http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 77  

CASE NO.: Writ Petition (civil)  257 of 2005

PETITIONER: Rameshwar Prasad & Ors.

RESPONDENT: Union of India & Anr.

DATE OF JUDGMENT: 24/01/2006

BENCH: Y.K. Sabharwal, B.N. Agrawal & Ashok Bhan

JUDGMENT: J U D G M E N T [With W.P. (C) No.255 of 2005, W.P. (C) No.258 of 2005 and  W.P.(C) No.353 of 2005]

Y.K. Sabharwal, CJI.

       The challenge in these petitions is to the  constitutional validity of Notification dated 23rd May,  2005 ordering dissolution of the Legislative Assembly of  the State of Bihar. It is a unique case.  Earlier cases that  came up before this Court were those where the  dissolutions of Assemblies were ordered on the ground  that the parties in power had lost the confidence of the  House. The present case is of its own kind where before  even the first meeting of the Legislative Assembly, its  dissolution has been ordered on the ground that attempts  are being made to cobble a majority by illegal means and  lay claim to form the Government in the State and if  these attempts continue, it would amount to tampering  with constitutional provisions.  One of the questions of far reaching consequence  that arises is whether the dissolution of Assembly under  Article 356(1) of the Constitution of India can be ordered  to prevent the staking of claim by a political party on the  ground that the majority has been obtained by illegal  means.  We would first note the circumstances which led  to the issue of impugned notification.  Factual Background         Election to the State of Bihar was notified by the  Election Commission on 17th December, 2004.  Polling for  the said elections were held in three phases, i.e., 3rd  February, 2005, 5th February, 2005 and 13th February,  2005.  Counting of votes took place on 27th February,  2005.  Results of the said elections were declared by the  Election Commission. On 4th March, 2005, Notification  was issued by the Election Commission in pursuance of  Section 73 of Representation of People Act, 1951 (for  short  ’the RP Act, 1951’) duly notifying the names of the  members elected for all the constituencies along with  party affiliation.         Bihar Legislative Assembly comprises of 243  members and to secure an absolute majority support of  122 Members of Legislative Assembly (in short ’MLAs’), is  required. National Democratic Alliance (for short ’NDA’), a  political coalition of parties comprising of the Bharatiya  Janata Party (for short ’BJP’) and the Janata Dal (United)   (for short ’JD(U)’) was the largest pre-poll combination

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 77  

having the support of 92 MLAs.  The party-wise strength  in the Assembly was as under:         "(1)    NDA                             92         (2)     RJD                             75         (3)     LJP                             29         (4)     Congress (I)            10         (5)     CPI (ML)                        07         (6)     Samajwadi Party 04         (7)     NCP                             03         (8)     Bahujan Samaj Party02         (9)     Independents            17         (10)    Others                  09"

       Report dated 6th March, 2005 was sent by the  Governor to the President, recommending newly  constituted Assembly to be kept in suspended animation  for the present.  It reads as under: "Respected Rashtrapati Jee, The present Bihar Legislative  Assembly has come to an end on 6th  March, 2005.   The Election  Commission’s notification with reference  to the recent elections in regard to  constitution of the new Assembly issued  vide No. 308/B.R.-L.A./2005 dated 4th  March 2005 and 464/Bihar-LA/2005,  dated the 4th March, 2005 is enclosed  (Annexure-I) 2.      Based on the results that have  come up, the following is the party-wise  position:                 1.      R.J.D.  :       75                 2.      J.D.(U) :       55                 3.      B.J.P.  :       37                 4.      Cong(I) :       10                 5.      B.S.P.  :       02                 6.      L.J.P.  :       29                 7.      C.P.I.  :       03                 8.      C.P.I.(M)       :       01                 9.      C.P.I.(M.L.):   07                 10.     N.C.P.  :       03                 11.     S.P.            :       04                 12.     Independent:    17                 ---------------------------------------                                                 243                      ________________________

The R.J.D. and its alliance position is as  follows:

               1.      R.J.D.  :       75                 2.      Cong.(I)        :       10                 3.      C.P.I.  :       03 (support letter       not recd.)                 4.      C.P.I.(M)       :       01                 5.      N.C.P.  :       03                 _________________________                                                 92                 _________________________

The N.D.A. alliance position is as follows:

               1.      B.J.P.  :       37                 2.      J.D.(U) :       55                                         92

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 77  

               _______________________

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

4.      A delegation of members of LJP met  me in the afternoon of 28.2.2005 and  they submitted a letter (Annexure II)  signed by Shri Ram Vilas Paswan,  President of the Party, stating therein  that they will neither support the RJD  nor the BJP in the formation of  Government.  The State President of  Congress Party, Shri Ram Jatan Sinha,  also met in the evening of 28.2.2005. 5.      The State President of BJP, Shri  Gopal Narayan Singh along with  supporters met me on 1.3.2005.  They  have submitted a letter (Annexure III)  stating that apart from combined alliance  strength of 92 (BJP & JD(U) they have  support of another 10 to 12  Independents.  The request in the letter  is not to allow the RJD to form a  Government. 6.      Shri Dadan Singh, State President  of Samajwadi Party, has sent a letter  (Annexure IV) indicating their decision  not to support the RJD or NDA in the  formation of the Govt.  He also met me  on 2.3.2005. 7.      Shri Ram Naresh Ram, Leader of  the CPI (ML-Lib.), Legislature Party along  with 4 others met me and submitted a  letter (AnnexureV) that they would not  support any group in the formation of  Government. 8.      Shri Ram Vilas Paswan, National  President of LJP, along with 15 others  met me and submitted another letter  (Annexure VI).  They have reiterated their  earlier stand. 9.      The RJD met me on 5.3.2005 in the  forenoon and they staked claim to form a  Government indicating the support from  the following parties :                 1.      Cong(I) :       10                 2.      NCP             :       03                 3.      CPI(M)  :       01                 4.      BSP             :       02 (Copy enclosed as Ann.VII)

The RJD with the above will have only  91. They have further claimed that some of  the Independent members may support  the RJD.  However, it has not been  disclosed as to the number of  Independent MLAs from whom they  expect support nor their names.         Even if we assume the entire

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 77  

Independents totalling 17 to extend  support to RJD alliance, which has a  combined strength of 91, the total would  be 108, which is still short of the  minimum requirement of 122 in a House  of 243. 10.     The NDA delegation led by Shri  Sushil Kumar Modi, MP, met me in the  evening of 5.3.2005.  They have not  submitted any further letter.  However,  they stated that apart from their pre- election alliance of 92, another 10  Independents will also support them and  they further stated that they would be  submitting letters separately.  This has  not been received so far.  Even assuming  that they have support of 10  Independents, their strength will be only  102, which is short of the minimum  requirement of 122. 11.     Six Independent MLAs met me on  5.3.2005 and submitted a letter in which  they have claimed that they may be  called to form a Government and they  will be able to get support of others  (Annexure VIII).  They have not  submitted any authorization letter  supporting their claim. 12.     I have also consulted the Legal  experts and the case laws particularly  the case reported in AIR 1994 SC 1918  where the Supreme Court in para 365 of  the report summarised the conclusion.   The relevant part is para 2, i.e., the  recommendation of the Sarkaria  Commission do merit serious  consideration at the hands of all  concerned.  Sarkaria Commission in its  report has said that Governor while going  through the process of selection should  select a leader who in his judgment is  most likely to command a majority in the  Assembly.  The Book "Constitution of  India" written by Shri V.N. Shukla (10th  edition) while dealing with Article 75 and  Article 164 of the Constitution of India  has dealt with this subject wherein it has  quoted the manner of selection by the  Governor in the following words : "In normal circumstances the  Governor need have no doubt as to  who is the proper person to be  appointed; it is leader of majority  party in the Legislative Assembly,  but circumstances can arise when it  may be doubtful who that leader is  and the Governor may have to  exercise his personal judgment in  selecting the C.M.  Under the  Constitutional scheme which  envisages that a person who enjoys  the confidence of the Legislature  should alone be appointed as C.M."         In Bommai’s case referred to above  in para 153, S.C. has stated with regard

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 77  

to the position where, I quote : "After the General Elections held,  no political party or coalition of  parties or group is able to secure  absolute majority in the Legislative  Assembly and despite the  Governor’s exploring the  alternatives, the situation has  arisen in which no political party is  able to form stable Government, it  would be case of completely  demonstrable inability of any  political party to form a stable  Government commanding the  confidence of the majority members  of the Legislature.  It would be a  case of failure of constitutional  machinery." 13.     I explored all possibilities and from  the facts stated above, I am fully satisfied  that no political party or coalition of  parties or groups is able to substantiate  a claim of majority in the Legislative  Assembly, and having explored the  alternatives with all the political parties  and groups and Independents MLAs, a  situation has emerged in which no  political party or groups appears to be  able to form a Government commanding  a majority in the House.  Thus, it is a  case of complete inability of any political  party to form a stable Government  commanding the confidence of the  majority members.  This is a case of  failure of constitutional machinery. 14.     I, as Governor of Bihar, am not able  to form a popular Government in Bihar,  because of the situation created by the  election results mentioned above. 15.     I, therefore, recommend that the  present newly constituted Assembly be  kept in suspended animation for the  present, and the President of India is  requested to take such appropriate  action/decision, as required."

Since no political party was in a position to form a  Government, a notification was issued on 7th March,  2005 under Article 356 of the Constitution imposing  President’s rule over the State of Bihar and the Assembly  was kept in suspended animation.  Another notification  of the same date was also issued, inter alia, stating that  the powers exercisable by the President shall, subject to  the superintendence, direction and control of the  President be exercisable also by the Governor of Bihar. The object of the proclamation imposing President’s  rule was to give time and space to the political process to  explore the possibility of forming a majority Government  in the State through a process of political realignment as  is reflected in the speech of Home Minister Shri Shivraj V.  Patil in the Rajya Sabha on 21st March, 2005 when the  Bihar Appropriation (Vote on Account) Bill, 2005 was  discussed.  The Home Minister said : "\005. But, I would like to make one point  very clear.  We are not very happy to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 77  

impose President’s Rule on the State of  Bihar.  Let there be no doubt in the  minds of any Members of the House; we  are not happy.  After the elections we  would have been happy if Government  would have been formed by the elected  representatives.  That was not possible  and that is why, President’s Rule was  imposed.  But we cannot take pleasure in  saying "Look we did this".  We are not  happy about it.  I would ensure that the  President’s Rule is not continued for a  long time.  The sooner it disappear, the  better it would be for Bihar, for  democracy and for the system we are  following in our country.  But, who is to  take steps in this regard?  It is the  elected representatives who have to take  steps in this respect.  The Governor can  and, I would like to request in this House  that elected representatives should talk  to each other and create a situation in  which it becomes possible for them to  form a Government.  Even if it is minority  Government with a slight margin, there  is no problem\005.."

       The Home Minister gave a solemn assurance to the  nation that the imposition of President’s rule was  temporary and transient and was intended to explore the  possibility of forming a popular Government. According to the petitioners, process of realignment  of forces was set in motion and several political parties  and independent MLAs re-considered their position in  terms of their commitment to provide a majority  Government in deference to the popular wishes of the  people and announced support to the NDA led by Shri  Nitish Kumar.  First such announcement was made by  the entire group of 17 independent MLAs on 8th April,  2005.  The signed declaration was released by these  MLAs to the media.  With the support of 17 independent  MLAs the support base of the NDA rose to 109 MLAs.   Later on, it rose to 115 MLAs with the declaration of  support by the Samajwadi Party (SP), the Bahujan Samaj  Party (BSP) and the Nationalist Congress Party (NCP). Governor of Bihar sent a report on 27th April, 2005  to the President of India, inter alia, stating that the  newspaper reports and other reports gathered through  meeting with various party functionaries/leaders and  also intelligence reports received, indicated a trend to  gain over elected representatives of the people and  various elements within the party and also outside the  party being approached through various allurements like  money, caste, posts etc., which was a disturbing feature.    According to the said report, the situation was fast  approaching a scenario wherein if the trend is not  arrested immediately the consequent political instability  will further give rise to horse trading being practiced by  various political parties/groups trying to allure elected  MLAs.  That it would not be possible to contain the  situation without giving the people another opportunity to  give their mandate through a fresh poll.  The report is  reproduced below in its entirety.         "Respected Rashtrapati Jee,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 77  

       I invite a reference to my D.O.  No.33/GB dated the 6th March, 2005  through which a detailed analysis of the  results of the Assembly elections were  made and a recommendation was also  made to keep the newly constituted  Assembly (constituted vide Election  Commission’s notification No.308/BR- L.A./2005 dated the 4th March, 2005 and  464/Bihar-LA/2005, dated the 4th  March, 2005) in a suspended animation  and also to issue appropriate  direction/decision.  In the light of the  same, the President was pleased to issue  a proclamation under Article 356 of the  Constitution of India vide notification  NO.G.S.R. 162(E), dated 7th March, 2005,  and the proclamation has been approved  and assented by the Parliament. 2.      As none of the parties either  individually or with the then pre-election  combination or with post-election  alliance combination could stake a claim  to form a popular Government wherein  they could claim a support of a simple  majority of 122 in a House of 243, I had  no alternative but to send the above  mentioned report with the said  recommendation. 3.      I am given to understand that  serious attempts are being made by JD-U  and BJP to cobble a majority and lay  claim to form the Government in the  State.  Contacts in JD-U and BJP have  informed that 16-17 LJP MLAs have been  won over by various means and attempt  is being made to win over others.  The  JD-U is also targetting Congress for  creating a split.  It is felt in JD-U circle  that in case LJP does not split then it  can still form the Government with the  support of Independent, NCP, BSP and  SP MLAs and two-third of Congress  MLAs after it splits from the main  Congress party.  The JD-U and BJP  MLAs are quite convinced that by the end  of this month or latest by the first week  of May JD-U will be in a position to form  the Government.  The high pressure  moves of JD-U/BJP is also affecting the  RJD MLAs who have become restive.   According to a report there is a lot of  pressure by the RJD MLAs on Lalu Pd.  Yadav to either form the Government in  Bihar on UPA pattern in the centre, with  the support of Congress, LJP and others  or he should at least ensure the  continuance of President’s rule in the  State. 4.      The National Commission to review  the working of the Constitution has also  noticed that the reasons for increasing  instability of elected Governments was  attributable to unprincipled and  opportunistic political realignment from

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 77  

time to time.  A reasonable degree of  stability of Government and a strong  Government is important.  It has also  noticed that the changing alignment of  the members of political parties so openly  really makes a mockery of our  democracy.         Under the Constitutional Scheme a  political party goes before the electorate  with a particular programme and it sets  up candidates at the election on the  basis of such programmes.  The 10th  Schedule of the Constitution  was  introduced on the premise that political  propriety and morality demands that if  such persons after the elections changes  his affiliation, that should be  discouraged.  This is on the basis that  the loyalty to a party is a norm, being  based on shared beliefs.  A divided party  is looked on with suspicion by the  electorate. 5.      Newspaper reports in the recent  time and other reports gathered through  meeting with various party  functionaries/leaders and also  intelligence reports received by me,  indicate a trend to gain over elected  representatives of the people and various  elements within the party and also  outside the party being approached  through various allurements like money,  caste, posts etc., which is a disturbing  feature.  This would affect the  constitutional provisions and safeguards  built therein.  Any such move may also  distort the verdict of the people as shown  by results of the recent elections.  If  these attempts are allowed to continue  then it would be amounting to tampering  with constitutional provisions. 6.      Keeping in view the above  mentioned circumstances the present  situation is fast approaching a scenario  wherein if the trend is not arrested  immediately, the consequent political  instability will further give rise to horse  trading being practiced by various  political parties/groups trying to allure  elected MLAs.  Consequently it may not  be possible to contain the situation  without giving the people another  opportunity to give their mandate  through a fresh poll.  7.      I am submitting these facts before  the Hon’ble President for taking such  action as deemed appropriate."

According to the petitioners, Lok Janashakti Party  (LJP) had contested elections on the plank of opposing  the then Government led by Rashtriya Janata Dal (RJD),  which again is a constituent of United Progressive  Alliance (UPA) in the Centre.  It had a strength of 29  MLAs in the new assembly.  The leader of LJP Shri Ram  Vilas Paswan had taken the stand that he was opposed to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 77  

RJD as well as NDA led by the BJP.  MLAs belonging to  LJP were in a rebellious mood.  About 22 MLAs belonging  to the LJP assembled on or around 21st May, 2005 and  started working towards a major political realignment in  the stand of the said party.  According to them, 22 LJP  members of the Legislative wing supported by members of  the original political party reached a consensus  subsequently to merge their party with the JD(U).  That,  with this the repolarisation of political forces was  complete.  According to them the proposed merger  between two political formations was in consonance with  the principles enumerated in para 4 of the Tenth  Schedule to the Constitution.  It provides that on a  merger of the political party, all the members of the new  political party with which the merger has taken place if  and only if not less than two-third of the members of the  said party have agreed to the said merger.  It is their  allegation that in order to thwart the formation of a  Government led by JD(U) the Governor of Bihar sent  another report from its Camp Office in Delhi on 21st May,  2005 to the President of India.  It was reiterated in the  report that from the information gathered through reports  from media, meeting with various political functionaries,  as also intelligence reports, a trend was indicated to win  over elected representatives of the people.  In his view a  situation had arisen in the State wherein it would be  desirable in the interest of State that assembly which has  been kept in suspended animation be dissolved so that  the people/electorate could be provided with one more  opportunity to seek the mandate of the people at an  appropriate time to be decided in due course.  The report  dated 21st May, 2005 is reproduced in its entirety as  follows : "Respected Rashtrapati Jee, I invite a reference to my D.O.  letter No.52/GB dated 27th April, 2005  through which I had given a detailed  account of the attempts made by some  of the parties notably the JD-U and BJP  to cobble a majority and lay a claim to  form a Government in the State.  I had  informed that around 16-17 MLAs  belonging to LJP were being wooed by  various means so that a split could be  effected in the LJP.  Attention was also  drawn to the fact that the RJD MLAs  had also become restive in the light of  the above moves made by the JD-U. As you are aware after the Assembly  Elections in February this year, none of  the political parties either individually or  with the then pre-election combination or  with post-election alliance combination  could stake a claim to form a popular  Government since they could not claim a  support of a simple majority of 122 in a  House of 243 and hence the President  was pleased to issue a proclamation  under Article  356 of the Constitution  vide notification No. \026 GSR \026 162 (E)  dated 7th March, 2005 and the Assembly  was kept in suspended animation. The reports received by me in the  recent past through the media and also  through meeting with various political

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 77  

functionaries, as also intelligence  reports, indicate a trend to win over  elected representatives of the people.   Report has also been received of one of  the LJP MLA, who is General Secretary of  the party having resigned today and also  17-18 more perhaps are moving towards  the JD-U clearly indicating that various  allurements have been offered which is  very disturbing and alarming feature.   Any move by the break away faction to  align with any other party to cobble a  majority and stake claim to form a  Government would positively affect the  Constitutional provisions and safeguards  built therein and distort the verdict of the  people as shown by the results in the  recent Elections.  If these attempts are  allowed it would be amounting to  tampering with Constitutional provisions. Keeping the above mentioned  circumstances, I am of the considered  view that if the trend is not arrested  immediately, it may not be possible to  contain the situation.  Hence in my view  a situation has arisen in the State  wherein it would be desirable in the  interest of the State that the Assembly  presently kept in suspended animation is  dissolved, so that the people/electorate  can be provided with one more  opportunity to seek the mandate of the  people at an appropriate time to be  decided in due course."

The report of the Governor was received by Union of  India on 22nd May, 2005 and on the same day, the Union  cabinet met at about 11.00 P.M.  and decided to accept  the report of the Governor and sent the fax message to  the President of India, who had already left for Moscow,  recommending the dissolution of the Legislative Assembly  of Bihar.  This message was received by the President of  India at his Camp office in Moscow at 0152 hrs. (IST).   President of India accorded his approval and sent the  same through the fax message which was received at  0350 hrs. (IST) on 23rd May, 2005.  After due process the  notification was issued formally at 1430 hrs. (IST) on 23rd  May, 2005 dissolving the Bihar Assembly which has been  impugned in these writ petitions. Challenging proclamation dated 23rd May, 2005  issued under Article 356 of the Constitution ordering  dissolution of Bihar Legislative Assembly, petitioners  have also prayed for restoration  of  Election Commission  notification dated 4th May, 2005 issued under Section 73  of the RP Act of 1951. According to the petitioners, the condition precedent  for dissolving the assembly is that there must be  satisfaction of the President that a situation has arisen in  which the Government of a State cannot be carried on in  accordance with the provisions of the Constitution.  That  this satisfaction has to be based on cogent material.   Power of dissolution cannot be used to prevent the  staking of claim for the formation of a Government by a  political party with support of others.  That the assembly

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 77  

was placed under suspended animation with the  intention of providing time and space to political parties  to explore the possibility of providing a majority  Government in the State.  No sooner the process of  realignment was complete ensuring that the NDA led by  Shri Nitish Kumar had the support of over 135 MLAs,  report was sent by the Governor.  The midnight meeting  of the Cabinet was hurriedly called in order to prevent the  formation of a Government.  It was incumbent upon the  Governor to make a meaningful and real effort for  securing the possibility of a majority Government in the  State.  According to them the intention of the Governor  was to prevent the formation of a Government led by Shri  Nitish Kumar.  That there was no material available or in  existence to indicate that any political defection was  being attempted through the use of money or muscle  power.  In the absence of any such material the exercise  of power under Article 356 was a clear fraud on the  exercise of power. That allegations in the Governor’s report of horse  trading was factually incorrect and fictional.  It was  incumbent upon the Governor to verify the facts  personally from the MLAs.  That under the scheme of the  Constitution the decision with regard to mergers and  disqualifications on the ground of defection or horse  trading is vested in the Speaker.  The Governor could not  have attempted to act on that basis and arrogated to  himself such an authority.  Relying heavily on the Nine  Judge Bench judgment of this Court in S.R.Bommai &  Ors. v. Union of India & Ors. [(1994) 3 SCC 1], it was  contended that action of the Governor is mala fide  in  law; irrational, without any cogent material to support  the conclusion arrived at and is based on mere ipse dixit  and, thus, was not sustainable in law.  It was contended  that in exercise of judicial review this Court should quash  the impugned notification and as a consequence restore  the legislative assembly constituted by the Election  Commission notification dated 4th March, 2005. Mr.Soli Sorabjee led the arguments in support of the  challenge to the validity of the impugned notification  contending that the dissolution of the Assembly when  examined in the light of law laid down in Bommai’s case  (supra)  is clearly unconstitutional and deserves to be set  aside and the status quo ante at least as on 7th March,  2005 may be directed. Mr.Viplav Sharma, advocate, appearing in person in  writ petition No.258 of 2005 adopting the arguments of  Mr.Sorabjee further contended that before even elected  candidates making and subscribing oath or affirmation,  as contemplated by Article 188 of the Constitution, even  the Assembly could not be placed under suspended  animation and status quo as on the date of issue of  notification under Section 73 of the RP Act of 1951  deserves to be directed. Mr. Narasimha, appearing in Writ Petition (C)  No.353 for the petitioner, also adopted the arguments of  Mr.Sorabjee but at the same time further contended that  it is not legally permissible to order the dissolution of  Assembly before its meeting even once and the MLAs  being administered the oath as contemplated by the  Constitution.  This was also the submission of Mr. Viplav  Sharma. Arguments on behalf of respondent \026 Union of  India were led by learned Attorney General, Mr. Milon  Banerjee, followed by learned Solicitor General and  Additional Solicitor General, Mr. Gulam Vahanavati and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 77  

Mr. Gopal Subramaniam respectively.  Mr. P.P. Rao,  learned senior advocate argued for State of Bihar.  We  place on record our appreciation for excellent and very  able assistance rendered by all the advocates.  After hearing arguments on the question of the  Governor not being answerable to any Court in view of  immunity granted by Article 361(1) of the Constitution,  we accepted the submission of the Government in terms  of our order dated 8th September, 2005 that notice may  not be issued to the Governor, giving brief reason in order  to be followed by detailed reasons later.  The said order  reads as under : "On the question whether the Governor  could be impleaded in his capacity as the  Governor and whether notice could be  issued to him on the writ petitions in the  context of averments made and the  prayers contained in the petitions and  other aspects highlighted in the order  dated 31st August, 2005, we have heard  Mr. Soli J. Sorabjee, learned senior  counsel appearing in Writ Petition (C)  No.257 of 2005, and Mr. Viplav Sharma,  petitioner-in-person in Writ Petition (C)  No.258 of 2005.  We have also heard the  submissions made by Mr. Milon K.  Banerji, Attorney General for India, and  Mr. Gopal Subramaniam, learned  Additional Solicitor General.         The Constitution of India grants  immunity to the Governor as provided in  Article 361.  Article 361(1), inter alia,  provides that the Governor shall not be  answerable to any court for the exercise  and performance of the powers and  duties of his office or for any act done or  purporting to be done by him in exercise  and performance of those powers and  duties.  It is submitted by learned  Attorney General and Additional Solicitor  General that in view of Article 361(1),  this Court may not issue notice to the  Governor.  While we accept the  submission but, at the same time, it is  also necessary to note that the immunity  granted to the Governor does not affect  the power of the Court to judicially  scrutinize the attack made to the  proclamation issued under Article 356(1)  of the Constitution of India on the  ground of mala fides or it being ultra  vires.  It would be for the Government to  satisfy the court and adequately meet  such ground of challenge.  A mala fide  act is wholly outside the scope of the  power and has no existence in the eyes of  law.  Even, the expression "purporting to  be done" in Article 361 does not cover  acts which are mala fide or ultra vires  and, thus, the Government supporting  the proclamation under Article 356(1)  shall have to meet the challenge.  The  immunity granted under Article 361 does  not mean that in the absence of  Governor, the ground of mala fides or

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 77  

proclamation being ultra vires would not  be examined by the Court.  At this stage,  we have not examined the question  whether the exercise of power by the  Governor was mala fide or ultra vires or  not.  That is a question still to be argued.         These are our brief reasons.  We will  give detailed reason later."

Under the aforesaid factual background, the points  that fall for our determination are : (1)     Is it permissible to dissolve the Legislative  Assembly under Article 174(2)(b) of the  Constitution without its first meeting taking  place? (2)     Whether the proclamation dated 23rd May,  2005 dissolving the Assembly of Bihar is  illegal and unconstitutional? (3)     If the answer to the aforesaid question is in  affirmative, is it necessary to direct status quo  ante as on 7th March, 2005 or 4th March,  2005? (4)     What is the scope of Article 361 granting  immunity to the Governor?         After hearing elaborate arguments, by a brief order  dated 7th October, 2005, the notification dated 23rd May,  2005 was held to be unconstitutional but having regard  to the facts and circumstances of the case, relief directing  status quo ante to restore the Legislative Assembly as it  stood on 7th March, 2005, was declined.  The Order dated  7th October reads as under : "The General Elections to the Legislative  Assembly of Bihar were held in the  month of February 2005.  The Election  Commission of India, in pursuance of  Section 73 of the Representation of the  People Act, 1951 in terms of Notification  dated 4th March, 2005 notified the names  of the elected members.   As no party or coalition of the  parties was in a position to secure 122  seats so as to have majority in the  Assembly, the Governor of Bihar made a  report dated 6th March, 2005 to the  President of India, whereupon in terms of  Notification G.S.R.162(E) dated 7th  March, 2005, issued in exercise of  powers under Article 356 of the  Constitution of India, the State was  brought under President’s Rule and the  Assembly was kept in suspended  animation.  By another Notification  G.S.R.163(E) of the same date, 7th March,  2005, it was notified that all powers  which have been assumed by the  President of India, shall, subject to the  superintendence direction and control of  the President, be exercisable also by the  Governor of the State.  The Home  Minister in a speech made on 21st March,  2005 when the Bihar Appropriation (Vote  on Account) Bill, 2005 was being  discussed in the Rajya Sabha said that  the Government was not happy to impose  President’s Rule in Bihar and would have

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 77  

been happy if Government would have  been formed by the elected  representatives after the election.  That  was, however, not possible and,  therefore, President’s Rule was imposed.   It was also said that the Government  would not like to see that President’s  Rule is continued for a long time but it is  for elected representatives to take steps  in this respect; the Governor can ask  them and request them and he would  also request that the elected  representatives should talk to each other  and create a situation in which it  becomes possible for them to form a  Government.  The Presidential  Proclamation dated 7th March, 2005 was  approved by the Lok Sabha at its sitting  held on 19th March, 2005 and Rajya  Sabha at its sitting held on 21st March,  2005.         The Governor of Bihar made two  reports to the President of India, one  dated 27th April, 2005 and the other  dated 21st May, 2005.  On consideration  of these reports, Notification dated 23rd  May, 2005 was issued in exercise of the  powers conferred by sub-clause (b) of  Clause (2) of Article 174 of the  Constitution, read with clause (a) of the  Notification G.S.R.162(E) dated 7th  March, 2005 issued under Article 356 of  the Constitution and the Legislative  Assembly of the State of Bihar was  dissolved with immediate effect.         These writ petitions have been filed  challenging constitutional validity of the  aforesaid Proclamation dated 23rd May,  2005.  Mr. Soli J. Sorabjee, Senior  Advocate and Mr. P.S. Narasimha,  Advocate and Mr. Viplav Sharma,  advocate appearing-in-person have made  elaborate submissions in support of the  challenge to the impugned action of  dismissing the assembly. On the other hand, Mr. Milon K.  Banerjee, Attorney-General for India, Mr.  Goolam E. Vahanavati, Solicitor General  and Mr. Gopal Subramaniam, Additional  Solicitor General appearing for Union of  India and Mr. P.P. Rao, Senior Advocate  appearing for the State of Bihar also  made elaborate submissions supporting  the impugned Proclamation dated 23rd  May, 2005.         Many intricate and important  questions of law having far reaching  impact have been addressed from both  sides. After the conclusion of the hearing  of oral arguments, written submissions  have also been filed by learned counsel. Fresh elections in State of Bihar  have been notified.  As per press note  dated 3rd September, 2005 issued by  Election Commission of India, the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 77  

schedule for general elections to the  Legislative Assembly of Bihar has been  announced.  According to it, the polling  is to take place in four phases  commencing from 18th October, 2005  and ending with the fourth phase voting  on 19th November, 2005.  As per the said  press note, the date of Notification for  first and second phase of poll was 23rd  September and 28th September, 2005,  date of poll being 18th October, 2005 and  26th October, 2005 respectively.   Notifications for third and fourth phases  of poll are to be issued on 19th and 26th  October, 2005 respectively.         Keeping in view the questions  involved, the pronouncement of  judgment with detailed reasons is likely  to take some time and, therefore, at this  stage, we are pronouncing this brief  order as the order of the court to be  followed by detailed reasons later. Accordingly, as per majority opinion,  this court orders as under: 1.      The Proclamation dated 23rd May,  2005 dissolving the Legislative  Assembly of the State of Bihar is  unconstitutional. 2.      Despite unconstitutionality of the  impugned Proclamation, but having  regard to the facts and  circumstances of the case, the  present is not a case where in  exercise of discretionary jurisdiction  the status quo ante deserves to be  ordered to restore the Legislative  Assembly as it stood on the date of  Proclamation dated 7th March, 2005  whereunder it was kept under  suspended animation."

POINT NO.1 -    Is it permissible to dissolve the  Legislative Assembly under Article 174(2)  (b) of the Constitution without its first  meeting taking place?

       Article 174 of the Constitution deals with the power  of the Governor to summon the House, prorogue the  House and dissolve the Legislative Assembly.  This Court  never had the occasion to consider the question of legality  of dissolution of a Legislative Assembly even before its  first meeting contemplated under Article 172 of the  Constitution.  It has been contended on behalf of the  petitioners by Mr. Narsimha and Mr. Viplav Sharma,  appearing-in-person, that a Legislative Assembly can be  dissolved under Article 174(2)(b) only after its first  meeting is held as postulated by Article 172 of the  Constitution.  The argument is that there cannot be any  dissolution without even members taking oath and the  Legislative Assembly coming into existence.  What does  not exist, cannot be dissolved, is the submission.  In this  regard, the question to be considered also is whether the  date for first meeting of the Legislative Assembly can be  fixed without anyone being in a position to form the  Government.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 77  

       Let us first examine the relevant constitutional and  statutory provisions. Part VI of the Constitution dealing with the States  has six chapters but relevant for our purpose are Chapter  II and Chapter III.  Chapter II comprising Article 153 to  Article 167 relates to the executive, Chapter III  comprising Article 168 to Article 212 relates to the State  Legislature.         The federal structure under our Constitution  contemplates that there shall be a Legislature for every  State which shall consist of a Governor and one or two  Houses, as provided in Article 168.  Article 170  prescribes that the Legislative Assembly of each State  shall consist of members chosen by direct election from  territorial constituencies in the States.  Article 170,  therefore, brings in the democratic process of election.          Article 164 puts into place an executive  Government.  It enjoins upon the Governor to appoint the  Chief Minister and other ministers on the advice of the  Chief Minister.  The Council of Ministers (Article 163)  exercises the executive power of the State as provided  under Article 154.  Article 164(2) provides that the  Council of ministers shall be collectively responsible to  the Legislative Assembly of the State.           As provided in Article 172, every Legislative  Assembly of every State, unless sooner dissolved, shall  continue for five years from the date appointed for its first  meeting and no longer and the expiration of the said  period of five years shall operate as a dissolution of the  Assembly.   Article 174(1) provides that the Governor  shall from time to time summon the House to meet at  such time and place as he thinks fit, but six months shall  not intervene between its last sitting in one session and  the date appointed for its first sitting in the next session.    Article 174(2) (b) provides that the Governor may from  time to time dissolve the Legislative Assembly.   Every member of the Legislative Assembly of the  State shall, before taking his seat, make and subscribe  before the Governor, an oath or affirmation, as provided  in Article 188 of the Constitution.         The contention urged is that the function of the  Governor in summoning the House and administering the  oath or affirmation to the members of the Legislative  Assembly are not the matters of privilege, prerogative or  discretion of the Governor but are his primary and  fundamental constitutional obligations on which the  principles of parliamentary democracy, federalism and  even ’separation of power’ are dependent.  Further  contention is that another constitutional obligation of the  Governor is to constitute the executive Government.           According to Mr. Narasimha, the Governor failed to  fulfill these constitutional obligations.  Neither the  executive Government nor the Legislative Assembly has  been constituted by the Governor.  On the other hand,  the Governor has frustrated the very object of exercise of  his constitutional obligation by dissolving the Legislative  Assembly under Article 174(2)(b) without the Legislative  Assembly being even constituted.  When the Legislative  Assembly is not even constituted, where is the question of  its dissolution, is the contention urged.  The submission  is that under the scheme of Indian Constitution, it is  impermissible to dissolve a Legislative Assembly before its  first meeting and members making oath or affirmation as  required by Article 188.  According to the petitioners,  under Indian Constitution, the Legislative Assembly is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 77  

duly constituted only upon the House being summoned  and from the date appointed for its first meeting.  Article  172 which provides for duration of State Legislatures  reads as under: "172. Duration of State Legislatures -   (1) Every Legislative Assembly of every  State, unless sooner dissolved shall  continue for (five years) from the date  appointed for its first meeting and no  longer and the expiration of the said  period of (five years) shall operate as a  dissolution of the Assembly: Provided that the said period, may while a  proclamation of Emergency is in  operation, be extended by Parliament by  law for a period not exceeding one year at  a time and not extending in any case  beyond a period of six months after the  Proclamation has ceased to operate. (2) The Legislative Council of a State shall  not be subject to dissolution, but as  nearly as possible one third of the  members thereof shall retire as soon as  may be on the expiration of every second  year in accordance with the provisions  made in that behalf by Parliament by law.   

       The aforesaid constitutional provision stipulates  that five years term of a Legislative Assembly shall be  reckoned from the date appointed for its first meeting and  on the expiry of five years commencing from the date of  the first meeting, the Assembly automatically stands  dissolved by afflux of time.  The duration of the  Legislative Assembly beyond five years is impermissible in  view of the mandate of the aforesaid provision that the  Legislative Assembly shall continue for five years and ’no  longer’.   Relying upon these provisions, it is contended  that the due constitution of the Legislative Assembly can  only be after its first meeting when the members  subscribe oath or affirmation under Article 188.  The  statutory deemed constitution of the Assembly under  Section 73 of the R.P. Act, 1951, according to the  petitioners, has no relevance for determining due  constitution of Legislative Assembly for the purpose of  Constitution of India.  Reference on behalf of the petitioners has also been  made to law existing prior to the enforcement of the  Constitution of India contemplating the commencement  of the Council of State and Legislative Assembly from the  date of its first meeting.  It was pointed out that Section  63(d) in the Government of India Act, 1915 which dealt  with Indian Legislature provided that every Council of  State shall continue for five years and every Legislative  Assembly for three years from the date of its first  meeting.  Likewise, Section 72(b) provided that every  Governor’s Legislative Council shall continue for three  years from its first meeting.  The Government of India  Act, 1919, repealing 1915 Act, provided in Section 8(1)  that every Governor’s Legislative Council shall continue  for three years from its first meeting and in Section 21  provided that every Council of State shall continue for  five years and every Legislative Assembly for three years  from its first meeting.  Likewise, the Government of India  Act, 1935 repealing 1919 Act, had provision identical to  Article 172 of the Constitution.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 77  

       Section 73 of the R.P. Act 1951, in so far as relevant  for our purposes, is as under:   "73. Publication of results of general  elections to the House of the People  and the State Legislative Assemblies. \027  Where a general election is held for the  purpose of constituting a new House of  the People or a new State Legislative  Assembly, there shall be notified by [the  Election Commission] in the Official  Gazette, as soon as may be after [the  results of the elections in all the  constituencies] [other than these in which  the poll could not be taken for any reason  on the date originally fixed under clause  (d) of section 30 or for which the time for  completion of the election has been  extended under the provisions of section  153] have been declared by the returning  officer under the provisions of section 53  or, as the case may be section 66, the  names of the members elected for those  constituencies] and upon the issue of  such notification that House or Assembly  shall be deemed to be duly constituted."

In the present case, Notification under Section 73 of  the RP Act, 1951 was issued on 4th March, 2005.  The  deemed constitution of the Legislative Assembly took  place under Section 73 on the issue of the said  notification.  The question is whether this deemed  constitution of Legislative Assembly is only for the  purpose of the RP Act, 1951 and not for the  constitutional provisions so as to invoke power of  dissolution under Article 174(2)(b).  The stand of the  Government is that in view of aforesaid legal fiction, the  constitution of the Legislative Assembly takes place for all  purposes and, thus, the Legislative Assembly is deemed  to have been ’duly constituted’ on 4th March, 2005 and,  therefore, the Governor could exercise the power of  dissolution under Article 174(2)(b).   Section 73 of the RP Act, 1951 enjoins upon the  Election Commission to issue notification after  declaration of results of the elections in all the  constituencies.  The superintendence, direction and  control of elections to Parliament and to the Legislature of  every State vests in Election Commission under Article  324 of the Constitution.  Article 327 provides that  Parliament may make provision with respect to all  matters relating to, or in connection with, elections to the  Legislative Assembly of a State and all other matters  necessary for securing the ’due constitution’ of the House  of the Legislature.  Article 329 bars the interference by  courts in electoral matters except by an election petition  presented to such authority and in such manner as may  be provided for by or under any law made by the  appropriate Legislature.  Article 327 read with Section 73  of the RP Act, 1951 provide for as to when the House or  Assembly shall be ’duly constituted’.  No provision,  constitutional or statutory, stipulates that the ’due  constitution’ is only for the purposes of Articles 324, 327  and 329 and not for the purpose of enabling the Governor  to exercise power under Article 174(2)(b) of the  Constitution.  In so far as the argument based on Article  172 is concerned, it seems clear that the due constitution

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 77  

of the Legislative Assembly is different than its duration  which is five years \026 to be computed from the date  appointed for its first meeting and no longer.  There is no  restriction under Article 174(2)(b) stipulating that the  power to dissolve the Legislative Assembly can be  exercised only after its first meeting.  Clause (b) of proviso  to Section 73 of the RP Act, 1951 also does not limit the  deemed constitution of the Assembly for only specific  purpose of the said Act or Articles 324, 327 and 329 of  the Constitution.  The said clause provides that the issue  of notification under Section 73 shall not be deemed to  affect the duration of the State Legislative Assembly, if  any, functioning immediately before the issue of the said  notification.  In fact, clause (b) further fortifies the  conclusion that the duration of the Legislative Assembly  is different than the due constitution thereof.  In the  present case, we are not concerned with the question of  duration of the Assembly but with the question whether  the Assembly had been duly constituted or not so as to  enable the Governor to exercise the power of dissolution  under Article 174(2)(b).  The Constitution of India does  not postulate one ’due constitution’ for the purposes of  elections under Part XV and another for the purposes of  the executive and the State Legislature under Chapter II  and III of Part VI.  The aforenoted provisions existing  prior to the enforcement of Constitution of India are also  of no relevance for determining the effect of deemed  constitution of Assembly under Section 73 of the RP Act,  1951 to exercise power of dissolution under Article 274  (2)(b). In K.K. Abu v. Union of India and Ors. [(AIR 1965  Kerala 229], a learned Single Judge of the High Court  rightly came to the conclusion that neither Article 172  nor Article 174 prescribe that dissolution of a State  Legislature can only be after commencement of its term  or after the date fixed for its first meeting.  Once the  Assembly is constituted, it becomes capable of  dissolution.  This decision has been referred to by one of  us (Arijit Pasayat, J.) in Special Reference No.1 of 2002  (popularly known as Gujarat Assembly Election  matter) [(2002) 8 SCC 237].  No provision of the  Constitution stipulates that the dissolution can only be  after the first meeting of the State Legislature. The acceptance of the contention of the petitioners  can also lead to a breakdown of the Constitution.  In a  given case, none may come forth to stake claim to form  the Government, for want of requisite strength to provide  a stable Government.  If petitioners’ contention is  accepted, in such an eventuality, the Governor will  neither be able to appoint Executive Government nor  would he be able to exercise power of dissolution under  Article 174(2)(b).  The Constitution does not postulate a  live Assembly without the Executive Government. On behalf of the petitioners, reliance has, however,  been placed upon a decision of a Division Bench of  Allahabad High Court in the case of Udai Narain Sinha  v. State of U.P. and Ors. [AIR 1987 All.203].   Disagreeing with the Kerala High Court, it was held that  in the absence of the appointment of a date for the first  meeting of the Assembly in accordance with Article  172(1), its life did not commence for the purposes of that  article, even though it might have been constituted by  virtue of notification under Section 73 of the RP Act, 1951  so as to entitle the Governor to dissolve it by exercising  power under Article 174(2).  It was held by the Division

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 77  

Bench that Section 73 of the RP Act, 1951 only created a  fiction for limited purpose for paving the way for the  Governor to appoint a date for first meeting of either  House or the Assembly so as to enable them to function  after being summoned to meet under Article 174 of the  Constitution.  We are unable to read any such limitation.   In our view, the Assembly, for all intends and purposes,  is deemed to be duly constituted on issue of notification  under Section 73 and the duration thereof is distinct  from its due constitution.  The interpretation which may  lead to a situation of constitutional breakdown deserves  to be avoided, unless the provisions are so clear as not to  call for any other interpretation.  This case does not fall  in the later category. In Gujarat Assembly Election Matter, the issue  before the Constitution Bench was whether six months’  period contemplated by Article 174(1) applies to a  dissolved Legislative Assembly.  While dealing with that  question and holding that the said provision applies only  to subsisting Legislative Assembly and not to a dissolved  Legislative Assembly, it was held that the constitution of  any Assembly can only be under Section 73 of the RP Act,  1951 and the requirement of Article 188 of Constitution  suggests that the Assembly comes into existence even  before its first sitting commences. (Emphasis supplied  by us).   In view of the above, the first point is answered  against the petitioners. POINT NO.2:     Whether the proclamation dated 23rd  May, 2005 dissolving the Assembly of Bihar  is illegal and unconstitutional?

       This point is the heart of the matter.  The answer to  the constitutional validity of the impugned notification  depends upon the scope and extent of judicial review in  such matters as determined by a Nine Judge Bench  decision in Bommai’s case.  Learned counsel appearing  for both sides have made elaborate submissions on the  question as to what is the ratio decidendi of Bommai’s  case. According to the petitioners, the notification  dissolving the Assembly is illegal as it is based on the  reports of the Governor which suffered from serious legal  and factual infirmities and are tainted with pervasive  mala fides which is evident from the record.  It is  contended that the object of the reports of the Governor  was to prevent political party led by Mr. Nitish Kumar to  form the Government.  The submission is that such being  the object, the consequent notification of dissolution  accepting the recommendation deserves to be annulled.           Under Article 356 of the Constitution, the  dissolution of an Assembly can be ordered on the  satisfaction that a situation has arisen in which the  Government of the State cannot be carried on in  accordance with the Constitution.  Such a satisfaction  can be reached by the President on receipt of report from  the Governor of a State or otherwise.  It is permissible to  arrive at the satisfaction on receipt of the report from  Governor and on other material.  Such a satisfaction can  also be reached only on the report of the Governor.  It is  also permissible to reach such a conclusion even without  the report of the Governor in case the President has other  relevant material for reaching the satisfaction  contemplated by Article 356.  The expression ’or  otherwise’ is of wide amplitude.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 77  

       In the present case, it is not in dispute that the  satisfaction that a situation has arisen in which the  Government of State cannot be carried on in accordance  with the provisions of the Constitution has been arrived  at only on the basis of the reports of the Governor.  It is  not the case of the Union of India that it has relied upon  any material other than the reports of the Governor  which have been earlier reproduced in extenso.         The Governor in the report dated 6th March, 2005  has referred to Bommai’s case as also to the  recommendations of Sarkaria Commission.  Sarkaria  Commission Report in Chapter IV deals extensively with  the role of the Governors.  Since in this case, the  dissolution of the Assembly is based solely on the reports  of the Governor and the issue also is as to the role played  by the Governor and submissions also having been made  on role which is expected from a high constitutional  functionary like Governor, it would be useful to first  examine that aspect. Role of Governor The role of the Governor has been a key issue in the  matters of Central-State relations.  The Constitution of  India envisages three tiers of Government \026 the Union,  State and the Local Self-Government. From the functional  standpoint, it is stated that such a Constitution "is not a  static format, but a dynamic process" [Report of the  Sarkaria Commission on Centre-State Relations (1988)].   In the context of Union-State relations it has been noted  that "the very dynamism of the system with all its checks  and balances brings in its wake problems and conflicts in  the working of Union-State relations."          In the light of a volatile system prevailing today, it is  pertinent to recognize the crucial role played by the  Governors in the working of the democratic framework.  Addressing the Conference of Governors in June 2005,  the President of India Dr. A.P.J. Abdul Kalam stressed  the relevance of recommendations of the Sarkaria  Commission and observed that "While there are many  checks and balances provided by the Constitution, the  office of the Governor has been bestowed with the  independence to rise above the day-to-day politics and  override compulsions either emanating from the central  system or the state system." The Prime Minister Dr.  Manmohan Singh on the same occasion noted that "you  are the representatives of the center in states and hence,  you bring a national perspective to state level actions and  activities."          In Hargovind Pant v. Dr. Raghukul Tilak & Ors.  [(1979) 3 SCC 458], observing on the issue as to whether  a Governor could be considered as an "employee" of the  Government of India, this Court said "it is no doubt true  that the Governor is appointed by the President which  means in effect and substance the Government of India,  but that is only a mode of appointment and it does not  make the Governor an employee or servant of the  Government of India." Referring to Article 356 of the Constitution, the  Court reasoned that "one highly significant role which he  (Governor) has to play under the Constitution is of  making a report where he finds that a situation has  arisen in which the Government of the State cannot be  carried on in accordance with the provisions of the  Constitution" and further added that the Governor "is not  amenable to the directions of the Government of India,  nor is he accountable to them for the manner in which he

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 77  

carries out his functions and duties. He is an  independent constitutional office which is not subject to  the control of the Government of India." Fortifying the same, Justice V.R. Krishna Iyer has  observed that the mode of appointment can never  legitimize any form of interference in the working of the  Governor, else the concept of "judicial independence"  would not be tenable, as even the judges of the High  Courts and the Supreme Court are appointed by the  President. (V.R. Krisnha Iyer, A Constitutional Miscellany  (Second Edition, Lucknow:Eastern Book Co., 2003) at  p.44). The then Vice-President of India, Shri G.S. Pathak,  had remarked in 1970 that "in the sphere which is bound  by the advice of the Council of Ministers, for obvious  reasons, the Governor must be independent of the  Centre" as there may be cases "where the advice of the  Centre may clash with advice of the State Council of  Ministers" and that "in such cases the Governor must  ignore the Centre’s "advice" and act on the advice of his  Council of Ministers."         Relevant for the present controversy, very significant  observations were made in Bommai’s case, when it was  said "He (Governor) is as much bound to exercise this  power in a situation contemplated by Article 356 as he is  bound not to use it where such a situation has not really  arisen" (para 272 \026 Jeevan Reddy, J. \026 Emphasis  supplied by us)         The role of the Governor has come in for  considerable criticism on the ground that some  Governors have failed to display the qualities of  impartiality expected of them. The Sarkaria Commission  Report has noted that "many have traced this mainly to  the fact that the Governor is appointed by, and holds  office during the pleasure of the President, i.e., in effect,  the Union Council of Ministers."          Rejecting the suggestion of an elected Governor, the  Constituent Assembly repeatedly stressed on  consultation with the Provincial/State Government prior  to the appointment of the Governor. Sir Alladi  Krishnaswamy Ayyar is quoted to have stated that "a  convention of consulting the provincial cabinet might  easily grow up" as was said to be the case in Canada  (White Paper on the Office of the Governor, Government of  Karnataka (22nd September, 1983) c.f. V.R. Krishna Iyer,  A Constitutional Miscellany (Second Edition, Lucknow:  Eastern Book Co., 2003) at p.45).  Shri Jawaharlal Nehru  had also observed in the debate on the appointment of  Governor in the Constituent Assembly that a Governor  "must be acceptable to the Province, he must be  acceptable to the Government of the Province and yet he  must not be known to be a part of the party machine of  that province." He was of the opinion that a nominated  Governor shall have "far fewer common links with the  Centre."         Querying as to what could be an objective and  representative body which will fit into our Constitutional  framework to facilitate the appointment of Governors on  meritorious basis, the Sarkaria Commission has observed  that "There is no gainsaying that a procedure must be  devised which can ensure objectivity in selection and  adherence to the criteria for selection and insulate the  system from political pressures. Also, the new procedure  must not only be fair but should be seen to be fair."  (Chapter IV "Role of the Governor", Report of the Sarkaria

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 77  

Commission on Centre-State Relations (1988) at para  4.6.30).  Recommending that the Vice-President of India  and the Speaker of the Lok Sabha should be consulted by  the Prime Minister in selecting a Governor, the Sarkaria  Commission has noted that "such consultation will  greatly enhance the credibility of the selection process."         The other related issue of debate was regarding the  extent of discretionary powers to be allowed to the  Governor. Following the decision to have a nominated  Governor, references in the various articles of the Draft  Constitution relating to the exercise of specified functions  by the Governor ’in his discretion’ were deleted.  (Chapter  IV "Role of the Governor", Report of the Sarkaria  Commission on Centre-State Relations (1988) at para  4.2.07).  Article 163 of the Constitution (then Draft Article  143) generated considerable discussion, and Dr.  Ambedkar is stated to have "maintained that vesting the  Governor with certain discretionary powers was not  contrary to responsible Government."  (Constituent  Assembly Debates (Volume VIII, Revised Edition) at  pp.00-502).         The expression "required" found in Article 163(1) is  stated to signify that the Governor can exercise his  discretionary powers only if there is a compelling  necessity to do so. It has been reasoned that the  expression "by or under the Constitution" means that the  necessity to exercise such powers may arise from any  express provision of the Constitution or by necessary  implication. The Sarkaria Commission Report further  adds that such necessity may arise even from rules and  orders made "under" the Constitution.         Observing that the Governor needs to discharge  "dual responsibility" \026 to the Union and the State \026 the  Sarkaria Commission has sought to evaluate the role of  the Governors in certain controversial circumstances,  such as, in appointing the Chief Minister, in ascertaining  the majority, in dismissal of the Chief Minister, in  dissolving the Legislative Assembly, in recommending  President’s Rule and in reserving Bills for President’s  consideration.          Finding that the position of the Governor is  indispensable for the successful working of the  Constitutional scheme of governance, the Sarkaria  Commission has noted that "most of the safeguards will  be such as cannot be reduced to a set of precise rules of  procedure or practice. This is so because of the very  nature of the office and the role of the Governor. The  safeguards have mostly to be in the nature of conventions  and practices, to be understood in their proper pers- pective and faithfully adhered to, not only by the Union  and the State Governments but also by the political  parties." (Chapter IV "Role of the Governor", Report of the  Sarkaria Commission on Centre-State Relations (1988) at  para 4.5.07).  It was further added that "the fact that it  will be impossible to lay down a concrete set of standards  and norms for the functioning of a Governor will make it  difficult for a Parliamentary Committee or the Supreme  Court to inquire into a specific charge against a  Governor." Instrument of Instructions:         The Constituent Assembly, pursuant to the Report  of the Provincial Constitution Committee, had decided to  insert an Instrument of Instructions to the Governors in  the form of a Schedule to the Constitution. Such an  instrument was found to be necessary, "because of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 24 of 77  

mode of appointment and the injunction to act upon the  advice of Ministers were not contained in the Constitution  itself."  (The framing of India India’s Constitution \026 Select  Documents (Volume IV, B. Shiva Rao (ed.), New Delhi:  Universal Law Publishing Cp, 2004) at p. 86.  The  complete test of the suggested Instructions is  reprroduced in pp.88-90).  In the Government of India  Act, 1935, the Instrument of Instructions appeared as  instructions from the Sovereign. The suggested list of instructions considered by the  Constituent Assembly included value based standards  that are expected of a Governor in discharging his duties  vis-‘-vis \026appointment of the Chief Minister after  ascertaining a "stable majority"; appointments of Council  of Ministers who "will best be in a position collectively to  command the confidence of the Legislature"; to constitute  an Advisory Board comprising of duly elected members of  the Legislature, including the Leader of the Opposition,  "to aid the Governor in the matter of making  appointments under the Constitution" such as that of the  Auditor-in-Chief for the State, Chairman of the State  Public Services Commission; and mandating the  Governor to do "all that in him lies to maintain standards  of good administration, to promote all measures making  for moral, social and economic welfare and tending to fit  all classes of the population to take their due share in the  public life and government of the State, and to secure  amongst all classes and creeds co-operation, goodwill and  mutual respect for religious beliefs and sentiments." The instructions were proposed as a Schedule to the  Constitution as the Assembly felt that "it is preferable not  to put them into the body of the Constitution, because  they are conventions rather than legal rules." However,  the same was not appended to the Constitution and  lamenting about it, Shri A.G. Noorani has stated that the  Instrument of Instructions could have codified  conventions between the President and the Governors if  allowed to exist. (A.G. Noorani, Constitutional Questions in  India \026 The President, Parliament and the States (New  Delhi: Oxford University Press, 2000) at p.11) The P.V. Rajamannar Committee (1969), Inquiry  Committee constituted by the Government of Tamil Nadu  to report on the Centre-State relations, and the Study  Team of the Administrative Reforms Commission (1967)  headed by Shri M.C. Setalvad, have been quoted to have  opined that "a specific provision should be inserted in the  Constitution enabling the President to issue Instruments  of Instructions to the Governors. The Instruments of  Instructions should lay down guidelines indicating the  matters in respect of which the Governor should consult  the Central Government or in relation to which the  Central Government could issue directions to him."   (White Paper on the Office of the Governor, Government of  Karnataka (22nd September, 1983) c.f. V.R. Krishna Iyer,  A Constitutional Miscellany (Second Edition, Lucknow:  Eastern Book Co., 2003) at p.47).   Justice Krishna Iyer  has stated that a "Handbook" setting out the guidelines  for Governors must be prepared officially by the Law  Commission and approved by the Parliament to be kept  as a reference in the same status as that of an  Instrument of Instructions. However, the Sarkaria  Commission has observed that "considering the multi- faceted role of the Governor and the nature of his  functions and duties, we are of the view that it would be  neither feasible nor desirable to formulate a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 25 of 77  

comprehensive set of guidelines for the exercise by him of  his discretionary powers. No two situations which may  require a Governor to use his discretion, are likely to be  identical." Discretionary Powers of the Governor:         Expounding in detail on the exercise of discretionary  powers by the Governor, the Sarkaria Commission has  mainly recommended the following: ?       Appointment of the Chief Minister \026 It is clear that  the leader of the party which has an absolute  majority in the Legislative Assembly should  invariably be called upon by the Governor to form a  Government. However, if there is a fractured  mandate, then the Commission recommends an  elaborate step-by-step approach and has further  emphasized that "the Governor, while going through  the process of selection as described, should select a  leader who, in his (Governor’s) judgement, is most  likely to command a majority in the Assembly. The  Governor’s subjective judgement will play an  important role." Upon being faced by several  contesting claims, the Commission suggests that the  most prudent measure on part of the Governor would  be to test the claims on the floor of the House. ?       Dismissal of the Chief Minister \026 Recommending a  test of majority on the floor of the House to ascertain  whether an incumbent Chief Minister continues to  enjoy the majority, the Commission clearly dissuades  the Governor from dismissing the Ministry based only  on his "subjective satisfaction".  ?       Dissolution of the Assembly \026 Despite best efforts, if  ultimately a viable Ministry fails to emerge, a  Governor is faced with two alternatives \026 he may  either dissolve the Assembly or recommend  President’s rule under Article 356, leaving it to the  Union Government to decide the question of  dissolution. The Commission expressed its firm view  that the proper course would be "to allow the people  of the State to settle matters themselves". The  Commission recommended that "the Governor should  first consider dissolving the Assembly and arranging  for a fresh election and before taking a decision, he  should consult the leaders of the political parties  concerned and the Chief Election Commissioner."         Para 4.11.04 of Sarkaria Commission Report  specifically deals with the situation where no single party  obtains absolute majority and provides the order of  preference the Governor should follow in selecting a Chief  Minister.  The order of preference suggested is : 1.      An alliance of parties that was formed prior to the  Elections. 2.      The largest single party staking a claim to form the  Government with the support of others, including  "independents". 3.      A post-electoral coalition of parties, with all the  partners in the coalition joining the Government. 4.      A post-electoral alliance of parties, with some of the  parties in the alliance forming a Government and the  remaining parties, including "independents"  supporting the Government from outside. The Sarkaria Commission has noticed that in a  number of situations of political instability in States, the  Governors recommended President’s Rule under Article  356 without exhausting all possible steps under the  Constitution to induct or maintain a stable Government.  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 26 of 77  

The Governors concerned neither gave a fair chance to  contending parties to form a Ministry, nor allowed a fresh  appeal to the electorate after dissolving the Legislative  Assembly.  Almost all these cases have been criticized on  the ground that the Governors, while making their  recommendations to the President behaved in a partisan  manner.  The report further states that there has been no  uniformity of approach in such situations and that these  aspects have been dealt with in Chapter VI ’Emergency  Provisions’.         In Chapter VI, Sarkaria Commission dealt with the  emergency provisions noting the concern of framers of the  Constitution of need for such provision in a country of  our dimensions, diversities, disparities and  "multitudinous people, with possibly divided loyalties".   They took care to provide that, in a situation of such  emergency, the Union shall have overriding powers to  control and direct all aspects of administration and  legislation throughout the country.  They realised that a  failure or breakdown of the constitutional machinery in a  State could not be ruled out as an impossibility and a  situation may arise in which the Government of the State  cannot be carried on in accordance with the provisions of  the Constitution.   The common thread in all the emergency provisions  is that the resort to such provision has to be in  exceptional circumstances when there be the real and  grave situation calling for the drastic action. Sarkaria Commission as also this Court has noted  the persistent criticism in ever-mounting intensity, both  in regard to the frequency and the manner of the use of  the power under Article 356.  The Sarkaria Commission  has noticed that gravemen of the criticism is that, more  often than not, these provisions have been misused, to  promote the political interests of the party in power at the  Centre.  Some examples have been noted of situations in  which the power of Article 356 was invoked improperly if  not illegally.  It is noted that the constitutional framers  did not intend that this power should be exercised for the  purpose of securing good Government.  It also notices  that this power cannot be invoked, merely on the ground  that there are serious allegations of corruption against  the Ministry. Whether it is a case of existing Government losing  the majority support or of installation of new Government  after fresh elections, the act of the Governor in  recommending dissolution of Assembly should be only  with sole object of preservation of the Constitution and  not promotion of political interest of one or the other  party.   In the present context of fractured verdicts in  elections, the aforesaid discussion assumes great  importance and relevance.  The criteria suggested in  Sarkaria Commission Report for appointment of a person  as a Governor is : (i)     He should be eminent in some walk of life; (ii)    He should be a person from outside the State; (iii)   He should be a detached figure and not too  intimately connected with the local politics of the  State; and  (iv)    He should be a person who has not taken too great a  part in politics generally and particularly in the  recent past.         It has not been seriously disputed by learned  counsel appearing for the parties that, unfortunately, the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 27 of 77  

criteria has been observed in almost total breach by all  political parties.  It is seen that one day a person is in  active politics in as much as he holds the office of the  Chief Minister or Minister or a party post and almost on  the following day or, in any case, soon thereafter, the  same person is appointed as the Governor in another  State with hardly any cooling period.  Ordinarily, it is  difficult to expect detachment from party politics from  such a person while performing the constitutional  functions as Governor.   On this issue, we would like to say no more and  leave this aspect to the wisdom of the political parties and  their leaders to discuss and debate and arrive at, if  possible, a national policy with some common minimum  parameters applicable and acceptable to all major  political parties. Defections At this stage, we may consider another side issue,  namely, defections being a great evil.           Undoubtedly, defection is a great evil.  It was  contended for the Government that the unprincipled  defections induced by allurements of office, monetary  consideration, pressure, etc. were destroying the  democratic fabric.  With a view to control this evil, Tenth  Schedule was added by the Constitution (Fifty-Second  Amendment) Act, 1985.  Since the desired goal to check  defection by the legislative measure could not be  achieved, law was further strengthened by the  Constitution (Ninety-first Amendment) Act, 2003.  The  contention is that the Governor’s action was directed to  check this evil, so that a Government based on such  defections is not formed.   Reliance has been placed on the decision in the case  of Kihoto Hollohan v. Zachillhu & Ors. [1992 Supp.  (2) SCC 651] to bring home the point that defections  undermine the cherished values of democracy and Tenth  Schedule was added to the Constitution to combat this  evil.  It is also correct that to further strengthen the law  in this direction, as the existing provisions of the Tenth  Schedule were not able to achieve the desired goal of  checking defection, by 91st Amendment, defection was  made more difficult by deleting provision which did not  treat mass shifting of loyalty by 1/3 as defection and by  making the defection, altogether impermissible and only  permitting merger of the parties in the manner provided  in the Tenth Schedule as amended by 91st Amendment.   In Kihoto’s case, the challenge was to validity of  the Tenth Schedule, as it stood then.  Argument was that  this law was destructive of the basic structure of the  Constitution as it is violative of the fundamental principle  of Parliamentary democracy, a basic feature of the Indian  Constitutionalism and is destructive of the freedom of  speech, right to dissent and freedom of conscience as the  provisions seek to penalize and disqualify elected  representatives for the exercise of these rights and  freedoms which are essential to the sustenance of the  system of parliamentary democracy.  It was also urged  that unprincipled political defections may be an evil, but  it will be the beginning of much greater evils if the  remedies, graver than the decease itself, are adopted.  It  was said that the Tenth Schedule seeks to throw away  the baby with the bath water.   Dealing with aforesaid submissions, the Court noted  that, in fact, the real question was whether under the  Indian Constitutional Scheme, is there any immunity

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 28 of 77  

from constitutional correctives against a legislatively  perceived political evil of unprincipled defections induced  by the lure of office and monetary inducements.  It was  noted that the points raised in the petition are, indeed,  far reaching and of no small importance-invoking the  ’sense of relevance and constitutionally stated principles  of unfamiliar settings’.  On the one hand there was the  real and imminent threat to the very fabric of Indian  democracy posed by certain level of political behaviour  conspicuous by their utter and total disregard of well  recognised political proprieties and morality.   These  trends tend to degrade the tone of political life and, in  their wider propensities, are dangerous to and undermine  the very survival of the cherished values of democracy.  There is the legislative determination through  experimental constitutional processes to combat that evil.   On the other hand, there may be certain side-effects and  fall-out which might affect and hurt even honest  dissenters and conscientious objectors.  While dealing  with the argument that the constitutional remedy was  violative of basic features of the Constitution, it was  observed that the argument ignores the essential organic  and evolutionary character of a Constitution and its  flexibility as a living entity to provide for the demands  and compulsions of the changing times and needs. The  people of this country were not beguiled into believing  that the menace of unethical and unprincipled changes of  political affiliations is something which the law is helpless  against and is to be endured as a necessary concomitant  of freedom of conscience. The unethical political  defections was described as a ’canker’ eating into the  vitals of those values that make democracy a living and  worthwhile faith.         It was contended that the Governor was only trying  to prevent members from crossing the floor as the  concept of the freedom of its members to vote as they  please independently of the political party’s declared  policies will not only embarrass its public image and  popularity but would also undermine public confidence in  it which, in the ultimate analysis, is its source of  sustenance - nay, indeed, its very survival.  The  contention is based on Para 144 of the judgment in  Kihoto’s case which reads thus : "But a political party functions on  the strength of shared beliefs. Its  own political stability and social  utility depends on such shared  beliefs and concerted action of its  Members in furtherance of those  commonly held principles. Any  freedom of its Members to vote as  they please independently of the  political party’s declared policies will  not only embarrass its public image  and popularity but also undermine  public confidence in it which, in the  ultimate analysis, is its source of  sustenance -- nay, indeed, its very  survival. Intra-party debates are of  course a different thing. But a public  image of disparate stands by  Members of the same political party  is not looked upon, in political  tradition, as a desirable state of  things. Griffith and Ryle on

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 29 of 77  

"Parliament, Functions, Practice &  Procedure" (1989 Edn. page 119)  say: "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." Clause (b) of sub-para (1) of  Paragraph 2 of the Tenth Schedule  gives effect to this principle and  sentiment by imposing a  disqualification on a Member who  votes or abstains from voting  contrary to "any directions" issued  by the political party. The provision,  however, recognises two exceptions :  one when the Member obtains from  the political party prior permission  to vote or abstain from voting and  the other when the Member has  voted without obtaining such  permission but his action has been  condoned by the political party. This  provision itself accommodates the  possibility that there may be  occasions when a Member may vote  or abstain from voting contrary to  the direction of the party to which  he belongs. This, in itself again, may  provide a clue to the proper  understanding and construction of  the expression "Any Direction" in  clause (b) of Paragraph 2(1) whether  really all directions or whips from  the party entail the statutory  consequences or whether having

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 30 of 77  

regard to the extra-ordinary nature  and sweep of the power and the very  serious consequences that flow  including the extreme penalty of  disqualification the expression  should be given a meaning confining  its operation to the contexts  indicated by the objects and  purposes of the Tenth Schedule. We  shall deal with this aspect  separately."

       Our attention was also drawn to the objects and  reasons for the 91st Constitutional Amendment.  It states  that demands were made from time to time in certain  quarters for strengthening and amending the Anti- defection law as contained in the Tenth Schedule to the  Constitution of India, on the ground that these provisions  had not been able to achieve the desired goals of checking  defections.  The Tenth Schedule was also criticized on the  ground that it allowed bulk defections while declaring  individual defections as illegal.  The provision for  exemption from disqualification in case of splits as  provided in paragraph 3 of the Tenth Schedule to the  Constitution of India had, in particular, come under  severe criticism on account of its destabilising effect on  the Government.           Reliance has also been placed to the exposition of  Lord Diplock in a decision of House of Lords in the case  of Council of Civil Service Unions v. Minister for the  Civil Service [1984 (3) All.ER 935] on the aspect of  irrationality to the effect that "it applies to a decision may  be so outrageous or in defiance of logic or of accepted  moral standards that no sensible person who had applied  his ’mind to the question to be decided, could have  arrived at it".  It is contended that the Governor has  many sources information wherefrom led him to conclude  that the process that was going on in the State of Bihar  was destroying the very fabric of democracy and,  therefore, such approach cannot be described as  outrageous or in defiance of logic, particularly, when  proof in such cases is difficult if not impossible as bribery  takes place in the cover of darkness and deals are made  in secrecy.  It is, thus, contended that Governor’s view is  permissible and legitimate view.   Almost similar contention has been rejected in  Bommai’s case.   The other decision of House of Lords in Puhlhofer  v. Hillingdon, London Borough Council [(1986) 1  All.ER 467 at 474] relied upon by the respondents, has  been considered by Justice Sawant in Bommai’s case.   The reliance was to the proposition that where the  existence or non-existence of a fact is left to the judgment  and discretion of a public body and that fact involves a  broad spectrum ranging from the ’obvious’ to the  ’debatable’ to the ’just conceivable’, it is the duty of the  Court to leave the decision of that fact to the public body  to whom Parliament has entrusted the decision-making  power save in a case where it is obvious that the public  body, consciously or unconsciously, are acting perversely.   But in the present case, the inference sought to be drawn  by the Governor without any relevant material, cannot  fall in the category of ’debatable’ or ’just conceivable’, it  would fall in the category of ’obviously perverse’.  On

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 31 of 77  

facts, the inescapable inference is that the sole object of  the Governor was to prevent the claim being made to  form the Government and the case would fall under the  category of ’bad faith’. The question in the present case is not about MLAs  voting in violation of provisions of Tenth Schedule as  amended by the Constitution (91st Amendment), as we  would presently show. Certainly, there can be no quarrel with the  principles laid in Kihoto’s case about evil effects of  defections but the same have no relevance for  determination of point in issue.  The stage of preventing  members to vote against declared policies of the political  party to which they belonged had not reached.  If MLAs  vote in a manner so as to run the risk of getting  disqualified, it is for them to face the legal consequences.   That stage had not reached.  In fact, the reports of the  Governor intended to forestall any voting and staking of  claim to form the Government.         Undisputedly, a Governor is charged with the duty  to preserve, protect and defend the Constitution and the  laws, has a concomitant duty and obligation to preserve  democracy and not to permit the ’canker’ of political  defections to tear into the vitals of the Indian democracy.   But on facts of the present case, we are unable to accept  that the Governor by reports dated 27th April and 21st  May, 2005 sought to achieve the aforesaid objective.   There was no material, let alone relevant, with the  Governor to assume that there were no legitimate  realignment of political parties and there was blatant  distortion of democracy by induced defections through  unfair, illegal, unethical and unconstitutional means.   The report dated 27th April, 2005 refers to (1)  serious attempt to cobble a majority; (2) winning over  MLAs by various means; (3) targeting parties for a split;  (4) high pressure moves; (5) offering various allurements  like castes, posts, money etc.; and (6) Horse-trading.   Almost similar report was sent by the Governors of  Karnataka and Nagaland leading to the dissolution of the  Assembly of Karnataka and Nagaland, invalidated in  Bommai’s case. Further, the contention that the Central  Government did not act upon the report dated 27th April,  2005 is of no relevance and cannot be considered in  isolation since the question is about the manner in which  the Governor moved, very swiftly and with undue haste,  finding that one political party may be close to getting  majority and the situation had reached where claim may  be staked to form the Government which led to the report  dated 21st May, 2005.  It is in this context that the  Governor says that instead of installing a Government  based on a majority achieved by a distortion of the  system, it would be preferable that the people/electorate  could be provided with one more opportunity to seek the  mandate of the people.  This approach makes it evident  that the object was to prevent a particular political party  from staking a claim and not the professed object of  anxiety not to permit the distortion of the political  system, as sought to be urged.  Such a course is nothing  but wholly illegal and irregular and has to be described  as mala fide.  The recommendation for dissolution of the  Assembly to prevent the staking of claim to form the  Government purportedly on the ground that the majority  was achieved by distortion of system by allurement,  corruption and bribery was based on such general  assumptions without any material which are quite easy

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 32 of 77  

to be made if any political party not gaining absolute  majority is to be kept out of governance. No assumption  without any basis whatever could be drawn that the  reason for a group to support the claim to form the  Government by Nitish Kumar, was only the aforesaid  distortions.  That stage had not reached.  It was not  allowed to be reached.  If such majority had been  presented and the Governor forms a legitimate opinion  that the party staking claim would not be able to provide  stable Government to the State, that may be a different  situation.  Under no circumstances, the action of  Governor can be held to be bona fide when it is intended  to prevent a political party to stake claim for formation of  the Government.  After elections, every genuine attempt  is to be made which helps in installation of a popular  Government, whichever be the political party. Interpretation of a Constitution and Importance of  Political Parties

       For principles relevant for interpretation of a  Constitution, our attention was drawn to what Justice  Aharon Barak, President of Supreme Court of Israel says  in Harvard Law Review, Vol.116 (2002-2003) dealing  particularly with the aspect of purposive interpretation of  Constitution.  Learned Judge has noticed as under :         "The task of expounding a constitution is  crucially different from that of construing  a statute.  A statute defines present  rights and obligations.  It is easily  enacted and as easily repealed.  A  constitution, by contrast, is drafted with  an eye to the future.  Its function is to  provide a continuing framework for the  legitimate exercise of governmental power  and, when joined by a Bill or Charter of  rights, for the unremitting protection of  individual rights and liberties.  Once  enacted, its provisions cannot easily be  repealed or amended.  It must, therefore,  be capable of growth and development  over time to meet new social, political  and historical realities often unimagined  by its framers.  The judiciary is the  guardian of the constitution and must, in  interpreting its provisions, bear these  considerations in mind."

       It is further said that the political question doctrine,  in particular, remits entire areas of public life to  Congress and the President, on the grounds that the  Constitution assigns responsibility for these areas to the  other branches, or that their resolution will involve  discretionary, polycentric decisions that lack discrete  criteria for adjudication and thus are better handled by  the more democratic branches.           In fact, the scope of judicial review as enunciated in  Bommai’s case is in tune with the principles sought to  be relied upon.         In support of the proposition that in Parliament  Democracy there is importance of political parties and  that interpretation of the constitutional provisions should  advance the said basic structure based on political  parties, our attention was drawn to write up Designing  Federalism \026 A Theory of Self-Sustainable Federal  Institution and what is said about political parties in a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 33 of 77  

Federal State which is as under: "Political parties created democracy and  \005 modern democracy is unthinkable  save in terms of parties. Schattschneider 1942 : I Here is a factor in the organisation of  federal Government which is of primary  importance but which cannot be ensured  or provided for in a constitution \026 a good  party system Wheare 1953: 86 Whatever the general social conditions, if  any, that sustain the federal bargain,  there is one institutional condition that  controls the nature of the bargain in all  instances\005 with which I am familiar.   This is the structure of the party system,  which may be regarded as the main  variable intervening between the  background social conditions and the  specific nature of the federal bargain. Riker 1964 : 136 In a country which was always to be in  need of the cohesive force of institutions,  the national parties, for all their faults,  were to become at an early hour primary  and necessary parts of the machinery of  Government, essential vehicles to convey  men’s loyalties to the state. Hofstadter 1969: 70-I

       It is contended that the political parties are the  main means not only whereby provincial grievances are  aired but also whereby centralised and decentralised  trends are legitimised.  This contention is made in  connection with the alleged stand of two-third MLAs of  LJP against the professed stand of that political party.   We are afraid that on facts of present case, the  aforesaid concept and relevance of political parties is not  quite relevant for our purpose to decide why and how the  members of political parties had allegedly decided to  adopt the course which they did, to allegedly support the  claim for formation of the Government. Morality We may also deal with the aspect of morality sought  to be urged.  The question of morality is of course very  serious and important matter.  It has been engaging the  attention of many constitutional experts, legal  luminaries, jurists and political leaders.    The concept of  morality has also been changing from time to time also  having regard to the ground realities and the compulsion  of the situation including the aspect and relevance of  coalition governance as opposed to a single party  Government.    Even in the economic field, the concept of  morality has been a matter of policy and priorities of the  Government.  The Government may give incentive, which  ideally may be considered unethical and immoral, but in  so far as Government is concerned, it may become  necessary to give incentive to unearth black money.   {R.K. Garg & Ors. v. Union of India & Ors. [1981(4)  SCC 675, paras 18 and 31]}.  It may be difficult to leave  such aspects to be determined by high constitutional  functionaries, on case to case basis, depending upon the  facts of the case, and personal mould of the  constitutional functionaries.  With all these

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 34 of 77  

imponderables, the constitution does not contemplate the  dissolution of Assemblies based on the assumption of  such immoralities for formation of the satisfaction that  situation has arisen in which the Government cannot be  of the Constitution of India. Article 356 and Bommai’s case         Article 356(1) of the Constitution is as follows : "356.\027(1) Provisions in case of failure  of constitutional machinery in State.-- (1) 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 the provisions of this  Constitution, the President may by  Proclamation\027 (a)     assume to himself all or any of the  functions of the Government of the  State and all or any of the powers  vested in or exercisable by the  Governor or any body or authority in  the State other than the Legislature  of the State; (b)     declare that the powers of the  Legislature of the State shall be  exercisable by or under the  authority of Parliament;

(c)     make such incidental and  consequential provisions as appear  to the President to be necessary or  desirable for giving effect to the  objects of the Proclamation,  including provisions for suspending  in whole or in part the operation of  any provisions of this Constitution  relating to any body or authority in  the State:           Provided that nothing in this clause  shall authorise the President to assume  to himself any of the powers vested in or  exercisable by a High Court, or to  suspend in whole or in part the operation  of any provision of this Constitution  relating to High Courts."

Power under Article 356(1) is an emergency power  but it is not an absolute power.  Emergency means a  situation which is not normal, a situation which calls for  urgent remedial action.  Article 356 confers a power to be  exercised by the President in exceptional circumstances  to discharge the obligation cast upon him by Article 355.   It is a measure to protect and preserve the Constitution.   The Governor takes the oath, prescribed by Article 159 to  preserve, protect and defend the Constitution and the  laws to the best of his ability.  Power under Article 356 is  conditional, condition being formation of satisfaction of  the President as contemplated by Article 356(1).  The  satisfaction of the President is the satisfaction of Council  of Ministers.  As provided in Article 74(1), the President  acts on the aid and advice of Council of Ministers.  The  plain reading of Article 74(2) stating that the question  whether any, and if so what, advice was tendered by

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 35 of 77  

Ministers to the President shall not be inquired into in  any Court, may seem to convey that the Court is  debarred from inquiring into such advice but Bommai  has held that Article 74(2) is not a bar against scrutiny of  the material on the basis of which the President has  issued the proclamation under Article 356.  Justice  Sawant, in Para 86 states that : "What is further, although Article 74(2)  bars judicial review so far as the advice  given by the Ministers is concerned, it  does not bar scrutiny of the material on  the basis of which the advice is given.  The Courts are not interested in either  the advice given by the Ministers to the  President or the reasons for such advice.  The Courts are, however, justified in  probing as to whether there was any  material on the basis of which the advice  was given, and whether it was relevant  for such advice and the President could  have acted on it. Hence when the Courts  undertake an enquiry into the existence  of such material, the prohibition  contained in Article 74(2) does not negate  their right to know about the factual  existence of any such material."

       It was further said that the Parliament would be  entitled to go into the material on basis of what the  Council of Ministers tendered the advice and, therefore,  secrecy in respect of material cannot remain inviolable.   It was said that : "When the Proclamation is challenged by  making out a prima facie case with  regard to its invalidity, the burden would  be on the Union Government to satisfy  that there exists material which showed  that the Government could not be carried  on in accordance with the provisions of  the Constitution. Since such material  would be exclusively within the  knowledge of the Union Government, in  view of the provisions of Section 106 of  the Evidence Act, the burden of proving  the existence of such material would be  on the Union Government."

       On the similar lines, is the opinion of Jeevan Reddy,  J. : "Clause (2) of Art. 74, understood in its  proper perspective, is thus confined to a  limited aspect. It protects and preserves  the secrecy of the deliberations between  the President and his Council of  Ministers. In fact, CI. (2) is a  reproduction of sub-sec. (4) of S. 10 of  the Government of India Act, 1935. (The  Government of India Act did not contain  a provision corresponding to An. 74(1) as  it stood before or after the Amendments  aforementioned). The scope of CI. (2)  should not be extended beyond its  legitimate fields. In any event, it cannot

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 36 of 77  

be read or understood as conferring an  immunity upon the council of ministers  or the Minister/ Ministry concerned to  explain, defend and justify the orders  and acts of the President done in exercise  of his functions. The limited provision  contained in Art. 74(2) cannot override  the basic provisions in the Constitution  relating to judicial review. If and when  any action taken by the President in  exercise of his functions is questioned in  a Court of Law, it is for the Council of  Ministers to justify the same, since the  action or order of the President is  presumed Jo have been taken in  accordance with Art. 74(1). As to which  Minister or which official of which  Ministry comes forward to defend the  order/ action is for them to decide and  for the Court to be satisfied about it.  Where, of course, the act/order  questioned is one pertaining to the  executive power of the Government of  India, the position is much simpler. It  does not represent the act/order of the  President done/taken in exercise of his  functions and hence there is no occasion  for any aid or advice by the Ministers to  him. It is the act/order of Government of  India, though expressed in the name of  the President. It is for the concerned  Minister or Ministry, to whom the  function is allocated under the Rules of  Business to defend and justify such  action/ order.

In our respectful opinion, the above  obligation cannot be evaded by seeking  refuge under Art. 74(2). The argument  that the advice tendered to the President  comprises material as well and,  therefore, calling upon the Union of India  to disclose the material would amount to  compelling the disclosure of the advice is,  if we can say so respectfully, to indulge  in sophistry. The material placed before  the President by the Minister/Council of  Ministers does not thereby become part  of advice. Advice is what is based upon  the said material. Material is not advice.  The material may be placed before the  President to acquaint him -- and if need  be to satisfy him -- that the advice being  tendered to him is the proper one. But it  cannot mean that such material, by dint  of being placed before the President in  support of the advice, becomes advice  itself. One can understand if the advice is  tendered in writing; in such a case that  writing is the advice and is covered by  the protection provided by Art. 74(2). But  it is difficult to appreciate how does the  supporting material, becomes part of  advice. The respondents cannot .say that  whatever the President sees -- or

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 37 of 77  

whatever is placed before the President  becomes prohibited material and cannot  be seen or summoned by the Court. Art.  74(2) must be interpreted and  understood in the context of entire  constitutional system. Undue emphasis  and expansion of its parameters would  engulf valuable constitutional  guarantees. For these reasons, we find if  difficult to agree with the reasoning in  State of Rajasthan on this score, insofar  as it runs contrary to our holding."

The scope of judicial review has been expanded by  Bommai and dissent has been expressed from the view  taken in State of Rajasthan’s case. The above approach shows objectivity even in  subjectivity.  The constitutionalism or constitutional  system of Government abhors absolutism \026 it is premised  on the Rule of Law in which subjective satisfaction is  substituted by objectivity provided by the provisions of  the Constitution itself.  This line is clear also from Maru  Ram v. Union of India & Ors. [(1981) 1 SCC 107].  It  would also be clear on in depth examination of Bommai  that declared the dissolution of three Assemblies illegal  but before we further revert to that decision, a brief  historical background including the apprehension of its  abuse expressed by our founding fathers may be noted.   Articles 355 and 356 of the Constitution set the  tenor for the precedence of the Union over the States. It  has been explained that the rationale for introducing  Article 355 was to distinctly demarcate the functioning of  the State and Union governments and to prevent any  form of unprincipled invasions by the Union into the  affairs of the State. It was felt that through the  unambiguous language of Articles 355 and 356, the  Union shall be constitutionally obliged to interfere only  under certain limited circumstances as laid down in the  provisions. Referring to what is now Article 355, Dr. Ambedkar  had reasoned that "in view of the fact that we are  endowing the Provinces with plenary powers and making  them sovereign within their own fields it is necessary to  provide that if any invasion of the provincial field is done,  it is in virtue of this obligation." (T.K. Thope, Dr.  Ambedkar and Article 356 of the Constitution \026  [(1993) 4 SCC (Jour) 1].  Pursuant to this reasoning, Dr.  Ambedkar further explained that before resorting to  Article 356 "the first thing the President will do would be  to issue warning to a province that has erred, that things  were not happening in the way in which they were  intended to happen in the Constitution. If the warning  fails the second thing for him to do will be to order an  election allowing the people of the province to settle  matters by themselves. It is only when those two  remedies fail that he would resort to this Article." Dr.  Ambedkar admitted that these articles were "liable to be  abused" and that he cannot "altogether deny that there is  a possibility of these articles being employed for political  purposes." But he reasoned that such an "objection  applies to every part of the Constitution which gives  power to the Centre to override the Provinces" and added  that the "proper thing we ought to expect is that such  articles will never be called into operation and they would

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 38 of 77  

remain a dead letter." (Constituent Assembly Debates  (Volume IX, Revised Edition) at pp.175-177). Scope of Judicial Review under Article 356 \026 State of  Rajasthan v. Union of India :

In State of Rajasthan’s case, there was a broad  consensus among five of the seven Judges that the Court  can interfere if it is satisfied that the power has been  exercised mala fide or on "wholly extraneous or irrelevant  grounds". Some learned Judges have stated the rule in  narrow terms and some others in a little less narrow  terms but not a single learned Judge held that the  proclamation is immune from judicial scrutiny. It must  be remembered that at that time clause (5) was there  barring judicial review of the proclamation and yet they  said that Court can interfere on the ground of mala fides.  Surely, the deletion of clause (5) has not restricted the  scope of judicial review but has widened it. Justice Reddy in Bommai’s case has noticed, in so  far as it was relevant, the ratio underlying each of the six  opinions delivered by Seven Judge Bench in the case of  State of Rajasthan (supra) as under : "Beg, C. J. The opinion of Beg, C. J.  contains several strands of thought. They  may be stated briefly thus: (i) The language of Article 356 and the  practice since 1950 shows that the  Central Government can enforce its will  against the State Governments with  respect to the question how the State  Governments should function and who  should hold reins of power. (ii) By virtue of Article 365(5) and Article  74(2), it is impossible for the Court to  question the satisfaction of the President.  It has to decide the case on the basis of  only those facts as may have been  admitted by or placed by the President  before the Court. (iii) The language of Article 356(1) is very  wide. It is desirable that conventions are  developed channelising the exercise of  this power. The Court can interfere only  when the power is used in a grossly  perverse and unreasonable manner so as  to constitute patent misuse of the  provisions or to an abuse of power. The  same idea is expressed at another place  saying that if "a constitutionally or legally  prohibited or extraneous or collateral  purpose is sought to be achieved" by the  proclamation, it would be liable to be  struck down. The question whether the  majority party in the Legislative Assembly  of a State has become totally estranged  from the electorate is not a matter for the  Court to determine. (iv) The assessment of the Central  Government that a fresh chance should  be given to the electorate in certain States  as well as the question when to dissolve  the Legislative Assemblies are not matters  alien to Article 356. It cannot be said that  the reasons assigned by the Central  Government for the steps taken by them

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 39 of 77  

are not relevant to the purposes  underlying Article 356. We may say at once that we are in  respectful disagreement with propositions  (i), (ii) and (iv) altogether. So far as  proposition (iii) is concerned, it is not far  off the mark and in substance accords  with our view, as we shall presently show.

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

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 40 of 77  

satisfaction is based, would not be  known. However, where it is possible, the  existence of satisfaction can always be  challenged on the ground that it is mala  fide or based on wholly extraneous and  irrelevant grounds." We may say with great respect that we  find it difficult to agree with the above  formulations in toto. We agree only with  the statements regarding the permissible  grounds of interference by Court and the  effect of clause (5), as it then obtained.  We also agree broadly with the first  proposition, though not in the absolute  terms indicated therein.

Goswami and Untwalia, JJ. The separate  opinions of Goswami and Untwalia, JJ.  emphasise one single fact, namely, that  inasmuch as the facts stated in the  counter-affidavit filed by the Home  Minister cannot be said to be "mala fide,  extraneous or irrelevant", the action  impugned cannot be assailed in the  Court.

Fazal Ali, J. The learned Judge held that: (i) the action under Article 356 is immune  from judicial scrutiny unless the action is  "guided by extraneous consideration" or  "personal considerations". (ii) the inference drawn by the Central  Government following the 1977 elections  to the Lok Sabha cannot be said to be  unreasonable. It cannot be said that the  inference drawn had no nexus with Article  356."

Bommai’s case The Nine Judge Bench considered the validity of  dissolution of Legislative Assembly of States of  Karnataka, Meghalaya, Nagaland, Madhya Pradesh,  Himachal Pradesh and Rajasthan.  Out of six States, the  majority held as unconstitutional the dissolution of  Assemblies of Karnataka, Nagaland and Meghalaya as  well.  Six opinions have been expressed.  There is  unanimity on some issues, likewise there is diversity  amongst several opinions on various issues. Karnataka Facts         In the case of Karnataka, the facts were that the  Janta Party being the majority party in the State  Legislature had formed the Government under the  leadership of Shri S.R. Bommai on August 30, 1988  following the resignation on August 1, 1988 of the earlier  Chief Minister Shri Hegde who headed the ministry from  March 1985 till his resignation.  On 17th April, 1989 one  legislator presented a letter to the Governor withdrawing  his support to the Ministry.  On the next day he  presented to the Governor 19 letters allegedly written by  17 Janta Dal legislators, one independent but associate  legislator and one legislator belonging to the BJP which  was supporting the ministry, withdrawing their support  to the ministry.  On receipt of these letters, the Governor  is said to have called the Secretary of the Legislature  Department and got the authenticity of the signatures on

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 41 of 77  

the said letters verified.  On April 19, 1989, the Governor  sent a report to the President stating therein that there  were dissensions in the Janta Party which had led to the  resignation of Shri Hegde and even after the formation of  the new party viz. Janta Dal, there were dissensions and  defections.   In support, the Governor referred to the 19  letters received by him.  He further stated that in view of  the withdrawal of the support by the said legislators, the  Chief Minister Shri Bommai did not command a majority  in the Assembly and hence it was inappropriate under  the Constitution, to have the State administered by an  Executive consisting of Council of Ministers which did not  command the majority in the House.  He also added that  no other political party was in a position to form the  Government.  He, therefore, recommended to the  President that he should exercise power under Article  356(1).  The Governor did not ascertain the view of Shri  Bommai either after the receipt of the 19 letters or before  making his report to the President.  On the next day i.e.  April 20, 1989, 7 out of the 19 legislators who had  allegedly sent the letters to the Governor complained that  their signatures were obtained on the earlier letters by  misrepresentation and affirmed their support to the  Ministry.  The State Cabinet met on the same day and  decided to convene the Session of the Assembly within a  week i.e. on April 27, 1989.  The Chief Minister and his  Law Minister met the Governor on the same day and  informed him about the decision to summon the  Assembly Session.  The Chief Minister offered to prove his  majority on the floor of the House, even by pre-poning   the Assembly Session, if  needed.  To the same effect, the  Governor however sent yet another report to the  President on the same day i.e. April 20, 1989, in  particular, referring to the letters of seven Members  pledging their support to the Ministry and withdrawing  their earlier letters.  He however opined in the report that  the letters from the 7 legislators were obtained by the  Chief Minister by pressurising them and added that  horse-trading was going on and atmosphere was getting  vitiated.  In the end, he reiterated his opinion that the  Chief Minister had lost the confidence of the majority in  the House and repeated his earlier request for action  under Article 356(1) of the Constitution.  On that very  day, the President issued the Proclamation in dissolving  the House.  The Proclamation was thereafter approved by  the Parliament as required by Article 356(3).   A writ petition filed in the High Court challenging  the validity of dissolution was dismissed by a three Judge  Bench inter alia holding that the facts stated in the  Governors report cannot be held to be irrelevant and that  the Governor’s satisfaction that no other party was in a  position to form the Government had to be accepted since  his personal bona fides were not questioned and his  satisfaction was based upon reasonable assessment of all  the relevant facts.  The High Court relied upon the test  laid down in the State of Rajasthan case and held that  on the basis of materials disclosed, the satisfaction  arrived at by the President could not be faulted. Nagaland Facts         In the case of Nagaland, the Presidential  Proclamation dated August 7, 1988 was issued under  Article 356(1) imposing President’s rule.  At the relevant  time in the Nagaland Assembly there were 60 legislators,  34 belonging to Congress (I), 18 to Naga National  Democratic Party and 1 to Naga Peoples’ Party and seven

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 42 of 77  

were independent legislators.  On July 28, 1988, 13 out  of the 34 MLAs of the ruling Congress (I) party informed  the Speaker of the Assembly that they have formed a  separate party and requested him for allotment of  separate seats for them in the House.  The Session was to  commence on August 28, 1988.  By decision dated July  30, 1988 the Speaker held that there was a split in the  party within the meaning of the Tenth Schedule of the  Constitution.  On July 31, 1988, Shri Vamuzo, one of the  13 defecting MLAs who had formed a separate party,  informed the Governor that he commanded the support of  35 out of the then 59 Members in the Assembly and was  in a position to form the Government. On August 3,  1988, the Chief Secretary of the State wrote to Shri  Vamuzo that according to his information, Shri Vamuzo  had wrongfully confined the MLAs who had formed the  new party.  The allegations were denied by Shri Vamuzo  and he asked the Chief Secretary to verify the truth from  the Members themselves.  On verification, the Members  told the Chief Secretary that none of them was confined  as alleged.  On August 6, 1988 the Governor sent a report  to the President of India about the formation of a new  party by the 13 MLAs.  He also stated that the said MLAs  were allured by money. He further stated that the said  MLAs were kept in forcible confinement by Mr. Vamuzo  and one other person, and that the story of split in the  ruling party was not true.  He added that the Speaker  was hasty in according recognition to the new group of  the 13 members and commented that horse-trading was  going on in the State.  He made a special reference to the  insurgency in Nagaland and also stated that some of the  Members of the Assembly were having contacts with the  insurgents.  He expressed the apprehension that if the  affairs were allowed to continue as they were, it would  affect the stability of the State.  In the meantime the  Chief Minister submitted his resignation to the Governor  and recommended the imposition of the President’s rule.    The President thereafter issued the impugned  Proclamation and dismissed the Government and  dissolved the Assembly.  Shri Vamuzo, the leader of the  new group challenged the validity of the Proclamation in  the Gauhati High Court.  The Petition was heard by a  Division Bench.  The Bench differed on the effective  operation of Article 74(2) and hence the matter was  referred to the third Judge.  But before the third learned  Judge could hear the matter, the Union of India moved  this Court for grant of Special Leave which was granted  and the proceedings in the High Court were stayed.   Dealing with the implications of Article 74(2) of the  Constitution Justice Sawant speaking for himself and  Justice Kuldip Singh came to the conclusion that  although the advice given by the Council of Ministers is  free from the gaze of the Court, the material on the basis  of which the advice is given cannot be kept away from it  and is open to judicial scrutiny.  On the facts, Justice  Sawant expressed the view that the Governor should  have allowed Shri Vamuzo to test his strength on the  floor of the House  notwithstanding the fact that the  Governor in his report has stated that during the  preceding 25 years, no less than 11 Governments had  been formed and according to his information, the  Congress (I) MLAs were allured by the monetary benefits  and that amounted to incredible lack of political morality  and complete disregard of the wishes of the electorate.   Meghalaya

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 43 of 77  

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

       Insofar as the cases of States of Madhya Pradesh,  Rajasthan and Himachal Pradesh are concerned the  dismissal of the Governments was a consequence of  violent reactions in India and abroad as well as in the  neighbouring countries where some temples were  destroyed, as a result of demolition of Babri Masjid  structure on 6th December, 1992.  The Union of India is  said to have tried to cope up the situation by taking  several steps including banning of some organizations  which had along with BJP given a call for Kar sevaks to  march towards Ayodhya on December 6, 1992. The  Proclamation in respect of these States was issued on  January 15, 1993.  The Proclamations dissolving the  assemblies were issued on arriving at satisfaction as  contemplated by Article 356(1) on the basis of Governor’s  report.  It was held that the Governor’s reports are based  on relevant materials and are made bona fide and after  due verification.   The Conclusion Nos. I, II, IV, VI, VII, IX and X in the  opinion of Justice Sawant are as under: "I. The validity of the Proclamation issued  by the President under Article 356(1) is  judicially reviewable to the extent of  examining whether it was issued on the  basis of any material at all or whether the  material was relevant or whether the  Proclamation was issued in the mala fide  exercise of the power. When a prima facie  case is made out in the challenge to the  Proclamation, the burden is on the Union  Government to prove that the relevant  material did in fact exist. Such material  may be cither the report of the Governor  or other than the report. II. Article 74(2) is not a bar against the  scrutiny of the material on the basis of  which the President had arrived at his  satisfaction. IV. Since the provisions contained in cl.  (3) of Article 356 are intended to be a,  check on the powers of the President  under clause (1) thereof, it will not be  permissible for the President to exercise  powers under sub-clauses (a), (b) and (c)  of the latter clause, to take irreversible  actions till at least both the Houses of  Parliament have approved of the  Proclamation. It is for this reason that the  President will not be justified in dissolving  the Legislative Assembly by using the  powers of the Governor under Article  174(2)(b) read with Article 356(1)(a) till at  least both the Houses of Parliament  approve of the Proclamation. VI. In appropriate cases, the Court will

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 44 of 77  

have power by an interim injunction, to  restrain the holding of fresh elections to  the Legislative Assembly pending the final  disposal of the challenge to the validity of  the Proclamation to avoid the fait  accompli and the remedy of judicial  review being rendered fruitless. However,  the Court will not interdict the issuance  of the Proclamation or the exercise of any  other power under the Proclamation. VII. While restoring the status quo ante,  it will be open for the Court to mould the  relief suitably and declare as valid  actions taken by the President till that  date. It will also be open for the  Parliament and the Legislature of the  State to validate the said actions of the  President. IX. The Proclamations dated April 21,  1989 and October 11, 1991 and the  action taken by the President in removing  the respective Ministries and the  Legislative Assemblies of the State of  Karnataka and the State of Meghalaya  challenged in Civil Appeal No. 3645 of  1989 and Transfer Case Nos. 5 and 7 of  1992 respectively are unconstitutional.  The Proclamation dated August 7, 1988  in respect of State of Nagaland is also  held unconstitutional. However, in view of  the fact that fresh elections have since  taken place and the new Legislative  Assemblies and Ministries have been  constituted in all the three States, no  relief is granted consequent upon the  above declarations. However, it is  declared that all actions which might  have been taken during the period the  Proclamation operated, are valid. The  Civil Appeal No. 3645 of 1989 and  Transfer case Nos. 5 and 7 of 1992 are  allowed accordingly with no order as to  costs. Civil Appeal Nos. 193-194 of 1989  are disposed of by allowing the writ  petitions filed in the Gauhati High Court  accordingly but without costs. X. The Proclamations dated 15th  December, 1992 and the actions taken by  the President removing the Ministries and  dissolving the Legislative Assemblies in  the States of Madhya Pradesh, Rajasthan  and Himachal Pradesh pursuant to the  said proclamations are not  unconstitutional. Civil Appeals Nos. 1692,  1692A-1692C, 4627-30 of 1993 are  accordingly allowed and Transfer case  Nos. 8 and 9 of 1993 are dismissed with  no order as to costs."

Justice Jeevan Reddy has expressed opinion for  himself and Justice Agrawal.  The conclusions Nos. 2, 3,  7, 8 and 12 in paragraph 434 are relevant for our purpose  and the same read as under: "(2) The power conferred by Art. 356 upon  the President is a conditioned power. It is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 45 of 77  

not an absolute power. The existence of  material -- which may comprise of or  include the report(s) of the Governor -- is  a pre-condition. The satisfaction must be  formed on relevant material. The  recommendations of the Sarkaria  Commission with respect to the exercise of  power under Art. 356 do merit serious  consideration at the hands of all  concerned. (3) Though the power of dissolving of the  Legislative Assembly can be said to be  implicit in clause (1) of Art. 356, it must  be held, having regard to the overall  constitutional scheme that the President  shall exercise it only after the  proclamation is approved by both Houses  of Parliament under clause (3) and not  before. Until such approval, the President  can only suspend the Legislative Assembly  by suspending the provisions of  Constitution relating to the Legislative  Assembly under sub-clause (c) of clause  (1). The dissolution of Legislative  Assembly is not a matter of course. It  should be resorted to only where it is  found necessary for achieving the  purposes of the proclamation. (7) The proclamation under Article 356(I)  is not immune from judicial review. The  Supreme Court or the High Court can  strike down the proclamation if it is found  to be mala fide or based on wholly  irrelevant or extraneous grounds. The  deletion of clause (5) (which was  introduced by 38th (Amendment) Act) by  the 44th (Amendment) Act, removes the  cloud on the reviewability of the action.  When called upon, the Union of India has  to produce the material on the basis of  which action was taken. It cannot refuse  to do so. if it seeks to defend the action.  The court will not go into the correctness  of the material or its adequacy. Its enquiry  is limited to see whether the material was  relevant to the action. Even if part of the  material is irrelevant, the court cannot  interfere so long as, there is some material  which is relevant to the action taken. (8) If the court strikes down the  proclamation, it has the power to restore  the dismissed Government to office and  revive and reactivate the Legislative  Assembly wherever it may have been  dissolved or kept under suspension. In  such a case, the court has the power to  declare that acts done, orders passed and  laws made during the period the  proclamation was in force shall remain  unaffected and be treated as valid. Such  declaration, however, shall not preclude  the Government/ Legislative Assembly or  other competent authority to review,  repeal or modify such act orders and laws. (12) The proclamations dated January 15,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 46 of 77  

1993 in respect of Madhya Pradesh,  Rajasthan and Himachal Pradesh  concerned in Civil Appeals Nos. 1692,  I692A-I692C of 1993, 4627-4630 of 1990,  Transferred Case (C) No. 9 of 1993 and  Transferred Case No. 8 of 1993  respectively are not unconstitutional. The  Civil Appeals are allowed and the  judgment of the High Court of Madhya  Pradesh in M.P.(C) No. 237 of 1993 is set  aside. The Transferred Cases are  dismissed."

Justice Jeevan Reddy has also expressed agreement  with the conclusions I, II and IV to VII in the Judgment of  Justice Sawant delivered on behalf of himself and Justice  Kuldip Singh. Justice Pandian has expressed agreement with the  opinion of Justice P.B. Sawant on his conclusions I, II  and IV to VIII but so far as the reasoning and other  conclusions are concerned, the learned Judge has agreed  with the Judgment of Justice Reddy. For determining the scope of judicial review in terms  of law enunciated by Bommai, it is vital to keep in view  that majority opinion in that case declared as illegal the  dissolution of assemblies of Karnataka and Nagaland. At  an appropriate place later, we will note the reason that  led to this declaration.         Some observations made in the minority opinion of  Justice K. Ramaswamy are also very significant.  Learned  Judge has said that the motivating factor for action under  Article 356(1) should never be for political gain to the  party in power at the Centre, rather it must be only when  it is satisfied that the constitutional machinery has failed.  It has been further observed that the frequent elections  would belie the people’s belief and faith in parliamentary  form of Government, apart from enormous election  expenditure to the State and the candidates. The Court, if  upon the material placed before it, finds that satisfaction  reached by the President is unconstitutional, highly  irrational or without any nexus, then the Court would  consider the contents of the Proclamation or reasons  disclosed therein and in extreme cases the material  produced pursuant to discovery order nisi to find the  action is wholly irrelevant or bears no nexus between  purpose of the action and the satisfaction reached by the  President or does not bear any rationale to the proximate  purpose of the Proclamation.  In that event, the Court  may declare that the satisfaction reached by the  President was either on wholly irrelevant grounds or  colourable exercise of power and consequently,  Proclamation issued under Article 356 would be declared  unconstitutional.   It is apparent that Justice Ahmadi and Justice  Ramaswamy though in minority, yet learned Judges have  frowned upon the highly irrational action.          Now, let us see the opinion of Justice Sawant, who  spoke for himself and Justice Kuldip Singh and with  whom Justice Pandian, Justice Jeevan Reddy and  Justice Agrawal agreed, to reach the conclusion as to the  invalidity of Proclamation dissolving assemblies of  Karnataka and Nagaland.   Learned Judge has opined that the President’s  satisfaction has to be based on objective material.  That  material may be available in the report sent to the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 47 of 77  

President by the Governor or otherwise or both from the  report and other sources.  Further opines Justice Sawant  that the objective material, so available must indicate  that the Government of State cannot be carried on in  accordance with the provisions of the Constitution.  The  existence of the objective material showing that the  Government of the State cannot be carried on in  accordance with the provisions of the Constitution is a  condition precedent before the issue of the Proclamation. Reference has been made to a decision of the  Supreme Court of Pakistan on the same subject,  although the language of the provisions of the relevant  Articles of Pakistan Constitution is not couched in the  same terms.  In Muhammad Sharif v. Federation of  Pakistan, PLD 1988 (LAH) 725, the question was  whether the order of the President dissolving the National  Assembly on 29th May, 1988 was in accordance with the  powers conferred on him under Article 58(2)(b) of the  Pakistan Constitution.  It was held in that case that it is  not quite right to contend that since it was the discretion  of the President, on the basis of his opinion, the  President could dissolve the National Assembly but he  has to have the reasons which are justifiable in the eyes  of the people and supportable by law in a court of justice.   He could not rely upon the reasons which have no nexus  to the action, are bald, vague, general or such as can  always be given and have been given with disastrous  effects (Emphasis supplied by us).  It would be  instructive to note as to what was stated by the learned  Chief Justice and Justice R.S. Sidhwa, as reproduced in  the opinion of Justice Sawant: "Whether it is ’subjective’ or ’objective’  satisfaction of the President or it is his  ’discretion’ or ’opinion’, this much is  quite clear that the President cannot  exercise his powers under the  Constitution on wish or whim. He has to  have facts, circumstances which can lead  a person of his status to form an  intelligent opinion requiring exercise of  discretion of such a grave nature that the  representative of the people who are  primarily entrusted with the duty of  running the affairs of the State are  removed with a stroke of the pen. His  action must appear to be called for and  justifiable under the Constitution if  challenged in a Court of Law. No doubt,  the Courts will be chary to interfere in  his ’discretion’ or formation of the  ’opinion’ about the ’situation’ but if there  be no basis or justification for the order  under the Constitution, the Courts will  have to perform their duty cast on them  under the Constitution. While doing so,  they will not be entering in the political  arena for which appeal to electorate is  provided for." Dealing with the second argument, the  learned Chief Justice held: "If the argument be correct then the  provision ’Notwithstanding anything  contained in clause (2) of Article 48’  would be rendered redundant as if it was  no part of the Constitution.  It is obvious

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 48 of 77  

and patent that no letter or part of a  provision of the Constitution can be said  to be redundant or non-existent under  any principle of construction of  Constitutions.  The argument may be  correct in exercise of other discretionary  powers but it cannot be employed with  reference to the dissolution of National  Assembly.  Blanket coverage of validity  and unquestionability of discretion under  Article 48(2) was given up when it was  provided under Article 58(2) that  ’Notwithstanding clause (2) of Article 48  \005 the discretion can be exercised in the  given circumstances.  Specific provision  will govern the situation.  This will also  avoid expressly stated; otherwise it is  presumed to be there in Courts of  record\005.Therefore, it is not quite right to  contend that since it was in his  ’discretion’, on the basis of his ’opinion’  the President could dissolve the National  Assembly. He has to have reasons which  are justifiable in the eyes of the people  and supportable by law in a Court of  Justice..... It is understandable that if  the President has any justifiable reason  to exercise his ’discretion’ in his ’opinion’  but does not wish to disclose, he may say  so and may be believed or if called upon  to explain the reason he may take the  Court in confidence without disclosing  the reason in public, may be for reason of  security of State. After all patriotism is  not confined to the office holder for the  time being. He cannot simply say like  Caesar it is my will, opinion or discretion.  Nor give reasons which have no nexus to  the action, are bald, vague, general or  such as can always be given and have  been given with disastrous effects......". Dealing with the same arguments, R.S.  Sidhwa, J. stated as follows :

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

It is well settled that if the satisfaction is mala fide or  is based on wholly extraneous or irrelevant grounds, the  court would have the jurisdiction to examine it because  in that case there would be no satisfaction of the  President in regard to the matter on which he is required  to be satisfied.  On consideration of these observations  made in the case of State of Rajasthan as also the other  decisions {Kehar Singh & Anr. v. Union of India &

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 49 of 77  

Anr. [(1989) 1 SCC 204] and Maru Ram v. Union of  India [(1981) 1 SCC 107]}, Justice Sawant concluded  that the exercise of power to issue proclamation under  Article 356(1) is subject to judicial review at least to the  extent of examining whether the conditions precedent to  the issue of Proclamation have been satisfied or not.  This  examination will necessarily involve the scrutiny as to  whether there existed material for the satisfaction of the  President that the situation had arisen in which the  Government of the State could not be carried on in  accordance with the provisions of the Constitution.    While  considering the question of material, it was held  that it is not the personal whim, wish, view or opinion or  the ipse dixit of the President de hors the material but a  legitimate inference drawn from the material placed  before him which is relevant for the purpose.   In other  words, the President has to be convinced of or has to  have sufficient proof of information with regard to or has  to be free from doubt or uncertainty about the state of  things indicating that the situation in question has  arisen. (Emphasis supplied by us).  Although, therefore,  the sufficiency or otherwise of the material cannot be  questioned, the legitimacy of inference drawn from  material is certainly open to judicial review. It has been further held that when the Proclamation  is challenged by making a prima facie case with regard to  its invalidity, the burden would be on the Union  Government to satisfy that there exists material which  showed that the Government could not be carried on in  accordance with the provisions of the Constitution.  Since  such material would be exclusively within the knowledge  of the Union Government in view of the provisions of  Section 106 of the Evidence Act, the burden of proof  would be on the Union Government.   Thus having reached the aforesaid conclusions as to  the parameters of the judicial review that the satisfaction  cannot be based on the personal whim, wish, view,  opinion or ipse dixit  de hors the legitimate inference  from the relevant material and that the legitimacy of the  inference drawn was open to judicial review, the report  on basis whereof Proclamation dissolving the Assembly of  Karnataka had been issued was  subjected to a close  scrutiny, as is evident from paragraphs 118, 119 and 120  of the opinion of Justice Sawant which read as under: "118. In view of the conclusions that we  have reached with regard to the  parameters of the judicial review, it is  clear that the High Court had committed  an error in ignoring the most relevant  fact that in view of the conflicting letters  of the seven legislators, it was improper  on the part of the Governor to have  arrogated to himself the task of holding,  firstly, that the earlier nineteen letters  were genuine and were written by the  said legislators of their free will and  volition. He had not even cared to  interview the said legislators, but had  merely got the authenticity of the  signatures verified through the  Legislature Secretariat. Secondly, he also  took upon himself the task of deciding  that the seven out of the nineteen  legislators had written the subsequent  letters on account of the pressure from

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 50 of 77  

the Chief Minister and not out of their  free will. Again he had not cared even to  interview the said legislators. Thirdly, it  is not known from where the Governor  got the information that there was horse- trading going on between the legislators.  Even assuming that it was so, the correct  and the proper course for him to adopt  was to await the test on the floor of the  House which test the Chief Minister had  willingly undertaken to go through on  any day that the Governor chose. In fact,  the State Cabinet had itself taken an  initiative to convene the meeting of the  Assembly on April 27, 1989, i.e., only a  week ahead of the date on which the  Governor chose to send his report to the  President. Lastly, what is important to  note in connection with this episode is  that the Governor at no time asked the  Chief Minister even to produce the  legislators before him who were  supporting the Chief Minister, if the  Governor thought that the situation  posed such grave threat to the  governance of the State that he could not  await the result of the floor-test in the  House. We are of the view that this is a  case where all canons of propriety were  thrown to wind and the undue haste  made by the Governor in inviting the  President to issue the Proclamation  under Article 356(1) clearly smacked of  mala fides. The Proclamation issued by  the President on the basis of the said  report of the Governor and in the  circumstances so obtaining, therefore,  equally suffered from mala fides. A duly  constituted Ministry was dismissed on  the basis of material which was neither  tested nor allowed to be tested and was  no more than the ipse dixit of the  Governor. The action of the Governor was  more objectionable since as a high  constitutional functionary, he was  expected to conduct himself more firmly,  cautiously and circumspectly. Instead, it  appears that the Governor was in a hurry  to dismiss the Ministry and dissolve the  Assembly. The Proclamation having been  based on the said report and so-called  other information which is not disclosed  was, therefore, liable to be struck down. (Emphasis supplied by us) 119.  In this connection, it is necessary  to stress that in all cases where the  support to the Ministry is claimed to  have been withdrawn by some  Legislators, the proper course for testing  the strength of the Ministry is holding the  test on the floor of the House. That alone  is the constitutionally ordained forum for  seeking openly and objectively the claims  and counter-claims in that behalf. The  assessment of the strength of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 51 of 77  

Ministry is not a matter of private  opinion of any individual, be he the  Governor or the President. It is capable of  being demonstrated and ascertained  publicly in the House. Hence when such  demonstration is possible, it is not open  to bypass it and instead depend upon the  subjective satisfaction of the Governor or  the President. Such private assessment  is an anathema to the democratic  principle, apart from being open to  serious objections of personal mala fides.  It is possible that on some rare  occasions, the floor-test may be  impossible, although it is difficult to  envisage such situation. Even assuming  that there arises one, it should be  obligatory on the Governor in such  circumstances, to state in writing, the  reasons for not holding the floor-test. The  High Court was, therefore, wrong in  holding that the floor test was neither  compulsory nor obligatory or that it was  not a pre-requisite to sending the report  to the President recommending action  under Article 356(1). Since we have  already referred to the recommendations  of the Sarkaria Commission in this  connection, it is not necessary to repeat  them here. (Emphasis supplied by us) 120. The High Court was further wrong  in taking the view that the facts stated in  the Governor’s report were not irrelevant  when the Governor without ascertaining  either from the Chief Minister or from the  seven MLAs whether their retraction was  genuine or not, proceeded to give his  unverified opinion in the matter. What  was further forgotten by the High Court  was that assuming that the support was  withdrawn to the Ministry by the 19  MLAs, it was incumbent upon the  Governor to ascertain whether any other  Ministry could be formed. The question of  personal bona fides of the Governor is  irrelevant in such matters. What is to be  ascertained is whether the Governor had  proceeded legally and explored all  possibilities of ensuring a constitutional  Government in the State before reporting  that the constitutional machinery had  broken down. Even if this meant  installing the Government belonging to a  minority party, the Governor was duty  bound to opt for it so long as the  Government could enjoy the confidence  of the House. That is also the  recommendation of the Five-member  Committee of the Governors appointed by  the President pursuant to the decision  taken at the Conference of Governors  held in New Delhi in November 1970, and  of the Sarkaria Commission quoted  above. It is also obvious that beyond the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 52 of 77  

report of the Governor, there was no  other material before the President before  he issued the Proclamation. Since the  "facts" stated by the Governor in his  report, as pointed out above contained  his own opinion based on unascertained  material, in the circumstances, they  could hardly be said to form an objective  material on which the President could  have acted. The Proclamation issued was,  therefore, invalid." (Emphasis supplied by us)

       The view of the High Court that the facts stated in  the Governor’s report had to be accepted was not upheld  despite the fact that the Governor had got the  authenticity of the signatures of 19 MLAs on letters  verified from the Legislature Secretariat, on the ground  that he had not cared to interview the legislators and that  there were conflicting letters from the seven legislators.   The conclusion drawn by the Governor that those seven  legislators had written the subsequent letters on account  of the pressure from the Chief Minister and not out of  their own free will was frowned upon, particularly when  they had not been interviewed by the Governor.  It was  further observed that it is not known from where the  Governor got the information about the horse-trading  going on between the legislators.  Further conclusion  reached was that the Governor had thrown all cannons of  propriety to the winds and showed undue haste in  inviting the President to issue Proclamation under Article  356(1) which clearly smacked of mala fides.  It was  noticed that the facts stated by the Governor in his report  were his own opinion based on unascertained material  and in the circumstances they could hardly be said to  form the objective material on which the President could  have acted.           When the facts of the present case are examined in  light of the scope of the judicial review as is clear from  the aforesaid which represents ratio decidendi of majority  opinion of Bommai’s case, it becomes evident that the  challenge to the impugned Proclamation must succeed.         The case in hand is squarely covered against the  Government by the dicta laid down in Bommai’s case.   There cannot be any presumption of allurement or horse- trading only for the reason that some MLAs, expressed  the view which was opposed to the public posture of their  leader and decided to support the formation of the  Government by the leader of another political party.   The  minority Governments are not unknown.  It is also not  unknown that the Governor, in a given circumstance,  may not accept the claim to form the Government, if  satisfied that the party or the group staking claim would  not be able to provide to the State a stable Government.    It is also not unknown that despite various differences of  perception, the party, group or MLAs may still not opt to  take a step which may lead to the fall of the Government  for various reasons including their being not prepared to  face the elections.  These and many other imponderables  can result in MLAs belonging to even different political  parties to come together.  It does not necessarily lead to  assumption of allurement and horse-trading.           As opposed to the cases of dissolution of Karnataka  and Nagaland, while considering the cases of dissolution  of assemblies of Madhya Pradesh, Rajasthan and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 53 of 77  

Himachal Pradesh, it was held in Bommai that the  reports of the Governors disclosed that the State  Governments had miserably failed to protect the citizens  and property of the State against internal disturbances, it  was found that the Governor’s reports are based on  relevant material and are made bona fide and after due  verification.  It is in the light of these findings that the  validity of the Proclamation was unanimously upheld in  respect of these three States.         Now, let us revert to the reasoning given in the  opinion of Justice B.P. Jeevan Reddy, speaking for  himself and Justice Agrawal.           As already noticed, Justice Reddy to the extent  stated in para 324 expressed his dissent with the  reasoning of State of Rajasthan case.         Before we examine paragraph 389, wherein Justice  Reddy has noticed, in brief, eight reasons given by the  Special Bench of the High Court in dismissing the writ  petition and the opinion of learned Judge as contained in  para 391, we feel that to fully appreciate Bommai’s case  which reversed Full Bench decision of Karnataka High  Court, it would be quite useful to note what exactly was  stated by the High Court in Paragraphs 28 to 34 of its  judgment reported in S.R. Bommai & Ors. v. Union of  India & Ors. [AIR 1990 Karnataka 5].  The said  paragraphs read as under : "28. Coming to the second facet of the  contention of Mr. Soli Sorabjee, we find  that the criticism levelled is that the  inference drawn by the Governor that  there is no other party which is in a  position to form the Government, is not  only vague but factually incorrect and  hence the President had no relevant  material to arrive at his satisfaction for  proclamation issued by him.

The aforesaid contention again is without  any merit for the reasons: (i) that the  Governor formed the said satisfaction  which can necessarily be the result of his  own impressions. Narration of events in  no way advances the case of satisfaction  because the very satisfaction of the  Governor is an integral part of the  material relevant fact. It may also be that  the Governor would have met several  MLAs and enquired of them. But what  transpired between them cannot be a  matter of record. In the context where  the Governor’s personal bona fides are  not in question, his satisfaction  expressed is to be assumed as part of the  relevant material facts in the sense that  the very satisfaction stated therein  comprehends within itself the idea of all  the other necessary factors, (ii) the report  of 19th April, 1989 has to be read with  the second report of 20th April, 1989  wherein "atmosphere getting vitiated"  and "horse-trading" were referred.  "Pressurisation of MLAs", "Horse-trading"  and "vitiating atmosphere" referred to in  the report necessarily indicate the  existence of facts for the satisfaction that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 54 of 77  

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

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 55 of 77  

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

"It is not appropriate under the  circumstances to have the  State administered by an  Executive consisting of Council  of Ministers who do not  command the majority in the  House."

What was sought to be argued by the  learned counsel was to say that it is not  appropriate is quite different from saying  that there is a constitutional breakdown,  and as the Governor only feels that it is  not appropriate, there was no legal  justification for taking the impugned  action.

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

31. In view of the aforesaid discussion,  we find no escape from the conclusion  that the grounds stated and material  supplied in the reports of the Governor  are neither irrelevant nor vague, that the  reasons disclosed bear a reasonable

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 56 of 77  

nexus with the exercise of the particular  power and hence the satisfaction of the  President must be treated as conclusive,  and that there is no scope at all for a  finding that the action of the President is  in flagrant violation of the very words of  Art. 356(1).

32. Mr. Soli Sorabjee also contended that  the factors like the alleged ’unethical  methods adopted during the formation of  Janata Dal’ ’expansion of cabinet’,  ’horse-trading’ and ’atmosphere getting  vitiated’ are not only vague but have no  nexus at all with the question of failure  of Constitutional machinery. The learned  counsel also laid great stress by  contending that the Governor by acting  upon the letters given by 19 legislators  had circumvented the Anti Defection  legislation, the primary aim of which is to  discourage the toppling game by  legislators by changing their loyalties,  and by acting upon those letters the  legislators were permitted, in substance,  to play the game of toppling the ruling  Ministry without incurring the  consequences of Anti-Defection law  because, if these legislators had  withdrawn their support in the House  and voted against the Ministry, they  would have incurred disqualification  under Anti-Defection Law. Reliance upon  these letters is contrary to the underlying  purpose and the essence of Anti- Defection legislation and therefore  illegitimate and prohibited. The learned  counsel buttressed his arguments by  contending that if the floor test had been  held the legislators who had written  letters might have changed their mind for  several valid reasons e.g. (i) change in the  style of functioning of leadership, (ii)  change in the leadership, (iii) realisation  for maintaining party unity, (iv)  unwillingness to incur disqualification  under Anti-Defection legislation and (v)  not giving a pretext for imposition of  President’s Rule. In support of the  contention that the floor test has always  been recognised as the legitimate and  relevant method, Sri Soli Sorabjee relied  on the judgment of the Orissa High Court  in Bijayananda v. President of India,  Sarkaria Commission Report page 173  para6.5.01, the judgment of Gauhati  High Court in Vamuzov. Union of India,  (1988) 2 Gauh LJ 468 at p. 483, Report  of the Committee of Governors dated 1- 10-1971, pages 208, 209, 210, 217-219,  221-219, 221- 223 and 234, and Address  by Speaker of Lok Sabha on the occasion  of Speakers’ Conference on 16-7-1970  paras 13 and 14.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 57 of 77  

33. In our view, the aforesaid  contentions/ points urged by the learned  counsel do not in any way destroy the  effect of the two material grounds on the  basis of which the subjective satisfaction  was arrived at by the President. The  Governor honestly and truly has stated  all the facts. They are not vague at all  and are narrative in nature. What was  happening in the State, the Governor has  disclosed in the report. The Governor was  assessing whether the first petitioner was  commanding majority and he (Governor)  was entitled to take into consideration  the behaviour of the MLAs one way or the  other.

It is expected that a Government to be  effective should not only command a  majority in the House but should also be  backed by the majority members outside  the house so that the Government would  not be under a perennial pressure of  being dislodged whenever the House  meets again.

We have gone through the judgments of  the Orissa and Gauhati High Courts  mentioned above and find that the same  are distinguishable. In Bijayanand’s case  the main fact was that the Leader of the  Opposition who had shown his majority  in the House was not tailed upon to form  the Ministry not because he had no  majority but because the Governor  expected that the majority might fall at  any moment and there may be no stable  Ministry, and on this aspect G. K. Misra,  C.J. observed that the Governor is not  concerned whether the Ministry could be  stable in future. If the Ministry which  would have been formed by the Leader of  the Opposition would have fallen  afterwards, the Governor would have  been justified to recommend for the  President’s Rule if at that time no other  person was in a position to from an  alternative Ministry by having majority  support. But, in the instant case, the  position is entirely different as at the  initial stage itself the Governor has in  unequivocal terms stated in his report  that he is also satisfied that there is no  other party which is in a position to form  the Government.  

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

"Hokishe Sema formed the  Government in 1987. Chishi  attempted to bring down and  destabilise the Government. To  achieve that end he offered  money and lured the separated

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 58 of 77  

group of 13 to step out from  the ruling party. The Governor  called the episode ’incredible  lack of political morality and  complete disregard of the  wishes of the electorates on the  part of the breakway  congressmen’. That none of  them therefore had ever  expressed any grievances to  the Chief Minister at any time  in the past. The 13 persons are  kept under forcible  confinement by K. L. Chishi  and Vamuzo. The split of the  party is not true. It is obvious  that what may be called a  political group of the darkest  hue has been stated in his  absence contrary to the, noble  Naga character and democratic  traditions’. The recognition by  the Speaker was done in haste.  The entire incident manifests  political horse trading and  machinations. He added there  is proof that they are the group  of 13 persons have not  separated from the ruling party  voluntarily ....."

If we look at those facts, again we find  that there is absolutely no similarity of  the aforesaid facts to the two material  facts in the case on hand. In the said  case, as found on those facts, the  Governor was held to have exceeded his  jurisdiction and the facts stated therein  were found to be irrelevant to the  provisions of An. 356(1), by the Gauhati  High Court.

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

34. Mr. Soli Sorabjee had made pointed  reference to the Tenth Schedule i.e. Anti

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 59 of 77  

Defection Law, for bringing home his  point that the factum of the withdrawal  of the support by 19 legislators was  wholly irrelevant. This argument was  advanced to prove his point that in the  context of Anti Defection Legislation,  floor test was the most relevant,  legitimate and surest method to  determine whether the Council of  Ministers headed by Sri S.R. Bommai  commanded the majority in the House or  not. We are afraid, we are unable to  agree with this submission of the learned  counsel. The introduction of Tenth  Schedule in the Constitution has not in  any way affected the exercise of power  under Art. 356 nor has it amended Art.  356 in any manner. The amending body  which inserted the Tenth Schedule to the  Constitution had before it several  decisions (specially the Rajasthan Case  as to the scope of Art. 356. There is a  presumption that the law-making body  was aware of the existing interpretation  given by the Supreme Court on a  provision of law or of a Constitutional  provision. If the said Constitutional  provision (Art. 356) was untouched while  adding a new schedule to the  Constitution elsewhere without reference  to the existing provision (Art. 356), we  have to presume that the existing  interpretation of the said provision  continues to govern the situation. It is  not possible to hold that the  interpretation given to Art. 356 in  Rajasthan Case, if continued to govern it,  would destroy the efficacy of the Tenth  Schedule. Tenth Schedule to the  Constitution is applicable to the  transaction of business inside the House  of Legislature. The ami defection activity  outside the House is not penalised in any  manner by Tenth Schedule. Concept of  the failure of the Constitutional  machinery of the Government is not  confined to the loss of majority by a  ministry in the House; it may be due to  several reasons. Therefore, if meeting of  the Legislature, was contemplated as a  mandatory requirement preceding a  report of the Governor for an action  under Art. 356 and floor test was  impliedly made the sole and exclusive  test to judge the stability of the Ministry  (after the Tenth Schedule was added to  the Constitution), the Tenth Schedule  would have been suitably worded, or Art.  356 would have been altered."

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 60 of 77  

court can examine Whether the  satisfaction has been formed on wholly  extraneous material or whether there is a  rational nexus between the material and  the satisfaction. (2) In Article 356, the President means the  Union council of ministers. The  satisfaction referred to therein is  subjective satisfaction. This satisfaction  has no doubt to be formed on a  consideration of all the facts and  circumstances. (3) The two reports of the Governor  conveyed to the President essential and  relevant facts which were relevant for the  purpose of Article 356. The facts stated in  the Governor’s report cannot be stated to  be irrelevant. They are perfectly relevant. (4) Where the Governor’s "personal bona  fides" are not questioned, his satisfaction  that no other party is in a position to form  the government has to be accepted as  true and is based upon a reasonable  assessment of all the relevant facts. (5) Recourse to floor test was neither  compulsory nor obligatory. It was not a  prerequisite to sending up a report  recommending action under Article  356(1), (6) The introduction of Xth Schedule to  the Constitution has not affected in any  manner the content of the power under  Article 356. (7) Since the proclamation has to be  issued on the satisfaction of the Union  council of ministers the Governor’s report  cannot be faulted on the ground of legal  mala fides. (8) Applying the test indicated in the State  of Rajasthan v. Union of India, the court  must hold, on the basis of material  disclosed, that the subjective satisfaction  arrived at by the President is conclusive  and cannot be faulted. The proclamation,  therefore, is unobjectionable."

Except for aforesaid reasons 1 and 2, other reasons  were not accepted by Justice Reddy.  Learned Judge did  not accept the reasoning of the High Court that where  Governor’s personal bona fides are not questioned, his  satisfaction that no party is in a position to form the  Government has to be accepted as true as it is based on  reasonable assessment of all the relevant facts.  The  Court also did not accept the reasoning that the  Governor’s report cannot be faulted on the ground of  mala fides.  Learned Judge has stated that the question  whether government has lost the confidence of the House  is not a matter to be determined by the Governor or for  that matter anywhere else except the floor of the House.   The House is the place where the democracy is in action.   It is not a question of subjective satisfaction of the  Governor.  It would be useful to note what has been  observed in paragraph 391 which reads thus: "391. We must also say that the  observation under point (7) is equally

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 61 of 77  

misplaced. It is true that action under  Article 356 is taken on the basis of  satisfaction of the Union Council of  Ministers but on that score it cannot be  said that ’legal mala fides’ of the  Governor is irrelevant. When the Article  speaks of the satisfaction being formed  on the basis of the Governor’s report, the  legal mala fides, if any, of the Governor  cannot be said to be irrelevant. The  Governor’s report may not be conclusive  but its relevance is undeniable. Action  under Article 356 can be based only and  exclusively upon such report. Governor is  a very high constitutional functionary.  He is supposed to act fairly and honestly  consistent with his oath. He is actually  reporting against his own Government. It  is for this reason that Article 356 places  such implicit faith on his report. If,  however, in a given case his report is  vitiated by legal mala fides, it is bound to  vitiate the President’s action as well.  Regarding the other points made in the  judgment of the High Court, we must say  that the High Court went wrong in law in  approving and upholding the Governor’s  report and the action of the President  under Article 356. The Governor’s report  is vitiated by more than one assumption  totally unsustainable in law. The  Constitution does not create an  obligation that the political party forming  the ministry should necessarily have a  majority in the Legislature. Minority  Governments are not unknown. What is  necessary is that that Government  should enjoy the confidence of the  House. This aspect does not appear to  have been kept in mind by the Governor.  Secondly and more importantly whether  the council of ministers have lost the  confidence of the House is not a matter  to be determined by the Governor or for  that matter anywhere else except the  floor of the House. The principle of  democracy underlying our Constitution  necessarily means that any such  question should be decided on the floor  of the House. The House is the place  where the democracy is in action. It is  not for the Governor to determine the  said question on his own or on his own  verification. This is not a matter within  his subjective satisfaction. It is an  objective fact capable of being  established on the floor of the House. It  is gratifying to note that Sri R.  Venkataraman, the former President of  India has affirmed this view in his Rajaji  Memorial Lecture (Hindustan Times  dated February 24, 1994).

       The substantial reasons given by the High Court in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 62 of 77  

paragraphs 28 to 34 for dismissing the writ petition did  not find favour with this Court.  Dealing with the report  of the Governor in respect of Karnataka, it was held that  in the circumstances it cannot be said that the  Governor’s report contained or was based upon relevant  material.  There could be no question of the Governor  making an assumption  of his own.          Clearly, Bommai’s case expanded the scope of  judicial review.  True, observations by Justice Reddy were  made in the context of a situation where the incumbent  Chief Minister is alleged to have lost the majority support  or the confidence of the House and not in the context of a  situation arisen after a general election in respect  whereof no opinion was expressed, but, in our view the  principles of scope of judicial review in such matters  cannot be any different.  By and large, same principles  will apply when making recommendation for dissolution  of a newly elected Assembly and again plunging the State  to elections.         Justice Reddy, for upholding the dissolution of the  State Legislatures of Madhya Pradesh, Rajasthan and  Himachal Pradesh also came to the conclusion that the  reports of the Governor disclosed that the State  Government had miserably failed to protect the citizens  and the property of the State against the internal  disturbances and on the basis of the said report, the  President formed the requisite satisfaction.   Dealing with  the circumstances in the State of Madhya Pradesh, it was  held that ’Governor’s reports are based upon relevant  material and are made bona fide and after due  verification’.  (Emphasis supplied by us)         Thus, it is open to the Court, in exercise of judicial  review, to examine the question whether the Governor’s  report is based upon relevant material or not; whether it  is made bona fide or not; and whether the facts have  been duly verified or not.  The absence of these factors  resulted in the majority declaring the dissolution of State  Legislatures of Karnataka and Nagaland as invalid.   In view of the above, we are unable to accept the  contention urged by the ld. Attorney General for India,  Solicitor General of India and Additional Solicitor  General, appearing for the Government that the report of  the Governor itself is the material and that it is not  permissible within the scope of judicial review to go into  the material on which the report of the Governor may be  based and the question whether the same was duly  verified by the Governor or not.  In the present case, we  have nothing except the reports of the Governor.  In  absence of the relevant material much less due  verification, the report of the Governor has to be treated  as the personal ipse dixit of the Governor.  The drastic  and extreme action under Article 356 cannot be justified  on mere ipse dixit, suspicion, whims and fancies of the  Governor.  This Court cannot remain a silent spectator  watching the subversion of the Constitution.  It is to be  remembered that this Court is the sentinel on the qui  vive.  In the facts and circumstances of this case, the  Governor may be main player, but Council of Ministers  should have verified facts stated in the report of the  Governor before hurriedly accepting it as a gospel truth  as to what Governor stated.  Clearly, the Governor has  mislead the Council of Ministers which lead to aid and  advice being given by the Council of Ministers to the  President leading to the issue of the impugned  Proclamation.      

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 63 of 77  

Regarding the argument urged on behalf of the  Government of lack of judicially manageable standards  and, therefore, the court should leave such complex  questions to be determined by the President, Union  Council of Ministers and the Governor, as the situation  like the one in Bihar, is full of many imponderables,  nuances, implications and intricacies and  there are too  many ifs and buts not susceptible of judicial scrutiny, the  untenability of the argument becomes evident when it is  examined in the light of decision in Bommai’ case  upholding the challenge made to dissolution of the  Assemblies of Karnataka and Nagaland.  Similar  argument defending the dissolution of these two  assemblies having not found favour before a Nine Judge  Bench, cannot be accepted by us.  There too, argument  was that there were no judicially manageable standards  for judging Horse-trading, Pressure, Atmosphere being  vitiated, wrongful confinement, Allurement by money,  contacts with insurgents in Nagaland.  The argument was  rejected. The position was different when Court considered  validity of dissolution of Assemblies of Madhya Pradesh,  Rajasthan and Himachal Pradesh.          In paragraphs 432 and 433 of the opinion of Justice  Jeevan Reddy in Bommai’s case, after noticing the  events that led to demolition of Babri Masjid on 6th  December, 1992, the assurances that had been given  prior to the said date, the extraordinary situation that  had arisen after demolition, the prevailing tense  communal situation, the learned Judge came to the  conclusion that on material placed before the Court  including the reports of the Governors, it was not  possible to say that the President had no relevant  material before him on the basis of which he could form  satisfaction that BJP Governments of Madhya Pradesh,  Rajasthan and Himachal Pradesh cannot disassociate  themselves from the action and its consequences and  that these Governments, controlled by one and the same  party, whose leading lights were actively campaigning for  the demolition of structure, cannot be disassociated from  the acts and deeds of the leaders of BJP.  It was further  held that if the President was satisfied that the faith of  these BJP Governments in the concept of secularism was  suspected in view of the acts and conduct of the party  controlling these Governments and that in the volatile  situation that developed pursuant to the demolition, the  Government of these States cannot be carried on in  accordance with the provisions of the Constitution, the  Court is not able to say that there was no relevant  material upon which he could be so satisfied.  Under  these circumstances, it was observed that the Court  cannot question the correctness of the material produced  and that even if part of it is not relevant to the action.   The Court cannot interfere so long as there is some  relevant material to sustain the action.  For appreciating  this line of reasoning, it has to be borne in mind that the  same learned Judge, while examining the validity of  dissolution of Karnataka and Nagaland Assemblies,  agreeing with the reasoning and conclusions given in the  opinion of Justice Sawant which held that the material  relied upon by the Governor was nothing but his ipse  dixit came to the conclusion that the said dissolution  were illegal.  The majority opinion and the correct ratio  thereof can only be appreciated if it is kept in view that  the majority has declared invalid the dissolution of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 64 of 77  

Assemblies of Karnataka and Nagaland and held  as valid  the dissolution of the Assemblies of Madhya Pradesh,  Rajasthan and Himachal Pradesh.  Once this factor is  kept in full focus, it becomes absolutely clear that the  plea of perception of the same facts or the argument of  lack of any judicially manageable standards would have  no legs to stand.   In the present case, like in Bommai’s case, there is  no material whatsoever except the ipse dixit of the  Governor.  The action which results in preventing a  political party from staking claim to form a Government  after election, on such fanciful assumptions, if allowed to  stand, would be destructive of the democratic fabric.  It is  one thing to come to the conclusion that the majority  staking claim to form the Government, would not be able  to provide stable Government to the State but it is  altogether different thing to say that they have garnered  majority by illegal means and, therefore, their claim to  form the Government cannot be accepted.  In the latter  case, the matter may have to be left to the wisdom and  will of the people, either in the same House it being taken  up by the opposition or left to be determined by the  people in the elections to follow.  Without highly cogent  material, it would be wholly irrational for constitutional  authority to deny the claim made by a majority to form  the Government only on the ground that the majority has  been obtained by offering allurements and bribe which  deals have taken place in the cover of darkness but his  undisclosed sources have confirmed such deals.  The  extra-ordinary emergency power of recommending  dissolution of a Legislative Assembly is not a matter of  course to be resorted to for good governance or cleansing  of the politics for the stated reasons without any  authentic material.  These are the matters better left to  the wisdom of others including opposition and electorate.           It was also contended that the present is not a case  of undue haste.  The Governor was concerned to see the  trend and could legitimately come to the conclusion that  ultimately, people would decide whether there was an  ’ideological realignment", then there verdict will prevail  and the such realigned group would win elections, to be  held as a consequence of dissolution.  It is urged that  given a choice between going back to the electorate and  accepting a majority obtained improperly, only the former  is the real alternative.  The proposition is too broad and  wide to merit acceptance.  Acceptance of such a  proposition as a relevant consideration to invoke  exceptional power under Article 356 may open a floodgate  of dissolutions and has far reaching alarming and  dangerous consequences.  It may also be a handle to  reject post-election alignments and realignments on the  ground of same being unethical, plunging the country or  the State to another election.  This aspect assumes great  significance in situation of fractured verdicts and in the  formation of coalition Governments.  If, after polls two or  more parties come together, it may be difficult to deny  their claim of majority on the stated ground of such  illegality.  These are the aspects better left to be  determined by the political parties which, of course, must  set healthy and ethical standards for themselves, but, in  any case, the ultimate judgment has to be left to the  electorate and the legislature comprising also of members  of opposition. To illustrate the aforesaid point, we may give two  examples in a situation where none of the political party

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 65 of 77  

was able to secure majority on its own : 1.      After polls, two or more political parties come  together to form the majority and stake claim on that  basis for formation of the Government.  There may  be reports in the media about bribe having been  offered to the elected members of one of the political  parties for its consenting to become part of majority.   If the contention of the respondents is to be  accepted, then the constitutional functionary can  decline the formation of the Government by such  majority or dissolve the House or recommend its  dissolution on the ground that such a group has to  be prevented to stake claim to form the Government  and, therefore, a situation has arisen in which the  Government of the State cannot be carried on in  accordance with the provisions of the Constitution. 2.      A political party stakes claim to form the  Government with the support of independent elected  candidates so as to make the deficient number for  getting majority.  According to the media reports,  under cover of darkness, large sums of bribe were  paid by the particular party to independent elected  candidates to get their support for formation of  Government.  The acceptance of the contention of  the respondents would mean that without any  cogent material the constitutional functionary can  decline the formation of the Government or  recommend its dissolution even before such a claim  is made so as to prevent staking of claim to form the  Government.  We are afraid that resort to action under Article  356(1) under the aforesaid or similar eventualities would  be clearly impermissible.  These are not the matters of  perception or of the inference being drawn and  assumptions being made on the basis whereof it could be  argued that there are no judicial manageable standards  and, therefore, the Court must keep its hands off from  examining these matters in its power of judicial review.   In fact, these matters, particularly without very cogent  material, are outside the purview of the constitutional  functionary for coming to the conclusion that a situation  has arisen in which the Government of the State cannot  be carried on in accordance with the provisions of the  Constitution. The contention that the installation of the  Government is different than removal of an existing  Government as a consequence of dissolution as was the  factual situation before the Nine Judge Bench in  Bommai’s case and, therefore, same parameters cannot  be applied in these different situations, has already been  dealt with hereinbefore.  Further, it is to be remembered  that a political party prima facie having majority has to  be permitted to continue with the Government or  permitted to form the Government, as the case may be.   In both categories, ultimately the majority shall have to  be proved on the floor of the House.  The contention also  overlooks the basic issue.  It being that a party even,  prima facie, having majority can be prevented to continue  to run the Government or claim to form the Government  declined on the purported assumption of the said  majority having been obtained by illegal means.  There is  no question of such basic issues allegedly falling in the  category of "political thicket" being closed on the ground  that there are many imponderables for which there is no  judicially manageable standards and, thus, outside the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 66 of 77  

scope of judicial review.   The further contention that the expression ’situation  has arisen in which the Government of the State cannot  be carried on in accordance with the provisions of the  Constitution’ in Article 356 shows that the power is both  preventive and/or curative and, therefore, a  constitutional functionary would be well within his rights  to deny formation of the Government to a group of parties  or elected candidates on the ground of purity of political  process is of no avail on the facts and circumstances of  this case, in view of what we have already stated.  Even if  preventive, power cannot be abused.   Another contention urged is that the power under  Article 356 is legislative in character and, therefore, the  parameters relevant for examining the validity of a  legislative action alone are required to be considered and  in that light of the expressions such as ’mala fide’ or  ’irrational’ or ’extraneous’ have to be seen with a view to  ultimately find out whether the action is ultra vires or  not.  The contention is that the concept of malafides as  generally understood in the context of executive action is  unavailable while deciding the validity of legislative  action.  The submission is that that the malafides or  extraneous consideration cannot be attributed to a  legislative act which when challenged the scope of inquiry  is very limited. For more than one reason, we are unable to accept  the contention of the proclamation of the nature in  question being a legislative act.  Firstly, if the contention  was to be accepted, Bommai’s case would not have held  the proclamation in case of Karnataka and Nagaland as  illegal and invalid.  Secondly, the contention was  specifically rejected in the majority opinion of Justice  Jeevan Reddy in paragraph 377.  The contention was  that the proclamation of the present nature assumes the  character of legislation and that it can be struck down  only on the ground on which a legislation can be struck  down.  Rejecting the contention, it was held that every  act of Parliament does not amount to and does not result  in legislation and that the Parliament performs many  other functions.  One of such functions is the approval of  the proclamation under clause (3) of Article 356.  Such  approval can, by no stretch of imagination, be called  ’legislation’.  Its legal character is wholly different.  It is a  constitutional function, a check upon the exercise of  power under clause (1) of Article 356.  It is a safeguard  conceived in the interest of ensuring proper exercise of  power under clause (1).  It is certainly not legislation nor  legislative in character. Mr. Subramaniam, learned Additional Solicitor  General, however, contended that Bommai’s case  proceeded on the assumption that the proclamation  under Article 356(1) is not legislative but when that issue  is examined in depth with reference to earlier decisions in  the cases of In Re: The Delhi Laws Act, 1912, the  Ajmer-Merwara (Extension of Laws) Act, 1947 and  the Part C States (Laws) Act, 1950 [1951 SCR 747 at  page 970-971]; Jayantilal Amrit Lal Shodhan v. F.N.  Rana and Ors. [(1964) 5 SCR 294 at 205-206];  Rameshchandra Kachardas Porwal & Ors. State of  Maharashtra & Ors. [(1981) 2 SCC 722], A.K. Roy v.  Union of India & Ors. [(1982) 1 SCC 271], it would be  clear that the conclusion of Justice Reddy in para 377  requires re-look in the light of these decisions.  We are  unable to accept the contention.  The decision of Nine

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 67 of 77  

Judge Bench is binding on us. Though Bommai has widened the scope of judicial  review, but going even by principles laid in State of  Rajasthan’s case, the existence of the satisfaction can  always be challenged on the ground that it is mala fide or  based on wholly extraneous and irrelevant grounds.   Apart from the fact that the narrow minimal area of  judicial review as advocated in State of Rajasthan’s  case is no longer the law of the land in view of its  extension in Bommai’s case but the present case even  when considered by applying limited judicial review,  cannot stand judicial scrutiny as the satisfaction herein  is based on wholly extraneous and irrelevant ground.   The main ground being to prevent a party to stake claim  to form the Government.           In State of Rajasthan’s case, in para 185, Justice  Untwalia observed that this Court is not powerless to  interfere with such an order which is ultra vires, wholly  illegal or mala fide as in such a situation it will  tantamount in law to be no order at all.  Further  observing that it is incompetent and hazardous for the  Court to draw conclusions by investigation of facts by  entering into the prohibited area but at the same time it  would be equally untenable to say that the Court would  be powerless to strike down the order, if on its face, or, by  going round the circumference of the prohibited area, the  Court finds the order as a mere pretence or colourable  exercise of the extraordinary powers given under certain  Articles of the Constitution and thus in a given case it  may be possible to conclude that it is a fraud on the  exercise of the power.  In the present case, we have  reached the conclusion that the action of the Governor  was a mere pretence, the real object being to keep away a  political party from staking a claim to form the  Government.         Referring to the opinion of Justice Reddy, in  Bommai’s case, it was contended for the respondents  that the approach adopted in Barium Chemicals Ltd.  and Anr. v. Company Law Board and Ors. [(1966)  Supl. SCR 311] and other cases where action under  challenge is taken by statutory or administrative  authorities, is not applicable when testing the validity of  the constitutional action like the present one.  For proper  appreciation of the contention, it may be useful to  reproduce in full paragraphs 372 and 373 from which  certain observations were relied upon.  The same read as  under: "372. Having noticed various decisions  projecting different points of view, we may  now proceed to examine what should be  the scope and reach of judicial review  when a proclamation under Article 356(1)  is questioned. While answering this  question, we should be, and we are, aware  that the power conferred by Article 356(1)  upon the President is of an exceptional  character designed to ensure that the  Government of the States is carried on in  accordance with the Constitution. We are  equally aware that any misuse or abuse of  this power is bound to play havoc with  our constitutional system. Having regard  to the form of Government we have  adopted, the power is really that of the  Union Council of Ministers with the Prime

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 68 of 77  

Minister at its head. In a sense, it is not  really a power but an obligation cast upon  the President in the interest of  preservation of constitutional Government  in the States. It is not a power conceived  to preserve or promote the interests of the  political party in power at the centre for  the time being nor is it supposed to be a  weapon with which to strike your political  opponent. The very enormity of this power  --undoing the will of the people of a State  by dismissing the duly constituted  Government and dissolving the duly  elected Legislative Assembly -- must itself  act as a warning against its frequent use  or misuse, as the case may be. Every  misuse of this power has its consequences  which may not be evident immediately but  surface in a vicious form a few years later.  Sow a wind and you will reap the  whirlwind. Wisdom lies in moderation and  not in excess." (Emphasis supplied by us) Further, learned Judge states that : "373. Whenever a proclamation under  Article 356 is questioned, the court will  no doubt start with the presumption that  it was validly issued but it will not and it  should not hesitate to interfere if the  invalidity or unconstitutionality of the  proclamation is clearly made out. Refusal  to interfere in such a case would amount  to abdication of the duty cast upon the  court -- Supreme Court and High Courts  -- by the Constitution. Now, what are the  grounds upon which the court can  interfere and strike down the  proclamation? While discussing the  decisions herein-above, we have  indicated the unacceptability of the  approach adopted by the Privy Council in  Bhagat Singh v. Emperor (AIR 1931 PC  111) and King Emperor v. Bengari Lal  Sarma (AIR 1945 PC 48). That was in the  years 1931 and 1944, long before the  concept of judicial review had acquired  its present efficacy. As stated by the  Pakistan Supreme Court, that view is  totally unsuited to a democratic polity.  Even the Privy Council has not stuck to  that view, as is evident from its decision  in the case from Malaysia Stephen  Kalong Ningkan v. Government of  Malaysia (1970 AC 379). In this case, the  Privy Council proceeded on the  assumption that such a proclamation is  amenable to judicial review. On facts and  circumstances of this case, it found the  action justified. Now, coming to the  approach adopted by the Pakistan  Supreme Court, it must be said -- as  indicated hereinbefore --that it is  coloured by the nature of the power  conferred upon the President by Section  58(2)(b) of the Pakistani Constitution.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 69 of 77  

The power to dismiss the federal  Government and the National Assembly  is vested in the President and President  alone. He has to exercise that power in  his personal discretion and judgment.  One man against the entire system, so to  speak --even though that man too is  elected by the representatives of the  people. That is not true of our  Constitution. Here the President acts on  the aid and advice of the Union Council  of Ministers and not in his personal  capacity. Moreover, there is the check of  approval by Parliament which contains  members from that State (against the  Government/Legislative Assembly of  which State, action is taken) as well. So  far as the approach adopted by this  Court in Barium Chemicals is concerned,  it is a decision concerning subjective  satisfaction of an authority created by a  statute. The principles evolved then  cannot ipso facto be extended to the  exercise of a constitutional power under  Article 356. Having regard to the fact that  this is a high constitutional power  exercised by the highest constitutional  functionary of the Nation, it may not be  appropriate to adopt the tests applicable  in the case of action taken by statutory  or administrative authorities -- nor at  any rate, in their entirety. We would  rather adopt the formulation evolved by  this court in State of Rajasthan as we  shall presently elaborate. We also  recognise, as did the House of Lords in  C.C.S.U. v. Minister for the Civil Service  (1985 AC 374) that there are certain  areas including those elaborated therein  where the court would leave the matter  almost entirely to the President/Union  Government. The court would desist from  entering those arenas, because of the  very nature of those functions. They are  not the matters which the court is  equipped to deal with. The court has  never interfered in those matters because  they do not admit of judicial review by  their very nature. Matters concerning  foreign policy, relations with other  countries, defence policy, power to enter  into treaties with foreign powers, issues  relating to war and peace are some of the  matters where the court would decline to  entertain any petition for judicial review.  But the same cannot be said of the power  under Article 356. It is another matter  that in a given case the court may not  interfere. It is necessary to affirm that the  proclamation under Article 356(1) is not  immune from judicial review, though the  parameters thereof may vary from an  ordinary case of subjective satisfaction."

       The aforesaid paragraphs cannot be read in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 70 of 77  

isolation and have to be seen while bearing in mind that  learned Judge invalidated dissolution of Assembly of  Karnataka and Nagaland.  Be that as it may, in the  present case, the validity of the impugned notification is  not being judged on application of principles available for  judging the validity of administrative actions.                  Further, para 376 of the opinion of Justice Jeevan  Reddy is very instructive and it may be reproduced as  under : "We recognise that judicial process has  certain inherent limitations. It is suited  more for adjudication of disputes rather  than for administering the country. The  task of governance is the job of the  Executive. The Executive is supposed to  know how to administer the country,  while the function of the judiciary is  limited to ensure that the Government is  carried on in accordance with the  Constitution and the Laws. Judiciary  accords, as it should, due weight to the  opinion of the Executive in such matters  but that is not to say, it defers to the  opinion of Executive altogether. What  ultimately determines the scope of  judicial review is the facts and  circumstances of the given case. A case  may be a clear one -- like Meghalaya and  Karnataka cases -- where the court can  find unhesitatingly that the proclamation  is bad. There may also be cases -- like  those relating to Madhya Pradesh,  Rajasthan and Himachal Pradesh -- where the situation is so complex, full of  imponderables and a fast-evolving one  that the court finds it not a matter which  admits of judicial prognosis, that it is a  matter which should be left to the  judgment of and to be handled by the  Executive and may be in the ultimate  analysis by the people themselves. The  best way of demonstrating what we say is  by dealing with the concrete cases before  us. (Emphasis supplied by us)

       It is evident from the above that what ultimately  determines the scope of judicial review is the facts and  circumstances of the given case and it is for this reason  that the Proclamations in respect of Karnataka and  Nagaland were held to be bad and not those relating to  Madhya Pradesh, Rajasthan and Himachal Pradesh.         We are not impressed with the argument based on a  possible disqualification under Tenth Schedule if the  MLAs belonging to LJP party had supported the claim of  Nitish Kumar to form the Government.  At that stage, it  was a wholly extraneous to take into consideration that  some of the members would incur the disqualification if  they supported a particular party against the professed  stand of the political party to which they belong.  The  intricate question as to whether the case would fall  within the permissible category of merger or not could  not be taken into consideration.  Assuming it did not fall  in the permissible arena of merger and the MLAs would  earn the risk of disqualification, it is for the MLAs or the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 71 of 77  

appropriate functionary to decide and not for the  Governor to assume disqualification and thereby prevent  staking of claim by recommending dissolution.  It is not  necessary for us to examine, for the present purpose,  para 4 of the Tenth Schedule dealing with merger and/or  deemed merger.  In this view the question sought to be  raised that there cannot be merger of legislative party  without the first merger of the original party is not  necessary to be examined.  The contention sought to be  raised was that even if two-third legislators of LJP  legislative party had agreed to merge, in law there cannot  be any merger without merger of original party and even  in that situation those two-third MLAs would have earned  disqualification.  Presently, it is not necessary to decide  this question.  It could not have been gone into by the  Governor for recommending dissolution.         The provision of the Tenth Schedule dealing with  defections, those of RP Act of 1951 dealing with corrupt  practice, electoral offences and disqualification and the  provisions of Prevention of Corruption Act, 1988 are legal  safeguards available for ensuring purity of public life in a  democracy.  But, in so far as the present case is  concerned, these had no relevance at the stage when the  dissolution of the Assembly was recommended without  existence of any material whatsoever.  There was no  material for the assumption that claim may be staked  based not on democratic principles and based on  manipulation by breaking political parties.           There cannot be any doubt that the oath prescribed  under Article 159 requires the Governor to faithfully  perform duties of his office and to the best of his ability  preserve, protect and defend the Constitution and the  laws.  The Governor cannot, in the exercise of his  discretion or otherwise, do anything what is prohibited to  be done.  The Constitution enjoins upon the Governor  that after the conclusion of elections, every possible  attempt is made for formation of a popular Government  representing the will of the people expressed through the  electoral process.  If the Governor acts to the contrary by  creating a situation whereby a party is prevented even to  stake a claim and recommends dissolution to achieve  that object, the only inescapable inference to be drawn is  that the exercise of jurisdiction is wholly illegal and  unconstitutional.  We have already referred to the  Governor report dated 21st May, 2005, inter alia, stating  that 17 \026 18 MLAs belonging to LJP party are moving  towards JDU which would mean JDU may be in a  position to stake claim to form the Government.  The  further assumption that the move of the said members  was itself indicative of various allurements having been  offered to them and on that basis drawing an assumption  that the claim that may be staked to form a Government  would affect the constitutional provisions and safeguards  built therein and distort the verdict of the people would  be arbitrary.  This shows that the approach was to stall  JDU from staking a claim to form the Government.  At  that stage, such a view cannot be said to be consistent  with the provisions of Tenth Schedule.  In fact, the  provisions of the said Schedule at that stage had no  relevance.  It is not a case of ’assumption’, or ’perception’  as to the provisions of Constitution by the Governor.  It is  a clear case where attempt was to somehow or the other  prevent the formation of a Government by a political  party - an area wholly prohibited in so far as the  functions, duties and obligations of the Governor are

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 72 of 77  

concerned.  It was thus a wholly unconstitutional act. It is true as has been repeatedly opined in various  reports and by various constitutional experts that the  defections have been a bane of the Indian Democracy  but, at the same time, it is to be remembered that the  defections have to be dealt with in the manner  permissible in law.           If a political party with the support of other political  party or other MLA’s stakes claim to form a Government  and satisfies the Governor about its majority to form a  stable Government, the Governor cannot refuse formation  of Government and override the majority claim because of  his subjective assessment that the majority was cobbled  by illegal and unethical means.  No such power has been  vested with the Governor.  Such a power would be  against the democratic principles of majority rule.   Governor is not an autocratic political Ombudsman.  If  such a power is vested in the Governor and/or the  President, the consequences can be horrendous.  The  ground of mal administration by a State Government  enjoying majority is not available for invoking power  under Article 356.  The remedy for corruption or similar  ills and evils lies elsewhere and not in Article 356(1).  In  the same vein, it has to be held that the power under  Tenth Schedule for defection lies with the Speaker of the  House and not with the Governor.  The power exercised  by the Speaker under the Tenth Schedule is of judicial  nature.  Dealing with the question whether power of  disqualification of members of the House vests  exclusively with the House to the exclusion of judiciary  which in Britain was based on certain British legislature  practices, as far as India is concerned, it was said in  Kihoto’s case that : "It is, therefore, inappropriate to claim  that the determinative jurisdiction of the  Speaker or the Chairman in the Tenth  Schedule is not a judicial power and is  within the non-justiciable legislative  area."

       The Governor cannot assume to himself aforesaid  judicial power and based on that assumption come to the  conclusion that there would be violation of Tenth  Schedule and use it as a reason for recommending  dissolution of assembly.          The Governor, a high Constitutional functionary is  required to be kept out from the controversies like  disqualification of members of a Legislative Assembly  and, therefore, there are provisions like Article 192(2) in  the Constitution providing for Governor obtaining the  opinion of the Election Commission and acting according  to such opinion, in the constitutional scheme of things.   Similar provision, in so far as, member of Parliament is  concerned being in Article 103(2) of the Constitution  {Brundaban Nayak v. Election Commission of India &  Anr. [(1965) 3 SCR 53]; and Election Commission of  India & Anr. v. Dr. Subramaniam Swamy & Anr.  [(1996) 4 SCC 104].         For all the aforesaid reasons, the Proclamation  dated 23rd May, 2005 is held to be unconstitutional.   POINT NO.3 :    If the answer to the aforesaid  questions is in affirmative, is it  necessary to direct status quo ante as on  7th March, 2005 or 4th March, 2005?

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 73 of 77  

As a consequence of the aforesaid view on point no.  2, we could have made an order of status quo ante as  prevailing before dissolution of Assembly.  However,  having regard to the facts and the circumstances of the  case, in terms of order of this Court dated 7th October,  2005, such a relief was declined.  Reasons are the larger  public interest, keeping in view the ground realities and  taking a pragmatic view.  As a result of the impugned  Proclamation, the Election Commission of India had not  only made preparations for the four phase election to be  conducted in the State of Bihar but had also issued  Notification in regard to first two phases before  conclusion of arguments.  Further, in regard to these two  phases, before 7th October, 2005, even the last date for  making nominations and scrutiny thereof was also over.   In respect of 1st phase of election, even the last date for  withdrawal of nominations also expired and polling was  fixed for 18th October, 2005.  The election process had  been set in motion and was at an advanced stage.   Judicial notice could be taken of the fact that  considerable amount must have been spent; enormous  preparations made and ground works done in the process  of election and that too for election in a State like the one  under consideration.  Having regard to these subsequent  developments coupled with numbers belonging to  different political parties, it was thought fit not to put the  State in another spell of uncertainty. Having regard to the  peculiar facts, despite unconstitutionality of the  Proclamation, the relief was moulded by not directing  status quo ante and consequently permitting the  completion of the ongoing election process with the fond  hope that the electorate may again not give fractured  verdict and may give a clear majority to one or other  political party \026 the Indian electorate possessing utmost  intelligence and having risen to the occasion on various  such occasions in the past. POINT NO.4 : What is the scope of Article 361  granting immunity to the Governor?

       By order dated 8th September, 2005, we held that  the Constitution of India grants immunity to the  Governor as provided in  Article 361.  Article 361(1), inter alia, provides that  the Governor shall not be answerable to any Court for the  exercise and performance of the powers and duties of his  office or for any act done or purported to be done by him  in the exercise and performance of those powers and  duties.  We accepted the submissions made on behalf of  the respondents that in view of this Article notice could  not be issued to the Governor, at the same time, further  noticing that the immunity granted does not affect the  power of this Court to judicial scrutinise attack made on  the Proclamation issued  under Article 356(1) of the  Constitution of India on the ground of malafides or it  being ultra vires and that it would be for the Government  to satisfy the Court and adequately meet such ground of  challenge.  A mala fide act is wholly outside the scope of  the power and has no existence in the eyes of the law.   We, further held that the expression ’purported to be  done’ in Article 361 does not cover acts which are mala  fide or ultra vires and thus, the Government supporting  the Proclamation under Article 356(1) shall have to meet  the challenge.  The immunity granted under Article 361  does not mean that in the absence of Governor, the  grounds of mala fide or being ultra vires would not be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 74 of 77  

examined by the Court.  This order was made at the  stage when we had not examined the question whether  the exercise of power by the Governor was mala fide or  ultra vires or not.  This question was argued later.         In our order dated 8th September, 2005 while giving  the brief reasons we stated that detailed reasons will be  given later.         Article 361(1) which grants protection to the  President and the Governor reads as under : "361.Protection of President and  Governors and Rajpramukhs.--(1) The  President, or the Governor or  Rajpramukh of a State, shall not be  answerable to any court for the exercise  and performance of the powers and  duties of his office or for any act done or  purporting to be done by him in the  exercise and performance of those  powers and duties : Provided that the conduct of the  President may be brought under review  by any court, tribunal or body appointed  or designated by either House of  Parliament for the investigation of a  charge under article 61: Provided further  that nothing in this clause shall be  construed as restricting the right of any  person to bring appropriate proceedings  against the Government of India or the  Government of a State. (2) No criminal proceedings whatsoever  shall be instituted or continued against  the President, or the Governor  of a State,  in any court during his term of office. (3) No process for the arrest or  imprisonment of the President, or the  Governor of a State, shall  issue from any  court during his term of office. (4) No civil proceedings in which relief is  claimed against the President, or the  Governor of a Slate, shall be instituted  during his term of office in any court in  respect of any act done or purporting to  be done by him in his personal capacity,  whether before or after he entered upon  his office as President, or as Governor of  such Stale, until the expiration of two  months next after notice in writing has  been delivered to the President or the  Governor, as the case may be, or left at  his office stating the nature of the  proceedings, the cause of action therefor,  the name, description and place of  residence of the party by whom such  proceedings are to be instituted and the  relief which he claims."

       A plain reading of the aforesaid Article shows that  there is a complete bar to the impleading and issue of  notice to the President or the Governor inasmuch as they  are not answerable to any Court for the exercise and  performance of their powers and duties.  Most of the  actions are taken on aid and advice of Council of  Ministers.  The personal immunity from answerability  provided in Article 361 does not bar the challenge that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 75 of 77  

may be made to their actions.   Under law, such actions  including those actions where the challenge may be  based on the allegations of malafides are required to be  defended by Union of India or the State, as the case may  be.  Even in cases where the personal malafides are  alleged and established, it would not be open to the  Governments to urge that the same cannot be  satisfactorily answered because of the immunity granted.  In such an eventuality, it is for the respondent defending  the action to satisfy the Court either on the basis of the  material on record or even filing the affidavit of the  person against whom such allegation of personal  malafides are made.  Article 361 does not bar filing of an  affidavit if one wants to file on his own.  The bar is only  against the power of the Court to issue notice or making  the President or the Governor answerable.  In view of the  bar, the Court cannot issue direction to President or  Governor for even filing of affidavit to assist the Court.   Filing of an affidavit on one’s own volition is one thing  than issue of direction by the Court to file an affidavit.   The personal immunity under Article 361(1) is complete  and, therefore, there is no question of the President or  the Governor being made answerable to the Court in  respect of even charges of malafides.         In Union Carbide Corporation, etc., etc. v. Union  of India, etc. etc. [(1991) 4 SCC 584], dealing with  Article 361(2) of the Constitution, Justice Venkatahalliah  referred to the famous case of Richard Nixon [(1982)  457 US 731] about theoretical basis for the need for  such immunity.  It was said "Article 361(2) of the Constitution confers  on the President and the Governors  immunity even in respect of their  personal acts and enjoins that no  criminal proceedings shall be instituted  against them during their term of office.  As to the theoretical basis for the need  for such immunity, the Supreme Court of  the United States in a case concerning  immunity from civil liability (Richard  Nixon v. Ernest Fitzgerald, 457 US 731 :  73 Law Ed 2d 349) said:

".....This Court necessarily also has  weighed concerns of public policy,  especially as illuminated by our  history and the structure of our  Government....."  

".....In the case of the President the  inquiries into history and policy  though mandated independently by  our case, tend to converge. Because  the Presidency did not exist through  most of the development of common  law, any historical analysis must  draw its evidence primarily from our  constitutional heritage and  structure. Historical inquiry thus  merges almost at its inception with  the kind of "public policy" analysis  appropriately undertaken by a  federal court. This inquiry involves  policies and principles that may be  considered implicit in the nature of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 76 of 77  

the President’s office in a system  structured to achieve effective  Government under, a  constitutionally mandated  separation" of powers."

(L Ed p.367)

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

       A division Bench of the Bombay High Court in the  case of Shri Pratapsing Raojirao Rane & others v.  The Governor of Goa & others [AIR 1999 Bombay 53]  has correctly held that in respect of his official acts, the  Governor is not answerable to the Court even in respect  of charge of mala fide and that in such an eventuality the  Governor cannot be said to be under the duty to deal  with the allegations of mala fide.  The Constitutional Law  of India, 4th Edn. by H.M.Seervai has been rightly relied  upon in the said judgment.  The observations made by  full Bench of the Madras High Court in K.A.  Mathialagan & Ors. v. The Governor of Tamil Nadu  & Ors. [AIR 1973 Madras 198]  that the Governor  would be under duty to deal with allegations of mala fide  in order to assist the Court has been rightly described in  Seervai’s commentary being in direct conflict with the  complete personal immunity of the Governor.           The words ’purported to be done’ are of wide  amplitude.  In Biman Chandra v. Governor, West  Bengal [AIR 1952 Calcutta 799] it was held that Article  361 affords immunity in respect of its exercise and  performance of the power and duties of the office and any  act done or purported to be done by him in exercise and  performance of those powers and duties.         In G.D.Karkare v. T.L.Shevde [AIR 1952 Nagpur  330] construing the expression ’purporting to be done’ it  was held that any act, though not done in pursuance of  the Constitution, may nevertheless be accorded this  protection if the act professes or purports to be done in  pursuance of the Constitution.  It was further explained  that though the Governor is not amenable to the process  of the Court but it cannot be said that the High Court  cannot examine his action and grant relief in the absence  of authority making the decision.         In State v. Kawas Manekshaw Nanavati [AIR  1960 Bombay 502] full Bench of the High Court held  that Article 361 only gives personal protection to the  Governor.  It is not necessary that the Governor should

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 77 of 77  

be a party to the proceeding.  Validity of actions can be  considered and decided in the absence of the Governor.   In The State of West Bengal and Ors. v. Sallendra  Nath Bose [AIR 1964 Calcutta 184] it was held that a  citizen is not without redress even though he cannot  implead the Governor as a party but can be given relief.         The position in law, therefore, is that the Governor  enjoys complete immunity.  Governor is not answerable  to any Court for the exercise and performance of the  powers and duties of his office or for any act done or  purporting to be done by him in the exercise and  performance of those powers and duties.  The immunity  granted by Article 361(1) does not, however, take away  the power of the Court to examine the validity of the  action including on the ground of malafides.         In view of the above, while holding the impugned  Proclamation dated 23rd May, 2005 unconstitutional, we  have moulded the relief and declined to grant status quo  ante and consequentially permitted the completion of  ongoing election process.         All petitions are disposed of accordingly.