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

"According to British constitutional conventions, though the power to grant to a Prime Minister a dissolution of Parliament is one of the personal prerogatives of the Sovereign, it is now recognized that the Sovereign will normally accept the advice of the Prime Minister since to refuse would be tantamount to dismissal and involve the Sovereign in the political controversy which inevitably follows the resignation of a Ministry. A Prime Minister is entitled to choose his own time within the statutory five year limit for testing whether his majority in the House of Commons still reflects the will of the electorate. Only if a break up of the main political parties takes place can the personal discretion of the Sovereign become the paramount consideration. There are, however, circumstances when a Sovereign may be free to seek informal advice against that of the Prime Minister. Professor Wade, in Constitutional Law (Wade and Phillips, Eighth Edn. 1970), states these circumstances thus:

"If the Sovereign can be satisfied that (1) an existing Parliament is still vital and capable of doing its job, (2) a general election would be detrimental to the national eccnomy, more particularly if it followed closely on the last election, and (3) he could rely on finding another G Prime Minister who was willing to carry on his Government for a reasonable period with a working majority, the Sovereign could constitutionally refuse to grant a dissolution to the Prime Minister in I - office".

Prof. Wade further observes: H

RAMESHWARPRASADv.U.0.1. [PASAYAT, J.] 791

"It will be seldom that all these conditions can be satisfied. Particularly A dangerous to a constitutional Sovereign is the situation which would arise if having refused a dissolution to the outgoing Prime Minister he was faced by an early request from his successor for a general election. Refusal might be justified if there was general agreement inside and outside the House of Commons that a general election should be delayed and clearly it would be improper for a Prime Minister B to rely on defeat on a snap vote to justify an election".

The observations of Hood Phillips in his latest book, Reform of the Constitution (1970), are relevant:

"There is no precedent in this country of a Prime Minister, whose party has a majority in the Commons, asking for a dissolution in order to strengthen his weakening hold over his own party. If he did ask for a dissolution the better opinion is that the Queen would be entitled, perhaps would have a duty, to refuse. In the normal case when the Sovereign grants a dissolution this is on assumption that the Prime Minister is acting as leader on behalf of his party. Otherwise the electorate could not be expected to decide the question of leadership. So ifthe Sovereign could find another Prime Minister who was able to carry on the government for a reasonable period, she would be justified in refusing a dissolution. Something like this happened in South Africa in 1939 when the question was whether E South Africa should enter the war: the Governor-General refused a dissolution to Hertzog, who resigned and was replaced by Smuts who succeeded in forming a Government.

Xxx xxx xxx F We may first examine the precise import of Article 356 which sanctions President's rule in a State in the event of a break-down of the constitutional machinery. Four our present purpose, it is enough to read the language of clause (l) of the Article: ·.

Article 356(1): G

- -~ 356. Provisions in case of failure of constitutional machinery in State.-( I) If the President, on receipt of report from the Governor of the State or otherwise, is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with H

792 Sl;PREME COURT REPORI S [2006] I S.C.R.

A the provisions of this Constitution, the President may by Proclamation

(a) assume to himself all or any of the functions of the Government of the State a;1d all or any of the powers vested in or exercisable by the Governor or any body or authority in the State other than the Legislature of the State; B (b) declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament;

(c) make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the c objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of this Constitution relating to any body or authority in the State:

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

'The salient features of this provision', in the words of Shri Alladi Krishnaswami Ayyar (speaking in the Constituent Assembly), "are that immediately the proclamation is made, the executive functions (of the State) E are assumed by the President. What exactly does this mean? As members need not be repeatedly reminded on this point, 'the President' means the Central Cabinet responsible to the whole Parliament in which are represented representatives from the various units which form the component parts of the Federal Government. Therefore, the State machinery having failed, the Central F Government assumes the responsibility instead of the State Cabinet. Then, so far as the executive government is concerned, it will be responsible to the Union Parliament for the proper working of the Government in the State. If responsible government in a State functioned properly, the Centre would not and could not interfere.

G While the Proclamation is in operation, Parliament becomes the Legislature for the State, and the Council of Ministers at the Centre is answerable to Parliament in all matters concerning the administration of the ..... State. Any law made pursuant to the powers delegated by Parliament by I -

virtue of the Proclamation is required to be laid before Parliament and is liable to modification by Parliament. Thus, a state under President's rule under H

RAMESHWAR PRASADv.U.0.1. [PASA YAT, J.] 793

"· Article 356 virtually comes under the executive responsibility and control of the Union Government. Responsible government in the State, during the period of the Proclamation, is replaced by responsible government at the Centre in respect of matters normally in the State's sphere.

In discussing Article 356, attention is inevitably drawn to Section 93 of the Government of India Act, 1935. This section had attained a certain notoriety in view of the enormous power that it vested in the Governor and the possibility of its misuse, the Governor being the agent of the British Government. Many of the leading members of the Constituent Assembly had occupied important positions as Ministers in the Provinces following the inauguration of Provincial autonomy and had thus first-hand experience of the working of this particular _section and the possible effect of having in the Constitution a provision like Section 93. There was, therefore, considerable discussion, both in the Constituent Assembly and in the Committees, on the advisability, or necessity, of incorporating the provision in the Constitution. Pandit H.N. Kunzru, who had serious apprehensions regarding this provision, suggested the limiting of the Governor's functions to merely making a report to the President, it being left to the President to take such action as he considered appropriate on the report. Pandit Govind Ballabh Pant agreed with Pandit Kunzru in principle. The former referred in particular to the administrative difficulties that would be created by giving powers to the Governor to act on his own initiative over the head of his Ministers. E The whole question was examined at a meeting of the Drafting Committee with Premiers of Provinces on July 23, 1949. Pandit Pant again expressed the view that the Governor should not come into the picture as an authority exercising powers in his discretion. Armed with such powers, he would be an autocrat and that might lead to friction between him and his Ministers. p Shri Alladi Krishnaswami Ayyar tried io allay apprehensions in the minds of the members of the Constituent Assembly about the similarity between Section 93 of the Government of India Act and the provision made in Article 356 of the Constitution. He said in the Constituent Assembly: G "There is no correspondence whatever between the old section 93 (of the Government oi India Act, 1935) and this except in regard to the language in some parts. Under Section 93. the ultimate responsibility for the working of Section 93 was the Par! iam~nt of great Britain which was certainly representative of the people of India, whereas under the present article the responsibility is that of the Parliament of India H

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

A which is elected on the basis of universal franchise, and I have no doubt that not merely the conscience of the representatives of the State concerned but also the conscience of the representatives of the other units will be quickened and they will see to it that the provision is properly worked. Under those circumstances, except o~ the sentimental objection that it is just a repetition of the old Section 93, B there is no necessity for taking exception to the main principle underlying this article".

In winding up the debate on the emergency provisions, Dr. Abmedkar observed: c "In regard to the general debate which has taken place in which it has been suggested that these articles are liable to be abused. I may say that I do not altogether deny that there is a possibility of these articles being abused or employed for political purposes. But that objection applies to every part of the Constitution which gives power to the Centre to override the Provinces. In fact l share the sentiments expressed by my honourable friend Mr. Gupte yesterday that the proper thing we ought to expect is that such articles will never be called into operation and that they would remain a dead letter. If at all they are brought into operation, I hope the President, who is endowed with these powers, will take proper precautions before actually suspending the administration of the provinces".

Dr. Ambedkar's hope that this provision would be used sparingly, it must be admitted, has not been fulfilled. During the twenty-one years of the functioning of the Constitution, President's rule has been imposed twenty- four times-the imposition of President's rule in Kerala on November I, 1956, F was a continuation of President's rule in Travancore-Cochin imposed earlier on March 23, 1956-the State of Kerala having be•m under President's rule five times and for the longest period. Out of seventeen States (not taking into account PEPSU which later merged into Punjab, and excluding Himachal Pradesh which became a State only recently), eleven have had spells of G President's rule. The kind of political instability in some of the states that we have witnessed and the politics of defection which has so much tarnished the political life of this country were not perhaps envisaged in any measure at ,.. • the time the Constituent Assembly considered the draft Constitution. No Governor would, it can be safely asserted, want the State to be brought under President's rule except in circumstances which leave him with no alternative. H

RAMESHWAR PRASAD v. U.0.1. [PASA YAT. J.] 795 "· The article, as finally adopted, limits the functions of the Governor to A making a report to the President that a situation has arisen in which there has been failure of the constitutional machinery. The decision whether a Proclamation may be issued under Article 356 rests with the President, that is to say, the Union Government. Significantly, the President can exercise the power "on receipt of a report from the Governor or otherwise" if he is satisfied that the situation requires the issue of such a Proclamation. B

Some of the circumstances in which President's rule may have to be imposed .have already been discussed. What is important to remember is that f recourse to Article 356 should be the last resort for a Governor to seek. A frequent criticism of the Governor in this connection is that he sometimes acts at the behest of the Union Government. This criticism emanates largely from c a lack of appreciation of the situations which confront the Governors. Imposition of President's rule normally results in the President vesting the Governor with executive functions which belong to his Council of Ministers ., This is a responsibility which no Governor would lightly accept. Under President's rule he functions in relation to the administration of the State D under the superintendence, direction and control of the President and concurrently with him by virtue of·an order of the President.

As Head of the State, the Governor has a duty to see that the administration of the State does not break down due to political instability. He has equally to take care that responsible Government in the State is not E lightly disturbed or superseded. In ensuring these, it is not the Governor alone but also the political parties which must play a proper role. Political parties come to power with a mandate from the electorate and they owe primary responsibility to the Legislature. The norms of parliamentary government are best maintained by them. F Before leaving this issue, we would like to state that it is not in the event of political instability alone that a Governor may report to the President under Article 356. Reference has been made elsewhere in this report to occasions where a Governor may have to report to the President about any serious internal disturbances in the State, or more especially of the existence G or possibility of a danger of external aggression. In such situations also it may become necessary for the Governor to report to the President for action pursuant to Article 356.

It is difficult to lay down any precise guidelines in regard to the imposition of President's rule. The Governor has to act on each occasion according to H

' 796 SUPREME COURT REPORTS [2006] I S.C.R.

A his best judgment, the guiding principle being, as already stated, that the constitutional machinery in the State should, as far as possible, be maintained.

CONVENTIONS:

Conventions of the Constitution, according to Dicey's classic definition, consist of "customs, practices, maxims, or precepts which are not enforced or recognized by the Courts", but "make up a body not of laws, but of constitutional or political ethics". The broad basis of the operation of conventions has been set out in Prof. Wade's Introduction of Dic~y's Law of the Constitution (1962 edn.). The dominant motives which secure :ibedience to conventions are stated to be:

'"(I) the desire to carry on the traditions of constitutional government; (2) the wish to keep the intricate machinery of the ship of State in working order; (3) the anxiety to retain the confidence of the public, and with it office and power".

These influences secure that the conventions of Cabinet Government, which are based on binding precedent and convenient usage, are observed by successive generations of Ministers. The exact content of a convention may change or even be reversed, but each departure from the previous practice is defended by those responsible as not violating the older precedents. Objections are only silenced when time has proved that the departure from precedent has created a new convention, or has shown itself to be a bad precedent and, therefore, constituted in itself a breach of convention.

F This exposition of the nature of conventions will show that, if they have to be observed and followed, the primary responsibility therefor will rest on those charged with the responsibility of governm~nt. In a parliamentary system, this responsibility unquestionably belongs to the elected representatives of the people who function in the Legislatures. They are mostly members of political parties who seek the suffrage of the electorate on the basis of promises made and programmes announced. The political parties, therefore, are concerned in the evolution of healthy conventions so that they "retain the confidence of the public, and, with it, office and power". .. "I feel that it (the Constitution) is workable, it is flexible and it is strong enough to hold the country together both in peace time and G

RAMESHWAR PRASAD v. U.0.1. [PASAYAT, J.] 797 in war time. Indeed if I may say so, if things go wrong under the new A Constitution, the reason will not be that we had a bad Constitution. What we will have to say is, that Man was vile."

These words were uttered by Dr. Ambedkar in the Constituent Assembly in moving consideration of the draft Constitution. It has become the fashion, when situations arise which may not be the liking of a particular political party, to blame the Constitution. The Governors also inevitably get their share of the blame either because, it is alleged they take a distorted view of the Constitution, or, as is also alleged, because the Constitution permits them to resort to "unconstitutional" acts. The essential structure of our Constitution relating to the functioning of the different branches of government is sound and capable of meeting all requirements. The conventions, or the guide-lines, that we are called upon to consider should be viewed in this background.

Conventions evolve from experience and from trial and error. The working of our Constitution during the past twenty-one years has exposed not so much any weaknesses in our political life. Some of the weaknesses will be evident from the discussions in the earlier part of this Report. The Governors, under our Constitution, do not govern; government is the primary concern of the Council of Ministers which is responsible to the Legislature and the people. Therefore, for a purposeful evolution of conventions, the willing co- operation of the political parties and their readiness to adhere to such conventions are of paramount importance. In recent years, it has been a E regrettable feature of political life in some of the States, with the growing number of splinter parties, some of them formed on the basis of individual or group alignments and not of well-defined programmes or policies, that governments are formed with a leader-a Chief Minister-who comes to that office not as of a right, with the previous acquiescence of followers and the F deference of his colleagues, but as being the most "acceptable" candidate for the time. Much of his time and efforts are, therefore, inevitably spent in finding expedients to keep himself in power and the Cabinet alive".

In Special Reference No. I of2002 case (supra) in paragraphs 55 and 56 it was observed as follows: G

-' "55. It was then urged on behalf of the Union that under Article 174 what is dissolved is an Assembly while what is prorogued is a House. Even when an Assembly is dissolved, the House continues to be in existence. The Speaker continues under Article 94 in the case of the H

798 SUPREME COURT REPORTS [20061 I S.C.R.

A House of the People or under Article 179 in the case of the State Legislative Assembly till the new House of the People or the Assembly is constituted. On that premise, it was further urged that the fresh elections for constituting a new Legislative Assembly have to be held within six months from the last session of the dissolved Assembly.

B 56. At first glance, the argument appeared to be very attractive, but after going deeper into the matter we do not find any substance for the reasons stated hereinafter"

Article 172 provides for duration of the State Legislatures. The Superintendence, direction and control of the elections to Parliament and to C the Legislatures of every State vest in the Election Commission under Article

324. Article 327 provides that Parliament may make provision with respect to all matters relating to, or in connection with, elections to the Legislative Assembly of a State and all other matters necessary for securing the due constitution of the House of the Legislature. Conjoint reading of Article 327 D of the Constitution and Section 73 of the R.P. Act makes the position clear that the Legislative Assembly had been constituted. No provision of the Constitution stipulates that the dissolution can only be after the first meeting of the Legislature. Once by operation of Section 73 of the R.P. Act the House or Assembly is deemed to be constituted, there is no bar on its dissolution.

E Coming to the plea that there was no Legislative Assembly in existence as contended by Mr. Viplav Sharma, appearing in person the same clearly overlooks Section 73 of the R.P. Act. There is no provision providing differently in the Constitution. There is no challenge to the validity of the Section 73 of the R.P. Act, which is in no way repugnant by any provision to the F Constitution. That being so, by operation of Section 73 of the R.P. Act the Assembly was duly constituted. The stand that the Governor was obliged to convene the Session for administering oath to the members and for formation of a Cabinet thereafter has no relevance and is also not backed by any constitutional mandate. There was no compulsion on the Governor to convene a session or to install a Cabinet unless the pre-requisites in that regard were fulfilled. The reports of the Governor clearly indicated that it was not possible to convene a session for choosing a Chief Minister or for formation of a Cabinet. I •

Even if hypothetically it is held that the dissolution notifications are unsustainable, yet restoration of status quo ante is not in the present case the proper relief. As noted supra, no stake was claimed by any person before

RAMESH WAR PRASAD v.U.0.1. IPASAYAT. J.] 799 ., ' the Governor. The documents relied upon to show that a majority existed lack authenticity and some of them even have the stamp of manipulation. The elections as scheduled had reached on an advanced stage. Undisputedly, the Election Commission had made elaborate arrangements. It would be inequitable to put the clock back and direct restoration of stats quo ante.

In Public Law 2005, some interesting write-ups are there which have relevance. They read as follows: ., "Judicial review-Power of the court to limit the temporal effect of the annulment of an administrative decision, postpone the date at which it will produce effects and qualify the extent of the nullity. c Under French welfare law, agreements relating to unemployment allowances are private agreements signed by unions and employers' associations-but they enter into force only if approved by the Minister for .Social Affairs. They then become compulsory for all. Several -~ associations defending the rights of the unemployed brought an action against ministerial decisions approving such agreements. D Standing was granted. The decisions were quashed on procedural grounds, i.e. the composition of the committee which had to be consulted and the way the consultation took place. The issues at stake related to the date at which this annulment would enter into force and to its effects. The matter was an extremely sensitive one, socially and politically; the scope and amount of unemployment allowances. To say nothing would have led to the application of the principle according to which nullity is retroactive. An annulled decision is supposed never to have existed. It is therefore impossible to maintain its effects for a certain time. Such are the strict requirements of the principle of legality. On the other hand, the court cannot disregard the practical consequences of its decision, not only for the parties, but for a larger public, especially in such an area. These consequences may affect not only the functioning of a public service but also the rights of individuals. They may create a legal void, and social havoc.

Hence the idea of allowing the court, when it annuls an administrative decision, to include in its judgmerit specific orders as to whether and ..... ' when the annulment will produce effects and, if so, which persons might be in a special position. Such a discretion has been used for a long time by both European courts. The European Court of Human ., Right' judgment in Marckx v. Belgium (1979-80) 2 E.H.R.R. 330; is an H

800 SlJPRE~lE COURT REPORIS [2006 I I S.C.R.

A apt illustration. As for the ECJ. it construed broadly the second paragraph of Art. 231 EC (formerly Art.174) according to which: "'In the case of a regulation. however. the Court of Justice shall, if it considers this necessary, state which of the effects of the regulation which it has declared void shall be considered as definitive". This derogation to the ex tune effect has been applied in cases relating not B only to regulations, but also to preliminary rulings concerning interpretation (Case C-43175 Defrenne v. Sabena, ( 1976 E.C.R. 455; Case C-61 /79 Denkjavit /taliana ( 1980 E.C.R. 1205; Case C-4/79 Societe Cooperative Providence agricole de la Champagne (1980 ECR 2823; Case C-109179 Maiseies de Beauce (1980 E.C.R. 2882; Case-145/79 c Societe Roque/le Freres ( 1980 E.C.R. 2917), directives (Case C-195/90 European Parliament v. Council ( 1992 E.C.R. 1-4193) and decisions (Case C-22/96) European Parliament v Council ( 1998 E.C.R. 1-3231 ). The ECJ held that the use of such a power was justified in order to take into account "'imperious considerations of legal certainty relating to all interests at stake, public and private". In doing so, however, the D Court's decisions could hann the rights of the very petitioners who wanted the Court to arrive at the decision it took. Hence the dissenting decisions of several national higher courts, such as the Italian Constitutional Court (April 21, 1989, Fragd) and the Conseil d'Etat (June 28, 1985, Office national interprofessionnel des cereales o Societe E Maiseries de Beauce, cone!. Genevois, RTDE, 1986, 145; July 26, 1985; Office national interprofessionnel des cereales, p.233, cone!. Genevois AJDA, 1985; June 13, 1986, Office national interprofessionnel des cereales, cone!. Bonichot, RTDE 1986, 533 ). This is why the ECJ took some precautions to protect the rights of persons who had previously brought an action or an equivalent claim. Some ECJ judgments led to the inclusion of special clauses into the EC Treaty, as shown by the Maastricht Treaty Protocol 2 (the "Barber Declaration") following the ECJ' s judgment in Case C-262/88 Barber v. Guardian Royal Exchange Assurance Group (1991) 1 Q.B. 344). This Protocol limits the effects ratione temporis (before May 17, 1990) of Article 141 EC. The ECJ has been exp Iicit on the considerations it takes into account to use such powers. They relate. on the whole, to legal certainty Jato sensu, i.e. to the concrete effects of its decision on ex isling legal situations, and • • the desirability of avoiding the creation of a legal void. Many European constitutional courts have a similar power. H The Conseil d'Etat had never affirmed that it had such a faculty. It was

1- RAMESHWAR PRASADv.U.0.1. [PASA YAT, J.] 801 not, however, entirely unaware of the issue; in Vassilikiotis, June 26, A '\ 200 I, p. 303 it annulled a ministerial decision in so far as it did not state how the permit necessary for guides in museums and historical monuments would be granted to persons with diplomas of other EU Member States. The judgment added precise and compulsory prescriptions telling the Administration exactly what it should do, even before revising the regulation. Otherwise an unlawful domestic' B regulation would have remained in force, perpetuating discrimination contrary to EC law. It thus held that the Administration was under an . obligation to enact, after a reasonable delay, the rules applying to the persons mentioned above. Meanwhile the decision forbade the Administration to prevent EU national_s from guiding visits on the c ground that they did not possess French diplomas. It belonged to the competent authorities to take, on a case-by-case basis, the appropriate decisions and to appreciate the value of the foreign diplomas (see also July 27, 2001, Titran, P. 411) In Association AC, a case that lent itself to such a move, the Conseil D -< d' Etat decided to innovate and to give administrative courts new powers. The new principles affirmed may be summed up as fo!lows: I. The principle is that an annulled administrative decision is supposed never to have existed.

2. However, such a retroactive effect may have manifestly excessive E consequences in view of (a) the previous effects of the annulled decision and of the situations thus created and (b) the general interest which could make it desirable 'to maintain its effects temporarily. )

3. If so, administrative courts are empowered to take specific decisions as to the limitation of the effects, in time, of the annulment. F

4. They may do so after having examined all grounds relating to the legality of the decision and after asking the parties their opinion on such a limitation.

5. They must take into account (a) the consequences of the retroactivity G of the annulment for the public and private interests at stake and (b) the effects of such a limitation on the principle of legality and on the ~1 right to an effective remedy.

6. Such a limitation should be exceptional. H

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

A 7. The rights of the persons who brought an action, before the court's judgment, against the annulled decision must be preserved.

8. The court may decide that all or part of the effects of the decision prior to its annulment will be regarded as definitive, or that the annulment will come into force at a later time as determined by the B judgment.

In the present case the Conseil d' Etat annulled a number of ministerial decisions. It also annulled other ones, but only from July 1 onwards, thus giving seven weeks to the Minister. The rights of persons who had earlier brought an action were explicitly preserved. C The effects of a third group of annulled decisions were declared to be definitive, with the same reservation.

Several comments are in order on this important judgment. The influence of the ECJ 's case law and of its use of the ex nunc/ex tune effect is evident. The judgment is also an apt illustration of a renewal of the conception of the role of administrative courts. It no longer stops when judgment is given. More and more attention is given to its effects, its practical consequences for all, the way it must be implemented by the Administration and its repercussions on the rights of individuals. Hence the attention given to the ways and means to conciliate the two basic principles of legality and of legal certainty (securite juridique). The latter is more and more seen as a pressing social need, to borrow the vocabulary of the European Court of Human Rights. A strong illustration is the recent case law of the Cour de cassation restricting the scope not only of lois de validation but also of retroactive "interpretative statutes", on the basis of Articles F 6(1) and 13 ECHIR: see Cass.plen. Janaury 24, 2003, Mme X o Association Promotion des handicape's dans le Loiret, and Cass. Civ. April 7, 2004, in Bulletin d'information de la Cour de cassation, March 15, 2004, with the report of Mme Favre. The discretion of the courts is a two-fold one; on whether to use such a faculty and on how to use it. One last-prospective-remark: might the next step be the G limitation. by the courts. of the effects in time of a change in the case

To Sum up:

So far as scope of Article 361 granting immunity to the Governor is H

I ! RAMESH WAR PRASAD v. U.0.1. [PASA YAT. J.] 803 concerned, I am in respectful agreement with the view expressed by Hon'ble the C~ief Justice of India.

(I) Proclamation under Article 356 is open to judicial review, but to a very limited extent. Only when the power is exercised ma/a fide or is based on wholly extraneous or irrelevant grounds, the power of judicial review can be exercised. Principles ofjudicial review which are applicablf when an administrative action is challenged, cannot be applied stricto sensu.

·• (2) The impugned Notifications do not suffer from any constitutional invalidity. Had the Governor tried to stall staking of claim regarding majority that would have fallen foul of the Constitution and the notifications of dissolution would have been invalid. But, the Governor recommended dissolution on the ground that the majority projected had its foundation on unethical and corrupt means which had been and were being adopted to cobble a majority, and such action is not constitutional. It may be a wrong perception of the Governor. But it is his duty to prevent installation of a Cabinet where the majority has been cobbled in the aforesaid manner. It may in a given case be an erroneous approach, it may be a wrong perception, but it is certainly not irrational or irrelevant or extraneous.

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

(4) Hypothetically even if it is said that the dissolution notifications were unconstitutional, the natural consequence is not restoration of status quo ante. The Court declaring the dissolution notifications to be invalid can assess the ground realities and the relevant factors and can mould the .reliefs as the circumstances warrant. In the present case restoration of the status quo ante would not have been the proper relief even if the notifications were declared invalid.

(5) The Assembly is constituted in terms of Section 73 of the R.P. Act on the conditions indicated therein being fulfilled and there is no provision in the Constitution which is in any manner contrary or repugnant to the said provision. On the contrary, Article 327 of the Constitution is the source of power for enactment of Section 73.

(6) In terms of Article 361 Governor enjoys complete immunity. Governor is not answerable to any Court for exercise and performance of powers and H

804 SUPREME COURT REPORTS [2006 j I S.C.R.

A duties of his office or for any act done or purporting to be done by him in the exercise of those powers and duties. However, such immunity does not take away power of the Court to examine validity of the action including on the ground of ma/a fides.

(7) It has become imperative and necessary that right persons are B chosen as Governors if the sanctity of the post as the Head of the Executive of a State is to be maintained.

The writ applications are accordingly dismissed but without any order as to costs.

G.N. Writ Petitions disposed of.