means are foul can the Governor ignore it and can it be said that his view is extraneous or irrational. G

In the report dated 27.4.2005 to which reference has been made in the report dated 21.5.2005 reference is made to allurements like money, caste, posts etc. and this has been termed as a disturbing feature. In both the reports, the opinion of the Governor is that if these attempts are allowed to continue, H

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A it would amount to tampering with constitutional provisions. Stand of the I petitioners is that even if it is accepted to be correct, there is no constitutional provision empowering the Governor to make the same basis for not allowing a claim to be staked. This argument does not appear to be totally sound.

"26. In expounding the processes of the fundamental law, the Constitution must be treated as a logical whole. Westel Woodbury D Willoughby in The Constitutional Law of the United States (2nd Edn. Vol. I p.65) states: " "The Constitution is a logical whole, each provision of which is an integral part thereof, and it is, therefore, logically proper, and , indeed imperative, to construe one part in the light of the provisions E of the other parts."

27. A constitutional document outlines only broad and general principles meant to endure and be capable of flexible application to changing circumstances a distinction which differentiates a statute from a Charter under which all statutes are made. Cooley on 1 ' F Constitutional Limitations (8th edn. Vol.I, p.129) says:

"Upon the adoption of an amendment to a Constitution, the amendment becomes a part thereof; as much so as it had been originally incorporated in the Constitution; and it is to be construed accordingly." G Again, in paragraph 41, the position was illuminatingly stated by Mr. Justice M.N. Venkatachaliah (as His Lordship then was). A right to elect, i- fundamental though it is to democracy is anomalously enough neither a ~

fundamental right nor a common law right. It is pure and simple, a statutory right. So it is the right to be elected. So is the right to dispute an election. H Outside of statute, there is no right to elect, no right to be elected and no right

RAMESHWAR PRASAD v. U.0.l. [PASAYA T,J.J 723 to dispute an election. Statutory creations they are and therefore subject to A statutory limitation. (See Jyoti Basu and Ors. v. Debi Ghosal and Ors., [1982] 1 sec 691).

Democracy as noted above is the basic feature of the Constitution. Jn paragraphs 44 and 49 of Kihoto 's case (supra) it was noted as follows: B "44. But a political party functions oh the strength of shared beliefs. Its own political stability and social utility depends on such shared i ~· beliefs and concerted action of its Members in furtherance of those commonly held principles. Any freedom of its Members to vote as they please independently of the political party's declared policies C will not only embarrass its public image and popularity but also undermine public confidence in it which, in the ultimate analysis, is its source sustenance-nay, indeed, its very survival. Intra party debates are of course a different thing. But a public image of disparate stands by Members of the same political party is not looked upon, in political tradition, as a desirable state of things. Griffith and Ryle on Parliament D ·f Functions, Practice and Procedure ( 1989 Edn., p.119) says; f "Loyalty to party is the norm, being based on shared beliefs. A divided party is looked on with suspicion by the electorate. It is natural for Members to accept the opinion of their Leaders and Spokesmen on the wide variety of matters on which those members have no specialist knowledge. Generally Members will accept majority decisions in the party even when they disagree. It is understandable therefore that a Member who rejects the party whip even on a single occasion will attract attention and more criticism than sympathy. To abstain from voting when required by party to vote is to suggest a degree of unreliability. To vote against party is disloyalty. To join with others in abstention or voting with the other side smacks of conspiracy.

49. Indeed, in a sense an anti-defection law is a statutory variant of its moral principle and justification underlying the power of recall. What might justify ·a provision for recall would justify a provision for dis-qualification for defection. Unprincipled defection is a political and social evil. It is perceived as such by the legislature. People, apparently, have grown distrustful of the emotive political exultations that such floor-crossing belong to the sacred area of freedom of conscience, or of the right to dissent or of intellectual freedom. The H

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

A anti-defection law seeks to recognize the practical need to place the ~ / proprieties of political and personal conduct-whose awkward erosion and grotesque manifestations have been the bane of the times above certain theoretical assumptions which in reality have fallen into a morass of personal and political degradation. We should, we think, defer to this legislative wisdom and perception. The choices in B constitutional adjudications quite clearly indicate the need for such deference. "Let the end be legitimate, let it be within the scope of the Constitution and all means which are appropriate, which are adopted to that end ... " are constitutional." .,. ' Therefore, the well recognised position in law is that purity in the c electorate process and the conduct of the elected representative cannot be isolated from the constitutional requirements. "Democracy" and "Free and Fair Election" are inseparable twins. There is almost an inseverable umbilical cord joining them. In a democracy the little man- voter has overwhelming importance and cannot be hijacked from the course of free and fair elections. D His freedom to elect a candidate of his choice is the foundation of a free and .,. fair election. But after getting elected, if the elected candidate deviates from · the course of fairness and purity and becomes a "Purchasable commodity" he not only betrays the electorate, but also pollutes the pure stream of democracy.

Can the governor whose constitutional duty is to safeguard the purity E throw up his hands in abject helplessness in such situations?

As noted by this Court in People's Union for Civil Liberties (PUCL) and Anr. v. Union of India and Anr., [2003) 4 SCC 399 a well informed voter is the foundation of democratic structure. If that be so, can it be said that the Governor will remain mute and silent spectator when the elected representatives ' F act in a manner contrary to the expectations of the voters who had voted for them. In paragraph 94 of it was noted as follows:

"94. The trite saying that 'democracy is for the people, of the people and by the people' has to be remembered for ever. In a democratic republic, it is the will of the people that is paramount and becomes

- G the basis of the authority of the Government. The will is expressed in periodic elections based on universal adult suffrage held by means of secret ballot. It is through the ballot that the voter expresses his .. choice or preference for a candidate. "Voting is formal expression of

- will or opinion by the person entitled to exercise the right on the H subject or issue", as observed by this Court in Lily Thomas v. Speaker.

j RAMESH WAR PRASADv. U.0.1. [PASAY AT,J.] 725

~ Lok Sabha, [1993] 4 SCC 234 quoting from Black's Law Dictionary. A '~· The citizens of the country are enabled to take part in the Government through their chosen representatives: In a Parliamentary democracy like ours, the Government of the day is responsible to the people through their elected representatives . .The elected representative acts or is supposed to act as a live link between the people and the Government. The peoples' representatives fill the role of law-makers B and custodians of Government. People look to them for ventilation and redressal of their grievances. They are the focal point of the will ' i- and authority of the people at large. The moment they put in papers for contesting the election, they are subjected to public gaze and c public scrutiny. The character, strength and weakness of the candidate is widely debated. Nothing is therefore more important for sustenance of democratic polity than the voter making an int(!lligent and rational choice of his or her representative. For this, the voter should.be in a position to effectively formulate his/her opinion and to ultimately express that opinion through ballot by casting the vote. The -f concomitant of the right to vote which is the basic postulate of democracy is thus two fold: first, formulation of opinion about the candidates and second, the expression of choice by casting the vote in favour of the preferred candidate at the polling booth. The first step is complementary to the other. Many a voter will be handicapped in formulating the opinion and making a proper choice of the candidate unless the essential information regarding the candidate is available. The voter/citizen should have at least the basic information about the contesting candidate, such as his involvement in serious criminal ., offences. To scuttle the flow of information-relevant and essential t would affect the electorate's ability to evaluate the candidate. Not only that, the information relating to the candidates will pave the way for public debate on the merits and demerits of the candidates. When once there is public disclosure of the relevant details concerning the candidates, the Press, as a media of mass communicatio_n and voluntary organizations vigilant enough to channel the public opinion on right lines will be able to disseminate the information and thereby enlighten and alert the public at large regarding the adverse antecedents of a candidate. It will go a long way in promoting the freedom of speech and expression. That goal would be accomplished in two ways. It will help the voter who is interested in seeking and receiving information ' about the candidate to form an opinion according to his or her conscience and best of Judgment and secondly it will facilitate the H

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

A Press and voluntary organizations in imparting information on a matter of vital public concern. An informed voter-whether he acquires • information directly by keeping track of disclosures or through the Press and other channels of communication, will be able to fulfil his responsibility in a more satisfactory manner. An enlightened and informed citizenry would undoubtedly enhance democratic values. B Thus, the availability of proper and relevant information about the candidate fosters and promotes the freedom of speech and expression both from the point of view of imparting and receiving the information. In tum, it would lead to the preservation of the integrity of electoral process which is so essential for the growth of democracy. Though c I do not go to the extent of remarking that the election will be a farce if the candidates' antecedents are not known to the voters, I would say that such information will certainly be conducive to fairness in election process and integrity in public life. The disclosure of information would facilitate and augment the freedom of expression both from the point of view of the voter as well as the media through D which the information is publicized and openly debated.".

There is no place for hypocrisy in democracy. The Governor's perception about his power may be. erroneous, but it is certainly not extraneous or irrational. It has been rightly contended by learned counsel for the Union of E India that apart of Governor's role to ensure that the Government is stable, the case may not be covered by the Tenth Schedule and it cannot be said that by avoiding the Tenth Schedule by illegitimate or tainted means a majority if gathered leaves the Governor helpless, and a silent onlooker to the tampering of mandate by dishonest means. It is not and cannot be said that by preventing a claim to be staked the Governor does not act irrationally or on extraneous premises. Had the Governor acted with the object of preventing anyone from staking a claim his action would have been vulnerable. The conduct of the Governor may be suspicious and may be so in the present case, but if his opinion about the adoption of tainted means is supportable by tested materials, certainly it cannot be extraneous or irrational. It would all depend upon the facts of each case. If the Governor in a particular case without tested or unimpeachable material merely makes an observation that tainted means are being adopted, the same would attract judicial review. But in the instant case there is some material on which the Governor has acted. This ultimately is a case of subjective satisfaction based on objective materials. On the factual background one thing is very clear i.e. no claim was staked and on the contrary the materials on record show what was being projected. It is also

RAMESHWARPRASADv. U.0.1. [PASAYAT,J.] 727

clear from a bare perusal of the documents which the petitioners have themselves enclosed to the writ petitions that authenticity of the documents is suspect.

Judicial response to human rights cannot be blunted by legal jugglery. (See: Bhupinder Sharma v. State of Himachal Pradesh [2003] 8 SCC 551). Justice has no favourite other than the truth. Reasonableness, rationality, · B legality as well as philosophically provide colour to the meaning of fundamental rights. What is morally wrong cannot be politically right. The petitioners themselves have founded their claims on documents which do not have even shadow of genuineness so far as claim of majority is concerned. If the Governor felt that what was being done was morally wrong, it cannot be treated as politically right. This is his perception. It may be erroneous. It may not be specifically spelt out by the Constitution so far as his powers are . concerned. But it ultimately is a perception. Though erroneous it cannot be termed as extraneous or irrational. Therefore however suspicious conduct of the Governor may be, and even if it is accepted that he ~ad acted in hot haste it cannot be a ground to term his action as extraneous. A shadow of doubt about bona fides does not lead to an inevitable conclusion about ma/a fides.

We may hasten to add that similar perceptions by Governors may lead to chaotic conditions. There may be human errors. Therefore, the concerned Governor has to act carefully with care and caution and can draw his inference from tested and unimpeachable material; otherwise not. E In B.R. Kapur v. State of Tamil Nadu and Anr., AIR (2001) SC 3435 this Court considered the role of the Governor in appointing the Chief Minister. \ It was held that the Governor can exercise his discretion and can decline to make the appointment when the person chosen by the majority party is not qualified to be member of Legislature. It was observed that in such a case the Constitution prevails over the will of the people. It was further observed that accepting submissions as were made in that case that the Governor exercising powers under Article 164( I) read with (4) was obliged to appoint as Chief Minister whosoever the majority party in the Legislature nominated, regardless of whether or not the person nominated was qualified to be a member of the legislature under Article 173 or was disqualified in that behalf under Article 191, and the only manner in which a Chief Minister who was not qualified or who was disqualified could be removed was by a vote of no-confidence in the legislature or by the electorate at the next elections and that the Governor was so obliged even when the person recommended was, to the Governor's H

728 SUPREME COliRT REPORTS [2006 I I S.C.R.

A knowledge, a non-citizen, under age, a lunatic or an undischarged insolvent, , ~

and the only way in which a non-citizen, or under age or lunatic or insolvent Chief Minister could be removed was by a vote of no-confidence in the legislature or at the next election, is to invite disaster.

The situation cannot be different when the Chief Minister nominated B was to head a Ministry which had its foundation on taint and the majority is cobbled by unethical means or corrupt means. As was observed in B.R. Kapur 's case (supra) in such an event the constituiional purity has to be t < maintained and the Constitution has to prevaii over the will of the people.

With these conclusions the writ applications could have been disposed c of. But, taking note of some of the disturbing features highlighted by learned counsel about the suspicious and apparently indefensible roles of some Governors, it is necessary to deal with some of the relevant aspects.

It is relevant to take note of what the Sarkaria Committee had said about the role of Governors: D ~

; I. INTRODUCTION

4.1.0 I. The role of the Governor has emerged as one of the key issues in Union State relations. The Indian political scene was dominated by a single party for a number of years after Independence. E Problems which arose in the working of Union-State relations were mostly matters for adjustment in the intra-party forum and the Governor had very little occasion for using his discretionary powers. The institution of Governor remained largely latent. Events in Kerala in 1959 when President's rule was imposed, brought into some prominence the role of the Governor, but thereafter it.did not attract much attention for some years. A major change occurred after the Fourth General Elections in 1967. In a number of States, the party in power was different from that in the Union. The subsequent decades saw the fragmentation of political parties and emergence of new regional parties frequent, sometimes unpredictable realignments of political parties and groups took place for the purpose of forming governments. These developments gave rise to chronic instability in several State Governments. As a consequence, the Governors were called upon to exercise their discretionary powers more ·frequently. The manner in which they exercised these functions has had a direct impact on Union-State relations. Points of friction between the Union

RAMESH WAR PRASAD v. U.0.1. [PASA YAT, J.] 729 and the States began to multiply. .A 4.1.02. The role of the Governor has come in for attack on the ground that some Governors have failed to display the qualities of impartiality and sagacity expected of them. It has been alleged that the Governors have not acted with necessa_ry objectivity either in the manner of exercise of their discretion or in their role as a vital link between the B Union and the States. Many have traced this mainly to the fact thal the Governor is appointed by, and holds office during the pleasure of. the President, (in effect, the Urtion Council of Ministers). The part played by some Governors, particularly in recommending President's rule and in reserving States Bills for the consideration of the President, C has evoked strong resentment. Frequent removl_lls and transfers of Governors before the end of their tenure has lowered the prestige of this office. Criticism has also been levelled that the Union Government utilizes the Governor's for its own political ends. Many Governors, looking forward to further office under the Union or active role in -{ politics after their tenure, came to regard themselves as agents of the D Union.

(Underlined for emphasis)

2. Historical background:

4.2.0 I. The Government of India Act, 18 58 transferred the E responsibility for administration Of India from the East India Company to the British Crown. The Governor then became an agent of the ') Crown, functioning under the general supervision of the Governor- General. The Montagu-Chelmsford Reforms (1919) ushered in responsible Government, albeit in a rudimentary form. However, the F Governor continued to be the pivot of the Provincial administration.

4.2.02. The Government of India Act, 1935 introduced provincial autonomy. The Governor was now required to act on the advice of Ministers responsible to the Legislature. Even so, it placed certain special responsibilities on the Governor, such as prevention of grave G menace to the peace or tranquility of the Province, safeguarding the -{ legitimate interests of minorities and so on. The Governor could also act in his discretion in specified matters. He functioned under the general superintendence and control of the Governor General, whenever he acted in his individual judgment or discretion. H

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

, 1 A 4.2.03. In I937 when the Government of India Act, 1935 came into force, the Congress party commanded a majority in six provincial legislatures. They foresaw certain difficulties in functioning under the new system which expected Ministers to accept, without demur, the censure implied, ifthe Governor exercised his individual judgment for the discharge of his special responsibilities. The Congress Party B agreed to assume office in these Provinces only after it received an assurance from the Viceroy that the Governors would not provoke a conflict with the elected Government. t <

4.2.04. Independence inevitably brought about a change in the role of the Governor. Until the Constitution came into force, the provisions c of the Government of India Act, 1935 as adapted by the India (Provisional Constitution) Order, 1947 were applicable. This Order omitted the expressions 'in his discretion', 'acting in his discretion' and 'exercising his individual judgment', wherever they occurred in the Act. Whereas, earlier, certain functions were to be exercised by D the Governor either in his discretion or in his individual judgment, the Adaptation Order made it incumbent on the Governor to exercise these as well as all other functions only on the advice of his Council of Ministers.

4.2.05. The framers of the Constitution accepted, in principle, the E Parliamentary or Cabinet system of Government of the British model both for the Union and the States. While the pattern. of the two levels of government with demarcated powers remained broadly similar to the pre-independence arrangements, their roles and inter-relationships were given a major reorientation.

F 4.2.06. The Constituent Assembly discussed at length the various provisions relating to the Governor. Two important issues were considered. The first issue·was whether there should be an elected Governor. It was recognized that the co-existence of an elected Governor and a Chief Minister responsible to the Legislature might lead to friction and consequent weakness in administration. The G concept of an elected Governor was therefore given up in favour of a nominated Governor. Explaining in the Constituent Assembly why a Governor should be nominated by the President and not elei;ted Jawaharlal Nehru observed that "'an elected Governor would to some extent encourage that separatist provincial tendency more than otherwise. There will be far fewer common links with the Centre."

RAMESHWARPRASADv. U.0.1. [PASAYAT,J.] 731 4.2.07. The second issue related to the extent of discretionary powers to be allowed to the Governor. Following the decision to have a nominated Governor, references in the various Articles of the Draft Constitution relating to the exercise of specified functioned by the Governor 'in his discretion' were deleted. The only explicit provisions retained were those relating to Tribal Areas in {\.ssam where the administration was made a Central responsibility. The Governor as agent of the Central Government during the transitional period coulo act independently of his Council of Ministers. Nonetheless, no change was made in Draft Article 143, which referred to the discretionary powers of the Governor. This provision in Draft Article 143 (now Article 163) generated considerable discussion. Replying to it, Dr. C Ambedkar maintained that vesting the Governor with certain discretionary powers was not contrary to responsible Government.

Xx xx xx xx

·l 4.3.09. The Constitution contains certain provisions expressly D providing for the Governor to Act:- (A) in his discretion; or (B) .in his individual judgment; or (C) independently of the State Council of Ministers; vis. E (a)(i) Governors of all the States-Reservation for the consideration of the President of any Bill which, in the opinion of the Governor would, if it became law, so derogate from the powers of the High Court as to endanger the position which that Court is by the Constitution designed to fill (Second Proviso to A.rticle 200). F (ii) The Governors of Arunachal Pradesh, Assaw, Meghalaya, Mizoram, Nagaland, Sikkim and Tripura have been entrusted with some specific functions to be exercised by them in their discretion (vi de Articles 37 I A, 371 F and 371 H and paragraph 9 of the Six th Schedule). These have been dealt with in detail in Section I4 of this Chapter. (b) The Governors of Arunachal Pradesh and Nagaland have been entrusted with a special responsibility with respect to law and order in their respective States. In the discharge of this responsibility, they are required to exercise their "individual judgment" after consulting their Council of Ministers. This aspect also has been discussed in

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

A Section 14 of this Chapter. f 1

(c) Governors as Administrator of Union Territory-Any Governor, on being appointed by the President as the administrator of an adjoining Union Territory, has to exercise. his functions as administrator, independently of the State Council of Ministers ( Article 239(2). In B fact, as administrator of the Union Territory, the Governor is in the position of an agent of the President.

Xx xx xx

4.4.01. The three important facets of the Governor's role arising out C of the Constitutional provisions, are:- (a) as the constitutional head of the State operating normally under a system of Parliamentary democracy; (b) as a vital link between the Union Government and the State Government; and D (c) As an agent of the Union Government in a few specific areas during normal times (e.g. Article 239(2) and in a number of areas during abnormal situations (e.g. article 356(1)) 4.4.02. There is little controversy about ) above. But the manner in which he has performed the dull role, as envisaged in (a) and (b) above, has attracted much criticism. The burden of the complaints against the behaviour of Governors, in general, is that they are unable to shed their political inclinations, predilections and prejudices while dealing with different political parties within the State. As a result, sometimes the decisions they take in their discretion appear as partisan and intended to promote the interests of the ruling party in the Union Government, particularly ifthe Governor was earlier in a·ctive politics or intends to enter politics at the end of his term. Such a behaviour, it is said, tends to impair the system of Parliamentary democracy, detracts from the autonomy of the States, and generates strain in G Union State relations.

In the Report of the "National Commission to review the working of the Constitution" the role of the Governor has been dealt with in the following words:

"The powers of the President in the matter of selection and appointment H

RAMESHWAR PRASAD v. U.0.1. [PASAYAT, J.] 733

of Governors should not be diluted. However, the Governor of a A State should be appointed by tbe President only after consultation with the Chief Minister of that State. Normally the five year term should be adhered to and removal or transfer should be by following a similar procedure as for appointment i.e. after consultation with the Chief Minister of the concerned State. B (Para 8.14.2)

In the matter of selection of a Governor, the following matters mentioned in para 4.16.0 I of Volume I of the Sarkaria Commission Report should be kept in mind:- c (i) He should be eminent in some walk of life. (ii) He should be a person outside the State. (iii) He should be a detached figure and not too intimately connected with the local politics of the State; and D (iv) He should be a person who has not taken too great a part in politics generally, and particularly in the recent past. In selecting a Governor in accordance with the above criteria, persons, belonging to the minority groups continue to be given a chance as hitherto. (para 8.14.3) E There should be a time-limit-say a period of six months within which the Governor should take a decision whether to grant assent or to reserve a Bill for consideration of the President. If the Bill is reserved for consideration of the· President, there should be a time- limit, say of three months, within which the President should take a F decision whether to accord his assent or to direct the Governor to return it to the State Legislature or to seek the opinion of the Supreme Court regarding the constitutionality of the Act under Article 143. (Para 8.14.4.)

8.14.6. Suitable amendment shouid be made in the Constitution so that the assent given by the President should avail for all purposes of relevant articles of the Constitution. However, it is desirable that when a Bill is sent for the President's assent, it would be appropriate to draw the attention of the President to all the articles of the Constitution. which refer to the need for the assent of the President H

734 SUPREME COUR f REPORTS 12006] I S.C.R.

A to avoid any doubts in court proceedings. 1

8.14. 7. A suitable ·article should be inserted in the Constitution to the effect that an assent given by the President to an Act shall not he permitted to be argued as to whether it was given for one purpose or another. When the President gives his assent to the Bill, it shall be B deemed to have been given for all purposes of the Constitution.

8.14.8. The following proviso may be added to Article 111 of the Constitution:

"Provided that when the President declares that he assents to the c Bill, the assent shall be deemed to be a general assent for all purposes of the Constitution."

Suitable amendment may also be made in Article 200.

Article 356 should not be deleted . .But it must be used sparingly and only as a remedy of the last resort and after exhausting action D under other articles like 256, 257 and 355.

(Paras 8.18 and 8.19.2)

8.16-Use-Misuse -of Article 356

E "Since the coming into force of the Constitution on 26th January, 1950, Article 356 and analogous provisions have been invoked 111 times. According to a Lok Sabha Secretariat study, on 13 occasions the analogous provision namely Section 51 of the Government of Union Territories Act, 1963 was applied to Union Territories of which only Pondicherry had a legislative assembly until the occasion when it was last applied. In the remaining 98 instances the Article was applied I0 times technically due to the mechanics of the Constitution in circumstances like re-organisation of the States, delay in completion of the process of elections, for revision of proclamation and there being no party with clear majority at the end of an election. In the remaining 88 instances a close scrutiny of records would show that in as many as 54 cases there were apparent circumstances to warrant invocation of Article 356. These were instances of large scale defections leading to reduction of the ruling party into minority, withdrawal of support of coalition partners, voluntary resignation by the government in view of widespread agitations, large scale militancy, H

RAMESHWARPRASADv. U.0.1. [PASAYAT. J.] 735 judicial disqualification of some members of the ruling party causing A loss of majority in the House and there being nQ alternate· party capable of forming a Government. About 13 cases of possible misuse are such in which defections and dissensions could have been alleged to be result of political manoeuvre or cases in which floor tests could have finally proved loss of support but were not resorted to. In 18 B cases common perception is that of clear misuse. These involved the dismissal of 9 State Governments in April 1977 and an equal number in February 1980. This analysis shows that number of cases of imposition of President's Rule out of 111, which could be considered as a mis-use for dealing with political problems or considerations irrelevant for the purposes in that Article such as mat-administration in the State are a little over 20. Clearly in many cases including those arising out of States Re-organisation it would appear that the President's Rule was inevitable. However, in view of the fact that Article 356 represents a giant instrument of constitutional control of one tier of the constitutional structure over the other raises strong misapprehensions.

8.17- Sarkaria Commission- Chapter 6 of the Sarkaria Commission Report deals with emergency provisions, namely, Articles 352 to 360. The Sarkaria Commissfon has made 12 recommendations; 11 of which are related to Article 356 while I is related to Article 355 of the E Constitution. Sarkaria Commission also made specific recommendations for amendment of the Constitution with a view to protecting the States from what could be perceived as a politically f driven interference in self-governance of States. The underlined theme of the recommendations is to promote a constitutional structure and F culture that promotes co-operative and sustained growth of federal institutions set down by the Constitution.

8.19. Need for conventions-

Xx xx xx xx G 8.19.5- In case of poiitical breakdown, the Commission recommends that before issuing a proclamation under Article 356 the concerned State should be given an opportunity to explain its position and redress the situation, unless the situation is such, that following the above course would not be in the interest of security of State, or defence of H the country, or for other reasons necessitating urgent action.

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

A 8.20. Situation of Political breakdown

Xx xx xx xx

8.20.3. The Commission recommends that the question whether the Ministry in a State has lost the confidence of the Legislative Assembly B or not, should be decided only on the floor of the Assembly and nowhere else. If necessary, t!1e Union Government should take the required steps, to enable the Legislative Assembly to meet and freely transact its business. The Governor should not be allowed to dismiss the Ministry, so long as it enjoys the confidence of the House. It is only where a Chief Minister refuses to resign, after his Ministry is c defeated on a motion of no-confidence, that the Governor can dismiss the State Government. In a situation of political breakdown, the Governor should explore all possibilities of having a Government enjoying majority support in the Assembly. If it is not possible for such -a Government to be installed and if fresh elections can be held D without avoidable delay, he should ask the outgoing Ministry, (if there is one), to continue as a caretaker government, provided the Ministry was defeated solely on a issue, unconnected with any allegations of maladministration or corruption and is agreeable to continue. The Governor should then dissolve the Legislative Assembly, leaving the resolution of the constitutional crisis to the electorate. E 8.20.4. The problem of political breakdown would stand largely resolved if the recommendations made in para 4.20.7 in Chapter 4 in regard to the election of the leader of the House (Chief Minister) and the removal of the Government only by a constructive vote of no- F confidence are accepted and implemented.

8.20.5. Normally President's Rule in a State should be proclaimed on the basis of Governor's Report under article 356( I). The Governor's report should be a "speaking document", containing a precise and clear statement of all material facts and grounds, on the basis of which the President may satisfy himself, as to the existence or otherwise of the situation contemplated in Article 356.

8.21. Conslilu/ionu/ Amendments

8.21.1- Article 356 has been amended I 0 times principally by way of amendment of clause 356(4) and by substitution/omission of proviso to Article 356(5). These were basically procedural changes. Article

RAMESHWAR PRASAD r. U.0.1. [PASAYAT. J.] 737 356, as amended by Constitution (44th Amendment) provides that a A resolu.tion with respect to the continuance in force of a proclamation for any period beyond one year from the date of issue of such proclamation shall not be passed by either House of Parliament unless two conditions are satisfied, viz:-

(i) that a proclamation of Emergency is in operation in the whole B of India or as the case may be, in the whole or any part of the State; ) .,. and

(ii) that the Election Commission certifies that the continuance in force of the proclamation during the extended period is necessary on account of difficulties in holding general elections to the Legislative C Assembly of the State concerned.

8.21.2. The fulfillment of these two conditions together are a requirement precedent to the continuation of the proclamation. It could give rise to occasions for amendment of the Constitution from time ) to time merely for the purpose of this clause as happened in case of D Punjab. Circumstances may arise where even without the proclamation of Emergency under Article 352, it may be difficult to hold general elections to the State Assembly. In such a situation continuation of President's Rule may become necessary. It may, therefore, be more practicable to delink the two conditions allowing for operation of each condition in its own specific circumstances for continuation o.f the President's Rule. This would allow for flexibility and save the Constitution from the need to amend it from time to time.

8.21.3. The Commission recommends that in clause (5) of Article 356 of the Constitution, in sub-clause (a) the word "and" occurring at the end should be substituted by "or" so that even without the State being under a proclamation of Emergency, President's rule may be continued if elections cannot be held.

8.21.4. Whenever a proclamation under Article 356 has been issued and approved by the Parliament it may become necessary to review the continuance in force of the proclamation and to restore the democratic processes earlier than the expiry of the stipulated period. The Commission are of the view that this could be secured by incorporating safeguards corresponding, in principal, to clauses (7) and (8) of Article 352. The Commission, therefore, recommends that clauses (6) and (7) under Article 356 may be added on the following H

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

A lines: "(6) Notwithstanding anything contained in the foregoing clauses, the President shall revoke a proclamation issued under clause (I) or a proclamation varying such proclamation if the House of the Peopk passes a resolution disapproving, or, as the case may be, disapproving the continuance in force of, such proclamation. (7) Where a notice in writing signed by not less than one-tenth of the total B number of members of the House of the People has been given, of their intention to move a resolution for disapproving, or, as the case may be, for disapproving the continuance in force of, a proclamation -< , issued under clause (I) or a proclamation varying such proclamation:

(a) to the Speaker, if the House is in session; or c (b) to the President, ifthe House is not in session, a special >itting of the House shall be held within fourteen days from the date on which such notice is received by the Speaker, or, as the case may be. by the President, for the purpose of considering such resolution "

D 8.22- Dissolution of Assembly

8.22.1. When it is decided to issue a proclamat.«11 under Article 356( I), a matter for consideration that arises is whetha the Legislative Assembly should also be dissolved or not. Article 356 does not explicitly provide for dissolution of the Assembiy. One opinion is E that if till expiry of two months from the Presidential Proclamation and on the approval received from both Houses of Parliament the Legislative Assembly is not dissolved, it would give rise to operational disharmony. Since the executive power of the Union or State is co- extensive with their legislative powers respectively, bicameral operations of the legislative and executive powers, both of the State F Legislature and Parliament in List II of VII Schedule, is an anathema to the democratic principle and the constitutional scheme. However, the majority opinion in the Bommai judgment holds that the rationale of clause (3 J that every proclamation issued under Article 356 shall be laid before both Houses of Parliament and shall cease to operate at the expiry of two months unless before the expiration of that period it has been approved by resolutions passed by both Houses of Parliament. is to provide a salutary check on the executive power entrenching parliamentary supremacy over the executive.

8.:!2.2 The Commission having considered these two opinions in the background of repeated criticism of arbitrary use of Article 356 by

RAMESHWAR PRASAD v. U.0.1. [PASAYAT,J.] '739 the executive, is of the view that the check provided under clause 3 A of Article 356 would be ineffective by an irreversible decision before Parliament has had an opportunity to consider it. The power of dissolution has been inferred by reading sub-clause (a) of clause I of Article 356 along with Article 174 which empowers the Governor to dissolve Legislative Assembly. Having regard to the overall constitutional scheme it wou Id be necessary to secure the exercise of consideration of the proclamation by the Parliament before the Assembly is dissolved.

8.22.3. The Commission, therefore, recommends that Article 356 should be amended to ensure that the State Legislative Assembly should not be dissolved either by the Governor or the President before the Proclamation issued under Article 356(1) has been laid before Parliament and it as had an opportunity to consider it.

It would also be appropriate to take note of very enlightening discussions ) in the Constituent Assembly which throw beacon light on the role of D Governors, parameters of powers exercisable under Articles 174 and 356 of the Constitution.

Constituent Assembly met on !st June. 1949

Article 143 E (Amendment Nos. 2155 and 2156 were not moved)

I ) H. V. Karnath (C.P. & Berar: General): Mr. President, Sir, I move:

"That in clause (I) of Article 143, the words 'except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion' be deleted."

If this amendment were accepted by the House, this clause of Article 143 would read thus :-

"There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the President in the exercise of his functions." ~ Sir, it appears from a reading of this clause that the Government of India Act of 1935 has been copied more or less blindly without mature consideration. There is no strong or valid reason for giving H

740 SUPREME COURT REPORTS [2006 J I S.C.R. .... A the Governor more authority either in his discretion or otherwise vis- a-vis his ministers, than has been given to the President in relation to his ministers. If we turn to Article 61 (1), we find it reads as follows:-

"There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his B functions."

When you, Sir, raised a very important issue, the other day, Dr. Ambedkar clarified this clause by saying that the President is bound , ' to accept the advice of his ministers in the exercise of all of his functions. But here Article 143 vests certain discretionary powers in c the Governor, and to me it seems that even as it was. it was bad enough, but now after having amended Article 131 regarding election of the Governor and accepted nominated Governors. it would be wrong in principle and contrary to the tenets and principles of constitutional Government, which you are going to build up in this country. It would be wrong I say, to invest a Governor with these .... D additional powers, namely, discretionary powers. 1 feel that no departure from the principles of constitutional Government should be "" favoured except for reasons of emergt:ncy and these discretionary powers must be done away with. I hope this amendment of mine will commend itself to the House. I move, Sir. E Prof. K. T. Shah (Bihar: General) : Mr. President, 1 beg to move: ,,

"That in clause (I) of Article 143, after the word 'head a comma be placed and the words 'who shall be responsible to the Governor and shall' be inserted and the word to' be deleted."

F So, that the amended Article would read.

"(l) There shall be a Council of Ministers with the Chief Minister at the head who shall be responsible to the Governor and shall aid and advise the Governor in the exercise of his functions ...... etc."

Sir, this is a logical consequence of the general principle of this Draft G Constitution, namely, that the Government is to be upon the collective responsibility of the entire Cabinet to the legislature. At the same .. time, in the Cabinet the Prime Minister or the Chief Minister or by whatever title he is described would be the Principal Adviser and I would like to fix the responsibility definitely by the Constitution on H

RAMESl-IWAR PRASADv_ U.0.1. [PASAYAT,J.J 741

the Chief Minister, the individual Ministers not being in the same A position. Whatever may be the procedure or convention within the Cabinet itself, however the decisions of the Cabinet may be taken, so far as the Governor is concerned, I take it that the responsibility would be of the Chief Minister who will advise also about the appointment of his colleagues or their removal if it should be necessary. B It is but in the fitness of things that he should be made directly responsible for any advice tendered to the Constitutional head of the State, namely, the Governor. As it is, in my opinion, a clear corollary from the principles we have so far accepted, l hope there would be no objection to this amendment.

(AmetiJments Nos. 2159 to 2163 were not moved.) c Mr. President: There is no other amendment. The Article and the amendments are open to discussion.

Shri T. T. Krishnamachari : Mr. President, I am afraid l will have to oppose the amendment moved by my honourable Friend Mr. Karnath, D only for the reason that he has not understood the scope 'of the clearly and his amendment arises out of a misapprehension.

Sir, it is no doubt true, that certain words from this Article may be removed, namely, those which refer to the exercise by the Governor of his functions where he has to use his discretion irrespective of the E advice tendered by his Ministers. Actually, I think this is more by way of a safeguard, because there are specific provisions in this Draft Constitution which occur subsequently where the Governor is empowered to act in his discretion irrespective of the advice tendered by his Council of Ministers. There are two ways of formulating the p idea underlying it. One is to make a mention of this exception in this Article 143 and enumerating the specific power of the Governor where he can exercise his discretion in the that occur subsequently, or to leave out any mention of this power here and only state is in the appropriate . The former method has been followed. Here the general proposition is stated that the Governor has normally to act on the G advice of his Ministers except in so far as the exercise of his discretions _£ covered by those in the Constitution in which he is specifically \

empowered to act in his discretion. So long as there are Articles occurring subsequently in the Constitution where he is asked to act in his discretion, which completely cover all cases of departure from H

742 SI ;pREME COURT REPORTS 12006] I S.C.R.

A the normal practice to which I see my honourable Friend Mr. Karnath has no objection, I may refer to Article 188. I see no harm in the provision in this Article being as it is. It happens that this House decides that in all the subsequent Articles, the discretionary power should not be there, as it may conceivably do, this particular provision will be of no use and will fall into desuetude. The point that my B honourable Friend is trying to make, while he concedes that the discretionary power of the Governor can be given under Article 188, seems to be pointless. If it is to be given in Article 188, there is no + ' harm in the mention of it remaining here. No harm can arise by specific mention of this exception of Article 143. Therefore, the serious c objection that Mr. Karnath finds for mention of this exception is pointless. l therefore think that the Article had better be passed without any amendment. If it is necessary for the House either to limit the discretionary power of the Governor or completely do away with it, it could be done in the Articles that occur subsequently where specific mention is made without which this power that is mentioned here cannot at all be exercised. That is the point I would like to draw the attention of the House to and I think the Article had better be passed as it is.

Dr. P. S. Deshmukh (C. P. & Berar: General): Mr. President, Mr. T. T. Krishnamachari has clarified the position with regard to this exception which has been added to clause (I) of Article 143. If the Governor is, in fact, going to have a discretionary power, then it is necessary that this clause which Mr. Karnath seeks to omit must remain.

Sir, Besides this, I do not know if the Drafting Committee has deliberately omitted or they are going to provide it at a later stage, and I would like to ask Dr. Ambedkar whether it is not necessary to provide for the Governor to preside at the meetings of the Council of Ministers. I do not find any provision here to this effect. Since this Article 143 is a mere reproduction of section 50 of the Government G of India Act, 1935, where this provision does exist that the Governor in his discretion may preside at the meetings of the Council of Minister, I think this power is very necessary. Otherwise, the Ministers may exclude the Governor from any meetings whatever and this power unless specifically provided for. would not be available to the Governor. I would like to draw the attention of the members of the H

RAMESHWAR PRASAD v. U.O.l. [PASAYAT. J.] 743

Drafting Committee to this and to see if it is possible either to accept A an amendment to Article 143 by leaving it over or by making this provision in some other part. I think this power of the Governor to preside over the meetings of the Cabinet is an essential one and ought to be provided for.

Shri Brajeshwar Prasad: Mr. President, Sir, the Article provides- B "That there shall be a Council of Minister with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions".

Sir, I am not a constitutional lawyer but I feel that by the Provisions C of this Article the Governor is not bound to act according co the advice tendered to him by his Council of Ministers. It only means that the Ministers have the right to tender advice to Governor. The Governor is quite free to accept or to reject the advice so tendered. In another sphere of administration the Governor can act in the exercise of his functions in his discretion. In this sphere the Ministry has not got the power to tender any advice. Of course it is left open to the Governor to seed the advice of .the Ministers even in this sphere.

I feel that we have not taken into account the present facts of the situation. We have tried to copy and imitate the constitutions of the different countries of the world. The necessity of the hour requires that the Governor should be vested not only with the power to act in his discretion but also with the power to act in his individual judgment. I feel that the Governor should be vested with the power of special responsibilities which the Governor under the British regime were vested in this country. I feel that there is a dearth of leadership in the provinces. Competent men are not available and there are all kinds of things going on in the various provinces. Unless the Governor is ve.sted with large powers it will be difficult to effect any improvement in the Provincial administration. Such a procedure may be undemocratic but such a procedure will be perfectly right in the interest of the country. I feel there is no creative energy left in the middle class intelligentsia of this country. They seem to have become bereft of initiative and enterprise. The masses who ought to be the rulers of this land are down-trodden and exploited in all ways. Under these circumstances there is no way left open but for the Government of India to take the Provincial administrations in its own hands. I feel H

744 SUPREME COURT REPORTS (2006[ I S.C.R.

A that we are on the threshold of a revolution in this country. There will be revolution, bloodshed and anarchy in th is country. I feel that at this juncture it is necessary that all powers should remain centralised in the hands of the Government of India. In certain provinces the machinery of law and order seems to have completely broken down. Dacoities, arson, loot, murder and inflationary conditions are rampant. B I am opposed to this Article, because I am convinced that federalism cannot succeed in a country which is passing through a transitory period. The national economy of America is fully developed. It can r ' afford to have a federal form of Government. In a country where there is no room for expansion and for economic development, there c is no necessity for a centralised economy. In India when our agriculture, industry, minerals etc. are in an incipient stage of development, it is necessary that power must be vested in the hands of the Government of India. Federalism was in vogue in the 19th century when the means of communications were undeveloped. The technical knowledge and resources at the disposal of Governments in D ancient times were of a very meager character. Today the situation has completely changed. Means of communications have developed rapidly. Technical knowledge and the necessary personnel at the disposal of the Government of India are of such a wide character that it can undertake to perform all the functions which a modern E Government is expected to perform. There is another reason why I am opposed to this Article. In this country there is no scope for federalism. All governments have become more or less unitary in character. lfwe are to escape political debacles, economic strangulation and military defeats on all fronts, then our leaders and statesmen must learn to think in unorthodox terms: otherwise there is no future for this country.

Pandit Hirday Kunzru: (United Provinces: General): Mr. President, I should like to ask Dr. Ambedkar whether it is necessary to retain after the words "that the Governor will be aided and advised by his Ministers'', the words ·•except in regard to certain matter in respect of which he is to exercise his discretion". Supposing these words, which are reminiscent of the old Government of India Act and the old order, are omitted, what harm will be done 9 The functions of the Ministers legally will be only to aid and advice the Governor. The Article in which these words occur does not lay down that the Governor shall be guided by the advice of his Ministers but it is expected that in

RAMESH WAR PRASAD v. U.0.l. [PASAY AT, J.] 745

accordance with the Constitution-al practice prevailing in all countries where responsible Government exists the Governor will in all matters accept the advice of his Ministers. This does not however mean that where the Statute clearly lays down that action in regard to specified matters may be taken by him on his own authority this Article 143 will stand in his way. B My Friend Mr. T. T. Krishnamachari said that as Article 188 of the Constitution empowered the Governor to disregard the advice of his Ministers and to take the administration of the province into his own hands, it was necessary that these words should be retained, i.e. the, discretionary power of the Governor should be retained. If however, C he assured us, Article 188 was deleted later, the wording of Article 143 could be reconsidered. 1 fully understand this position and appreciate it, but I should like the words that have been objected to by my Friend Mr. Karnath to be deleted. I do not personally think that any harm will be done if they are not retained and we can then consider not merely Article 188 but also Article 175 on their merits; but in spite of the D y assurance of Mr. Krishnamachari the retention of the words objected to does psychologically create the impression that the House is being asked by the Drafting Committee to commit itself in a way to a principle that it might be found undesirable to accept later on. I shall say nothing with regard to the merits of Article 188. I have already briefly expressed my own views regarding it and shall have an opportunity of discussing it fully later when that Article is considered by the House. But why should we, to being with, use a phraseology that it an unpleasant reminder of the old order and that makes us feel that though it may be possible later to reverse any decision that the House may come to now, it may for all practical purposes be regarded as an accomplished fact? I think Sir, for these reasons that it will be better to accept the amendment of my honourable Friend Mr. Karnath, and then to discuss Articles 157 and 188 on their merits.

I should like to say one word more before I close. If Article 143 is passed in its present form, it may give rise to misapprehensions of the kind that my honourable Friend Dr. Deshmukh seemed to be labouring under when he asked that a provision should be inserted entitling the Governor to preside over the meetings of the Council of Ministers. The Draft Const'itution does not provide for this and I think wisely does not provide for this. It would be contrary to the traditions of H

746 SCPRF7vl': COL:RT REPORTS [20061 1 S.C.R.

A n:sponsible government as they have bl:!en established in Great British and the British Dominions. that the Governor or the Governor-General >hould, as a matter of right, preside over the meetings of his cabinet. All that the Draft Constitution does is to lay on the Chief Ministers the duty of informing t.'1e Governor of the decisions come to by the Council of Ministers in regard to administrative matter and the B legislative programme of the government. In spite of this, we see that the Article 143, as it is worded, has created a misunderstanding in the mind of a member like Dr. Deshmukh who takes pains to follow every of the Constitution with care. This is an additional reason why the discretionary power of the Governor should not be referred to in c Article 143. The speech of my friend Mr. Krishnamachari does not hold out the hope that the suggestion that I have made has any chance of being accepted. Nevertheless, I feel it my duty to say that the course proposed by Mr. Karnath is better than what the Drafting Sub-Committee seem to approve.

D Prof. Shibban Lal Saksena (United Provinces: General): Mr. President, Sir, I heard very carefully the speech of my honourable Friend, Mr. Krishnamachari, and :1is arguments for the retention of the words which Mr. Karnath wants to omit. If the Governor were an elected Governor, I could have understood that he should have these discretionary powers. But now we are having nominated Governors E who will function during the pleasure of the President, and I do not think such persons should be given powers which are contemplated in Article 188.

Then, if Article 188 is yet to be discussed - and it may well be rejected then it is not proper to give these powers in this Article F beforehand. If Article 188 is passed, then we may reconsider this Article and add this clause if it is necessary. We must not anticipate that we shall pass Art 1cle 188, after all that has been said in the House about the powers of the Governor.

These words are a reminder of the humiliating past. I am afraid that G if these words are retained, some Governor may try to imitate the Governors of the past and quoit: them as precedents, that th is is how the Governor on such an occasion acted in his discretion. I think in our Constitution as we are now framing it, thest: powers of the Governors are out of place; and no less a person than the honourable H Pandit Gov ind Ballabh Pant had given notice of the amendment which

RAMESHWAR PRASAD v. U.O.l. [PASl\YAT. J.] 747

Mr. Karnath has moved. I think the wisdom of Pandit Pant should be A sufficient, guarantee that this amendment be accepted. It is just possible that Article 188 may not be passed by this House. If there is an emergency, the Premier of the province himself will come forward to request the Governor that an emergency should be declared, and the aid of the Centre should be obtained to meet the emergency. Why B should the Governor declare an emergency over the head of the Premier of the Province? We should see that the Premier and the Governor of a Province are not at logger heads on such an occasion. I \ A situation should not be allowed to arise when the Premier says that he must carry on the Government, and yet the Governor declares an emergency over his head and in spite of his protestations. This will make the Premier absolutely impotent. I think a mischievous Governor may even try to create such a situation if he so decides, or if the President wants him to do so in a province when a party opposite to that in power at the Centre is in power. I think Article 188, even if it is to be retained should be so modified that the emergency should be de£lared by the Governor on the &dvice of the Premier of the province. I suggest to Dr. Ambedkar that these words should not find a place in this Article, and as a consequential amendment, sub-section (ii) of this Article should also be deleted.

Shri Mahavir Tyagi (United Provinces: General): Sir, I beg to differ from my honourable radical Friends Mr. Karnath and Prof. Shibban Lal Saksena, and I think the more powers are given to the provinces, the stiffer must be the guardianship and control of the Centre in the exercise of those powers. That is my view. We have now given up the Centre, and we are going to have nominated Governors. Those Governors are not to be there for nothing. After all, we have to see that the policy of the Centre is carried out. We have to keep the States linked together and the Governor is .the Agent or rather he is the agency which will press for and guard the Central policy. In fact, our previous conception has now been changed altogether. The whole body politic of a country is affected and influenced by the policy of the Centre. Take for instance subjects like Defence involving questions of peace or war, of relationship with foreign countries; of our commercial relations, exports and imports. All these are subjects which affect the whole body politic, and the provinces cannot remain unaffected, they cannot be left free of the policy of the Centre. The H

748 gSlJPREME COliRT RE PORTS [20061 I S.C.R.

A policy which is evoked in the Centre should be followed by all the States, and if the Governors were to be in the hands of the provincial Ministers then there will be various policies in various provinces and the policy of each province shall be as unstable as the ministry. For there would be ministers of various types having different party labels and different programmes to follow. Their policies must differ from one B another; it will therefore be all the more necessary that there must be coordination of programmes and policies between the States and the Central Government. The Governor being the agency of the Centre is the only guarantee to integrate the various Provinces or States. The ' Central Government also expresses itself through the provincial States; c along with their own administration, they have also to function on behalf of the Central Government. A Governor shall act as the agency of the Centre and will Sf'e that the Central policy is sincerely carried out. Therefore the Governor's discretionary powers shou Id not be interfered with. Democratic trends are like a wild beast. Say what you will, democracy goes by the whims and fancies of parties and the masses. There must be some such machinery which will keep this wild beast under control. 1 do not deprecate democracy. Democracy must have its way. But do not let it degenerate into chaos. Moreover the State governments may not be quite consistent in their own policies. Governments may change after months or years: with them will change their policies. The Governors may change too, but the policy and instructions given by the Centre to the Governors will remain practically unchanged. The more the powers given to the States the more vigilant must be the control. The Governor must remain as the guardian of the Central policy on the one side, and the Constitution on the other. His F ~owers therefore should not be interfered with.

Shri B. M. Gupta (Bombay: General): Sir, I think the explanation given by my honourable Friend Mr. T. T. Krishnamachari Should be accepted by the House and the words concerning discretion of the Governor should be allowed to stand till we dispose of Artich~ 175 and Article G 188.

With regard to the suggestion made by the honourable Dr. Deshmukh about the power being given to the Governor to preside over the meetings of the cabinet I have to oppose it. He enquired whether the Drafting Committee intended to make that provision later on. I do not H know the intentions of the Drafting Committee for the future but as

RAMESH WAR PRASAD v. U.0.1. [PASA YAT, J.] 749

,; ., far as the Draft before us is concerned I think the Drafting Committee A has definitely rejected it.

I would invite the attention of the honourable House to Article 147 under which the Governor shall be entitled only to information. If we allow him to preside over the meetings of the Cabinet we would be departing from the position we want to give him, namely that of a B constitutional head. If he presides over the meeting of the Cabinet be shall have an effective voice in shaping the decisions of the Cabinet -~ .I in the entire field of administration, even in fields which are not reserved for his discretionary power. If certain powers have to be given to him, our endeavour should be to restrict them as far as possible, so that the Governor's position as a constitutional head may c be maintained. Therefore, Sir, I oppose the proposal of Dr. Deshmukh.