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

PETITIONER: Rameshwar Prasad & Ors.

RESPONDENT: Union of India & Anr.

DATE OF JUDGMENT: 24/01/2006

BENCH: K.G. Balakrishnan

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

K.G. BALAKRISHNAN, J.

        I  have  had the advantage  of reading in draft the    judgment   prepared  by   Hon’ble   the   Chief   Justice    of    India,  Shri Y. K.  Sabharwal and I find myself unable to agree  with the decision on point No. 2 formulated in the judgment.   On  all other points, I gratefully adopt the exposition of law and  agree  with the decision proposed by the learned  Chief Justice. Point  No. 2 is as follows :-                                                                            "(1)\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005 \005\005

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

       Few factual details are necessary to decide the question. The  election to the Bihar State Legislature  was held in the month of  February, 2005 and  the results of the election were declared  on  23rd March, 2005. The names of the members elected to the Bihar  State Legislature  were notified by the Election Commission.   Certain political groups and political parties participated  and the  National Democratic Alliance  (for short ’NDA’), a coalition  comprising Bhartatiya Janata Party  (for short ’BJP’) and Janata  Dal (United) (for short "JD(U)") secured the largest support of  MLAs. The party-wise strength in the Assembly was as follows :-  

       "(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 Party        02         (9)  Independents       17         (10) Others     09"                              

       In order to secure an absolute majority to form a  Government in the State of Bihar, support of 122 Members of  Legislative Assembly was required. NDA could secure only 92  seats and no other political parties or group came forward to

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support NDA to form a Government.  RJD was also in  the same  dilemma.  LJP, another political party which was under the  leadership of  Shri Ram Vilas Paswan had secured 29 seats in the  State Legislature. This political party did not extend support  either to NDA or RJD. As none could form a Government,  Governor of the State of Bihar sent a Report on 6th March, 2005  to the President of India recommending President’s Rule in the  State and  for keeping the Assembly in suspended animation for  the time being.   On 7th March, 2005 the President’s Rule was  imposed in the State of Bihar and the Assembly was kept in  suspended animation. This order passed by the President of India  under Article 356 of the Constitution  on 7th March, 2005  is not  challenged  in most of the petitions before us.  In one of the  petitions, the Notification issued on 7th March, 2005 under Article  356 of the Constitution is also challenged but the petitioner could  not substantiate  his contentions and the very challenge itself is  highly belated.

       While the Assembly was in suspended animation, the two  political groups, the NDA which had secured 92 seats and the  RJD which had secured 75 seats in the State Legislature made  attempts to form a Government in the State of Bihar.  It appears  that the LJP,  which had secured 29 seats in the State Legislature  was not prepared to extend support either to NDA or RJD.  When  the (Vote on Account) Bill of 2005 for the State of Bihar was  presented  before the Parliament, the Home Minister made a  statement to the effect that the President’s Rule would not be   continued for a long time and they would have been happy if a  Government had been formed by the elected representatives and  that the elected representative  should talk to each other and  create a situation in which it becomes possible  for them to form a  Government. The discussion must have been continued between   the political parties.

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

       It seems that  pursuant to letter dated 27th April, 2005 sent  by the Governor of Bihar to the President, no decision was taken   by the President for dissolution of the State Assembly. Again on  21st May, 2005 the Governor of Bihar sent a letter to the  President and this is the crucial document on the basis of which  the Bihar State Legislative Assembly was dissolved under Article  174 (2) (b) of the Constitution.  The letter is as follows :-         " Respected Rashtrapati Jee,         I invite a reference to my D.O. letter No. 52/GB  dated 27th April, 2005 through which I had given a  detailed account of the attempts 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

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above moves made by the JDU.

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

       Keeping the above mentioned circumstances,  I  am of the considered view that if the trend is not  arrested immediately, it may not be 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 gist of the letter written by the Governor is that political  parties  either individually or with the then pre-election  combination or with post-election alliance combination could not  stake a claim to form a popular Government since none could  claim support of a simple majority  of 122 in a House of 243  members and, therefore, the President issued a Proclamation  under Article 356. The Governor further stated that he had  received information through media and reports gathered through  meeting with various political functionaries that there had been a  trend to win over  elected representatives of the people and 17-18  MLAs were moving towards JD(U) and various allurements had  been offered to them.  Governor  also indicated that any move by  the break-away faction to align with any other party, to cobble a  majority and stake a  claim to form a Government would  positively  affect the Constitutional provisions and safeguards  provided therein. The Governor was of the view that if the  Assembly is dissolved, the political parties would get another  

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opportunity to seek a fresh mandate of the people. From the  letter,  it is clear that no political party or group or alliance had  approached the Governor claiming absolute majority in the State  Legislature nor did they try to form a Government with the help of  other political parties or independent MLAs.

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

We heard learned Attorney General, Mr. Milon K. Banerji;   learned Solicitor General,   Mr. Ghoolam E. Vahanvati;  learned  Additional Solicitor General, Mr. Gopal Subramaniam; Mr. Soli  Sorabjee, learned Senior Advocate;  Mr. P.S. Narasimha, learned  counsel for the petitioner and Mr. Viplav Sharma, Advocate, who   appeared in person. Many other counsel who  were supporting  the petitioner submitted their written arguments. Most of the  arguments centered around the decision rendered by this Hon’ble  Court in S.R. Bommai & Ors. Vs.   Union of India & Ors.    [(1994) 3 SCC 1].  The decision in S.R. Bommai’s case  was  rendered by a Nine Judge Bench and  several opinions were  expressed.  Justice B.P. Jeevan Reddy gave a separate judgment  with which Justice  S.C. Agrawal agreed. Justice A.M. Ahmadi,  Justice J.S. Verma,   Justice K. Ramaswamy and Justice  Yogeshwar Dayal agreed with certain propositions given by  Justice B.P. Jeevan Reddy.  Although there was a broad  concurrence  with the views expressed by Justice  Jeevan Reddy,  Justice Sawant & Kuldip Singh, JJ. struck a different note and   their approach, reasoning and conclusion are not similar.  

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

       Bhagwati, J. on behalf of Gupta, J and himself,  while   dealing with the "satisfaction of the President" prior to the  issuance  of the Proclamation under Article 356 (1), stated  as  follows :-  

"So long as a question arises whether an authority  under the Constitution has acted within the limits of  its power or exceeded it, it can certainly be decided by  the Court. Indeed it would be its Constitutional  obligation to do so........ This Court is the ultimate  interpreter of the Constitution and to this Court is  assigned the delicate task of determining what is the

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power conferred on each branch of Government,  whether it is limited, and if so, what are the limits and  whether any action of that branch transgresses such  limits. It is for this Court to uphold the Constitutional  values and to enforce the Constitutional limitations.  That is the essence of the Rule of Law....."       

He went on to say :- "..\005\005\005.. Here the only limit on the power of the  President under Art. 356, clause (1) is that the  President should be satisfied that a situation has  arisen where the Government of the State cannot be  carried on in accordance with the provisions of the  Constitution. The satisfaction of the President is a  subjective one and cannot be tested by reference to any  objective tests. It is deliberately and advisedly  subjective because the matter in respect to which he is  to be satisfied is of such a nature that its decision  must necessarily be left to the executive branch of  Government. There may be a wide range of situations  which may arise and their political implications and  consequences may have to be evaluated in order to  decide whether the situation is such that the  Government of the State cannot be carried on in  accordance with the provisions of the Constitution. It is  not a decision which can be based on what the  Supreme Court of United States has described as  ’judicially discoverable and manageable standards’. It  would largely be a political judgment based on  assessment of diverse and varied factors, fast changing  situations, potential consequences, public reaction,  motivations and responses of different classes of people  and their anticipated future behaviour and a host of  other considerations\005"    

He further stated :-

"\005.. It must of course be conceded that in most cases  it would be difficult, if not impossible, to challenge the  exercise of power under Art. 356, clause (1) even on  this limited ground, because the facts and  circumstances on which the satisfaction is based  would not be known, but where it is possible, 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. \005..This is the  narrow minimal area in which the exercise of power  under Article 356, Clause (1) is subject to judicial  review and apart from it, it cannot rest with the Court  to challenge the satisfaction of the President that the  situation contemplated in that clause exists".                                                              (Emphasis supplied)  

       Beg, CJ was of the opinion that by virtue of Article  356 and  Article 74(2)  of the Constitution, it is impossible for the court to  question the ’satisfaction’ of the President.   It  is to be decided on  the basis of only  those facts as may have been admitted or   placed before the court.    Beg CJ was also of the  opinion  that  the language of Article 356 and the practice since 1950 shows  that the Central Government can enforce its will against the State  Government with respect to the question as to how the State  Government should function and should hold reigns of power.   But  these views were not accepted by the majority.  YV  Chandrachud, J, speaking  on the scope of judicial review held  that if the reasons disclosed by the Union of India are wholly

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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,  if any other view is reasonably  possible."    As regards the facts  disclosed in the case, the learned Judge was of the view that the  facts disclosed by the Central Government in its counter affidavit  cannot be said to be irrelevant to Article 356.  Goswami and  Untwalia, JJ. gave separate opinions and expressed the  view   that the facts stated cannot be said to be  extraneous or  irrelevant.

       From the dicta laid down in  State of Rajasthan’s case,  it  is clear that the power of judicial review could be exercised when  an order passed under Article 356 is challenged before the court  on the ground of mala fides or  upon wholly extraneous or  irrelevant grounds and then only the  court would have the  jurisdiction to examine it.   The plea raised by the learned  Attorney General that a proclamation passed under Article 356 is  legislative in character and  outside the  ken  of judicial scrutiny  was rejected by  the majority of the Judges in State of  Rajasthan’s case.

 On a careful examination of the various opinions expressed  in S.R Bommai’s case, it is clear that the majority broadly  accepted the dicta laid down in Rajasthan’s case.  It was also  held that the principles of judicial review that are to be applied  when an administrative action  is challenged cannot be applied  when  a challenge is made against a Presidential order passed  under Article 356.

P.B. Sawant, J. speaking for himself and Kuldip Singh, J.  took a different view and held that the same principles  would  apply when a proclamation under Article 356 also is challenged.     Some of the observations made by the learned Judges  would  make the position clear.

In S.R Bommai’s case, a plea was raised that the principles  of judicial review as laid down in  Barium Chemicals Ltd. &  Anr. v. The Company Law Board & Ors. (1966) Suppl. 3 SCR  311 are applicable and the subjective satisfaction of the President  as contemplated under  Article 356 could be examined.   In the  Barium Chemical’s case, the Company Law Board under Section  237(b) of the Companies Act appointed  four inspectors to  investigate the affairs of the appellant-company on the ground  that the Board was of the opinion that there were circumstances  suggesting that the business of the appellant-company was being  conducted with  intent to defraud its creditors, members or any  other persons and that the persons concerned in the  management of the affairs of the company had in connection  therewith, been guilty of fraud, misfeasance and other  misconduct towards  the company and its members.   The  company filed a writ petition challenging the said order.   In reply  to the writ petition, the Chairman of the Company Law Board  filed an affidavit and contended that there was material on the  basis  of which the order was issued and that he had himself  examined this material and formed the necessary opinion within  the meaning of the said Section 237(b) of the Companies Act.    The majority of the Judges held that the circumstances disclosed  in the affidavit must be regarded as the only material on the basis  of which the Board formed the opinion before ordering an  investigation under Section 237(b) and that the circumstances   could not reasonably suggest that the company was being  conducted to defraud the creditors, members or other persons

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and, therefore,  the impugned order was held ultra vires the  section.   Hidayatullah, J. as he then was, stated that the power  under Section 237(b) is discretionary power and the  first  requirement for its exercise is the honest formation of an opinion  that an investigation is necessary and the next requirement is  that there are  circumstances suggesting the inferences  set out  in the section.  An action not  based on circumstances suggesting  an inference of the enumerated kind will not be  valid.   Although  the formation of opinion is subjective,  the existence of  circumstances relevant to  the inference  as the sine quo non  for  action  must be demonstrable.   If their existence is questioned, it  has to be proved at least prima facie.  It is not sufficient to assert  that the circumstances must be such as to lead to conclusions of  action definiteness.

These principles were also applied in some of the later  decisions where the administrative action was challenged  before  the court. (See M.A. Rashid & Ors. Vs. State of Kerala (1975) 2  SCR 93].

There was also a plea  that the principles of judicial review  enunciated by Lord Diplock in "Council of Civil Services Union  & Ors. Vs. Minister for Civil Services 1985 AC 374 GCHQ  would apply when Presidential Proclamation under Article 356 is  challenged.    This  plea also was not accepted by the majority of  the Judges in S.R. Bommai’s case.    

The broad view expressed by Sawant, J., to which Kuldip  Singh, J. also agreed, could be gathered from the observations on  page 102 in the S.R. Bommai’s case which is  to the following  effect:

"From these authorities,  one of the conclusions  which  may safely be drawn is that the exercise of power by  the  President under Article 356(1) to issue  Proclamation is subject to the judicial review at least to  the extent of examining whether the conditions  precedent to the issuance of the Proclamation have  been satisfied or not.   This examination will  necessarily involve the scrutiny as to whether there  existed material for the satisfaction of the  President  that a situation had arisen in which the Government of  the State could not be carried on in accordance with  the provisions of the Constitution. \005\005\005\005\005\005\005

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.   Although, therefore, the  sufficiency or otherwise of the material cannot be  questioned, the legitimacy of inference drawn from  such material is certainly open to judicial review."

The above opinion expressed by Sawant J., to which Kuldip  Singh, J. also agreed was not fully accepted by other Judges. B.P.  Jeevan Reddy, J. speaking for  himself and Agrawal, J., held that  the proclamation under Article 356 is liable to judicial review and  held that the principles of judicial review, which are applicable  when an administrative action is challenged, cannot be applied  stricto sensu.

At the end of the judgment, Jeevan Redddy, J. summarized  the conclusions and conclusions (6) and (7) speak of the scope  and ambit of judicial review.  Clause (1), (2), (6) and (7) are

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relevant for the purpose of the present case. These are as follows: 1) Article 356 of the Constitution confers a power upon  the President to be exercised only where he is satisfied  that a situation has arisen where the government of a  State cannot be carried on in accordance with the  provisions of the Constitution, Under our Constitution,  the power is really that of the Union Council of  Ministers with the Prime Minister at its head. The  satisfaction contemplated by the Article is subjective in  nature. (2) The power conferred by Art. 356 upon the President  is a conditioned power. It is not an absolute power. The  existence of 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]     \005.  [4]     \005. [5]     \005.  (6) Article 74(2) merely bars an enquiry into the  question whether any, and if so, what advice was  tendered by the ministers to the President. It does not  bar the court from calling upon the Union Council of  Ministers (Union of India) to disclose to the court the  material upon which the President had formed the  requisite satisfaction. The material on the basis of  which advice was tendered does not become part of the  advice. Even if the material is looked into by or shown  to the President, it does not partake the character of  advice. Article 74(2) and S. 123 of the Evidence Act  cover different fields. It may happen that while  defending the proclamation, the minister or the  concerned official may claim the privilege under S. 123.  If and when such privilege is claimed, it will be decided  on its own merits in accordance with the provisions of  S. 123. (7) The proclamation under Article 356( I) is not  immune from judicial review. The Supreme Court or  the High Court can strike down the proclamation if it is  found to be 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.        [Emphasis supplied] Justice Ratnavel Pandian agreed with Jeevan Reddy J. on  his conclusions on all the above points.   He disagreed with only  Clause (3) of the summary of conclusions.   Clause (3) deals only  with the power of dissolving the legislative assembly which shall  be exercised by the President only after proclamation under  clause (1) of Article 356 is approved by both the Houses of  Parliament and until such approval the President can only  suspend the Legislative Assembly by suspending the provisions of

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the Constitution relating to the Legislative Assembly.   

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

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

It is important to note that in S.R. Bommai’s case, majority  of Judges held, that as regards the  imposition of President’s Rule  in Karnataka, Meghalaya and Nagaland, the Presidential  proclamations were unconstitutional.   The facts which ultimately  led to the Presidential proclamation under Article 356(1)  in  two  States are significant to understand the law laid down in S.R.  Bommai’s case. In the case of Karnataka, the President dismissed the  government and dissolved the State Assembly.   The Janta Party  was ruling the State and it had formed the Government under the  leadership of Shri S.R. Bommai.   One member of the legislature  defected from the party and presented a letter to the Governor  withdrawing his support to the Ministry.   On the next day, he  presented to the Governor 19 letters allegedly signed by 17 Janta  Dal legislators, one independent but associate legislator and one  legislator belonging to Bhartiya Janata Party  which was  supporting the Minstry,  withdrawing their support to the  Minstry.    On receipt of these letters, the Governor is said to have  called the Secretary of the Legislative Department and got the  authenticity of the signatures on the said letters verified.    Governor then sent a report to the President stating therein that  there were dissensions in the Janta Party  which had led to the  resignation of Shri Hegde and he referred to the 19 letters  received by him and in view of withdrawal of support by  the said  legislators , the Chief Minister Shri Bommai did  not command a  majority  in the Assembly and no other political party was in a  position to form the government and, therefore, recommended to  the President to exercise power under Article 356(1).   The  Governor did not ascertain the view of the Chief Minister, Shri  Bommai,  and on the next day, seven out of the nineteen  legislators who had allegedly written the said letters to the  Governor made a complaint that their signatures were obtained  by misrepresentation.   The Governor also did not take any steps  directing the Chief Minister to seek a vote of confidence in the  legislature nor met any of the legislators who had allegedly  defected from the Janta Party.   It was in this background that  the proclamation issued by the President on the basis of the said  report of the Governor and in the circumstances so obtaining,   equally suffered from mala fides.   The duly constituted Ministry

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was dismissed on the basis of the  material which was no more  than the ipse dixit of the Governor.

In the case of Meghalaya, Meghalaya United Parliamentrary  Party (MUPP) which had a majority  in the Legislative Assembly  formed the government in March, 1990 under the leadership of  Shri B.B. Lyngdoh.   One Kyndiah Arthree was at the relevant  time the  Speaker of the House.   He was elected as the leader of  the opposition known as United Meghalaya Parliamentary Forum  (UMPF).   On his election, Shri Arthree claimed support of  majority of the members in the Assembly and requested the  Governor to invite him to form the government.   The Governor  asked the Chief Minister Shri Lyngdoh to prove his  majority on  the floor of the House.  A special sessions was convened on 7.8.91  and a Motion of Confidence in the Ministry was moved.   Thirty  Legislators supported the Motion and 27 voted against it.  Instead  of announcing the result of the voting on the Motion, the Speaker  declared that he had received a complaint against five  independent MLAs of the ruling coalition front alleging that they  were disqualified as legislators under the anti-defection law and  since they had become disentitled to vote, he was suspending  their right to vote.   On this announcement, there  was uproar in  the House and it had to be adjourned.   On 11.8.1991,  the   Speaker issued show cause notices to the alleged defectors.   The  five MLAs   replied stating that they had not joined any of the  parties and   they had continued to be independent.    The  Speaker passed an order disqualifying the five MLAs.   Thereafter,  on Governor’s advice, the Chief Minister Shri Lyngdoh summoned  the Session of the Assembly on 9.9.1991 for passing a vote of  confidence in the Ministry.   The Speaker, however, refused to   send the notices of the Session to the five disqualified  independent  MLAs whereupon they approached this  court.  This  court issued interim orders staying the operation of the Speaker’s  order.  Only four of them had applied to  the court for an order of  stay.   The Speaker issued a Press Statement in which he  declared that he did not accept any interference by any court.    The Governor, therefore, prorogued the  Assembly  indefinitely.    The Assembly was again convened and the four independent  MLAs who had obtained interim orders from the court moved a  contempt petition before this court against the Speaker.   The  Speaker made a declaration in a press statement defying the  interim order of this Court.   On 8.10.1991, this Court passed an  order directing that all authorities of the State should ensure the  compliance   of the Court’s interim  order of 6.9.1991 and four of  the five independent MLAs received invitation to attend the  Session of the Assembly.   After the Motion of Confidence in the  Ministry was put to vote, the Speaker declared that 26 voted for  the Motion and 26 against it and excluded the votes of the four  independent MLAs.  The 26 MLAs who had supported the  Ministry and four MLAs who had voted in favour of the Motion  elected a new Speaker and the new Speaker declared that the  Motion of Confidence in the Ministry had been carried since 30  MLAs had voted in favour of the Government.  They thereafter  sent letters to the Governor that they had voted in favour of the  Ministry.  However, the Governor wrote a letter to the Chief  Minister asking him to  resign in view of  what had transpired in  the Session on 8.10.1991.   The Chief Minister moved this Court   against the letter of the Governor.  Despite all these facts, the  President on 11.10.1991 issued a proclamation under Article  356(1) and in the proclamation it was stated that the President  was satisfied on the basis of the report from the Governor and  other information received by him 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.   

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In the case of Nagaland also, similar situation had arisen.    The facts are not necessary to be stated in detail.

In all these three cases where the Presidential Proclamations  issued under Article 356 were quashed by this Court, were States  wherein the Government was functioning on the strength of the  majority,  whereas in the instant case the decision of dissolution  of the Assembly was evidently passed on the report of the  Governor when the Assembly was in suspended animation and  there was no democratically elected Government in the State and,  therefore, there was no question of testing the majority of the  Government on the floor of the Assembly.

From the S.R. Bommai’s decision,  it can be discerned that  the majority was of the view that so far as the scope and ambit of  judicial review is very limited when a proclamation under Article  356 is questioned and similar parameters would apply in a case  where a Notification is passed under Article 174(2) {b) dissolving  the State Legislative Assembly.  The plea raised by the Additional  Solicitor General, Shri Gopal Subramaniam that the Notification  dissolving Assembly is of a legislative character and could be  challenged only on the ground of absence of legislative  competence or ultra vires of the Constitution,  cannot be  accepted.   This plea was raised in Rajasthan’s case as well as in  S.R. Bommai’s case, but it was rightly rejected in both the cases.    However, the power exercised by the President is exceptional in  character and it cannot be treated on par with an administrative  action and grounds available for challenging the administrative  action cannot be applied.   In view of Article 74(2) of the  Constitution, the court cannot go into the question as to what  manner of advice was tendered by the Council of  Ministers to the  President.   The power conferred on the President is not absolute;  it has got checks and balances.  It is true that the power  exercised by the President is of  serious  significance and it  sometime amounts to  undoing the will of the people of the State  by dismissing the duly constituted Government and dissolving  the duly constituted Legislative Assembly.  Any misuse of such  power is to be curbed if it is exercised for mala fide purposes or  for wholly extraneous reasons based on irrelevant grounds.   The  Court can certainly go into the materials  placed  by the Governor   which led to the decision of dissolving the State  Assembly.    

The Presidential proclamation dissolving  the  Bihar State   Legislative Assembly was issued pursuant to two reports sent in  by the Governor.   It may be remembered that Article 356(1)  Proclamation imposing President’s Rule was issued on 7th March,   2005.   Thereafter, on 22nd April, 2005, the Governor sent a report  wherein he stated that none of the political parties. either  individually or with the  then pre-election combination or with  post-election alliance,  could stake a claim to form a popular  Government wherein they could claim support of a simple  majority of  122 in a House of 243.   The Governor had also  indicated that there are certain newspaper reports and other  reports gathered through meeting with different parties’  functionaries that some steps are being taken to win over the  elected representatives of the people through various allurements  like money, caste,  post, etc.  Thereafter, on 21.5.2005, the  Governor of Bihar sent another report and based on that, the  Bihar State Assembly was dissolved on 23rd May, 2005.   In the   report dated  21st May, 2005,  the Governor reiterated his earlier  report that no party  had approached him to form a popular  Government since none could claim the support of a simple  majority of 122 in a House of 243.   In that report, the Governor  had also stated that 17/18,  or more perhaps,  LJP MLAs  are  moving towards the JD(U) and that various allurements have

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been offered to them and it was an alarming feature and the  Governor was also of the opinion that it was positively affecting  the Constitutional provisions and safeguards built therein and  distorted the verdict of the people.

The contention urged by learned ASG, Shri Gopal  Subramaniam was that this is the material which was placed  before the President before a Proclamation was issued under  Article 174(2)(b) of the Constitution.   It is important to note that  the writ  petitioners  have no case that JD(U) or any other   alliance had acquired majority and that they had approached the  Governor staking their claim for forming a Government.   No  material is placed before us to show that the JD(U) or its alliance  with BJP had ever met the Governor praying that they had got the  right to form a Government.   The plea of the petitioners’ counsel  is that they were about to form a Government and in order to  scuttle that plan the Governor sent a  report whereby the  Assembly was dissolved to defeat that plan is without any basis.     The Governor in his report stated that 17 or 18 members of the  LJP had joined the JD(U)-BJP alliance, but no materials have  been placed before us to show that they had, in fact,  joined the  alliance to form a Government.   One letter has been produced by  one of the petitioners and the same is not signed by all the MLAs  and as regards some of them, some others had put their  signatures.   Therefore, it is incorrect to say that the Governor  had taken   steps to see  that the Assembly was   dissolved hastily  to prevent  the formation of a Government under the leadership of  the political party JD(U). If  any responsible political party had  any case that they had obtained majority support or were about  to get a majority support or were in a position to form minority  Government with the support of some political parties and if their  plea was rejected by the Governor,  the position would have been  totally different.   No such situation had been reached in the  instant case.   It is also very pertinent to note that the order for  dissolution of the State Assembly  was passed after about three  months  of the proclamation imposing the President’s Rule was  issued under Article 356(1).  When there was such a situation,  the only possible way was to seek a fresh election and  if it was  done by the President,  it cannot be said that it was a mala fide  exercise of power and the dissolution of the Assembly was wholly  on extraneous or irrelevant grounds.   It is also equally important  that in Karnataka, Meghalaya and Nagaland cases, there was a  democratically-elected Government functioning and when there is  an allegation that it had lost its majority in the Assembly, the   primary duty was to seek a vote of confidence in the Assembly  and test the strength on the floor of the Assembly.   Such a  situation was not available in the present case.   It was clear that  not a single political party or alliance was in a position to form  the Government and when the Assembly was dissolved after  waiting for a reasonable period, the same cannot be challenged on  the ground that the Governor in his report  had stated that some  horse-trading is going on and some MLAs are  being won over by  allurements.   These are certainly facts to be taken into  consideration by the Governor.   If by any foul means the  Government is formed, it cannot be said to be a democratically- elected Government.   If Governor has got a reasonable  apprehension and   reliable information such unethical means  are being adopted by the  political parties to get majority,  they  are certainly matters to be brought to the notice of the President  and  at least they are not irrelevant matters.   Governor is  not the  decision-making authority.   His report would be scrutinized by  the Council of Ministers and a final decision is  taken by the  President under Article 174 of the Constitution.   Therefore, it  cannot be said that the decision to dissolve the Bihar State  Legislative Assembly, is mala fide exercise of power based on

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totally irrelevant grounds.

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