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PETITIONER: U.N. R.  RAO

       Vs.

RESPONDENT: SMT. INDIRA GANDHI

DATE OF JUDGMENT17/03/1971

BENCH: SIKRI, S.M. (CJ) BENCH: SIKRI, S.M. (CJ) MITTER, G.K. HEGDE, K.S. GROVER, A.N. REDDY, P. JAGANMOHAN

CITATION:  1971 AIR 1002            1971 SCR   46  1971 SCC  (2)  63  CITATOR INFO :  R          1971 SC1551  (1)  RF         1973 SC1461  (224)  F          1974 SC2192  (33,36,47,132,134)  C          1982 SC 149  (618,709,745)  RF         1987 SC2106  (6)

ACT: Constitution  of India, 1950, Arts,. 74(1) and  75(3)--House of  People  dissolved--If  Prime  Minister  ceases  to  hold office.

HEADNOTE: The  House of the People was dissolved by the  President  of India  on 27th December 1970.  On the question  whether  the respondent,   who   was  the  Prime  Minister   before   the dissolution, ceased to hold office thereafter, HELD:     There  is  nothing  in  the  Constitution  and  in particular  in  Art.  75(3)  which  renders  the  respondent functioning as Prime Minister contrary to the Constitution. The  Indian Constitution establishes a Parliamentary  system of  Government with a Cabinet, and not a Presidential  form. Article 75(3) brings into existence responsible  Government, that is, the Council of Ministers must enjoy the  confidence of  the  House of the People.  In the context, it  can  only mean  that Art. 75(3) applies when the House of  the  People does  not  stand  dissolved or prorogued, for,  when  it  is dissolved,  the Council of Ministers cannot naturally  enjoy the  confidence of the House.  But such dissolution  of  the House  does  not require that the Prime Minister  and  other ministers  must resign, or cease to hold office or  must  be dismissed   by  the  President,  because,  Art.  74(1).   is mandatory  and the President cannot exercise  his  executive power  without  the  aid  and  advice  of  the  Council   of Ministers, with the Prime Minister at the head. [51 B-C,  D- H] This  view  is  also  in  accordance  with  the  conventions followed not only in the United Kingdom but in the countries following a similar system of responsible government. [52 DI

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JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 196 of 1971. Appeal  from  the judgment and order dated January  21,  and February  5, 1971 of the Madras High Court in Writ  Petition No. 63    of 1971. The appellant appeared in person. Niren De, Attorney.-General, R. H. Dhebar, Ram Panjwani, J.   B.   Dadachanji, 0. C. Mathur and Ravinder Narain,  for the respondent. Niren  De, Attorney General, Ram Panjwani, R. H. Dhebar  and S. P. Nayar, for the Union of India.                            ORDER The  appeal  is dismissed.  No order as to costs.   We  will give our reasons later.                              47 The Judgment of the Court was delivered by Sikri, C. J,-This appeal by certificate is directed  against the  judgment  of  the  High  Court  of,  Judgment    Madras dismissing  Writ Petition No. 63 of 1971 filed by U.  N.  R. Rao,  appellant before us.  In this petition  the  appellant had  prayed  that a writ of qua warranto be  issued  to  the respondent, Smt.  Indira Gandhi, and it be declared that the respondent has no constitutional authority to the office  of and to function as Prime Minister of India. In brief, the appellant contends that under the Constitution :as soon as the House of the People is dissolved under  art. 85(2)  of the Constitution the Council of  Ministers,  i.e., the  Prime  Minister  and other  Ministers,  cease  to  hold office.   According  to him this follows  plainly  from  the wording  of art. 75(3), which provides that "the Council  of Ministers shall be collectively responsible to the House  of the   People".   How  can  the  Council  of   Ministers   be responsible  to  the House of the People when  it  has  been dissolved under art. 85(2) ? According to him no void in the carrying  out  of  Government will be  created  because  the President  can.  exercise the Executive Power of  the  Union either   directly   or  through  officers   subordinate   in accordance  with the Constitution as provided in art.  53(1) of the Constitution. In  constitutional  matters it is advisable to  decide  only those  points which necessarily arise for  determination  on the  facts of the case.  It seems to us that a  very  marrow point arises on the facts of the present case.  The House of the  People  was dissolved by the President  on  27-12-1970. The   respondent   was  the  Prime   Minister   before   the dissolution.  Is: there anything in the Constitution, and in particular  in art. 75(3), which renders her carrying on  as Prime  Minister contrary to the Constitution ? It  was  said that we  must interpret Art. 75(3) according  to  its  own terms  regardless  of the conventions that  prevail  in  the United  Kingdom.   If the words of an  article  are  clear, notwithstanding  any  relevant convention,  effect  will  no doubt be given to the words.  But it must be remembered that we  are  interpreting  a Constitution and  not  :an  Act  of Parliament, a Constitution which establishes a Parliamentary system  of  Government  with,  a  Cabinet.   In  trying   to understand one may well keep in mind the conventions  preva- lent at the time the Constitution was framed. Speaking  for the Court (Mukherjea, C. J.) observed  in  Ram Jawaya Kapur v. State of Punjab(1).                "The   limits  within  which  the   executive               Government  can  function  under  the   Indian

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             Constitution  can be ascertained without  much               difficulty by reference to the form (1)  [1955] 2 S. C. R. 225, 236-37. 48 of  the  executive which our Constitution has set  up.   Our Constitution, though federal in its structure, is modeled on the  British  Parliamentary system where  the  executive  is deemed  to  have  the primary responsibility  for  the  for- mulation  of governmental policy and its  transmission  into law  though the condition precedent to the exercise of  this responsibility  is  its  retaining  the  confidence  of  the legislative  branch  of the State.  The  executive  function comprises  both the determination of the policy as  well  as carrying  it  into execution.  This evidently  includes  the initiation  of  legislation, the maintenance of  order,  the promotion  of social and economic welfare, the direction  of foreign  policy, in fact the carrying on or  supervision  of the general administration of the State. In  India, as in, England, the executive has to act  subject to  the control of the legislature; but in what way is  this control exercisable by the legislature ? Under article 53(1) of  our  Constitution, the executive power of the  Union  is vested in the President but under article 75 there is to  be a  Council of Ministers with the Prime Minister at the  head to  aid  and  advise the President in the  exercise  of  his functions.   The  President has thus been made a  formal  or constitutional head of the executive and the real  executive powers are vested in the Ministers or the Cabinet.  The same provisions  obtain in regard to the Government  of  States-, the Governor or the Rajpramukh, as the case may be, occupies the  position of the head of the executive in the State  but it is virtually the Council of Ministers in each State  that carries   on  the  executive  Government.   In  the   Indian Constitution,   therefore,  we  have  the  same  system   of parliamentary  executive  as in England and the  Council  of Ministers  consisting,  as it does, of the  members  of  the legislature  is, like the British Cabinet, "a  hyphen  which joins,  a buckle which fastens the legislative part  of  the State  to the executive part".  The Cabinet enjoying, as  it does,  a majority in the legislature concentrates in  itself the virtual control of both legislative and executive  func- tions;  and  as the Ministers constituting the  Cabinet  are presumably  agreed on fundamentals and act on the  principle of  collective responsibility, the most important  questions of policy are all formulated by them." In A. Sanjeevi Naidu v. State of Madras (1) it was urged  on behalf  of the appellants in case that, "the Parliament  has conferred power under Section 68(C) of the (Motor 1)   A. I. R 1970 S.C.R 1102, 1106. 49 Vehicles  Act, 1939) to a designated authority.   The  power can be exercised only by that authority and by no one  else. The  authority  concerned in the present case is  the  State Government.   The  Government could not have  delegated  its statutory  functions to any one else.  The Government  means the Governor aided and advised by his Ministers.   Therefore the  required  opinion’  should  have  been  formed  by  the Minister  to  whom the business had been allocated  by  ’the Rules’.   It was further urged that if the functions of  the Government  can  be  discharged by any  one  else  then  the doctrine  of  ministerial responsibility which is  the  very essence of the cabinet form of Government disappears; such a situation is impermeable under our Constitution." Speaking on behalf of the Court, Hegde J., repelled the con- tentions in the following words :

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             "We think that the above submissions  advanced               on behalf of the appellants are without  force               and  are  based  on  a  misconception  of  the               principles underlying our Constitution.  Under               our Constitution, the Governor is  essentially               a  constitutional head, the administration  of               State is run by the Council of Ministers.  But               in the very nature of things, it is impossible               for the Council of Ministers to deal with each               and   every  matter  that  comes  before   the               Government.    In   order  to   obviate   that               difficulty the Constitution has authorized the               Governor under subarticle 3 of Article 166  to               make rules for the more convenient transaction               of business of the Government of the State and               for the allocation amongst its Ministers,  the               business  of  the  Government.   All   matters               excepting those in which Governor is  required               to act in his discretion have to be  allocated               to  one or the other of the Ministers  on  the               advice  of  the Chief  Minister.   Apart  from               allocating  business among the Ministers,  the               Governor can also make rules on the advice  of               his  Council of Ministers for more  convenient               transaction  of  business.  He can,  not  only               allocate  the  various  subjects  amongst  the               Ministers  but may go further and designate  a               particular    official   to   discharge    any               particular function.  But this again he can do               only   on  the  advice  of  the   Council   of               Ministers.               The Cabinet is responsible to the  legislature               for   every  action  taken  in  any   of   the               Ministries.   That  is the  essence  of  joint               responsibility."               Let  us now look at the relevant articles  of               the  Constitution in the context of  which  we               must interpret art. 75(3) of the Constitution.               Chapter I of Part V of the                              50 Constitution deal-, with the Executive.  Article 52 provides that  there  shall be a President of India  and  Art.  53(1) vests the executive power of the Union in the President  and provides  that it shall be exercised by him either  directly or  through officers subordinate to him in  accordance  with this  Constitution.   The  last  five  words  are  important inasmuch  as  they  control  the  President’s  action  under Article  53(1).  Any exercise of the executive power not  in accordance  with the Constitution will be liable to  be  set aside.   There is no doubt that the President of India is  a person who has to be elected in accordance with the relevant provisions  of the Constitution but even so he is  bound  by the provisions of the Constitution’.  Article 60  prescribes the oath or affirmation which the President has to take.  It reads : "I, A. B., do swear in the name of God/solemnly affirm  that I  will  faithfully  execute the  office  of  President  (or discharge the functions of the President) of India and  will to  the best of my ability preserve, protect and defend  the Constitution  and the law and that I will devote  myself  to the service and well-being of the people of India". Articles  74  and 75 deals with the  Council  of  Ministers. They read thus : "74.  (1)  There shall be a Council of  Ministers  with  the Prime  Minister at the head to aid and advise the  President

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in the exercise of his functions. (2)  The  question whether any, and if so what,  advice  was tendered by Ministers to the President shall not be inquired into in any court. 75.  (1)  The  Prime  Minister shall  be  appointed  by  the President and the other Ministers shall be appointed, by the President on the advice of the Prime Minister. (2)  The Ministers shall hold office during the pleasure  of the President. (3)  The   Council  of  Ministers  shall   be   collectively responsible to the House of the People. (4)  Before a Minister enters upon his office, the President shall  administer to him the oaths of office and of  secrecy according to the forms set out for the purpose in the  Third schedule. (5)  A Minister who for any period of six consecutive months is  not a member of either House of Parliament shall at  the expiration of that period cease to be a Minister.  51               (7)   The salaries and allowances of Ministers               shall ’be such as Parliament may from time  to               time by law determine and, until Parliament to               determines,  shall  be  as  specified  in  the               Second Schedule". It will be noticed that article 74(1) is mandatory in  form. We  are  unable  to agree with the  appellant  that  in  the context  the word "shall" should be read as "may".   Article 52 is mandatory.  In other words ’there shall be a President of  India’.  So is article 74(1).  The Constituent  Assembly did not choose the Presidential system of Government.  If we were  to give effect to this contention of the appellant  we would  be changing the whole concept of the  Executive.   It would  mean  that  the  President need  not  have.  a  Prime Minister and Ministers to aid and advise in the exercise  of his functions.  As there would be no ’Council of  Ministers’ nobod y  would  be responsible to the House of  the  People. With  the  aid  of advisers he would be  able  to  rule  the country at least till he is impeached under Article, 61. It seems to us that we must read the word "shall" as meaning "shall’  and  not "may".  If Article 74(1) is read  in  this manner the rest of the provisions dealing with the Executive must be read in harmony with.  Indeed they fall into  place. Under  Article  75(1)  the  President  appoints  the   Prime Minister  and appoints the other Ministers on the advice  of the  Prime Minister, and under art. 75(2) they  hold  office during the pleasure of the President.  The President has not said that it is his pleasure that the respondent shall  not hold office. Now  comes  the  crucial clause three of  Article  75.   The appellant  urges  that  the  House  of  People  having  been dissolved this clause cannot be complied with.  According to him  it follows from the provisions of this clause  that  it was  contemplated  that on the dissolution of the  House  of People  the  Prime  Minister and the  other  ministers  must resign  or be dismissed by the President and  the  President must carry on the Government as best as he can with the  aid of  the Services.  As we have shown above, Article 74(1)  is mandatory and, therefore. the President cannot exercise ’the executive power without the aid and advice of the Council of Ministers.  We must then harmonize the provisions of Article 75(3)  with Article 74(1) and Article 75(2).  Article  75(3) brings  into existence what is usually  called  "Responsible Government".   In other words the Council of Ministers  must enjoy  the  confidence of the House of  People.   While  the House  of  People is not dissolved under  Article  85(2)(b),

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Article 75(3) has full operation.  But :when it is dissolved the   Council  of  Ministers  cannot  naturally  enjoy   the confidence  of the House of People.  Nobody has  said  ;that the Council of Ministers does not enjoy the confidence of                              52 the  House of People when it is prorogued.  In the  context, therefore, this clause must be read as meaning that  Article 75(3)  only applies when the House of People does not  stand dissolved or prorogued.  We are not concerned with the  case where  dissolution of the House of People takes place  under Article 83(2) on the expiration of the period of five  years prescribed  therein,  for Parliament has provided  for  that contingency  in S. 14 of the Representation of Peoples  Act, 1951. On  our  interpretation other articles of  the  Constitution also  have full play, e.g. Article 77(3) which  contemplates allocation  of.  business among Ministers,  and  Article  78 which prescribes certain duties of Prime Minister. We  are  grateful to the learned Attorney  General  and  the appellant for having supplied to us compilations  containing extracts  from  various  books  on  Constitutional  Law  and extracts  from the debates in the Constituent Assembly.   We need not burden this judgment with them.  But on, the  whole we  receive  assurance  from the  learned  authors  and  the speeches  that the view we have taken is the right one,  and is  in accordance with conventions followed not only in  the United  Kingdom but in other countries following  a  similar system of responsible Government. In  the result the appeal fails and is dismissed, but  there will be no order as to costs in this Court. V.P.S.                                                Appeal dismissed. 53