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

PETITIONER: Rameshwar Prasad and Ors.

RESPONDENT: Union of India and Anr.

DATE OF JUDGMENT: 24/01/2006

BENCH: ARIJIT PASAYAT

JUDGMENT: J U D G M E N T (With WP (C) Nos. 255, 258 and 353 of 2005)  

ARIJIT PASAYAT J.

       In the last few years the attack on actions of Governors  in the matter of installation/dissolution of ministries has  increased, which itself is a disturbing feature.  A Governor has  been assigned the role of a Constitutional sentinel and a vital  link between the Union and the State.  A Governor has also  been described as a useful player in the channel of  communication between the Union and the State in matters of  mutual interest and responsibility.  His oath of office binds  him to preserve, protect and defend the Constitution of India,  1950 (in short ’the Constitution’) and the law, and also to  devote himself to the service and the well being of the people of  the State concerned.  When allegations are made that he is  partisan and/or is acting like an agent of a political party, un- mind of his Constitutional duties, it naturally is a serious  matter.   

       The cases at hand relate to acts of the Governor of Bihar.                  

       Challenge in these writ petitions is to the  constitutionality, legality and validity of a Notification GSR  333(E) dated 23.5.2005 of the Union of India in ordering  dissolution of the Bihar Legislative Assembly. Writ Petition (C)  No.257 of 2005 has been filed by four persons who were  elected to the dissolved Legislative Assembly. Petitioner No.1  Shri Rameshwar Prasad was elected as a candidate of the  Bhartiya Janta Party (in short ’BJP’). Petitioner No.2 Shri  Kishore Kumar was elected as an independent candidate.  Petitioner No.3 Shri Rampravesh Rai was elected as a  candidate of the Janta Dal United (in short ’JDU’) while  petitioner NO.4 Dr. Anil Kumar was elected as a candidate of  the Lok Janshakti Party (in short ’LJP’).   

       Writ Petition (C) No.353 of 2005 has been filed by Smt.  Purnima Yadav who was elected as an independent candidate.  Writ Petition (C) No.258 of 2005 has been filed by Shri Viplav  Sharma, an Advocate, styled as a Public Interest litigation.  

       All these writ petitions have been filed under Article 32 of  the Constitution. In Viplav Sharma’s Writ Petition in addition  to the challenges made by the writ petitioners in other two writ  petitions, prayer has been made for a direction to the Governor  of Bihar to administer oath to all the elected members of the  13th Legislative Assembly of the State of Bihar and make such  assembly functional, purportedly in terms of Articles 172 and

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176 of the Constitution and appoint the Chief Minister and  Council of Ministers in terms of Article 164(1) of the  Constitution. Further, consequential prayers have been made  for a direction to the Election Commission of India (in short  the ’Election Commission’) not to hold fresh elections for the  constitution of 14th State Legislative Assembly. It has also  been prayed to direct stay the effect and operation of the  purported report dated 22.5.2005 of the Governor of Bihar to  the Union Cabinet inter-alia recommending the dissolution of  the Assembly and the Presidential Proclamation dated  7.3.2005 placing the 13th State Legislative Assembly under  suspended animation and the Presidential Proclamation dated  23.5.2005. In essence, his stand was that since the State  Legislative Assembly was yet to be functional there was no  question of dissolving the same. Certain other prayers have  been made for laying down the guidelines and directions with  which we shall deal with in detail later on. It is to be noted  that by order dated 25.7.2005 it was noted that Mr. Viplav  Sharma had stated before the Bench hearing the matter that  he does not press the prayers (i), (ii), (vii) and (viii) in the writ  petition.           The challenges in essence, as culled out from the  submissions made by the petitioners are essentially as follows:    

       The dissolution of the Legislative Assembly by the  impugned Notification dated 23.5.2005 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 Proclamation  number GSR 162(E) dated 7th March, 2005 issued under  Article 356 of the Constitution in relation to the State of Bihar  has been made on the basis of a tainted and clearly  unsustainable report of the Governor of Bihar.  It is stated by  Mr. Sorabjee that the Governor’s report which led to  imposition of President’s Rule over the State of Bihar was not  based on an objective assessment of the ground realities. The  Home Minister in his speech made on 21.3.2005 when the  Bihar Appropriation (Vote on Account) Bill, 2005  was being  discussed in Rajya Sabha clearly indicated that it is not good  for democracy to let the President’s rule continue for a long  time. It was unfortunate that no political party could get a  majority and more parties could not come together to form the  Government. The minority government also would not be  proper to be installed where the difference between the  requisite majority and the minority was not very small. The  House was assured that the Government was not interested in  continuation of President’s Rule for a long time. It was  categorically stated that sooner it disappears the better it  would be for the State of Bihar, for democracy and for the  system that has been followed in this country. The Governor  was requested to explore the possibilities of formation of a  Government. This could be achieved by talking to the elected  representatives. Contrary to what was held out by the Home  Minister, on totally untenable premises and with the sole  objective of preventing Shri Nitish Kumar who was projected to  be as the Chief Ministerial candidate by the National  Democratic Alliance (in short the ’NDA’) with  support of a  break away group of LJP and independents. In hot-haste, a  report was given, which was attended to with unbelievable  speed and the President’s approval was obtained. The hot- haste and speed with which action was taken clearly indicates  mala-fides. Though the Governor made reference to some  horse trading or allurements the same was clearly on the basis  of untested materials without details. Action of the Governor is  of the nature which was condemned by this Court in S.R.

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Bommai and Ors. v. Union of India and Ors. (1994 (3) SCC 1).  It was submitted that similar views expressed by respective  Governors did not find acceptance in the cases of dissolution  of Assemblies in Karnataka and Meghalaya in the said case.  Though the Proclamations in respect of Madhya Pradesh,  Rajasthan and Himachal Pradesh were held to be not  unconstitutional, yet the parameters of the scope of judicial  review were highlighted. Even if it is accepted that the  Governor’s opinion is to be given respect and honour in view of  the fact that he holds a high constitutional office, yet when the  view is tainted with mala-fides the same has to be struck  down. In the instant case according to learned counsel for  petitioners, the background facts clearly established that the  Governor was not acting bona fide and his objective was to  prevent installation of a majority Government. Even if it is  accepted for the sake of arguments that the majority was  cobbled by unfair means that is a matter with which the  Governor has no role to play. It is for the Speaker of the  Assembly, when there is a floor test to consider whether there  was any floor crossing. If any material existed to show that  any Legislature was lured by unfair means that is for the  electorate to take care of and the media to expose. That cannot  be a ground for the Governor to prevent somebody from  staking a claim when he has the support of majority number  of legislatures. It is submitted that similar views regarding  horse trading etc. were made in the report of the Governor so  far as the dissolution of the Karnataka Assembly is concerned  and this Court in S.R. Bommai’s case (supra) found that the  same cannot be the foundation for directing dissolution.  

       For the last few years formation of government by a party  having majority has become rare.   Therefore, the coalition  governments are in place in several States and in fact at the  Centre. There is nothing wrong in post poll adjustments and  when ideological similarity weighs with any political party to  support another political party though there was no pre-poll  alliance, there is nothing wrong in it. Majority of the  legislatures of the LJP party had decided to support JDU in its  efforts to form a Government. Clear decisions were taken in  that regard. Some Independent M.L.As had also extended their  support to Mr. Nitish Kumar. The Governor cannot refuse to  allow formation of a Government once the majority is  established. The only exception can be where the Governor is  of the view that a stable Government may not be formed by the  claimants. It is not the position in the case at hand. Mr. Nitish  Kumar had  support of legislators, more than the requisite  number and in fact the number was far in excess of the  requisite number. The Governor’s actions show that he was  acting in a partisan manner to help some particular political  parties.   

       The scope of judicial review was delineated by this Court  in State of Rajasthan and Ors. v. Union of India and Ors.  (1977 (3) SCC 592) and was further expanded in Bommai’s  case (supra). Tested on the touchstone of the guidelines set  out in Rajasthan’s case (supra) and Bommai’s case (supra) the  Governor’s report is clearly unsustainable and consequential  Presidential Proclamation is unconstitutional. It is to be noted  that the Presidential Proclamation was based solely on the  Governor’s report as has been accepted by the Union of India.   

       Mr. P.S. Narasimha and Mr. Viplav Sharma supported  the stand. Additionally, with reference to their additional  stands noted supra in the writ petitions, they submitted that  the President’s Notification is not sustainable and is

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unconstitutional.  

       In response, Mr. Milon K. Banerjee, learned Attorney  General, Mr. Goolam E. Vahanvati, learned Solicitor General,  Mr. Gopal Subramaniam, learned Additional Solicitor General,  Mr. P.P. Rao, learned senior counsel and Mr. B.B. Singh,  learned counsel submitted that there is no quarrel about the  scope of judicial review of this Court in matters relating to  Proclamation under Article 356(1) and consequentially Article  174(2) of the Constitution. But the factual scenario as  projected by the petitioners is really not so.  

       In the instant case, the Governor had not in reality  prevented anybody from staking a claim. It is nobody’s case  that somebody had staked a claim. What the Governor had  indicated in his report dated 21.5.2005 (not dated 22.5.2005  as stated in the writ petitions by the writ petitioners) was that  effort was to get the majority by tainted means by allurements  like money, caste, posts and such unfair and other  objectionable means. When the foundation for the claim was  tainted the obvious inference is that it would not lead to a  stable government and the same is clearly visible. It has been  submitted that the parameters of judicial review are extremely  limited so far as the Governor’s report is concerned and  consequential actions taken by the President. The Governor  cannot be a mute spectator when democratic process is  tampered with by unfair means. The effort is to grab power by  presenting a majority, the foundation of which is based on  factors which are clearly anti democratic in their conception.  Parliamentary democracy is a part of the basic structure of the  Constitution and when the majority itself is the outcome of  foul means it is clearly against the mandate given by the  electorate. It can never be said that the electorate wanted that  their legislatures after getting their mandate would become the  object of corrupt means. When the sole object is to grab power  at any cost even by apparent unfair and tainted means, the  Governor cannot allow such a government to be installed. By  doing so, the Governor would be acting contrary to very  essence of democracy. The purity of electorate process would  get polluted. The framers of the Constitution never intended  that democracy or governance would be manipulated.  Defections strike at the root of representative government.  They are unconstitutional, illegal, illegitimate, unethical and  improper. The Tenth Schedule cannot take care of all  situations and certainly not in the case of independents. It  would be too hollow to contend that the floor test would cure  all impurity in gathering support of the legislatures. Floor test  cannot always be a measure to restrain the corrupt means  adopted and in cobbling the majority. It is also too much to  expect that by exposure of the corrupt means so far as a  particular legislature is concerned, by the people or by the  media the situation would improve. Since there is no material  to show that any party staked a claim and on the contrary as  is evident from the initial report of the Governor dated  6.3.2005 that nobody was in a position to stake a claim and  the fact that passage of about three months did not improve  the situation, the Governor was not expected to wait  indefinitely and in the process encourage defections or  adoption of other objectionable activities. It is submitted that  ratio in State of Rajasthan’s case (supra) so far as the scope of  judicial review is concerned has not been expanded in  Bommai’s case (supra), and the parameters remain the same.  

       With reference to Tenth Schedule more particularly sub- paragraphs 2 and 4 it is submitted that dis-qualification had

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been clearly incurred by the members of LJP break away  group. There was in fact no merger of the so-called break away  group with JDU. The documents filed by the petitioners amply  show that there was only a proposal and in fact not any  merger. Documents on the other hand show that the so called  resolution was also manipulated. One person had signed for  several persons and even the signatures differ. If really the  persons were present in the so called meeting, adopted the  resolution purported to have been taken, there was no reason  as to why concerned participants did not sign the resolution  and somebody else signed it in their favour. This clearly shows  that on the basis of manipulated documents it was attempted  to be projected as if Shri Nitish Kumar had a majority.  Interestingly, Shri Nitish Kumar has not filed any petition and  only four members have filed the petitions though claim was  that more than 122 had extended support. Though that by  itself may not be a ground to throw out the petitions, yet the  petitions certainly suffer from legal infirmity. As amply proved,  the petitioners have not approached this Court with clean  hands and therefore are not entitled to any relief.  It is  submitted that the petitioners in WP (C) No.257 and 353 have  not questioned the correctness of the President’s Notification  dated 7.3.2005, and interestingly in the so called Public  Interest Litigation, it has been challenged.  After having given  up challenge to the major portion of the challenges it has not  been explained by the petitioner in person as to how and in  which way any of his rights has been affected. If the persons  affected have not questioned the correctness of the Notification  dated 7.3.2005 the petitioner in person should not be  permitted to raise that question. It is the basic requirement of  a Public Interest Litigation that persons who are affected are  unable to approach the Court. It is strange that learned  counsel for the legislators-writ petitioners have accepted the  Notification dated 7.3.2005 to be valid and in order. The plea  taken in the so called Public Interest Litigation is to the  contrary. The factual position in Bommai’s case (supra) was  different. It related to cases where elected governments were in  office and the Governors directed dissolution. The position is  different here. Further it is submitted that the power exercised  by the Governor is legislative in character and it can only be  nullified on the ground of ultra-vires. The reports of the  National Commission To Review the Working Of The  Constitution and Sarkaria Commission have amply indicated  the role to be played by the Governors’ and sanctity to be  attached to their report. Even when the parameters of judicial  review spelt out in the State of Rajasthan and Bommai’s cases  (supra) are kept in view, the impugned report and  consequential President’s Notification do not suffer from any  infirmity to warrant interference. It is further submitted that  the Election Commission had notified fresh elections and even  if for the sake of arguments if any defect is noticed in the  Governor’s report or the consequential President’s Notification,  that cannot be a ground to stall the election already notified.  People can give their mandate afresh and the plea that large  sums of money would be spent if the fresh elections are held is  really no answer to preventing installation of a government  whose foundation is shaky. It is submitted that the report  does not even show a trend of any partisan approach vis-a-vis  any political party by the Governor who was acting  independently. In fact before the report dated 21.5.2005 on  which the final decision for the Presidential Proclamation was  taken a report dated 27.4.2005 was given which clearly  indicated that no party was in a position to form the  Government. The Governor has clearly indicated the source  from which he came to know about the efforts to form the

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Government by illegal means. It is pointed out that the  decision relied upon by Mr. P.S. Narasimha and Mr. Viplav  Sharma i.e. Udai Narain Sinha v. State of U.P. and Ors. (AIR  1987 Allahabad 293) does not really reflect the correct position  in law and was rendered in the peculiar fact situation. On the  contrary, the decision of the Kerala High Court in K.K. Aboo v.  Union of India (AIR 1965 Kerala 229) lays the correct position.  Stand that because of Articles 172 or 174 of the Constitution  there is no scope of dissolving the Assembly before it was  summoned to hold the meeting is not acceptable on the face of  Section 73 of the Representation of People Act, 1951 (in short  the ’RP Act’). It is pointed out that the decision in K.K. Aboo’s  case (supra) was approved to be laying down the correct law by  a Constitution Bench of this Court in Special Reference No.1  of 2002 (2002 (8) SCC 237).  

The reports of the Governor dated 6.3.2005, 27.4.2005  and 21.5.2005 need to be reproduced. They read as under:

               "D.O.No.33/GB           Patna, the 6th March, 2005

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 received)         4.      C.P.I.(M)               :       01         5.      N.C.P.          :       03                               ________________________                                                 92                 ________________________

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

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

               ________________________                                                 92                 ________________________

3.      The present Chief Minister, Bihar, Smt.  Rabri Devi met me on 28.2.2005 and  submitted her resignation alongwith 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 L.J.P. 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 R.J.D. nor the B.J.P. in the formation of  government. The State President of Congress  Party, Shri Ram Jatan Sinha, also met me in  the evening of 28.2.2005.

5.      The State President of B.J.P., Shri Gopal  Narayan Singh alongwith supporters met me  on 1.3.2005. They have submitted a letter  (Annexure III) stating that apart from  combined alliance strength of 92 (BJP and  JD(U) they have support of another 10 to 12  Independents. The request in the letter is not  to allow the R.J.D. 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  R.J.D. or N.D.A. in the formation of the Govt.  He also met me on 2.3.2005.

7.      Shri Ram Naresh Ram, Leader of the  C.P.I. (M.L.-Lib), Legislature Party alongwith 4  others met me and submitted a letter  (Annexure V) that they would not support any  group in the formation of Government.  

8.      Shri Ram Vilas Paswan, National  President of L.J.P. alongwith 15 others met me  and submitted another letter (Annexure VI).  They have re-iterated their earlier stand.

9.      The R.J.D. 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.      N.C.P.          :       03         3.      C.P.I. (M)              :       01         4.      B.S.P.          :       02(copy enclosed

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                                                   as Annex.VII)          

       The R.J.D. with the above will have only 91.

       They have further claimed that some of  the Independent members may support the  R.J.D. However, it has not been disclosed as to  the number of Independent M.L.As. from  whom they expect support nor their names.

       Even if we assume the entire  independents totalling 17 to extend support to  R.J.D. 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 N.D.A. delegation led by Shri Sushil  Kumar Modi, M.P., 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 Independents M.L.As. 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 authorisization 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  summarized 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 Articles 75 and   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

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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 case referred to above in para 153  S.C. has stated with regard to the position  where, I quote:

"Suppose after the General Elections  held, no political party or coalition of  parties or groups 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 M.L.As., 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 Constituent Assembly be kept in  suspended animation for the present and the  President of India is requested to take such  appropriate action/decision, as required.

       With regards,

                                                   Yours sincerely,

                                           (Buta Singh)

Dr. A.P.J. Abdul Kalam,

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President of India, Rashtrapati Bhavan, New Delhi.

D.O. No.  52/GB         Patna, the 27th  April,2005

Respected Rashtrapati Jee,

       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/B.R.- 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 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  targeting 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

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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 time to time. A reasonable  degree of stability of Government and a strong  Government is important. It has also been  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 practised 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.

       With regards,

                                               Yours sincerely,

                                               (Buta Singh)

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Dr. A.P.J. Abdul Kalam, President of India, Rashtrapati Bhavan, New Delhi."               D.O. No. 140/PS-GB/BN   Patna, the 21st May, 2005                                                  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-  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 resigned  today and also 17-18 more perhaps are moving  towards the JD-U clearly indicating that various  allurements have been offered which is a very  disturbing and alarming feature.  Any move by  the break away action 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

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opportunity to seek the mandate of the people at  an appropriate time to be decided in due course.

       With regards,

                                               Yours sincerely                                                                                                                                   Sd/-                                                 (Buta Singh) Dr. A.P.J. Abdul Kalam, President of India, Rashtrapati Bhavan, New Delhi.

       We shall first deal with the question as to the essence of  the judgment in Bommai’s case (supra).

        Lot of arguments have been advanced as to the true  essence of the conclusions arrived at in Bommai’s case (supra)  and the view expressed as regards the scope of judicial review.  In A.K. Kaul and Anr. v. Union of India and Anr. (1995 (4) SCC  73), the position was summed up as follows:                                        "21. It would thus appear that in S. R. Bommai  though all the learned Judges have held that  the exercise of powers under Article 356(1) is  subject to judicial review but in the matter of  justiciability of the satisfaction of the  President, the view of the majority (Pandian,  Ahmadi, Verma Agrawal, Yogeshwar Dayal and  Jeevan Reedy, JJ.) is that the principles  evolved in Barium Chemicals for adjudging the  validity of an action based on the subjective  satisfaction of the authority created by statute  do not, in their entirety, apply to the exercise  of a constitutional power under Article 356. On  the basis of the judgment of Jeevan Reddy, J.,  which takes a narrower view than that taken  by Sawant, J., it can be said that the view of  the majority (Pandian, Kuldip Singh, Sawant,  Agrawal and Jeevan Reddy, JJ.) is that:  (i) the satisfaction of the President while  making a Proclamation under Article 356 (1) is  justiciable;  (ii) it would be open to challenge on the ground  of mala fides or being based wholly on  extraneous and or irrelevant grounds;  (iii) even if some of the materials on which the  action is taken is found to be irrelevant, the  court would still not interferes so long as there  is some relevant material sustaining the  action;  (iv) the truth or correctness of the material  cannot be questioned by the court nor will it go  into the adequacy of the material and it will  also not substitute it opinion for that of the  President;  (v) the ground of mala fides takes in inter alia  situations where the Proclamation is found to  be a clear case a abuse of power or what is  sometimes called fraud on power;  (vi) the court will not lightly presume abuse or  misuse of power and will make allowance of  the fact that the president and the Union

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Council of Ministers are the best judge of the  situation and that they are also in possession  of information and material and that the  Constitution has trusted their judgment in the  matter; and  (vii) this does not mean that the President and  the Council of Ministers are the final arbiters  in the matter or that their opinion is  conclusive."  

       If the State of Rajasthan’s case (supra) and Bommai’s  case (supra) are read together it is crystal clear that in  Bommai’s case, the scope of judicial review as set out in the  State of Rajasthan’s case (supra) was elaborated as is clear  from the summation in A.K. Kaul’s case (supra).  Lord Greene said in 1948 in the famous Wednesbury  case (1948 (1) KB 223s) that when a statute gave discretion to  an administrator to take a decision, the scope of judicial  review would remain limited.  He said that interference was  not permissible unless one or the other of the following  conditions was satisfied, namely the order was contrary to law,  or relevant factors were not considered, or irrelevant factors  were considered; or the decision was one which no reasonable  person could have taken.  Lord Diplock in Council for Civil  Services Union v. Minister of Civil Service [(1983) 1 AC 768]  (called the CCSU case) summarized the principles of judicial  review of administrative action as based upon one or other of  the following viz., illegality, procedural irregularity and  irrationality.  He, however, opined that "proportionality" was a  "future possibility".

In Om Kumar and Ors. v. Union of India (2001 (2) SCC  386), this Court observed, inter alia, as follows:           "The principle originated in Prussia in the  nineteenth century and has since been  adopted in Germany, France and other  European countries.  The European Court of  Justice at Luxembourg and the European  Court of Human Rights at Strasbourg have  applied the principle while judging the validity  of administrative action.  But even long before  that, the Indian Supreme Court has applied  the principle of "proportionality" to legislative  action since 1950, as stated in detail below.                    

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

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proportionality.

xxx             xxx             xxx             xxx             xxx

                The development of the principle of "strict  scrutiny" or "proportionality" in administrative  law in England is, however, recent.  Administrative action was traditionally being  tested on Wednesbury grounds.  But in the  last few years, administrative action affecting  the freedom of expression or liberty has been  declared invalid in several cases applying the  principle of "strict scrutiny".  In the case of  these freedoms, Wednesbury principles are no  longer applied.  The courts in England could  not expressly apply proportionality in the  absence of the convention but tried to  safeguard the rights zealously by treating the  said rights as basic to the common law and the  courts then applied the strict scrutiny test.  In  the Spycatcher case Attorney General v.  Guardian Newspapers Ltd. (No.2) (1990) 1 AC  109 (at pp. 283-284), Lord Goff stated that  there was no inconsistency between the  convention and the common law.  In  Derbyshire County Council v. Times  Newspapers Ltd. (1993) AC 534, Lord Keith  treated freedom of expression as part of  common law.  Recently, in R. v. Secy. Of State  for Home Deptt., ex p. Simms (1999) 3 All ER  400 (HL), the right of a prisoner to grant an  interview to a journalist was upheld treating  the right as part of the common law.  Lord  Hobhouse held that the policy of the  administrator was disproportionate.  The need  for a more intense and anxious judicial  scrutiny in administrative decisions which  engage fundamental human rights was re- emphasised in in R. v. Lord Saville ex p (1999)  4 All ER 860 (CA), at pp.870,872) . In all these  cases, the English Courts applied the "strict  scrutiny" test rather than describe the test as  one of "proportionality".  But, in any event, in  respect of these rights "Wednesbury" rule has  ceased to apply.

       However, the principle of "strict scrutiny"  or "proportionality" and primary review came  to be explained in R. v. Secy. of State for the  Home Deptt. ex p Brind (1991) 1 AC 696.  That  case related to directions given by the Home  Secretary under the Broadcasting Act, 1981  requiring BBC and IBA to refrain from  broadcasting certain matters through persons  who represented organizations which were  proscribed under legislation concerning the  prevention of terrorism.  The extent of  prohibition was linked with the direct  statement made by the members of the  organizations.  It did not however, for example,  preclude the broadcasting by such persons  through the medium of a film, provided there  was a "voice-over" account, paraphrasing what

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they said.  The applicant’s claim was based  directly on the European Convention of  Human Rights. Lord Bridge noticed that the  Convention rights were not still expressly  engrafted into English law but stated that  freedom of expression was basic to the  Common law and that, even in the absence of  the Convention, English Courts could go into  the question (see p. 748-49).

".....whether the Secretary of State, in the  exercise of his discretion, could  reasonably impose the restriction he has  imposed on the broadcasting  organisations"

and that the courts were

"not perfectly entitled to start from the  premise that any restriction of the right  to freedom of expression requires to be  justified and nothing less than an  important public interest will be sufficient  to justify it".

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

       In the famous passage, the seeds of the  principle of primary and secondary review by  courts were planted in the administrative law  by Lord Bridge in the Brind case (1991) 1 AC  696.  Where Convention rights were in  question the courts could exercise a right of  primary review.  However, the courts would  exercise a right of secondary review based only  on Wednesbury principles in cases not  affecting the rights under the Convention.   Adverting to cases where fundamental  freedoms were not invoked and where  administrative action was questioned, it was  said that the courts were then confined only to  a secondary review while the primary decision  would be with the administrator. Lord Bridge  explained the primary and secondary review as  follows:

       "The primary judgment as to  whether the particular competing public  interest justifying the particular  restriction imposed falls to be made by  the Secretary of State to whom  Parliament has entrusted the discretion.   But, we are entitled to exercise a  secondary judgment by asking whether a  reasonable Secretary of State, on the  material before him, could reasonably  make the primary judgment."

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

(1) To judge the validity of any  administrative order or statutory  discretion, normally the Wednesbury test  is to be applied to find out if the decision  was illegal or suffered from procedural  improprieties or was one which no  sensible decision-maker could, on the  material before him and within the  framework of the law, have arrived at.   The court would consider whether  relevant matters had not been taken into  account or whether irrelevant matters  had been taken into account or whether  the action was not bona fide.  The court  would also consider whether the decision  was absurd or perverse. The court would  not however go into the correctness of the  choice made by the administrator  amongst the various alternatives open to  him.  Nor could the court substitute its  decision to that of the administrator.   This is the Wednesbury (1948 1 KB 223)  test.

(2) The court would not interfere  with the administrator’s decision unless  it was illegal or suffered from procedural  impropriety or was irrational \026 in the  sense that it was in outrageous defiance  of logic or moral standards.  The  possibility of other tests, including  proportionality being brought into  English administrative law in future is  not ruled out.  These are the CCSU (1985  AC 374) principles.   (3)(a) As per Bugdaycay (1987 AC  514), Brind (1991 (1) AC 696) and Smith  (1996 (1) All ER 257) as long as the  Convention is not incorporated into  English law, the English courts merely  exercise a secondary judgment to find out  if the decision-maker could have, on the  material before him, arrived at the  primary judgment in the manner he has  done.

(3)(b) If the Convention is  incorporated in England making available  the principle of proportionality, then the  English courts will render primary  judgment on the validity of the  administrative action and find out if the  restriction is disproportionate or  excessive or is not based upon a fair  balancing of the fundamental freedom  and the need for the restriction  thereupon.

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

The common thread running through in all these  decisions is that the Court should not interfere with the  administrator’s decision unless it was illogical or suffers from  procedural impropriety or was shocking to the conscience of  the Court, in the sense that it was in  defiance of logic or  moral standards.  In view of what has been stated in the  Wednesbury’s case (supra) the Court would not go into the  correctness of the choice made by the administrator open to  him and the Court should not  substitute its decision to that  of the administrator. The scope of judicial review is limited to  the deficiency in decision-making process and not the  decision.           According to Wade, Administrative Law (9th Edition) is the  law relating to the control of powers of the executive authorities.  To consider why such a law became necessary, we have to  consider its historical background.          Up to the 19th century the functions of the State in  England were confined to (i) defence of the country from foreign  invasion, and (ii) maintenance of law and order within the  country.          This vast expansion in the State functions resulted in large  number of legislations and also for wide delegation of State  functions by Parliament to executive authorities, so also was  there a need to create a body of legal principles to control and to  check misuse of these new powers conferred on the State  authorities in this new situation in the public interest. Thus,  emerged Administrative Law. Maitland pointed out in his  Constitutional History:          "Year by year the subordinate  Government of England is becoming more  and more important. We are becoming a  much governed nation, governed by all  manner of councils and boards and  officers, central and local, high and low,  exercising the powers which have been  committed to them by modern statutes."  

       But in the early 20th century following the tradition of  Dicey’s classic exposition in his: The Law of the Constitution,  there was a spate of attacks on parliamentary delegation  culminating in the book New Despotism by the then Chief  Justice of England, Lord Hewart published in 1929. In  response, the British Government in 1932 set up a committee  called the Committee on Ministerial Powers headed by Lord  Donoughmore, to examine these complaints and criticisms.  However, the Donoughmore Committee rejected the argument of  Lord Hewart and accepted the reality that a modern State  cannot function without delegation of vast powers to the

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executive authorities, though there must be some control on  them.          In R. v. Lancashire CC, ex p Huddleston [1986 (2) All ER  941 (CA)], it was said about Administrative Law that it  "has created a new relationship between the  courts and those who derive their authority  from the public law, one of partnership based  on a common aim, namely, the maintenance of  the highest standards of public  administration".          In Liversidge v. Anderson (1941 (3) All  E.R. 338 (HL) the case related to the Defence  (General) Regulations, 1939 which provided:  "If the Secretary of State has reasonable  cause to believe any person to be of  hostile origin or association he may make  an order against that person directing  that he be detained."          The detenu Liversidge challenged the detention order  passed against him by the Secretary of State. The majority of  the House of Lords, except Lord Atkin, held that the Court  could not interfere because the Secretary of State had  mentioned in his order that he had reasonable cause to believe  that Liversidge was a person of hostile origin or association.  Liversidge was delivered during the Second World War when the  executive authority had unbridled powers to detain a person  without even disclosing to the Court on what basis the  Secretary had reached to his belief. However, subsequently, the  British courts accepted Lord Atkin’s dissenting view that there  must be some relevant material on the basis of which the  satisfaction of the Secretary of State could be formed. Also, the  discretion must be exercised keeping in view the purpose for  which it was conferred and the object sought to be achieved,  and must be exercised within the four corners of the statute  (See: Clariant International Ltd. and Another v. Securities and  Exchange Board of India (2004(8) SCC 524)          Sometimes a power is coupled with a duty.  Thus, a  limited judicial review against administrative action is always  available to the Courts. Even after elaboration in Bommai’s case  (supra) the scope for judicial review in respect of Governors’  action cannot be put on the same pedestal as that of other  administrative orders. As observed in Para 376 of judgment in  Bommai’s case (supra) the scope of judicial review would  depend upon facts of the given case. There may be cases which  do not admit of judicial prognosis. The principles which are  applicable when an administrative action is challenged cannot  be applied stricto sensu to challenges made in respect of  proclamation under Article 356. However, in view of what is  observed explicitly in Bommai’s case (supra), the proclamation  under Article 356(1) is not legislative in character.             A person entrusted with discretion must, so to speak,  direct himself properly in law. He must call his attention to  matters which he is bound to consider. He must exclude from  his consideration matters which are irrelevant to what he has to  consider. If he does not obey those rules he may truly be said to  be acting unreasonably. Similarly, there may be something so  absurd that no sensible person could ever dream that it lay  within the powers of the authority.          It is an unwritten rule of the law, constitutional and  administrative, that whenever a decision-making function is  entrusted to the subjective satisfaction of a statutory  functionary, there is an implicit obligation to apply his mind to  pertinent and proximate matters only, eschewing the irrelevant  and the remote. (See: Smt. Shalini Soni and Ors. v. Union of  India and others 1980 (4) SCC 544).

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       The Wednesbury principle is often misunderstood to mean  that any administrative decision which is regarded by the Court  to be unreasonable must be struck down. The correct  understanding of the Wednesbury principle is that a decision  will be said to be unreasonable in the Wednesbury sense if (i) it  is based on wholly irrelevant material or wholly irrelevant  consideration, (ii) it has ignored a very relevant material which  it should have taken into consideration, or (iii) it is so absurd  that no sensible person could ever have reached to it.          As observed by Lord Diplock in CCSU’s case (supra) a  decision will be said to suffer from Wednesbury  unreasonableness if it is "so outrageous in its defiance of logic  or of accepted moral standards that no sensible person who had  applied his mind to the question to be decided could have  arrived at it".          A Constitution is a unique legal document. It enshrines a  special kind of norm and stands at the top of normative  pyramid.  Difficult to amend, it is designed to direct human  behavior for years to come. It shapes the appearance of the  State and its aspirations throughout history. It determines the  State’s fundamental political views.  It lays the foundation for  its social values. It determines its commitments and  orientations.  It reflects the events of the past.  It lays the  foundation for the present.  It determines how the future will  look.  It is philosophy, politics, society, and law all in one.   Performance of all these tasks by a Constitution requires a  balance of its subjective and objective elements, because "it is  a constitution we are expounding." As Chief Justice Dickson of  the Supreme Court of Canada noted: "The task of expounding a constitution is  crucially different from that of construing a  statute.  A statute defines present rights and  obligations.  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 it framers. The judiciary is the  guardian of the constitution and must, in  interpreting its provisions, bear these  considerations in mind."

       The political question doctrine, in particular, remits  entire areas of public life to Congress and the President, on  the grounds that the Constitution assigns responsibility for  these areas to the other branches, or that their resolution will  involve discretionary, polycentric decisions that lack discrete  criteria for adjudication and thus are better handled by the  more democratic branches.  By foreclosing judicial review,  even regarding the minimal rationality of the political  branches’ discretionary choices, the doctrine denies federal  judges a role in "giving proper meaning to our public value" in  important substantive fields. (Quoted from an Article in  Harvard Law Review).         Democratic Theory is based on a notion of human  dignity: as beings worthy of respect because of their very  nature, adults must enjoy a large degree of autonomy, a status  principally attainable in the modern world by being able to

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share in the Governance of their community.  Because direct  rule is not feasible for the mass of citizens, most people can  share in self government only by delegating authority to freely  chosen representatives.  Thus Justice Hugo L. Black  expressed a critical tenet of democratic theory when he wrote:  "No right is more precious in a free country than that of having  a voice in the election of those who make the laws under  which we...must live."         For democratic theory, what makes governmental  decisions morally binding is process: the people’s freely  choosing representatives, those representatives’ debating and  enacting policy and later standing for re-election, and  administrators’ enforcing that policy.  Democratic theory,  therefore, tends to embrace both positivism and moral  relativism.         Whereas democratic theory turns to moral relativism,  constitutionalism turns to moral realism. It presumes that  "out there" lurk discoverable standards to judge whether  public policies infringe on human dignity.  The legitimacy of a  policy depends not simply on the authenticity of decision  makers’ credentials but also on substantive criteria.  Even  with the enthusiastic urging of a massive majority whose  representatives have meticulously observed proper processes,  government may not trample on fundamental rights.  For  constitutionalists, political morality cannot be weighed on a  scale in which "opinion is an omnipotence," only against the  moral criterion of sacred, individual rights.  They agree with  Jafferson: "An elective despotism was not the government we  fought for......" (From Constitutions, Constitutionalism, and  Democracy by Walter F. Murphy).      Allegation of mala-fides without any supportable basis is  the last feeble attempt of a losing litigant, otherwise it will  create a smokescreen on the scope of judicial review. This is a  pivotal issue around which the fate of this case revolves. As  was noted in A.K. Kaul’s case (supra) the satisfaction of the  President is justiciable.  It would be open to challenge on the  ground of mala fides or being based wholly on extraneous or  irrelevant grounds. The sufficiency or the correctness of the  factual position indicated in the report is not open to judicial  review. The truth or correctness of the materials cannot be  questioned by the Court nor would it go into the adequacy of  the material and it would also not substitute its opinion for  that of the President. Interference is called for only when there  is clear case of abuse of power or what is some times called  fraud on power. The Court will not lightly presume abuse or  misuse of power and will make allowance for the fact that the  decision making authority is the best judge of the situation. If  the Governor would have formed his opinion for dissolution  with the sole objective of preventing somebody from staking a  claim it would clearly be extraneous and irrational. The  question whether such person would be in a position to form a  stable government is essentially the subjective opinion of the  Governor; of course to be based on objective materials. The  basic issue therefore is did the Governor act on extraneous  and irrelevant materials for coming to the conclusion that  there was no possibility of stable government.  

       According to the petitioners, the question whether there  was any allurement or horse trading (an expression frequently  used in such cases) or allurement of any kind is not a matter  which can be considered by the Governor. The scope of  judicial review of Governor’s decision does not and  cannot  stand on the same footing as that of any other administrative  decision. In almost all legal inquiries intention as

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distinguished from motive is the all important factor and in  common parlance a malicious act stands equated with an  intentional act without just cause or excuse. Whereas fairness  is synonymous with reasonableness bias stand included  within the attributes and broader purview of the word "malice"  which in common acceptation implies "spite" or "ill will".  Mere  general statements will not be sufficient for the purpose of  indication of ill will. There must be cogent evidence available  on record to come to a conclusion as to whether in fact there  was bias or mala fide involved which resulted in the  miscarriage of justice. The tests of real likelihood and  reasonable suspicion are really inconsistent with each other.  (See S. Parthasarthi v. State of A.P. (1974 (3) SCC 459).  The  word ’bias’ is to denote a departure from the standing of even  handed justice. (See: Franklin vs. Minister of Town and  Country Planning (1947 2 All ER 289 (HL).                  In   State of Punjab v. V.K. Khanna and Ors. (2001 (2)  SCC 330), it was observed as follows:  "Incidentally, Lord Thankerton in Franklin v.  Minister of Town and Country Planning (1948  AC 87 : (1947) 2 All ER 289 (HL) opined that  the word "bias" is to denote a departure from  the standing of even-handed justice. Kumaon  Mandal Vikas Nigam Ltd. v. Girja Shankar  case ((2001) 1 SCC 182) further noted the  different note sounded by the English Courts  in the manner following : (SCC pp.199-201,  paras 30-34) "30. Recently however, the English courts  have sounded a different note, though  may not be substantial but the automatic  disqualification theory rule stands to  some extent diluted. The affirmation of  this dilution however is dependent upon  the facts and circumstances of the matter  in issue. The House of Lords in the case  of R. v. Bow Street Metropolitan  Stipendiary Magistrate, ex p Pinochet  Ugarte (No. 2) ((2000) 1 AC 119) observed:   ’... In civil litigation the matters in  issue will normally have an  economic impact; therefore a  Judge is automatically disqualified  if he stands to make a financial  gain as a consequence of his own  decision of the case. But if, as in  the present case, the matter at  issue does not relate to money or  economic advantage but is  concerned with the promotion of  the cause, the rationale  disqualifying a Judge applies just  as much if the Judge’s decision  will lead to the promotion of a  cause in which the Judge is  involved together with one of the  parties.’  31. Lord Brown-Wilkinson at p. 136 of the  report stated :  ’It is important not to overstate what  is being decided. It was suggested in  argument that a decision setting  aside the order of 25-11-1998 would  lead to a position where Judges

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would be unable to sit on cases  involving charities in whose work  they are involved. It is suggested  that, because of such involvement, a  Judge would be disqualified. That is  not correct. The facts of this present  case are exceptional. The critical  elements are (1) that A.I. was a  party to the appeal; (2) that A.I. was  joined in order to argue for a  particular result; (3) the Judge was  a director of a charity closely allied  to A.I. and sharing, in this respect,  A.I.’s objects. Only in cases where a  Judge is taking an active role as  trustee or director of a charity which  is closely allied to and acting with a  party to the litigation should a  Judge normally be concerned either  to recuse himself or disclose the  position to the parties. However,  there may well be other exceptional  cases in which the Judge would be  well advised to disclose a possible  interest.’  32. Lord Hutton also in Pinochet case  ((2000) 1 AC 119) observed :  ’There could be cases where the  interest of the Judge in the subject- matter of the proceedings arising from  his strong commitment to some cause  or belief or his association with a  person or body involved in the  proceedings could shake public  confidence in the administration of  justice as much as a shareholding  (which might be small) in a public  company involved in the litigation.’  33. Incidentally in Locabail [Locabail (U.K.)  Ltd. v. Bayfield Properties Ltd. (2000 QB  451)] the Court of Appeal upon a detail  analysis of the oft-cited decision in R. v.  Gough (1993 AC 646) together with the  Dimes case (Dimes v. Grand Junction  Canal, (1853) 3 HL Cas 759 : 10 ER 301),  Pinochet case ((2000) 1 AC 119), Australian  High Court’s decision in the case of J.R.L.,  ex p C.J.L., Re ((1986) 161 CLR 342) as also  the Federal Court in Ebner, Re ((1999) 161  ALR 557) and on the decision of the  Constitutional Court of South Africa in  President of the Republic of South Africa v.  South African Rugby Football Union ((1999)  4 SA 147) stated that it would be rather  dangerous and futile to attempt to define or  list the factors which may or may not give  rise to a real danger of bias. The Court of  Appeal continued to the effect that  everything will depend upon facts which  may include the nature of the issue to be  decided. It further observed : ’By contrast, a real danger of bias  might well be thought to arise if there  were personal friendship or animosity  between the Judge and any member of

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the public involved in the case; or if  the Judge were closely acquainted with  any member of the public involved in  the case, particularly if the credibility  of that individual could be significant  in the decision of the case; or if, in a  case where the credibility of any  individual were an issue to be decided  by the Judge, he had in a previous  case rejected the evidence of that  person in such outspoken terms as to  throw doubt on his ability to approach  such person’s evidence with an open  mind on any later occasion; or if on  any question at issue in the  proceedings before him the Judge had  expressed views, particularly in the  course of the hearing, in such extreme  and unbalanced terms as to throw  doubt on his ability to try the issue  with an objective judicial mind (Vakuta  v. Kelly ((1989) 167 CLR 568)); or if, for  any other reason, there were real  ground for doubting the ability of the  Judge to ignore extraneous  considerations, prejudices and  predilections and bring an objective  judgment to bear on the issues before  him. The mere fact that a Judge,  earlier in the same case or in a  previous case, had commented  adversely on a party-witness, or found  the evidence of a party or witness to be  unreliable, would not without more  found a sustainable  objection. In most  cases, we think, the answer, one way  or the other, will be obvious. But if in  any case there is real ground for  doubt, that doubt should be resolved  in favour of recusal. We repeat: every  application must be decided on the  facts and circumstances of the  individual case. The greater the  passage of time between the event  relied on as showing a danger of bias  and the case in which the objection is  raised, the weaker (other things being  equal) the objection will be.’  34. The Court of Appeal judgment in  Locabail (200 QB 451) though apparently as  noticed above sounded a different note but  in fact, in more occasions than one in the  judgment itself, it has been clarified that  conceptually the issue of bias ought to be  decided on the facts and circumstances of  the individual case - a slight shift  undoubtedly from the original thinking  pertaining to the concept of bias to the effect  that a mere apprehension of bias could  otherwise be sufficient."  

       In Bommai’s case (supra) though all the learned Judges  held that exercise of power under Article 356(1) of the  Constitution is subject to judicial review but in the matter of  justiciability of the satisfaction of the President, the majority

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view was to the effect that the principles evolved in Barium  Chemicals Ltd. and Anr. v. Company Law Board and Ors. (AIR  1967 SC 295) for adjudging the validity of an action based on  the subjective satisfaction of the authority created by the  Statute do not in their entirety apply to the exercise of  constitutional power under Article 356 of the Constitution.  Mala fide intent or biased attitude cannot to be put on a strait- jacket formula but depend upon facts and circumstances of  each case and in that perspective judicial precedent would not  be of much assistance. It is important to note that in  Bommai’s case (supra) this Court was concerned with cases of  dissolution of Assemblies when cabinets were in office. Though  at first flush, it appears that the factual  background in  Karnataka’s case (supra) dealt with in Bommai’s case (supra)  has lot of similarity with the factual position in hand, yet on a  deeper analysis the position does not appear to be so. The  factual position was peculiar. In the instant case, the  Governor’s report reveals that the source of his opinion was  intelligence reports, media reports and discussions with  functionaries of various parties. A plea was raised by the  petitioners that it has not been indicated as to functionaries of  which party the Governor had discussed with. That cannot be  a ground to hold the report to be vulnerable.  As was noted in  Bommai’s case (supra) the sufficiency or correctness of factual  aspects cannot be dealt with. Therefore, as noted above, the  only question which needs to be decided is whether the  conclusions of the Governor that if foul means are adopted to  cobble the majority it would be against the spirit of democracy.  Again the question would be if means are foul can the  Governor ignore it and can it be said that his view is  extraneous or irrational.          In the report dated 27.4.2005 to which reference has  been made in the report dated 21.5.2005 reference is made to  allurements like money, caste, posts etc. and this has been  termed as a disturbing feature. In both the reports, the  opinion of the Governor is that if these attempts are allowed to  continue, it would amount to tampering with constitutional  provisions. Stand of the petitioners is that even if it is accepted  to be correct, there is no constitutional provision empowering  the Governor to make the same basis for not allowing a claim  to be staked. This argument does not appear to be totally  sound.  

       In Kihoto Hollohan v. Zachillhu and Ors. (1992 Supp (2)  SCC 651) the menace of defection was noted with concern and  the validity of the Tenth Schedule was upheld. While  upholding the validity of the provision this Court in no  uncertain terms deprecated the change of loyalties to parties  and the craze for power. The Statement of Objects and  Reasons appended to the Constitution (52nd Amendment) Act,  1985 refer to the evil of political defection which has been the  matter of national concern. It was noted that if it is not  combated it is likely to undermine the very foundation of our  democracy and the principles which sustain it. It was noted as  follows: "26.    In expounding the processes of the  fundamental law, the Constitution must be  treated as a logical whole. Westel Woodbury  Willoughby in The Constitutional Law of the  United States (2nd Edn. Vol.1 p.65) states:

       "The Constitution is a logical  whole, each provision of which is an  integral part thereof, and it is,  therefore, logically proper, and indeed

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imperative, to construe one part in  the light of the provisions of the other  parts."

27.     A constitutional document outlines only  broad and general principles meant to endure  and be capable of flexible application to  changing circumstances \026 a distinction which  differentiates  a statute from a Charter under  which all statutes are made. Cooley on  Constitutional Limitations (8th edn. Vol.1,  p.129) says:

       "Upon the adoption of an  amendment to a Constitution, the  amendment becomes a part thereof;  as much so as it had been originally  incorporated in the Constitution; and  it is to be construed accordingly."   

       Again, in paragraph 41, the position was illuminatingly  stated by Mr. Justice M.N. Venkatachaliah (as His Lordship  then was). A right to elect, fundamental though it is to  democracy is anomalously enough neither a fundamental right  nor a common law right. It is pure and simple, a statutory  right. So it is the right to be elected. So is the right to dispute  an election. Outside of statute, there is no right to elect, no  right to be elected and no right to dispute an election.  Statutory creations they are and therefore subject to statutory  limitation. (See Jyoti Basu and Ors. v. Debi Ghosal and Ors.  (1982 (1) SCC 691).

       Democracy as noted above is the basic feature of the  Constitution. In paragraphs 44 and 49 of Kihoto’s case (supra)  it was noted as follows: "44.            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 f  sustenance \026 nay, indeed, its very survival.  Intra party debates are of course a different  thing. But a public image of disparate stands  by Members of the same political party is not  looked upon, in political tradition, as a  desirable state of things. Griffith and Ryle on  Parliament Functions, Practice and Procedure  (1989 Edn., p.119) says;

       "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

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majority decisions in the party even  when they disagree. It is  understandable therefore that a  Member who rejects the party whip  even on a single occasion will attract  attention and more criticism than  sympathy. To abstain from voting  when required by party to vote is to  suggest a degree of unreliability. To  vote against party is disloyalty. To  join with others in abstention or  voting with the other side smacks of  conspiracy.

49. Indeed, in a sense an anti-defection law is  a statutory variant of its moral principle and  justification underlying the power of recall.  What might justify a provision for recall would  justify a provision for dis-qualification for  defection. Unprincipled defection is a political  and social evil. It is perceived as such by the  legislature. People, apparently, have grown  distrustful of the emotive political exultations  that such floor-crossing belong to the sacred  area of freedom of conscience, or of the right to  dissent or of intellectual freedom. The anti- defection law seeks to recognize the practical  need to place the proprieties of political and  personal conduct \026 whose awkward erosion  and grotesque manifestations have been the  bane of the times \026above certain theoretical  assumptions which in reality have fallen into a  morass of personal and political degradation.  We should, we think, defer to this legislative  wisdom and perception. The choices in  constitutional adjudications quite clearly  indicate the need for such deference. "Let the  end be legitimate, let it be within the scope of  the Constitution and all means which are  appropriate, which are adopted to that end..."  are constitutional."             

       Therefore, the well recognised position in law is that  purity in the electorate process and the conduct of the elected  representative cannot be isolated from the constitutional  requirements. "Democracy" and "Free and Fair Election" are  inseparable twins.  There is almost an inseverable umbilical  cord joining them.  In a democracy the little man- voter has  overwhelming importance and cannot be hijacked from the  course of free and fair elections. His freedom to elect a  candidate of his choice is the foundation of a free and fair  election.  But after getting elected, if the elected candidate  deviates from the course of fairness and purity and becomes a  "Purchasable commodity" he not only betrays the electorate,  but also pollutes the pure stream of democracy.

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

As noted by this Court in People’s Union for Civil  Liberties (PUCL) and Anr. v. Union of India and Anr. (2003 (4)  SCC 399) a well informed voter is the foundation of democratic  structure. If that be so, can it be said that the Governor will

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remain mute and silent spectator when the elected  representatives act in a manner contrary to the expectations of  the voters who had voted for them. In paragraph 94 of it was  noted as follows:

"94.            The trite saying that ’democracy is  for the people, of the people and by the people’  has to be remembered for ever. In a democratic  republic, it is the will of the people that is  paramount and becomes the basis of the  authority of the Government. The will is  expressed in periodic elections based on  universal adult suffrage held by means of  secret ballot. It is through the ballot that the  voter expresses his choice or preference for a  candidate.  "Voting is formal expression of will  or opinion by the person entitled to exercise  the right on the subject or issue", as observed  by this Court in Lily Thomas Vs. Speaker, Lok  Sabha [(1993) 4 SCC 234] quoting from Black’s  Law Dictionary. The citizens of the country are  enabled to take part in the Government  through their chosen representatives. In a  Parliamentary democracy like ours, the  Government of the day is responsible to the  people through their elected representatives.  The elected representative acts or is  supposed  to act as a live link between the people and the  Government. The peoples’  representatives fill  the role of law-makers and custodians of  Government. People look to them for  ventilation and redressal of their grievances.  They are the focal point of the will and  authority of the people at large. The moment  they put in papers for contesting the election,  they are subjected to public gaze and public  scrutiny. The character, strength and  weakness of the candidate is widely debated.  Nothing is therefore more important for  sustenance of democratic polity than the voter  making an intelligent and rational choice of his  or her representative. For this, the voter  should be in a position to effectively formulate  his/her opinion and to ultimately express that  opinion through ballot by casting the vote. The  concomitant of the right to vote which is the  basic postulate of democracy is thus  two fold:  first, formulation of opinion about the  candidates and second, the expression of  choice by casting the vote in favour of the  preferred candidate at the polling booth. The  first step is complementary to the other. Many  a voter will be handicapped in formulating the  opinion and making a proper choice of the  candidate unless the essential information  regarding the candidate is available. The   voter/citizen should have at least the basic  information about the contesting candidate,  such as his involvement in serious criminal  offences. To scuttle the flow of information- relevant and essential would affect the  electorate’s ability to evaluate the candidate.  Not only that, the information relating to the  candidates will pave the way for public debate  on the merits and demerits of the candidates.

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When once there is public disclosure of the  relevant details concerning the candidates, the  Press, as a  media of mass communication and  voluntary organizations vigilant enough to  channel the public opinion on right lines will  be able to disseminate the information  and  thereby enlighten and alert the public at large  regarding the adverse antecedents of a  candidate. It will go a long way in promoting  the freedom of speech and expression. That  goal would be accomplished in two ways. It will  help the voter who is interested in seeking and  receiving information about the candidate to  form an opinion according to his or her  conscience and best of judgment and secondly  it will facilitate the Press and voluntary  organizations in imparting information on a  matter of vital public concern. An informed  voter-whether he acquires information directly  by keeping track of disclosures or through the  Press and other channels of communication,  will be able to fulfil his responsibility in a more  satisfactory manner. An enlightened and  informed citizenry would undoubtedly enhance  democratic values.      Thus, the availability of  proper and relevant information about  the  candidate fosters and promotes the freedom of  speech and expression both from the point of  view of imparting and receiving the  information. In turn, it would lead to the  preservation of the integrity of electoral  process which is so essential for the growth of  democracy. Though I do not go to the extent of  remarking that the election will be a farce if  the candidates’ antecedents are not known to  the voters, I would say that such information  will certainly be conducive to fairness in  election process and integrity in public life.  The disclosure of information would facilitate  and augment the freedom of expression both  from the point of view of the voter as well as  the media through which the information is  publicized and openly debated."                           There is no place for hypocrisy in democracy. The  Governor’s perception about his power may be erroneous, but  it is certainly not extraneous or irrational. It has been rightly  contended by learned counsel for the Union of India that apart  of Governor’s role to ensure that the Government is stable, the  case may not be covered by the Tenth Schedule and it cannot  be said that by avoiding the Tenth Schedule by illegitimate or  tainted means a majority if gathered leaves the Governor  helpless, and a silent onlooker to the tampering of mandate by  dishonest means. It is not and cannot be said that by  preventing a claim to be staked the Governor does not act  irrationally or on extraneous premises. Had the Governor  acted with the object of preventing anyone from staking a  claim his action would have been vulnerable. The conduct of  the Governor may be suspicious and may be so in the present  case, but if his opinion about the adoption of tainted means is  supportable by tested materials, certainly it cannot be  extraneous or irrational. It would all depend upon the facts of  each case. If the Governor in a particular case without tested  or unimpeachable material merely makes an observation that  tainted means are being adopted, the same would attract

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judicial review. But in the instant case there is some material  on which the Governor has acted. This ultimately is a case of  subjective satisfaction based on objective materials. On the  factual background one thing is very clear i.e. no claim was  staked and on the contrary the materials on record show what  was being projected. It is also clear from a bare perusal of the  documents which the petitioners have themselves enclosed to  the writ petitions that authenticity of the documents is  suspect.  

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

       We may hasten to add that similar perceptions by  Governors may lead to chaotic conditions. There may be  human errors. Therefore, the concerned Governor has to act  carefully with care and caution and can draw his inference  from tested and unimpeachable material; otherwise not.

In B.R. Kapur v. State of Tamil Nadu and Anr. (AIR 2001  SC 3435) this Court considered the role of the Governor in  appointing the Chief Minister. It was held that the Governor  can exercise his discretion and can decline to make the  appointment when the person chosen by the majority party is  not qualified to be member of Legislature. It was observed that  in such a case the Constitution prevails over the will of the  people.  It was further observed that accepting submissions as  were made in that case that the Governor exercising powers  under Article 164(1) read with (4) was obliged to appoint as  Chief Minister whosoever the majority party in the Legislature  nominated, regardless of whether or not the person nominated  was qualified to be a member of the legislature under Article  173 or was disqualified in that behalf under Article 191,and  the only manner in which a Chief Minister who was not  qualified or who was disqualified could be removed was by a  vote of no-confidence in the legislature or by the electorate at  the next elections and that the Governor was so obliged even  when the person recommended was, to the Governor’s  knowledge, a non-citizen, under age, a lunatic or an  undischarged insolvent, and the only way in which a non- citizen, or under age or lunatic or insolvent Chief Minister  could be removed was by a vote of no-confidence in the  legislature or at the next election, is to invite disaster.

       The situation cannot be different when the Chief Minister  nominated was to head a Ministry which had its foundation on  taint and the majority is cobbled by unethical means or  corrupt means. As was observed in B.R. Kapur’s case (supra)

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in such an event the constitutional purity has to be  maintained and the Constitution has to prevail over the will of  the people.  

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

       It is relevant to take note of what the Sarkaria Committee  had said about the role of Governors: 1.      INTRODUCTION 4.1.01  The role of the Governor has  emerged as one of the key issues in Union  State relations.  The Indian political scene was  dominated by a single party for a number of  years after Independence. Problems which  arose in the working of Union-State relations  were mostly matters for adjustment in the  intra-party forum and the Governor had very  little occasion for using his discretionary  powers.  The institution of Governor remained  largely latent. Events in Kerala in 1959 when  President’s rule was imposed, brought into  some prominence the role of the Governor, but  thereafter it did not attract much attention for  some years.  A major change occurred after the  Fourth General Elections in 1967.  In a  number of States, the party in power was  different from that in the Union.  The  subsequent decades saw the fragmentation of  political parties and emergence of new regional  parties frequent, sometimes unpredictable  realignments of political parties and groups  took place for the purpose of forming  governments.  These developments gave rise to  chronic instability in several State  Governments.  As a consequence, the  Governors were called upon to exercise their  discretionary powers more frequently.  The  manner in which they exercised these  functions has had a direct impact on Union- State relations. Points of friction between the  Union and the States began to multiply.

4.1.02  The role of the Governor has come  in for attack on the ground that some  Governors have failed to display the qualities  of impartiality and sagacity expected of them.  It has been alleged that the Governors have  not acted with necessary objectivity either in  the manner of exercise of their discretion or in  their role as a vital link between the Union and  the States. Many have traced this mainly to  the fact that the Governor is appointed by, and  holds office during the pleasure of, the  President, (in effect, the Union Council of  Ministers). The part played by some Governors,  particularly in recommending President’s rule  and in reserving States Bills for the  consideration of the President, has evoked  strong resentment. Frequent removals and  transfers of Governors before the end of their  tenure has lowered the prestige of this office.  

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Criticism has also been levelled that the Union  Government utilizes the Governor’s for its own  political ends.  Many Governors, looking  forward to further office under the Union or  active role in politics after their tenure, came  to regard themselves as agents of the Union.                                 (Underlined for emphasis) 2.      Historical background:

4.2.01  The Government of India Act, 1858  transferred the responsibility for  administration of India from the East India  Company to the British Crown. The Governor  then became an agent of the Crown,  functioning under the general supervision of  the Governor-General. The Montagu- Chelmsford Reforms (1919) ushered in  responsible Government, albeit in a  rudimentary form. However, the Governor  continued to be the pivot of the Provincial  administration.

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

4.2.03  In 1937 when the Government of  India Act, 1935 came into force, the Congress  party commanded a majority in six provincial  legislatures. They foresaw certain difficulties in  functioning under the new system which  expected Ministers to accept, without demur,  the censure implied, if the Governor exercised  his individual judgment for the discharge of  his special responsibilities.  The Congress  Party agreed to assume office in these  Provinces only after it received an assurance  from the Viceroy that the Governors would not  provoke a conflict with the elected  Government.  

4.2.04  Independence inevitably brought  about a change in the role of the Governor.  Until the Constitution came into force, the  provisions of the Government of India Act,  1935 as adapted by the India (Provisional  Constitution) Order, 1947 were applicable.  This Order omitted the expressions ’in his  discretion’, ’acting in his discretion’ and  ’exercising his individual judgment’, wherever  they occurred in the Act. Whereas, earlier,  certain functions were to be exercised by the  Governor either in his discretion or in his  individual judgment, the Adaptation Order

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made it incumbent on the Governor to exercise  these as well as all other functions only on the  advice of his Council of Ministers.

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

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

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

       Xx              xx              xx              xx

4.3.09  The Constitution contains certain  provisions expressly providing for the Governor  to Act:-

       (A)     in his discretion; or         (B)     in his individual judgment; or         (C)     independently of the State

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Council of Ministers; vis. (a)(i)  Governors of all the  States-Reservation for the  consideration of the President of  any Bill which, in the opinion of  the Governor would, if it became  law, so derogate from the powers  of the High Court as to endanger  the position which that Court is  by the Constitution designed to  fill (Second Proviso to Article   200).

(ii)    The Governors of Arunachal  Pradesh, Assam, Meghalaya,  Mizoram, Nagaland, Sikkim and  Tripura have been entrusted with  some specific functions to be  exercised by them in their  discretion (vide Articles 371A,  371F and 371H and paragraph 9  of the Sixth Schedule). These  have been dealt with in detail in  Section 14 of this Chapter              (b)     The Governors of Arunachal Pradesh  and Nagaland have been entrusted with a  special responsibility with respect to law  and order in their respective States. In the  discharge of this responsibility, they are  required to exercise their "individual  judgment" after consulting their Council of  Ministers. This aspect also has been  discussed in Section 14 of this Chapter.

(c) Governors as Administrator of Union  Territory\027Any Governor, on being  appointed by the President as the  administrator of an adjoining Union  Territory, has to exercise his functions as  administrator, independently of the State  Council of Ministers ( Article 239(2). In  fact, as administrator of the Union  Territory, the Governor is in the position of  an agent of the President.

               Xx                      xx              xx 4.4.01  The three important facets of the  Governor’s role arising out of the  Constitutional provisions, are:-

       (a)     as the constitutional head of the  State operating normally under a system of  Parliamentary democracy;

       (b)     as a vital link between the Union  Government and the State Government;  and  

       (C)     As an agent of the Union  Government in a few specific areas during  normal times (e.g. Article  239(2) and in a  number of areas during abnormal  situations (e.g.   article 356(1))

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4.4.02  There is little controversy about )  above. But the manner in which he has  performed the dull role, as envisaged in (a) and  (b) above, has attracted much criticism. The  burden of the complaints against the  behaviour of Governors, in general, is that they  are unable to shed their political inclinations,  predilections and prejudices while dealing with  different political parties within the State. As a  result, sometimes the decisions they take in  their discretion appear as partisan and  intended to promote the interests of the ruling  party in the Union Government, particularly if  the Governor was earlier in active politics or  intends to enter politics at the end of his term.  Such a behaviour, it is said, tends to impair  the system of Parliamentary democracy,  detracts from the autonomy of the States, and  generates strain in Union State relations.   

       In the Report of the "National Commission To Review The  Working Of The Constitution" the role of the Governor has  been dealt with in the following words:

"The powers of the President in the matter of  selection and appointment of Governors should not  be diluted. However, the Governor of a State should  be appointed by the President only after  consultation with the Chief Minister of that State.  Normally the five year term should be adhered to  and removal or transfer should be by following a  similar procedure as for appointment i.e. after  consultation with the Chief Minister of the  concerned State.                                                                    (Para 8.14.2)         In the matter of selection of a Governor, the  following matters mentioned in para 4.16.01 of  Volume I of the Sarkaria Commission Report should  be kept in mind:-         (i)     He should be eminent in some walk of  life.         (ii)    He should be a person outside the State.         (iii)He should be a detached figure and not too  intimately connected with the local politics of the  State; and         (iv)    He should be a person who has not taken  too great a part in politics generally, and  particularly in the recent past.

       In selecting a Governor in accordance with the  above criteria, persons, belonging to the minority  groups continue to be given a chance as hitherto.  (para 8.14.3)         There should be a time-limit-say a period of six  months within which the Governor should take a  decision whether to grant assent or to reserve a Bill  for consideration of the President. If the Bill is  reserved for consideration of the President, there  should be a time-limit, say of three months, within  which the President should take a decision whether  to accord his assent or to direct the Governor to  return it to the State Legislature or to seek the  opinion of the Supreme  Court regarding the  constitutionality of the Act under Article 143.                                                         (Para 8.14.4.)

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8.14.6   Suitable amendment should be made in  the Constitution so that the assent given by the  President should avail for all purposes of relevant  articles of the Constitution.   However, it is  desirable that when a Bill is sent for the President’s  assent, it would be appropriate to draw the  attention of the President  to all the articles of the  Constitution, which refer to the need for the assent  of the President to avoid any doubts in court  proceedings.   8.14.7  A suitable article should be inserted in  the Constitution to the effect that an assent given  by the President to an Act shall not be permitted to  be argued as to whether it was given for one  purpose or another.  When the President gives his  assent to the Bill, it shall be deemed to have been  given for all purposes of the Constitution.   8.14.8  The following proviso may be added to  Article 111 of the Constitution: "Provided that when the President  declares that he assents to the Bill, the  assent shall be deemed to be a general  assent for all purposes of the  Constitution."

Suitable amendment may also be made in Article 200.

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

                                       (Paras 8.18 and 8.19.2)    8.16-Use-Misuse of Article 356

"Since the coming into force of the Constitution on  26th January, 1950, Article 356 and analogous  provisions have been invoked 111 times. According  to a Lok Sabha Secretariat study, on 13 occasions  the analogous provision namely Section 51 of the  Government of Union Territories Act, 1963 was  applied to Union Territories of which only  Pondicherry had a legislative assembly until the  occasion when it was last applied. In the remaining  98 instances the Article was applied 10 times  technically due to the mechanics of the Constitution  in circumstances like re-organisation of the States,  delay in completion of the process of elections, for  revision of proclamation and there being no party  with clear majority at the end of an election. In the  remaining 88 instances a close scrutiny of records  would show that in as many as 54 cases there were  apparent circumstances to warrant invocation of  Article 356. These were instances of large scale  defections leading to reduction of the ruling party  into minority, withdrawal of support of coalition  partners, voluntary resignation by the government  in view of widespread agitations, large scale  militancy, judicial disqualification of some members  of the ruling party causing loss of majority in the  House and there being no alternate party capable of

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forming a Government. About 13 cases of possible  misuse are such in which defections and  dissensions could have been alleged to be result of  political manoeuvre or cases in which floor tests  could have finally proved loss of support but were  not resorted to. In 18 cases common perception is  that of clear misuse. These involved the dismissal of  9 State Governments in April 1977 and an equal  number in February 1980. This analysis shows that  number of cases of imposition of President’s Rule  out of 111, which could be considered as a mis-use  for dealing with political problems or considerations  irrelevant for the purposes in that Article such as  mal-administration in the State are a little over 20.  Clearly in many cases including those arising out of  States Re-organisation it would appear that the  President’s Rule was inevitable. However, in view of  the fact that  Article 356 represents a giant  instrument of constitutional control of one tier of  the constitutional structure over the other raises  strong misapprehensions.

8.17- Sarkaria Commission-      Chapter 6 of the  Sarkaria Commission Report deals with emergency  provisions, namely, Articles 352 to 360. The  Sarkaria Commission has made 12  recommendations; 11 of which are related to  Article 356 while 1 is related to  Article 355 of the  Constitution. Sarkaria Commission also made  specific recommendations for amendment of the  Constitution with a view to protecting the States  from what could be perceived as a politically driven  interference in self-governance of States. The  underlined theme of the recommendations is to  promote a constitutional structure and culture  that promotes co-operative and sustained growth  of federal institutions set down by the  Constitution.

 8.19. Need for conventions-              Xx              xx                      xx              xx               8.19.5- In case of political breakdown, the  Commission recommends that before issuing a  proclamation under Article 356 the concerned State  should be given an opportunity to explain its  position and redress the situation, unless the  situation is such, that following the above course  would not be in the interest of security of State, or  defence of the country, or for other reasons  necessitating urgent action.     8.20. Situation of Political breakdown

       Xx              xx                      xx              xx

8.20.3  The Commission recommends that the  question whether the Ministry in a State has lost  the confidence of the Legislative Assembly or not,  should be decided only on the floor of the Assembly  and nowhere else. If necessary, the Union  Government should take the required steps, to  enable the Legislative Assembly to meet and freely  transact its business. The Governor should not be

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allowed to dismiss the Ministry, so long as it enjoys  the confidence of the House. It is only where a Chief  Minister refuses to resign, after his Ministry is  defeated on a motion of no-confidence, that the  Governor can dismiss the State Government.  In a  situation of political breakdown, the Governor  should explore all possibilities of having a  Government enjoying majority support in the  Assembly. If it is not possible for such a  Government to be installed and if fresh elections  can be held without avoidable delay, he should ask  the outgoing Ministry, (if there is one), to continue  as a caretaker government, provided the Ministry  was defeated solely on a issue, unconnected with  any allegations of maladministration or corruption  and is agreeable to continue. The Governor should  then dissolve the Legislative Assembly, leaving the  resolution of the constitutional crisis to the  electorate.     8.20.4  The problem of political breakdown would  stand largely resolved if the recommendations made  in para 4.20.7 in Chapter 4 in regard to the election  of the leader of the House (Chief Minister) and the  removal of the Government only by a constructive  vote of no-confidence are accepted and  implemented.                                            8.20.5. Normally President’s Rule in a State should  be proclaimed on the basis of Governor’s Report  under article 356(1).  The Governor’s report should  be a "speaking document", containing a precise and  clear statement of all material facts and grounds, on  the basis of which the President may satisfy himself,  as to the existence or otherwise of the situation  contemplated in Article 356.

8.21. Constitutional Amendments     

8.21.1- Article 356 has been amended 10 times  principally by way of amendment of clause 356(4)  and by substitution/omission of proviso to Article  356(5). These were basically procedural changes.  Article  356, as amended by Constitution (44th  Amendment) provides that a resolution with respect  to the continuance in force of a proclamation for  any period beyond one year from the date of issue of  such proclamation shall not be passed by either  House of Parliament unless two conditions are  satisfied, viz:-

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

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

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

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

8.21.4  Whenever a proclamation under Article  356 has been issued and approved by the  Parliament it may become necessary to review the  continuance in force of the proclamation and to  restore the democratic processes earlier than the  expiry of the stipulated period. The Commission are  of the view that this could be secured by  incorporating safeguards corresponding, in  principal, to clauses (7) and (8) of Article 352. The  Commission, therefore, recommends that clauses  (6) and (7) under  Article 356 may be added on the  following lines: "(6) Notwithstanding anything  contained in the foregoing clauses, the President  shall revoke a proclamation issued under clause (1)  or a proclamation varying such proclamation if the  House of the People passes a resolution  disapproving, or, as the case may be, disapproving  the continuance in force of, such proclamation. (7)  Where a notice in writing signed by not less than  one-tenth of the total number of members of the  House of the People has been given, of their  intention to move a resolution for disapproving, or,  as the case may be, for disapproving the  continuance in force of, a proclamation issued  under clause (1) or a proclamation varying such  proclamation:

       (a)     to the Speaker, if the House is in  session; or

       (b)     to the President, if the House is not in  session, a special sitting of the House shall be held  within fourteen days from the date on which such  notice is received by the Speaker, or, as the case  may be, by the President, for the purpose of  considering such resolution."                      8.22- Dissolution of Assembly

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8.22.1- When it is decided to issue a  proclamation under Article 356(1), a matter for  consideration that arises is whether the Legislative  Assembly should also be dissolved or not.  Article  356 does not explicitly provide for dissolution of the  Assembly. One opinion is that if till expiry of two  months from the Presidential Proclamation and on  the approval received from both Houses of  Parliament the Legislative Assembly is not  dissolved, it would give rise to operational  disharmony. Since the executive power of the Union  or State is co-extensive with their legislative powers  respectively, bicameral operations of the legislative  and executive powers, both of the State Legislature  and Parliament in List II of VII Schedule, is an  anathema to the democratic principle and the  constitutional scheme. However, the majority  opinion in the Bommai judgment holds that the  rationale of clause (3) that every proclamation  issued under  Article 356 shall be laid before both  Houses of Parliament and shall cease to operate at  the expiry of two months unless before the  expiration of that period it has been approved by  resolutions passed by both Houses of Parliament, is  to provide a salutary check on the executive power  entrenching parliamentary supremacy over the  executive.

8.22.2  The Commission having considered these  two opinions in the background of repeated  criticism of arbitrary use of  Article 356 by the  executive, is of the view that the check provided  under clause 3 of  Article 356 would be ineffective  by an irreversible decision before Parliament has  had an opportunity to consider it. The power of  dissolution has been inferred by reading sub-clause  (a) of clause I of  Article 356 along with  Article 174  which empowers the Governor to dissolve Legislative  Assembly. Having regard to the overall  constitutional scheme it would be necessary to  secure the exercise of consideration of the  proclamation by the Parliament before the Assembly  is dissolved.  

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

       It would also be appropriate to take note of very  enlightening discussions in the Constituent Assembly which  throw beacon light on the role of Governors, parameters of  powers exercisable under Articles 174 and 356 of the  Constitution. Constituent Assembly met on Ist June, 1949  Article 143 (Amendment Nos. 2155 and 2156 were not moved)    H. V. Kamath (C.P. & Berar: General): Mr. President, Sir,  I move:  "That in clause (1) of Article 143, the words  ’except in so far as he is by or under this

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Constitution required to exercise his functions  or any of them in his discretion’ be deleted."  If this amendment were accepted by the House, this  clause of Article 143 would read thus :-  "There shall be a Council of Ministers with the  Chief Minister at the head to aid and advise  the President in the exercise of his functions."  Sir, it appears from a reading of this clause that the  Government of India Act of 1935 has been copied more or  less blindly without mature consideration. There is no  strong or valid reason for giving the Governor more  authority either in his discretion or otherwise vis-a-vis  his ministers, than has been given to the President in  relation to his ministers. If we turn to Article 61 (1), we  find it reads as follows :-  "There shall be a Council of Ministers with the  Chief Minister at the head to aid and advise  the Governor in the exercise of his functions."  When you, Sir, raised a very important issue, the other  day, Dr. Ambedkar clarified this clause by saying that the  President is bound to accept the advice of his ministers  in the exercise of all of his functions. But here Article   143 vests certain discretionary powers in the Governor,  and to me it seems that even as it was, it was bad  enough, but now after having amended Article 131  regarding election of the Governor and accepted  nominated Governors, it would be wrong in principle and  contrary to the tenets and principles of constitutional  Government, which you are going to build up in this  country. It would be wrong I say, to invest a Governor  with these additional powers, namely, discretionary  powers. I feel that no departure from the principles of  constitutional Government should be favoured except for  reasons of emergency and these discretionary powers  must be done away with. I hope this amendment of mine  will commend itself to the House. I move, Sir.  Prof. K. T. Shah (Bihar: General) : Mr. President, I beg to  move:  "That in clause (1) of Article 143, after the  word ’head a comma be placed and the words  ’who shall be responsible to the Governor and  shall’ be inserted and the word to’ be deleted."  So, that the amended  Article would read.  "(1) There shall be a Council of Ministers with  the Chief Minister at the head who shall be  responsible to the Governor and shall aid and  advise the Governor in the exercise of his  functions ......etc."  Sir, this is a logical consequence of the general principle  of this Draft Constitution, namely, that the Government  is to be upon the collective responsibility of the entire  Cabinet to the legislature. At the same time, in the  Cabinet the Prime Minister or the Chief Minister or by  whatever title he is described would be the Principal  Adviser and I would like to fix the responsibility definitely  by the Constitution on the Chief Minister, the individual  Ministers not being in the same position. Whatever may  be the procedure or convention within the Cabinet itself,  however the decisions of the Cabinet may be taken, so far  as the Governor is concerned, I take it that the  responsibility would be of the Chief Minister who will  advise also about the appointment of his colleagues or  their removal if it should be necessary. It is but in the  fitness of things that he should be made directly  responsible for any advice tendered to the Constitutional

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head of the State, namely, the Governor. As it is, in my  opinion, a clear corollary from the principles we have so  far accepted, I hope there would be no objection to this  amendment.                  (Amendments Nos. 2159 to 2163 were not moved.)  Mr. President: There is no other amendment. The Article  and the amendments are open to discussion.  Shri T. T. Krishnamachari : Mr. President, I am afraid I  will have to oppose the amendment moved by my  honourable Friend Mr. Kamath, only for the reason that  he has not understood the scope of the  clearly and his  amendment arises out of a misapprehension.  Sir, it is no doubt true, that certain words from this   Article may be removed, namely, those which refer to the  exercise by the Governor of his functions where he has to  use his discretion irrespective of the advice tendered by  his Ministers. Actually, I think this is more by way of a  safeguard, because there are specific provisions in this  Draft Constitution which occur subsequently where the  Governor is empowered to act in his discretion  irrespective of the advice tendered by his Council of  Ministers. There are two ways of formulating the idea  underlying it. One is to make a mention of this exception  in this Article 143 and enumerating the specific power of  the Governor where he can exercise his discretion in the  s that occur subsequently, or to leave out any mention of  this power here and only state is in the appropriate . The  former method has been followed. Here the general  proposition is stated that the Governor has normally to  act on the advice of his Ministers except in so far as the  exercise of his discretions covered by those  in the  Constitution in which he is specifically empowered to act  in his discretion. So long as there are Articles occurring  subsequently in the Constitution where he is asked to act  in his discretion, which completely cover all cases of  departure from the normal practice to which I see my  honourable Friend Mr. Kamath has no objection, I may  refer to Article 188, I see no harm in the provision in this  Article being as it is. It happens that this House decides  that in all the subsequent Articles, the discretionary  power should not be there, as it may conceivably do, this  particular provision will be of no use and will fall into  desuetude. The point that my honourable Friend is trying  to make, while he concedes that the discretionary power  of the Governor can be given under  Article 188, seems to  be pointless. If it is to be given in  Article 188, there is no  harm in the mention of it remaining here. No harm can  arise by specific mention of this exception of Article 143.  Therefore, the serious objection that Mr. Kamath finds for  mention of this exception is pointless. I therefore think  that the Article had better be passed without any  amendment. If it is necessary for the House either to limit  the discretionary power of the Governor or completely do  away with it, it could be done in the Articles that occur  subsequently where specific mention is made without  which this power that is mentioned here cannot at all be  exercised. That is the point I would like to draw the   attention of the House to and I think the  Article had   better be passed as it is.  Dr. P. S. Deshmukh (C. P. & Berar: General): Mr.  President, Mr. T. T. Krishnamachari has clarified the  position with regard to this exception which has been  added to clause (1) of   Article 143. If the Governor is, in  fact, going to have a discretionary power, then it is  necessary that this clause which Mr. Kamath seeks to

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omit must remain.  Sir, Besides this, I do not know if the Drafting Committee  has deliberately omitted or they are going to provide it at  a later stage, and I would like to ask Dr. Ambedkar  whether it is not necessary to provide for the Governor to  preside at the meetings of the Council of Ministers. I do  not find any provision here to this effect. Since this  Article 143 is a mere reproduction of section 50 of the  Government of India Act, 1935, where this provision does  exist that the Governor in his discretion may preside at  the meetings of the Council of Minister, I think this  power is very necessary. Otherwise, the Ministers may  exclude the Governor from any meetings whatever and  this power unless specifically provided for, would not be  available to the Governor. I would like to draw the  attention of the members of the Drafting Committee to  this and to see if it is possible either to accept an  amendment to Article 143 by leaving it over or by making  this provision in some other part. I think this power of  the Governor to preside over the meetings of the Cabinet  is an essential one and ought to be provided for.  Shri Brajeshwar Prasad: Mr. President, Sir, the  Article  provides--  "That there shall be a Council of Minister with  the Chief Minister at the head to aid and  advise the Governor in the exercise of his  functions".  Sir, I am not a constitutional lawyer but I feel that by the  Provisions of this Article the Governor is not bound to act  according to the advice tendered to him by his Council of  Ministers. It only means that the Ministers have the right  to tender advice to Governor. The Governor is quite free  to accept or to reject the advice so tendered. In another  sphere of administration the Governor can act in the  exercise of his functions in his discretion. In this sphere  the Ministry has not got the power to tender any advice.  Of course it is left open to the Governor to seed the  advice of the Ministers even in this sphere.  I feel that we have not taken into account the present  facts of the situation. We have tried to copy and imitate  the constitutions of the different countries of the world.  The necessity of the hour requires that the Governor  should be vested not only with the power to act in his  discretion but also with the power to act in his individual  judgment. I feel that the Governor should be vested with  the power of special responsibilities which the Governor  under the British regime were vested in this country. I  feel that there is a dearth of leadership in the provinces.  Competent men are not available and there are all kinds  of things going on in the various provinces. Unless the  Governor is vested with large powers it will be difficult to  effect any improvement in the Provincial administration.  Such a procedure may be undemocratic but such a  procedure will be perfectly right in the interest of the  country. I feel there is no creative energy left in the  middle class intelligentsia of this country. They seem to  have become bereft of initiative and enterprise. The  masses who ought to be the rulers of this land are down- trodden and exploited in all ways. Under these  circumstances there is no way left open but for the  Government of India to take the Provincial  administrations in its own hands. I feel that we are on  the threshold of a revolution in this country. There will  be revolution, bloodshed and anarchy in this country. I  feel that at this juncture it is necessary that all powers

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should remain centralised in the hands of the  Government of India. In certain provinces the machinery  of law and order seems to have completely broken down.  Dacoities, arson, loot, murder and inflationary conditions  are rampant. I am opposed to this Article, because I am  convinced that federalism cannot succeed in a country  which is passing through a transitory period. The  national economy of America is fully developed. It can  afford to have a federal form of Government. In a country  where there is no room for expansion and for economic  development, there is no necessity for a centralised  economy. In India when our agriculture, industry,  minerals etc. are in an incipient stage of development, it  is necessary that power must be vested in the hands of  the Government of India. Federalism was in vogue in the  19th century when the means of communications were  undeveloped. The technical knowledge and resources at  the disposal of Governments in ancient times were of a  very meager character. Today the situation has  completely changed. Means of communications have  developed rapidly. Technical knowledge and the  necessary personnel at the disposal of the Government of  India are of such a wide character that it can undertake  to perform all the functions which a modern Government  is expected to perform. There is another reason why I am  opposed to this Article. In this country there is no scope  for federalism. All governments have become more or less  unitary in character. If we are to escape political  debacles, economic strangulation and military defeats on  all fronts, then our leaders and statesmen must learn to  think in unorthodox terms: otherwise there is no future  for this country.  Pandit Hirday Kunzru: (United Provinces: General): Mr.  President, I should like to ask Dr. Ambedkar whether it is  necessary to retain after the words "that the Governor  will be aided and advised by his Ministers", the words  "except in regard to certain matter in respect of which he  is to exercise his discretion". Supposing these words,  which are reminiscent of the old Government of India Act  and the old order, are omitted, what harm will be done?  The functions of the Ministers legally will be only to aid  and advice the Governor. The Article in which these  words occur does not lay down that the Governor shall be  guided by the advice of his Ministers but it is expected  that in accordance with the Constitutional practice  prevailing in all countries where responsible Government  exists the Governor will in all matters accept the advice of  his Ministers. This does not however mean that where  the Statute clearly lays down that action in regard to  specified matters may be taken by him on his own  authority this Article 143 will stand in his way.  My Friend Mr. T. T. Krishnamachari said that as Article  188 of the Constitution empowered the Governor to  disregard the advice of his Ministers and to take the  administration of the province into his own hands, it was  necessary that these words should be retained, i.e. the,  discretionary power of the Governor should be retained. If  however, he assured us, Article 188 was deleted later, the  wording of Article 143 could be reconsidered. I fully  understand this position and appreciate it, but I should  like the words that have been objected to by my Friend  Mr. Kamath to be deleted. I do not personally think that  any harm will be done if they are not retained and we can  then consider not merely Article 188 but also Article 175  on their merits; but in spite of the assurance of Mr.

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Krishnamachari the retention of the words objected to  does psychologically create the impression that the  House is being asked by the Drafting Committee to  commit itself in a way to a principle that it might be  found undesirable to accept later on. I shall say nothing  with regard to the merits of Article 188. I have already  briefly expressed my own views regarding it and shall  have an opportunity of discussing it fully later when that  Article is considered by the House. But why should we, to  being with, use a phraseology that it an unpleasant  reminder of the old order and that makes us feel that  though it may be possible later to reverse any decision  that the House may come to now, it may for all practical  purposes be regarded as an accomplished fact? I think  Sir, for these reasons that it will be better to accept the  amendment of my honourable Friend Mr. Kamath, and  then to discuss Articles 157 and 188 on their merits.  I should like to say one word more before I close. If   Article 143 is passed in its present form, it may give rise  to misapprehensions of the kind that my honourable  Friend Dr, Deshmukh seemed to be labouring under  when he asked that a provision should be inserted  entitling the Governor to preside over the meetings of the  Council of Ministers. The Draft Constitution does not  provide for this and I think wisely does not provide for  this. It would be contrary to the traditions of responsible  government as they have been established in Great  British and the British Dominions, that the Governor or  the Governor-General should, as a matter of right,  preside over the meetings of his cabinet. All that the  Draft Constitution does is to lay on the Chief Ministers  the duty of informing the Governor of the decisions come  to by the Council of Ministers in regard to administrative  matter and the legislative programme of the government.  In spite of this, we see that the  Article 143, as it is  worded, has created a misunderstanding in the mind of a  member like Dr. Deshmukh who takes pains to follow  every  of the Constitution with care. This is an additional  reason why the discretionary power of the Governor  should not be referred to in Article 143. The speech of my  friend Mr. Krishnamachari does not hold out the hope  that the suggestion that I have made has any chance of  being accepted. Nevertheless, I feel it my duty to say that  the course proposed by Mr. Kamath is better than what  the Drafting Sub-Committee seem to approve.  Prof. Shibban Lal Saksena (United Provinces: General):  Mr. President, Sir, I heard very carefully the speech of my  honourable Friend, Mr. krishnamachari, and his  arguments for the retention of the words which Mr.  Kamath wants to omit. If the Governor were an elected  Governor, I could have understood that he should have  these discretionary powers. But now we are having  nominated Governors who will function during the  pleasure of the President, and I do not think such  persons should be given powers which are contemplated  in Article 188.  Then, if Article 188 is yet to be discussed--and it may  well be rejected--then it is not proper to give these powers  in this Article beforehand. If Article 188 is passed, then  we may reconsider this Article  and add this clause if it is  necessary. We must not anticipate that we shall pass  Article 188, after all that has been said in the House  about the powers of the Governor.  These words are a reminder of the humiliating past. I am  afraid that if these words are retained, some Governor

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may try to imitate the Governors of the past and quote  them as precedents, that this is how the Governor on  such an occasion acted in his discretion. I think in our  Constitution as we are now framing it, these powers of  the Governors are out of place; and no less a person than  the honourable Pandit Govind Ballabh Pant had given  notice of the amendment which Mr. Kamath has moved. I  think the wisdom of Pandit Pant should be sufficient,  guarantee that this amendment be accepted. It is just  possible that Article 188 may not be passed by this  House. If there is an emergency, the Premier of the  province himself will come forward to request the  Governor that an emergency should be declared, and the  aid of the Centre should be obtained to meet the  emergency. Why should the Governor declare an  emergency over the head of the Premier of the Province?  We should see that the Premier and the Governor of a  Province are not at logger heads on such an occasion. A  situation should not be allowed to arise when the Premier  says that he must carry on the Government, and yet the  Governor declares an emergency over his head and in  spite of his protestations. This will make the Premier  absolutely impotent. I think a mischievous Governor may  even try to create such a situation if he so decides, or if  the President wants him to do so in a province when a  party opposite to that in power at the Centre is in power.  I think Article 188, even if it is to be retained should be  so modified that the emergency should be declared by the  Governor on the advice of the Premier of the province. I  suggest to Dr. Ambedkar that these words should not  find a place in this Article, and as a consequential  amendment, sub-section (ii) of this Article should also be  deleted.  Shri Mahavir Tyagi (United Provinces: General): Sir, I beg  to differ from my honourable radical Friends Mr. Kamath  and Prof. Shibban Lal Saksena, and I think the more  powers are given to the provinces, the stiffer must be the  guardianship and control of the Centre in the exercise of  those powers. That is my view. We have now given up the  Centre, and we are going to have nominated Governors.  Those Governors are not to be there for nothing. After all,  we have to see that the policy of the Centre is carried out.  We have to keep the States linked together and the  Governor is the Agent or rather he is the agency which  will press for and guard the Central policy. In fact, our  previous conception has now been changed altogether.  The whole body politic of a country is affected and  influenced by the policy of the Centre. Take for instance  subjects like Defence involving questions of peace or war,  of relationship with foreign countries; of our commercial  relations, exports and imports. All these are subjects  which affect the whole body politic, and the provinces  cannot remain unaffected, they cannot be left free of the  policy of the Centre. The policy which is evoked in the  Centre should be followed by all the States, and if the  Governors were to be in the hands of the provincial  Ministers then there will be various policies in various  provinces and the policy of each province shall be as  unstable as the ministry. For there would be ministers of  various types having different party labels and different  programmes to follow. Their policies must differ from one  another; it will therefore be all the more necessary that  there must be coordination of programmes and policies  between the States and the Central Government. The  Governor being the agency of the Centre is the only

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guarantee to integrate the various Provinces or States.  The Central Government also expresses itself through the  provincial States; along with their own administration,  they have also to function on behalf of the Central  Government. A Governor shall act as the agency of the  Centre and will see that the Central policy is sincerely  carried out. Therefore the Governor’s discretionary  powers should not be interfered with. Democratic trends  are like a wild beast. Say what you will, democracy goes  by the whims and fancies of parties and the masses.  There must be some such machinery which will keep this  wild beast under control. I do not deprecate democracy.  Democracy must have its way. But do not let it  degenerate into chaos. Moreover the State governments  may not be quite consistent in their own policies.  Governments may change after months or years; with  them will change their policies. The Governors may  change too, but the policy and instructions given by the  Centre to the Governors will remain practically  unchanged. The more the powers given to the States the  more vigilant must be the control. The Governor must  remain as the guardian of the Central policy on the one  side, and the Constitution on the other. His powers  therefore should not be interfered with.  Shri B. M. Gupta (Bombay: General): Sir, I think the  explanation given by my honourable Friend Mr. T. T.  Krishnamachari Should be accepted by the House and  the words concerning discretion of the Governor should  be allowed to stand till we dispose of Article 175 and  Article 188.  With regard to the suggestion made by the honourable  Dr. Deshmukh about the power being given to the  Governor to preside over the meetings of the cabinet I  have to oppose it. He enquired whether the Drafting  Committee intended to make that provision later on. I do  not know the intentions of the Drafting Committee for the  future but as far as the Draft before us is concerned I  think the Drafting Committee has definitely rejected it.  I would invite the attention of the honourable House to   Article 147 under which the Governor shall be entitled  only to information. If we allow him to preside over the  meetings of the Cabinet we would be departing from the  position we want to give him, namely that of a  constitutional head. If he presides over the meeting of the  Cabinet be shall have an effective voice in shaping the  decisions of the Cabinet in the entire field of  administration, even in fields which are not reserved for  his discretionary power. If certain powers have to be  given to him, our endeavour should be to restrict them as  far as possible, so that the Governor’s position as a  constitutional head may be maintained. Therefore, Sir, I  oppose the proposal of Dr. Deshmukh.  Shri Alladi Krishnaswami Ayyar (Madras: General): Sir,  there is really no difference between those who oppose  and those who approve the amendment. In the first  place, the general principle is laid down in Article 143  namely, the principle of ministerial responsibility, that  the Governor in the various spheres of executive activity  should act on the advice of his ministers. Then the Article   goes on to provide "except in so far as he is by or under  this Constitution required to exercise his functions or  any of them in his discretion." So long as there are  Articles in the Constitution which enable the Governor to  act in his discretion and in certain circumstances, it may  be, to over-ride the cabinet or to refer to the President,

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this Article as it is framed is perfectly in order. If later on  the House comes to the conclusion that those Articles  which enable the Governor to act in his discretion in  specific cases should be deleted, it will be open to revise  this Article. But so long as there are later Articles which  permit the Governor to act in his discretion and not on  ministerial responsibility, the  Article as drafted is  perfectly in order.  The only other question is whether first to make a  provision in Article 143 that the Governor shall act on  ministerial responsibility and then to go on providing  "Notwithstanding anything contained in Article  143........he can do this" or "Notwithstanding anything  contained in Article 143 he can act in his discretion." I  should think it is a much better method of drafting to  provide in Article 143 itself that the Governor shall  always act on ministerial responsibility excepting in  particular or specific cases where he is empowered to act  in his discretion. If of course the House comes to the  conclusion that in no case shall the Governor act in his  discretion, that he shall in every case act only on  ministerial responsibility, then there will be a  consequential change in this Article. That is, after those  Articles are considered and passed it will be quite open to  the House to delete the latter part of Article 143 as being  consequential on the decision come to by the House on  the later Articles. But, as it is, this is perfectly, in order  and I do not think any change is warranted in the  language of Article 143. It will be cumbrous to say at the  opening of each  "Notwithstanding anything contained in  Article 143 the Governor can act on his own  responsibility".  Shri H. V. Kamath: Sir, on a point of clarification, Sir, I  know why it is that though emergency powers have been  conferred on the President by the Constitution no less  than on Governors, perhaps more so, discretionary power  as such have not been vested in the President but only in  Governors?  Pandit Thakur Das Bhargava (East Punjab: General): Sir,  I beg to oppose the amendment of Mr. Kamath. Under  Article 143 the Governor shall be aided in the exercise of  his functions by a Council of Ministers. It is clear so far. I  gave notice of an amendment which appears on the order  paper as Article 142-A which I have not moved. In the  amendment I have suggested that the Governor will be  bound to accept the advice of his ministers on all matters  except those which are under this Constitution required  to be exercised by him in his discretion. My submission  in that it is wrong to say that the Governor shall be a  dummy or an automaton. As a matter of fact according to  me the Governor shall exercise very wide powers and very  significant powers too. If we look at Article 144 it says:  "The Governor’s ministers shall be appointed  by him and shall hold office during his  pleasure."  So he has the power to appoint his ministers. But when  the ministers are not in existence who shall advise him in  the discharge of his functions? When he dismisses his  ministry then also he will exercise his functions under  his own discretion.  Then again, when the Governor calls upon the leader of a  party for the choice of ministers, after a previous ministry  has been dissolved, in that case there will be no ministry  in existence; and who will be there to advise him?  Therefore he will be exercising his functions in his

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discretion. It is wrong to assume that the Governor will  not be charged with any functions which he will exercise  in his discretion.  Articles 175 and 188 are the other  Articles which give him certain functions which he has to  exercise in his discretion.  Under Article 144 (4) there is a mention of the  Instrument of Instructions which is given in the Fourth  Schedule. The last paragraph of it runs thus:  "The Governor shall 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 religions beliefs and sentiments."  My submission is that according to me the Governor  shall be a guide, philosopher and friend of the Ministry  as well as the people in general, so that he will exercise  certain functions some of which will be in the nature of  unwritten conventions and some will be such as will be  expressly conferred by this Constitutions. He will be a  man above party and he will look at the Minister and  government from a detached standpoint. He will be able  to influence the ministers and members of the legislature  in such a manner that the administration will run  smoothly. In fact to say that a person like him is merely a  dummy, an automaton or a dignitary without powers is  perfectly wrong. It is quite right that so far as our  conception of a constitutional governor goes he will have  to accept the advice of his ministers in many matters but  there are many other matters in which the advice will  neither be available nor will he be bound to accept that  advice.                                                 (underlined for emphasis) Under Article 147 the Governor has power for calling for  information and part (c) says: This will be the duty of the  Chief Minister.  "If the Governor so requires, to submit for the  consideration of the Council of Ministers any  matter on which a decision has been taken by  a Minister but which has not been considered  by the Council."  This is specifically a matter which is of great importance.  The Governor is competent to ask the Chief Minister to  place any matter before the Council of Ministers which  one minister might have decided. When he calls for  information he will be acting in the exercise of his  discretion. He may call for any kind of information. With  this power he will be able to control and restrain the  ministry from doing irresponsible acts. In my opinion  taking the Governor as he is conceived to be under the  Constitution he will exercise very important functions  and therefore it is very necessary to retain the words  relating to his discretion in Article 143.  Shri H. V. Pataskar (Bombay: General): Sir, Article 143 is  perfectly clear. With regard to the amendment of my  honourable Friend Mr. Kamath various points were  raised, whether the Governor is to be merely a figure- head, whether he is to be a constitutional head only or  whether he is to have discretionary powers. To my mind  the question should be looked at from and entirely  different point of view.  Article 143 merely relates to the  functions of the ministers. It does not primarily relate to

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the power and functions of a Governor. It only says:  "There shall be a Council of Ministers with the  Chief Minister at the head to aid and advise  the Governor in the exercise of his functions."  Granting that we stop there, is it likely that any  complications will arise or that it will interfere with the  discretionary powers which are proposed to be given to  the Governor? In my view Article 188 is probably  necessary and I do not mean to suggest for a moment  that the Governor’s powers to act in an emergency which  powers are given under Article 188, should not be there.  My point is this, whether if this Provision, viz., "except in  so far as he is by or under this Constitution required to  exercise his functions or any of them in his discretion", is  not there, is it going to affect the powers that are going to  be given to him to act in his discretion under Article 188?  I have carefully listened to my honourable Friend and  respected constitutional lawyer. Mr. Alladi Krishnaswami  Ayyer, but I was not able to follow why a provision like  this is necessary. He said that instead later on, while  considering Article 188, we might have to say  "Notwithstanding anything contained in Article 143." In  the first place to my mind it is not necessary. In the next  place, even granting that it becomes necessary at a later  stage to make provision on  Article 188 by saying  "notwithstanding anything contained in Article 143", it  looks so obnoxious to keep these words here and they are  likely to enable certain people to create a sort of  unnecessary and unwarranted prejudice against certain  people. Article 143 primarily relates to the functions of  the ministers. Why is it necessary at this stage to remind  the ministers of the powers of the Governor and his  functions, by telling them that they shall not give any aid  or advice in so far as he, the Governor is required to act  in his discretion? This is an Article which is intended to  define the powers and functions of the Chief Minister. At  that point to suggest this, looks like lacking in courtesy  and politeness. Therefore I think the question should be  considered in that way. The question is not whether we  are going to give discretionary power to the Governors or  not. The question is not whether he is to be merely a  figure-head or otherwise. These are question to be  debated at their proper time and place. When we are  considering  Article 143 which defines the function of the  Chief minister it looks so awkward and unnecessary to  say in the same  "except in so far as he is by or under  this Constitution required to exercise his functions or  any of them in his discretion." Though I entirely agree  that Article 188 is absolutely necessary I suggest that in  this Article 143 these words are entirely unnecessary and  should not be there. Looked at from a practical point of  view this provision is misplaced and it is not courteous,  nor polite, nor justified nor relevant. I therefore suggest  that nothing would be lost by deleting these words. I do  not know whether my suggestion would be acceptable  but I think it is worth being considered from a higher  point of view.  Shri Krishna Chandra Sharma (United Provinces:  General): Sir, the position is that under Article 41 the  executive powers of the Union are vested in the President  and these may be exercised by him in accordance with  the Constitution and the law. Now, the President of the  Union is responsible for the maintenance of law and  order and for good Government. The Cabinet of the State  is responsible to the people through the majority in the

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Legislature. Now, what is the link between the President  and the State? The link is the Governor. Therefore  through the Governor alone the President can discharge  his functions for the good Government of the country. In  abnormal circumstances it is the Governor who can have  recourse to the emergency powers under Article 188.  Therefore the power to act in his discretion under Article  143 ipso facto follows and  Article 188 is necessary and  cannot be done away with. Therefore certain emergency  powers such as under Article 188 are necessary for the  Governor to discharge his function of maintaining law  and order and to carry on the orderly government of the  State.  I wish to say word more with regard to Professor Shah’s  amendment that the Minister shall be responsible to the  Governor. The Minister has a majority in the legislature  and as such, through the majority, he is responsible to  the people. If he is responsible to the Governor, as  distinguished from his responsibility to the Legislature  and through the legislature to the people of the State,  then he can be overthrown by the majority in the  legislature and he cannot maintain his position. He  cannot hold the office. Therefore it is an impossible  proposition that a Minister could ever be responsible to  the Governor as distinguished from his responsibility to  the people through the majority in the legislature. He  should therefore be responsible to the Legislature and the  people and not to the President. That is the only way in  which under the scheme in the Draft Constitution the  government of the country can he carried on.                                          (underlined for emphasis)

Shri Rohini Kumar Chaudhari: (Assam: General): I rise to  speak more in quest of clarification and enlightenment  than out of any ambition to make a valuable contribution  to this debate.  Sir, one point which largely influenced this House in  accepting the Article which provided for having  nominated Governors was that the Honourable Dr.  Ambedkar was pleased to assure us that the Governor  would be merely a symbol. I ask the honourable Dr.  Ambedkar now, whether any person who has the right to  act in his discretion can be said to be a mere symbol. I  am told that this provision for nominated governorship  was made on the model of the British Constitution. I  would like to ask Dr. Ambedkar if His Majesty the king of  English acts in his discretions in any matter. I am told--I  may perhaps be wrong--that His Majesty has no  discretion even in the matter of the selection of his bride.  That is always done for him by the Prime Minister of  England.  Sir, I know to my cost and to the cost of my Province  what ’acting by the Governor in the exercise of his  discretion’ means. It was in the year 1942 that a  Governor acting in his discretion selected his Ministry  from a minority party and that minority was ultimately  converted into a majority. I know also, and the House will  remember too, that the exercise of his discretion by the  Governor of the Province of Sindh led to the dismissal of  one of the popular Ministers-- Mr. Allah Bux. Sir, if in  spite of this experience of ours we are asked to clothe the  Governors with the powers to act in the exercise of their  discretion, I am afraid we are still living in the past which  we all wanted to forget.  We have always thought that it is better to be governed

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by the will of the people than to be governed by the will of  a single person who nominates the Governor who could  act in his discretion. If this Governor is given the power  to act in his discretion there is no power on earth to  prevent him from doing so. He can be a veritable king  Stork. Furthermore, as the Article says, whenever the  Governor thinks that he is acting in his discretion  nowhere can he be questioned. There may be a dispute  between the Ministers and the Governor about the  competence of the former to advise the Governor; the  Governor’s voice would prevail and the voice of the  Ministers would count for nothing. Should we in this age  countenance such a state of affairs? Should we take  more then a minute to dismiss the idea of having a  Governor acting in the exercise of his discretion? It may  be said that this matter may be considered hereafter. But  I feel that when once we agree to this provision, it would  not take long for us to realise that we have made a  mistake. Why should that be so? Is there any room for  doubt in this matter? Is there any room for thinking that  anyone in this country, not to speak of the members of  the legislature, will ever countenance the idea of giving  the power to the Governor nominated by a single person  to act in the exercise of his discretion? I would submit,  Sir, if my premise is correct, we should not waste a single  moment in discarding the provisions which empower the  Governor to act in his discretion.                                          (underlined for emphasis) I also find in the last clause of this Article that the  question as to what advice was given by a Minister  should not be enquired into in any court. I only want to  make myself clear on this point. There are two functions  to be discharged by a Governor. In one case he has to act  on the advice of the Minister and in the other case he has  to act in the exercise of his discretion. Will the Ministry  be competent to advise the Governor in matters where he  can exercise his discretion? If I remember a right, in  1937 when there was a controversy over this matter  whether Ministers would be competent to advise the  Governor in matters where the Governor could use his  discretion, it was understood that Ministers would be  competent to advise the Governor in the exercise of his  discretion also and if the Governor did not accept their  advice, the Ministers were at liberty to say what advice  they gave. I do not know that is the intention at present.  There may be cases where the Ministers are competent to  give advice to the Governor but the Governor does not  accept their advice and does something which is  unpopular. A Governor who is nominated by the Centre  can afford to be unpopular in the province where he is  acting as Governor. He may be nervous about public  opinion if he serves in his own province but he may not  care about the public opinion in a province where he is  only acting. Suppose a Governor, instead of acting on the  advice of his Minister, acts in a different way. If the  Minister are criticised for anything the Governor does on  his own, and the Ministers want to prosecute a party for  such criticism, would not the Ministers have the right to  say that they advised the Governor to act in a certain way  but that the Governor acted in a different way? Why  should we not allow the Ministers the liberty to prosecute  a paper, a scurrilous paper, a misinformed paper, which  indulged in such criticism of the Ministers? Why should  not the Ministers be allowed to say before a court what  advice they gave to the Governor? I would say, Sir--and I

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may be excused for saying so-- that the best that can be  said in favour of this Article is that it is a close imitation  of a similar provision in the Government of India Act,  1935, which many Members of this House said, when is  was published, that they would not touch even with a  pair of tongs.                                          (underlined for emphasis) The Honourable Dr. B. R. Ambedkar : Mr. President, Sir,  I did not think that it would have been necessary for me  to speak and take part in this debate after what my  Friend, Mr. T. T. Krishnamachari, had said on this  amendment of Mr. Kamath, but as my Friend, Pandit  Kunzru, pointedly asked me the question and demanded  a reply, I thought that out of courtesy I should say a few  words. Sir, the main and the crucial question is, should  the Governor have discretionary powers? It is that  question which is the main and the principal question.  After we come to some decision on this question, the  other question whether the words used in the last part of  clause (1) of Article 143 should be retained in that Article  or should be transferred somewhere else could be  usefully considered. The first thing, therefore, that I  propose to do so is to devote myself of this question  which, as I said, is the crucial question. It has been said  in the course of the debate that the retention of  discretionary power in the Governor is contrary to  responsible government in the provinces. It has also been  said that the retention of discretionary power in the  Governor smells of the Government of India Act, 1935,  which in the main was undemocratic. Now, speaking for  myself, I have no doubt in my mind that the retention on  the vesting the Governor with certain discretionary  powers is in no sense contrary to or in no sense a  negation of responsible government. I do not wish to rake  up the point because on this point I can very well satisfy  the House by reference to the provisions in the  Constitution of Canada and the Constitution of Australia.  I do not think anybody in this House would dispute that  the Canadian system of government  is not a fully  responsible system of government, nor will anybody in  this House challenge that the Australian Government is  not a responsible form of government. Having said that, I  would like to read section 55 of the Canadian  Constitution.  "Section 55.--Where a Bill passed by the House  of Parliament is presented to the Governor- General for the Queen’s assent, he shall,  according to his discretion, and subject to the  provisions of this Act, either assent thereto in  the Queen’s name, or withhold the Queen’s  assent or reserve the Bill for the signification of  the Queen’s pleasure."                                           (underlined for emphasis)

Pandit Hirday Nath Kunzru: May I ask Dr.  Ambedkar when the British North America Act  was passed?  The Honourable Dr. B. R. Ambedkar : That does not  matter at all. The date of the Act does not matter.  Shri H. V. Kamath: Nearly a century ago.  The Honourable Dr. B.R. Ambedkar : This is my reply.  The Canadians and the Australians have not found it  necessary to delete this provision even at this stage. They  are quite satisfied that the retention of this provision in  section 55 of the Canadian Act is fully compatible with

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responsible government. If they had left that this  provision was not compatible with responsible  government, they have even today, as Dominions, the  fullest right to abrogate this provision. They have not  done so. Therefore in reply to Pandit Kunzru I can very  well say that the Canadians and the Australians do not  think such a provision is an infringement of responsible  government.  Shri Lokanath Misra (Orissa : General): On a point of  order, Sir, are we going to have the status of Canada or  Australia? Or are, we going to have a Republic  Constitution?  The Honourable Dr. B. R. Ambedkar : I could not follow  what he said. If, as I hope, the House is satisfied that the  existence of a provision vesting a certain amount of  discretion in the Governor is not incompatible or  inconsistent with responsible government, there can be  no dispute that the retention of this clause is desirable  and, in my judgment, necessary. The only question that  arises is....  Pandit Hirday Nath Kunzru : Well, Dr. Ambedkar has  missed the point of the criticism altogether. The criticism  is not that in  Article 175 some powers might not be  given to the Governor, the criticism is against vesting the  Governor with certain discretionary powers of a general  nature in the Article  under discussion.  The Honourable Dr. B. R. Ambedkar: I think he has  misread the Article. I am sorry I do not have the Draft  Constitution with me. "Except in so far as he is by or  under this Constitution," those are the words. If the  words were "except whenever he thinks that he should  exercise this power of discretion against the wishes or  against the advice of the ministers", then I think the  criticism made by my honourable Friend Pandit Kunzru  would have been valid. The clause is a very limited  clause; it says: "except in so far as he is by or under this  Constitution". Therefore, Article 143 will have to be read  in conjunction with such other Articles which specifically  reserve the power to the Governor. It is not a general  clause giving the Governor power to disregard the advice  of his ministers in any matter in which he finds he ought  to disregard. There, I think, lies the fallacy of the  argument of my honourable Friend, Pandit Kunzru.  Therefore, as I said, having stated that there is nothing  incompatible with the retention of the discretionary  power in the Governor in specified cases with the system  of responsible Government, the only question that arises  is, how should we provide for the mention of this  discretionary power? It seems to me that there are three  ways by which this could be done. One way is to omit the  words from  Article 143 as my honourable Friend, Pandit  Kunzru, and others desire and to add to such Articles as  175, or 188 or such other provisions which the House  may hereafter introduce, vesting the Governor with the  discretionary power, saying notwithstanding Article 143,  the Governor shall have this or that power. The other way  would be to say in Article 143, "that except as provided in  Articles so and so specifically mentioned-Article 175,  188, 200 or whatever they are". But the point I am trying  to submit to the House is that the House cannot escape  from mentioning in some manner that the Governor shall  have discretion.  Now the matter which seems to find some kind of favour  with my honourable Friend, Pandit Kunzru and those  who have spoken in the same way is that the words

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should be omitted from here and should be transferred  somewhere else or that the specific Articles should be  mentioned in Article 143. It seems to me that this is a  mere method of drafting. There is no question of  substance and no question of principle. I personally  myself would be quite willing to amend the last portion of  clause (1) of Article 143 if I knew at this stage what are  the provisions that this Constituent Assembly proposes  to make with regard to the vesting of the Governor with  discretionary power. My difficulty is that we have not as  yet come either to Articles 175 or 188 nor have we  exhausted all the possibilities of other provisions being  made, vesting the Governor with discretionary power. If I  knew that, I would very readily agree to amend Article   143 and to mention the specific, but that cannot be done  now. Therefore, my submission is that no wrong could be  done if the words as they stand in Article 143 remains as  they are. They are certainly not inconsistent.  Shri H. V. Kamath: Is there no material difference  between Article 61(1) relating to the President vis-a-vis  his ministers and this ?  The Honourable Dr. B. R. Ambedkar : Of course there is  because we do not want to vest the President with any  discretionary power. Because the provincial Governments  are required to work in subordination to the Central  Government, and therefore, in order to see that they do  act in subordination to the Central Government the  Governor will reserve certain things in order to give the  President the opportunity to see that the rules under  which the provincial Governments are supposed to act  according to the Constitution or in subordination to the  Central Government are observed.  Shri H. V. Kamath: Will it not be better to specify certain  Articles in the Constitution with regard to discretionary  power, instead of conferring general discretionary powers  like this?  The Honourable Dr. B. R. Ambedkar : I said so, that I  would very readily do it. I am prepared to introduce  specific Articles, if I knew what are the Articles which the  House is going to incorporate in the Constitution  regarding vesting of the discretionary powers in the  Governor.  Shri H. V. Kamath: Why not hold it over?  The Honourable Dr. B. R. Ambedkar : We can revise. This  House is perfectly competent to revise Article 143. If after  going through the whole of it, the House feels that the  better way would be to mention the Articles specifically, it  can do so. It is purely a logomachy.  Shri H. V. Kamath: Why go backwards and forwards?  Mr. President: The question is:  "That in clause (1) of Article 143, the words ’except in so  far as he is by or under this Constitution required to  exercise his functions or any of them in his discretion be  deleted."          The amendment was negatived.  Mr. President: The question is:  "That in clause (1) of Article 143, after the  word ’head’ a comma be placed and the words  ’who shall be responsible to the Governor and  shall’ be inserted and the word ’to’ be deleted."                  The amendment was negatived.  Mr. President: The question is:  "That  Article 143 stand part of the  Constitution."                          The motion was adopted.

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                Article 143 was added to the Constitution. Constituent Assembly met on 2nd June, 1949 ARTICLE 153 Mr. President:  Article 153 is for the consideration of the  House.  With regard to the very first amendment, No. 2321, as we had  a similar amendment with regard to Article 69 which was  discussed at great length the other day, does Professor Shah  wish to move it?  Prof. K. T. Shah: If I am in order I would like to move it. But if  you rule it out, it cannot be moved.  Mr. President: It is not a question of ruling it out. If it is  moved, there will be a repetition of the argument once put  forward.  Prof. K. T. Shah: I agree that this is a similar amendment, but  not identical.  Mr. President: I have not said it is identical.  Prof. K. T. Shah: All right. I do not move it, Sir.  Mr. President: Amendment Nos. 2322, 2323, 2324, 2325 and  2326 are not moved, as they are verbal amendments.  Prof. K. T. Shah: As my amendment No. 2327 is part of the  amendment not moved, I do not move it.  Mr. President: Then amendments Nos. 2328, 2329 and 2330  also go. Amendment No. 2331 is not moved.  Mr. Mohd. Tahir (Bihar: Muslim): Mr. President, I move:  "That at the end of sub-clause (c) of clause (2) of Article 153,  the words ’if the Governor is satisfied that the administration  is failing and the ministry has become unstable’ be inserted."  In this clause certain powers have been given to the Governor  to summon, prorogue or dissolve the Legislative Assembly.  Now I want that some reasons may be enumerated which  necessitate the dissolution of a House. I find that to clause (3)  of  Article 153 there is an amendment of Dr. Ambedkar in  which he wants to omit the clause which runs thus: "(3) the  functions of the Governor under sub-clause (a) and (c) of  clause (2) of this Article shall be exercised by him in his  discretion." I, on the other hand, want that some reasons  should be given for the dissolution. Nowhere in the  Constitution are we enumerating the conditions and  circumstances under which the House can be dissolved. If we  do not put any condition, there might be difficulties.  Supposing in some province there is a party in power with  whose views the some reasons to dissolve the Assembly and  make arrangements for fresh elections. If such things happen  there will be no justification for a dissolution of the House.  Simply because a Governor does not subscribe to the views of  the majority party the Assembly should not be dissolved. To  avoid such difficulties I think it is necessary that some  conditions and circumstances should be enumerated in the  Constitution under which alone the Governor can dissolve the  House. There should be no other reason for dissolution of the  House except mal-administration or instability of the Ministry  and its unfitness to work. Therefore this matter should be  considered and we should provide for certain conditions and  circumstances under which the Governor can dissolve the  House.                                                  (underlined for emphasis) Mr. President: The next amendment, No. 2333, is not moved.  Dr. Ambedkar may move amendment No. 2334.  The Honourable Dr.B.R. Ambedkar: Sir, I move:  "That clause (3) of  Article 153 be omitted."  This clause is apparently inconsistent with the scheme for a  Constitutional Governor.  Mr. President: Amendment No. 2335 is the same as the  amendment just moved. Amendment No. 2336 is not moved.

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Shri H.V. Kamath: Mr. President, Sir, may I have your leave to  touch upon the meaning or interpretation of the amendment  that has just been moved by my learned Friend, Dr.  Ambedkar? If this amendment is accepted by the House it  would do away with the discretionary powers given to the  Governor. There is, however, sub-clause (b). Am I to  understand that so far as proroguing of the House is  concerned, the Governor acts in consultation with the Chief  Minister or the Cabinet and therefore no reference to it is  necessary in clause (3)?  Mr. President: He wants clause (3) to be deleted.  Shri H.V. Kamath: In clause (3) there is references to sub- clauses (a) and (c). I put (a) and (b) on a par with each other.  The Governor can summon the Houses or either House to  meet at such time and place as he thinks fit. Then I do not  know why the act of prorogation should be on a different level.  Mr. President: That is exactly what is not being done now. All  the three are being put on a par.  Shri H. V. Kamath: Then I would like to refer to another   aspect of this deletion. That is the point which you were good  enough to raise in this House the other day, that is to say,  that the President of the Union shall have a Council of  Ministers to aid and advise him in the exercise of his  functions.  The corresponding Article here is 143:  "There shall be a Council of Minister with the Chief Minister at  the head to aid and advise the Governor in the exercise of his  functions......"  Sir, as you pointed out in connection with an Article relating  to the President vis-a-vis his Council of Ministers, is there any  provision in the Constitution which binds the Governor to  accept or to follow always the advice tendered to him by his  Council of Ministers? Power is being conferred upon him  under this Article to dissolve the Legislative Assembly. This is  a fairly serious matter in all democracies. There have been  instances in various democracies, even in our own provinces  sometimes, when a Cabinet seeking to gain time against a  motion of censure being brought against them, have sought  the Governor’s aid, in getting the Assembly prorogued. This of  course is not so serious as dissolution of the Legislative  Assembly. Here the  Article blindly says, "subject to the  provisions of this Article." As regards clause (1) of the Article, I  am glad that our Parliament and our other Legislatures would  meet more often and for longer periods. I hope that will be  considered and will be given effect to at the appropriate time.  Clause (2) of this Article is important because it deals with the  dissolution of the Assembly by the Governor of a State and in  view of the fact that there is no specific provision-of course it  may be understood and reading between the lines Dr.  Ambedkar might say that the substance of it is there, but we  have not yet decided even to do away with the discretionary  powers of the Governor to accept the advice tendered to him  by his Council of Ministers, there is a lacuna in the  Constitution. Notwithstanding this, we are conferring upon  him the power to dissolve the Legislative Assembly, without  even mentioning that he should consult or be guided by the  advice of his Ministers in this regard. I am constrained to say  that this power which we are conferring upon the Governor  will be out of tune with the new set-up that we are going to  create in the country unless we bind the Governor to accept  the advice tendered to him by his Minister. I hope that this  Article will be held over and the Drafting Committee will bring  forward another motion later on revising or altering this Article  in a suitable manner.  Shri Gopal Narain (United Provinces: General): Mr. President,

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Sir, before speaking on this, I wish to lodge a complaint and  seek redress from you. I am one of those who have attended all  the meetings of this Assembly and sit from beginning to the  end, but my patience has been exhausted now. I find that  there are a few honourable Members of this House who have  monopolised all the debates, who must speak on every Article,  on every amendment and every amendment to amendment. I  know, Sir, that you have your own limitations and you cannot  stop them under the rules, though I see from your face that  also feel sometimes bored, but you cannot stop them. I  suggest to you, Sir, that some time-limit may be imposed upon  some Members. They should not be allowed to speak for more  than two or three minutes. So far as this Article is concerned,  it has already taken fifteen minutes, though there is nothing  new in it, and it only provides discretionary powers to the  Governor. Still a Member comes and oppose it. I seek redress  from you, but if you cannot do this, then you must allow us at  least to sleep in our seats or do something else than sit in this  House. Sir, I support this Article.  Mr. President: I am afraid I am helpless in this matter. I leave  it to the good sense of the Members.  Shri Brajeshwar Prasad: (Rose to speak).  Mr. President: Do you wish to speak after this? (Laughter).  The Honourable Dr. B.R. Ambedkar: I do not think I need  reply. This matter has been debated quite often.  Mr. President: Then I will put the amendments to vote.  The question is:  "That at the end of sub-clause (c) of clause (2) of Article 153,  the words ‘if the Governor is satisfied that the administration  is failing and the ministry has become unstable’ be inserted."  The amendment was negatived.  Mr. President: The question is:  "That clause (3) of Article  153 be omitted."  The amendment was adopted.  Mr. President: The question is:  "That Article 153, as amended, stand part of the Constitution."  The motion was adopted.  Article 153, as amended, was added to the Constitution

Constituent Assembly met on 3rd August, 1949 Article 278. Provisions in case of Failure of Constitutional  machinery in States.         xxx                     xxx                     xxx                     xxx Pandit Hirday Nath Kunzru (United Provinces: General): Mr.  President, I am really very glad that the framers of the  Constitution have at last accepted the view that Article 188  should not find a place in our Constitution. That Article was  inconsistent with the establishment of responsible  Government in the provinces and the new position of the  Governor. It is satisfactory that this has at last been  recognised and that the Governor is not going to be invested  with the power that Article 188 proposed to confer on him. It  is, however, now proposed to achieve the purpose of Article  188 and the old Article 278 by a revision of Article 278. We  have today to direct our attention not merely to Articles 278  and 278-A, but also to Article 277-A. This  Article lays down  that it will be the duty of the Union to ensure that the  government of every State is carried on in accordance with the  provisions of this Constitution. It does not merely authorise  the Central Government to protect the State against external  aggression or internal Commotion; it goes much further and  casts on it the duty of seeing that the Government of a  province is carried on in accordance with the provision of this  Constitution. What exactly do these words mean? This should  be clearly explained since the power to ensure that the

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provincial constitutions are being worked in a proper way  makes a considerable addition to the powers that the Central  Government will enjoy to protect a State against external  aggression or internal disturbance. I think, Sir, that it will be  desirable in this connection to consider Articles 275 and 276,  for their provisions have vital bearing on the s that have been  placed before us.  Article 275 says that, when the President is  satisfied that a grave emergency exists threatening the  security of India or of any part of India, then he may make a  declaration to that effect. Such a declaration will cease to  operate at the end of two months, unless before the expiry of  this period, it has been approved by resolutions passed by  both Houses of Parliament. If it is so approved, then, the  declaration of emergency may remain in force indefinitely, that  is, so long as the Executive desires it to remain in force, or so  long as Parliament allows it to remain in force. So long as the  Proclamation operates, under Article 276, the Central  Government will be empowered to issue directions to the  government of any province as regards the manner in which  its executive authority should be exercised and the Central  Parliament will be empowered to make laws with regard to any  matter even though it may not be included in the Union List. It  will thus have the power of passing laws on subjects included  in the State List. Further, the Central Legislature will be able  to confer powers and impose duties on the officers and  authorities of the Government of India in regard to any matter  in respect of which it is competent to pass legislation. Now the  effect of these two Articles is to enable the Central Government  to intervene when owing to external or internal causes the  peace and tranquility of India or any part of it is threatened.  Further, if misgovernment in a province creates so much  dissatisfaction as to endanger the public peace, the  Government of India will have sufficient power, under these  Articles to deal with the situation. What more is needed then  in order to enable the Central Government to see that the  government of a province is carried on in a proper manner. It  is obvious that the framers of the Constitution arc thinking  not of the peace and tranquility of the country, of the  maintenance of law and order but of good government in  provinces. They will intervene not merely to protect provinces  against external aggression and internal disturbances but also  to ensure good government within their limits. In other words,  the Central Government will have the power to intervene to  protect the electors against themselves. If there is  mismanagement or inefficiency or corruption in a province, I  take it that under Articles 277, 278 and 278-A taken together  the Central Government will have the power. I do not use the  word ’President’ because he will be guided by the advice of his  Ministers to take the government of that province into its own  hands. My honourable Friend, Mr. Santhanam gave some  instances in order to show how a breakdown might occur in a  province even when there was no external aggression, no war  and no internal disturbance. He gave one very unfortunate  illustration to explain his point. He asked us to suppose that a  number of factions existed in a province which prevented the  government of that province from being carried on in  accordance with the provisions of this Act i.e., I suppose  efficiently. He placed before us his view that in such a case a  dissolution of the provincial legislature should take place so  that it might be found out whether the electors were capable of  applying a proper remedy to the situation. If, however, in the  new legislature the old factions-I suppose by factions he meant  parties-re-appeared, then the Central Government in his  opinion would be justified in taking over the administration of  the province. Sir, if there is a multiplicity of parties in any

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province we may not welcome it, but is that fact by itself  sufficient to warrant the Central Government’s Interference in  provincial administration? There are many parties in some  countries making ministries unstable. Yet the Governments of  those countries are carried on without any danger to their  security or existence. It may be a matter of regret if too many  parties exist in a province and they are not able to work  together or arrive at an agreement on important matters in the  interests of their province; but however regrettable this may  be, it will not justify in my opinion, the Central Government in  intervening and making itself jointly with Parliament  responsible for the government of the province concerned. As I  have already said, if mismanagement in a province takes place  to such an extent as to create a grave situation in India or in  any part of it, then the Central Government will have the right  to intervene under Articles 275 and 276. Is it right to go  further than this? We hear serious complaints against the  governments of many provinces at present, but it has not been  suggested so far that it will be in the ultimate interests of the  country and the provinces concerned that the Central  Government should set aside the provincial governments and  practically administer the provinces concerned, as if they were  Centrally administered areas. It may be said, Sir, that the  provincial governments at present have the right to intervene  when a municipality or District Board is guilty of gross and  persistent mal-administration, but a municipality or a District  Board is too small to be compared for a moment in any respect  with a province. The very size of a province and the number of  electors in it place it on a footing of its own. If responsible  government is to be maintained, then the electors must be  made to feel that the power to apply the proper remedy when  misgovernment occurs rests with them. They should know  that it depends upon them to choose new representatives who  will be more capable of acting in accordance with their best  interests. If the Central Government and Parliament are given  the power that Articles 277, 278 and 278-A read together  propose to confer on them, there is a serious danger that  whenever there is dissatisfaction in a province with its  government, appeals will be made to the Central Government  to come to its rescue. The provincial electors will be able to  throw their responsibility on the shoulders of the Central  Government. Is it right that such a tendency should be  encouraged? Responsible Government is the most difficult  form of government. It requires patience, and it requires the  courage to take risks. If we have neither the patience nor the  courage that is needed, our Constitution will virtually be still- born. I think, therefore, Sir, that the Articles that we are  discussing are not needed. Articles 275 and 276 give the  Central Executive and Parliament all the power that can  reasonably be conferred on them in order to enable them to  see that law and order do not break down in the country, or  that misgovernment in any part of India is not carried to such  lengths as to jeopardise the maintenance of law and order. It is  not necessary to go any further. The excessive caution that the  framers of the Constitution seem to be desirous of exercising  will, in my opinion, be inconsistent with the spirit of the  Constitution, and be detrimental, gravel detrimental, to the  growth of a sense of responsibility among the provincial  electors.  Before concluding, Sir, I should like to draw the attention of  the House to the Government of India Act, 1935 as adopted by  the India (Provisional Constitution) Order, 1947. Section 93  which formed an important part of this Act as originally  passed, has been omitted from the Act as adopted in 1947,  and I suppose it was omitted because it was thought to be

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inconsistent with the new order of things. My honourable  Friend Mr. Santhanam said that in the Government of India  Act, 1935, the Governor who was allowed to act in his  discretion would not have been responsible to any authority.  That, I think, is a mistake I may point out that the Governor,  in respect of all powers that he could exercise in his discretion,  was subject to the authority of the Governor-General and  through him and the Secretary of State for India, to the British  Parliament. The only difference now is that our executive,  instead of being responsible to an electorate 5,000 miles away,  will be responsible to the Indian electors. This is an important  fact that must be clearly recognised, but I do not think that  the lapse of two years since the adapted Government of India  Act, 1935, came into force, warrants the acceptance of the  Articles now before us. The purpose of section 93 was political.  Its object was to see that the Constitution was not used in  such away as to compel the British Government to part with  more power than it was prepared to give to the people of India.  No such antagonism between the people and the Government  of India can exist in future. Whatever differences there may be,  will arise in regard to administrative or financial or economic  questions. Suppose a province in respect of economic  problems, takes a more radical line than the Government of  India would approve. I think this will be no reason for the  interference of the Government of India.  Shri T. T. Krishnamachari (Madras: General): What happens if  the provincial government deliberately refuses to obey the  provisions of the Constitution and impedes the Central  Government taking action under Article  275 and 276?  Pandit Hirday Nath Kunzru: No province can do it. It cannot  because it would be totally illegal. But if such a situation  arises the Central Government will have sufficient power  under   Articles 275 and 276 to intervene at once. It will have  adequate power to take any action that it likes. It can ask its  own officers to take certain duties on themselves and if those  officers are impeded in the discharge, of their duties, or, if  force is used against them-to take an extreme case-the Central  Government will be able to meet such a challenge effectively,  without our accepting the Articles now before us. I should like  the House to consider the point raised by my honourable  Friend Mr. Krishnamachari very carefully. I have thought over  such a situation in my own mind, over and over again, and  every time I have come to the conclusion that Articles 275 and  276 will enable the Government of India to meet effectively  such a manifestation oil recalcitrance, such a rebellious  attitude as that supposed by Mr. Krishnamachari. In such a  grave situation, the Government of India will have the power to  take effective action under Articles 275 and 276. What need is  there then for the Articles that have been placed before us?  Sir, one of the speakers said that we should not be legalistic.  Nobody has discussed the Articles  moved by Dr. Ambedkar in  a legalistic spirit. I certainly have not discussed it in a narrow,  legal way. I am considering the question from a broad political  point of view from the point of view of the best interests of the  country and the realization by provincial electors of the  important fact that they and they alone are responsible for the  government of their province. They must understand that it  rests with them to decide how it should be carried on.  Sir, even if the framers of the Constitution are not satisfied  with the arguments that I have put forward and want that the  Central Government should have more power than that given  to it by Articles 275 and 276, I should ask them to pause and  consider whether there was not a better way of approaching  this question for the time being. In view of the discussions that  have taken place in this House and outside, it seems to me

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that there is a respectable body of opinion in favour of not  making the Constitution rigid, that is, there are many people  who desire that for some time to come amendments to the  Constitution should be allowed to be made in the same way as  those of ordinary laws are. I think that the Prime Minister in a  speech that he made here some months ago expressed the  same view. If this idea is accepted by the House, if say for five  years the Constitution can be amended in the same way as an  ordinary law, then we shall have sufficient time to see how the  Provinces develop and how their government is carried on. If  experience shows that the position is so unfortunate as to  require that the Central Government should make itself  responsible not merely for the safety of every Province but also  for its good government, then you can come forward with every  justification for an amendment of the Constitution. But I do  not see that there is any reason why the House should agree  to the Articles placed before us today by Dr. Ambedkar.  Sir, I oppose these Articles.  Shri L. Krishnaswami Bharathi (Madras: General): Sir, I felt  impelled by a sense of duty to place a certain point of view  before the House, or else I would not have come before the  mike. I feel the need for a brief speech. I accord my  wholehearted support to the new Articles moved by Dr.  Ambedkar, but I am not at all convinced of the wisdom of the  Drafting Committee in deleting Article 188. It is this point of  view which I want to emphasise.  Sir, that Article has a history behind it. There was a full-dress  debate on it for two days when eminent Premiers participated  in it. We must understand what Article 188 is for. It is not for  normal conditions. It is in a state of grave emergency that a  Governor was, under this Article, invested with some powers. I  may remind the House of the debate where it was Mr.  Munshi’s amendment which ultimately formed part of Article  188. In moving the amendment Dr. Ambedkar said that no  useful purpose would be served by allowing the Governor to  suspend the Constitution and that the President must come  into the picture even earlier. Article 188 provides for such a  possibility. It merely says that when the Governor is satisfied  that there is such a grave menace to peace and tranquility he  can suspend the Constitution. It is totally wrong to imagine  that he was given the power to suspend the Constitution for a  duration of two weeks. Clause (3) provides that it is his duty to  forthwith communicate his Proclamation to the President and  the President will become seized of the matter under Article  188. That is an important point which seems lost sight of. The  Governor has to immediately communicate his Proclamation.  The Article was necessitated because it was convincingly put  forward by certain Premiers. There may be a possibility that it  is not at all possible to contact the President. Do you rule out  the possibility of a state of inability to contact the Central  Government? Time is of the essence of the matter. By the time  you contact and get the permission, many things would have  happened and the delay would have defeated the very purpose  before us. The, honourable Mr. Kher said that it is not  necessary to keep this Article because we have all sorts of  communications available. In Bombay I know of instances  where we have not been able to contact the Governor for not  less than twenty-four hours What is the provision under  Article 278? The Governor of Madras says there is a danger to  peace and tranquility. Assuming for a moment that the  communications are all right, the President cannot act. He has  to convene the Cabinet; the members of the Cabinet may not  be readily available; and by the time he convenes the Cabinet  and gets their consent the purpose of the Article would be  defeated. Therefore, it was only with a view to see in such a

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contingency where the Governor finds, that delay will defeat  the very objective, that Article 188 was provided for. I see no  reason why the Drafting Committee in their wisdom ruled out  such a possibility. It is no doubt true that the Article was  framed two years ago, but since those two years many things  have happened that show that there is urgent need for the  man on the spot to decide and act quickly so that a  catastrophe may be prevented. Today there is an open  defiance of authority everywhere and that defiance is well- organised. Before the act, they cut off the telephone wires, as  they did in the Calcutta Exchange. That is what is happening  in many parts of the country. Therefore, when there is a coup  d’etat it is just possible they will cut off communications and  difficulties may arise. It is only to provide for this possibility  that the Governor is given these powers. I do not think there  will be any fool of a Governor who will, if there is time, fail to  inform the President. I would like to have an explanation as to  why this fool-proof arrangement has been changed and why  we have become suspicious that the Governor will act in a  wrong manner. According to the provision, he has to forthwith  communicate to the President and the President may say,  "Well, I am not convinced; cancel it." You must take into  consideration that the Governor will be responsible, acting  wisely and in order to save the country from disaster. The  President comes into the picture directly, because the  Governor has to communicate the matter forthwith according  to clause (3) of Article 188. As Mr. President said, it is sheer  commonsense that the man on the spot should be given the  powers to deal with the situation, so that it may not  deteriorate. I am not at all convinced of the wisdom of the  change. The provision as now proposed is not as fool-proof as  it ought to be.                                                 (underlined for emphasis)  Besides, I would like to have an explanation as to why the  Drafting Committee goes out of the way to delete the provision  which was considered and accepted by the House previously.  In my view it is improper, because the House had decided it. If  we appoint a Drafting Committee, we direct them to draft on  the basis of the decisions taken by us. Is this the way in which  they should draft? Their duty was to scrutinise the decisions  already arrived at and then draft on that basis. Therefore, I  would like to have an explanation ----a convincing  explanation---as to what happened within these two years  which has made the members of the Drafting Committee  delete this wholesome, healthy and useful provision.  Mr. Naziruddin Ahmad: Mr. President, Sir, I think that the  amendments moved by Dr. Ambedkar constitute startling and  revolutionary changes in the Constitution. I submit a radical  departure has been made from our own decisions. We took  important decisions in this House as to the principles of the  Constitution and we adopted certain definite principles and  Resolutions and the Draft Constitution was prepared in  accordance with them. Now, everything has to be given up. Not  only the Draft Constitution has been given up, but the official  amendments which were submitted by Members of the House  within the prescribed period which are printed in the official  blue book have also been given up. During the last recess  some additional amendments to those amendments were  printed and circulated. Those have also been given up. I beg to  point out that all the amendments and amendments to  amendments which have been moved today are to be found for  the first time only on the amendment lists for this week which  have been circulated only within a day or two from today. So  serious and radical changes should not have been introduced  at the last minute when there is not sufficient time for slow

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people like us to see what is happening and whether these  changes really fit in with our original decisions and with other  parts of the Constitution as a whole. I submit that the Drafting  Committee has been drifting from our original decisions, from  the Draft Constitution and from our original amendments. It  would perhaps be more fitting to call the Drafting Committee  "the Drifting Committee". I submit that the deletion of  Article  188 is a very important and serious departure from principles  which the House solemnly accepted before. Some honourable  Members who usually take the business of the House  seriously have attempted to support these changes on the  ground that some emergency powers are highly necessary. I  agree with them that emergency powers are necessary and I  also agree that serious forces of disorder are working in a  systematic manner in the country and drastic powers are  necessary. But what I fail to appreciate is the attempt to take  away the normal power of the Governor or the Ruler of a State  to intervene and pass emergency orders. It is that which is the  most serious change. In fact, originally the Governor was to be  elected on adult suffrage of the province, but now we have  made a serious departure that the Governor is now to be  appointed by the President. This is the first blow to Provincial  Autonomy. Again, we have deprived the Upper Houses in the  States of real powers; not merely have we taken away all  effective powers from Upper Houses in the Provinces, but also  made it impossible for them to function properly and  effectively. We are now going to take away the right of the  Ministers of a State and the Members of the Legislatures and  especially the people at large from solving their own problems.  As soon as we deprive the Governor or a Ruler of his right to  interfere in grave emergencies, at once we deprive the elected  representatives and the Ministers from having any say in the  matter. As soon as the right to initiate emergency measures is  vested exclusively in the President, from that moment you  absolve the Ministers and Members of the local legislatures  entirely from any responsibility. The effect of this would mean  that their moral strength and moral responsibility will be  seriously undermined. It is the aspect of the problem to which  I wish to draw the attention of the House.                                                  (underlined for emphasis) This aspect of the matter, I submit, has not received sufficient  or adequate consideration in this House. If there is trouble in  a State, the initial responsibility for quelling it must rest with  the Ministers. If they fail, then the right to initiate emergency  measures must lie initially with the Governor or the Ruler. If  you do not allow this, the result would be that the local  legislature and the Ministers would have responsibility of  maintaining law and order without any powers. That would  easily and inevitably develop a kind of irresponsibility. Any  outside interference with the right of a State to give and  ensure their own good Government will not only receive no  sympathy from the Ministers and the members, but the action  of the President will be jeered at, tabooed and boycotted by the  people of the State, the Members of the Legislature and the  Ministers themselves.          xxx                             xxx                     xxx                     xxx Pandit Thakur Das Bhargava : I think the constitutional  machinery cannot be regarded ordinarily to have failed unless  the dissolution powers are exercised by the Governor under  section 153.          Xxx                             xxx                     xxx                     xxx I think we are drifting, perhaps unconsciously, towards a  dictatorship. Democracy will flourish only in a democratic  atmosphere and under democratic conditions. Let people  commit mistakes and learn by experience. Experience is a

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great tutor. The arguments to the contrary which we have  heard today were the old discarded arguments of the British  bureaucracy. The British said that they must have overriding  powers, that we cannot manage our affairs and that they only  knew how to manage our affairs. They said also that if we  mismanaged things they will supersede the constitution and  do what they thought fit. What has been our reply to this? It  was that "Unless you make us responsible for our acts, we can  never learn the business of government. If we mismanage the  great constitutional machinery, we must be made responsible  for our acts. We must be given the opportunity to remedy the  defects". This argument of ours is being forgotten. The old  British argument that they must intervene in petty Provincial  matters is again being revived and adopted by the very  opponents of that argument. In fact, very respected Members  of this House are adopting almost unconsciously the old  argument of the British Government. I submit that even the  hated British did not go so far as we do. I submit our reply to  that will be the same as our respected leaders gave to the  British Government. I submit, therefore, that too much  interference by the Centre will create unpleasant reactions in  the States. If you abolish provincial autonomy altogether that  would be logical. But to make them responsible while making  them powerless would be not a proper thing to do.                                                  (underlined for emphasis) Then I come to the proviso to clause (1) of Article 278. It  safeguards against the rights of the High Court in dealing with  matters within their special jurisdiction. A Proclamation of  emergency will not deprive the High Court of its jurisdiction.  That is the effect of this proviso. But it conveniently forgets the  existence of the Supreme Court. While it takes care to  guarantee the rights of the High Courts against the  Proclamation, the rights of the Supreme Court are not  guaranteed. I only express the hope that the absence of any  mention of the Supreme Court in the proviso will not affect the  powers of that Court.  Shri T. T. Krisnamachari: It is not necessary because the  Central Government is subject to the jurisdiction of the  Supreme Court under all conditions.                                                                                              (Underlined for emphasis) Mr. Naziruddin Ahmad: As the honourable Member himself  has on a previous occasion said, this Constitution would be  the lawyers’ heaven. Speaking from experience, I think that  this proviso will lead to much legal battle, and lawyers alone  will be benefited by this. I wish that the interpretation put  forward by Mr. T. T. Krishnamachari is right, but it is not  apparent to me. When we come to clause (2) of Article 278, in  this clause it is stated that any such proclamation may be  revoked or varied by a subsequent proclamation.                                                                                  (underlined for emphasis)

Constituent Assembly met on 4th August 1949  The Constituent Assembly of India met in the Constitution  Hall, New Delhi, at Nine of the Clock, Mr. President (The  Honourable Dr. Rajendra Prasad) in the Chair.  Articles 188, 277-A and 278-continued.  xxx                             xxx                     xxx                     xxx Then coming to proposed Article 278-A sub-clause (a) and (b)  of clause (1) are new. Clause (a) is new and (b) is  consequential. The new point which has been introduced is  also revolutionary. Instead of allowing the Provincial  Legislatures to have their say on the emergency legislation and  thereby giving the Provincial Assemblies an opportunity to  assess the guilt or innocence of the Ministers or other person  or to give a verdict, the responsibility is thrown on the

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Parliament. ’That would again, as I submitted yesterday, go to  make the Central Government and the Parliament unpopular  in the State concerned. It may happen that Provincial  Ministers and others are guilty of mismanagement and  misgovernment; but if we do not allow the Provincial  Assemblies to sit in judgment over them, the result would be  that guilty or innocent persons, lawbreakers and law-abiding  persons, good or bad people in the State should all be  combined. The result would be that those for whose misdeeds  the Emergency Powers would be necessary, would be made so  many heroes; they would be lionised, and the object of  teaching them a lesson would be frustrated. The Centre would  be unpopular on the ground that it is poking its nose  unnecessarily and mischievously into their domestic affairs.  Then, Sir, in sub-clause (c) of clause (1) of this Article 278-A,  the President is expected to authorize and sanction the Budget  as the head of the Parliament. This would be an encroachment  on the domestic budget of the Provinces and the States. That  would be regarded with a great deal of dis-favour. It would  have been better to allow the Governor or the Ruler to function  and allow their own budget to be managed in their own way.  Subventions may be granted but that expenditure should not  be directly managed by the President.  Coming to clause (d) there is an exception in favour of  Ordinances under Article 102 to the effect that "the President  may issue Ordinances except when the Houses of Parliament  are in session". The sub-clause is misplaced in the present  Article. There is an appropriate place where Ordinances are  dealt with. Sub-clause (d) should find a place among the group  of Articles dealing with Ordinances and not here. This is again  the result of hasty drafting.  These are some of the difficulties that have been created.  It is not here necessary to deal with them in detail. The most  important consequence of this encroachment on the States  sphere would be that we would be helping the communist  techniques. Their technique is that by creating trouble in a  Province or a State, they would partially paralyse the  administration and thereby force the Emergency Powers.  Then, they will try to make those drastic powers unpopular.  What is more, they will make the guilty Ministers and guilty  officers heroes. The legislature of the State would, as I have  submitted, be deprived of the right of discussion. If the  President takes upon himself the responsibility of emergency  powers, then his action, I suppose, cannot be discussed in the  States legislatures. The only way of ventilating Provincial and  States grievances is to allow the Provinces and the States to  find out the guilty persons and hold them up to ridicule and  contempt and that would be entirely lost. This would have the  effect of bringing all sorts of people good and bad, law- breaking and law-abiding persons into one congregation. The  Centre will be unpopular and the guilty States would be  regarded as so many martyrs and the Centre would be flouted  and would be forced to use more and more Emergency Powers  and would be caught in a vicious circle. Then, the States will  gradually get dissatisfied and they will show centrifugal  tendencies and this will be reflected in the general elections to  the House of the People at the Centre. The result would be  that very soon these very drastic powers calculated to  strengthen the hands of the Centre will be rather a source of  weakness in no distant time.                                                                                                             (underlined for emphasis) xxx                                     xxx                             xxx There is an implication in Article 278 which is something  like saying, that you must overcome evil by good and meet  lawlessness with law. The President has no powers to meet

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undemocratic forces in the country except in a cratic manner.  It is like saying that the forces of evil must be overcome by the  forces of non-violence and good. Practical statesmen and law- makers will not accept this proposition easily.  Xxx                                     xxx                                     xxx Mr. President: Dr. Ambedkar.  The Honourable Dr. B. R. Ambedkar (Bombay : General) : Sir,  although these Articles have given rise to a debate which has  lasted for nearly five hours, I do not think that there is  anything which has emerged from this debate which requires  me to modify my attitude towards the principles that are  embodied in these Articles. I will therefore not detain the  House much longer with a detailed reply of any kind.  I would first of all like to touch for a minute on the  amendment suggested by my Friend Mr. Kamath in  Article  277-A. His amendment was that the word "and" should be  substituted by the word "or". I do not think that that is  necessary, because the word "and" in the context in which it is  placed is both conjunctive as well as disjunctive, which can be  read in both ways, "and" or "or", as the occasion may require.  I, therefore, do not think that it is necessary for me to accept  that amendment, although I appreciate his intention in  making the amendment.  The second amendment to which I should like to refer is that  moved by my Friend Prof. Saksena, in which he has proposed  that one of the things which the President may do under the  Proclamation is to dissolve the legislature. I think that is his  amendment in substance. I entirely agree that that is one of  the things which should be provided for because the people of  the province ought to be given an opportunity to set matters  right-by reference to the legislature. But I find that that is  already covered by sub-clause (a) of clause (1) of  Article 278,  because sub-clause (a) proposes that the President may  assume to himself the powers exercisable by the Governor or  the ruler. One of the powers which is vested and which is  exercisable by the Governor is to dissolve the House.  Consequently, when the President issues a Proclamation and  assumes these powers under sub-clause (a), that power of  dissolving the legislature and holding a now election will be  automatically transferred to the President which powers no  doubt the President will exercise on the advice of his  Ministers. Consequently my submission is that the proposition  enunciated by my Friend Prof. Saksena is already covered by  sub-clause (a), it is implicit in it and there is therefore no  necessity for making any express provision of that character.  Now I come to the remarks made by my Friend Pandit Kunzru.  The first point, if I remember correctly, which was raised by  him was that the power to take over the administration when  the constitutional machinery fails is a new thing, which is not  to be found in any constitution. I beg to differ from him and I  would like to draw his attention to the   Article contained in  the American Constitution, where the duty of the United  States is definitely expressed to be to maintain the Republican  form of the Constitution. When we say that the Constitution  must be maintained in accordance with the provisions  contained in this Constitution we practically mean what the  American Constitution means, namely that the form of the  constitution prescribed in this Constitution must be  maintained. Therefore, so far as that point is concerned we do  not think that the Drafting Committee has made any  departure from an established principle.  The other point of criticism was that Articles 278 and 278-A  were unnecessary in view of the fact that there are already in  the Constitution Articles 275 and 276. With all respect I must  submit that he (Pandit Kunzru) has altogether misunderstood

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the purposes and intentions which underlie  Article 275 and  the present Article 278. His argument was that after all what  you want is the right to legislate on provincial subjects. That  right you get by the terms of  Article 276, because under that   the Centre gets the power, once the Proclamation is issued, to  legislate on all subjects mentioned in List II. I think that is a  very limited understanding of the provisions contained either  in Articles 275 and 276 or in Articles 278 and 278-A.  I should like first of all to draw the attention of the House to  the fact that the occasions on which the two sets of Articles  will come into operation are quite different.  Article 275 limits  the intervention of the Centre to a state of affairs when there is  war or aggression, internal or external.  Article 278 refers to  the failure of the machinery by reasons other than war or  aggression. Consequently the operative clauses, as I said, are  quite different. For instance, when a proclamation of war has  been issued under Article 275, you get no authority to  suspend the provincial constitution. The provincial  constitution would continue in operation. The legislature will  continue to function and possess the powers which the  constitution gives it; the executive will retain its executive  power and continue to administer the province in accordance  with the law of the province. All that happens under  Article  276 is that the Centre also gets concurrent power of legislation  and concurrent power of administration. That is what happens  under Article 276. But when Article 278 comes into operation,  the situation would be totally different. There will be no  legislature in the province, because the legislature would have  been suspended. There will be practically no executive  authority in the province unless any is left by the  proclamation by the President or by Parliament or by the  Governor. The two situations are quite different. I think it is  essential that we ought to keep the demarcation which we  have made by component words of  Articles 275 and  278. I  think mixing the two things up would cause a great deal of  confusion.          Xxx                             xxx                     xxx                     xxx The Honourable Dr. B.R. Ambedkar:       Only when the  government is not carried on in consonance with the  provisions laid down for the constitutional government of the  provinces, whether there is good government or not in the  province is for the Centre to determine. I am quite clear on the  point.          Xxx                    xxx                     xxx                     xxx The Honorable Dr. B.R. Ambedkar: It would take me very long  now to go into a detailed examination of the whole thing and,  referring to each say, this is the print which is established in it  and say, if any government or any legislature of a province  does not act in accordance with it, that would act as a failure  of machinery. The expression "failure of machinery" I find has  been used in the Government of India Act, 1935. Everybody  must be quite familiar therefore with its de facto and de jure  meaning.  I do not think any further explanation is necessary.            Xxx                     xxx                     xxx                     xxx The Honourable Dr. B. R. Ambedkar: In regard to the general  debate which has taken place in which it has been suggested  that these Articles are liable to be abused, I may say that I do  not altogether deny that there is a possibility of these Articles  being abused or employed for political purposes. But that  objection applies to every part of the Constitution which gives  power to the Centre to override the Provinces. In fact I share  the sentiments expressed by my honourable Friend Mr. Gupte  yesterday that the proper thing we ought to expect is that  such Articles will never be called into operation and that they  would remain a dead letter. If at all they are brought into

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operation, I hope the President, who is endowed with these  powers, will take proper precautions before actually  suspending the administration of the provinces. I hope the  first thing he will do would be to issue a mere 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 that 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 these  two remedies fail that he would resort to this Article. It is only  in those circumstances he would resort to this Article. I do not  think we could then say that these Articles were imported in  vain or that the President had acted wantonly.  Shri H. V. Kamath : Is Dr. Ambedkar in a position to assure  the House that Article 143 will now be suitably amended?  The Honourable Dr. B. R. Ambedkar : I have said so and I say  now that when the Drafting Committee meets after the Second  Reading, it will look into the provisions as a whole and Article  143 will be suitably amended if necessary.  Mr. President: I will now put the amendment to vote one after  another.  The question is :  "That Article 188 be deleted."                  The motion was adopted.   Article 188 was deleted from the Constitution.  Mr. President: Then I will take up  Article 277-A. The question is :  "That in amendment No. 121 of List I (Second  Week) of Amendments to Amendments, in the  proposed new  Article 277-A, for the word  ’Union’ the words ’Union Government’ be  substituted."                  The amendment was negatived.  Mr. President: Now I will put amendment No. 221. The question is :  "That in amendment No. 121 of List I (Second  Week) of Amendments to Amendments in the  proposed new Article 277-A for the word ’and’  where it occurs for the first time, the word ’or’  be substituted."  

               The amendment was negatived.  Mr. President: The question is:  "That in Amendment No. 121 of List I (Second  Week) of Amendments to Amendments, for the  words ’internal disturbance’ the words  ’internal insurrection or chaos’ be  substituted."                  The amendment was negatived.  Mr. President : The question is : "That after  Article 277 the following new   Article be inserted:-  ’277-A. It shall be the duty of the Union to  protect every State against external aggression  and internal disturbance and to ensure that  the government of every State is carried on in  accordance with the provisions of this  Constitution."                  The motion was adopted,  Mr. President: The question is.:  "That Article 277-A stand part of the  Constitution."                  The motion was adopted.   Article 277-A was added to the Constitution.  Mr. President: The question is:

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"That in amendment No. 160 of List II.  (Second Week), of Amendments to  Amendments in clause (1) of the proposed   Article 278, for the word ’Ruler’ the words the  Rajpramukh’ be substituted."                  The amendment was negatived.  Mr. President: The question is:  "That in amendment No. 160 of List II (Second  Week) of Amendments to Amendments, in  clause (1) of the proposed  Article 278, the  words ’or otherwise’ be deleted."                  The amendment was negatived.  Mr. President : The question is:  "That in amendment No. 160 of List II (Second  Week): of Amendments to Amendments, in  clause (1) of the proposed  Article 278, after  the words ’is satisfied that’ the words ’a grave  emergency has arisen which threatens the  peace and tranquillity of the State and that’ be  added."                  The amendment was negatived.  Mr. President: The question is:  "That in amendment No. 160 of List II (Second  Week) of Amendments to Amendments for the  first proviso to clause (4) of the proposed   Article 278, the following be substituted-  ’Provided that the President may if he so  thinks fit order at any time, during this period  a dissolution of the State legislature followed  by a fresh general election, and the  Proclamation shall cease to have effect from  the day on which the newly elected legislature  meets in session’."                  The amendment was negatived.  Mr. President: The question is:   "That for Article 278, the following articles be  substituted  278(1). Provisions in case of failure of  constitutional machinery in States. - If the  President, on receipt of a report from the  Governor or Ruler of a State or otherwise, is  satisfied that the government of the State  cannot be carried on in accordance with the  provisions of the Constitution, the President  may by Proclamation-  (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 I the Governor or Ruler, as  the case may be, 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 :

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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 provisions of this  Constitution relating to High Courts.  (2)Any such Proclamation may be revoked or  varied by a subsequent Proclamation.  (3)Every Proclamation under this Article shall  be laid before each House of Parliament and  shall, except where it is a Proclamation  revoking a previous Proclamation, cease to  operate at the expiration of two months unless  before the expiration of that period it has been  approved by resolutions of both Houses of  Parliament :          Provided that if any such Proclamation is  issued at a time when the House of the People  is dissolved or if the dissolution of the House  of the People takes place during the period of  two months referred to in this clause and the  Proclamation has not been approved by a  resolution passed by the House of the People  before the expiration of that period, the  Proclamation shall cease to operate at the  expiration of thirty days from the date on  which the House of the People first sits after its  reconstitution unless before the expiration of  that period resolutions approving the  Proclamation have been passed by both  Houses of Parliament.  (4)A Proclamation so approved shall, unless  revoked, cease to operate on the expiration of  six months form the date of the passing of the  second of the resolutions approving the  Proclamation under clause (3) of this Article :          Provided that if and so often as a  resolution approving the continuance in force  of such a proclamation is passed: by both  Houses of Parliament, the Proclamation shall,  unless revoked, continue in force for a further  period of six months from the date on which  under this clause it would otherwise have  ceased to operate, but no such Proclamation  shall in any case remain in force for more than  three years:          Provided further that if the dissolution of  the House of the People takes place during  any, such period of six months and a  resolution approving the continuance in force  of such Proclamation has not been passed by  the House of the People during the said period,  the Proclamation shall cease to operate at the  expiration of thirty days from the date on  which the House of the People first sits after its  reconstitution unless before the expiration of  that period resolutions approving the  Proclamation have been passed by both  Houses of Parliament.  278-A. Exercise of legislative powers under  proclamation issued under Article 278. (1).  Where by a Proclamation issued under clause  (1) of  Article 278 of this Constitution it has  been declared that the powers of the  Legislature of the State shall be exercisable by

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or under the authority of Parliament, it shall  be competent-  (a) for Parliament to delegate the power to  make laws for, the State to the President or  any other authority specified by him in, that  behalf-  (b) for Parliament or for the President or other  authority to whom the power to make laws is  delegated under sub-clause (a) of this clause to  make laws conferring powers and imposing  duties or authorising the conferring of powers  and the imposition of duties upon the  Government of India or officers and authorities  of the Government of India.  (c) for the President to authorise when the  House of the People is not in session  expenditure from the Consolidated Fund of the  State pending the sanction of such  expenditure by Parliament;   (d)for the President to promulgate Ordinances  under Article 102 of this Constitution except  when both Houses of Parliament are in  session.  (2)Any law made by or under the authority of  Parliament which Parliament or the President  or other authority referred to in sub-clause (a)  of clause (1) of this Article would not, but for  the issue of a Proclamation under Article 278  of this Constitution, have been competent to  make shall to the extent of the incompetency  cease to have effect on the expiration of a  period of one year after the Proclamation has  ceased to operate except as respects things  done or omitted to be done before the  expiration of the said period unless the  provisions which shall so cease to have effect  are sooner repealed or re-enacted with or  without modification by an Act of the  Legislature of the State."                  The amendment was adopted.  Mr. President: The question is:  "That the proposed Article 278 stand part of  the Constitution."  The motion was adopted.   Article 278 was added to the Constitution.  Mr. President: The question is: "That proposed Article 278-A stand part of the  Constitution."                 The motion was adopted. Article 278-A was added to the Constitution.          In the Adoption of the Constitution the speech of Dr. B.R.  Ambedkar on 25.11.1949 contained the following significant  observations: "As much defence as could be offered to the  Constitution has been offered by my friends  Sir Alladi Krishnaswami Ayyar and Mr. T.T.  Krishnamachari. I shall not therefore enter  into the merits of the Constitution. Because I  feel, however good a Constitution may be, it is  sure to turn out bad because  those who are  called to work it, happen to be a bad lot.  However bad a Constitution may be, it may  turn out to be good if those who are called to  work it, happen to be a good lot. The working  of a Constitution does not depend wholly upon

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the nature of the Constitution. The  Constitution can provide only the organs of  State such as the legislature, the executive and  the judiciary. The factors on which the working  of those organs of State depends are the people  and the political parties they will set up as  their instrument to carry out their wishes and  their politics. Who can say how the people of  India and their parties will behave? Will they  uphold constitutional methods of achieving  their purposes or will they prefer revolutionary  methods of achieving them? If they adopt the  revolutionary methods, however good the  Constitution may be, it requires no prophet to  say that it will fail. It is, therefore, futile to  pass any judgment upon the Constitution  without reference to the part which the people  and their parties are likely to play................  Jefferson, the great American statesman who  played so great a part in the making of the  American Constitution, has expressed some  very weighty views which makers of  Constitutions can never afford to ignore. In  one place, he has said: "We may consider each generation as a  distinct nation, with a right, by the will of  the majority, to bind themselves, but  none to bind the succeeding generation,  more than the inhabitants of another  country." In another place, he has said: "The idea that institutions established for  the use of the nation cannot be touched  or modified, even to make them answer  their end, because of rights gratuitously  supposed in those employed to manage  them in the trust for the public, may  perhaps be a salutary provision against  the abuses of a monarch, but is mot  absurd against the nation itself. Yet our  lawyers and priests generally inculcate  this doctrine, and suppose that preceding  generations held the earth more freely  than we do; had a right to impose laws on  us, unalterable by ourselves, and that we,  in the like manner, can make laws and  impose burdens on future generations,  which they will have no right to alter; in  fine, that the earth belongs to the dead  and not the living."   I admit that what Jefferson has said is not  merely true, but is absolutely true. There can  be no question about it. Had the Constituent  Assembly departed from this principle laid  down by Jefferson it would certainly be liable  to blame even to condemnation. But I ask, has  it? Quite the contrary. One has only to  examine the provisions relating to the  amendment of the Constitution. The Assembly  has not only refrained from putting a seal of  finality and infallibility upon this Constitution  by denying to the people the right to amend  the Constitution as in Canada or by making  the amendment of the Constitution subject to  the fulfillment of extraordinary terms and

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conditions as in America or Australia, but has  provided a most facile procedure for amending  the Constitution. I challenge any of the critics  of the Constitution to prove that any  Constituent Assembly anywhere in the world  has, in the circumstances in which this  country finds itself, provided such a facile  procedure for the amendment of the  Constitution. If those who are dissatisfied with  the Constitution have only to obtain a two- thirds majority and if they cannot obtain even  a two-thirds majority in the Parliament elected  on adult franchise in their favour, their  dissatisfaction with the Constitution cannot be  deemed to be shared by the general public.          There is only one point of constitutional  import to which I propose to make a reference.  A serious complaint is made on the ground  that there is too much of centralization and  that the States have been reduced to  municipalities. It is clear that this view is not  only an exaggeration, but is also founded on a  mis-understanding of what exactly the  Constitution contrives to do. As to the relation  between the Centre and the State, it is  necessary to bear in mind the fundamental  principle on which it rests. The basic principle  of federalism is that the legislative and  executive authority is partitioned between the  Centre and the States not by any law to be  made by the Centre but by the Constitution  itself. That is what the Constitution does. The  States under our Constitution are in no way  dependent upon the Centre for their legislative  or executive authority. The Centre and the  States are co-equal in this matter. It is difficult  to see how such a Constitution can be called  centralism. It may be that the Constitution  assigns to the Centre a larger field for the  operation of its legislative and executive  authority than is to be found in any other  federal Constitution. It may be that the  residuary powers are given to the Centre and  not to the States. But these features do not  form the essence of federalism. The chief mark  of federalism, as I said, lies in the partition of  the legislative and executive authority between  the Centre and the units by the Constitution.  This is the principle embodied in our  Constitution. There can be no mistake about  it. It is, therefore, wrong to say that the States  have been placed under the Centre. The Centre  cannot by its own will alter the boundary of  that partition. Nor can the judiciary. For as  has been well said:         "Courts may modify, they cannot  replace. They can revise earlier  interpretations as new arguments, new  points of view are presented, they can  shift the dividing line in marginal cases,  but there are barriers they cannot pass,  definite assignments of power they  cannot reallocate. They can give a  broadening construction of existing  powers, but they cannot assign to one

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authority powers explicitly granted to  another." The first charge of centralization defeating  federalism must therefore fall.         

       As noted above, the Governor occupies a very important  and significant post in the democratic set up. When his  credibility is at stake on the basis of allegations that he was  not performing his constitutional obligations or functions in  the correct way, it is a sad reflection on the person chosen to  be the executive Head of a particular State. A person  appointed as a Governor should add glory to the post and not  be a symbolic figure oblivious of the duties and functions  which he has is expected to carry out. It is interesting to note  that allegations of favouratism and mala fides are hurled by  other parties at Governors who belonged or belong to the  ruling party at the Centre, and if the Governor at any point of  time was a functionary of the ruling party. The position does  not change when another party comes to rule at the Centre. It  appears to be a matter of convenience for different political  parties to allege mala fides. This unfortunate situation could  have been and can be avoided by acting on the  recommendations of the Sarkaria Commission and the  Committee of the National Commission To Review The Working  Of The Constitution in the matter of appointment of  Governors. This does not appear to be convenient for the  parties because they want to take advantage of the situation at  a particular time and cry foul when the situation does not  seem favourable to them. This is a sad reflection on the morals  of the political parties who do not loose the opportunity of  politicizing the post of the Governor. Sooner remedial  measures are taken would be better for the democracy.  

       It is not deficiency in the Constitution which is  responsible for the situation. It is clearly attributable to the  people who elect the Governors on considerations other than  merit. It is a disturbing feature, and if media reports are to be  believed, Raj Bhawans are increasingly turning into extensions  of party offices and the Governors are behaving like party  functionaries of a particular party. This is not healthy for the  democracy.         The key actor in the Centre-State relations is the  Governor who is a bridge between the Union and the State.  The founding fathers deliberately avoided election to the office  of the Governor, as is in vogue in the U.S.A. to insulate the  office from the linguistic chauvinism. The President has been  empowered to appoint him as executive head of the State  under Article 155 in Part VI, Chapter II. The executive power of  the State is vested in him by Article 154 and exercised by him  with the aid and advice of the Council of Ministers, the Chief  Minister as its head. Under Article 159 the Governor shall  discharge his functions in accordance with the oath to protect  and defend the Constitution and the law. The office of the  Governor, therefore, is intended to ensure protection and  sustenance of the constitutional process of the working of the  Constitution by the elected executive and given him an  umpire’s role. When a Gandhian economist Member of the  Constituent Assembly wrote a letter to Gandhiji of his plea for  abolition of the office of the Governor, Gandhiji wrote to him  for its retention, thus; the Governor had been given a very  useful and necessary place in the scheme of the team. He  would be an arbiter when there was a constitutional dead lock  in the State and he would be able to play an impartial role.  There would be administrative mechanism through which the  constitutional crisis would be resolved in the State. The

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Governor thus should play an important role. In his dual  undivided capacity as a head of the State he should  impartially assist the President. As a constitutional head of the  State Government in times of constitutional crisis he should  bring about sobriety. The link is apparent when we find that  Article 356 would be put into operation normally based on  Governor’s report. He should truthfully and with high degree  of constitutional responsibility, in terms of oath, inform the  President that a situation has arisen in which the  constitutional machinery in the State has failed and the  Government of State cannot be carried on in accordance with  the provisions of the Constitution, with necessary detailed  factual foundation.         It is incumbent on each occupant of every high office to  be constantly aware of the power in the High Office he holds  that is meant to be exercised in public interest and only for  public good, and that it is not meant to be used for any  personal benefit or merely to elevate the personal status of the  current holder of that office.         In Sarkaria Commission’s report it was lamented that  some Governors were not displaying the qualities of  impartiality and sagacity expected of them. The situation does  not seem to have improved since then.          Reference to Report of the Committee of Governors (1971)  would also be relevant. Some relevant extracts read as follows:

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

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

Prof. Wade further observes:

"It will be seldom that all these conditions  can be satisfied. Particularly dangerous to  a constitutional Sovereign is the situation

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which would arise if having refused a  dissolution to the outgoing Prime Minister  he was faced by an early request from his  successor for a general election. Refusal  might be justified if there was general  agreement inside and outside the House of  Commons that a general election should  be delayed and clearly it would be  improper for a Prime Minister to rely on  defeat on a snap vote to justify an  election".  

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

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

       Xxx                     xxx                     xxx                      

       We may first examine the precise import of  Article 356 which sanctions President’s rule in a  State in the event of a break-down of the  constitutional machinery. Four our present purpose,  it is enough to read the language of clause (1) of the  Article:                 Article 356(1): 356. 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

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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.

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

       While the Proclamation is in operation,  Parliament becomes the Legislature for the State, and  the Council of Ministers at the Centre is answerable  to Parliament in all matters concerning the  administration of the State. Any law made pursuant  to the powers delegated by Parliament by virtue of the  Proclamation is required to be laid before Parliament  and is liable to modification by Parliament. Thus, a  state under President’s rule under Article 356  virtually comes under the executive responsibility  and control of the Union Government. Responsible  government in the State, during the period of the  Proclamation, is replaced by responsible government  at the Centre in respect of matters normally in the  State’s sphere.  

       In discussing Article 356, attention is inevitably  drawn to Section 93 of the Government of India Act,  1935. This section had attained a certain notoriety in  view of the enormous power that it vested in the  Governor and the possibility of its misuse,  the

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Governor being the agent of the British Government.  Many of the leading members of the Constituent  Assembly had occupied important positions as  Ministers in the Provinces following the inauguration  of Provincial autonomy and had thus first-hand  experience of the working of this particular section  and the possible effect of having in the Constitution a  provision like Section 93. There was, therefore,  considerable discussion, both in the Constituent  Assembly and in the Committees, on the advisability,  or necessity, of incorporating the provision in the  Constitution. Pandit H.N. Kunzru, who had serious  apprehensions regarding this provision, suggested  the limiting of the Governor’s functions to merely  making a report to the President, it being left to the  President to take such action as he considered  appropriate on the report. Pandit Govind Ballabh  Pant agreed with Pandit Kunzru in principle. The  former referred in particular to the administrative  difficulties that would be created by giving powers to  the Governor to act on his own initiative over the  head of his Ministers.        

       The whole question was examined at a meeting  of the Drafting Committee with Premiers of Provinces  on July 23, 1949. Pandit Pant again expressed the  view that the Governor should not come into the  picture as an authority exercising powers in his  discretion. Armed with such powers, he would be an  autocrat and that might lead to friction between him  and his Ministers.  

       Shri Alladi Krishnaswami Ayyar tried to allay  apprehensions in the minds of the members of the  Constituent Assembly about the similarity between  Section 93 of the Government of India Act and the  provision made in Article 356 of the Constitution. He  said in the Constituent Assembly:      

"There is no correspondence whatever  between the old section 93 (of the  Government of India Act, 1935) and this  except in regard to the language in some  parts. Under Section 93, the ultimate  responsibility for the working of Section 93  was the Parliament of great Britain which  was certainly representative of the people  of India, whereas under the present article  the responsibility is that of the Parliament  of India which is elected on the basis of  universal franchise, and I have no doubt  that not merely the conscience of the  representatives of the State concerned but  also the conscience of the representatives  of the other units will be quickened and  they will see to it that the provision is  properly worked. Under those  circumstances, except on the sentimental  objection that it is just a repetition of the  old Section 93, there is no necessity for  taking exception to the main principle  underlying this article".

       In winding up the debate on the emergency  provisions, Dr. Abmedkar observed:

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

       Dr. Ambedkar’s hope that this provision would  be used sparingly, it must be admitted, has not been  fulfilled. During the twenty-one years of the  functioning of the Constitution, President’s rule has  been imposed twenty-four times- the imposition of  President’s rule in Kerala on  November 1, 1956, was  a continuation of President’s rule in Travancore- Cochin imposed earlier on March 23, 1956- the State  of Kerala having been under President’s rule five  times and for the longest period. Out of seventeen  States (not taking into account PEPSU which later  merged into Punjab, and excluding Himachal  Pradesh which became a State only recently), eleven  have had spells of President’s rule. The kind of  political instability in some of the states that we have  witnessed and the politics of defection which has so  much tarnished the political life of this country were  not perhaps envisaged in any measure at the time  the Constituent Assembly considered the draft  Constitution. No Governor would, it can be safely  asserted, want the State to be brought under  President’s rule except in circumstances which leave  him with no alternative.     

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

       Some of the circumstances in which President’s  rule may have to be imposed have already been  discussed. What is important to remember is that  recourse to Article 356 should be the last resort for a  Governor to seek. A frequent criticism of the  Governor in this connection is that he sometimes

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acts at the behest of the Union Government. This  criticism emanates largely from a lack of appreciation  of the situations which confront the Governors.  Imposition of President’s rule normally results in the  President vesting the Governor with executive  functions which belong to his Council of Ministers  This is a responsibility which no Governor would  lightly accept. Under President’s rule he functions in  relation to the administration of the State under the  superintendence, direction and control of the  President and concurrently with him by virtue of an  order of the President.  

       As Head of the State, the Governor has a duty to  see that the administration of the State does not  break down due to political instability. He has  equally to take care that responsible Government in  the State is not lightly disturbed or superseded. In  ensuring these, it is not the Governor alone but also  the political parties which must play a proper role.  Political parties come to power with a mandate from  the electorate and they owe primary responsibility to  the Legislature. The norms of parliamentary  government are best maintained by them.  

       Before leaving this issue, we would like to state  that it is not in the event of political instability alone  that a Governor may report to the President under  Article 356. Reference has been made elsewhere in  this report to occasions where a Governor may have  to report to the President about any serious internal  disturbances in the State, or more especially of the  existence or possibility of a danger of external  aggression. In such situations also it may become  necessary for the Governor to report to the President  for action pursuant to Article 356.    

       It is difficult to lay down any precise guidelines  in regard to the imposition of President’s rule. The  Governor has to act on each occasion according to  his best judgment, the guiding principle being, as  already stated, that the constitutional machinery in  the State should, as far as possible, be maintained.  

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

"(1)    the desire to carry on the traditions of  constitutional government;

(2)     the wish to keep the intricate  machinery of the ship of State in working  order;

(3)     the anxiety to retain the confidence of  the public, and with it office and power".

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

       This exposition of the nature of conventions will  show that, if they have to be observed and followed,  the primary responsibility therefor will rest on those  charged with the responsibility of government. In a  parliamentary system, this responsibility  unquestionably belongs to the elected representatives  of the people who function in the Legislatures. They  are mostly members of political parties who seek the  suffrage of the electorate on the basis of promises  made and programmes announced. The political  parties, therefore, are concerned in the evolution of  healthy conventions so that they "retain the  confidence of the public, and, with it, office and  power".

"I feel that it (the Constitution) is workable,  it is flexible and it is strong enough to hold  the country together both in peace time  and in war time. Indeed if I may say so, if  things go wrong under the new  Constitution, the reason will not be that  we had a bad Constitution. What we will  have to say is, that Man was vile."

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

       Conventions evolve from experience and from  trial and error. The working of our Constitution  during the past twenty-one years has exposed not so  much any weaknesses in our political life. Some of  the weaknesses will be evident from the discussions  in the earlier part of this Report. The Governors,  under our Constitution, do not govern; government is  the primary concern of the Council of Ministers  which is responsible to the Legislature and the  people. Therefore, for a purposeful evolution of

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conventions, the willing co-operation of the political  parties and their readiness to adhere to such  conventions are of paramount importance. In recent  years, it has been a regrettable feature of political life  in some of the States, with the growing number of  splinter parties, some of them formed on the basis of  individual or group alignments and not of well- defined programmes or policies, that governments are  formed with a leader- a Chief Minister -  who comes  to that office not as of a right, with the previous  acquiescence of followers and the deference of his  colleagues, but as being the most "acceptable"  candidate for the time. Much of his time and efforts  are, therefore, inevitably spent in finding expedients  to keep himself in power and the Cabinet alive".

In Special Reference NO.1 of 2002 case (supra) in  paragraphs 55 and 56 it was observed as follows: "55.    It was then urged on behalf of the Union  that under Article 174 what is dissolved is an  Assembly while what is prorogued is a House.  Even when an Assembly is dissolved, the  House continues to be in existence. The  Speaker continues under Article 94 in the case  of the House of the People or under Article 179  in the case of the State Legislative Assembly  till the new House of the People or the  Assembly is constituted. On that premise, it  was further urged that the fresh elections for  constituting a new Legislative Assembly have  to be held within six months from the last  session of the dissolved Assembly.

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

       Article 172 provides for duration of the State  Legislatures. The Superintendence, direction and control of  the elections to Parliament and to the Legislatures of every  State vest in the Election Commission under Article 324.  Article 327 provides that Parliament may make provision with  respect to all matters relating to, or in connection with,  elections to the Legislative Assembly of a State and all other  matters necessary for securing the due constitution of the  House of the Legislature. Conjoint reading of Article 327 of the  Constitution and Section 73 of the R.P. Act makes the position  clear that the Legislative Assembly had been constituted. No  provision of the Constitution stipulates that the dissolution  can only be after the first meeting of the Legislature. Once by  operation of Section 73 of the R.P. Act the House or Assembly  is deemed to be constituted, there is no bar on its dissolution.     Coming to the plea that there was no Legislative  Assembly in existence as contended by Mr. Viplav Sharma,  appearing in person the same clearly overlooks Section 73 of  the R.P. Act. There is no provision providing differently in the  Constitution. There is no challenge to the validity of the  Section 73 of the R.P. Act, which is in no way repugnant by  any provision to the Constitution. That being so, by operation  of Section 73 of the R.P. Act the Assembly was duly  constituted. The stand that the Governor was obliged to  convene the Session for administering oath to the members  and for formation of a Cabinet thereafter has no relevance and  is also not backed by any constitutional mandate. There was

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no compulsion on the Governor to convene a session or to  install a Cabinet unless the pre-requisites in that regard were  fulfilled. The reports of the Governor clearly indicated that it  was not possible to convene a session for choosing a Chief  Minister or for formation of a Cabinet.          Even if hypothetically it is held that the dissolution  notifications are unsustainable, yet restoration of status quo  ante is not in the present case the proper relief.  As noted  supra, no stake was claimed by any person before the  Governor. The documents relied upon to show that a majority  existed lack authenticity and some of them even have the  stamp of manipulation.  The elections as scheduled had  reached on an advanced stage. Undisputedly, the Election  Commission had made elaborate arrangements. It would be  inequitable to put the clock back and direct restoration of  stats quo ante.   In Public Law 2005, some interesting write-ups are there  which have relevance.  They read as follows:                 "Judicial review-Power of the court to limit the  temporal effect of the annulment of an administrative  decision, postpone the date at which it will produce  effects and qualify the extent of the nullity.         Under French welfare law, agreements relating to  unemployment allowances are private agreements  signed by unions and employers’ associations- but  they enter into force only if approved by the Minister  for Social Affairs. They then become compulsory for  all. Several associations defending the rights of the  unemployed brought an action against ministerial  decisions approving such agreements. Standing was  granted. The decisions were quashed on procedural  grounds, i.e. the composition of the committee which  had to be consulted and the way the consultation took  place. The issues at stake related to the date at which  this annulment would enter into force and to its  effects. The matter was an extremely sensitive one,  socially and politically; the scope and amount of  unemployment allowances. To say nothing would have  led to the application of the principle according to  which nullity is retroactive. An annulled decision is  supposed never to have existed. It is therefore  impossible to maintain its effects for a certain time.  Such are the strict requirements of the principle of  legality. On the other hand, the court cannot disregard  the practical consequences of its decision, not only for  the parties, but for a larger public, especially in such  an area. These consequences may affect not only the  functioning of a public service but also the rights of  individuals. They may create a legal void, and social  havoc.          Hence the idea of allowing the court, when it annuls  an administrative decision, to include in its judgment  specific orders as to whether  and when the  annulment will produce effects and, if so, which  persons might be in a special position. Such a  discretion has been used for a long time by both  European courts.  The European Court of Human  Right’ judgment in Marckx v. Belgium (1979-80) 2  E.H.R.R. 330, is an apt illustration. As for the ECJ, it  construed broadly the second paragraph of Art. 231  EC (formerly Art.174) according to which: "In the case  of a regulation, however, the Court of Justice shall, if it  considers this necessary, state which of the effects of  the regulation which it has declared void shall be  considered as definitive". This derogation to the ex

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tunc effect has been applied in cases relating not only  to regulations, but also to preliminary rulings  concerning interpretation (Case C-43/75 Defrenne v.  Sabena (1976 E.C.R. 455; Case C-61/79 Denkjavit  Italiana (1980 E.C.R. 1205; Case C-4/79 Societe  Cooperative Providence agricole de la Champagne  (1980 ECR 2823; Case C-109/79 Maiseies de Beauce  (1980 E.C.R. 2882; Case-145/79 Societe Roquette  Freres (1980 E.C.R. 2917), directives (Case C-295/90  European Parliament v. Council (1992 E.C.R. I-4193)  and decisions (Case C-22/96) European Parliament v  Council (1998 E.C.R. I-3231). The ECJ held that the  use of such a power was justified in order to take into  account "imperious considerations of legal certainty  relating to all interests at stake, public and private". In  doing so, however, the Court’s decisions could harm  the rights of the very petitioners who wanted the Court  to arrive at the decision it took. Hence the dissenting  decisions of several national higher courts, such as the  Italian Constitutional Court (April 21, 1989, Fragd)  and the Conseil d’Etat (June 28, 1985, Office national  interprofessionnel des cereales o Societe Maiseries de  Beauce, concl. Genevois, RTDE, 1986, 145; July 26,  1985; Office national interprofessionnel des cereales,  p.233, concl. Genevois AJDA, 1985; June 13, 1986,  Office national interprofessionnel des cereales, concl.  Bonichot, RTDE 1986, 533). This is why the ECJ took  some precautions to protect the rights of persons who  had previously brought an action or an equivalent  claim. Some ECJ judgments led to the inclusion of  special clauses into the EC Treaty, as shown by the  Maastricht Treaty Protocol 2 (the "Barber Declaration")  following the ECJ’s judgment in Case C-262/88  Barber v. Guardian Royal Exchange Assurance Group  (1991 (1) Q.B. 344). This Protocol limits the effects  ratione temporis (before May 17, 1990) of Article 141  EC. The ECJ has been explicit on the considerations it  takes into account to use such powers. They relate, on  the whole, to legal certainty lato sensu, i.e. to the  concrete effects of its decision on existing legal  situations, and the desirability of avoiding the creation  of a legal void. Many European constitutional courts  have a similar power.          The Conseil d’Etat had never affirmed that it had  such a faculty. It was not, however, entirely unaware  of the issue; in Vassilikiotis, June 26, 2001, p. 303 it  annulled a ministerial decision in so far as it did not  state how the permit necessary for guides in museums  and historical monuments would be granted to  persons with diplomas of other EU Member States.  The judgment added precise and compulsory  prescriptions telling the Administration exactly what it  should do, even before revising the regulation.  Otherwise an unlawful domestic regulation would have  remained in force, perpetuating discrimination  contrary to EC law. It thus held that the  Administration was under an obligation to enact, after  a reasonable delay, the rules applying to the persons  mentioned above. Meanwhile the decision forbade the  Administration to prevent EU nationals from guiding  visits on the ground that they did not possess French  diplomas. It belonged to the competent authorities to  take, on a case-by-case basis, the appropriate  decisions and to appreciate the value of the foreign  diplomas (see also July 27, 2001, Titran, P.411)

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       In Association AC, a case that lent itself to such a  move, the Conseil d’Etat decided to innovate and to  give administrative courts new powers. The new  principles affirmed may be summed up as follows:         1.      The principle is that an annulled administrative  decision is supposed never to have existed.         2.      However, such a retroactive effect may have  manifestly excessive consequences in view of (a) the  previous effects of the annulled decision and of the  situations thus created and (b) the general interest  which could make it desirable to maintain its effects  temporarily.         3.      If so, administrative courts are empowered to  take specific decisions as to the limitation of the  effects, in time, of the annulment.         4.      They may do so after having examined all  grounds relating to the legality of the decision and  after asking the parties their opinion on such a  limitation.         5.      They must take into account (a) the  consequences of the retroactivity of the annulment for  the public and private interests at stake and (b) the  effects of such a limitation on the principle of legality  and on the right to an effective remedy.         6.      Such a limitation should be exceptional.         7.      The rights of the persons who brought an  action, before the court’s judgment, against the  annulled decision must be preserved.         8.      The court may decide that all or part of the  effects of the decision prior to its annulment will be  regarded as definitive, or that the annulment will come  into force at a later time as determined by the  judgment.                 In the present case the Conseil d’Etat annulled  a number of ministerial decisions. It also annulled  other ones, but only from July 1 onwards, thus giving  seven weeks to the Minister. The rights of persons who  had earlier brought an action were explicitly preserved.  The effects of a third group of annulled decisions were  declared to be definitive, with the same reservation.                 Several comments are in order on this  important judgment. The influence of the ECJ’s case  law and of its use of the ex nunc/ex tunc effect is  evident. The judgment is also an apt illustration of a  renewal of the conception of the role of administrative  courts. It no longer stops when judgment is given.  More and more attention is given to its effects, its  practical consequences for all, the way it must be  implemented by the Administration and its  repercussions on the rights of individuals. Hence the  attention given to the ways and means to conciliate the  two basic principles of legality and of legal certainty  (securite juridique). The latter is more and more seen  as a pressing social need, to borrow the vocabulary of  the European Court of Human Rights. A strong  illustration is the recent case law of the Cour de  cassation restricting the scope not only of lois de  validation but also of retroactive "interpretative  statutes", on the basis of Articles 6(1) and 13 ECHIR:  see Cass.plen. Janaury 24, 2003, Mme X o Association  Promotion des handicape’s dans le Loiret, and Cass.  Civ. April 7, 2004, in Bulletin d’information de la Cour  de cassation, March 15, 2004, with the report of Mme  Favre. The discretion of the courts is a two-fold one; on  whether to use such a faculty and on how to use it.

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One last-prospective-remark: might the next step be  the limitation, by the courts, of the effects in time of a  change in the case law?"  

To Sum up:

       So far as scope of Article 361 granting immunity to the  Governor is concerned, I am in respectful agreement with the  view expressed by Hon’ble the Chief Justice of India.

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

(2)     The impugned Notifications do not suffer from any  constitutional invalidity. Had the Governor tried to stall  staking of claim regarding majority that would have fallen foul  of the Constitution and the notifications of dissolution would  have been invalid. But, the Governor recommended  dissolution on the ground that the majority projected had its  foundation on unethical and corrupt means which had been  and were being adopted to cobble a majority, and such action  is not constitutional. It may be a wrong perception of the  Governor. But it is his duty to prevent installation of a Cabinet  where the majority has been cobbled in the aforesaid manner.  It may in a given case be an erroneous approach, it may be a  wrong perception, but it is certainly not irrational or irrelevant  or extraneous.    (3)     A Public Interest Litigation cannot be entertained where  the stand taken was contrary to the stand taken by those who  are affected by any action. In such a case the Public Interest  Litigation is not to be entertained. That is the case here.  

(4)     Hypothetically even if it is said that the dissolution  notifications were unconstitutional, the natural consequence  is not restoration of status quo ante. The Court declaring the  dissolution notifications to be invalid can assess the ground  realities and the relevant factors and can mould the reliefs as  the circumstances warrant. In the present case restoration of  the status quo ante would not have been the proper relief even  if the notifications were declared invalid.           (5)     The Assembly is constituted in terms of Section 73 of the  R.P. Act on the conditions indicated therein being fulfilled and  there is no provision in the Constitution which is in any  manner contrary or repugnant to the said provision.  On the  contrary, Article 327 of the Constitution is the source of power  for enactment of Section 73.

(6)     In terms of Article 361 Governor enjoys complete  immunity. Governor is not answerable to any Court for  exercise and performance of powers and duties of his office or  for any act done or purporting to be done by him in the  exercise of those powers and duties. However, such immunity  does not take away power of the Court to examine validity of  the action including on the ground of mala fides.   

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

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