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PETITIONER: STATE OF RAJASTHAN & ORS.  ETC. ETC.

       Vs.

RESPONDENT: UNION OF INDIA ETC. ETC.

DATE OF JUDGMENT06/05/1977

BENCH: BEG, M. HAMEEDULLAH (CJ) BENCH: BEG, M. HAMEEDULLAH (CJ) CHANDRACHUD, Y.V. BHAGWATI, P.N. GOSWAMI, P.K. GUPTA, A.C. UNTWALIA, N.L. FAZALALI, SYED MURTAZA

CITATION:  1977 AIR 1361            1978 SCR  (1)   1  1977 SCC  (3) 592  CITATOR INFO :  D          1978 SC  68  (38,63,143,150,158,196,198,201  RF         1978 SC 499  (14)  RF         1979 SC 478  (76,124)  RF         1980 SC 653  (11)  RF         1980 SC1789  (104)  R          1981 SC2138  (4)  R          1982 SC 149  (60,618,981)  O          1982 SC 710  (25,27)  R          1984 SC1675  (10)  D          1985 SC1416  (142)  E&R        1987 SC 331  (35,36)  RF         1992 SC2219  (87)

ACT: Constitution  of India, 1950, Articles 131, 256,  257-Advice by Home Minister, Union of India to Chief Minister of  State dated 18-4-1977 to recommend under Art. 163 to the  Governor to  dissolve  Legislative Assembly  under  Art.  174(2)(b).- Nature  of the advice, whether any relief as prayed  for  in the suits and petitions can be granted. Doctrine of Rough separation of powers-Nature of-Duty of the court  regarding  questions  involving  policy  matters  and constitutional  issues-Constitution of India, 1950,  Article 131. President’s  satisfaction  under  Art.  356-Whether  such  a satisfaction can be based only on Governor’s report-Power of court to question such satisfaction-Second part of Art.  355 covers  Proclamation  under Article 356-Direction  by  Union Government  under Articles 256, 257 to the State  Government to   recommend  to  the  Governor  to  dissolve  the   State Legislature,  whether such a direction is  unconstitutional, illegal   and  ultra  vires-Constitution  of  India,   1950, Articles 74, 163, 174, 255, 256, 257, 355 and 356(1)(a). Words and phrases-"State" whether means "State  Government"- Constitution  of India, 1950, Article 367 read with  General Clauses Act, 1897. Constitution  of India, 1950, Article 131-Whether powers  of the  Supreme  Court  to  grant relief  under  Art.  131  are restricted to "declaratory judgments".

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Constitution of India, 1950, Articles 19(1) (f), 31 and  32, 195  and 356-Rights of Members of Assemblies to  draw  their salary under Art. 195-Nature of-Whether as a consequence  of the  threatened dissolution of Legislative Assembly  or  the Proclamation under Art. 356(1) dissolving States  Assemblies the  rights  guaranteed to the  petitioners/Legislators  are violated. Injunction-Permanent/temporary injunction-Order XXXIX C.P.C. read  with  Order  XLVII of the Supreme  Court  Rules  1966- Whether a proper relief in a suit challenging a proclamation under Art. 356. Constitution    of   India,   1950,   Articles   95,    131, maintainability  of  a  suit under Art.  131  and  the  writ petitions  under  Article  32-Constitution  of  India,  Art. 356(1) scope and ambit of the power of the President.

HEADNOTE: Under  Article 74(1) of the Constitution "there shall  be  a Council of Ministers to aid and advise the President in  the exercise  of  his  functions".  Under  Article  163  of  the Constitution there shall be a Council of Ministers with  the Chief Minister at the head to aid and advise the Governor of a State in the exercise of his functions, except insofar  as by  or  under  the Constitution  required  to  exercise  his functions or any of them in his discretion.  Both under Art. 74  and Art. 163 the question whether any, and if  so  what, advice  was  tendered  by the Council of  Ministers  to  the President/Governor  shall not be inquired into in any  court Under Article 174(2)(b), the Governor may from time to, time dissolve  the Legislative Assembly.  Under Article 172(1)  a Legislative  Assembly of "a State, unless sooner  dissolved, shall continue for six years from the date appointed for its meeting and no longer and the expiration of the said  period of six years shall operate as a dissolution of the Assembly. Articles  256 & 257 enjoin that the executive powers of  the Union  shall  extend to the giving of such directions  to  a State  as  may  appear  to the Government  of  India  to  be necessary  for that purpose.  Under Art. 355, "it  shall  be the duty of the Union to ensure that the Government of every State is carried on in accordance with the provisions of the Constitution." Article 356 empowers the President to  assume to himself all or any of the functions of the Government  of the State and all or any of the powers 2 vested in or exercisable by the Governor or any body or  any authority  in  the State other than the Legislature  of  the State,  if  on receipt of a report from the  Governor  of  a 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 the Constitution.   Under sub-section (5) of Art. 356 "notwithstanding anything in the Constitution,  the satisfaction of the President  in  clause (1)  shall  be  final  and  conclusive  and  shall  not   be questioned in any court on any ground. The  Lok Sabha in which the Congress(R) had an  overwhelming majority  was dissolved on January 8, 1977 though under  the Constitution  (Forty  Second Amendment Act) it  had  another year  to run out its extended term.  In the fresh  elections held  in March 1977 the ruling party lost its  majority  and went out of power which it had exercised since independence. On  March 24, 1977, the, Janata Party which had  secured  an overwhelming majority of votes of the electorate, formed the new  Government at the Centre.  On the date that the  Janata

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Government  took  office, the Congress (R) was in  power  in various  States including Bihar, Haryana, Himachal  Pradesh, Madhya Pradesh, Orissa, Punjab, Rajasthan, Uttar Pradesh and West Bengal. On  April  18,  1977, the Union Home  Minister  addressed  a letter  to the Chief.  Ministers of these States  "earnestly commending" for their consideration that they may advise the Governors of their respective States "to dissolve the  State Assemblies  in exercise of the powers under  Art.  174(2)(b) and  seek a fresh mandate from the electorate.   This  alone according to the Home Minister’s letter would be "consistent with constitutional precedents and democratic practices." In  an  interview  on April 22, 1977,  in  the  "Spot  Light Programme" of All India Radio, Shri Shanti Bhushan, Minister of Law, Justice and Company Affairs said that "a clear  case had  been made out for the dissolution of the Assemblies  in the   nine  congress-ruled  states  and  holding  of   fresh elections"  since  "a serious doubt has been cast  on  their enjoying  the people’s confidence, their party  having  been rejected in the recent Lek Sabha elections." A report of the said interview appeared in various newspapers including  the "Statesman"  of  the  23rd April.  The  correctness  of  the report is not disputed. The  six plaintiff-States, namely, the State  of  Rajasthan, Madhya  Pradesh, Punjab, Bihar, Himachal Pradesh and  Orissa filed suits in this court praying for a declaration that the letter of the Home Minister was illegal, and ultra vires  of the  Constitution  and  not binding on  the  plaintiffs  and prayed  for  an interim injunction restraining  the  Central Government  from resorting to Art. 356 of the  Constitution. A permanent injunction was also sought for by the plaintiffs in order to restrain the Central Government permanently from taking  any step to dissolve the Assemblies until the  fixed period  of six years was over.  Some of the Members  of  the Legislative  Assembly  of  Punjab  had  also  filed  a  writ petition  complaining  of  violation  of  their  fundamental tights and prayed for similar injunctions. The principal common submissions on behalf of the plaintiffs as well as the petitioners were :- Firstly, that the letter dated 18th April 1977 discloses the sole  ground of an impending proclamation under Article  356 of  the  Constitution  to be followed by  a  dissolution  of Legislative Assembly of the State concerned and that such  a proclamation, resulting necessarily in the dismissal of  the Ministries  in the six States and the dissolution  of  their Legislative Assemblies upon the grounds given in the letter, is  prima  facie  outside the purview of  Art.  356  of  the Constitution  and  would  be  destructive  of  the   federal structure. Secondly, that, in any case, the condition precedent to  the dissolution of the State Assembly is a ratification by  both Houses  of Parliament of the Presidential action under  Art. 356  so  that no dissolution at any rate  of  a  Legislative Assembly can ’take place without ascertaining the wishes  of both the Houses of Parliament. 3 Thirdly,   that  the  grounds  given,  being   outside   the constitutionally  authorised  purpose  and  objectives,  the proposed action on the face of it is mala fide and unconstitutional.  ’Me respondents’ reply in defence are :- Firstly,  that  on allegations made in the plaints  no  suit could   fall  within  the  purview  of  Art.  131   of   the Constitution  which  is meant for grievances  of  States  as such, against the Union Government and not those relating to

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mere  composition  of  State  Governments  and  Legislatures without  involving constitutional or other legal  rights  of States as such. Secondly,   the  questions  which  arise  for  guaging   the existence of a "situation", calling for action under Article 356 are, by their very nature, non-justiciable and they  are also  made non-justiciable expressly by Art. 356(5)  of  the Constitution  so  that, even if a State could, as  such,  be said  to be legally and properly interested in  the  dispute between its Government and the Union  Government, about  the desirability or need for any action by the Union  Government under  Article  356of the Constitution, such  a  dispute  is outside  the  sphere of justiciable matters.  If  the  final action or its grounds are non-justiciable, they could not be indirectly  assailed by challenging a process which  may  or may not actually produce the apprehended result or action. Thirdly,the letter of the Union Home Minister and the speech of the Union Law    Minister  do not indicate that  anything failing outside the wide spectrum of    Article  356 of  the Constitution  is  being or will be taken  into  account  for taking,  action  under Art. 356.  Hence, on  matters  stated there, no cause of action could be said to have arisen. Fourthly,  mere intimation of some facts, fully  within  the purview of Art. 356 of the Constitution, does not justify  a prohibition  to  act  in future when the  situation  may  be serious  enough  on  the strength  of  facts  indicated  and possibly others facts also, for action under Art. 356 of the Constitution.   The freedom of  constitutionally  authorised executive  action  of the highest executive  organs  of  the Union should not be impeded by judicial interference  except on  grounds  of  clearest and  gravest  possible  character. There was nothing beyond bare possibilities before the court so  that  no  anticipatory  injunction  or  order  could  be granted. Dismissing the suits as well as the petitions the Court, HELD : Per Beg, C.J. (1)  The  choice between a dissolution and re-election or  a retention  of the same membership of the Legislature or  the Government  for  a  certain  period  could  be  matters   of political expediency and strategy under a democratic system. Under   our  system.  quest  for  political  power   through formation   of  several  political  powers  with   different socioeconomic  policies  and programmes  and  ideologies  is legal.   Hence, a mere attempt to get more  political  power for  a  party as a means of pursuing the Programme  of  that party,   as  opposed  to  that  of  other  parties  is   not constitutionally prohibited or per se illegal. [24 F-G] (2)  One  purpose of our Constitution and laws is  certainly to  give electors a periodic opportunity of  choosing  their State’s   legislature  and,  thereby,  of  determining   the character of their State Governments also.  It is the object of every democratic constitution to give such opportunities. Hence  a  policy  devised to serve that  end  could  not  be contrary   to   the  basic  structure  or  scheme   of   the Constitution. [24 B] (3)  Article  356(1)  of  the  Constitution  calls  for   an assessment  of "a situation".  In so far as  Article  356(1) may  embrance matters of political and executive policy  and expediency, Courts cannot interfere with these unless and 4 until   it  is  shown  what  constitutional  provision   the President  ’is  going to contravene or  has  contravened  on attempted  grounds  of action under Art. 356(1)  for,  while Art.  74(2),  disables Courts from inquiring into  the  very

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existence or nature or contents of ministerial advice to the President, Article 356(5) makes it impossible for Courts  to question  the  President’s  satisfaction  ’on  any  ground’. Hence  Courts can only determine the validity of the  action on  whatever remains for them or what is admitted on  behalf of   the  President  to  be  the  grounds   of   President’s satisfaction. [25 D, 26 E-F] (4)  If  the Union Government thinks that the  circumstances of the situation demand that the State Governments must seek a fresh mandate to justify their moral rights in the eyes of the people to continue to exercise power in the interests of their  electors,  or else the discontent of the  masses  may have  its  repercussion  not  only  on  the  law  and  order situation,  but will also affect legal  responsibilities  or duties  which the Union Government has towards a  particular State or towards Indian citizens in general, an of whom live in  some  State or other, it cannot be said that  resort  to Art. 356 of the Constitution is not called for. [25 E-F] (5)  Questions of political wisdom or executive policy  only could  not  be  subjected to  judicial  control.   No  doubt executive    policy   must   also   be    subordinated    to constitutionally sanctioned purposes.  It has its sphere and limitations.   But,  so  long as  it  operates  within  that sphere,   its   operations   are   immune   from    judicial interference.   This  is also a part of the  doctrine  of  a rough  separation  of  power  under  the  supremacy  of  the Constitution.                                    [27 A-D] (6)  The   provisions  dealing  with  the  Proclamation   of emergency  under  Art.  352,  which have  to  be  grave  and imminent seem to be covered by the first art of the duty  of the  Union towards a State mentioned in Article 355 but  the second part of that duty mentioned-in Art. 355, seems to  be of  somewhat  different and broader character.   The  second part  seems to cover all steps which are enough "to  ensure" that   the  Government  of  every  State  is  carried,   "in accordance  with the provisions of the  Constitution".   Its ’sweep seems quite wide.  It is this part of the duty of the Union towards each State which is sought to be covered by  a Proclamation tinder Art. 356.  That Proclamation is not of a grave emergency.  In fact. the word "emergency" is not  used there.   It is a Proclamation intended either  to  safeguard against  the  failure of the constitutional machinery  in  a State  or to repair the defects of a breakdown.  It  may  be either  a preventive or a curative action.  It is enough  if the  President  which,  in view of the  amended  Art.  73(1) really means the Union Council of Ministers, concludes  that "the  Government  of  the State cannot  be  carried  out  in accordance with the provisions of the Constitution".  On the other  hand, action under Art. 352 is, more  properly,  only defensive and protective action to be taken to avert or meet a grave and immant danger. [30 C-F] (7)  The  language of Art. 356 is so wide and loose that  to crib  and  confine it within a straight jacket will  not  be just interpreting or construing it but will be  constitution making legislation, which does not lie in the domain of  the Supreme Court. [31 C-D] H.   H.  Kesavananda  Bharati Sripadagalavaru  v.  State  of Kerala,  [1973] Supp.  S.C.R. p. 1 @ 89, Smt.  Indira  Nehru Gandhi  v. Rai Narain [1976] 2 S.C.R. 347 @ 539; Har  Sharan Varma, v. Chandra Bhan Gupta and Ors., A.I.R. 1962 All.  301 @ 307 referred to. (8)  A conspectus of the provisions of our Constitution will indicate  that, whatever appearance of a  federal  structure our  Constitution  may have, its operations  are  certainly,

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judged  both by the contents of power which a number of  its provisions carry with them and the use that has been made of them, more unitary than federal. [33 F] Shamsher  Singh v. State of Punjab, [1975] 1 S.C.R.  p.  814 referred to. (9)  In  a  sense,  the Indian Union is  federal.   But  the extent  of federalism in it is largely watered-down  by  the needs of progress and development of 2 5 country  which has to be nationally integrated,  politically and economically co-ordinated and socially,,  intellectually and  spiritually uplifted. lit such a system,  the  States cannot  stand in the way of legitimate  and  comprehensively planned development of the country in the manner directed by the  Central  Government.   The question  of  legitimacy  of particular  actions of the Central Government taking  us  in particular  directions  can often be tested  and  determined only  by  the verdicts of the people  at  appropriate  times rather  than by decisions of Courts.  For this reason,  they become,  properly  speaking matters for  political  debates. rather  than for legal discussion.  If the special needs  of our   country   to  have   political   coherence,   national integration,  and planned economic development of all  parts of  the  country,  so  as to build  a  welfare  State  where "Justice-Social, economic and political" are to prevail  and rapid  strides are to be taken towards fulfilling the  other noble  aspirations  act out in the Preamble  strong  Central directions seem inevitable. [24 C-E] (10) Article 256 of the Constitution covers cases where’ the President may want to    give directions in exercise of  the executive power of the Union to a State Government        in relation  to  a matter covered by an existing  law  made  by Parliament  which applies to that State.  But,  Art.  257(1) imposes a wider obligation    upon  a State to exercise  its powers  in  such  a way as not to  impede  the  exercise  of executive  power  of the Union which, as would  appear  from Art.  73 of the Constitution, read with Art. 248  may  cover even  a  subject on which there is no existing law,  but  on which  some legislation by Parliament impossible.  It  could therefore, be argued that, although, the Constitution itself does not Jay down specifically when the power of dissolution should  be  exercised by the Government on the advice  of  a Council of Ministers in                the State, yet, if  a direction  on  that matter was properly given by  the  Union Government to a State Government, there is        a duty  to carry  it  out.   The time for the dissolution  of  a  State Assembly        is not covered by any specific provision  of the  Constitution  or any law made on the  subject.   It  is possible,, however, for the Union Government, in exercise of its  residuary executive power to consider it a fit  subject for the issue of an appropriate direction when it  considers that  the political situation in the country is such that  a fresh  election  is necessary in the interest  of  political stability  or to establish the confidence of the  people  in the Government of a State. [36 B-E] (11)  Undoubtedly, the subject is one on which  ’appropriate and  healthy  conventions should develop so that  the  power under  Art.  356(1)  is neither  exercised  capriciously  or arbitrarily  nor  fails  to be exercised  when  a  political situation  really calls for it.  If the views of the  Union Government  and the State Government differ on the  subject, there  is no reason why the Union Government should not  aid the  development  of  what  it considers  to  be  a  healthy practice  or convention by appropriate advice or  direction, and, even to exercise its powers under Art. 356(1) for  this

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purpose when it considers the observance of such a directive to be so essential that the constitutional machinery  cannot function  as it was meant to do unless it  interferes.   The Supreme  Court  cannot, at any rate, interdict such  use  of powers  under  Art 356(1 ) unless and until  resort  to  the provision,  in  a particular situation, is shown  to  be  so grossly  perverse and unreasonable as to  constitute  patent misuse  of this provision or an excess of power on  admitted facts.   It is not for courts to formulate, and, much  less, to  enforce  a  convention, however necessary  or  just  and proper  a  convention to regulate the exercise  of  such  an executive  power may be.  That is a matter  entirely  within the executive field of operations. [36 E-H] (12) All  that  the  Supreme Court can  do  is  to  consider whether an action Proposed    on  such a matter  on  certain grounds, would fall under Art. 356(1) of the Constitution if the Union Government and the State Governments differ on the question whether, in a particular situation, the dissolution of  the State Assembly should take place or not.   The  most that one could say is that a ’dissolution against the wishes of  the majority in a State Assembly is a grave and  serious matter.   Perhaps  it could be observed that  it  should  be resorted to under Art. 356(1) of the Constitution only  when "a  critical  situation’  has  arisen.   It  is  not  always necessary  that the mere defeat of a State Government  in  a State Assembly must necessarily create a situation in  which a  dissolution of the State Assembly is obligatory.   If  an alternate Government is 6 capable  of being formed which commands the majority in  the State  Assembly  it may be unnecessary.  The  position  may, however,  be very different, when a State Government  has  a majority  in the State Assembly behind it, but the  question is  whether the party in the majority in the State  Assembly forming the State Government for the time being having  been totally and emphatically rejected by the people, a  critical situation"  has  arisen  or is bound  to  arise  unless  the "political  sovereign" is given an opportunity of  giving  a fresh  verdict.  A decision on such a  question  undoubtedly lies in the Executive realm.  It involves a correct estimate of a "situation". [41 B-E] (13)  Article 174(2) (b)of the Constitution expressly  vests the  power  of  resolving the legislative  assembly  in  the Government  even  if  that had to be on the  advice  of  the Council  of  Ministers in the State, but the power  to  give such  advice would automatically be taken over by the  Union Government,  for  the  purposes  of  dissolution  of   State Assembly, when the President assumes Governmental powers  by a  Proclamation  under Art. 356(1).  A  dissolution  by  the President after the Proclamation would be as good as a  dis- solution by the Government of a State whose powers are taken over. [37 C-E] (14) Indeed,  the usual practice is that the President  acts under Art. 356(1) of the Constitution only on the Governor’s report.   But,  the  use of the  words  "or  otherwise"  (In Article  356) show that Presidential satisfaction  could  be based  on  other  materials as well.  This  feature  of  our Constitution  indicates most strikingly the extent to  which inroads  have been made by it on the federal  principles  of Government. [38 A-C] Shamsher  Singh v. State of Punjab, [1975] 1 S.C.R. p.  875, referred to. (15) As the question of the proper time for a dissolution of a  State Assembly is not a matter extraneous to Art.  356(1) of  the  Constitution,  the most that can be  said  is  that

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questions raised do not go beyond sufficiency of grounds for resorting to Art. 356(1) of the Constitution. [41 H, 42 A] K.   K. Aboo v. Union of India, A.I.R. 1965 Kerala 229;  Rao Birender,  Singh  v. The Union of India A.I.R.  1968  Punjab 441;   In   re.   A.  Sreeramulu’  A.I.R.   1974-A.P.   106, Bijenananda  Patnaik  and.  Ors. v. President of  India  and Ors., A.I.R. 1974 Orissa 52 referred to. (16) Attempts  to secure political victories by  appeals  to the  electorate,  are  parts of the recognised  rules  of  a democratic system of Government permitting contests  between rival parties so as to achieve certain other objectives.  If such  a  contest with the desire for achieving  a  political victory in order to enforce certain programmes, believed  by the members of a party to be beneficial for the people in  a State,  as a method of achieving the objects set out in  the Preamble,  are  not_only  legal and  permissible  under  the Constitution,  but, obviously constitute the  only  possible and  legal means of attaining the power.to enforce  policies believed  to  be correct by various  parties,  according  to their  own  lights, it could not possibly be  asserted  that procuring  the dissolution of a State  Legislative  Assembly with  the  object  of gaining a  political  victory  is,  in itself,  an  extraneous object which could not fall  at  all under Art. 356 of the Constitution. [42 F-F] Attorney  General v. Dr. Keyser’s Royal Hotel, 1920 AC  508; Liversidge   v.   Anderson  1942  AC   206;   Addl.    Dist. Magistrate,  Jabalpur v. Shivakant Shukla, 1976  Supp.   SCR 173,  Bhagat  Singh & Ors. v. The Kine Emperor, 50  I.A  169 King  Emperor v. Benorilal Sharma 72 I.A. 57,  Padfield  and Ors.  v.  Minister Of Agriculture, Fisheries  and  Food  and Ors., 1968 A.C. 997 @ 1006 (not applicable). (17) In  all the grounds of action taken under  Art,  356(1) are disclosed the public by the Union Government and its own disclosure  of  grounds reveals that a  constitutionally  or legally prohibited or extraneous or a collateral purpose  is sought to be achieved by an impending or actual proclamation under  Art. 356 of the Constitution, the Supreme Court  will not shirk its duty to act in the manner in which the law may then  oblige  it to act.  But, when allegation made  in  the plains  and  in the petitions before the  court  relate,  in substance, only to the sufficiency of the grounds of  action under Art. 356(1) of the Constitution and go no further, the Court  cannot proceed further with the consideration of  the plaints under Art. 131 or the petitions under Art. 32 of the Constitution.                                 [46 E-G] 7 (18) Proclamations  under  Article 356(1) are  bound  to  be placed  under  Art. 356(3) of the Constitution  before  each House of Parliament.  However, there is not only nothing  in Art.  356  to  make  a  consideration  by  either  House  of Parliament  a  condition precedent to the  exercise  of  the power of dissolution of a State Legislative Assembly by  the President  under  Art.  356 (1), but,  on  the  other  hand, Article 356(3) makes it clear that the only effect of even a failure or refusal by either House of Parliament to  approve the  Proclamation  is that it ceases to  operate  after  two months.  Obviously, this means that it operates for at least two  months.   Hence, whatever is done in these  two  months cannot be held to be illegal for that reason alone. [47 A-B] (19) It is true that the exercise of power under Art. 356 of the Constitution is subject to Parliamentary control.   This means  that it is subject to such control as the two  Houses out  of  which the Council of States really  represents  the State Assembly may be able to exercise during the period for

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which  the Proclamation lasts.  But, the existence  of  such Parliamentary  control,  as  a  safeguard  cannot   possibly nullify  the legality of what is done in the  period  during which the Proclamation lasts. [47 C-D] (20) Although  Art 356(1)(a) of the Constitution  imposes  a bar   against  the  assumption  by  the.President   of   the legislative  powers  of the State Legislature,  which  could only be transferred to Parliament, its provisions, read with Art. 357 of the Constitution, do not operate as an  absolute bar  on any expenditure which could be legally  incurred  by the  President  or  under  the  Presidential  authority   in accordance   with   pre-existing  State   laws   authorising expenditure by other authorities or bodies whose powers  can be  taken  by the President under Art.  356(1)(a).   In  any case, the provisions of Art. 357 could not possibly be  used as  a bar against a dissolution of the State Assembly  by  a Presidential   Proclamation.   Nor  can  they  be  used   to introduce  as  a  condition precedent  to  the  Presidential Proclamation under Art. 356(1)(a), involving, as it  usually does, the dissolution of the State Assembly, an approval  of both or either of the two.  Houses of Parliament. [49 A-C] (21) Even if there be some grounds for making a  distinction between  a  State’s  interest and rights and  those  of  its Government  or  its  members, the Court need  not  take  too restrictive or stringent a view of the States’ right to  sue for   any  rights,  actual  or  fancied,  which  the   State Government  chooses  to  take  up on  behalf  of  the  State concerned in a suit under Art. 131. [50 F-G] State  of Bihar v. Union of India and Anr., [1970] 2  S.C.R. 522; explained. United  Provinces v. The Governor General in  Council,  1939 FCR 124; referred to. Per, Chandrachud J. (1)  The use of the phrase "Government of India" in  Article 131(a) and (b) does  not mean that one party to the  dispute has  to  be  the  Government  of  the  day  at  the  Centre. "Government  of  India"  means "Union  of  India"  The  true construction  of Article 131(a) true in substance  and  true pragmatically is that a dispute must arise between the Union of India and a State. [53 E-G] (2)  The  dispute between the Union of India and the  State cannot  but be a dispute which arises out of the  difference between  the  Government  in office at the  Centre  and  the Government in office in the State.  But, there is a  further prerequisite  which narrows down the ambit of the  class  of disputes which fall within Article 131.  That requirement is that  the dispute must involve a question whether of law  or fact,  on  which the existence or extent of  a  legal  right depends.  it is this qualification which contains the,  true guide  for  determining  whether  a  particular  dispute  is comprehended   within  Art.  131.   Mere  wrangles   between Governments  have  no place in the scheme of  that  Article. The  purpose  of  Art.  131 is to afford  a  forum  for  the resolution  of disputes which depend for their  decision  on the existence or extent of a legal right.  It is only when a legal, not a mere political, issue arises touching upon  the existence  or  extent of a legal right that Article  131  is attracted. [54 A-C] 8 (3)  When  the Plaintiff-States by their suits  directly  or specifically question the constitutional right and authority of  the Union Government to issue a directive to  the  State Governments  commending  that  the  Chief  Ministers  should tender a certain advice to their Governors and also question the constitutional right of the Union Government to dissolve

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the  State Assemblies on the grounds mentioned in  the  Home Minister’s  letter  to the Chief Ministers, a legal,  not  a political, issue arising out of the existence and extent  of a legal right squarely arises and the suits cannot be thrown out as falling outside the purview of Art. 131. [54 D-E] (4)  It  is not necessary for attracting the  provisions  of Art.  131  that the plaintiff must assert a legal  right  in itself.   Art.  131 contains no such restriction and  it  is sufficient  in order that its provisions may apply that  the plaintiff  questions  the  legal  or  constitutional   right asserted by the defendant, be it the Government of India  or any  other State.  Such a challenge brings the  suit  within the terms of Article 131 for, the question for the  decision of  the  Court  is  not  whether  this  or  that  particular Legislative Assembly is entitled to continue in office,  but whether   the  Government  of  India,  which   asserts   the constitutional right to dissolve the Assembly on the grounds alleged possesses any such right. [54 F-G] (5)  The States, have the locus and the interest to. contest and  seek an adjudication of the claim set up by  the  Union Government.   The bond of constitutional obligation  between the Government of India and the States sustains that  locus. [54 H-55A] (6)  The  expression "legal right" which occurs in Art.  131 has  to be understood in its proper perspective.  The  legal right of the States consists in their immunity, in the sense of  freedom from the power of the Union  Government.   The), are entitled under Art. 131, to assert that right either  by contending  in the absolute that the Centre has no power  to dissolve   the   Legislative   Assemblies   or   with    the qualification  that such a power cannot be exercised on  the grounds stated. [55 A-D] State  of  Bihar v. Union of India, [1970] 2 SCR  522;  held inapplicable. (7)  By  the Proclamation under Art. 356(1) the  Legislative Assemblies of nine  States    were   dissolved    and    the President’s rule was imposed on those States.     As       a result  the  writ petitioners ceased to be  Members  of  the Legislative  Assemblies and as a result of their ceasing  to be  such members the right to salary which they  could  only draw if they were members of the Assemblies came to an  end. Though  the  petitioners could not be denied relief  on  the ground that it was not intended by issuing the  Proclamation to  deprive  them of their salary’ the writ  petitions  were liable to be dismissed on the ground that the injury to  the alleged  Fundamental  Rights  of  the  petitioners  was  too indirect and remote. [56 G-H] (8)  Whether or not, the Proclamation issued under Art.  356 of the Constitution is approved as enjoined in Art.  356(3), it has an assured life for a period     of  two  months  and its  Validity during that period cannot be whittled down  by reading into Art. 356 a condition precedent in the nature of parliamentary  approval which, plainly, is not to  be  found therein. [57 D]               [His  Lordship  considered it  unnecessary  to               consider  the  implications of clause  (5)  of               Art. 356, introduced by the 38th amendment and               applied   "Non-liquet"   agreeing   with   the               decision   in   Stephen  Kalang   Ningkan   v.               Government of Malaysia, L.R. (1970) A.C.  379,               392] Per Bhagwati J. (On behalf of Gupta J. & himself) (1)  The  satisfaction of the President is a subjective  one and cannot be decided    by  reference to  objective  tests. It is deliberately and advisedly subjective  because     the

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matter  in  respect to which he is to be satisfied is  ’  of such a nature that its decision must necessarily be left  to the  executive branch of Government.  It cannot by its  very nature be a fit subject-matter of judicial determination and hence  it  is  left to the subjective  satisfaction  of  the Central Government which is best in a position to decide it. The Court cannot, in the circumstances, go into the question of correctness or adequacy of the facts 9 and  circumstances on which the satisfaction of the  Central Government is based.  That would be a dangerous exercise for the  court,  both  because it is not a  fit  instrument  for determining  a  question of this kind and also  because  the court  would  thereby  usurp  the  function  of  a   Central Government  and  in doing so enter the  "Political  thicket" which  it must avoid if it is to retain its legitimacy  with the  people.   But, if the satisfaction is mala fide  or  is based on wholly extraneous and irrelevant grounds, the court would have jurisdiction to examine it, because in that  case there would be no satisfaction of the President in regard-to the  matter  on which he is required to be  satisfied.   The satisfaction  of the President is a condition  precedent  to the  exercise  of power under Art. 356(1) and if it  can  be shown that there is no satisfaction of the President at all, the exercise of the power would be constitutionally invalid. Of   course,  by  reason  of  clause  5  of  Art.  356   the satisfaction  of the President is final and  conclusive  and cannot  be  assailed on any ground, but this  immunity  from attack  cannot  apply where the challenge is  not  that  the satisfaction  is improper or unjustified; but that there  is no  satisfaction  at  &H.  In such a case,  it  is  not  the satisfaction   arrived  at  by  the  President   which.   is challenged,  but the existence of satisfaction  itself.   In most  cases  it would be difficult, if  not  impossible,  to challenge  the exercise of power under Art. 356 clause  (1), even   on  this  limited  ground,  because  the  facts   and circumstances  on which the satisfaction is based would  not be  known,  but  where it is possible,  to  know  them  from declarations  made the existence of satisfaction can  always be challenged on the ground that it is mala fide or based on wholly  extraneous or irrelevant ground. [ 81 G, H, 82  A-H, 83 A-B] Nintgkan  v. Govt. of Malaysia, 1970 A.C. 379, King  Emperor v. Benoarilal Sarma, 72 I.A. 57 referred to. (2)  The  defeat  of  the  ruling party  at  the  Lok  Sabha election cannot by itself without anything more support  the inference that the Government of the State cannot be carried on  in accordance with the provisions of  the  Constitution. To  dissolve the Legislative Assembly solely on such  ground would be an indirect exercise of the right of recall of  all the  members  by  the  President  without  there  being  any provision  in  the  Constitution  for  recall  even  by  the electorate.  Where there has been a total rout of candidates belonging to the ruling party and in some of the  plaintiff- States, the ruling party has not been able to, secure even a single seat, it is proof of complete alienation between  the Government  and  the  people.   It  is  axiomatic  that   no Government  can  function  efficiently  and  effectively  in accordance  with  the Constitution in a  democratic  set  up unless  it  enjoys the goodwill and support of  the  people. Where  there  is a wall of estrangement  which  divides  the Government  from  the  people and there  is  resentment  and antipathy   in  the  hearts  of  the  people   against   the Government,  it is not at all unlikely that it may  lead  to instability  and even the administration may  be  paralysed.

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The consent of the people is the basis of democratic form of Government  and  when  that is  withdrawn  so  entirely  and unequivocally  as  to  leave no room  for  doubt  about  the intensity  of public feeling against the ruling  party,  the moral  authority  of  the  Government  would  be   seriously undermined  and a situation may arise where the  people  may cease   to  give  respect  and  obedience  to   Governmental authority  and even conflict and confrontation  may  develop between the Government and the people leading to collapse of administration.  These are all consequences which cannot  be said  to be unlikely to arise from such an unusual State  of affairs  and they may make it impossible for the  Government of  the  State  to  be carried on  in  accordance  with  the provisions  of the Constitution.  Whether the  situation  is fraught  with such consequences or not is entirely a  matter of   political   judgment  for  the  executive   branch   of Government.   But, it cannot be said that such  consequences can never ensue and that the ground that on account of total and  massive  defeat of the ruling party in  the  Lok  Sabha elections, the Legislative Assembly of the State has  ceased to  reflect  the will of the people and  there  is  complete alienation  between the Legislative Assembly and the  people is  wholly extraneous or irrelevant to the purpose  of  Art. 356, Clause (1).   On  the facts and circumstances of the present  case  this ground is clearly a relevant ground having reasonable  nexus with the matter in regard to which the President is required to  be  satisfied before taking action  under  Article  356, Clause (1). [85 A-H] 10 (3)  There  are two limitations in regard to the  nature  of the suit which can be entertained by the Supreme Court under Art.  131.  One is in regard to parties and the other is  in regard  to the subject matter.  It does not contemplate  any private  party being arrayed as a disputant on. one side  or the  other.   A  dispute in which such a  private  party  is involved  must  be brought before a court,  other  than  the Supreme   Court,  having  jurisdiction  over   the   matter. Moreover, the dispute must be one, relating to a legal right and  not  a dispute on political plane not  based  on  legal right.   A legal right which is the subject of dispute  need not  arise  in  the  context of  the  Constitution  and  the federalism  it  sets up.  So also the power of  the  Supreme Court  to  grant relief in a suit under Article 131  is  not restricted  only  to "declaratory  Judgment".   The  Supreme Court  would  have  power  to  give  whatever  reliefs   are necessary for enforcement of the legal right claimed in  the suit,    if    such    legal    right    is     established. [64 E-H, 65 A-D, 66 C] State  of  Bihar v. Union of India & Anr., (1970)  2  S.C.R. 522, Explained doubted; Shamsher  Singh  v.  State of Punjab, [1975]  1  S.C.R.  814 referred to. (4)  Unconstitutional  exercise  of power by  the  President under  Article 356 clause (1) may injuriously affect  rights of several persons.  It may infringe not only the individual rights  of the members of the Legislative Assembly but  also the  constitutional  right of the State to insist  that  the federal  basis  of  the political structure set  up  by  the Constitution  shall not be violated by  an  unconstitutional assault  under Art. 356 clause (1).  The present suits  seek to  enforce  legal  right of the States  arising  under  the Constitution and the suits could not be thrown out in limine as being outside the scope and ambit of Article 131. [68  G- H, 69 A]

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(5)  The threatened dissolution of the Legislative  Assembly did  not  involve any infraction of  the  Fundamental  right guaranteed to the petitioners under Article 19(1)(f) and 31. [63 H, 64 A] (6)  It  is  only  where  there  is  direct  invasion  of  a fundamental right or imminent danger of such invasion that a petitioner can seek relief under Art 32.     The  impact  on the  fundamental right must be direct and immediate and  not indirect or remote. In  the instant case, merely because by the  dissolution  of the Legislative Assembly, the petitioners would cease to  be members  and that would incidentally result in their  losing their  salary, it cannot be said that the dissolution  would infringe their right to property.  The petitioners, as such, are  not entitled to maintain the Writ Petition  under  Art. 32. [63 D, E, 64 A] (7)  The  directive of Home Minister, Government  of  India, was  nothing  but  an  advice or  suggestion  to  the  Chief Minister  of  each  plaintiff  state  to  recommend  to  the Government  dissolution of the Legislative Assembly  of  the concerned  State.   It  has  been  wrongly  described  as  a "directive."  It had no constitutional authority behind  it. It  is  always  open to the Home  Minister  of  the  Central Government  to  give  advice  or  suggestion  to  the  Chief Minister  of  a State and the Chief Minister may  accept  or reject  such  advice or suggestion as he  thinks  fit.   ’Me advice  or  suggestion has no binding effect  on  the  Chief Minister  and no legal consequences flow from it.  Hence  it could  not  be  said that ’directive’  issued  by  the  Home Minister  was  unconstitutional,  illegal  or  ultra  vires. There  was  also  no  question  of  giving  effect  to   the "directive"  and no injunction could, therefore, be  granted restraining  it,;  implementation.  The "directive"  if  not accepted  and carried out could certainly be a precursor  to action  under Art. 356 Clause (1) and, therefore,  might  be regarded  as indicative of a threat, but standing by  itself it  could not give rise to any cause of action in the  State to sue for declaration or injunction. [77 H, 78 A-B] (8)  It is true that if a question brought before a court is purely  a political question not involving determination  of any  legal or constitutional right or obligation, the  Court would not entertain it, since the Court is concerned only 11 with  adjudication  of legal rights and  liabilities.   But, merely because a question has a political complexion that by itself is no ground for the Court to shrink from  performing its  duty under the Constitution, if it raises an issue  for constitutional determination.  A Constitution is a matter of purest politics and a structure of power. [79 G-H] (9)  Merely  because a question has a political  colour  the court cannot fold its hand in despair and declare  "judicial hands  off."  So  long  as  a  question  arises  whether  an authority under the Constitution has acted within the limits of its power or exceeded it, it can certainly be decided  by the Court.  Indeed it would be its constitutional obligation to  do so.  It is necessary to assert in the clearest  terms particularly  in  the  context of recent  history  that  the Constitution  is suprema lex, the paramount law of the  land and there is no department or branch of Government above  or beyond it. [80 F-H] Baker  v. Can 369 U.S. 186; Nixon v. Herndon 273  U.S.  536; Brown  V.  Board  of Education 347 U.S.  483;  Gomillion  v. Lightfoot  364  U.S. 339, Colegrore v. Green  328  U.S.  549 quoted with approval. Per Goswami J.

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(1)  Although  the  expression  used in  Art.  131  is  "any dispute",  the  width of the expression is  limited  by  the words  that follow in respect of the nature of dispute  that can  be  entertained by the Supreme Court  in  its  original jurisdiction.   It  is  only a dispute  which  involves  any question of law or fact on which the existence or extent  of a  legal right of the contending party depends that  can  be subject-matter of a suit under Art. 131.  The dispute should be in respect of legal rights and not disputes of  political character.   Art  131  refers to the  parties  that  may  be arrayed  in the litigation as well as to the  subject-matter of the dispute. [86 F-G] State  of Bihar v. Union of India, [1970] 2      S.C.R.  522 referred to. (2)  Article 131 speaks of a legal right.  That legal  right must be that of the State.  The dispute about a legal right, its  existence  or  extent, must  be  capable  of  agitation between  the  Government  of  India  and  the  States.   The character  of  the dispute within the scope of  Article  131 that  emerges is with regard to a legal right  which  States must  be  able to claim against the Government.   Where  the Home  Minister,  Government of India, is  asking  the  Chief Ministers  of  the Government of the States  to  advise  the Governors  to dissolve the Legislative Assemblies,  and  the Chief  Ministers decline to accept the advice, it is  not  a dispute between the State on the one hand and the Government of  India on the other hand.  It is a real  dispute  between the Government of the State and the Government of India.  It is  no  doubt  a question of life and death  for  the  State Government but not so for the State as a legal entity.  Even after  the  dissolution  of the  Assembly,  the  State  will continue to have a Government for the time being as provided for  in  the  Constitution,  in  such  a  contingency.   The subject-matter  of  the dispute does not  Pertain  to  legal rights of the State concerned to satisfy the requirements of Article 131 of the Constitution. [87 G, 88 H, 89 A-B, 90 C] (3)  Whether  there  is a case for permanent  injunction  or other  appropriate writ in these matters are not called  for in  view of the fact that the suits and writ  petitions  are not maintainable. [92 C-D] (Concurring with Bhagwati and      A. C. Gupta, JJ.) HELD  FURTHER: (4) There is no violation of the  Fundamental rights guaranteed to the petitioners under Articles 19(1)(f) and  31  of  the  Constitution  as  a  consequence  of   the threatened  dissolution  of the Legislative  Assembly.   The Writ  Petitions  are, therefore, not  maintainable  and  are liable for rejection. [90 C-D] King  Emperor v. Benorilal Sarma and Ors. 72 I.A. 57  @  64; Bhagat Singh & Ors. v. The King Emperor 58 IA 169;  Shamsher Singh  v. State of Punjab, [1975] 1 S.C.R. p.  814  referred to. 2-722SCI/77 12 Per Untwalia.  J. (1)  Assuming,  that the writ applications filed by some  of the  Members of the Punjab Legislators under Art. 32 of  the Constitution  of India axe maintainable, the petitioners  do not make out a case for issue of any kind of writ  direction or order in the present case. [92 G] (2)  The suits as instituted under Art. 131, in the  instant case, are not maintainable.  The dispute of the kind  raised in the suits does not involve any question whether of law or fact on which the existence or extent of any legal right  of the  States concerned depends.  The facts as  disclosed  are definitely  and exclusively within the prohibited area  into

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which it is neither permissible for the Courts, to enter nor should they ever take upon themselves the hazardous task  of entering into such an area. [92 H, 93 A, 95 D-F, 97 D] Bhagat  Singh and Ors. v. The- King Emperor 58 IA 169;  King Emperor v. Benori Lal Sarma and Ors. 72 IA 57; Lakhi Narayan Das v. The Province of Bihar etc. 1949 F.C.R. 693; Mls.   S. K. G. Sugar Ltd. v. State of Bihar and Ors., [1975] 1 S.C.R. 312 relied on. Stephen Kalang Ningkan v. Govt. of Malaysia [1970] A.C.  379 referred to. Per Fazal Ali J. (1)  A  dispute  clearly  postulates  that  there  must   be opposing  claims which are sought to be put forward  by  one party  and  resisted  by the other.  One  of  the  essential ingredients of Article 131 is that the dispute must  involve a  legal  right.  based on law or  fact.   If  the  Central Government  chooses  to  advise the  President  to  issue  a Proclamation,  the President has got no option but to  issue the  Proclamation.  This manifestly shows that  the  Central Government  has a legal right to approach the  President  to issue  a  Proclamation for dissolution of an Assembly  as  a part  of the essential duties which a Council  of  Ministers have  to  perform while aiding and advising  the  President. The  State  Governments, however, do not  possess  any  such right  at  all.  There is no provision in  the  Constitution which enjoins that the State Government should be  consulted or  their concurrence should be obtained before the  Council of Ministers submit their advice to the President  regarding a  matter pertaining to the State so far as the  dissolution of  an  assembly  is  concerned.  The  right  of  the  State Governments  to  exist  depends on  the  provisions  of  the Constitution which is subject to Art. 356.  If the President decides to accept the advice of the Council of Ministers  of the  Central Government and issue a proclamation  dissolving the  Assemblies, the State Governments have no right  object to the constitutional mandate contained in Art. 356. [103 B, F-H, 104 A-B] (2)  The  mere  fact  that letters were sent  to  the  State Governments  containing gratuitous advice could  not  create any  dispute, if one does not exist before nor would such  a course  of conduct clothe the State Government with a  legal right to call for a determination under Article 131.  If the State Governments do not possess such a legal, right or  for that  matter any right at all, then they cannot put  forward any claim before a court for a declaration or an injunction. Unless there is an existing dispute involving a legal  right between the parties,, the forum provided by Art. 131  cannot be availed of by any party.  Having regard to the facts  and circumstances   of  the  present  case  it  has   not   been established  that there was any dispute involving the  legal right  between  the  Government  of  India  and  the   State Governments and therefore, one of the essential  ingredients of  Art.  131 not having been fulfilled, the suits  are  not maintainable on this ground alone. [104 C-D, 105 B-C] United  Provinces v. The Governor General in Council  (1939) F.C.R. 124, 136 followed. (3)  The  right  of  the  petitioners  as  members  of   the Legislative Assembly of Punjab is not a Fundamental right as envisaged in Part III of the Constitution.  At the most, the right  to  receive allowance as members of the  Assembly  is merely legal right consequent upon their election as members of  the  Assembly.  The right of the petitioners is  only  a limited and inchoate right in as much as it subsists only so long  as  the Assembly runs its usual course of  six  years. The  right  may  also cease to exist,  if  the  Assembly  is dissolved by the

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13 President  by  issuing a Proclamation under Art.  356.   The right  therefore,  subsists  only  SO  long  as  these   two contingencies  do not _ occur.  The Constitution  also  does not guarantee any right or allowances to the Members of  the Assembly  which are given to them by. local Acts or  Ruler,. It  was  not a right which flows,  from  the  Constitution., Thus,  there being no infraction of any Fundamental  right,. the  petitioners  could not be allowed to take  recourse  to Article 32. [107 F-H; 108 G-H] H.   M.  Maharajadhiraja  Madhay  Rao  Jivaji  Rao   Scindia Bahadur and Ors., v.   Union   of   India  and  Ors,  [1971]   3   S.C.R.   9, distinguished. (4)    The  letter  does  not  amount  to  a  directive   as contemplated by Art. 256 and 257 and could not be binding on the  Chief  Ministers as it pertains purely to  tile  States concerned, namely, giving of the advice to the Governors for dissolution  of the Assemblies.  The Central Government  can not  interfere  with  this  executive  power  of  the  State Government  by giving directions under Article 256  or  Art. 257  of  the  Constitution because the  dissolution  of  the Assembly by the Governor was purely a matter concerning  the State  and did not fall within the four corners  of  either Art. 256 or 257. [111 A-F]               (His  Lordship refrained from  expressing  any               opinion  regarding  the theory  of  the  basic               structure of the Constitution as the  question               according  to  his Lordship did  not  actually               arise for decision in this case.) (5)  Clause  (5) of Art. 356 gives the order passed  by  the President  under  Art. 356 complete immunity  from  judicial scrutiny.  As such the Courts cannot go into the sufficiency or  adequacy  of  the materials on the basis  of  which  the Council  of Ministers of the Central Government  could  give any advice to the President. [116 C-D & 120 G] Bhagat Singh & Ors. v. The Kinq Emperor LR 58 I.A. 169, 172. Laknt  Narayan  Das v. Province of Bihar, 1949  F.C.R.  693, 699;  M/s  S. K. G. Sugar Ltd. v. State of  Bihar  and  Ors. [1975] 1 S.C.R. 312 applied. In  re.  Sreeramulu A.I.R. 1974 A.P. 106, S.R.K.  Manumantha Rao v. State of A.P. (1975) 2 AWR.277 approved. Colegrove v. Green (1925) 328 U.S. 549 referred to. King v. Benoari Lal Sarma, L.R. 72 IA 57, 64 explained. Padfield v. Minister of Agriculture, Fisheries and Food L.R. 1968 A.C. 997, 1007 Quoted with Approval. (6)  If  the opinion of the Central Government was based  on extraneous  or  irrelevant  materials or it  was  guided  by purely  personal  considerations or  ulterior  motives,  the Courts will always interfere and hold such action to be mala fide and strike it down. [119 B] Dr.   A.  K. Shaihar and Ors. v.  Vice  Chancellor,  Benaras University, [1961] 3 S.C.R. 386; followed. Observation : As  the  reasons  given  by  the  Council  of  Ministers  in tendering  their advice to the President cannot be  inquired into by the Courts, it is hoped that the Central  Government in  taking  momentous decisions having far  reaching  conse- quence  on  the working of the Constitution, will  art  with great  care  and  circumspection and  with  some  amount  of objectivity  so  as to consider the pros and  cons  and  the various shades and features of the problems before them in a coot  and collected manner.  The guiding principles in  such cases  should be the welfare of the people at large and  the intention  to strengthen and preserve the Constitution.  and

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that  this matter will receive the serious attention of  the Government.  The stamp of finality given by Cl. (5) of  Art. 356 of the Constitution does not imply a free licence to the Central  Government to give any advice to the President  and get an order passed on reasons, which are wholly  irrelevant or  extraneous  or which have absolutely no nexus  with  the passing  of the Order.  To this extent the  judicial  review remains. [121 B-D] 14 HELD FURTHER: (dissenting from the majority) (7)  The  import  and  purport  of Art.  131  is  to  decide disputes  between  one  state and  another  or  between  the Government  of India and one or more States.   The  founding fathers  of the Constitution have used the words "State’  in Art.   131  both  deliberately  and  advisedly  so   as   to contemplate  the  State as a constituent unit of  the  Union along  with its territory and permanent  institutions.   The question  as to the personnel who run these institutions  is only  unrelatable  to the existence of a dispute  between  a State and the Government of India.  It is only when there is a complete abolition.of any of the permanent institution  of a  State  that a real dispute may arise.  A  mere  temporary dissolution of an assembly under Art. 356 does not amount to abolition   of   a  State  Assembly   because   after   such dissolution,  under  the  provisions  of  the  Constitution, elections are bound to follow and a new legislature would evidently come into existence after the voters have  elected the candidates. [107 B-D] (8)  On  a true and proper construction of Art. 131  of  the Constitution  it may be said that dispute like  the  present one  is  totally  outside the scope of Article  131  of  the Constitution.   Therefore,  the State Governments  who  have raised  the  dispute  are not covered by  the  word  ’State’ appearing  in Article 131 and, therefore, the suits are  not maintainable on this ground also. [107 E]

JUDGMENT: ORIGINAL JURISDICTION : Original Suit Nos. 1 to 6 of 1977. (Under Article 131 of the Constitution of India.) Niren De,S.  K. Tewari, Adv.  Genl.  Rajasthan, S. M.  Jain, for the Plaintiff in Suit No. 1. Niren  De, Ram Panjwani and I. N. Shroff, for the  plaintiff in Suit No. 2 H.   R. Gokhale, Ram Panjwani, Vijay Panjwani, O. P. Sharma, S.   K.  Bagga and Mrs. S. Bagga, for the plaintiff in  Suit No. 3.  Niren  De, D. P. Singh, S. C. Agarwal and U. P. Singh,  for the plaintiff in Suit No. 4. Madan Bhatia, for the plaintiff in Suit No. 5. G.   Rath,  Adv.  Genl, Orissa, Niren De, R. K.  Mehta,  for plaintiff in Suit No. 6. Soli.   J. Sorabjee, Additional Solicitor General (in O.  S. Nos.  1-3/77),  B. Datta, (in Suit Nos. 1-3/77)  and  R.  N. Sachthey, for the defendant/respondents in all the matters. M.   K.  Garg,  S.  C. Agarwal and Y. J.  Francis,  for  the petitioners in the  Writ Petitions. J.   P.  Goyal,  S.  K.  Sinha,  B.  B.  Singh  and  A.   K. Srivastava,   for  the  applicant/interveners-Girdhari   Lal Bhargva in O. S. No. 1/77. J.   P.  Goyal,  Sharad  Manohar and C.  J.  Sahu,  for  the applicant interveners Chowdhary Devi Lal in Writ Petitions. The following Judgments of the Court were delivered

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BEG.   C. J. Original Suits Nos. 1 to 6 of 1977,  before  us now  have been filed on behalf of the States  of  Rajasthan, Madhya Pradesh, Punjab, Bihar, Himachal Pradesh, and  Orissa against the Union                      15 of  India under, Article 131 of the Constitution  of  India. There are also before us three writ Petitions, Nos. 67 to 69 of 1977, by three members of the Legislative Assembly of the State of Punjab against tile Union of India and Shri  Charan Singh,  the  Home Minister in the Government of  India,  and Shri  Zail Singh, Chief Minister of Punjab.  The  six  suits and the, three Writ Petitions raise certain common questions of  law  and fact.  They were, therefore,  permitted  to  be argued  together.  We have already dismissed the  suits  and petitions  after hearing them at length and now  propose  to state  our  reasons for doing so as stated in our  order  of 29th  April  1977.  Before dealing with, the.  questions  of fact  and  law I will indicate the nature  of  the  reliefs, sought by each plaintiff under Article 131 and the grievance of each petitioner under Article 32 of the Constitution. The State of Rajasthan asked for a declaration that what  it described  as  a "directive" contained in the  letter  dated 18th  April,  1977, issued by Shri Charan Singh,  the  Union Home  Minister,  to  the Chief Minister  of  the  State’  is "unconstitutional, illegal and ultra vires the  Constitution and  also  a declaration that the plaintiff  State  is  "not constitutionally  or  legally obliged to comply with  or  to give effect to the directive contained in the said letter. The State of Madhya Pradesh seeks the declaration that  "the direction   /order dated 18th April, 1977, of the  defendant through its Home Minister is ultra vires the Constitution". The  State  of  Punjab asks for a  declaration  of  what  it describes   as  "direction/order"  as  "ultra   vires"   the Constitution. The  State of Bihar calls the letter a "directive’ and  asks for the declaration that it is "unconstitutional and  void". it also prays for a declaration that a refusal by the  Chief Minister  of  Bihar to comply with it "cannot  be  made  the basis  for the issue of proclamation under Article, 356,  of the Constitution".  ’It also seeks a declaration that  Arti- cle 356 of the Constitution "cannot be invoked for the  sole purpose  of  dissolving the State Legislative  Assembly  and holding  fresh  elections for the said  Assembly  after  the defeat  of the majority party- in the said Assembly  in  the elections for the Lok Sabha". The State of Himachal Pradesh prays for eight declarations : firstly, that "the Council of Ministers of the State is  not liable  to  resign  and  the  Legislative  Assembly  of  the plaintiff  is not liable to be dissolved on the ground  that the   Congress  Party,  which  holds  a  majority   in   the Legislative  Assembly, had lost in the Lok  Sabha  elections and  the  Janata Party has come into power at  the  centre"; secondly,  that  "the  Executive ,of the  Defendant  is  not entitled  to  encroach  upon the  sole  prerogative  of  the Council  of Ministers as to the nature of the  advice  which the ’latter thinks fit to render to the Governor";  thirdly, that "the provisions ,of Article 356 of the Constitution are not liable to be invoked by the President merely because the Political party which has been returned to power in the  Lok Sabha elections happens to be different from the party which holds majority in the Legislative Assembly of the  plaintiff and  which  might have lost heavily in the’ said  Lok  Sabha elections";   fourthly, that "the Legislative,  Assembly  of the plaintiff is not liable to 16

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be  dissolved  before  the  expiry of  the  term  under  the Constitution  because the views of the electorate,  have  an undergone  a  change  as  stated  in  the  letter.  of   the defendant’s Home Minister dated 18th April, 1977";  fifthly, that  "’the  circumstances mentioned in the letter  do  not constitute  a threat to law and order, and, in,  any  case,- such   a   threat  to  law  and  order   cannot   form   any constitutional  basis  for dissolution  of  the  Legislative Assembly  of  the  plaintiff"; sixthly,  that  "reasons  and circumstances   stated  in  the  letter  addressed  by   the defendant   to   the   plaintiff’s   Chief   Minister    and the,resultant  threatened  action under Article 356  of  the Constitution  are Wholly unconstitutional and mala fide  and that  a proclamation issued on. the facts and  circumstances of the present case, would be utterly void"; seventhly  that the "condition precedent and prescribed in Article 356(1) of the  Constitution,  is non-existent";  eighthly,  that  "the Legislature  of the plaintiff cannot be dissolved until  and unless  any proclamation issued under Article 356(1) of  the Constitution,  is ratified by both Houses of  Parliament  as envisaged by Article 356 (3) of the Constitution The  State  of  Orissa asked ’for  a  declaration  that  the "directive" contained in, the letter of 18th April, 1977, is "Unconstitutional, illegal and ultra vires the Constitution" and  also that the plaintiff State is "not  constitutionally or  legally obliged to comply with or to give effect to  the directive contained in the said letter". In  addition, each of the ’plaintiffs in the six suits  asks for a permanent as well as an interim injunction in slightly differing  terms  but the object of all  these,  injunctions sought is abundantly clear and common. The  State  of Rajasthan has sought a  permanent  injunction "restraining  the  defendant  from  giving  effect  to   the directive  contained in the said letter in any Manner".   It also asks for permanent injunction restraining the defendant resorting  to  Article 356 of the Constitution of  India  to dissolve the Legislative, Assembly of the State of Rajasthan and from taking any steps for holding fresh elections to the State Assembly’before March, 1978." "Perpetual"  injunctions are sought by the State  of  Madhya Pradesh against the defendant Union of India to restrain its Government  "from  enforcing  directions  contained  in  the letter and,/or dissolving the Legislature of the State". The  State  of Punjab prays for "a perpetual  injunction  to restrain   the  defendant  from  enforcing  the   directions contained  it,, the statement dated 18th April 1977  and  in the  letter dated 18th April 1977 to the Chief  Minister  of the  plaintiff  State  and restraining  the  defendant  from dissolving  the Legislative Assembly of the plaintiff  State or-  imposing  Presidential Rule under  Article  356  before March 1978". The  State of Bihar asks for an injunction against issue  by the  defendant Union of a Proclamation under Article 356  of the  Constitution "for the purpose of dissolving  the  Bihar State  Assembly  and holding fresh elections for  the  State Assembly." 17 The  State of Himachal Pradesh seeks a permanent  injunction for restraining the defendant from issuing any  Proclamation under  Article  356(1)  of the  Constitution"  except  in  a situation  contemplated  by the provisions  and  another  to restrain   the   Union  Government  from,   dissolving   the legislative  assembly  of the State "until  and  unless  any Proclamation  issued under Art. 356 of the Constitution,  is ratified by both the Houses of Parliament".  In other words,

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a prohibitory order, in the nature of a Writ of "Quo  Usquo" (until condition precedent is fulfilled) is sought. The  State  of’ Orissa prays for  "a  permanent  injunction" restraining  the  defendants  from  giving  effect  to   the "directive"  contained  in the said letter "in  any  manner" and,   another   "permanent   injunction   restraining   the defendants  from  taking  recourse  to  Article  56  of  the Constitution  of India to dissolve the Legislative  Assembly of  the  State  of Orissa and, from  taking  any  steps  foe holding  fresh elections to the State Assembly before  March 1980".   It  may  be mentioned that  the  elections  to  the Legislative  Assembly of the State of Orissa took  place  in 1974. Each  of  the  six  States  have  also  asked  for   interim injunctions so that the reliefs prayed foil in the suits may not become infructuous. The three petitioners in the Writ Petitions from Punjab  are Members  of the Legislative Assembly of the State of  Punjab they  assert  that there is a threat to  their,  fundamental right  to property in the shape of a right to receive  their "salaries" as Member of the Legislative Assembly as a result of  an  impending  dissolution.  They submit  that  such  an impending  threat is enough, to enable them to  invoke  the jurisdiction   of  this  Court  under  Article  32  of   the Constitution. It  is  obvious  that  the cause of action  set  up  by  the plaintiffs in each suit as well as by the petitioners  under Article  32 of the Constitution is said to be  furnished  by the  letter of Shri Charan Singh, the Home Minister  in  the Union Government, and a statement said to have been made  by Shri   Shanti  Bhushan,  the  Law  Minister  in  the   Union Government.   These,  according  to  the  Plaintiffs   under Article 131 as well as petitioners under Article 32, provide sufficient  grounds  for  inferring  that  the   Legislative Assembly  of each of the States involved will be  dissolved, after a Proclamation under Article 356 if what the letter of Shri  Charan Singh describes as "advice" is not carried  out by the Chief Minister of each of the six states. The principal common submissions on behalf of the plaintiffs as well as the petitioners are : Firstly,, that the letter of.  Shri Charan Singh dated  18th April,  1977,  discloses  the sole ground  of  an  impending Proclamation  under  Art.  356 of  the  Constitution  to  be followed  by a dissolution of the ]Legislative  Assembly  of the State concerned and that such a proclamation,  resulting necessarily  in the dismissal of the Ministries in  the  six States  and the dissolution of their Legislative  Assemblies upon  the  grounds given in the letter, is  prima  facie  to outside the purview of Article 356 of the Constitution. 18 Secondly, that, in any case, the condition precedent to  the dissolution  of  the  State  Legislative  Assemblies  is   a ratification   by   both  Houses  of   Parliament   of   the Presidential   action   under  Article  356   so   that   on dissolution, at any rate, of a Legislative Assembly can take place without ascertaining the wishes of both the Houses of Parliament. 3    Thirdly,  that  the  grounds given  being  outside  the constitutionally authorised purposes and objectives make the proposed   action,  on  the  face  of  it,  mala  fide   and unconstitutional.          Our attention was also  drawn  to certain assertions in the plaints and petitions for  advanc- ing the pleas of "malice in fact"’ and "malice in law". The replies on behalf of the Union of India are Firstly,  that  on allegations made in the plaints  no  suit

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before  us would fall within the purview of Art. 131 of  the Constitution  which  is meant for grievances of  States,  as such,. against the Union Government, and not those  relating to  mere composition of State Governments  and  Legislatures without  involving constitutional or other legal  rights  of States as such. Secondly,   the  questions  which  arise  for  gauging   the existence of a "situation", calling for action under Article 356  are, by their very nature, inherently  non-jisticiable, and  they  have also been made nonjusticiable  expressly  by Article 356(5) of the Constitution so that, even if a  State could,  as  such,  be said to be legally  and  properly  in- terested in the dispute between its Government and the Union Government about the desirability or need for any action  by the Union Government under Article 356 of the  Constitution, such,  a  dispute  is  outside  the  sphere  of  justiciable matters.   If  the  final action or  its  grounds  are  non- justiciable,  they  could  not be  indirectly  assailed,  by challenging a process which may or may not actually  produce the apprehended result or action. Thirdly,  the  letter  of the Union Home  Minister  and  the speech of the  Union  Law  Minister  do  not  indicate  that anything falling outside the wide spectrum of Article 356 of the  Constitutions being or will be taken into, account  for taking  action  under  Article  356.              Hence,  on matters  stated there, no cause of action could be  said  to have arisen. Fourthly  , mere intimation of some facts, fully within  the purview of Article 356 of the Constitution, does not justify a  prohibition  to act in future when the situation  may  by serious  enough,  on  the strength of  facts  indicated  and possibly, other facts also, for action under Article.356  of the  Constitution.  In other words, the submission was  that it  could not possibly be predicated now whether there  were or  not other facts or what other possible facts, which  may affect the situation, may arise in future.  It was submitted that  the freedom of constitutionally  authorised  executive action  of the highest executive organs of the Union  should not  be, impeded by judicial interference except on  grounds of clearest and gravest possible character.  Just now, there was  nothing beyond bare possibilities before the  Court  so that no anticipatory Injunction or Order could be granted. 19 The  first  ground of objection on behalf of  the  Union  is confined to the suits.  But, the remaining three grounds  of objection  are  common  to the suits as  well  as  the  Writ Petitions. On  behalf  of  Union of India  notices  were  accepted  and preliminary  objections, mentioned above, were taken to  the maintainability  of  the  suits and  the  petitions  on  the allegations  made therein.  We, therefore proceeded to  hear arguments on the preliminary objections. with,out  requiring defendants  or  respondents to file  written  statements  or replies  or framing issues formally.  I propose  to  examine the allegations made in the plaints and in the petitions  so as to determine whether assertions made there, on  questions of  fact,  are sufficient to disclose any  cause  of  action necessary to maintain the suits or the petitions for reliefs asked for. As indicated above, the letter of Shri Charan Singh the Home Minister  in the Union Government, to the Chief Minister  of each  State provides the primary source of the grievance  of the  plaintiffs and petitioners.  One of  these  identically phrased letters (the one to the Chief Minister of Rajasthan) may be reproduced here. It runs as follows:-

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                              "D. O. No. 355/MS/T/77                                    HOME MINISTER                                        INDIA                                      New Delhi,                                    April 18, 1977. Dear Shri Joshi, We  have given our earnest and serious consideration to  the most  unprecedented political situation arising out  of  the virtual  rejection,  in the recent Lok Sabha  elections,  of candidates belonging to the ruling party in various  States. The  resultant  climate  of  uncertainty  is  causing  grave concern  to  us.  We have reasons to believe that  this  has created  a  sense  of  diffidence  at  different  levels  of Administration.    People  at  large  do  not   any   longer appreciate the propriety of continuance in power of a  party which has been unmistakably rejected by the electorate.  The climate  of  uncertainty,  diffidence  and  disrespect   has already given rise to serious threats, to law and order. 2.   Eminent  constitutional experts have long been  of  the opinion  :that  when a Legislature no  longer  reflects  the wishes or views of the electorate and when there are reasons to  believe ’that the Legislature and the electorate are  at variance,  dissolution,  with a view to  obtaining  a  fresh mandate  from the electorate would be most appropriate.   In the  circumstances prevailing in your State, a fresh  appeal to  the political sovereign would not only  be  permissible, but also, necessary and ,obligatory, 20 3.   I   would,  therefore,  earnestly  commend   for   your consideration that you may advise pour Governor to, dissolve the  State  Assembly  in exercise of  powers  under  Article 174(2)(b)  and  seek a fresh mandate  from  the  electorate. This  alone  would, in our considered view,  be  consistent with constitutional precedents and democratic practices. 4.   I would be grateful if you would kindly let me know  by the 23rd what you propose to do.         With regards,                                    Yours sincerely,                                        Sd/-                                     (Charan Singh) Shri Harideo Joshi, Chief Minister of Rajasthan, Jaipur". To substantiate the allegation that the letter,  constituted a  "threat" of action under Article 356 of the  Constitution to  dismiss  the  Government, to  dissolve  the  Legislative Assembly  of  each  plaintiff  State  and  to  imposer   the President’s  rule upon it, corroboration was sought from  :a report  of a talk of Shri Shanti Bhushan, the  Minister  for Law,  Justice and Company Affairs, on the All  India  Radio, which  appeared  in  the  Statesman  of  23rd  April   1977. Although, reports in newspapers do not constitute admissible evidence of their truth, yet, I reproduce the extract  which was  either attached to or its substance reproduced in  the, plaints,  only  to  test whether,  even  assuming  that  its contents  were to be proved, by admissible evidence,  to  be given  in  due  course,  all  the  allegations  will,  taken together, constitute something actionable.  The report  said :               "Advice to Nine States a Constitutional  duty,               says Shanti Bhushan.               Mr.  Shanti Bhushan, Union Law Minister,  said               on  Friday  night that a clear case  had  been               made out for dissolution of the Assemblies  in               nine  Congress-ruled  States  and  holding  of

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             fresh elections, reports Samachar.               In  an interview in the, Spot-light  programme               of  All  India  Radio he said  that  the  most               important  basic feature of  the  Constitution               was  democracy, which meant that a  Government               should function with the broad consent  of the               people  and only so long as it  enjoyed  their               confidence.   If  State Governments  chose  to               govern  the  people  after  having  lost   the               confidence  of  the  people,  they  would   be               undemocratic Governments, he said.               Under Article 355, a duty had been cast on the               Union   Government   to  ensure   that   State               Governments were carried on in accordance with               the Constitution.               21               The  Home  Minister,  Mr.  Charan  Singh,  had               appealed  to the Chief Ministers of  the  nine               States to advise their Governors to  recommend               to  the  President dissolution  of  the  State               Assemblies.-This  was because a serious  doubt               had  been cast on their enjoying the  people’s               confidence,  their party having been  rejected               in  the  recent Lok Sabha  elections  the  Law               Minister said.                         EXERCISE OF POWER               Mr.  Shanti  Bhushan  was  asked  whether  the               Centre would not be failing in its duty if  it               did  not  exercise its power at  this  crucial               juncture  to  test the legitimacy of  a  State               Government.               He-replied  that after all whenever the  power               was conferred by the Constitution. it was  not               done  simply  for the sake of  conferring  it.               Obviously  the Constitution  contemplated  the               circumstances under which that power should be               exercised.  When those circumstances arose  it               was  obligatory on the part of the  Centre  to               exercise that power.               Mr.  Shanti Bhushan said he failed to see  why               the State Governments objected to going to the               people to seek their mandate.  "If          we recognise the  real sovereignty and  supremacy               of  the people, there cannot be any  possible               objection".  If someone claimed a divine right               to rule whether the people wanted him or  not,               the in of course, there could be an  objection               to go to the people.                          PREMATURE END               Explaining   the   Constitutional   provisions               relating  to premature dissolution  of  State.               Assemblies,   Mr.  Shanti  Bhushan  said   two               articles  deal with this matter.  Article  172               provided for the normal term which was earlier               five years.  But this had been extended to six               years by the Constitution 42nd Amendment  Act.               Then  Article 174 gave the Governor the  power               to dissolve the Legislative Assembly from time               to time even during the normal period of  five               or  six years.  Normally this power was to  be               exercised  with  the  aid and  advice  of  the               Council of Ministers.               He  was asked whether it was  permissible  for               the President to resort to Article 356 if  the               Council of Ministers failed to aid and, advise

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             the  Governor to dissolve the  Assembly  under               Article 174.               Mr.   Shanti  Bhushan  explained  that   under               Article 355 a duty had been, cast on the Union               Government  to ensure that the Governments  in               States were carried on in accordance with  the               Constitution.  The most important provision in               the Constitution.  "rather the most  important               basic   feature  of  the   Constitution"   was               democracy which meant that a               22               Government  should  function  with  the  broad               consent  of the people and only so long as  it               enjoyed the confidence of the people.                       CONTINUED CONFIDENCE               Mr.  Shanti  Bhushan said that the  mere  fact               that at one time the Governments in the States               enjoyed  the confidence of the people did  not               give  them  the right to  govern  unless  they               continued  to  enjoy that  confidence.   If  a               situation  arose in which a serious doubt  was               cast   upon   the  Government   enjoying   the               continued  confidence of the people, then  the               provision  for  premature dissolution  of  the               Assembly immediately came into operation.               The  provision not merely gives the power  but               it casts a duty because this power is  coupled               with  duty,  namely,  the  Assembly  must   be               dissolved immediately and the Government  must               go  to  the  people  to  see  whether  it  has               continued confidence of the people to  govern.               Even  after having lost the confidence of  the               people,  if  the Government  chose  to  govern               people, it would be undemocratic.  This  would               not  be in accordance with the  provisions  of               the Constitution.               This  was precisely the philosophy behind  the               wide  powers  given  to  the  President  under               Articles   355   and  356.    Obviously   some               authority had to be given the power to  ensure               that the functionaries under the  Constitution               were   working   in   accordance   with    the               Constitution.               As there were a number of States, obviously no               single  State  could  be  given  this   power.               Therefore,  this  power was entrusted  to  the               Union   Government  to  see  that  the   State               Governments were acting in accordance with the               Constitution,  which meant in accordance  with               democratic principles and conventions.                             NOT WHOLLY IMMORAL               Answering another question, Mr. Shanti Bhusban               did   not  agree,  that  the  whole   of   the               Constitution  42nd Amendment Act was  immoral.               But there were, serious objections to that Act               on the ground of ethics.  When this  amendment               was rushed through Parliament, the five  years               term of the members was over.  Their term  had               really  expired  and  they did  not  have  the               continued  mandate to enact such an  important               Act as the 42nd Amendment.  The results of the               Lok  Sabha elections had also shown  that  the               people  had not really given them the  mandate               to enact the amendment.               The other objection to the 42nd Amendment  was

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             that during the Emergency important leaders of               the  opposition  parties were in  jail.   They               could not express their views.                23               Mr.   Shanti  Bhushan  said  that   the   42nd               Amendment had been enacted.  As the  Ministers               had   taken   an   oath  to   abide   by   the               Constitution,   they  could  not  ignore   the               provisions of the 42nd Amendment so long as it               remained.  With the result it was not possible               to, have elections, in those States where  the               State Governments had not lost the mandate  of               the people as was, reflected in the Lok  Sabha               elections". I  have  set out the two basic sources of complaint  in  the plaints  and  the petitions in order  to  consider  whether, assuming  such  statements had ’been made by  the  two  very responsible and important Ministers of the Union Government, they  could sustain suits for injunctions under Article  131 of  the  Constitution  or writ petitions by  Members,  of  a Legislative Assembly to be dissolved. So  far as the letter of Shri Charan Singh is concerned,  it certainly  does not contain even a reference to Article  356 of  the  Constitution.   Nevertheless, the  speech  of  Shri Shanti  Bhushan,  assuming that it was  correctly  reported, does  mention Articles 355 and 356 of the  Constitution  and expounds  a  view  of  one of  the  basic  purposes  of  the Constitution  the observance of which could, in the  opinion of the Law Minister, be secured by,’, resort to Art. 356  of the  Constitution.  The speech does express the view of  the Law  Minister  that  there was a duty cast  upon  the  Union Government  by Article 355 of the Constitution to  secure  a conformity  between the current opinion of  the,  electorate and  the  composition of the legislatures in  the  different States  where the Governments in power today  reflected  the opinions of the majority of electors in each State prevalent only  at  a  time  when  the  last  election  to  the  State Legislative  Assembly was held.  The question whether  these State Governments retain the confidence of the electorate or not  at  present could only be answered  decisively  by  the electors  themselves.   That  was the  exclusive  right  and privilege of the electors under a democratic  constitutional scheme  and  the law.  According to the  Law  Minister,  the elected representatives cannot set up a right to continue in power now, despite an overwhelmingly adverse verdict of  the electorate  against  the  party to which  members  of  these Government  belong.   In  his opinion, to  do  so  would  be contrary  to  the basic norms of  democracy  underlying  our Constitution. If  what  was assumed to be proposed to be done,  under  the threat"  of a constitutionally prescribed mode of  executive action,  could, in, no circumstances, be done under  Article 356,  we  may  be  able  to check  a  misuse  or  excess  of constitutional  power  provided judicial  control  over  all purported exercise of power of issuing proclamations,  under Article  256,  is not either impliedly or  expressly  barred even  if a proposed action is plainly ultra vires’  But,  if the   views   of   the  two  Union   Ministers   state   the constitutional position correctly, no question of in "abuse" or  "misuse  of  powers’  for  a  collateral  purpose  or  a "detournement de Pouvoir" or a fraud upon the  Constitution" or  "malice  in  face’ or "malice in  law"  (terms  denoting different  shades,  of culpability and types of  excess,  of power),  can arise on. the allegations of threatened  action in  the cases before us, which really amount only  to  this;

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The  Union Government proposes to act under Article  356  of the Constitution to give electors 24 in the various States a fresh chance of showing whether they continue  to  have  confidence  in  the  State   Governments concerned  and  their policies despite the evidence  to  the contrary provided by the very recent Lok Sabha elections. One  purpose  of our Constitution and laws is  certainly  to give  electors  a  periodic opportunity  of  choosing  their State’s   legislature  and,  thereby,  of  determining   the character of their State’s Government also.  It    is    the object  of  every  democratic  constitution  to  give   such opportunities.        Hence, a policy devised to serve  that and could not  be contrary to the basic structure or  scheme of the Constitution.     The  question whether  they  should have  that  opportunity now or later may be  a  question  of political  expediency  or  executive policy.  Can  it  be  a question  of legal right also unless there is a  prohibition against  the dissolution of a legislative assembly before  a certain   period  has  expired  ?  If  there  had   been   a constitutional  prohibition, so that the proposed action  of the   Union   Government   could   have   contravened   that constitutional  interdict, we would; have been  obliged  to, interfere, but, can we do so when there is no constitutional provision  which gives the legislature of a State the  right to   continue   undissolved  despite   certain   supervening circumstances  which may, according to, one view,  make  its dissolution necessary ? It may have been possible for this Court to act if facts and the circumstances mentioned to support proposed action  were so completely outside the purview of Art. 356 or so  clearly in conflict with a constitutional provision that a  question of  excess  of power could have apparently arisen.  If,  for example,  an  authoritative  statement,  (on  behalf  of   a Union,Government, was issued that a dissolution is  proposed only  because  the Chief Minister or the  whole  Council  of Ministers of a State belongs to a particular caste or creed, it could be urged that the proposed action would  contravene the fundamental rights of Indian citizens of equality before the  law  and absence of discrimination on  such  a  ground. There is, however, no such allegation or its particulars  in the plaints before us which may be capable of giving rise to the  inference  that any  such  constitutionally  prohibited action is intended by the Union Government. The  choice  between  a dissolution  and  re-election  or  a retention of the same memberships of the legislature or  the Government  for  a  certain  period  could  be  matters   of political  expediency  and  strategy under  a   democratic system.  Under our system, quest of political power, through formation  of  several  political  parties,  with  different socioeconomic  policies  and programmes and  ideologies,  is legal.   Hence it cannot be said that a mere attempt to  get more political power for a party, as a means of pursuing the programme  of  that  party, as, opposed  to  that  of  other parties, is constitutionally prohibited  or per se  illegal. There  may  be moral or even political objections  to,  such courses  incertain circumstances.          It may  be  urged that  States should be permitted to function undisturbed  by any  directions  or advise by the Union  Government  despite their  differences  with it on matters of  socioeconomic  or political policy on complexion.  Rights 25 were  asserted,  on behalf of State legislators,  as  though they  were legal rights to continue. as  legislators  untill the expiry of the; constitutionally fixed spans of lives  of

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their  legislatures, barring cases of earlier  dissolution. We are only concerned here with legal rights to dissolve and legal obstacles to such dissolution. It  could be argued, with considerable force,  on  political and  moral  grounds, that electors should be given  a  fresh opportunity  of pronouncing their verdict upon the  policies and  programmes of the Governments in the States  when  very convincing proof of wide ,divergence between their views and those  of their Governments has become available.   The  Law Minister’s  view is that, where there is  an  overwhelmingly large  electoral  verdict in a State against  the  party  to which  its  Government  belongs,  the  situation  not   only justifies but makes resort to a fresh election or an  appeal to  the  political sovereign imperative.  This I  think,  is largely a political and moral issue.  We are only  concerned with its relationship to constitutional provisions.  If  its impact  on  the  minds and feelings  of  electors  or  those officers who have to carry on the day to, day administration is  such  that  it  will frustrate the  very  objects  of  a Government under the Constitution or make it impossible  for the  Government in a State to function as it ought to  under the Constitution, it may come to the conclusion that  action under  Article  356 of the Constitution is called  for.   We cannot forget that article 356(1) calls for an assessment of a "situation".  We, cannot anticipate decisions or interdict possible  actions in situations which may or may  not  arise due  to  all kinds of factors-economic,  social,  moral  and political. If the Union Government thinks that the circumstances of the situation  demand  that the, State Governments must  seek  a fresh  mandate to justify their moral rights in the eyes  of the people to continue to exercise power in the interests of their  electors,  or else the discontent of the  masses  may have  its  repercussion  not  only  on  the  law  and  order situation  but  will also affect legal  responsibilities  or duties  which the Union Government has towards a  particular State  or  towards Indian citizens in general, all  of  whom live  in  some  State or other, can we say  that  resort  to Article 356 of the Constitution is not called for ? I  think that it is impossible to substitute our judgment for that of the Union Government on such a matter. Even if it is possible to see a federal structure behind the setting up, of separate executive, legislative, and judicial organs  in,  the  State and to urge, as it  has  been  urged before  us, that so long as the State Governments and  their legislatures  are not shown to have committed a  dereliction of their- constitutional duties or violations of any consti- tutional provisions, they ought not to be interfered with by the  Union  Government, it is also apparent, both  from  the mechanism  provided by Article 356 of our  Constitution,  as well  as  the manner in which it has been used  on  numerous occasions   in  the  past,  since  the  inception   of   our Constitution,  that  the  Union  Government  is  capable  of enforcing its own views on such matters against those of the State  Government  as to how the  State  Governments  should function  and  who  should bold the reins of  power  in  the States  so  as  to enable the Constitution to  work  in  the manner the Union Government wants 26 it  to  do  in a situation such as the one  now  before  us. Article 131 of the Constitution was, certainly not meant  to enable  us  to sit as a Court of appeal on  such  a  dispute between  the Union Government and a State Government.   And, our  Constitution is not an inflexible instrument  incapable of meeting the needs of such a situation.

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It may be that, under our Constitution, there is too great a scope  for  struggle merely for seats of power so  that  the grand   purposes,   enshrined  in  the   Preamble   to   our Constitution and the correct governmental policies needed by the mass of our people to give reality to their dreams  tend to be neglected in scrambles for political power.  The issue before us, however, is not whether one party or another  has failed in the very objectives and purposes for which  people give unto themselves Constitutions such as ours.  It is  not for  us  to  decide  whether  a  party  which  has  had  its opportunities in the past has adequately met the objects  of lodging political and legal power in its hands, or,  whether those  who  now wield power at the Centre will  do  so  more wisely, more honestly, or more, effectively, from the  point of  view  of the interests of the masses of  our  people  or public good.  These are questions for the people  themselves to answer. I  think  that the two Union Ministers have  stated  certain grounds  for  inferring that the time has come to  give  the people  the  political sovereign a chance to  pronounce  its verdict  on the fates of State Governments and  legislatures in   the   nine   States  also  in   a   manner   which   is constitutionally not open to objection.  In so far as  arti- cle  356 (1) may embrace matters of political and  executive policy  and  expediency courts cannot interfere  with  these unless and until’ it is shown what constitutional  provision the  President is going to contravene of has contravened  on admitted grounds of action under Article 356 (1) for,  while Article  74(2) disables Courts from inquiring into the  very existence or nature or contents of ministerial advice to the President, Article 356(5) makes it impossible for Courts  to question  the  President’s  satisfaction  "on  any  ground". Hence, Court$, can only determine the validity of the action on  whatever  may remain for them to consider  on  what  are admitted,  on  behalf  of the President, to  be  grounds  of Presidential   satisfaction.   Learned  counsel’   for   the plaintiffs and petitioners, when confronted with Article 356 (5),  said they would challenge its validity as a  provision violating,  the  basic structure of  the  Constitution.  We, however,  heard objections to the maintainability  of  suits and  petitions even apart from the specific bar  in  Article 356(5).  And, I propose to deal principally with those other objections. This  Court has never abandoned its constitutional  function as  the  final  judge  of  constitutionality  of  all   acts purported   to   be  done  under  the   authority   of   the Constitution.   It  has not refused to  determine  questions either  of  fact or of law so long as it  has  found  itself possessed’ of power to do it and the cause of justice to  be capable of being vindicated by its actions.  But, it  cannot assume unto itself powers the Constitution lodges  elsewhere or  undertake tasks entrusted by the Constitution  to  other departments of State which may be better equipped to perform them.  The scrupulously discharged duties of all’  guardians of the Constitution include the duty not to transgress the- 27 limitations  of  their  Own  constitutionally  circumscribed powers  by trespassing into what is properly the  domain  of other constitutional organs.  Questions of political  wisdom or executive policy only could not be subjected to  judicial control.    No   doubt  executive  policy   must   also   be subordinated  to constitutionally sanctioned  purposes.   It has its sphere and limitations.  But, so long as it operates within that sphere, its operations are immune from  judicial interference.   This  is also a part of the  doctrine  of  a

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rough  separation  of  powers under  the  Supremacy  of  the Constitution  repeatedly.propounded  by this  Court  and  to which  the  Court unswervingly adheres even when  its  views differ  or  change  on  the  correct  interpretation  of   a particular constitutional provision. Assuming, therefore, that the letter of Shri Charan Singh in the  context  of  the reported speech of  the  Law  Minister formed  the  basis of an absolutely correct  inference  that action under Article 356 of, the Constitution would be taken by  the President if the "advice" to the Chief Ministers  of States contained in it is not accepted, the only question we need determine here is whether such a use of Article 356  of the  Constitution  was,  in  any  way,  unconstitutional  or legally  malafide.   Another way of putting the  same  issue would  be to ask whether the- purposes-stated by  the  Union Law  Minister for the proposed action under Article  356  of the  Constitution, assuming that such a proposal  or  threat could be found there, could be said to be extraneous to  the purposes of Article 356 of the Constitution. Mr. R. K. Garg arguing for the petitioners from Punjab,  has put forward what appears to us to be, according to the  very authority  cited  by  the learned counsel, on  the  mode  of construing  our Constitution, a very good justification  for the  view  said  to have been propounded by  the  Union  Law Minister.  Mr. Garg relied on a passage from the judgment of Sikri, C.J., in H. H. Kesavananda Bharati Sripadagalavaru v. State of Kerala : (1)               "I  must interpret Art. 368 in the setting  of               our  Constitution,  in the background  of  our               history  and in the light of  our  aspirations               and  hopes, and other relevant  circumstances.               No other constitution combines under its wings               such  diverse people, numbering now more  than               550  millions,  with different  languages  and               religions and in different stages of  economic               development,  into  one nation, and  no  other               nation is faced with such vast  socio-economic               problems".               It was also said there (at p. 69) :               "I   need  hardly  observe  that  I   am   not               interpreting   an  ordinary  statute,  but   a               Constitution  which  apart from setting  up  a               machinery  for  government, has  a  noble  and               grand vision.  The vision was put in words  in               the  Preamble  and  carried  out  in  part  by               conferring  fundamental rights on the  people.               The vision was directed to be further  carried               out   by   the   application   of    directive               principles. (1) [1973] Supp.  S.C.R. 1. 3-722SCI/77 28 It  seems  to  me  that if "aspirations  and  hopes  of  the people", "the noble and grand vision found in the  preamble" and  the chapter on "Directive Principles of  State  Policy" are  to  be  taken  into account  in  deciding  whether  the provisions  of the Constitution are being carried out  by  a particular  Government  or not, the  scope  of  interference under   Article  356  of  the  Constitution,  so  that   the provisions  of  the Constitution may  be  observed,  becomes quite  wide  and sweeping.  So long as we are bound  by  the majority  view  in Kesavananda Bharati’s case  (supra),  the purposes and the doctrines lying behind its provisions  also become,  if  one may so put it, more or less, parts  of  the Constitution.  Whether a particular view or proposed action,

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in   a  particular  situation,  amounts  to   enforcing   or subverting   the   constitution  thus   becomes   a   highly controversial  political  issue on which the letter  of  the Constitution tends to be relegated to the background. As I am, strictly speaking, only concerned with the law,  as I  find  it  in  the Constitution, I  will  now  proceed  to interpret Article 356 as I find it.  It reads :               "356(1)  If  the  President on  receipt  of  a               report  from  the  Governor  of  a  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-               (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  Legis-               lature 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 or giving effect to the               objects   of   the   Proclamation,   including               provision  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 that, 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.               (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               29               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  (not               being  a  Proclamation  revoking  a   previous               Proclamation)  is  issued at a time  when  the               House  of  the  People  is  dissolved  or  the               dissolution  of the House of the People  takes               place during the period of two months referred               to   in  this  clause  and  if  a   resolution               approving the Proclamation has been passed  by               the Council of States, but no resolution  with               respect  to such Proclamation has been  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               the  said period of thirty days  a  resolution

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             approving  the  Proclamation  has  been   also               passed by the House of the People.               (4)   A Proclamation so approved shall, unless               revoked,  cease to- operate on the  expiration               of a period of six months from the date of the               passing  of  the  second  of  the  resolutions               approving the Proclamation under clause (3) :               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  of  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  resolution               approving  the  continuance in force  of  such               Proclamation has been passed by the Council of               States, but no resolution with respect to  the               continuance in force of such Proclamation  has               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 the said  period  of               thirty   days  a  resolution   approving   the               continuance  in force of the Proclamation  has               been also passed by the House of the People.               (5)      Notwithstanding  anything   in   this               Constitution,   the   satisfaction   of    the               President  mentioned  in clause (1)  shall  be               final   and  conclusive  and  shall   not   be               questioned in any Court on any ground". It  is true that article 356 occurs in part  XVIII,  dealing with "emergency provisions".  But there are emergencies  and emergencies.   An emergency covered by article 352 can  only be  declared  if  the President is satisfied  that  a  grave emergency  exists  whereby the security of India or  of  any part of the territory thereof is threatened, whether by 30 war or external aggression or internal disturbance", Article 352(3) shows that what is known as "the present and imminent danger rule;’ is applicable to such emergencies.  It is  not necessary  that the grave emergency contemplated by  article 352 must be preceded by actual occurrence of war or internal disturbance.   The imminence of its danger is enough.   But, article  356,  in  contrast,  does  not  contain  such  res- trictions.   The  effects of a "proclamation  of  emergency" under  article 352 are given in articles 353 and 354 of  the Constitution. After  the  first  three articles of  Chap.   XVIII  follows article 355 which enacts :               "355.   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." Now,  the  provisions  dealing  with  the  proclamation   of emergency  under  article  352, which has to  be  grave  and

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imminent,  seem to be covered by the first part of the  duty of the’ Union towards a State mentioned in article 355,  but the  second  part of that duty, mentioned  in  article  355, seems  to be of a somewhat different and broader  character. The  second part seems to cover all steps which  are  enough "to  ensure" that the Govt. of every State is carried on  in accordance  with the provisions of Constitution.  Its  sweep seems quite wide.  It is evident that it is this part of the duty of the union towards each State which. is sought to  be covered   by  a  proclamation  under  article   356.    That proclamation is not of a grave emergency.  In fact the  word emergency is not used there.  It is a proclamation  intended either   to   safeguard   against   the   failure   of   the constitutional machinery in a state or to repair the effects of a breakdown.  It may be either a preventive or a curative action.   It is enough if "the President" which, in view  of the amended article 73(1) really means the union council  of Ministers,  concludes  that  "the Government  of  the  State cannot  be carried on in accordance with the  provisions  of the, Constitution." On the other hand, action under  article 352 is, more properly, only defensive and protective  action to be taken to avert or meet a grave and imminent danger. What  is  the  Constitutional  machinery  whose  failure  or imminent  failure the President can deal with under  article 356  ?  Is it enough if a situation has arisen in which  one or more provisions of the Constitution cannot be observed  ? Now what provisions of the Constitution, which are not being observed  in  a  State, or to what  extent  they  cannot  be observed  are matters on which great differences of  opinion are  possible.   If  a  broad purpose, such  as  that  of  a democratic  Government,  contained in the  Preamble  to  our Constitution which was used by this Court, as was done in H. H. Kesavananda Bharti’s case (supra), to infer what has been called the "basic structure", was meant also to be served by article  356, the scope of a "situation" in which  proclama- tion  under it can be made would seem wide.  If  the  "basic structure"    embraces   basic   democratic    norms,    the Constitutional Machinery of article 356 could conceivably be used by the Union Government for 31 securing  compliance with its view of such norms,  when,  in its  opinion’  the State Government has  failed  to  observe them.   The Union Government could say : "If, what we  think is basic to, a democratic system is not done by you, we will conclude that the Government of your State cannot be carried on  by  you  in  accordance  with  the  provisions  of   the Constitution.  In  that case we will take over  your  power, under article 356, and do that for the people of your State, which you should yourself have done."Article 356 (1) of  the Constitution,  at any rate, does not seem to us to stand  in the way of such a view. Again,  if the directive principles of State, Policy,  which embrace  a vast field of legislation for the welfare of  the masses  of.  our  people,  are  also  parts  of  the   basic structure, which has to be ensured or maintained by the  use of  the  constitutional machinery, the failure of,  a  State Government  or  its  legislature to carry  out  any  of  the Constitution’s   mandates  or  directives,  by   appropriate legislation, may, according to a possible view, be construed as  a  failure  of  its  duties  to  carry  ,out  what   the Constitution requires.  Our difficulty is that the language, of  article;  356  is so wide and loose  that  to  crib  and confine  it  within  a  straight jacket  will  not  be  just interpreting  or  construing it but  will  be  ,constitution making   legislation  which,  again,  does   not,   strictly

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speaking, lie in our domain. The  above  mentioned possibilities seem  to  follow,  quite conceivably  from the fairly broad language used in  article 356(1)  and the rather loose meaning of the basic  structure of  the Constitution which this Court seems to have  adopted in  Kesavananda  Bharati’s case (supra).  This view  of  the "basic structure" seems, so to speak, to annex doctrines  to provisions.  If that be so, it becomes impossible for us  to say that the Union Government, even if it resorts to article 356  of the Constitution to enforce a political doctrine  or theory, acts unconstitutionally, so long as that doctrine or theory  is  covered  by  the  underlying  purposes  of   the Constitution found in the Preamble which has been held to be a part of the Constitution. We  have not sat here to determine whether the concept of  a basic   structure,  found  in  Kesavananda  Bharati’s   case (supra),  requires  any  clarification  or  a  more  precise definition.   I may mention here that I gave  the  following exposition of what I understood to be "the basic  structure" of  our  Constitution  of which,  according  to  Kesavananda Bharati’s case (supra), the doctrine of the supremacy of the Constitution was apart :               "Neither   of   the   three   constitutionally               separate organs of State can, according to the               basic scheme, of our Constitution today,  leap               outside    the   boundaries   of    its    own               constitutionally  assigned sphere or orbit  of               authority into that of the other.  This is the               logical  and natural meaning of the  Principle               of Supremacy of the Constitution". (gee : Smt.               Indira Nehru Gandhi v. Rai Narain) (1). Even  if  we  were to narrow down the  concept  of  a  basic structure  to bring it in accordance with the concept  found in the passage cited (1)  [1976] 2 S.C.R. 347 at 539. 32 above, we could only strike down that executive policy which could  fairly appear to be a clear deviation from  what  the basic  structure requires.  What would be, as the report  of the speech of the Law Minister shows, fairly and  reasonably viewed as a policy intended to strengthen or secure what  is included in that basic structure could not be struck down or controlled at all by this Court as that would be an  attempt to control executive policy within a sphere which is its own and  where its supremacy must be and has  been  consistently upheld by this Court. The  basic assumption underlying the views expressed  above, is that each of the three organs of the State-The Executive, the  Legislature  and  the Judiciary has its  own  orbit  of authority and operation.  It must be left free by the  other organs.  to  operate within that sphere even if  it  commits errors  there.   It is not for one of the  three  organs  of State  either to correct or to point an accusing  finger  at the other merely because it thinks that some error has  been committed by the other when acting within the limits of  its own powers.  But, if either the Executive or the Legislature exceeds  the  scope of its powers, it places itself  in  the region where the effects of that excess should be capable of removal  by the Judiciary which ought to redress  the  wrong done  when  properly  brought up before  it.   A  scrupulous adherence  to  this  scheme  is  necessary  for  the  smooth operations  of our Constitutional mechanisms of  checks  and balances.  It implies due respect for and confidence in each organ of our Republic by the other two. In Har Sharan Varma v. Chandra Bhan Gupta & Ors., (1)

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Allahabad High Court, quite rightly observed :-               "It  is not possible for the Court  to  assess               the  political  forces and  compulsions  which               necessitated    any   political    party    to               act.......... The Executive and the  Judiciary               are,  independent of each other  within  their               respective  spheres.  Each is conversant  with               the  peculiar  circumstances  within  its  own               sphere   and   has   special   knowledge    of               complicated  questions which is denied to  the               other.  Each must have the fullest  discretion               in  the discharge of its duties.  The acts  of               the  Executive are not open to review  by  the               Judiciary as long as there is no violation  of               the  law or the Constitution. it follows  that               the Court could not ordinarily comment on  any               act  of the Executive unless the act  is  such               that  it is likely to promote  disrespect  for               the  law.   This Court must  extend  the  same               courtesy to the other branches of  government,               which  it receives from them and refrain  from               making uncalled for comments on the wisdom  of               the acts of the ministers of government." It  has, however, been vehemently contended before  us  that just  as  it  is a part of the  Constitutional  scheme  that neither the executive nor the legislature should attempt  to interfere  with  the functions of the  judiciary,  operating within  its own sphere, and, just as the judiciary does  not interfere  With executive or legislative function ’so  long. as (1) A.I.R. 1962 All. 301 at 307. 33 there is no excess of power, which may be questioned  before Courts,  similarly,  the Union Government  cannot  interfere with  the normal functions of the Government in a  State  on the  plea  that there is a lack of  conformity  between  the legal rights of the State Government and the opinions of the electorate  which  could affect only the moral rights  of  a State  Government  to continue in power.  It  was  submitted that such an allegedly moral ground does not give the  Union Government  the legal right of action under article  256  of the Constitution.  This, it is urged by Mr. Niren De, raises a constitutional issue of grave import. In  some of the plaints, it is asserted that the moral  plea sought  to  be given the colour of a legal right  of  action under article 356(1), on behalf of the people of the  State, is  an  attempt to give a legal and constitutional  garb  to what  is  only  a  matter  of  political  strategy.  it   is suggested, that the Union Government wants to take an  undue advantage of the temporary gust of feeling which is believed to  be  sweeping  the  country as a  result  of  the  recent overwhelming  victory of the Janata party and its  political allies.  In other words, both the question of the, extent of State autonomy in a federal structure, and an alleged misuse of  constitutional  power under article 356 of  the  Consti- tutional, on grounds said to be extraneous to it, have  been raised  on behalf of the States.  These  considerations  are placed before us as aids to a proper construction of article 356(1) as well as matters which deserve careful scrutiny and adjudication after ascertainment of correct facts. We  are reluctant to embark on a discussion of the  abstract principles  of federalism in the face of express  provisions of  our Constitution.  Nevertheless, as the principles  have been   mentioned  as  aids  to  the  construction   of   the Constitution whose basic structure may, no doubt, have to be

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explored even when interpreting the language of a particular provision  of the document which governs the destiny of  the nation, we cannot avoid saying something on this aspect too. A  conspectus  of the provisions of  our  Constitution  will indicate  that, whatever appearances of a federal  structure our  constitution  may have, its operations  are  certainly, judged  both by the contents of power which a number of  its provisions carry with them and the use that has been made of them, more unitary than federal.  I mention the use that has been made of the constitutional provisions because constitu- tional practice and convention become so interlinked with or attached  to  constitutional  provisions and  are  often  so important  and  vital  for grasping  the  real  purpose  and function  of Constitutional provisions that the  two  cannot often  be  viewed apart.  And where the content  ,of  powers appears so vague and loose from the language of a provision, as  it seems to us to be in article 356(1), for the  reasons given  above, practice and convention may so crystallise  as to  become more significant than the letter of the law.   At any  rate, they cannot be divorced from constitutional  law. They  seem  to us to be relevant even in  understanding  the purpose,  the import, and the meaning of the words  used  in article  356(1).  This will be apparent also from a  perusal of the 34 judgment  of  this  Court  in  Shamher  Singh  v.  State  of Punjab(1). The  two  conditions Dicey postulated for the  existence  of federalism were : firstly, "a body of countries such as  the Cantons  of  Switzerland, the Colonies of  America,  or  the Provinces  of Canada, so closely connected by  locality,  by history, by race, or the like, as be capable of bearing,  in the eyes of their inhabitants an impress of common  nationa- lity";  and, secondly, absolutely essential to the  founding of  a  federal system is the "existence of a  very  peculiar state of sentiment among the inhabitants of the  countries". He pointed out that, without the desire to unite there could be  no  basis for federalism.  But, if the desire  to  unite goes  to  the extent of forming an integrated whole  in  all substantial  matters  of Government, it produces  a  unitary rather  than  a  federal constitution.  Hence,  he  said,  a federal  State  "Is  a  political  contrivance  intended  to reconcile  national  unity  with the  maintenance  of  State rights." The degree to which the State rights are separately preserved   and  safeguarded  gives  the  extent  to   which expression is given to one of the two contradictory urges so that  there  is  a  union without  a  unity  in  matters  of government.   In  a sense, therefore, the  Indian  union  is federal.   But,  the extent of federalism in it  is  largely watered  down by the needs of progress and development of  a country  which has to be nationally integrated,  politically and  economically coordinated, and socially,  intellectually and  spiritually  up-lifted. In such a  system,  the  States cannot  stand in the way of legitimate  and  comprehensively planned development of the country in the manner directed by the  Central  Government.   The question  of  legitimacy  of particular  actions of the Central Government taking  us  in particular  directions  can often be tested  and  determined only  by  the verdicts of the people  at  appropriate  times rater  than by decisions of Courts.  For this reasons,  they become,  properly  speaking, matters for  political  debates rather  than for legal discussion.  If the special needs  of our   country,   to  have  political   coherence,   national integration,  and planned economic development of all  parts of  the  country,  so  as to build  a  welfare  State  where

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"justice, social, economic and political" are to prevail and rapid strides are to be taken towards fulfilling the of  her noble  aspirations, set out in the Preamble, strong  central directions  seems  inevitable.  It is  the  country’s  need. That, at any rate, seems to be the basic assumption behind a number of our Constitutional provisions. Mr.   Granville   Austin,  in  "The   Indian   Constitution- Cornerstone,  of a Nation" (see p. 186) in the course of  an account  of  our Constitution making, points  out  that  the members of our Constituent assembly believed that India  had unique problems which bad not ’confronted other  federations in  history’.  Terms such as ’quasi-federal’ and  ’statutory decentralization’ were not found by the learned author to be illuminating.    The   concepts  and  aspirations   of   our Constitution makers were different from those in American or Australia.  Our Constitution could not certainly be said  to embody  Dr. K. C. Where’s notion of "Federalism" where  "The general  and  regional  governments of a  country  shall  be independent each of the other within its sphere." Mr. Austin thought  that  our system, it, it could be  called  federal, could  be described as "cooperative federalism".  This  term was used by another author, Mr. (1)  [1975] 1 S.C.R. p. 814. 35 A.H.   Birch   (see  :  Federalism,  Finance,   and   Social Legislation  in Canada, Australia, and the United States  p. 305), to describe a system in which :               ".  .  .  .  the  practice  of  administrative               cooperation   between  general  and   regional               governments,  the  partial dependence  of  the               regional  governments upon payments  from  the               general  governments,  and the fact  that  the               general governments, by the use of conditional               grants,  frequently  promote  developments  in               matters which are constitutionally assigned to               the regions". In  our country national planning involves disbursements  of vast  amounts  of  money collected as  taxes  from  citizens residing in all the States and placed at the disposal of the Central  Government for the benefits of the  States  without even  the "conditional grants" mentioned above.  Hence,  the manner  in  which State Governments function and  deal  with sums placed at their disposal by the Union Government or how they carry on the general administration may also be matters of considerable concern to the Union Government. Although  Dr.  Ambedkar  thought that  our  Constitution  is federal  "inasmuch  as it establishes what may be  called  a Dual  Polity,"  he also said, in the  Constituent  Assembly, that our Constitution makers bad avoided the ’tight mould of federalism’  in which the American Constitution was  forged. Dr.  Ambedkar,  one  of  the  principal  architects  of  our Constitution, considered our Constitution to be both unitary as well as federal according to the requirements of time and circumstances’. If then our Constitution creates a Central Government  which is  amphibian", in the sense that it can move either on  the federal  or  unitary plane, according to the  needs  of  the situation and circumstances of a case, the question which we are driven back to consider is whether an assessment of  the "situation" in which the Union Government should move either on  the federal or unitary plane are matters for  the  Union Government  itself  or  for  this  Court  to  consider   and determine.  Each organ of the Republic, is expected to  know the  limits  of  its own powers.   The  judiciary  comes  in generally  only when any question of ultra vires  action  is

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involved,  because questions relating to vires appertain  to its domain. I may point out that there are various aspects of  relations between  the  Union  and the States  governed  by  different provisions  of the Constitution.  I may here refer to  those which   relate  to  giving  of  "direction"  by  the   Union Government  to  the State Governments  because  article  365 provides :               "365.   Where any State has failed  to  comply               with  or  to give effect  to,  any  directions               given  in the exercise of the executive  power               of  the union under any of the  provisions  of               this constitution, it shall be lawful for  the               President to hold that a situation has  arisen               in which the government of the State cannot be               carried  on in accordance with the  provisions               of this Constitution." 36 Articles  256  and 257 mention a wide range of  subjects  on which the Union Government may give executive directions  to State  Governments.  Article 73(1) (a) of  the  Constitution tells  us that the Executive power of the Union  extends  to all  matters on which "parliament has power to  make  laws." Article  248  of the Constitution vests exclusively  in  the Parliament residuary powers of making laws on any matter not enumerated in the Concurrent or State Lists.  Article 256 of the  Constitution covers cases where the President may  want to give directions in exercise of the executive power of the Union to a State Government in relation to a matter  covered by an existing law made by Parliament which applies to  that State.  But, article 257(1) imposes a wider obligation  upon a  State  to  exercise its powers in such a way  as  not  to impede  the exercise of executive power of the Union  which, as  would appear from Article 73 of the  Constitution,  read with article 248 may cover even a subject on which there  is no existing law but on which some legislation by  Parliament is possible.It   could,   therefore,  be   argued   that, although, the. Constitution itselfdoes    not   lay    down specifically  when  the  power  of  dissolution  should   be exercised  by  the Governor on the advice of  a  Council  of Ministers  in the State, yet if a direction on that  matter was properly given bythe  Union  Government to  a  State Government,  there is a duty to carry it out.  The time  for the  dissolution of a State Assembly is not covered  by  any specific  provision of the Constitution or any law  made  on the  subject.   It  is  possible,  however,  for  the  Union Government, in exercise of its residuary executive power  to consider  it a fit subject for the issue of  an  appropriate direction when it considers that the political situation  in the  country is such that a fresh election is  necessary  in the  interest  of political stability or  to  establish  the confidence of the people in the Govt. of a State. Undoubtedly,  the  subject is one on which  appropriate  and healthy  conventions should develop so that the power  under article   356(1)  is  neither  exercised   capriciously   or arbitrarily  nor  fails  to be exercised  when  a  political situation  really calls for it.  If the views of  the  Union Government  and the State Government differ on the  subject, there  is no reason why the Union Government should not  aid the  development  of  what  it considers  to  be  a  healthy practice  or convention by appropriate advice or  direction, and,  even to exercise its powers under article  356(1)  for this  purpose  when it considers the observance  of  such  a directive  to  be  so  essential  that  the   Constitutional machinery   cannot function as it was meant to do unless  it

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interferes.  This Court cannot, at any rate, interdict  such use  of powers under article 356(1) unless and until  resort to the provision, in a particular situation, is shown to  be so grossly perverse and unreasonable as to constitute patent misuse  of  this provision an excess of  power  on  admitted facts.  On the allegations before us we cannot reach such  a conclusion.   And, it is not for Courts to  formulate,  and, much  less,  to enforce a convention however,  necessary  or just  and  proper a convention to regulate the  exercise  of such  an executive power may be.  That is a matter  entirely within the Executive field, of operations, It   is   futile  to  urge  that  article  172(1)   of   the Constitution, as amended, lays down an unalterable  duration of six years for a legislative 37 assembly from its first meeting because this article clearly contains   the  exception  "unless  sooner  dissolved."   As observed  above,  it  is no where laid down  either  in  the Constitution or any law dealing with holding of elections to a  legislative assembly what circumstances will justify  its dissolution  sooner  than the duration  it  would  otherwise enjoy. It was argued that the only authority empowered to  dissolve a  legislative  assembly under Article 174 (2)  (b)  of  the Constitution  was the Governor of a State who had to act  on the advice of the Council of Ministers in the State.  It was submitted that the Union Government could not either advise, or in the form of advice, direct the State Government to ask the  Governor  to  dissolve the  State  Assembly  under  any circumstances.   Apparently, the principle  of  construction relied  upon was a much used and easily  misused  principle; "expressio  unius  est exclusio alterius." We do  not  think that such a principle could help the plaintiffs before us at all  in  as  much as article 356 of  the  Constitution  very clearly  provides  for the assumption by the  President  ’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." Article 174(2)  (b)  of  the Constitution  expressly  vests the power of  dissolving  the legislative assembly in the Governor even if that had to  be on the advice of the Council of Ministers in the State,  but the power to give such advice would automatically, be  taken over by the Union Government for the purposes of dissolution of   the   State  Assembly  when   the   President   assumes governmental  powers by a proclamation under Article  356(1) of  the Constitution.  A dissolution by the President  after the  proclamation would be as good as a dissolution  by  the Governor of a State whose powers; are taken ’over. The  position of the Governor as the Constitutional head  of State  as a unit of the Indian Union as well) as the  formal channel  of  communication between the Union and  the  State Government,  who  is  appointed under  article  155  of  the Constitution "by the President by Warrant under his hand and seal,"  was also touched in the course of  arguments  before us.   On  the one hand, as the Constitutional  head  of  the State. he is ordinarily bound, by reason of a constitutional convention,  by  the  advice of  his  Council  of  Ministers conveyed  to  him through the Chief  Minister  barring  very exceptional circumstances among which’ may be as pointed out by  my learned brothers Bhagwati and Iyer, JJ., in  Shamsher Singh’s case, supra (p. 875) a situation in which an  appeal to  the electorate by a dissolution is called for.   On  the other  hand,  as the defender of "the Constitution  and  the law" and the watch-dog of the interests of the whole country and  well-being  of the people of his State  in  particular,

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the, Governor is vested with certain discretionary powers in the exercise of which he can act independently.  One of  his independent  functions  is the making of the report  to  the Union Government on the strength of which Presidential power under Article 356(1) of the Constitution could be exercised. In so far as he acts in the larger interests of the  people, appointed  by the President" to defend the Constitution  and the  Law" he acts as an observer on behalf of the Union  and has to keep a watch on how the administrative machinery  and each organ of constitutional Government is working in the 38 State.   Unless he keeps such a watch over all  governmental activities  and the State of public feelings about  them  he cannot  satisfactorily discharge his function of making  the report  which  may  form  the  basis  of  the   Presidential satisfaction  under  Article  356(1)  of  the  Constitution. Indeed, the usual practice is that the President acts  under Article  356(1) of the Constitution only on  the  Governor’s report.   But,  the,  use of the words  "or  otherwise"  (in article  356) show that Presidential satisfaction  could  be based  on  other  material as well.   This  feature  of  our Constitution  indicates most strikingly the extent to  which inroads  have been made by it on the federal  principles  of Government. Mr. Setalvad in his Tagore Law Lectures, 1974, on "UNION AND STATE RELATIONS" has observed, while dealing with Governor’s role (at p. 164-165) :               "The powers of the President under Article 356               have  been  frequently  exercised  since   the               commencement   of   the   Constitution.    The               occasions for its exercise emphasise not  only               the  importance  of the power  in  maintaining               stable governments in the State, but also  the               vital  role which the Governor has to play  in               enabling  the Union Executive to exercise  the               powers  vested in it under Article  356.   The               Constitutional  machinery in a State may  fail               to function in numerous ways.  There may be  a               political   deadlock;  for  example  where   a               Ministry  having resigned, the Governor  finds               it’   impossible   to  form   an   alternative               government;  or,  where for some  reason,  the               party  having  a  majority  in  the   Assembly               declines to form a Ministry and the Governor’s               attempts to find a coalition Ministry able  to               command   a   majority   have   failed.    The               Government of a State can also be regarded  as               not  being carried on in accordance  with  the               Constitution   in  cases  where  a   Ministry,               although  properly constituted, acts  contrary               to the provisions of the Constitution or seeks               to use its powers for purposes not  authorised               by   the  Constitution  and   the   Governor’s               attempts  to call the Ministry to  order  have               failed.  There could also be a failure of  the               constitutional  machinery where  the  Ministry               fails to carry out the directives issued to it               validly by the Union Executive in the exercise               of  its powers under the Constitution.   The               very  statement  of some  of  the  situations,               which may bring about the use of the machinery               provided  by  Article 356  shows  the  pivotal               position   which  the  Governor  occupies   in               respect  of  these situations  and  the  grave               responsibility of his duties in the matter  of

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             reporting to the President under Articles 355:               and 356 of the Constitution." The  question  was then mooted whether that was  being  done under  article  356 of the Constitution did  not  amount  to taking over by the 39 President,  acting  on the advice of the  Union  Council  of Ministers,  of  powers for dissolving the  State  Assemblies upon  facts and circumstances which, in the judgment of  the Union  Council of Ministers, constituted sufficient  grounds for  a  dissolution  of  the  State  Assembly,  whereas  the Constitution provides that this had to be done by the  State Government  on the advice of the Council of Ministers  in  a State.  Such an argument is really an argument in a  circle. It assumes that the taking over by the President, advised by the  Union  Council of Ministers, of the  functions  of  the Governor, advised by the State Council of Ministers, on this matter,  was  outside  the purview  of  Article  356(1).   A situation  in  which,  according to the view  of  the  Union Government,  the  State  Council of  Ministers  had  wrongly failed  to advise the State Governor to dissolve  the  State Legislative Assembly, so that action under Article 3 5 6 ( 1 )  has to be taken, would be exceptional in  which  articles governing  the exercise of functions normally are  suspended and  do  not  operate  at all.  If  article  356(1)  of  the Constitution  or any other article contained  any  provision which amounted to a prohibition against assumption of powers of  dissolution  of  State Assemblies by  the  President  of India, it would be a different matter, but that, as we  have repeatedly  pointed out, is not the position here.   Indeed, such  a provision, had it been there, would have  completely nullified  article 356(1).  Obviously, a proclamation  under Article 356(1) to be effective must suspend the operation of article 174.  It is evident that one of the reasons, perhaps the   main  reason  for  bringing  about  this   exceptional situation in the cases now before us, is the refusal of  the State Chief Ministers to comply with the advice sent to them which  they equate with a ’direction’ given in  exercise  of the executive powers of the Union Government. If constitutionally correct practises could also be  pointed out and enforced by the Union Government so that  provisions of our Constitution may operate in the manner in which  they were intended to do and none of their objects is frustrated, it  may be useful to glance at the convention which  governs exercise  of the Crown’s "prerogative" power of  dissolution of  Parliament  in  England.   Dicey  in  his  law  of   the Constitution 10th Edn., (at p. 432) observed               "The prerogative, in short, of dissolution may               constitutionally be so employed as to override               the will of the representative body, or as  it               is  popularly called.  "The People’s House  of               Parliament."  This looks at first  sight  like               saying  that in certain cases the  prerogative               can be so used as to set at nought the will of               the  nation.  But in reality it is far  other-               wise.   The discretionary power of  the  Crown               occasionally   may   be,  and   according   to               constitutional  precedents sometimes ought  to               be, used to strip an existing House of Commons               of  its  authority.  But the  reason  why  the               House can in accordance with the  Constitution               be deprived of power and of existence is  that               an occasion has arisen on which there is  fair               reason  to  suppose that the  opinion  of  the               House  is not the opinion of the electors.   A

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             dissolution  is in its essence an appeal  from               the  legal  to  the  political  sovereign.   A               disso-               40               lution  is allowable, or  necessary,  whenever               the  wishes  of the legislature  are,  or  may               fairly  be presumed to be different  from  the               wishes of the nation". It was pointed out by Diecy that the conventional use of the ’Prerogative"  of  the Crown to dissolve  Parliament  in  an exceptional situation, even when the Government in power had the  support of a majority behind it, was  established.   He gave  two instances; one of a dissolution of  Parliament  in 1784 and another in 1834. Presumably, two instances, with a gap of fifty years between them,  were  considered  enough  by  Dicey  to  establish  a convention  governing exceptional situations.  A perusal  of other authorities, such as Anson on "The Law & Custom of the Constitution"  or  Erskine May’s  "Parliamentary  Practice", leads us to no different- result.  Dicey’s statement reveals :  firstly,  there is, according to  British  convention,  a "right"  of  a  Government, which  no  longer  commands  the support  of a majority in the House of Commons, to demand  a dissolution  or to force an appeal to the electorate or  the "Political   sovereign";   and,  secondly,   there   is   an "overriding"  discretion in the Crown even to disregard  the advice  of  the Prime Minister, the spokesman of  the  whole body  of Ministers,  with a majority in  the  Lower  House behind  him,  and to force a dissolution in  an  exceptional situation. A recent study of "The Theory and Practice of Dissolution of Parliament", with particular reference to the experiences of United  Kingdom and Greece, by Dr. B. S. Markesinis, in  the Cambridge "International and Comparative Law" series (1972), contains  a detailed discussion of views of various  authors and  accounts  of political situations which had  arisen  in more  recent times with regard to dissolutions.  This  study brings  out  the  grave responsibility  of  the  Crown  when assessing   what   Prof.    Laski   called   the   "Critical circumstances in which the Crown may exercise its discretion to  force a general election" which may result in "a  direct confrontation  between  the monarch and his people"  if  the King acts contrary to the advice of the Government supported by  a  majority in the House of Commons.  After  an  illumi- nating discussion of the views of Constitutional lawyers and experts, such as Keith, Jennings, Laski, Hubert, and Morgan, Dr. Markesinis refers to an impressive letter of the British Prime Minister Mr. Asquith to the King written on 31st July, 1914.  That letter contained the following passage               "Sovereign   undoubtedly  has  the  power   of               changing  his advisers but it is  relevant  to               point out that there has been during the  last               130 years, one occasion only on which the King               has   dismissed  the  Ministry   which   still               possessed  the  confidence  of  the  House  of               Commons, (be continues :) Nothing can be  more               important,  in the best interest of the  Crown               and the Country, than that a practice, so long               established   and   so   well   justified   by               experience, should remain unimpaired. it frees               the  occupant of the throne from all  personal               responsibility  for the acts of the  executive               and the legislature." 41 The  King expressed his gratitude to the Prime Minister  for

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advising  him  against being "dragged into  arena  of  party politics"  whether the King "wished it or not" and acted  on the Prime Minister’s advice. In so far as growth of healthy conventions on such a subject are  essential  for  the  satisfactory  operations  of   the machinery  of  democratic Government, this is  a  matter  on which  there  could  and  should be  a  broad  agreement  or consensus  between all parties interested in a  satisfactory working of the democratic system in this country.  It is not a matter on which the Court can give its opinion as to what the  proper precedent or view to follow or course of  action to pursue in a particular situation is.  All that this Court can  do is to consider whether an action proposed on such  a matter  on certain grounds, would fall under article  356(1) of  the Constitution if the Union Government and  the  State Governments differ on the question whether, in a  particular situation, the dissolution of the State Assembly should take place  or  not.   The  most that one could  say  is  that  a dissolution  against the wishes of the majority in  a  State Assembly is a grave and serious matter.  Perhaps it could be observed  by us that it should be resorted to under  Article 356(1) of the Constitution only when "a critical  situation" has arisen.  As the study of Dr. Aarkesinis shows it is  not always  necessary that, under a multiple party  system,  the mere  defeat of a State Government in a State Assembly  must necessarily create a situation in which a dissolution of the State Assembly is obligatory.  If an alternate Government is capable  of  being formed which commands the  support  of  a majority  in the State Assembly, it may not be ordered  even when  a  Government  in  power  is  defeated  in  the  State Assembly.  The position may, however, be very different when a  State  Government has a majority in  the  State  Assembly behind it but the question is whether the State Assembly and the State Government for the time being have been so totally and  emphatically  rejected by ’he people that  a  "critical situation"  has  arisen  or is bound  to  arise  unless  the political  sovereign"  is given an opportunity of  giving  a fresh  verdict.  A decision on such a  question  undoubtedly lies in the Executive realm. It  may be that, if the need to an appeal to the  electorate is put forward only as a thin disguise for punishing a State Government  by repeated dissolutions within  short  periods, the  use of article 356(1) for such a purpose may appear  to be plainly outrageous and extraneous.  In such  hypothetical and  very exceptional circumstances the action of the  Union Government  may appear to be mala fide and in excess of  the power  under  article  356(1)  of  the  Constitution.   But, nothing,  like  that  is alleged in any of  the  plaints  or petitions.   On  the other band, it seems  that  the  advice given to the Chief Ministers of different States is based on a  matter  of  a uniform general policy  resulting  from  an estimate of what, in the opinion of the Union Government, is a  critical juncture in the history of the whole  nation  so that  the people in the States must be given an  opportunity of  showing whether the party in power in the States  should or should not pursue policies which may be at variance  with those  of the Union Government.  No fact is alleged  showing any  personal animus of any member of the  Union  Government against a State Government or a State Assembly.  As 42 the  question  of the proper time for a dissolution  of  the State Assembly is riot a matter extraneous to article 356(1) of  the  Constitution, the most ’,.hat can be said  is  that questions raised do not go beyond sufficiency of grounds for resorting to article 356(1) of the Constitution.

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In   our  country,  the  power  of  dissolving   the   State Legislature has been exercised by the Union Government or by the  Governor  carrying  out the  directions  of  the  Union Government after a proclamation under article 356(1) of  the Constitution  on  more than two dozen  occasions  since  the commencement  of  the  Constitution.  On  several  of  these occasions,  Presidential Proclamations under article  356(1) were  assailed  on various grounds before High  Courts.   On each occasion the attack failed.  The cases cited before  us were : K. K. Aboo v. Union of India & Ors.(1) Rao  Birinder Singh  v.  The  Union  of  India  &  Ors.  (2),  In  Re   A. Sreeamulu(3) and Bijayananda Patnaik & Ors. v.    President of India & Ors.(4). In  no  case  brought to our notice was  the  power  of  the President to dissolve a State Assembly, either by means of a Proclamation  under  article  356(1)  itself  or  after  it, challenged  on  the  ground that it  falls  outside  article 356(1).   It  was urged before us that the sole  purpose  of ’the    intended   Proclamations   being   procurement    of dissolutions  of the State Legislatures with the  object  of gaining  political  victories was both extraneous  and  mala fide.  It seems to us that the assertions that the  exercise of  power was mala fide in fact and in law were made on  the assumption  that  the whole object of the  exercise  of  the power is only to gain a political victory. As  we  have  tried to indicate above,  attempts  to  secure political victories, by appeals to the electorate, are parts of the recognised rules of a democratic system of government permitting  contests between rival parties so as to  achieve certain other objectives.  If such a contest with the desire for  achieving  a  political victory  in  order  to  enforce certain programmes, believed by the members of a party to be beneficial  for  the  people  in a State,  as  a  method  of achieving the objects set out in the Preamble, are not  only legal   and   permissible  under  the   Constitution,   but, obviously, constitute the only possible legitimate and legal means of attaining the power to enforce policies believed to be  correct  by  various parties,  according  to  their  own lights, it could not possibly be asserted that procuring the dissolution of a State Legislative Assembly, with the object of gaining a political victory, is, in itself, an extraneous object which could not fall at ail under article 356 of  the Constitution.  In order to apply the doctrine that something cannot  be  done  indirectly because it could  not  be  done directly,  it  must  first be established  either  that  the object  or the means are legally prohibited.  In  the  cases before  us,  it  does not appear to us that  the  object  of gaining  a political victory, set out in the plaints is,  by itself, legally prohibited.  Nor is there anything in law to prohibit  a  recourse  to the means adopted.   There  is  no assertion in the plaints or the petitions (1)  A.I.R. 1965 Ker. 229. (2)  A.I.R. 1968 Punj. 441. (3)  A.I.R. 1974 AP 106. (4)  A.I.R. 1974 Orissa 52. 43 that  anything  is  being  done  or  attempted  by   legally prohibited means for a legally prohibited purpose.  All that is  suggested is that it is morally represensible to try  to obtain an electoral victory in the States by dissolving  the Assemblies  so as to get rid of the Congress Governments  in power  there.  On such a question of moral worth  of  either the  ends or the means adopted, this Court  cannot  possibly sit  in  judgment.  It is enough for our purposes  that  the plaints   and  the  petitions  do  not   disclose   anything

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extraneous  to  the  purpose  of  Article  356  (1)  of  the Constitution  in  the  eyes  of  law.   The  sufficiency  or adequacy  of the grounds for action under article 356(1)  of the  Constitution is quite another matter.  We do not  think that we can go into that at all here. We find that in the plaint of the State of Himachal  Pradesh the  term "prerogative’ has been used for the power  of  the State  Governor  to dissolve a Legislative  Assembly,  under Article  174,  as  though  there was  a  violation  of  that "prerogative"  by some paramount "prerogative"  asserted  by the  Union  Government.   I  do  not  think  that  the  term "prerogative" can be correctly used, in its technical sense, with   reference   to   any  power   exercised   under   our Constitution.  In English law the term "prerogative" is used for  "the residue of discretionary power left at any  moment in  the  hands of the Crown whether such power  be  in  fact exercised  by the King himself or by his Ministers". (See  : Keir & Lawson’s cases in Constitution Law, 5th Edn. p. 151). Dicey  said : "Every act which the executive Government  can lawfully  do without the authority of the Act of  Parliament is done in virtue of ibis prerogative". (Dicey : Law of  the Constitution,  10th  Edn.,  p. 425).   It  is,  however,  an established principle of British Constitutional law that  no claim to prerogative could survive the passing of a  statute covering that very subject because the so-called prerogative merges  in  the statute (Attorney General  v.  Dr.  Keyser’s Royal Hotel(1).  It cannot conflict with statute.  Under our Constitution  there  is no "prerogative" in  that  technical sense.   All  constitutional  powers are  regulated  by  our written Constitution.  There may be room for the development of conventions on a matter not fully covered as to the  mode of exercise of a discretion or power.  But, that is a matter distinct  from "prerogative".  Under our  Constitution,  the residue  of  that power, which is  neither  legislative  nor judicial,  is covered by the caption :  "Executive".   Thus, the  equivalent  of most "prerogative"  powers  would  fall, under  our  law, under the heading  of  "executive"  powers. Inasmuch  as the term "prerogative" is sometimes used  in  a wider  nontechnical  sense, as something  which  gives  pre- eminence  or an overriding attribute to a power, it  may  be said  that  such a power is lodged in the  Union  Government under  Article  356(1) of the Constitution  on  all  matters covered by that provision.  The only question in such  cases is  whether  the  matter  in relation  to  which  the  Union Government  is proceeding or has acted is or is  not  within the  purview of Article 356(t) of The Constitution.   If  it lies within that sphere, the Courts cannot interfere on  the ground, at any rate,, that it is extraneous. Whenever the exercise of power to issue a proclamation under Article 356(1) of the Constitution has been challenged in  a High (1) [1920] A.C. 508. 4-722SCI/77 44 Court it has been held that sufficiency of grounds on  which the  order, is based could not be questioned.  Some  of  the dicta  found  there seem to lay down that  the  exercise  of power to issue proclamations is not justiciable at all under any circumstances.  This Court has not gone so far us  that. If  it is actually stated on behalf of the Union  Government that an action was taken on a particular ground which really falls completely outside the purview of Article 356(1),  the proclamation will be vitiated, not because the  satisfaction was  challenged  or  called in question on  any  ground  but because  it  was admitted to be on matters  outside  Article

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356(1). A challenge to the exercise of power to issue a proclamation under-,  Article 352 of the Constitution would be even  more difficult  to entertain than to one under Article 356(1)  as all these considerations would then arise which Courts  take into  account when the Executive, which alone can  have  all the necessary information and means to judge such an  issue, tells Courts that the nation is faced with a grave  national Emergency  during which its very existence or stability  may be  at  stake.  That was the principle  which  governed  the decision of the House of Lords in Liversidge v. Anderson(1). The  principle  is summed up in the salutary maxim  :  Salus Populi  Supreme Lex.  And, it was that principle which  this Court,  deprived  of the power to examine or  question-  any materials on which such declarations may be based, acted  in Additional  District  Magistrate,  Jabalpur  v.   Shivakant, Shukla(2).   We  need  not go so far as that  when  we  have before us only a proclamation under Article 356(1). A reference was made by both sides to Bhagat Singh and  Ors. v.The King-Emperor,(3), where the Privy Council  interpreted the provisions of section 72 of the Government of India Act, which authorised the Governor-General in cases of  Emergency to promulgate ordinances "for the peace and good  Government of  British India or any put thereof which was not  to  last beyond  six months".  In that case, an, attempt was made  to question  the existence of a State of  Emergency.,  Viscount Dunedin, observed (at p. 172)               "A  state of emergency is something that  does               not  permit  of  any  exact  definition  :  It               cannotes  a  state  of  matters  calling   for               drastic action, which is to be judged as  such               by  some  one.  It is more than  obvious  that               someone  must be the Governor-General, and  he               alone.   Any other view would  render  utterly               inapt the whole provision.  Emergency  demands               immediate   action,   and   that   action   is               prescribed  to  be  taken  by  the   Governor-               General’. The  power  of  the Governor-General was  described  as  "an absolute;  power  "  in Bhagat  Singh’s  case  (supra),  but learned counsel for the plaintiffs relied on the observation there  that  "it  is only to be used  in  extreme  cases  of necessity where the good Government of India’ (1)  [1942] AC 206. (2)  [1976] Suppl.  S.C.R. 172. (3)  50 I.A. 169, 45 demands  it".  We do not think that much assistance  can  be derived  from  a provision of the Government of  India  Act, 1935,  which was really the precurser of Article 123 of  our Constitution and meant for use in a different context in  an Imperialistic  era.   Nevertheless,  it  shows  that.   even without a provision ousting the jurisdiction of the  Courts, the  subjective  satisfaction of  the  Governor-General  was held.  to  be  unquestionable.   Considerations  which  have arisen before us while considering the use and the ambit  of article 356(1) of our Constitution were not before the Privy Council at all in that case. King Emperor v. Benorilal Sarnia & Ors.(1), also relating to the,  ordinance making powers of the Governor-General  under section 72 of the Government of India Act, 1935, was  cited. In  that  case, Bhagat Singh’s case  (supra)  was  commented upon.  It was observed (at p. 62)               "The definition of emergency in Bhagat Singh’s               case does not purport to be exhaustive, but it

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             does  say that it connotes a state of  matters               calling  for  drastic  action,  and  that   it               demands immediate action.  Emergency does  not               mean  emergency at large.  Under s. 72 of               the Government of India Act the emergency with               which  the Governor-General is dealing  should               be  an existing emergency and should call  for               the particular kind of immediate action  which               be  proposes to take.  If the particular  kind               of  emergency which a  the  Governor-General’s               opinion justifies a particular kind of action.               is  in  itself  wholly  in  prospect  and  not               present, then although there may be present an               emergency  of some other kind, that would  not               justify,  under  S. 72,  the  ordinance  being               made.    The   existence  of   the   emergency               requiring  immediate  action  is,  under  that               section,  the basis to a  condition  precedent               which must be fulfilled by himself alone". This  shows that the Court could inquire into the  existence of a condition precedent to the use of emergency powers. A  reference  was also made to the  following  passage  from Padfield & Ors. v. Minister of Agriculture, Fisheries & Food and Ors.(2) at p. 1006)               "It is said that the decision of the  Minister               is administrative and not judicial.  But  that               does  not  mean that he can do as,  he  likes,               regardless  of  right or wrong.  Nor  does  it               mean that the courts are powerless to  correct               him.    Good  administration   requires   that               complaints  should  be investigated  and  that               grievances    should   be   remedied.     When               Parliament has set up machinery for that  very               purpose,  it is not for the Minister to  brush               it on one side.  He should not refuse to  have               a complaint investigated without good reason". Cases before us are not those of a grave national  emergency of  the  kind. covered by article 352 of  the  Constitution. Nevertheless, (1)  72 I.A. 57. (2)  [1968] A.C. 997 p. 1006. 46 analogous   principles  seem  to  govern  the  exercise   of extraordinary  powers  conferred by Article  356(1)  on  the highest  executive authorities of the Indian Union  who  are expected  to  act with the utmost sense  of  responsibility. Such  a  consideration,  combined  with  the  existence   of Parliamentary  control  on the exercise of  such  powers  by ministers responsible directly to Parliament, was taken into account,  in  Liversidge’s  case (supra),  to  abstain  from judicial interference. Courts  have consistently held issues raising  questions  of mere sufficiency of grounds of executive action, such as the one under Article 356(1) no doubt is to be  non-justiciable. The  amended  article 356(5) of the  Constitution  indicates that  the  Constitution makers did not wan+  such  an  issue raising  a  mere question of sufficiency of  grounds  to  be justiciable.    To  the  same  effect  are  the   provisions contained  in Article 352(5), 360(5).   Similarly,  Articles 123(4),  213(4), 239B(4) bar the jurisdiction of  Courts  to examine  matters which lie within the executive  discretion. Such  discretion  is governed by a large element  of  policy which  is not amenable to the jurisdiction of courts  except in  cases of patent or indubitable mala fides or  excess  of power.   Its  exercise  rests on  materials  which  are  not

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examinable  by Courts.  Indeed, it is difficult  to  imagine how  the  grounds of action under article  356(1)  could  be examined  when  article 74(2) lays down that  "the  question whether  any,  and if so, what advice was  tendered  by  the Ministers  to the President, shall not be inquired  into  in any Court." It is true that, as indicated above, the advice tendered  by the Ministers to the President cannot be inquired into.   It is also clear beyond doubt that the amended article 74(1) of the  Constitution,  whose validity has not  been  challenged before us by any party, makes it obligatory on the President to  act in accordance with the advice tendered by the  Union Council  of  Ministers, to him through the  Prime  Minister. Nevertheless,  if  all  the grounds of  action  taken  under article  356(1)  of the Constitution are  disclosed  to  the public  by  the Union Government and its own  disclosure  of grounds   reveals   that  a  constitutionally   or   legally prohibited or extraneous or collateral purpose is sought  to be  achieved  by  a proclamation under article  356  of  the Constitution,  this Court will not shirk its duty to act  in the manner in which the law may then oblige it to act.  But, when we find that allegations made in the plaints and in the petitions  before  us  relate, in  substance,  only  to  the sufficiency of the grounds of action under article 356(1) of the Constitution, and go no further, we cannot proceed  fur- ther with the consideration of the plaints under Article 131 or the petitions under Article 32 of the Constitution. I would not like to leave certain other matters also  argued before us untouched in this fairly comprehensive  expression of our views.  It was urged that the power of dissolution of a State Legislative Assembly, even if it could be assumed by the  President  under Article 356(1)  of  the  Constitution, after  a  failure  of the State Government to  carry  out  a direction of the Union Government on the subject, could  no+ be  exercised  unless and until the matter bad  been  placed before  both  the Houses of Parliament so that it  bad  been subjected  to  such control as either of the two  Houses  of Parliament may chose to 47 exercise  over it.  Proclamations under article  356(1)  are bound to be placed under article 356(3) of the  Constitution before  each house of Parliament.   Unfortunately,  however, for  this  line of argument, there is not  only  nothing  in article  356  to  make a consideration by  either  House  of Parliament  a  condition precedent to the  exercise  of  the power of dissolution of a State Legislative Assembly by  the President  under  article 356(1), but, on  the  other  hand, article 356(3). makes it clear that the only effect of  even a  failure  or  refusal by either  House  of  Parliament  to approve the proclamation is that it ceases to operate  after two  months.  Obviously, this means that it operates for  at least  two  months.  Hence, whatever is done  in  these  two months  cannot be held to be illegal for ’hat reason  alone. The  interpretation  placed  before  us  for  acceptance  is directly  opposed to the language of the provisions  of  the Constitution.   It  has,  therefore, to be  rejected  by  us outright  as  quite unreasonable and" unacceptable.   It  is true  that  the exercise of power under article 356  of  the Constitution  is  subject to  Parliamentary  control.   This means that it is subject to such control as the two  Houses, out  of  which the Council of States really  represents  the State Assemblies, may be able to exercise during the  period for  which  the proclamation lasts.  But, the  existence  of such Parliamentary control, as a safeguard, cannot  possibly nullify  the legality of what is done in the  period  during

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which the Proclamation lasts. It  was  also contended by Mr. R. K. Garg that,  unless  the Parliament acts legislatively for the State Legislature, the incurring  of  any expenditure, by the Governor  or  anybody else  after a Presidential Proclamation under  article  356, would  not be permissible in view of Article 357(1)  (c)  of the Constitution.  After making such an assumption, we  were asked to import an implied prohibition against a dissolution of a State Legislative Assembly unless and until both Houses of Parliament bad discussed and approved of it. Article 357 is beaded "Exercise of legislative powers  under Proclamation issued under Article 356".  It lays down :               "357(1).  Whereby a Proclamation issued  under               clause  (1)  of  article  356,  it  has   been               declared that the powers of the Legislature of               the State shall be exercisable by or under the               authority   of   Parliament,   it   shall   be               competent-               (a)   for   Parliament   to  confer   on   the               President the power of the Legislature of  the               State  to  make  laws, and  to  authorise  the               President   to  delegate,  subject   to   such               conditions as he may think fit to impose,  the               power  so conferred to any other authority  to               be specified by him in that behalf;               (b)   for Parliament, or for the President  or               other  authority  in whom such power  to  make               laws  is vested under sub-clause (a), to  make               laws conferring powers and imposing duties, or               authorising  the conferring of powers and  the               imposition  of  duties,  upon  the  Union   or               officers and authorities thereof;               48               (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.               (2)Any law made in exercise of the power of               the Legislature of the Slate by Parliament  or               the  President or other authority referred  to               in   sub-clause  (a)  of  clause   (1)   which               Parliament  or  the President  or  such  other               authority  would not but for the issued  of  a               Proclamation  under  article  356,  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  reenacted               with  or  without modification by Act  of  the               appropriate Legislature." I  think  that article 357 has very little to  do  with  the incurring  of any expenditure by the President after  powers of Governments of States have been assumed by the  President under  Article  356(1) (a) of the Constitution.   It  really governs the position when the legislative ,powers of a State legislature  have  been  transferred  to  Parliament  by   a :Presidential  Proclamation  under  Article  356(1)  of  the Constitution.   ,-By  means  of  such  a  Proclamation   the President may assume to himself under Article 356(1) (a) all or  any of the functions of the Government of the State  and

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all  or  any of the powers of any authority or body  in  the State  other than the State Legislature.   The  Proclamation may  or may not contain also a declaration  contemplated  by Article 356(1) (b) of the Constitution enabling the exercise of  the  powers  of the State Legislature by  or  under  the authority  of Parliament. It is only when  the  Proclamation contains  a declaration under Article 356(1) (b)  also  that the question of incurring expenditure under the authority of the  President  from  the Consolidated  Fund  of  the  State "pending  sanction  of such expenditure by  Parliament"  can arise.  The power of the President to authorise  expenditure from   the  Consolidated  Found  awaiting  a   sanction   by Parliament  is provided for only for those cases  where  the State  Legislature’s  power  has  been  transferred  by  the Presidential proclamation to Parliament under Article 356(1) (b)  of  the  Constitution  and the  Parliament  is  not  in session.  That is a contingency which could only arise  when there is a prolonged presidential rule requiring the vesting of  the functions of the State legislature in Parliament  so that  the  President  may be able to  authorise  expense  in anticipation of Parliamentary sanction when the House of the People   is   not  in  session.    When   the   Presidential proclamation  does  not contain any declaration  under  Art. 356(1)   (b)  of  the  Constitution.  at  all  because   the Presidential  rule is of short duration and for  a  specific purpose,  there is nothing which will disable the  President from  incurring expenditure under some law already  made  by the  Legislature of the State.  Incurring of expenditure  in accordance  with that law will be covered by the  provisions of Art. 356(1) (a) of the Constitution. 49 In other words, although Art: 356(1) (a) of the Constitution imposes  a bar against the assumption, by the  President  of the,  legislative  ’powers of the State  Legislature,  which could   only   be  transferred  to  Parliament,   yet,   its provisions, read with Art. 357 of the Constitution, ,do  not operate as an absolute bar on any expenditure which could be legally incurred by the President or under the  Presidential authority   in  accordance  with  pre-existing  State   laws authorising expenditure by other authorities or bodies whose powers can be taken over by the President under Art.  356(1) (a).   In  any case, the provisions of Art.  357  could  not possibly  be,  used as a bar against a  dissolution  of  the State Assembly by a Presidential Proclamation.  Nor can they be used to import and read, as a condition precedent to  the Presidential  proclamation under Art. 356(1) (a)  involving, as  it usually does, the dissolution of the State  Assembly, an  approval  of  both  or either  of  the  two,  Houses  of Parliament.  To spell out some conditions precedent or  bars from  the provisions of Art 357 of the Constitution  against the   exercise  of  powers  of  the  President   to,   issue Proclamations under Art. 356(1) of the Constitution would be utterly   unsound.   Constitutional  provisions  meant   for different purposes cannot be mingled and confused with  each other  when  each  is meant to regulate  different  sets  of ,powers  meant to be exercised by different  authorities  or bodies under different circumstances. Objections  were also put forward to the maintainability  of the suits before us under Article 131 of the Constitution on the ground that this provision covers only disputes  between the Government of India and one or more "States" or  between two  or more "States".  This provision which may be set  out in full here reads as follows               "131.   Subject  to  the  provisions  of  this               Constitution, the Supreme Court shall, to  the

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             exclusion  of any other court,  have  original               jurisdiction in any dispute-               (a)between the Government of India and  one               or more States; or               (b)between the Government of India and  any               State  or States on one side and one  or  more               other States on the other; or               (c) between two or more States;               if  and in so far as the dispute involves  any               question (whether of law or fact) on which the               existence or extent of a legal right depends;               Provided that the said jurisdiction shall  not               extend to a dispute arising out of any treaty,               agreement,  convenant,  engagement  sanad   or               other  similar instrument which,  having  been               entered   into   or   executed   before    the               commencement of this Constitution,continues               in operation after such commencement, or which               provides that the said jurisdiction shall  not               extend to such,a dispute". 50 It  was argued that there is a distinction between  a  State and a State Government.  It was urged that the  jurisdiction under Article 131 is a peculiar one meant for special  kinds of disputes in which States, as such, ought to be interested and not merely Governments of States which may come and  go. It  was pointed out that, if the Union Government sought  to deprive  a State of any constitutional right it would  be  a different  matter  which  could  be  taken  up  by  a  State Government  on behalf of the State or its people.   But,  it was  submitted, there is no right given to any State by  the Constitution  that  its Government or  Legislative  Assembly would  continue  undissolved for any  period.   The  dispute before us relates to the time at which and the authority  by which  the  power of dissolution could be exercised  in  the situation  which  confronted the people in the  nine  States concerned. Reference was made to passages from State of Bihar v.  Union of India & Anr.(1) and the United Provinces v. The Governor- General  in Council.(2) It seems to me that the decision  of this  Court  in State of Bihar and Union of India  and  Anr. (supra)  was largely based upon the assumption that  Article 131  was  meant  to cover the same area as  s.  204  of  the Government  of India Act.  Moreover, the learned  Additional Solicitor General, appearing on behalf of the Union, did not press   the  argument  that  article  131  is  confined   to declaratory decrees in view of the fact that (as Mr. Seervai pointed  out  in the Constitutional Law of India,  2nd  Edn. Vol.  11  at p. 1385) article 142 (1)  of  the  Constitution provides for enforcement of decrees of this Court.  The view expressed  in  the Bihar case (supra) seemed  to  have  been affected  considerably  by the fact that there was  no  pro- vision  in  the  Government of India Act  of  1935  for  the enforcement of the decrees of the Federal Court, but Article 142(1) seems to have been overlooked in that case. Article  300 of the Constitution provides, inter alia,  that "the Government of a State may sue or be sued by the name of the State".  From this, Mr. Niren De wanted us to infer that there  was  no  distinction between a State  and  the  State Government  as  juristic entities.  Even if  there  be  some grounds for making a distinction between a State’s interests and rights and those of its Government or its members, I  do not  think that we need take a too restrictive or  a  hyper- technical view of the State’s rights to sue for any  rights, actual  or  fancied, which the State Government  chooses  to

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take  up  on behalf of the State concerned in a  suit  under Article  131.  Moreover as we have decided not to grant  any reliefs  after  having heard detailed  arguments  and  fully considered the merits of contentions advanced by both sides, I do not think that we need determine, on this occasion, the precise scope of a suit under Article 131.  I prefer to base my judgment on other grounds. Having  considered the cases set out in the plaints and  the petition  before  us,  from every conceivable  angle,  I  am unable to find (1)  [1970] 2 S.C.R. 522. (2)  [1939] F.C.R. 124. 51 a cause of action for the grant of any injunction or a  writ or  order  in the nature of a Mandamus against  any  of  the Defendents Opposite parties. In  my  opinion perhaps the technically more correct  order, in the situation before us would have been, on the  findings reached by me, one rejecting the plaints under Order  XXIII, Rule  6 of the Rules of this Court, and rejecting  the  Writ Petitions in limine.  Afterall, we had not proceeded  beyond the  stage  of hearing certain  preliminary  objections  put forward by Mr. Soli Sorabji, Additional Solicitor General to the  maintainability of the suits and petitions  before  us. Although, we heard very full arguments on these  preliminary objections, we did not even frame any issues which is  done, under the provisions of Part III of the Rules of this Court, applicable  to the exercise of the Original Jurisdiction  of this  Court,  before we generally formally dismiss  a  suit. However,  as  the form in which we have already  passed  our orders,  dismissing  the  suit  and  petitions,  which   was approved  by us on 29th April, 1977, has  substantially  the same  effect  as  the rejection of plaints  for  failure  to disclose  a triable cause of action, I concur in the  orders already recorded.  The parties will bear their own costs. CHANDRACHUD, J.-The Lok Sabha in which the Congress (R)  had an  overwhelming majority was dissolved on January 18,  1977 though  under the Constitution (42nd Amendment) Act, it  had another year to run out its extended term.  Fresh  elections were held to the Lok Sabha in March 1977 in which the ruling party  lost its majority and went out of power which it  had exercised since Independence.  On March 24, 1977 the  Janata party which secured the verdict of the electorate formed the new  government  at the Centre.  This  is  an  unprecedented event  since,  for  the first time in the  history  of  this country,  the ruling party at the Centre is not in power  in any  of the federating States.  On the date that the  Janata party took office, the Congress (R) was in power in  various States  including Bihar.  Haryana, Himachal Pradesh,  Madhya Pradesh, Orissa, Punjab.  Rajasthan, Uttar Pradesh and  West Bengal. On  April 18, 1977 Shri Charan Singh, Union  Home  Minister, addressed  a letter to the Chief Ministers of  these  States "earnestly commending" for their consideration that they may advise the Governors of their respective States "to dissolve the  State Assembly in exercise of the power  under  Article 174(2)(b)  and  seek a fresh mandate from  the  electorate." "This alone", according to the Home Minister’s letter, would be "consistent with constitutional precedents and democratic practices." In an interview on April 22nd in the "Spot-light  programme" of  All India Radio, Shri Shanti Bhushan, Minister for  Law, Justice,  and  Company Affairs said that "a clear  case  had been  made out for the dissolution of the Assemblies in  the nine Congress-ruled States and holding of fresh  elections",

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since  "a serious doubt had been cast on their enjoying  the peoples’ confidence, their party having been rejected in the recent  Lok  Sabha elections".  A report of  this  interview appeared in various newspapers including the ’Statesman’  of the 23rd.  The correctness of the report is not disputed. 52 On  the 25th/26th April, six out of nine States filed  suits in.  this Court under Art. 131 of the Constitution.  On  the 25th,  three.  members of the  Punjab  Legislative  Assembly filed  Writ  Petitions in this %Court under Art. 32.   By  a unanimous  order dated April 29, we dismissed the suits  and writ petitions as also motions for interim relief.   Reasons for the order remained to be given. With  respect,  I agree with the conclusion of my  Lord  the Chief  Justice  but  considering that the  matter  is  of  a singular nature, I would like to express my view on some  of the issues debated before, us. In  substance, the suits and writ petitions have been  filed to obtain a declaration that the directive contained in  the Home   Minister’s   letter  to  the  Chief   Minister’s   is unconstitutional,  that  the,  State  Governments  are   not legally or, constitutionally obliged to comply with it, that the  refusal  of the Chief Ministers to give effect  to  the directive  cannot  be made a, basis for the  issuance  of  a proclamation under art. 356 and that the said article cannot be  invoked  for the sole purpose of. dissolving  the  State Assemblies   and   holding  fresh   elections.    The   Writ Petitioners  complain of the deprivation of their  right  of property   :since,   if  the  Legislative   Assemblies   are dissolved,  they will be denied the right to receive  salary as members of these Assemblies.  An injunction is sought  by the plaintiffs and the petitioners to restrain the Union  of India,  amongst  others,  from giving  effect  to  the  Home Minister’s directive. The  learned  Additional  Solicitor-General  has  raised   a preliminary  objection to the maintainability of  the  suits which  may  first  be disposed of.  Article  131(a)  of  the Constitution  confers on the Supreme Court, subject  to  the other  provisions  of the Constitution,  exclusive  original jurisdiction in any dispute between the Government of  India and  one  or more States, if and in so far  as  the  dispute involves any question (whether of law or fact) on which  the existence  or extent of a legal right depends.  It is  urged by  the  Additional  Solicitor  General  that  the   dispute involved  in  the suits filed by the State,  Governments  is outside  the scope of art. 131 since the dispute is not  be- tween  the  Government of India and State as such,  but  the dispute  is between the Government of India on the one  hand and  each of the nine State Governments on the  other.   The dispute relates to the question whether the State Assemblies should  be  dissolved, and that, according to  the  counsel, does  not  involve any question, on which the  existence  or extent  of  a  legal right  depends.   Whether  the.   State Assemblies  should  be  dissolved  or not  is  a  matter  of political expediency and though the Government for the  time being  in  power  in  a  State  may  be  interested  in  the continuance of the Legislative Assembly ’for the full  term, the  State  has no legal right to ensure  such  continuance. Indeed, it is urged, the State, apart from the State Govern- ment,  is  not  even interested in the  question  whether  a particular  Legislative  Assembly should or  should  not  be dissolved  because the State as a constitutional  entity  is never  interested in the complexion of the Government.   The argument, in other words, is that Legislative Assemblies may come  and go but the State lives for ever and therefore  the

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dispute is outside the purview of Art. 131. 53 The preliminary objection is based on an unpragmatic view of the functioning of the-Constitution and has therefore to be: rejected.   Article  367  of the  Constitution  applies  the General  Clauses  Act, 1897 for the  interpretation  of  the Constitution but nothing contained in. section 3(58) of that Act,  which  defines  "State" or  in  section  3(60)  which, defines  "State  Government" helps  determine  the  question whether  suits  of the present nature are,  foreign  to  the scope  of art. 131.  The work-a-day definitions  of  "State" and "State Government" contained in the General Clauses  Act neither touch upon the problem of alleged dichotomy  between a  State  and its government nor do they,  even  if  applied literally, throw any useful light on. the question whether a dispute  regarding the dissolution of a State  Assembly  can legitimately  be  propounded or defended by the State  as  a perpetual political entity.  Truly, the definitions say  no, more than this : "State" means a State specified in the  1st Schedule  of the Constitution and "State  Government"  means "The  Governor".  All of the six States who have  filed  the suits  in this Court are included in the 1st Schedule.   And though  there  is a point that turns on the non-use  of  the expression  "State Government" in art. 131, a point which  I will consider presently, the fact remains that there is  no occasion for applying the dictionary of the, General Clauses Act, section 3(60), to the interpretation of art. 13 1. The absence of the expression "State Government" and the use in its place of the expression "State" in art. 131, is  said to furnish intrinsic evidence that for a suit to fall  under that Article, the dispute must arise between the  Government of  India and a State, not between the Government  of  India and  the Government of a State.  The intrinsic evidence,  it is  argued, assumes greater credibility in the context  that the article does employ the expression "Government of India" when    what    was   meant   was   the    government,    as contradistinguisbed  from  the State.  The presence  of  the particular expressions in art. 131 does not, in my  opinion, support  the inference, suggested on behalf of the Union  of India.  The use of the phrase "Government of India" in  art. 131 (a) and (b) does not mean that one party to the  dispute has  to,  be  the  Government of  the  day  at  the  Centre. "Government  of  India" means "Union of  India"  because  if there  be  merit  in  the  logic  that  art.  131  does  not comprehend  disputes in which the Government of a. State  as contrasted  with  the State itself is  interested,  it  must follow  that correspondingly, the "Government of India"  too cannot  mean the Government for the time being in  power  at the  centre.  The true construction of art. 131(a), true  in substance and true pragmatically, is that dispute must arise between the Union of India and a State. This  may  sound  paradoxical  because  if  the  preliminary objection is unsustainable, it would be easier to. say  that the  expression "Government of India" means  "Government  in office"  and  the expression "State’ means the  State  as  a polity  and not "the Government in Office’.  But  convenient interpretations  are apt to blur the significance of  issues involved for interpretations.  Therefore, the effort has  to be to accept what the words truly mean and to, work out  the Constitutional  scheme  as it may reasonably be  assumed  to have been conceived. 54 The  dispute between the Union of India and a  State  cannot but be a dispute which arises out of the differences between the Government in office at the Centre and the Government in

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office  in the State.  ’In office’ means ’in power’ but  the use  of the latter expression may prudently be avoided  with the  realization  of what goes with power.  But there  is  a further  prerequisite  which narrows down the ambit  of  the class  of  disputes  which  fall  within  Art.  131.    That requirement  is  that the dispute must involve  a  question, whether of law or fact, on which the existence or extent  of a  legal  right  depends.  It is  this  qualification  which affords the true guide for determining whether a  particular dispute  is  comprehended within art.  131.   Mere  wrangles between  governments  have no place in the  scheme  of  that article.   They have to be resolved elsewhere and  by  means less  solemn  and sacrosanct than a court  proceeding.   The purpose of art. 131 is to afford a forum for the  resolution of disputes which depend for their decision on the existence or extent of a legal right.  It is only when a legal, not  a mere political, issue arises touching upon the existence  or extent of a legal right that art. 131 is attracted. It  seems to me impossible to hold that the suits  filed  by the  six States do not raise a dispute involving a  question depending  upon  the existence or extent of a  legal  right. The  plaintiffs, by their suits, directly  and  specifically question the constitutional right and authority of the Union Government  to  issue a directive to the  State  Governments commending that the Chief Ministers should tender a  certain advice to their Governors.  The plaintiffs also question the constitutional right of the Union Government to dissolve the State  Assemblies  on  the grounds  mentioned  in  the  Home Minister’s letter to the Chief Ministers.  Thus a legal, not a  political, issue arising out of the existence and  extent of  a  legal right squarely arises and the suits  cannot  be thrown out as falling outside the purview of art. 131. The   error  of  the  preliminary  objection  lies  in   the assumption that it is necessary for attracting art. 131 that the  plaintiff  must assert a legal right in  itself.   That article contains no such restriction and it is sufficient in order  that  its  provisions may apply  that  the  plaintiff questions the legal or constitutional right asserted by  the defendant, be it the Government of India or any other State. Such  a challenge brings the suit within the terms  of  art. 131  for, the question for the decision of the Court is  not whether  this  or that particular  legislative  Assembly  is entitled to continue in office but whether the Government of India,  which asserts the constitutional right  to  dissolve the  Assembly  on the grounds alleged,  possesses  any  such right. I find it difficult to accept that the State as a polity  is not  entitled  to  raise a dispute of  this  nature.   In  a federation, whether classical or quasi-classical, the States are  vitally interested in the definition of the  powers  of the  Federal  Government on one hand and their  own  on  the other.   A  dispute bearing upon the  delineation  of  those powers is precisely the one in which the federating  States, no less than the Federal Government itself, are  interested. The States, therefore, have the locus 55 and the interest to contest and seek an adjudication of  the claim  set  up  by  the  Union  Government.   The  bond   of constitutional  obligation between the Government  of  India and the States sustains that locus. The expression "legal right" which occurs in art. 131 has to be understood in its proper perspective.  In a strict sense, legal rights are correlative of legal duties and are defined as   interests   which   the  law   protects   by   imposing corresponding duties on others.  But in a generic sense, the

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word  "right"  is used to mean an immunity  from  the  legal power  of  another immunity is exemption from the  power  of another  in  the same way as liberty is exemption  from  the right of another.  Immunity, in shirt, is no-subjection."(1) R.W.M. Dias says in his "Jurisprudence" (1976 Ed.  pp.-33-4) that  the  word "right" has undergone successive  shifts  in meaning  and  connotes four different ideas  concerning  the activity,   or  potential  activity,  of  one  person   with reference   to   another.    One   of   these   four   jural relationships, according to the learned author, is the  "you cannot"  relationship, which is the same thing as the  right of  immunity  which  "denotes  freedom  from  the  power  of another" (p. 58).  Paton’s book on Jurisprudence (3rd Ed. p. 256)  contains  a similar exposition of legal  rights.   The legal right of the States consists in their immunity, in the sense  of  freedom from the power of the  Union  Government. They  are  entitled, under art. 131, to  assert  that  right either by contending in the absolute that the Centre has  no power  to  dissolve the Legislative Assemblies or  with  the qualification  that such a power cannot be exercised on  the ground stated. It  is true that the State, like the British Monarch,  never dies.  A Legislative Assembly may be dissolved, a Council of Ministers  may go out of power, the President’s rule may  be introduced or imposed, or an emergency may be declared which can   conceivably  affect  the  States’  power  in   matters legislative   and  executive.   The  State  survives   these upheavals.   But it is constitutionally unsound to say  that the  State, as a political entity, has no legal interest  in such  cataclysmic  events and no legal rights to  assert  in relation  thereto.   Were it so, which then are,  the  legal rights   which   the  State,  as  distinguished   from   its Government,  can  agitate under Art. 131 ? Whatever  be  the nature of the claim, the argument can always be put  forward that the Government, not the State, is interested in  making that  claim.   Such a rigid interpretation of the  scope  of art.  131  will  virtually reduce it to  a  dead-letter  and destroy  a precious safeguard against the use  of  arbitrary power.    The  interpretation  canvassed  by   the   learned Additional Solicitor-General must therefore, be avoided,  in so  far as the language of the article permits it, which  in my opinion it does. The  debates of the Constituent Assembly (Vol. 8,  pp.  588- 590) do not throw any fight on the question in issue. The  judgment  of this Court in State of Bihar v.  Union  of India(2) affords no real assistance on the question  arising before  us.  In that case, the Court raised three issues  in the suits filed under art. 131. The (1)  Salamond’s jurisprudence 11th Ed.  PP. 276-7. (2)  [1970] 2 S.C.R. 522. 56 first issue which related to the question whether the  suits were  within the scope of art. 131 was not answered  by  the Court  because  it held on the second issue that  the  suits were not maintainable, since, a private party was  impleaded thereto,  The only assistance which may be derived from  the judgment  in  that case is that it said  that  the  disputes under  art. 131 should be; "in respect of legal  rights  and not  disputes of a political character" and that  though  it was unnecessary to define the scope of art. 131, "this  much is  certain  that the legal right which is  the  subject  of dispute  must arise in the context of the  Constitution  and the Federalism it sets up" (p. 529).  These observations  do not affect the constitution which I have placed on art. 131. 1 have endeavoured to show that it is competent to the State

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Governments to bring suits of the present nature under  that article  and that by these suits, the State Governments  are raising a legal, not a political issue.  Their assertion  is that   the  Government  of  India  does  not   possess   the constitutional power claimed by it and therefore, this Court should  declare that they are- immune from the  exercise  of that  power.   The  States  assert  their  legal  right,  of immunity which, as explained above, denotes freedom from the power of another. The  preliminary objection raised by the learned  Additional Solicitor  General to the maintainability of the suits  must therefore be rejected. The writ petitions have, however, no cause of action such as can   sustain  their  petitions  for  the   enforcement   of fundamental rights under art. 32 of the Constitution.   They contend that the threatened dissolution of the,  Legislative Assembly  of which they are members will inevitably  deprive them  of  their right to draw the salary to which  they  are entitled  as such members.  That, according to them,  is  an infringement  of  art. 19(1) (f) of the  Constitution  which guarantees  to all citizens the right to acquire,  hold  and dispose of property. The  grievance made by the petitioners is contingent on  the issuance  of a proclamation dissolving the  Assembly,  which was  not  issued till the conclusion of arguments  in  these matters.    Petitions   complaining  of  the   invasion   of fundamental  rights  on hypothetical considerations  are  to entertained   by  this  Court  under  art.  32.    But   the proclamation   having  since  been  issued,  it   would   be hypertechnical  to dismiss the writ petitions on the  ground that there was no invasion of the petitioners’ rights on the date when the petitions were filed in this Court. But  the  violation  of the fundamental  right  to  property complained of by the petitioners is indirect and remote, not direct  or  proximate.  By the proclamation  issued  by  the President  under  art.  356(1)  of  the  Constitution,   the Legislative  Assemblies  of nine States were  dissolved  and what  is commonly known as the President’s rule was  imposed on  those States.  As a result, the writ petitioners  ceased to,  be  members of the.  Legislative Assembles.  And  as  a result  of their ceasing to be such members, their right  to draw salary, which they could only draw if they were members of  the Assemblies, came to an end.  Though  the  petitioner cannot  be  denied  relief on the ground  that  it  was  not intended  by  issuing the proclamation to  deprive  them  of their  salary,  Yet  the writ Petitions  are  liable  to  be dismissed  on  the  ground that the injury  to  the  alleged fundamental right of the petitioners is too indirect and remote. 57 Nevertheless,  I  would like to deal  with  ’lie  contention raised  by Mr. R. K. Garg on behalf of the writ  petitioners that  the  proclamation issued by the President  under  Art. 356(1) of the Constitution cannot have any force and  cannot be  acted  upon without the approval of both Houses  of  the Parliament.    This  contention  is   wholly   misconceived. Article   356(1)   empowers  the  President   to   issue   a proclamation  if, on receipt of a report from the,  Governor of  a State or otherwise, he is, satisfied that a  situation has  arisen in which the government of the State  cannot  be carried  on  in  accordance  with  the  provisions  of   the Constitution.   Article  356(3)  enjoins  that  every   such proclamation  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

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two  months unless before the expiration of that  period  it has   been  approved  by  resolutions  of  both  Houses   of Parliament.   It,  is  impossible to hold in  view  of  this express  provision  that the proclamation can  have  neither force  nor validity until it is approved by the  Parliament. The  scheme  of art. 356 is that  the;  proclamation  issued under it will remain in operation for a period of two months in any event.  If it is approved by resolutions of both  the Houses  of Parliament before the expiration of  two  months, its operation is extended for the period mentioned in clause (4) of art. 356.  But whether or not it is so approved,  the proclamation has an assured life for a period of two  months and its validity during that period cannot be, whittled down by reading into art. 356 a condition precedent in the nature of parliamentary approval which, plainly, is not to be found therein.  The proviso to clause (3) of art.. 356 makes  this position clearer still.  If the proclamation is issued at  a time  when  the Lok Sabha is dissolved  or  its  dissolution takes  place during the period of two months, and the  Rajya Sabha,  but not the Lok Sabha, approves of the  proclamation within two months, it ceases to operate at the expiration of thirty  days  from the date on which the  reconstituted  Lok Sabha  first  sits.  If before the expiry of  the  aforesaid period  of thirty days, the Lok Sabha too approves  it,  its life  will  be extended for the period mentioned  in  clause (4).  In other words’, the prior approval of the  Parliament or ally of its two Houses is not necessary to give  validity to the proclamation.  What would happen if the  proclamation is disapproved by either or both Houses of Parliament within two months does not arise for decision in these proceedings, and though, it would appear as a matter of constitutionality that  the proclamation can nevertheless remain in  operation for a period of two months, it is reasonable to suppose that faced  with  such disapproval, a mature  political  judgment would lean in favour of the revocation of the  proclamation. Such constitutional crises cannot furnish a safe clue to the interpretation of the Constitution. The contrast between the provisions of arts. 356 and 123  is illuminating.   Article 123 which empowers the President  to promulgate ordinances provides by clause (2) that every such ordinance  shall cease to operate at the expiration  of  six weeks from the reassembly of Parliament; if, however, before the   expiry   of  the  six   week’s   period,   resolutions disapproving the proclamation are passed by both Houses,  it ceases  to operate upon the passing of the second  of  those resolutions.   Thus,  whereas a proclamation issued  by  the President under Art. 356 58 continues  in  operation for a period of two months  in  any event, an. ordinance issued by the same dignitary ceases  to operate  no  sooner than the second of the  two  resolutions disapproving is passed by a House of Parliament. The reason for this distinction is evident from the language and context of the respective provisions.  Article 356 which occurs  in  the  Chapter called  "Emergency  Provisions"  is intended  to  be resorted to in that  exceptional  class  of situations,  which  though have been  occurring  too  often, where  the government of the State cannot be carried  on  in accordance  with  the provisions of the  Constitution.   The breakdown   of   the  Constitution  in   the   affairs   and administration of the State is the occasion for the exercise of  the  emergency  provision contained in  art.  356.   The framers  of  the Constitution perhaps intended that  such  a serious situation can be dealt with effectively, only if the President  is  empowered to issue a  proclamation  and  that

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proclamation is given a minimum life of two months,  whether the  Parliament approves it or not.  On the other hand,  the power  to  issue an ordinance is limited to  occasions  when neither  of  the  two Houses of Parliament  is  in  session. Since that power is co-related partly to both Houses of Par- liament being in recess, if was provided that the  ordinance shall  lapse on the expiry of six weeks from the  reassembly of  Parliament, and if it is disapproved by both the  Houses within  that period, upon the passing of the second  of  the two resolutions. Mr.  Garg  expressed  a  grave concern  for  the  future  of democracy,  if this be the true interpretation of art.  356. That  argument  does  not  appeal to  me  because  the  same Constitution under which the people of this country resolved to constitute India into a Sovereign "Democratic"  Republic, gave  to it a law of laws containing empowerment  to  detain its citizens, to pass ordinances and to declare emergencies. A  declaration  of emergency brings in its trail a  host  of consequences  calculated  to  impair  both  the   democratic foundation  and the federal structure of  our  Constitution. The  executive power of the Union then extends to giving  of directions  to  any  State as to the  manner  in  which  the executive  power thereof is to be exercised; the power  of Parliament to make laws extends to matters not enumerated in the  Union List; the restraints of Art. 19 on the  power  of the  State to make any law or to take any  executive  action are  removed; and it is a well-known fact of recent  history that  the  right to move tiny Court for the  enforcement  of fundamental rights can be suspended.  If the power to  apply such  drastic remedies and to pass such draconian laws is  a part  of the democratic functioning of the Constitution,  it is  small  wonder  that  not  only  does  the   Presidential proclamation  under art. 356 not require the prior  approval of  the  Parliament but it has full force and effect  for  a minimum period of two months, approvals or no approval.  The reason of this rule is that there may be situations in which it  is imperative to act expeditiously and recourse  to  the parliamentary process may, by reason of the delay  involved, impair rather than strengthen the functioning of  democracy- The  Constitution ha-, therefore provided  safety-valves  to meet extra ordinary situations.  They have an impe- 59 rious garb and a repressive content but they are designed to save, not destroy, democracy.  The fault, if any, is not  in the making of the Constitution but in the working of it. It is undoubtedly true that within this impregnable duration of two months ’the President, acting of course on the advice of  the Council of Ministers, may take various  steps  under clauses  (a)  to  (c) of art.  356(1)  which,  though  taken without  the approval of the Parliament, may be  irrevocable and   cannot  be  retraced.   One  such  step  can  be   the dissolution  of  a State Assembly and the holding  of  fresh elections thereto.  But here too, as on the last point which I  have just discussed, the answer is that the  Constitution expressly confers vast and varied powers on the President if he arrives at a certain satisfaction.  The declaration of  a financial  emergency under art. 360(1) carries with  it  the power to issu e directions for reducing the salaries of per- sons  serving in connection with the affairs of  the  Union, including-the  Judges  of  the Supreme Court  and  the  High Court.  Clause (2) of art. 360 makes clause (2) of art.  352 applicable  to proclamations of financial  emergencies  with the  result, that anything done or any action  taken  during the  period  of  two  months  after  the  issuance  of   the proclamation,  remains inviolable for that period.  That  in

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fact, is the common thread which runs through arts. 352, 356 and 360.  The suspension of the right to move any Court  for the  enforcement of fundamental rights, the lifting  of  the prohibition  of  art. 19 as against the making of  laws  and taking  executive  action, the assumption  of  powers  under clauses (a), (b) and (c) of art. 356 have full effect  while the proclamations are in operation during the minimum period of  two  months.  Action taken during those two  months,  if irrevocable, remains unremedied. There is also no substance in the contention that by issuing a  proclamation under art. 356, the President cannot  assume the  power to dissolve a State Assembly.  By clause  (a)  of art.  356(1),  the President may by Proclamation  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." Article 174(2) (b) empowers the  Governor to  "dissolve the Legislative Assembly" from time  to  time. It seems to me incapable of any serious controversy that  by reason  of the provisions contained in art. 356(1) (a),  the President      can   exercise  the  power  vested   in   and exercisable by theGovernor   under  art.  174(2)  (b)   to dissolve the Legislative Assembly ofthe State. That leaves for consideration an argument advanced on behalf of the State Governments by Shri Niren De, Shri Gokhale  and the   learned  Advocate  of  Himachal  Pradesh.   Shri   Ram Panjwani,  supporting Shri Gokhale, cited texts  to  support that  argument.   The  core  of the  argument  is  that  the Constitutional  power to dissolve a legislative assembly  is being utilised by the President for an indirect and  oblique purpose,  that  there  is no  justification  whatsoever  for dissolving  the nine State Assemblies and that  the  reasons contained  in  the  Home  Minister’s  letter  to  the  Chief Ministers are wholly inadequate and irrelevant for 5-722SCI/77 60 taking the proposed action.  Several other alternatives,  it is  urged, are open to the Government of India to adopt  for meeting the situation complained of by the Home Minister but instead of doing so, they have decided to act drastically by threatening   the  dissolution  of  ,the  nine   Legislative Assemblies  in which the Congress (R) has a majority.   Such naked   abuse  of  power,  which  is  being  exercised   for liquidating the Congress (R) governments which are in  power in  the nine states must, it is stressed, be struck down  as unconstitutional.   Mr. Gokhale even argued that clause  (5) of  Article 356 which was introduced by the 38th  Amendment, giving  finality  to the satisfaction of the  President  and putting it beyond the reach of Courts, is no bar to striking down  a mala fide exercise of power.  An order  which  lacks bona  fides  has no existence in the eye of  law,  says  the counsel,  and  courts ought not to perpetuate  injustice  by refusing  to  interfere with such orders.   These  arguments have a familiar, though strange, echo but that is beside the point.   There is no gain saying that the various points  of view  presented  by  the learned  counsel  require  a  close attention.  I  would like to begin with the assumption, though that  is controverted  by the Additional Solicitor-General, that  the proposed proclamation is likely to be founded solely on  the reasons contained in the Home Minister’s letter.  Even then, I  find  it hard to conclude that those reasons  are  wholly extraneous to or irrelevant for the exercise of the power to issue  a  proclamation under art. 356 of  the  Constitution. The  sine  qua  non of the exercise of  that  power  is  the satisfaction of the President that a situation has arisen in

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which  the government of the State cannot be carried  on  in accordance  with  the provisions of the  Constitution.   The reasons  contained in the Home Minister’s letter may not  be such as to necessarily lead to the conclusion that there  is a break-down of constitutional machinery in the nine States. But  the  test of proof by preponderance  of  probabilities, leave alone the test of circumstances being consistent  with a  sole hypothesis, is entirely out of place in  considering the constitutional validity of a Presidential  proclamation. It is for the President to judge whether a situation of  the particular description has arisen necessitating the issuance of a proclamation for assumption of all or any of the powers mentioned in clause (a), (b) and (e) of art. 356(1).  He  is expected  and  ought to judge fairly but we  cannot  sit  in judgment  over his satisfaction for determining whether  any other view of the situation is not reasonably possible.   So long  as  the reasons, if any are disclosed, given  for  the action  proposed or taken, bear a reasonable nexus with  the exercise  of the particular power, the satisfaction  of  the President  must be treated as conclusive.  It will then  not be  open  to judicial scrutiny.  It,  however,  the  reasons given  are  wholly  extraneous  to  the  formation  of   the satisfaction,  the proclamation would be open to the  attack that it is vitiated by legal mala fides. Such is not the case here.  The Home Minister’s letter shows that (i) an unprecedented political situation had arisen  by the virtual rejection, in the recent Lok Sabha elections, of candidates belonging to the ruling party in various  states; (ii)  the  resultant climate of uncertainty was such  as  to cause grave concern; (iii) the situation had created a sense of  diffidence at different levels of  administration;  (iv) people at 61 large  did  not appreciate the propriety of  continuance  in power  of  a party which was unmistakably  rejected  by  the electorate;  and (v) the climate of uncertainty,  diffidence and disrespect had given rise to serious threats to law  and order.   It is on the basis of these reasons that  the  Home Minister  concluded  that a fresh appeal  to  the  political sovereign   was   not  only  permissible  but   had   become obligatory.  These grounds, cannot with any show of  reason, be dismissed as bearing no rational nexus with the necessity for  issuing  a proclamation with a view to  dissolving  the Legislative Assemblies of the nine States. Probing  at any greater depth into the reasons given by  the Home  Minister  is to enter a field from which  Judges  must scrupulously  keep  away.  That field is  reserved  for  the Politician  and the courts must avoid trespassing  into  it. That  is  not  always  an easy  task  because  the  line  of demarcation that separates ’he functions of this Court  from those  of  the  Government  tend  to  become  blurred,  when constitutional  problems  raise issues concerning  the  high policies  of  the  executive.   In  the  United  States,  De Toqueville  noted as early as in 1832 that sooner  or  later every  political question becomes a judicial question.   Leo Preffer therefore thought that though when the Supreme Court decided  Constitutional questions it had the trappings of  a Court  of  Law,  "it  is supreme, but it  is  not  really  a Court"(1).  This is a wanting well worth remembering but  it must  not deter the courts from discharging their  functions if  they  find  that  a constitutional  power  meant  to  be exercised  for  preserving  democracy  is  being  used   for destroying  it.  The Home Minister’s letter is  clearly  and indubitably  on  the  safe side of the line  and  I  see  no justification either for questioning the ,bona fides of  the

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case  made  out  by him in the letter or  for  doubting  the authenticity  of  the  facts stated  therein.   As  said  by Justice Harlan F. Stone in his oft-quoted dissenting opinion : "Courts are not the only agency of Government that must be assumed to have capacity to govern" (2). I  need  not therefore enter into the question  whether  the Government  of India has reasons apart from those stated  in the  Home  Minister’s letter for advising the  President  to issue the proclamation.  It they have, so far so good.  They may not choose to disclose them but it they do, as they have done  now, they cannot prevent a judicial  scrutiny  thereof for  the limited purpose of seeing whether the reasons  bear any rational nexus with the action proposed.  I am  inclined to  the opinion that the Government cannot claim the  credit at  the people’s bar for fairness in disclosing the  reasons for  the proposed action and at the same time deny  to  this Court the limited power of finding whether the reasons  bear the necessary nexus or are wholly extraneous to the proposed action.   The argument that "if the Minister need  not  give reasons,  what  does it matter if he gives bad  ones"  over- looks that bad reasons can destroy a possible nexus and  may vitiate  the  order  on  the  ground  of  mala  fides.   The argument,  be  it  stated,  was  not  made  by  the  learned Additional Solicitor-General but it is interesting to (1)"This  Honourable Court" by Leo Pfeffer,  Indian  Reprint 1967, P.7. (2) United States v. Butler-297 U.S. 1, 87. 62 know how it was repelled by Lord Denning M.R. in Padfield v. Minister of Agriculture, Fisheries and Food(1). It  is  also  unnecessary to consider  the  implications  of clause  (5)  of art. 356 which was introduced by  the  38th- Amendment,  making the satisfaction of the  President  final and  conclusive, not open to be questioned in any court,  on any ground.  I have upheld the validity of the  proclamation on  the view that the reasons that are cited in its  support bear a nexus with it.  A  large number of decisions were cited on either  side  on the  question  whether the Presidents satisfaction  on  such issues  is justiciable.  The learned  Additional  Solicitor- General relied upon the decisions of this Court, the Federal Court, the Privy Council and of various High Courts to  show that  apart  from clause (5) of art.  356,  the  President’s satisfaction  is conclusive and the Courts have no power  to go  behind it. These decisions have been discussed fully  in his  judgment by my Lord the Chief Justice.  In the  view  I have taken, I prefer to express no opinion on this  question except  to  state  that though the question  is  treated  as "well-settled", the Privy Council in Stephen Kalong  Ninskan v. Government of Malaysia(1) said :               "Whether   a  proclamation  under,   statutory               powers  by the Supreme Head of the  Federation               can be challenged before the courts on some or               any  grounds is a constitutional  question  of               far-reaching importance which, on the  present               state  of the authorities,  remains  unsettled               and debatable." It  would appear that in this branch of constitutional  law, which  cannot  be entirely divorced from  considerations  of political policies, only one proposition may be said to  be. well-settled  : "No question in this branch of law is  well- settled".   The  ’political  question’  is  an  open  sesame expression  that  can  become  a  password  for  gaining  or preventing  admission into forbidden fields.  And it  is  an accepted  fact  of constitutional  interpretation  that  the content  of  justiciability  changes according  to  how  the

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judge’s  value preferences respond to the  multi-dimensional problems-  of  the  day.   An awareness  of  history  is  an integral  part of those preferences.  In the last  analysis, the  people for whom the Constitution is meant,  should  not turn  their faces away from it in disillusionment  for  fear that justice is a will-o’-the-wisp. These then are my reasons in support of the unanimous  order which the Court passed on April, 29, 1977. BHAGWATI,  J.-Two main questions arise for consideration  in these  suits and writ petitions.  One is whether  the  suits are  maintainable under Article 131 and the  Writ  petitions under Article 32 of the Constitution, and the other is as to what  is the scope and ambit of the power of  the  President under Article 356, clause (1) and whether and if so, in what circumstances, can the Court interfere with the exercise  of this power by the President.  The facts giving rise to these suits and writ petitions have been set out in detail in  the judgment (1)  L.R. [1968] A.C. 997, 1006. (2)  L.R. [1970] A.C. 379, 392. 63 prepared by the learned Chief Justice and it would be futile exercise  on our part to reiterate them.  Hence  we  proceed straight   to   consider  the  questions  that   arise   for determination.  These questions are of great  constitutional significance. We will first examine the question of maintainability of the suits and the writ petitions.  The writ petitions have  been filed by three legislators from the State of Punjab  seeking enforcement of the fundamental right to property  guaranteed to them under Articles 19(1) (f) and 31.  They complain that if  the  Legislative  Assembly of the  State  of  Punjab  is dissolved by the President acting under Article 356,  clause (1), as threatened by the Government of India, they would be deprived of their right to receive salary as members of  the Legislative  Assembly and the fight to receive salary  being property,  there  would be  unconstitutional  infraction  of their right to property under Articles 19 (1) (f) and 31 and hence they are entitled to move this Court under Article  32 for preventing such threatened infraction.  This  contention is clearly unsustainable.  Of course, there can be no doubt, and  indeed  it  must be said in  fairness  to  the  learned Additional Solicitor General who argued the case with  great ability,  that he did not contend to the contrary,  that  if there is a threatened violation of a fundamental right,  the person  concerned is entitled to approach this  Court  under Article  32  and claim relief by way of injunction as  in  a quia  timet action.  But the difficulty here in the  way  of the  petitioners is that it is not possible to say  that  by the threatened dissolution of the Legislative Assembly,  any fundamental right of the petitioners would be infringed.  It is  only  where there is direct invasion  of  a  fundamental right or imminent danger of such invasion that a  petitioner can  seek  relief  under  Article 32.   The  impact  on  the fundamental  right  must  be direct and  immediate  and  not indirect  or remote.  Merely because, by the dissolution  of the Legislative Assembly, the petitioners would cease to  be members  and that would incidentally result in their  losing their  salary, it cannot be said that the dissolution  would infringe  their  right  to  property.   That  would  be  the indirect   effect  of  the  dissolution  but  that  is   not sufficient to constitute infraction of the fundamental right to  property.   If  the argument  of  the  petitioners  were correct,  even a civil servant dismissed in violation  of  a legal or constitutional provision by the Government of India

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or  a State Government or even an authority  falling  within the definition of ’State’ in Article 12 would be entitled to complain  that  by  reason of the  dismissal,  be  has  been deprived of his right to salary and hence it is competent to him to approach this Court under Article 32 challenging  his dismissal  as invalid on ground of violation of Articles  19 (1) (f) and 3 1. This surely could never have been  intended by  the  constitution-makers.   The  direct  impact  of  the dissolution  of the Legislative Assembly would be, that  the petitioners  would cease to be members and obviously no  one has  a  fundamental  right  to continue as  a  member  of  a legislative  assembly.  It is true that if  the  petitioners cease  to be the members of the Legislative  Assembly,  they would lose their right to receive salary, but that would  be the result of their ceasing to be the members of the  Legis- lative  Assembly  and  not the direct  consequences  of  the dissolution of the Legislative Assembly.  We are. therefore. of   the  view  that  the  threatened  dissolution  of   the Legislative Assembly does not involve 64 any  infraction’ of the fundamental right guaranteed to  the petitioners  under Articles 19 (1) (f) and 31 and  since  no other  fundamental  right  has  been  relied  upon  by   the petitioners,  it must be held that they are not entitled  to maintain the writ petitions under Article 32. That  takes  us to the question of  maintainability  of  the suits.  There are six suits before us filed by the States of Rajasthan,  Madhya Pradesh, Punjab, Bihar, Himachal  Pradesh and  Orissa.   Each  of these suits  has  been  filed  under Article  131  of  the Constitution.   This  Article  confers original jurisdiction on the Supreme Court, to the exclusion of  all  other courts, in respect of certain  categories  of suits and is in the following terms               "131.   Subject  to  the  provisions  of  this               Constitution, the Supreme Court shall, to  the               exclusion  of any other court,  have  original               jurisdiction in any dispute-               (a)   between  the Government of India and  or               more States; or               (b)   between the Government of India and  any               State  or States on one side and one  or  more               other States on the other, or               (c)   between two or more States,               if  and in so far as the dispute involves  any               question (whether of law or fact) on which the               existence or extent of a legal right depends.               Provided that the said jurisdiction shall  not               extend to a dispute arising out of any treaty,               agreement,  covenant,  engagement,  sanad   or               other  similar instrument which,  having  been               entered   into   or   executed   before    the               commencement of the Constitution, continues in               operation  after such commencement,  or  which               provides that the said jurisdiction shall  not               extend to such a dispute." There  are  two limitations in regard to the nature  of  the suit  which  can be entertained by the Supreme  Court  under this Article.  One is in regard to parties and the other  is in regard to the subject matter.  The Article provides in so many terms in clauses (a), (b) and (c) that the dispute must be  between the Government of India and one or more  States, or  between the Government of India and any other  State  or States  on  one  side and one or more other  States  on  the other,  or  between  two  or  more  States.   It  does   not contemplate any private,, party being arrayed as a disputant

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on  one  side or the other.  The par-, ties to  the  dispute must  fall  within one or the other  category  specified  in clauses  (a),  (b)  and  (c).  That  was  established  by  a decision of this Court in State of Bihar v. Union of India & Anr.(1)  where  this Court pointed out : " a  dispute  which falls within the ambit of Article 131 can only be determined in the forum mentioned therein, (1) [1970]2 S.C.R. 522 65 namely,  the Supreme Court of India, provided there has  not been impleaded in any said dispute any private party, be  it a  citizen  or a firm or a corporation along  with  a  State either  jointly or in the alternative.  A dispute  in  which such  a private party is involved must be brought  before  a court,  other than this court, having jurisdiction over  the matter."  This is the limitation as to parties.   The  other limitation as to subject-matter flows from the words "if and in  so far as the dispute involves any question (whether  of law  or  fact) on which the existence or extent of  a  legal right  depends."  These  words  clearly  indicate  that  the dispute  must  be one relating to a legal right  and  not  a dispute  on the political plans not based on a legal  right, for instance, to take an example given by Mr. Seervai in his well  known  work on ’Constitutional Law of India’  at  page 1385 : "a claim that a State ’project should be included  in the  Five-Year Plan." The dispute must,  therefore,  involve assertion or vindication of a legal right of the  Government of  India  or a State.  It is not necessary that  the  right must  be a constitutional right.  All that is  necessary  is that it must be a legal right.  It is true that in the State of Bihar v. Union of India & Anr. (supra) this Court,  while discussing the scope of the dispute which may be  determined by the Supreme Court under Article 131, happened to make  an observation that "this much is certain that the legal  right which is the subject of dispute must arise in the context of the  Constitution and the federalism it sets up."  But  this observation, in so far as it suggests that the legal  right must  be one which arises under the Constitution, goes  much further than what the language of Article 131 warrants.  The Article speaks only of ’legal right’ and does not qualify it by  any other words.  It may be noted that the provision  in the  corresponding  section 204 of the Government  of  India Act,  1935  was  significantly different.   It  contained  a proviso  that  the  dispute  must  inter  alia  concern  the interpretation  of the Government of India Act, 1935 "or  of an  Order  in Council made thereunder or the extent  of  the legislative or executive authority vested in the  Federation by  virtue  of the Instrument of Accession of  that  State." This provision has been deliberately and designedly  omitted in Article 131 and now any legal right can be enforced by  a suit  in  the Supreme Court provided the  parties  fill  the character  specified  in  clauses (a),  (b)  and  (c).   The question  which  therefore  requires  to  be  considered  in determining the maintainability of the suits is whether  any legal right of the States is sought to be vindicated in  the suits.   We  shall  presently consider  this  question,  but before we do so, we must point out one other error in which, with  the greatest respect, the learned Judges  who  decided the case of State of Bihar v. Union of India & Anr.  (supra) seem to have fallen.  They held that in a suit under Article 131 one only order which the Supreme Court. could make was a declaration  adjudicating on the legal right claimed in  the suit and once such a declaration was given., the function of the Supreme Court under Article 131 was at an end.  If  this conclusion  were correct, then obviously the  present  suits

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seeking  permanent injunction restraining the Government  of India from issuing a proclamation under Article 356,  clause (1) could not lie and equally no interim injunction could be granted  by this Court but the learned Additional  Solicitor General, with his usual candour, and fairness, conceded that he  was not in a position to support this view.   This  view seems to be erroneous and for two very good reasons. 66 In the first place, it overlooks the fact that whereas  sub- section (2) of section- 204 of the Government of India  Act, 1935  provided  that the Federal Court, in exercise  of  its original  jurisdiction,  shall not pronounce  any  judgment, other  than  a  declaratory  judgment,  no  such   provision limiting  the  power of the Supreme Court in regard  to  the relief  to  be granted is to be found in Article  131. The power  of the Supreme Court to grant relief in a suit  under Article   131  is  not  restricted  only   to   ’declaratory judgment’.   Secondly, as pointed out by Mr. Seervai in  his book  at  page  1385,  "when  a  court  is  given  exclusive jurisdiction in respect of a dispute between the parties, it is  reasonable to hold that the court has power  to  resolve the  whole dispute", unless its power is limited by  express words  or  by  necessary  implication.   There  is  no  such limitation in Article 131 and hence it is not correct to say that the Supreme Court can only give a declaratory  judgment in  a suit under Article 131.  The Supreme Court would  have power to give whatever reliefs are necessary for enforcement of  the legal right claimed in the suit if such legal  right is established.  Turning now to the question whether the present suits  seek to enforce any legal right of the State, it. is necessary to have  a look at a few provisions of the Constitution.   Save for  the purpose of Part III ’State’ is not defined  in  the Constitution,  but by reason of Article 367, clause (1),  it must  be  given  the same meaning which  it  has  under  the General  Clauses Act, 1897.  Section 3, clause (56)  of  the General  Clauses Act, 1897 defines ’State’, inter  alia,  to mean  "a  State  specified  in the  first  Schedule  to  the Constitution".   The  States of Rajasthan,  Madhya  Pradesh, Punjab,  Bihar,  Himachal  Pradesh  and  Orissa  are  States specified  in the First Schedule and hence they  are  States within  the meaning of the Constitution.  Article 1,  clause (1) declares that India, that is Bharat, shall be a Union of States and a State is consequently a constituent part of the Union  of  India.   Part VI  of  the  Constitution  contains provisions  regarding  the States.  Article  153  says  that there  shall be a Governor for each State and under  Article 154  the  executive  power of the State  is  vested  in  the Governor and has to be, exercised by him either directly  or through  officers subordinate to him in accordance with  the Constitution.   Article  163  provides  for  a  Council   of Ministers  with  a  Chief Minister at the head  to  aid  and advise the Governor in the exercise of his functions  except in  respect of. a limited area where he is by or  under  the Constitution  required to exercise his functions or  any  of them  in his discretion.  There is no express  provision  in the Constitution requiring the Governor to act in accordance with  the advice of the Council of Ministers as there is  in the  newly amended Article 74, clause (1) in regard  to  the President,  but  it is now well settled as a result  of  the decision of this Court in Shamsher Singh & Anr. v. State  of Punjab(1) that except in the narrow minimal area covered  by Articles  163 (2), 371A(1) (b) and (d), 371A(2) (b) and  (f) and sixth Schedule, Para 9(2), the Governor also is bound to act  according  to the advice of the Council  of  Ministers.

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This is broadly the scheme of the provisions in regard to (1)  [1975] S.C.R. 814. 67 the  exercise  of the executive power of  the  States.   The legislative  power  of  the  State  is  exercisable  by  the Legislature under Article 168 and according to that Article, the  Legislature of the State is to consist of the  Governor and the Legislative Assembly, together with the  Legislative Council  in some of the States.  Article 172  provides  that every  Legislative  Assembly  of  a  State,  unless   sooner dissolved,  shall  continue  for six  years  from  the  date appointed  for its first meeting.  Originally the  term  was five  years, but it was extended to six years by the  Forty- Second Constitution Amendment Act.  Article 213 deals with a situation  where  the  Legislature is  not  in  session  and provides  that in such a case the Governor may legislate  by promulgating   ordinances   when  he   is   satisfied   that circumstances  exist  which render it necessary for  him  to take immediate action.  It will thus be seen that under  the provisions  of the Constitution the executive power  of  the State is exercisable by the Governor aided and advised by a Council  of  Ministers  and the Legislative  power,  by  the Legislature  of the State and in an emergent situation  when the Legislature is not in session, by the Governor. Now,  in  order  to determine whose  legal  right  would  be violated by the threatened action under Article 356,  clause (1),  we  must proceed on the assumption that  such  action, when taken, would be constitutionally invalid, because if it were  valid,  there would be no cause  for  complaint.   The question   is   :  who  would  have  cause  of   action   if unconstitutional action were taken under Article 356, clause (1)  ?  If the executive power of the State  vested  in  the Governor were taken away by the President or the legislative power  of the State were exercisable not by the  Legislature of the State or the Governor, but by or under the  authority of Parliament or the Legislature of the State were  &solved- all  these  being actions which can be taken  under  Article 356,  clause (1)-who would be aggrieved ? Can the State  say that  its legal right is infringed ? We believe it can.   Is it  not the right of the State under the  Constitution  that its  executive  power shall be exercisable by  the  Governor except  when  any functions of the State Government  or  any powers of the Governor are assumed by the President by valid exercise of power under Article 356, clause (1) ? Is it  not competent  to the State to insist that it shall continue  to have  its  legislature for making its laws, until  its  term expires   or  it  is  validly  dissolved?   Is  it   not   a constitutional  right  of the State that its laws  shall  be made  by its legislature, unless the President declares,  in exercise  of the power under Article 356, clause  (1),  that the  powers  of  the  legislature  of  the  State  shall  be exercisable by or under the authority of Parliament ?  These rights of the State under the Constitution. would  certainly be affected by invalid exercise of power under Article  356, clause (1). The  learned Additional Solicitor General or behalf  of  the Government of India contended that the expression ’State’ in Article  131 is not synonymous with ’State  Government’  and there is intrinsic evidence in the Article that the two  are distinct.   When the functions of the State  Government  are unconstitutionally  assumed  by the President,  it is  the State Government which would be aggrieved and not the State. 68 There  is  no  legal right in a State to be  governed  by  a particular Council of Ministers.  So also when a Legislative

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Assembly  is  dissolved, it is the individual right  of  the members  which  may  be affected and not the  right  of  the State.    Discussion  of  a  Legislative  Assembly  is   not tantamount  to dissolution of the State, so as to give  rise to  a cause of action in the State.  The learned  Additional Solicitor General fairly conceded that if the office of  the Governor or the Legislative Assembly of the State were to be abolished  altogether, it might affect a legal right of  the State, because the State is entitled to have a Governor  and a  Legislative  Assembly  under the  Constitution,  but  his argument was that mere assumption of the powers of the State Government  or  taking away the power to make laws  for  the State  from the Legislature and making it exercisable by  or under  the  authority of Parliament or  dissolution  of  the Legislative Assembly would not affect any legal right of the State.   This contention is not well founded and  cannot  be sustained. It  is true that there is a distinction between ’State’  and ’State Government’ and this distinction is also evident from the language of’ Article 131 ’and, therefore, what has to be seen  for  the purpose of determining the  applicability  of that  Article  is whether any legal right of the  State,  as distinct  from  the State Government,  is  infringed.   Now, undoubtedly,  a State has no legal right to insist  that  it shall  have a particular Council of Ministers or  particular persons as members of the Legislative Assembly.  But a State has certainly a right under the Constitution to say that its executive and legislative powers shall be exercisable in the manner provided in the Constitution.  If a legal right of  a State  can be said to have been infringed when its  Legisla- tive  Assembly is abolished, it is difficult to see how  any other conclusion can follow when the Legislative Assembly is not  abolished  but suspended or dissolved.  In  the  former case,  the  State  is  unconstitutionally  deprived  of  its legislative organ and its legislative power is given over to another  authority  : in the  letter,  the  constitutionally appointed  organ  remains but it is made ineffectual  for  a period    during    which   the   legislative    power    is unconstitutionally vested in another authority.  ’We fail to see any difference in the two situations so far as the State is  concerned.   The  position  is  the  same  whether   the constitutionally appointed organ for exercise of legislative power  is amputated or paralysed.  If one affects the  legal right of the State, equally the other does.  It may be  that if a Legislative Assembly is suspended or dissolved and  the legislative  power of the State become,,, exercisable by  or under the authority of Parliament by reason of  Presidential action under Article 356, clause (1), the individual  rights (A the members of the Legislative Assembly may be  affected, but  that  does not mean that the legal right of  the  State would  also  not  thereby  be  infringed.   Unconstitutional exercise of power by the President under Article 356, clause (1)  may injuriously affect rights of several  persons.   It may  infringe not only the individual rights of the  members of  the  Legislative Assembly, but also  the  constitutional right  of the State to insist that the federal basis of  the political structure set up by the constitution shall not  be violated  by an unconstitutional assault under Article  356, clause (1), we are, therefore, of the view, 69 that:the present suits seek to enforce a legal right of  the States  arising under the Constitution and the suits  cannot be thrown out in limine as being outside the scope and ambit of  Article 131.  We must proceed, to consider the suits  on merits.

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The   important  and  serious  question  which  arises   for consideration on merits is as to what is the scope and ambit of  the  power  under  Article 356,  clause  (1).   Can  the President  in  exercise  of  this  power  dissolve  a  State Legislature,  and if so, are there any limitations  on  this power ?,To answer this question, it is necessary to  examine the scheme and language of different clauses of Article 3,56 and  the object and purpose for which it has  been  enacted. Article 356 occurs in Part XVIII which contains a fasciculus of  articles from Article 352 to 360 dealing with  emergency provisions.  One of us (Bhagwati, J.) has occasion to  point out  in  Additional District Magistrate, Jabalpur v.  S.  S. Shukla(1) that there are three types of emergency which  may cause  crisis in the life of a nation.  The first  is  where the security of the country is threatened by war or external aggression  :  the  second arises on account  of  threat  or presence  of internal disturbance calculated to disrupt  the life of the country and jeopardize the existence of  consti- tutional  Government and the third is occasioned when  there is  break  down  or  potential break  down  of  the  economy threatening  the  financial  stability  or  credit  of   the country.  The first two types of emergency are dealt with in Article  352, while the third type is dealt with in  Article 360.  Article 352, clause (1) provides that if the President is  satisfied  that  a grave emergency  exists  whereby  the security  of  India  or  of any part  of  its  territory  is threatened,  whether  by  war  or  external  aggression   or internal  disturbance,  be  may,  by  proclamation,  make  a declaration  to that effect and clause (2) of  that  Article requires  that such Proclamation shall be laid  before  each House  of Parliament and "it shall 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".  The constitutional implications of a declaration of emergency under Article 352, clause (1) are vast  and they are provided in Articles 250, 353,  354,  358 and  359.  The  emergency being  an  exceptional  situation, arising out of a, national crisis, certain wide and sweeping power-,  have been conferred on the Central  Government  and Parliament  with a view to combat the situation and  restore normal conditions.  One such power is that given by  Article 250 which provides that while a Proclamation of Emergency is in  operation, Parliament shall have the power to make  laws for  the  whole or any part of the territory of  India  with respect to any of the matters enumerated in the State  List. The  effect of this provision is that the federal  structure based  on separation of powers is put out of action for  the time  being.   Another  power  of a  similar  kind  is  that conferred  by  Article 353 which says that during  the  time that  Proclamation of Emergency is in force.  the  executive power  of the Union shall extend to the giving of  direction to  any State as to the manner in which the executive  power thereof  is to be exercised.  This provision also  derogates from  the  federal principle which forms the  basis  of  the Constitution.    This  departure  from  the   constitutional principle  of  federalism is permitted by  the  Constitution because of the extraordi- [1976] Supp.  S.C.R.  172. 70 nary  situation  arising  out of  threat  to  the  continued existence of constitutional democratic Government.  Then  we come  to Article, 355 which enjoins a duty on 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  the

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Constitution.   Article 356 contains provisions for  dealing with another kind of emergent situation arising from failure of  constitutional  machinery in the States and, so  far  as material, reads as follows               "356.  (1)  If the President on receipt  of  a               report  from  the  Governor  of  a  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               way 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  the Governor or any  body  or               authority   in  the  State  other   than   the               Legislature of the State;               (b)   declare   that   the   powers   of   the               Legislature of the State shall be  exercisable               by or under the authority of Parliament,               (c)   make  such incidental and  consequential               provisions  as appear to the President  to  be               necessary or desirable for               giving   effect   to  the   objects   of   the               Proclamation,    including   provisions    for               suspending  in whole or in part the  operation               of   any  provisions  of   this   Constitution               relating  to  any  body or  authority  in  the               State; Provided  that  nothing in this clause shall  authorise  the President  to assume to himself any of the powers vested  in or exercisable by a High Court, or to suspend in whole or in part  the  operation of any provision of  this  Constitution relating to High Courts.               (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:               (5)Notwithstanding    anything   in    this               Constitution,   the   satisfaction   of    the               President  mentioned  in clause (1)  shall  be               final   and  conclusive  and  shall   not   be               questioned in any court on any ground." 71 Since some reliance was placed on behalf of the  petitioners in  the writ petitions on Article 357, clause (1), we  shall reproduce the relevant part of that clause in these terms :               357. (1) Where by a Proclamation issued  under               clause (1) of   article  356,  it   has   been               declared that the powers of the     Legislature               of the State shall be exercisable by or  under               the   authority  of  Parliament, it  shall  be               competent-               (c)  for the President to authorise 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." Now  it  is obvious on a plain natural construction  of  the

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language. of Article 356, clause (1) that the President  can take  action  under  this clause only if, on  receipt  of  a report  made by the Governor of a State or otherwise  he  is satisfied   that  a  situation  has  arisen  in  which   the Government  of the State cannot be carried on in  accordance with  the provisions of the Constitution.  The  satisfaction of  the President that a situation has arisen in  which  the government  of a State. cannot be carried on  in  accordance with  the  provision of" the- Constitution  is  a  condition precedent  which must be fulfilled before the President  can take action  under  Article 356, clause  (1).   When  this condition  precedent  is satisfied, the President  may  take action under Article 356, clause (1) and exercise all or any of  the powers specified in subclauses (a), (b) and  (c)  of that  clause.   The  exercise of these  powers  plainly  and unmistakably  strikes at the root of the  federal  principle because it vests the executive power of the state which,  in the  federal  structure  set  up  by  the  Constitution,  is exercisable  by the Governor with the aid and advice of  his Council  of Ministers, in the President and takes  away  the powers  of  the  Legislature of the State  and  they  become exercisable  by or under the authority of  Parliament.   The administration  of the State is for all purposes taken  over by  the President which means in effect and  substance-  the Central Government since by reason of Article 74, clause (1) and even otherwise, the President is bound by the advice  of his  Council of Ministers and the legislative power  of  the State is also transferred to the Parliament.  The  President can also dissolve the Legislative Assembly of  the  State, because  when  he assumes to himself all the powers  of  the Governor under Article 356, clause (1) sub-clause (a) one of the powers assumed by him would be the power to dissolve the Legislative  Assembly  under Article 174 (2) (b).   It  will thus be seen that Article 356, clause (1) authorises serious inroad  into  the  principle of federalism  enacted  in  the Constitution   and  that  is  permitted  because,   in   the ’subjective  satisfaction of the President, a situation  has arisen  in  which  the government of  the  State  cannot  be carried  on  in  accordance  with  the  provisions  of   the Constitution.  It is the duty of the Union under Article 355 to ensure that the government of the State is carried on  in accordance  with  the provisions of the  Constitution,  and, therefore,  when  the President finds that a  situation  has arisen  in  which  the Government of  the  State  cannot  be carried on, he can act under Art. 356 Cl. (1) indeed it 72 would be his constitutional obligation to do so and put  the federal  mechanism  out of action so far as  that  State  is concerned.   This is indeed a very drastic power  which,  if misused   or   abused,  can   destroy   the   Constitutional equilibrium  between  the  Union and  the  States and  its potential for harm was recognised even by the  constitution- makers.   Dr.  Ambedkar  pointed out  in  his  speech  while winding up the debate on this Article :               "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               the  objection  applies to every part  of  the               Constitutionwhich   gives  power  to   the               Centre to over-ride the Provinces. In fact  I               share   the   sentiments   expressed   by   my               honourable friend Mr. Gupta 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

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             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." But despite the lurking danger in article, the constitution- makers  thought  that there was no alternative  in  case  of break  down  of constitutional machinery in the  States  and hence  they  adopted  this  article,  even  though  it   was analogous  to  the  hated section 93  which  disfigured  the Government of India Act, 1935 symbolising British  dominance over  nationalist  aspirations.   The   constitution-makers, conscious  as they were of the serious consequences  flowing from  the exercise of this power, limited it by hedging  its exercise  with  the condition that the President  should  be satisfied that the Government of the State cannot be carried on in accordance with the provisions of the Constitution Now, when On the satisfaction of the condition limiting  the exercise  of  the  power, a proclamation is  issued  by  the President  under Article 356, clause (1), it can be  revoked or  varied  at any time by a Subsequent  proclamation  under clause  (2) of Article 356.  Clause (3) of Article 356,  Eke clause (2) of Article 352, require& that every  Proclamation issued  under Article 356, clause (1) shall be  laid  before each  House of Parliament and it shall cease to  operate  at the expiration of two months unless before the expiration of that  period,  it has been approved by  resolution  of  both Houses  of  Parliament.  The learned  counsel  appearing  on behalf   of the petitioners in the writ  petitions contended that it is clear from the provision enacted in Article  356, clause (3) that the exercise of power by the President under cause  (1)  is  subject to the control  of  both  Houses  of Parliament.  The Proclamation issued by the President  under Article  356, clause (1) would cease to be in force  at  the expiration  of  two  months unless it is  approved  by  both Houses  of  Parliament,  and,  therefore,  no  irretrievable action  such as dissolution of the legislative  Assembly  of the State can be taken by the President before the  approval of  both  the Houses of Parliament is given to  the  Procla- mation.   Otherwise  the  parliamentary  control  would   be defeated and 73 it would be possible for the Central Government to  present a fait accompli to the two Houses of Parliament and  neither House would be able to remedy the mischief done, even if  it disapproved  the  Proclamation’ Moreover,  either  House  of Parliament  may disapprove the Proclamation even before  the expiry  of two months and where that happens, the  President would  be  bound  to revoke  the  Proclamation  immediately, because the proclamation cannot continue in defiance of, the will  of either House of Parliament "without destroying  the collective responsibility of the Council of Ministers to the House.   ". It was also urged that during the period of  two months,  no  power  can  be  exercised  in  virtue  of   the Proclamation which would-bring about a final and irrevocable consequence,  if  the President has reason to  believe  that either  House of Parliament may not approve it, or also  the control of both Houses of Parliament would be completely set at   naught  and  the  executive  would  be  able  to   take irreversible  action  like dissolution  of  the  Legislative Assembly  by passing both Houses of Parliament and  ignoring their wishes altogether.  That would be plainly contrary  to the basic principles of democratic Government.  Reliance was also  placed on Article 357, Clause (1), sub-clause (c)  and it was pointed out that whereby a Proclamation issued  under

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clause  (1)  it  has been declared that the  powers  of  the Legislature  of the State shall be exercisable by  or  under the  authority  of  Parliament, no expenditure  out  of  the Consolidated  Fund  of  the State can  be  incurred  without appropriation made by Parliament, but when the House of  the People  is  not  in session, the President  can  incur  such expenditure pending sanction by Parliament.  This means that if  the  House of the People is in session at  the  time  of issue  of the Proclamation or as soon as it assembles  after the   issue  of  the  Proclamation,  the   President   would immediately  have  to  go  to  Parliament  for  sanction  of expenditure  and  if  Parliament  does  not  sanction,   the expenditure  would be unauthorised and the  President  would not  be  able  to exercise his  functions.   There  is  thus effective Parliamentary control over the President, that is, the  Central Government, through the purse and hence  during the  period  of two months, the President  cannot  take  any action involving expenditure out of the Consolidated Fund of the  State unless he is assured that such expenditure  would be sanctioned by Parliament.  The suggestion was chat  since the ruling party at the Centre has no majority in the  Rajya Sabha, the President cannot issue a Proclamation authorising him to discharge functions involving expenditure out of  the Consolidated  Fund of the State.  These arguments  urged  on behalf  of the petitioners raise a question of  construction of clause (1) to (3) of Article 356. Now,  if  we look at the language of clauses (1) to  (3)  of Article 356 it is clear that once a Proclamation is  validly issued  by the President under clause (1), it has  immediate force and effect and its efficiency is not made  dependent on  the approval of both Houses of Parliament.  There is  no provision  in’  any clause of Article 356 or  in  any  other Article of the Constitution that the President shall have no power  to issue a Proclamation under clause (1) when  either or  both  Houses  of Parliament are-in  session.,  The  only limitation on the exercise of the power of the President  to issue a proclamation is that he should be satisfied that the Government of the State cannot be carried on 74 in  accordance  with  the provisions  of  the  Constitution. Where  the  President is so satisfied, and, as  pointed  out above,  the President means the Central Government,  he  can issue a  proclamation even when either or both  Houses  of Parliament  are  in session.  The President  is  given  this power because immediate action may have to be taken when  an exceptional situation has arisen on account of break down of constitutional  machinery in the State.  It is an  emergency power  and  it has necessarily to be vested in  the  Central Government  because  quick  and  immediate  action  may   be necessary  to avert or combat constitutional break  down  in the  State and moreover a constitutional obligation is  laid on the Union to ensure, that the, Government of every  State is  carried  on  in accordance with the  provisions  of  the Constitution.    Any   delay  in  taking   action   may   in conceiveable cases frustrate the very object and purpose  of conferment  of this power on the President.  Promptness  may be  the  essence of effectiveness in such cases  and  public interest  may  suffer  on account of  tardiness  in  action. Hence  the  power conferred on the President  under  Article 356,  clause  (1) is not limited by the  condition  that  it cannot  be  exercised  when  either  or  both  1-louses   of Parliament are in session.  Then again, clause (3) of  Arti- cle 356 provides that a proclamation issued under clause (1) shall  cease  to operate at the expiration  of  two  months, unless  before  the expiration of that period  it  has  been

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approved by resolutions of both Houses of Parliament.   This means that it shall continue to operate for a period of  two months,  unless sooner revoked.  It is only for the  purpose of its extension beyond two months that the approval of both Houses  of Parliament is required by clause (3)  of  Article 356.   If no such approval is forthcoming  the  proclamation cannot  continue  after the expiration of  two  months,  but until  then  it certainly continues and has full  force  and effect.  It may be noted that clause (3) of Article 356 does not  say  that the proclamation shall be operative  only  on approval  by both Houses of Parliament, nor does it  provide that it shall cease to operate even before the expiry of two months, if disapproved by either House of Parliament, it  is interesting to compare the language of Clause (3) of Article 356   with  that  of  Article,  123.  clause  (2)  in   this connection,  Article  123, clause (1) confers power  on  the President  to  promulgate  an  ordinance  during  recess  of Parliament  when  be is satisfied that  circumstances  exist which  render it necessary for him to take immediate  action and clause (2) of that Article provides that such  ordinance "shall cease to operate at the expiration of six weeks  from the reassembly of Parliament, or if before the expiration of that  period resolutions disapproving it are passed by  both Houses,   upon   the  passing  of  the   second   of   those resolutions".  The ordinance would continue to operate until the   expiration  of  six  weeks  from  the  reassembly   of Parliament  unless before that date is disapproved  by  both Houses  of  Parliament.  But when we come to clause  (3)  of Article  356, we find that a different scheme in  regard  to the  life  of  a proclamation issued  under  clause  (1)  is adopted in that clause.  Clause (3) of Article 356 does  not confer power,,on the two Houses of Parliament to put an  end to the proclamation by disapproval before the expiration  of the  Period of two months and it is only if the life of  the proclamation  is  to he extended beyond the  period  of  two months that is required to be approved by both 75 Houses   of  Parliament,  it  is,  therefore,   clear   that disapproval by the either House of the Parliament before the expiration of two months has no constitutional relevance  to the  life  of the Proclamation and  the  proclamation  would continue  in force for a period of two months ,despite  such disapproval. It  would  be  clear  from  this  discussion  that  when   a proclamation  is  validly  issued  by  the  President  under Article 356, clause (1), it has immediate force and  effect, the moment it is issued and where, by the proclamation,  the President has assumed to himself the powers of the  Governor under  sub-clause  (a),  he is entitled  to  exercise  those powers as fully and effectually as the Governor, during  the period of two months when the Proclamation is in  operation. There  is  no  limitation  imposed by  any  Article  of  the Constitution  that  these  powers ,of the  Governor  can  be exercised   by  the  President  only  when  they   have   no irreversible   consequence   and  where   they   have   such consequence, they cannot be exercised until the proclamation is  approved  by  both Houses  of  Parliament.   Whilst  the proclamation  is in force during the period of  two  months, the, President can exercise all the powers of the  Governor assumed  by  him and the Court cannot read  any  limitation which  would have the effect of cutting down the  width  and amplitude of such powers by confining their exercise only to those cases where no irretrievable consequence would  ensure which  would  be  beyond  repair.  When  any  power  of  the Governor is assumed by the President under the Proclamation,

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the   President  can,  during  the  two  months   when   the proclamation is in force, do, whatever the Governor could in exercise  of such power, and it would be immaterial  whether the  consequence  of  exercise of such power  is  final  and irrevocable  or not.  To hold otherwise would be, to  refuse to give full effect to the proclamation which as pointed out above,  continues  to  operate with full  force  and  vigour during  the  period of two months.  It  would  be  rewriting Article 356 and making approval of both Houses of Parliament a  condition  precedent  to the coming  into  force  of  the proclamation  so far as the particular power  is  concerned. Now  one of the powers of the Governor which can be  assumed by  the  President under the proclamation is  the  power  to dissolve  the Legislative Assembly ,of the State under  Art. 174(2)  (b) and, therefore, the President also can  dissolve the  Legislative  Assembly  during the time  that  the  pro- clamation  is  in  force.  It is difficult to  see  bow  the exercise  of  this  power  by  the  President  can  be  made conditional  on the approval of the proclamation by the  two Houses  of Parliament.  If the proclamation has  full  force and  effect  during the period of two  months  even  without approval  by  the two Houses of  Parliament,  the  President certainly can exercise the power of the Governor to dissolve the  Legislative Assembly of the State without  waiting  for the   approval  of  the  proclamation  by  both  Houses   of Parliament.   It is true that once the Legislative  Assembly is  dissolved  by  the President in exercise  of  the  power assumed   by  him  under  the  proclamation,  it  would   be impossible   to   restore  the  status  quo  ante   if   the proclamation  is not approved by both Houses of  Parliament, but  that  is the inevitable consequence  flowing  from  the exercise,  of  the  power which  the  President  undoubtedly Possesses during the time that the Proclamation is in force. This  is  clearly  a  necessary  power  because  there   may conceivably be 6--722SCI/77 76 cases where the exercise of the power of dissolution of  the Legislative  Assembly  may  become imperative  in  order  to remedy the situation arising on account of break down of the constitutional  machinery  in  the  State  and  failure   to exercise this power promptly may frustrate the basic  object and  purpose of a proclamation.......... under Article  356, clause (1).  It is, therefore, not possible to accede to the argument  of  the petitioners, in the  writ  petitions  that during  the  period  of two months before  approval  of  the proclamation   by   the  two  Houses   of   Parliament,   no irreversible action, such as dissolution of the  Legislative assembly  of the State, can be taken by the President.   The power  to  dissolve the Legislative Assembly  of  the  State cannot  also be denied to the President on the  ground  that the  proclamation  may not be approved by one or  the  other House of Parliament.  In the first place, the existence of a constitutional power or the validity of its exercise  cannot be  determined by reference to a possible contingency.   The Court  cannot enter the realm of conjecture and surmise  and speculate as to what would be the position at the expiration of  two months whether the proclamation will be approved  by both Houses of Parliament or not.  Secondly, it is  entirely immaterial  whether or not the proclamation is  approved  by both  Houses  of Parliament, because even if it  is  not  so approved, it would continue to be in full force, and  effect for  a period of two months, unless sooner revoked.   It  is also  difficult to appreciate how Article 357,  clause  (1), subclause  (c)  can  possibly assist  the  argument  of  the

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petitioners.   That sub-clause provides that when the  House of the People is not in session, the President can authorise expenditure  out  of  the Consolidated  Fund  of  the  State pending  receipt  of  sanction of such  expenditure  by  the Parliament   and  consequently,  it  is  possible  that   if Parliament  does  not  sanction  such  expenditure,  serious difficulty  might arise.  But that is merely  a  theoretical possibility  which  in practical reality of  politics  would hardly arise and it need not deflect us from placing on  the language  of  Article 356 the  only  correct  interpretation which  its  language  bears.  When the  President  issues  a proclamation  on  the advice of the Central  Government,  it stands  to reason that the House of the People in which  the Central   Government   enjoys   majority   would    sanction expenditure  out of the Consolidated Fund of the State.   We are,  therefore, of the view that even during the period  of two  months,  without the approval of the  proclamation  by, both  Houses of Parliament, the President can  dissolve  the Legislative  Assembly of the State in exercise of the  power of  the  Governor under Article 174(2) (b)  assumed  by  him under the proclamation. This is the correct constitutional interpretation of  clause (1)  and (3) of Article 356 guided by the language of  these clauses and the context and setting in which they occur.  It might  appear  at  first  blush  that  this   constitutional interpretation would completely eliminate the  Parliamentary central  over  the issue of proclamation  and  exercise  of powers under it and the Central Government would be free  to take  over the administration of the State and  paralyse  or even  dissolve the Legislative Assembly, even if  it  should appear  that one or the other House of Parliament might  not approve it.  But ’this apprehension 77 need not cause any undue anxiety, for it is based  primarily on  the  possibility of abuse of the Power  conferred  under Article 356, clause (1).  It must be remembered that  merely because  power may sometime be abused, it is no  ground  for denying  the existence of the power.  The wisdom of man  has not  yet  been able to conceive of a government  with  power sufficient  to  answer all its legitimate needs and  at  the same  time incapable of mischief.  In the last  analysis,  a great deal must depend on the wisdom and honesty,  integrity and  character of those who are in charge of  administration and  the existence of enlightened and alert public  opinion. Moreover,  it  is  apparent  that  a  piquant  situation  of considerable complexity and extra-ordinary consequences  may arise  if  either  House of Parliament  disapproves  of  the proclamation and, therefore, political and pragmatic  wisdom of  the highest order and circumspection of  utmost  anxiety would  necessarily  inform  the  Central  Government  before exercising  the  weighty  power conferred  by  Article  356, clause  (1).  Further more, it must be remembered  that  the principle  of cabinet responsibility to Parliament  lies  at the  core of our democratic structure of Government and  the Central  Government  is accountable for all its  actions  to Parliament which consists of elected representatives of  the people and if any action is taken by the Central  Government which  is  improper  or unjustified  by  moral,  ethical  or political  norms,  Parliament would certainly  be  there  to bring  them  to book.  The Political  control  exercised  by Parliament would always be a salutary check against improper exercise  of power or its misuse or abuse by the  executive. And  lastly the powers conferred on the President, that  is, the Central Government, being a limited power, its  exercise would,  within  the  narrow minimal  area,  which  we  shall

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indicate  later,  be  subject to  judicial  review  ability. These  are the safeguards which must alley the  apprehension that   the   Central  Government  may  act  want   only   or capriciously  in issuing a proclamation under  Article  356, clause  (1)  by  passing  and ignoring  the  two  Houses  of Parliament. That  takes us to the next question whether  any  injunction can  be  granted against the Union of India  restraining  it from  issuing a proclamation and dissolving the  Legislative Assemblies  of the States under Art. 356, cl. (1), for  that is  the primary relief claimed by the States in  the  suits. This  question  has  been argued on a  demurrer  as  if  the averments  made  in  the plaints  were  correct.   We  shall presently  consider this question, but before that,  we  may dispose  of  a  short  point in  regard  to  what  has  been described  as  a  ’directive’  by  Shri  Charan  Singh  Home Minister  to the Central Government, to the Chief  Ministers of the States concerned in the, suits (hereinafter  referred to  as the Plaintiff States).  Each of the plaintiff  states has sought a declaration that the ’directive’ of Shri Charan Singh  is  ’Unconstitutional, illegal and  ultra  vires  the Constitution"  and  an injunction restraining the  Union  of India  from giving effect to this ’directive’.  We  fail  to see how such declaration or injunction can be granted by the Court.  The ’directive’ of Shri Charan Singh is nothing  but an  advice  or  suggestion to the  Chief  Minister  of  each plaintiff State to recommend to the Governor dissolution  of the  Legislative  Assembly of the concerned State.   It  has been  wrongly  described  as  a  ’directive’.   It  has   no constitutional  authority behind it.  It is always  open  to the Home 78 Minister  of  the  Central  Government  to  give  advice  or suggestion  to the Chief Minister of a State and  the  Chief Minister  may  accept or reject such  advice  or  suggestion according as he thinks fit.  The advice or suggestion has no binding   effect  on  the  Chief  Minister  and   no   legal consequence  flow from it.  Hence it is not possible to  say that  the  ’directive’  issued  by  Shri  Charan  Singh  was unconstitutional, illegal or ultra vires.  There is also no, question  of  giving  effect  to  the  ’directive’  and   no injunction  can,  therefore,  be  granted  restraining   its implementation.   The  ’directive’,  if  not  accepted   and carried  but would certainly be a precursor to action  under Art.  356,  cl.  (1)  and, therefore,  may  be  regarded  as indicative of a threat, but standing- by itself, it does not give  rise  to  any  cause  of  action  in  the  State   for declaration  or  injunction.  Turning to the  relief  sought against the threatened exercise of power under Art. 356, cl. (1)  we  find  that what is prayed for  in  this  relief  is ’permanent injunction restraining the defendent from  taking recourse under Art. 356 of the Constitution of India to dissolve    the   Legislative   Assembly   of   the    State and  from taking any steps from holding fresh  elections  to the  State  Assembly  before  March,  1978."  It  is  indeed difficult  to  appreciate,  how such  a  wide  and  sweeping injunction  can  be granted by this  Court  restraining  the Union  of India from exercising altogether its powers  under Art. 356, cl. (1).  How can the Union of India be  prevented by   this   Court  from   discharging   its   constitutional obligations to the State.  We have already pointed out  that there  is  a constitutional duty enjoined on  the  Union  of India  to  ensure  that the Government  of  every  State  is carried  on  in  accordance  with  the  provisions  of   the Constitution   and   there  is  equally   a   constitutional

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obligation on the President that is, the Central Government, to, take action under Art. 356, Cl. (1), if he finds that  a situation  has  arisen  where the Government  of  the  State cannot  be carried on in accordance with the  provisions  of the  Constitution.   Can this Court issue  a  blanket  order against  the Union of India that whatever be  the  situation which  may develop in the State and howsoever  necessary  it may become to exercise the power under Art. 356 cl. (1), the Union  of  India shall not take recourse, to that  power  to dissolve  the  Legislative Assembly of the  State  and  hold fresh  elections, to the State Legislative  Assembly  before March,  1978.  That would clearly obstruct its discharge  of the constitutional obligations by the Central Government and no  such injunction can be issued by this Court.   Realising this difficulty in their way, the plaintiff-States sought to limit  the relief of injunction by confining it only to  the ground  set out in the ’directive’ of Shri Charan Singh  and in the statement made by Shri Shanti Bhushan, Law  Minister, at a talk on the All India Radio given by him.  That ground, according  to  the  plaintiff-States,  was  that  since  the Congress which was the ruling party in these States suffered a  massive defeat at the General Elections to the Lok  Sabha held  in  March 1977, the Legislative  Assemblies  of  these States  no  longer  reflected the wishes  or  views  of  the electorate  and  hence  a  fresh  appeal  to  the  political sovereign  had  become  necessary  and  obligatory  and  the Legislative Assemblies of these States should, therefore, be dissolved with a view to obtaining a fresh mandate from  the electorate.   It was contended on behalf of  the  Plaintiff- States  that  this  was the only  ground  on  which  Central Government  proposed to take action under Art. 356, cl.  (1) and since this ground was wholly extraneous and 79 irrelevant  to the basic condition for taking  action  under Art.   356,   cl.   (1),   the   Central   Government    was constitutionally  not  entitled to take. action  under  this clause  and  if any such action were taken  by  the  Central Government,   it  would  be  outside  the  limits   of   its constitutional authority.  The learned Additional  Solicitor General  combated  this  contention  by  giving  a  two-fold answer.  First, he contended that it was not correct to  say that  the points of view expressed by Shri Charan Singh  and Shri Shanti Bhushan constituted the only material or  ground for  the possible action under Art. 356, cl. (1). He  urged that the points of view of these two ministers could not  be equated with the advice which the Council of Ministers might give  to the President under Art. 74, cl. (1) in  regard  to the  dissolution  of  the  Legislative  Assemblies  of   the Plaintiff-States.  The exercise of power under Art. 356, cl. (1),  it  was said, depends on a wide range,  of  situations depending  upon varied and diverse considerations and it  is not possible to say what grounds might ultimately weigh with the  Council  of  Ministers in giving their  advice  to  the President under Art. 74, cl. (1).  Secondly he urged that in any event the ground that the, Legislative Assemblies of the Plaintiff-States  had  ceased  to reflect the  will  of  the electorate and, therefore, in order to ascertain the will of the  people, and give effect to it, it was appropriate  that the Legislative Assemblies should be dissolved and  election should be held, was a ground which had reasonable nexus with the basic condition for invoking the exercise of power under Art.  356,  cl.  (1) and it was a  legitimate  and  relevant ground which could be taken into account in arriving at  the satisfaction  that  the Government of the  State  cannot  be carried  on  in accordance with the provisions of  the  Con-

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stitution.  These were the rival contentions of the  parties which we must now proceed to consider. But  before we do so, we must at the threshold refer to  one other  argument of the learned Additional Solicitor  General which  sought  to exclude the jurisdiction of the  Court  in relation to a question of this kind.  He contended that  the question  whether  in. a particular State  a  situation  has arisen  where the Government of the State cannot be  carried on  in  accordance with the provisions of  the  Constitution and,  therefore. action should be taken under Art. 356,  cl. (1)  is  essentially a political question entrusted  by  the Constitution  to the Union executive and on that account  it is  not justiciable before the Court.  He urged that  having regard  to  the political nature of the problem, it  is  not amenable to judicial determination and hence the Court  must abstain  from  inquiring into, it.  We do not think  we  can accept  this  argument.   Of course, it is true  that  if  a question  brought  before the Court is  purely  a  political question  not involving determination of any legal  or  con- stitutional  right  or  obligation,  the  Court  would   not entertain  it,  since  the  Court  is  concerned  only  with adjudication  of legal rights and liabilities.   But  merely because  a  question  has a political  complexion,  that  by itself  is  no  ground  why the  Court  should  shrink  from performing  its duty under the Constitution if it raises  an issue of constitutional determination.  Every constitutional question   concerns   the   allocation   and   exercise   of governmental  power  and  no  constitutional  question  can, therefore, fail to be political.  A constitution is a matter of purest politics, a structure of power and as pointed  out by Charles Black in 80 Perspectives  in  Constitutional law’  "constitutional  law’ symbolizes  an  intersection of law  and  politics,  wherein issues of political power are acted on by persons trained in the  legal  tradition,  working  in  judicial  institutions, following the procedures of law, thinking as lawyers think". It was pointed out by Mr. Justice Brennan in the Opinion  of the  Court  delivered by him in Baker v. Carr,(1)  an  apoch making  decision  in American constitutional  history,  that "the  mere  fact  that  the  suit  seeks  protection,  of  a political  right does not mean that it presents a  political question."  This was put in more emphatic terms in Nixon  v. Herndon(2) by saying that such an objection "is little  more than  a play upon words".  The, decision in Baker  v.  Carr, (Supra)  was  indeed  a striking advance  in  the  field  of constitutional law in the United States.  Even before  Baker v. Carr., the courts in the United States were dealing  with a  host of questions ’political’ in ordinary  comprehension. Even  the  desegregation decision of the  Supreme  Court  in Brown  v.  Board  of Education(3) had  a  clearly  political complexion.  The Supreme Court also entertained questions in regard  to  the  political  right  of  voting  and  felt  no hesitation about relieving against racial discrimination  in voting  and in Gomillion v. Lightfoot(4), it did  this  even when the racial discrimination was covert, being achieved by so  redrawing a municipal boundary as to  exclude  virtually all Negroes, and no whites, from the city franchise.  It  is true that in Colegrove v. Green(5) the Supreme Court refused relief  against  Congressional  districting  inequities   in illinois,  but only three out of seven Justices who  sat  in that case based their decision on the ground that the  ques- tion presented before them was political and non-justiciable and  this view was in effect and substance reversed  by  the Supreme Court in Baker v. Carr.  The Supreme Court in  Baker

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v.  Carr,  held  that it was within the  competence  of  the federal Courts to entertain an action challenging a  statute apportioning legislative districts as contrary to the  equal protection clause.  This case clearly decided a  controversy which  was political in character, namely,  apportioning  of legislative districts but it did so because a constitutional question-of  violation  of the equal protection  clause  was directly   involved  and  that  question  was  plainly   and indubitably   within  the  jurisdiction  of  the  Court   to decide.It  will,  therefore,be seen that  merely  because  a question  has a political colour, the Court cannot fold  its hands in despair and declare as a question arises whether an authority under the constitution has acted within the limits of its power or exceeded it, it can certainly be  decided by the Court.  Indeed it would be its constitutional obligation to do so.  It is necessary to assert in the clearest  terms, particularly  in  the context of recent  history,  that  the Constitution is Suprema lex, the paramount law of the  land, and there is no department or branch of government above  or beyond  it.  Every organ of government, be it the  executive or  the legislature or the judiciary, derives its  authority from the Constitution and it has to act (1)  369 U.S. 186. (2)  273 U.S. 536. (3)  347 U.S. 483. (4)  364 U.S. 339. (5 ) 328 U.S. 549. 81 within the limits of its authority.  No one howsoever highly placed  and no authority howsoever lofty can claim  that  it shall be the sole judge of the extent of its power under the Constitution or whether its action is within the confines of such  power laid down the Constitution.  This Court  is  the ultimate  interpreter of the Constitution and to this  Court is  assigned  the delicate task of determining what  is  the power conferred on each branch of government, whether it  is limited,  and  if so, what are the limits  and  whether  any action  of that branch transgresses such limits.  It is  for this  Court  to  uphold the ,constitutional  values  and  to enforce the constitutional limitations.  That is the essence of  the  rule  of law.  To quote the words  of  Mr.  Justice Brennan in Baker v. Carr, "Deciding whether a matter has  in any  measure been committed by the Constitution  to  another branch  of government or whether the action of that  branch exceeds  whatever authority has been committed, is itself  a delicate exercise in constitutional interpretation and is  a responsibility of this Court as ultimate interpreter of  the Constitution".   Where  there  is  manifestly   unauthorised exercise of power under the Constitution, it is the duty  of the Court to intervene.  Let it not be forgotten, that  to this  Court as much as to other branches of  government,  is committed  the  conservation and furtherance  of  democratic values.  The Court’s task is to identify those values in the constitutional plan and to work them into life in the  cases that  reach  the Court.  "Tact and wise restraint  ought  to tamper   any  power  but  courage  and  the  acceptance   of responsibility have their place too".  The Court cannot  and should  not shirk this responsibility, because it has  sworn the  oath  of  alligance to the  Constitution  and  is  also accountable to the people of this Country.  There are indeed numerous decisions of this Court where constitutional issues have  been adjudicated upon though enmeshed in questions  of religious  tenets, social practices, economic doctrines  or educational   policies.   The  Court  has  in  these   cases adjudicated  not  upon the social, religious,  economic  ,or

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other  issues,  but solely on the  constitutional  questions brought  before it and in doing so, the Court has  not  been deterred by the fact that these constitutional questions may have such other overtones or facets.  We cannot,  therefore, decline  to  examine  whether there  is  any  constitutional violation involved in the President doing what he  threatens to  do,  merely on the facile ground that  the  question  is political in tone, colour or complexion. But  when  we  say  this, we must make  it  clear  that  the constitutional  jurisdiction of this Court is confined  only to  saying whether the limits on the power conferred by  the Constitution have been observed or there is transgression of such  limits.   Here  the only limit on  the  Power  of  the President  under  Art. 356, cl. (1) is  that  the  President should  be satisfied that a situation has arisen  where  the Government  of the State cannot be carried on in  accordance with the provisions of the Constitution.  The  satisfaction of  the President is a subjective one and ,cannot be  tested by reference to any objective tests.  It is deliberately and advisedly subjective because the matter in respect to  which he is to be satisfied is of such a nature that its  decision must  necessarily  be  left  to  the  executive  branch   of Government.   There may be a wide range of situations  which may arise and their political implications and consequences may have to be evaluated in order to decide whether 82 the  situation  is  such that the Government  of  the  State cannot  be carried on in accordance with the  provisions  of the  Constitution.  It is not a decision which can be  based on what the Supreme Court of United States has described  as "judicially discoverable and manageable standards." It would largely  be  a  political judgment based  on  assessment  of diverse  and  varied  factors,  fast  changing   situations, potential  consequences,  public reaction,  motivations  and responses   of  different  classes  of  people   and   their anticipated   future   behaviour  and  a   host   of   other considerations, in the light of experience of public affairs and  pragmatic  management  of  complex  and  often  curious adjustments  that  go to make up  the  highly  sophisticated mechanism  of  a modern democratic government.   It  cannot, therefore,  by its very nature be a fit subject  matter  for judicial   determination  and  hence  it  is  left  to   the subjective  satisfaction of the Central Government which  is best  in a position to decide it.  The Court cannot  in  the circumstances,  go  into  the  question  of  correctness  or adequacy  of  the  facts  and  circumstances  on  which  the satisfaction of the Central Government is based.  That would be  a dangerous exercise for the Court, both because  it  is not a fit instrument for determining a question of this kind and also because the Court would thereby usurp the  function of  the  Central  Government  and in  doing  so,  enter  the ’Political thicket’, which it must avoid if it is to  retain its  legitimacy  with the people.  In fact it would  not  be possible  for  the Court to undertake this  exercise,  apart from total lack of jurisdiction to do so, since by reason of Art.  74  cl. (2), the question whether any and if  so  what advice was tendered by the Ministers to the President cannot be  enquired  into by the Court, and  moreover,  "the  steps taken  by  the  responsible Government  may  be  founded  on information  and  apprehensions which are not known  to  and cannot  always be made, known to, those who seek  to  impugn what  has been done.,’ (Vide Ningkan v. Government of  Malay sica (1).  But one thing is certain that if the satisfaction is mala fide or is based on wholly extraneous and irrelevant grounds,  the Court would have jurisdiction to  examine  it,

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because  in that case there would be no satisfaction of  the President in regard to the matter which he is required to be satisfied.  The satisfaction of the President is a condition precedent  to the exercise of power under Art. 356, cl.  (1) and if it can be shown that there is no satisfaction of  the President  at  all,  the  exercise of  the  power  would  be constitutionally invalid.  Of course by reason of cl. (5) of Art.  356,  the satisfaction of the President is  final  and conclusive  and  cannot be assailed on any ground  but  this immunity from attack cannot apply where the challenge is not that  the satisfaction is improper or unjustified, but  that there is, no satisfaction at all.  In such a case it is  not the  satisfaction  arrived  at by  the  President  which  is challenged,  but the existence of the  satisfaction  itself. Take,  for  example, a case where the  President  gives  the reason  for taking action under Art. 356, cl. (1)  and  says that he is doing so, because the Chief Minister of the State is below five feet in height and, therefore, in his  opinion a  situation  has arisen where the Government of  the  State cannot  be carried on in accordance with the  provisions  of the  Constitution.   Can the so called satisfaction  of  the President  in  such a case not be challenged on  the  ground that it is absurd or perverse or mala fide or based on (1)  [1970] A.C. 379. 83 a wholly extraneous and irrelevant ground and is, therefore, no satisfaction at all.  It must of course be concerned that in  most cases it would be difficult, if not impossible,  to challenge  the  exercise of power under Art. 356, cl.  (1  ) even   on  this  limited  ground,  because  the  facts   and circumstances  on which the satisfaction is based would  not be  known,  but where it is possible, the existence  of  the satisfaction can always be challenged on the ground that  it is  mala fide or based on wholly extraneous  and  irrelevant grounds.  This proposition derives support from the decision of  the  Judicial  Committee of the Privy  Council  in  King Emperor  v. Banwari Lal Sarma(1) where Viscount Simon,  L.C. agreed that the Governor General in declaring that emergency exists  must  act  bona  fide and  in  accordance  with  his statutory powers.  This is the narrow minimal area in  which the exercise of power under Art. 356, cl. (1) is subject  to judicial  review and apart from it, it cannot rest with  the Court  to challenge the satisfaction of the  President  that the situation contemplated in that clause exists. Let  us now turn to the facts and examine them in the  light of  the principle discussed.  It would seem from  the  above discussion  that if it can be established affirmatively  (1) that  the proposed action of the President under  Art.  356, Cl.  (1)  would  be  based only  on  the  (,round  that  the Legislative  Assemblies of the Plaintiff-States have  ceased to  reflect  the  will of the electorate  and  they  should, therefore, be dissolved with a view to giving an opportunity to  the people to elect their true representatives  and  (2) that this ground is wholly extraneous and irrelevant to  the question which the President has to consider for the purpose of  arriving at the requisite satisfaction,  the  Plaintiff- States might have a case for injunction against the Union of India.   But  we  are  afraid  that  neither  of  these  two propositions  can be said to be established in  the  present suits. Re  :  Proposition 1 : It is not possible to accede  to  the argument  of the Plaintiff-StaLes that the ground  that  the Legislative Assemblies of the Plaintiff-States have lost the mandate of the people and no longer reflect the will of  the electorate  is the only ground on which the President  would

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act,  in  case he decides to exercise the power  under  Art. 356, Cl. (1), which, subsequent to, the making of our  order on  29th April, 1977, he has in fact done.  It is true  that this  ground is mentioned in the ’directive’ of Shri  Charan Singh and the statement of Shri Shanti Bhushan, but it would be  hazardous  in the extreme to proceed on  the  assumption that  this  would be the only ground before the  Council  of Ministers  when it considers whether or not to  take  action under Art. 356, Cl. (1).  There may be other grounds  before the Council of Ministers which may not have been articulated by  Shri Charan Singh and Shri Shanti Bhushan.  It  is  also possible  that in a rapidly changing situation, new  grounds may  emerge by the time the Council of  Ministers  considers the  question and these grounds may persuade the Council  of Ministers to decide to take action under Art. 356, Cl.  (1). The Court cannot equate the points of view expressed by Shri Charan Singh and Shri Shanti Bhushan with the advice of  the Council of Ministers nor can the Court speculate as to  what would be (1)  72 I.A. 57. 84 the grounds which would ultimately weigh with the Council of Ministers.   Moreover, it may be noted that this is not  the only  ground referred to in the ’directive’ of  Shri  Charan Singh.  He has also after referring to the virtual rejection in  the Lok Sabha elections, of the candidates belonging  to the ruling party in the Plaintiff-States, pointed out               The   resultant  climate  of  uncertainty   is               causing grave concern to us.  We have  reasons               to  believe that this has created a  sense  of               diffidence    at    different    levels     of               Administration.   People at large do  not  any               longer appreciate the propriety of continuance               in  power of a party which has been  unmistak-               ably rejected by the electorate.  The  climate               of uncertainty, diffidence and disrespect  has               already  given rise to serious threats to  law               and order." The  premise  on  which the  entire  superstructure  of  the argument of the Plaintiff-States is based is thus wanting. Re  :  Proposition 2 : It is not necessary to  consider  the question arising under this proposition on the view taken by us  in  regard  to  the first  proposition,  but  since  the question  was argued before us in some detail, we  think  it proper  to express our opinion upon it.  The question  is  : can the ground that the Legislative Assembly of a State  has ceased  to reflect the will of the electorate and  that  the Legislative Assembly and the electorate are at variance with each  other be said to be wholly extraneous  and  irrelevant for  the  purpose of Art. 356.  Cl. (1) ? Has it  any  nexus with the matter in regard to which the President is required to  be satisfied under Art. 356, Cl. (1) ? Does it  bear  at all  on  the  carrying of the Government  of  the  State  in accordance with the provisions of the Constitution ? Now, we have no doubt at all that merely because the ruling party in a State suffers defeat in the elections to the Lok Sabha  or for the matter of that, in the panchayat elections, that  by itself  can be no ground for saying that the  Government  of the  State  cannot  be carried on  in  accordance  with  the provisions of the Constitution.  The Federal structure under our  constitution clearly postulates that there may  be  one party  in power in the State and another at the Centre.   It is  also not an unusual phenomenon that the same  electorate may  elect  a  majority  of members  of  one  party  to  the Legislative  Assembly,  while at the same  time  electing  a

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majority  of  members  of another party to  the  Lok  Sabha. Moreover,  the  Legislative Assembly, once  elected,  is  to continue  for  a  specific  term  and  mere  defeat  at  the elections  to the Lok Sabha prior to the expiration  of  the term  without  anything  more would be  no  ground  for  its dissolution.  The defeat would not necessarily in all  cases indicate  that  the electorate is no longer  supporting  the ruling party because the issues may be different.  But  even if it were indicative of a definite shift in the opinion  of the  electorate,  that  by itself would  be  no  ground  for dissolution,  because  the  Constitution  contemplates  that ordinarily the will of the electorate shall be expressed  at the end of the term of the Legislative Assembly and a change in  the electorate’s will in between would not be  relevant. It may be noted that the Constitution does not 85 provide for a right of recall, individual or collective.  If such a provision were there it might have perhaps  justified the argument that the ruling party in the State having  lost in  the elections to the Lok Sabha, the continuance  of  the Legislative  Assembly  would not be in accordance  With  the provisions of the Constitution.  To dissolve the Legislative a  provision, the defeat of the ruling party in a  State  at the  Lok Sabha elections cannot by itself, without  anything more, support the inference that the Government of the State cannot  be carried on in accordance with the  provisions  of the  Constitution.   To dissolve  the  Legislative  Assembly solely  on such ground would be an indirect exercise of  the right of recall of all the members by the President  without there  being  any provision in the Constitution  for  recall even  by  the electorate.  The situation here  is,  however, wholly different.  This is not a case where just an ordinary defeat  has been suffered by the ruling party in a State  at the elections to the Lok Sabha.  There has been a total rout of candidates belonging to the ruling party.  In some of the Plaintiff  States,  the ruling party has not  been  able  to secure a single seat.  Never in the history of this  country has such a clear and unequivocal verdict being given by  the people,  never a more massive vote of no-confidence  in  the ruling  party.  When there is such crushing defeat  suffered by the ruling party and the people have expressed themselves categorically  against  its policies, it is  symptomatic  of complete  alienation between the Government and the  people. It is axiomatic that no Government can function  efficiently and  effectively  in accordance with the Constitution  in  a democratic set up unless it enjoys the goodwill and  support of the people.  Where there is a wall of estrangement  which divides  the  Government  from  the  people,  and  there  is resentment and antipathy in the hearts of the people against the  Government, it is not at all unlikely that it may  lead to instability and even the administration may be paralysed. The consent of the people is the basis of democratic form of Government  and when that is withdrawn so entirely  and  un- equivocally  as  to  leave  no  room  for  doubt  about  the intensity  of public feeling against the ruling  party,  the moral  authority  of  the  Government  would  be   seriously undermined  and a situation may arise where the  people  may cease   to  give  respect  and  obedience  to   governmental authority  and even conflict and confrontation  may  develop between the Government and the people leading to collapse of administration.  These are all consequences which cannot  be said  to be unlikely to arise from such an unusual state  of affairs  and they may make it impossible for the  Government of  the  State  to  be carried on  in  accordance  with  the provisions  of  the Constitution, Whether the  situation  is

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fraught  with such consequences or not is entirely a  matter of   political   judgment  for  the  executive   branch   of Government.   But it cannot be said that ,such  consequences can never ensue and that the ground that on account of total and  massive  defeat of the ruling party in  the  Lok  Sabha elections, the Legislative Assembly of the State has  ceased to  reflect  the will of the people and  there  is  complete alienation  between the Legislative Assembly and the  people is  wholly extraneous or irrelevant to the purpose  of  Art. 356,  Cl. (1).  We hold that on the facts and  circumstances of the present case this ground is clearly a relevant ground having  reasonable nexus with the matter in regard to  which the  President  is required to be  satisfied  before  taking action under Art. 356.  Cl. (1). 86 These are the reasons which have prevailed with us in making our  order dated 29th April, 1977 dismissing the  Suits  and Writ   Petitions  and  rejecting  the  prayer  for   interim injunction. GOSWAMI,  J.-We  already dismissed the suits  and  the  writ petitions on April 29,1977, and accordingly rejected  the prayers for interim injunctions. We  promised to give  our reasons later and the same may now be stated. The facts of all these matters appear in the judgment of the learned Chief Justice and need not be repeated. The  fundamental  questions  ’involved in  these  suits  are these,               (1)   Do  the suits lie under Article  131  of               the Constitution             of India ?               (2)   What is the scope of Article 356  vis-a-               vis the Court’s jurisdiction ?               (3)   If  the suits lie, is there a case,  for               permanent injunction and,. as an  intermediate               step, for an interim temporary injunction ?               (4)   Have    the   writ    petitioners    any               fundamental    rights   to   maintain    their               applications   under   Article   32   of   the               Constitution?’ In these suits as well as in the Writ Petitions the  central issue  that  is involved is the constitutional  right  of  a Council  of  Ministers to function as the  Government  of  a State and of a Legislative Assembly to continue until expiry of its term provided for in the Constitution. The suits are filed under Article 131 of the,  Constitution. Article 131 gives this Court exclusive original jurisdiction in any dispute-               (a)   between the Government of India and  one               or more States or               (b)   between the Government of India and  any               State  or States, on one side and one or  more               other States on the other : or               (c)   between two or more States. Although the expression used in Article 131 is any  dispute, the  width  of the expression is limited by the  words  that follow  in  respect  of the nature of dispute  that  can  be entertained by this Court in its original jurisdiction.   It is only a dispute which involves any question of law or fact on  which the, existence or extent of a legal right  of  the contending party depends that can be the subject matter of a suit under Article 131.  The dispute should be in respect of legal  rights and not disputes of political character.   The Article, thus, refers to the parties that may be arrayed  in the  litigation  as  well as to the subject  matter  of  the dispute. (See State of Bihar v. Union of India & Anr.).(1) (1)[1970]   2 S.C.R. 522.

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87 The  suits  are,  in  form, being filed  by  the  States  of Rajasthan,  Madhya Pradesh, Punjab, Bihar, Himachal  Pradesh and  Orissa.   But is the dispute  sought  for  adjudication within the scope or ambit of Article 131 ? That is the first question. In a parliamentary form of Government when one Government is replaced by another, the State’s continuity is not  snapped. There may come a moment in the life of a Government when  it may  cease  to be truly representative of  the  people  and, therefore,  the. interest of the State as a polity or  legal entity  and  that  of the Government  established  on  party system  may  cease to be identical.  In  such  a  situation, factual  or  imminent, a suit by a State Government  in  the name  of the State against the Union Government’s action  in defence,  of the former’s legitimate existence and right  of continuance will not relate to the legal right of the State. The  judgment,  whether in truth and  reality  a  particular situation exists or is portentously imminent, may be correct or  incorrect,  but it is a political  issue.   The  Court’s jurisdiction is not political but entirely judicial. The  right  of  a  particular State to  sue  is  not  always equivalent  to the right of the Council of Ministers in  all matters.   Even  if  a  Government  goes  the  State  lives. Whether  a  particular  Council  of  Ministers  can  survive threats  to their existence depends no doubt immediately  on its  ability to enjoy the confidence of the majority in  the Legislature, but also, in the last resort, in its ability to enjoy  the  confidence  of  the  political  sovereign,   the electorate.  The questions affecting the latter domain  are. of  highly political complexion and appertain  to  political rights  of  the Government and not to legal  rights  of  the State.    The   rights  agitated  by  the   plaintiffs   are principally of the Governments concerned who are  interested in continuing the legislatures whose confidence they  enjoy. On the other hand, it is claimed by the Home Minister in his letter that these Legislatures have lost the mandate of  the people  and  that there is clear evidence ,of  their  having lost the confidence of the people as a result of the verdict in the recent general election to the Parliament.  The Court is  not concerned whether this is a (correct  assessment  or not.   The  Union Government is entitled to  take  political decisions.   However,  even if a political decision  of  the Government  of India affects legal rights of the State as  a legal entity, the existence and extent of that right will be triable  under  Article  131.  The question  is,  are  legal rights of the State involved in the dispute ? Article 131 speaks of a legal right.  That legal right  must he that ,of the State.  The dispute about a legal right, its existence  or extent, must be capable of  agitation  between the  Government of India and the States.  The  character  of the dispute within the scope of Article 131 that emerges  is with  regard to, a legal right which the States may be  able to claim against the Government.  For example, the State  as a  party  must  affirm a legal right of its  own  which  the Government  of India has denied or is interested in  denying giving  rise  to  a cause of action.   For  the  purpose  of deciding whether Article 131 is attracted the subject matter of the dispute, therefore, assumes great importance. 88 Part  VI  deals with the States.  The word  "State"  is  not defined  for  the  purpose of Article 131  in  Part  V.  The "State"  is,  however,  defined under  Article  12  for  the purpose Part III (Fundamental Rights).  This     is      the definition also for Part IV (Directive principles of  State,

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Policy).   Under  Article  367(1),  the  provisions  of  the General   Clauses   Act,   1897,  are   a   applicable   for interpretation  of the constitution.  Section 3(58)  of  the General Clauses Act defines State, after the commencement of the  Constitution (Seventh Amendment), Act, 1956, to mean  a State  specified in the First Schedule to  the  Constitution and shall include a Union Territory.  The First Schedule  to the   Constitution   describes  22  States   and   9   Union Territories.   The  State Government is  separately  defined under section 3(60) of the General Clauses Act-thus  keeping the distinction.  Article 131 of the Constitution relates to legal  rights  of the State or of the Government  of  India. Any   violation  of  the  provisions  of  the   Constitution impinging  on the rights of the States or of the  Government of India will be justiciable under Article 131.   Similarly, boundary  disputes or disputes relating to rival  claims  to receipts from taxes and other duties between two States  are cognizable by this Court, to refer only to a few  instances. Now  in these above mentioned cases the rights of the  State as  a legal entity distinguished from the Government,  being the  executive  agent,  will  be  involved.   Even  if   one Government is replaced by another Government, such a dispute will not abate or disappear since the State endures and  the cause of action survives. Keeping  in  view the, above concept, we will  undertake  to examine the nature of the dispute which is involved in these suits.   Shortly stated the States apprehend a grave  threat to  the assumption of the executive functions of, the  State by  the  President  on non compliance with  the  advice  or direction contained in the letter of the Home Minister.   It is true that the threat to an illegal action also  furnishes a cause of action for a suit or proceeding.      Under  Article 172(1) all the State Assemblies,  except Orissa,   will  continue,  if not dissolved earlier,  for  a period  of six years from the date appointed for  its  first meeting and in that view in the normal course will continue for  some  more months.  The Legislative  Assembly  of’  the State of Orissa, on the other hand, having held its election in 1974, will in the normal course continue till 1980 unless earlier dissolved.     The States apprehend that this normal life of the Legislatures is going to be snapped resulting in the,  annihilation of their legal and constitutional  rights under  Article 172(1). That furnishes a cause of action  for the   suits  for  permanent  injunction  according  to   the plaintiffs. The  dispute  is this : The Home,  Minister,  Government  of India,  is asking the Chief Ministers of the Governments  of the   States  to  advise  the  Governors  to  dissolve   the Legislative  Assemblies.   The Chief Ministers  declined  to accept the advice and filed the suits.  What is the,  nature of this dispute ?  On the one hand there is the claim 89 of  a right to continue the present Government of the  State and necessarily to continue the Legislative Assembly and  on the other the right to take action under Article 356 by  the President  to  assume  functions of  the  State  Government. ’This dispute involves a major issue of great constitutional importance   and   the  aggrieved  party  may   have   other appropriate.  forum  to  complain  against  any  substantial injury Even so, it is not a dispute between the State on the one hand and the Government of India on the other.  It is  a real  dispute  between the Government of the State  and  the Government of India.  It is, no doubt a question of life and death for the State Government but not so for the State as a legal  entity.  Even after the dissolution of  the  Assembly

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the  State will continue to have a Government for  the  time being  as  provided  for  in  the  Constitution  in  such  a (contingency. A Legislature of the State under Article 168 consists of the Governor  and the Legislative Assembly or where there  is  a Legislative  Council  both the, Houses.  This also  has  its significance  in  comprehending the nature of  the  dispute. The members constituting the State Legislature of which the Council  of Ministers is the executive body, alone,  do  not even  constitute the State Legislature.  The Governor is  an integral   part   of  the  State   Legislature   under   the Constitution.  The rights of the Council of Ministers or  of the  members of the State Legislature cannot, therefore,  be equated  with  the  rights of the State  even  though  those rights may be those of the State Government, pro tempore. The  distinction  between the, State and the  Government  is brought  out  with  conspicuous  clarity  in  the  following passages :-               "The  distinction  between the State  and  its               Government  is  analogous to  that  between  a               given   human  individual,  as  a  moral   and               intellectual person, and his material physical               body  :  By the term State is  understood  the               political person or entity which possesses the               law  making right.  By the term Government  is               understood  the agency through which the  will               of  the  State is  formulated,  expressed  and               executed.   The  Government thus acts  as  the               machinery of the State, and those who  operate               this machinery............. act as the  agents               of the State."(")               "In all constitutionally organised States  the               State  is permitted to sue in the  courts  not               only with reference to its own proprietary  or               contractual  interests, but also in behalf  of               the  general  interests of its  citizen  body.               When  appearing  as plaintiff  in  the  latter               capacity it is known as Parens Patriae.   This               jurisprudential  doctrine  is  stated  in  the               Cyclopedia of Law and Procedure as follows :-               ’A   State,  like  any  other  party,   cannot               maintain a suit unless it appears that it  has               such an interest in the subject-matter thereof               as  to authorise the bringing of the  suit  by               it. (1)  The  Fundamental  Concepts of Public Law by  Westel  W. Willoughly, page 49. 90               In  this connection, however,  a  distinction,               should be noted between actions by the  people               or  by the State in a sovereign capacity,  and               suits  founded on some pecuniary interest  for               proprietary right’." (1)               "The  value of the distinction  between  State               and government is the possibility it offers of               creating institutional mechanisms for changing               the   agents  of  the  state,  that  is,   the               government,  when  the  latter  shows   itself               inadequate to its responsibilities." (2) I  am  clearly of opinion that the, subject  matter  of  the dispute in these suits does not appertain to legal rights of the  States concerned to satisfy the requirement of  Article 131  of the Constitution.  These suits are,  therefore,  not maintainable in law and on this ground they are liable to be dismissed.

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With  regard to the Writ Petitions I had the opportunity  to go  through the judgments of my brothers Bhagwati and  Gupta and I entirely agree with their reasoning and conclusion.  I am  clearly  of opinion that there is no  violation  of  the fundamental  rights  guaranteed  to  the  petitioners  under Articles   19(1)(f)  and  31  of  the  Constitution   as   a consequence of the threatened dissolution of the Legislative Assembly.    ’the   Writ  Petitions  are,   therefore,   not maintainable and are liable for rejection. Since,  however, the question of mala fides of the  proposed action  of  the Home Minister was argued at  length  with  a pointed  focus  on  the ensuing  Presidential,  election,  I should touch on the point. It is submitted that these grounds, ex facie, are completely irrelevant and extraneous and even mala fide.  Mr. Niren  De referred  to  the  decision of the Privy  Council  in  King- Emperor  v. Benoari Lal Sarma and Others(3) and read  to  us the following passage :               "It is to be observed that the section (72  of               Government  of  India  Act,  1935)  does   not               require  the  Governor-General to  state  that               there  is an emergency, or what the  emergency               is  either in the text of the ordinance or  at               all,  and assuming that he acts bona fide  and               in  accordance with his statutory  powers,  it               cannot  rest with the courts to challenge  his               review that the emergency exists." Relying on the above passage, Mr. De submits that this Court is entitled to examine whether the direction is mala fide or not. (1)  The  Fundamental  Concepts of Public Law by  Westel  W. Willoughly pp. 487-488. (2)  The  State in Theory and practice by Harold  J.  Laski, page 25. (3)  72 I.A. 57, 64. 91 The Additional Solicitor General has drawn our attention  to Bhagat  Singh and Others v. The King-Emperor(1) which  is  a decision  of  the  Privy Council  followed  in  Benoari  Lai Sarma’s case (supra) He read to us the following passage               "A  state of emergency is something that  does               not  permit  of  any  exact  definition.    If               connotes  a  state  of  matters  calling   for               drastic action, which is to be judged as  such               by  some  one.  It is more than  obvious  that               some one must be the Governor-General, and  he               alone.   Any other view would  render  utterly               inept the whole provision.  Emergency  demands               immediate   action,   and   that   action   is               prescribed  to  be  taken  by  the   Governor-               General.   It is he alone who  can  promulgate               the Ordnance." The  President in our Constitution is a constitutional  head and is bound to act on the aid and advice of the Council  of Ministers (Article 74).  This  was the position even  before the amendment of Article 74(1)     of  the  Constitution  by the 42nd Amendment (See Shamsher Singh  &  Anr. v. State  of Punjab) (2). The position has been made absolutely  explicit by  the amendment of Article 74(1) by the Constitution  42nd Amendment which says "there shall be a Council of  Ministers with  the Prime Minister at the head to aid and  advise  the President  who shall, in the exercise of his functions,  act in  accordance  with  such  advise."  What  was   judicially interpreted  even under the unamended Article 74(1) has  now been  given  parliamentary recognition by  the  Constitution

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Amendment.   There  can,  therefore, be no  doubt  that  the decision under Article 356 of the Constitution which is made by the President is a decision of the Council of  Ministers. Because certain reasons ate given in the letter of the  Home Minister,  it  cannot be said that those will, be  the  only grounds which will weigh with the Council of Ministers  when they  finally  take  a decision when  the  advise  has  been rejected  by  the  Chief  Ministers.   There  are  so   many imponderables  that  may intervene between the time  of  the letter and the actual advice of the Council of Ministers  to the  President.   There  may  be  further  developments   or apprehension  of developments which the Government may  have to  take  not of and finally when the Council  of  Ministers decides  and advises the President to issue  a  proclamation under  Article 356, the Court will be barred from  enquiring into  the  advice that was tendered by the  Cabinet  to  the President (Article 74(2).  Then again under Article  356(5), the   satisfaction   of  the  President   in   issuing   the proclamation  under  Article  356(1)  shall  be  final   and conclusive and shall not be questioned in any court on,  any ground.   In  the view I have taken, I am  not  required  to consider in the matters before us whether Article 356(5)  of the  Constitution  is ultra vires the Constitution  or  not. Even the Additional Solicitor General based his arguments on the  very  terms of Article 356(1) de  hors  Article  356(5) relying upon Bhagat Singh’s case (supra) that the subjective satisfaction of the President is not justiciable.  It is in (1)  58 I.A. 169, 172. (2)  [1975] 1 S.C.R. 814. 7-722 SCI/77 92 view  of  this  stand  of the Union that  Mr.  De  drew  our attention  to  Benoari Lai Sarma’s case  (supra)  where  the Privy  Council seems to have indicated that the question  of mala fides could be gone in to by the court.  Mr. De submits that a mala fide order under Article 356 will be no order in the eye of law. I am not prepared to say that this Court, which is the  last recourse  for  the oppressed and the bewildered,  will,  for good,  refuse  to  consider when  there  may  be  sufficient materials  to  establish that a proclamation  under  Article 356(1) is tainted with mala fides.  I would, however, hasten to add that the grounds given in the Home Minister’s  letter cannot  be  any strength of imagination be held to  be  mala fide  or extraneous or irrelevant.  These ground  will  have reasonable  nexus with the subject of a  proclamation  under Article  356(1) of the Constitution.  The matter would  have been  entirely  different if there were  no  proposal,  pari passu, for an appeal to the electorate by holding  elections to these Assemblies. In  view of my conclusion that the suits and Writ  Petitions are not maintainable I do not feel called upon to deal  with the   question  whether  there  is  a  case  for   permanent injunction or other appropriate writ in these matters.   The suits  and  the  Writ  Petitions  were,  therefore,  already dismissed. I  part  with the records with a cold  shudder.   The  Chief Justice was good enough to tell us that the acting President saw  him during the time we were considering judgment  after having already announced the order and there was mention  of this  pending matter during the conversation.  I have  given this  revelation  the  most anxious  thought  and  even  the strongest  judicial restraint which a Judge would prefer  to exercise,  leaves me no option but to place this  on  record hoping that the majesty of the High Office of the President,

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who should be beyond the high-watermark of any  controversy, suffers not in future. UNTWALIA, J. The unanimous order of the Bench in these cases was  delivered on April 29, 1977.  The judgments in  support of  the  order  are now being  delivered.   While  generally agreeing  with the reasons given in the leading judgment  of the  learned  Chief Justice, on some of the points  I  would like  to  add a few words and make some observations  of  my own. As to the maintainability of the writ applications filed  by some of the members of the Punjab Legislature under  Article 32  of  the Constitution of India, I would,  as  at  present advised,  not  like to express any opinion one  way  or  the other.  I will assume in their favour that at the  threshold the applications are maintainable.  Yet they do not make out a  case  for  issuance of any kind of  writ,  direction,  or order. But  as  to  the maintainability of the  suits  filed  under Article 131 by the various States I would like to say  that, although  the  point is highly debatable and not  free  from difficulty, the dispute of the kind raised in the suits does not involve any question whether of law or fact on which the existence or extent of any legal right of the States con- 93 cerned  depends.  To my mind the dispute raised  is  between the   Government  of  India  and  the  Government   or   the Legislative  Assembly of the States concerned.  One or  more limbs,  namely, and the Government, the Legislature  or  the Judiciary  of  a  State cannot be equated  with  the  State. Although  the expression "legal right" occurring in  Article 131  embraces within its ambit not only  the  constitutional rights  of the States but also other kinds of legal  rights, the  dispute must relate to the territory, property or  some other  kind of legal right of the State.  Broadly  speaking, the  nature  of  the  dispute in these  cases  is  that  the President  on  the advice of the Council  of  Ministers,  in other  words, the Government of India proposes  to  exercise his  powers under Article 356 for making a  proclamation  in order  to  dissolve the Legislative Assembly  of  the  State concerned  and  to dislodge the Council  of  Ministers,  the particular  Government  in  power in  that  State.   Such  a dispute, in my opinion, is not a dispute vis-a-vis the legal right  of the State a unit of the Union of India.  It  falls short  of  that.  What is alleged is that  pursuant  to  the impugned  proclamation the President will 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 including the power to dissolve the Assembly  under Article  174(2) (b).  Such a proposed or  threatened  action does  affect the legal right of the Government in power  and the  Legislative Assembly a part of the  State  Legislature, but  not  of  the State itself.  The  State  undoubtedly  is entitled to have a Governor a Government in one form or  the other and the Legislature.  No part of it can be  abolished. Abolition would affect the legal right of the State.  But it is not quite correct to say that a State has legal right  to have  a particular Governor or a particular Government or  a particular  Legislative Assembly.  In contrast to  the  word "dissolved"  used  in  Article 174 I would  point  ,out  the provision  of  "abolition" of the Legislative Council  of  a State mentioned in Article 169.  Similarly, to illustrate my view point, I may refer to Article 153 which provides "there shall  be a Governor for each State", and Article 156  which provides for a particular Governor holding office during the pleasure  of the President. if a dispute arises in  relation

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to  an  action or threat of the Government  of  India  under Article  153 it will affect the legal right of the State  as the  State  cannot  exist without a Governor.   But  if  the dispute concerns merely the removal of a particular Governor by  the  President, it only affects the legal right  of  the person holding the office or the Government of the State but not  of  the  State itself.  That  the  distinction,  though subtle,  is significant and appreciable, is clear  from  the language  of  the various clauses of Article 131  itself  as also  from  the definitions of State  Governments  given  in section  3 (5 8) and 3 (60) of the General Clauses Act.   In my  considered judgment, therefore, the suits as  instituted under Article 131 are not maintainable. But  I would not rest content to maintain the  dismissal  of the suits only on this technical ground. Putting the matter briefly in some words of my own as to the merits of the suits I would like to emphasize, in the  first instance,  that  it  is  difficult  to  presume,  assume  or conclude  that the only basis of the proposed action by  the President is the facts mentioned in the letter of the 94 Home Minister to the Chief Ministers of the States concerned or  the  speech  of the Law Minister of  the  Government  of India.   There  is  no warrant  nor  any  adequate  material disclosed in any of the plaints in support of any  assertion to the contrary.  Secondly, even if one were to assume  such a  fact in favour of the plaintiffs or the  petitioners  the facts  disclosed, undoubtedly, lie in the field or  an  area purely  of  a political nature, which are  essentially  non- justiciable.  It would be legitimate to characterise such  a field as prohibited area in which it is neither  permissible for  the  Courts  to enter nor should they  ever  take  upon themselves the hazardous task of entering into such an area. In  the very nature of things the President must be left  to be  the sole Judge, of course, on the advice of his  Council of  Ministers,  for  his satisfaction as  to  whether  there exists or not a situation in which the Government of a State cannot  be carried on in accordance with the  provisions  of the  Constitution.   Such  a satisfaction may  be  based  on receipt  of  a  report  from the  Governor  of  a  State  or otherwise.   Neither can the President be compelled to  dis- close   all   the  facts  and  materials  leading   to   his satisfaction  for  an action under Article 356  nor  is  his conclusion  as  to the arising of a situation  of  the  kind envisaged  in  Article 356(1), generally speaking,  open  to challenge even on the disclosed facts. I, however, must hasten to add that I cannot persuade myself to  subscribe  to the view that under  no  circumstances  an order  of proclamation made by the President  under  Article 356  can be challenged in a Court of Law.  And, I am  saying so notwithstanding the provision contained in clause (5)  of the  said  Article  introduced  by  the  Constitution  (38th Amendment)  Act,  1975.  In support of the  divergent  views canvassed  before us either in relation to the  proclamation of  emergency  under  Article 352 or  a  proclamation  under Article 356, extreme hypothetical examples were cited on one side  or the other.  From a practical point of view most  of such examples remain only in hypothesis and in an  imaginary world.   It is difficult to find them in realty but yet  not impossible in a: given case or cases.  Then, where lies  the difference?   Even before the introduction of clause (5)  in Article 356 or a similar clause in some other Articles, such as  Articles  352  and 123, the doors were  closed  for  the Courts  to enter the prohibited area which is popularly  and generally  called the political field.  If the  validity  of

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the action taken by the President in exercise of his  power, say,  under any of the three Articles referred to  above  is challenged   attracting  the  necessity  of   entering   the prohibited  field to peep into the reality of the  situation by  examination of the facts for themselves, either  on  the ground  of  legality or mala fides the  Courts  have  always resisted  and  shall continue to resist  the  inducement  to enter  the Prohibited field; for example, Bhagat  Singh  and others v. The King-Emperor, (1) King-Emperor v. Benoari  Lal Sarma and others; (2) (1)  58, Indian Appeals, 169. (2)  72 Indian Appeals, 57. 95 Lakhi Naryana Das v. The Province of Bihar etc. etc.(1)  and M/s S.K. G.    Sugar  Ltd. v. State of Bihar and  Ors.  (2). To put it graphically clause (5)has merely put a seal  on such closed doors to check more emphatically the  temptation or  the urge to make the Courts enter the prohibited  field. Attempts  have always been made by the party who is  out  of the  field of power, if I can equate it with the  prohibited field aforesaid, to induce the Court to enter that field  in order  to  give  relief against the  taking  of  the  extra- ordinary  steps  by  the  President on  the  advice  of  the Government in power.  On the other hand, the party in  power has  always resisted such move.  In a democracy the  current of  public opinion and franchise may push a particular  ship on one side of the shore or the other.  But this Court, like the  Pole Star, has to guide and has guided the path of  all mariners in an even manner remaining aloof from the  current and irrespective of the fact whether a particular ship is on this shore or that. But  then,  what did I mean by saying that a  situation  may arise in a given case where the jurisdiction of the Court is not  completely ousted ? I mean this.  If, without  entering into the prohibited area, remaining on the fence, almost  on the  face of the impugned order or the threatened action  of the  President it is reasonably possible to say that in  the eye  of  law it is no order or action as it is  in  flagrant violation  of  the  very  words  of  a  particular  Article, justifying  the  conclusion that the order is  ultra  vires, wholly  illegal or passed mala fide, in such a situation  it will be tantamount in law to be, no order at all.  Then this Court  is not powerless to interfere with such an order  and may, rather, must strike it down.  But it is incompetent and hazardous  for  the  Court  to  draw  such  conclusions   by investigation  of  facts  by entering  into  the  prohibited area..  It would be equally untenable to say that the  Court would be powerless to strike down the order, if on its face, or, if I may put it, by going round the circumference of the prohibited  area,  the  Court  finds the  order  as  a  mere pretense  or  a colourable exercise  of  the  extra-ordinary powers given under certain Articles of the Constitution.  In a  given  case it may be possible to conclude that it  is  a fraud  on  the exercise of the power.  But as  I  have  said above  in all such types of cases from a practical point  of view  are likely to seldom occur and even if they occur  may be  few and far between, the Courts have to arrive  at  such conclusions  by  checking  their  temptation  to  enter  the prohibited  area  of  facts  which  are  essentially  of   a political  nature.  It is in this context Lord  Mac  Dermott seems to have observed in the case of Stephen Kalong Ningkan and Government of Malaysia(3) at pages 391-92 :               "The  issue  of justiciability raised  by  the               Government of Malaysia led to a difference  of               opinion   in  the  Federal  Court,  the   Lord

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             President of Malaysia and the Chief Justice of               Malaya  holding  that  the  validity  of   the               proclamation  was not justiciable and  Ong  J.               holding  that it was.  Whether a  proclamation               under statutory powers by the Supreme Head of (1)  [1949] F.C.R.693. (2)  [1975] 1 S.C.R., 312. (3)  [1970] Appeal Cases, 379. 96               the  Federation can be challenged  before  the               courts   on,   some  or  any  grounds   is   a               constitutional   question   6(    far-reaching               importance which, on the present state of  the               authorities, remains unsettled and debatable." In  the application of the principle enunciated by me,  and. in  the  demarcation of the prohibited  area,  opinions  may sometimes differ, mistakes may sometimes be committed either by  unduly enlarging the area of the prohibited field or  by unduly  limiting.  But such differences are inherent in  the very  nature  of  administration of  justice  through  human agency.   No way out has yet been involved nor can one  con- ceive  of a better methodology.  Nonetheless the Courts  and the  Judges manning them are the best arbiters  of  judging, their  own  limits of jurisdiction as the custodian  of  the functions  to watch and see every Limb of the  State  acting under  the  constitution  in  accordance  with  it.   It  is intrinsic  and not uncommon to find that a party in  control of  the  field which I have described as a  prohibited  area would  be  trying  to view and make that area  as  large  as possible and the party outside that field will endeavour  to narrow  it down as far as feasible.  But the Courts do  keep and  have  got to keep that area the same as far  as  it  is humanly and legally possible to do so either for the one  or the  other party.  It is neither possible nor  advisable  or useful  to  make an attempt to define such  area  by  taking examples  one way or the other to illustrate as to when  the Court  would  be  able to say that : "I am  striking  out  a particular  order  of  the President  without  entering  the prohibited area or vice versa".  In these cases I would rest content  by saying that, as I view the facts  placed  before us, they are exclusively within the prohibited area. The  main  theme of contention has been that  the  President cannot  make the proclamation because when laid before  each House  of  the Parliament in accordance with clause  (3)  of Article  356 it is sure Or very likely that it will  not  be approved by the Rajya Sabha where the party in power in  the concerned  States  is in clear majority; in any  event,  the President  cannot  and should not be permitted to  take  any action  pursuant  to  the  proclamation  of  dissolving  the Assembly  without  the  approval  of  both  the  Houses   of Parliament, as the act of dissolution will be  irretrievable and  in flagrant violation of the federal structure  of  the constitution.   I  find no words of such limitation  on  the power  of  the President either in the original  Article  as framed  and passed by the Constituent Assembly or in any  of the  amendments  brought  therein from time  to  time.   The proclamation  made and an action taken pursuant thereto,  if otherwise valid and not open to challenge in the manner  and within the limitation I have indicated above, arc valid till the  proclamation lasts, the maximum period of which is  two months   even  without  the  approval  of  the   Houses   of Parliament.   On the revocation of the proclamation  by  the President or its disapproval or non-approval by either House of the Parliament the proclamation merely ceases to  operate without  in  any way affecting or  invalidating  the  action

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taken  pursuant  to the proclamation before  its  cesser  of operation.  No body has yet suggested, nor could any one  do so,  with  any semblance of justification that such  a  wide power  conferred  on  the President  even  by  the  original constitution as passed and adopt- 97 ed by the people of India could have any relevancy to the so called  destruction  of the basic federal structure  of  the constitution.  In this respect I, for myself, do not see any appreciable  or  relevant difference between the  action  of dissolution  of  an Assembly by the Governor of a  State  in exercise  of his power under Article 1740) (b), or  such  an action  taken  pursuant to the  proclamation  under  Article 356(1)   (a).    There  may  be  justifiable   and   genuine differences  of opinion between the  politicians,  political thinkers,  jurists  and others whether the  grounds  of  the proposed  action disclosed so far in the letter of the  Home Minister or the speech of the Law Minister of the Government of  India can necessarily lead to the conclusion  whether  a situation  has arisen in which the Government of  the  State cannot  be carried on in accordance with the  provisions  of the constitution.  Firstly, the possibility of other grounds being there for the proposed action under Article 356 cannot be  ruled out.  Even if ruled out, the conclusion  drawn  on the  facts  disclosed  cannot be said  to  be  so  perverse, erroneous  and palpably unsustainable so as to  enable  this Court  to  say that standing on the, fence  the  Court  can, declare  that the proposed action of proclamation  on  these facts  falls  in the category of the cases where  the  Court will  be  justified  to prevent  the  threatened  action  by injuncting the President either to issue the proclamation or to dissolve the Assembly of a particular State. 1, for  one, would  meticulously  guard  myself  against  expressing  any opinion  one way or the other except saying that  the  facts disclosed so far, in my considered judgment, are  definitely and   exclusively  within  the  prohibited  area   and   the conclusions   drawn  therefrom  are   reasonably   possible, especially in the background of Article 355.  On the  facts, as they are, it is difficult, rather, impossible to say that the proposed proclamation is going to be made mala fide with an  ulterior  motive.  Apart from the  other  technical  and insurmountable difficulties which are therein the way of the plaintiffs or the petitioners in getting any of the  reliefs sought  I have thought it advisable to pin-point in  my  own humble way the main grounds in support of the order we  have already declared. FAZAL  ALI, J. In a big democracy like our’s  the  popularly elected  executive  Government  has  sometimes  to  face   a difficult and delicate situation and in. the exercise of its functions  it  has to perform onerous duties  and  discharge heavy responsibilities which are none too easy or pleasant a task.  Circumstances  may arise where  problems  facing  the Government arepolitical,  moral, legal or  ethical  calling for a careful and cautiousexercise   of  discretion   of powers conferred on the Government by theConstitution of the country.  Even though the Government may have acted with the  best of intentions, its actions may displease some  and please  others, as a result of which  serious  controversies and problems arise calling for an immediate and satisfactory solution.  The present suits filed by some of the States and the writ petitions filed by three members of the Legislative Assembly of Punjab are ridden with legal and  constitutional problems  due to ,an action taken by the Central  Government to meet, what in its opinion was, an unprecedented political situation.   My  Lord  the  Chief  Justice  has   succinctly

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detailed  the facts of the present suits and  the  petitions and it is not necessary for me to repeat the same, except in 98 so  far  as  they may be relevant for the  decision  of  the conclusions to which I arrive.  I might also mention that  I fully agree with the judgment proposed by my Lord the  Chief Justice  giving  complete reasons for the  order  which  the Court  had unanimously passed on April 29, 1977,  dismissing the  suits  as  also the writ petitions  and  rejecting  the injunctions  sought for and other interim orders.  I  would, however,  like to give my own reasons high-lighting some  of the important aspects that arise in the case. By  virtue of the President’s order dated the  18th  January 1977  published in the Gazette of India-Extraordinary,  Part 1-section  1-by a notification dated the 19th  January  1977 the  President in exercise of the powers conferred upon  him by  sub-clause  (b)  of  clause  (2)  of  Art.  85  of   the Constitution dissolved the Lok Sabha.  Thus notification was soon  followed  by  another  notification  dated  the   10th February  1977  issued by the Ministry of Law,  Justice  and Company   Affairs   calling  upon  all   the   parliamentary constituencies to elect members in accordance with S.  14(2) of  the  Representation  of  the,  People  Act,  1951.    In pursuance  of this Notification the Election  Commission  on the  same day appointed the dates when elections were to  be held in various constituencies.  This order was passed under s.  30  of  the  Representation of  the  People  Act,  1951. Further  details  are  not  necessary  for  the  purpose  of deciding  the  issues arising in this case.  Suffice  it  to mention that in consequence of the elections which were held in  March  1977,  the Congress Party was  almost  routed  in Bihar,  U.P.,  Himachal Pradesh,  Haryana,  Madhya  Pradesh, Orissa, Punjab, Rajasthan and West Bengal, and  particularly in  some of the States not a single candidate set up by  the Congress  Party  was returned.  The Congress also  lost  its majority  in  the  Lok  Sabha as  a  result  of.  which  the Government  at the centre was formed by the Janata Party  in coalition  with  the Congress for  Democracy.   Mr.  Morarji Desai  the present Prime Minister was sworn in  after  being elected  as  the  party  leader on March  24,  1977  and  he selected  his Council of Ministers on March 25, 1977.   Soon thereafter the Union Home Minister addressed a letter to the aforesaid   nine  states,  namely,  Bihar,  U.P.,   Himachal Pradesh, Haryana, Madhya Pradesh, Orissa, Punjab,  Rajasthan and  West  Bengal, asking them to  advise  their  respective Governors  to  dissolve  the Assemblies  and  seek  a  fresh mandate from the people. The six plaintiffs, namely, the States of Rajasthan,  Madhya Pradesh,  Punjab,  Bihar, Himachal Pradesh and  Orissa  have filed suits in this Court praying for a declaration that the matter  of the Home Minister was illegal and ultra vires  of the  Constitution  and  not binding on  the  plaintiffs  and prayed  for  an interim injunction restraining  the  Central Government  from resorting to Art. 356 of the  Constitution. A permanent injunction was also sought for by the plaintiffs in order to restrain the Central Government permanently from taking  any  steps to dissolve the  Assemblies  until  their normal  period of six years was over.  The writ  petitioners who  are some members of the Legislative Assembly of  Punjab have  filed writ petition complaining of violation of  their fundamental   rights  and  have  also  prayed  for   similar injunctions.   The prayer of the plaintiffs as also that  of the                      99 petitioners   has   been   seriously   contested   by    the

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defendant/respondent  Union  of India on  whose  behalf  the Additional  Solicitor-General  raised  several   preliminary objections and also contested the claim on merits. Having discussed the nature of the claim by the  plaintiffs, if may now be germane to examine the preliminary  objections taken  by the defendant to the maintainability of the  suits by  the  plaintiffs  as also of the  petitions.   The  first preliminary  objection  raised by the  Additional  Solicitor General was that the suits were not maintainable under  Art. 131  of  the Constitution because one of the  essential  re- quirements  of  Art. 131 was that there must  be  a  dispute between the Government of India and one or more States,  and the present dispute is, on the very face of the  allegations made by the plaintiffs, not between the Government of  India and one or more States, but it is between the Government  of India  and the States Governments which is not  contemplated by  Art. 131 of the Constitution.  Mr. Niren  De,  appearing for  some  of the plaintiffs, however,  submitted  that  the language of Art. 131 is wide enough to include not only  the States  but  also  the State  Governments  which  alone  can represent  the states and context any legal right on  behalf of the States. It  was next contended by the  Additional  Solicitor-General that  even if the first condition of Art. 131 is  satisfied, there  was  no dispute, as contemplated by  Art.  131.   Mr. Niren  De  rebutted  this argument by  contending  that  the letter of the Home Minister disclosing the grounds on  which the   Central  Government  proposed  to  take   action   (or dissolution of the Assemblies was a sufficient dispute which entitled  the plaintiffs to approach this Court  under  Art. 131. Lastly, it was submitted by the Additional Solicitor-General that while the plaintiffs have prayed for the relief of both temporary  and permanent injunctions, this Court, hearing  a suit  under Art. 131 of the Constitution, cannot  grant  the relief  for injunction and the only relief which this  Court can  give would be purely of a declaratory character.   This point,  however,  was later on given up  by  the  Additional Solicitor-General,  and in our opinion rightly,  because  s. 204 of the Government of India Act, 1935, which preceded the Constitution contained an express provision, viz. sub-s. (2) which  expressly barred the right of the Court to grant  any relief  excepting a declaratory one, whereas in Art. 131  of the   Constitution   that   particular   clause   has   been deliberately omitted and the restriction imposed under  that clause by the Government of India Act has been removed, as a result  of  which this Court can grant any relief  which  it thinks suitable and which is justified by the necessities of a particular case. In  order  to examine the validity of  the  contentions  put forward  by counsel for the parties, it may be necessary  to extract the provisions of Art. 131 of the Constitution,  the relevant part of which runs thus :               "131.  Original  jurisdiction of  the  Supreme               Court.-Subject  to  the  provisions  of   this               Constitution, the Supreme 100               Court  shall,  to the exclusion of  any  other               Court,  have  original  jurisdiction  in   any               dispute-               (a)   between the Government of India and  one               or more States; or               (b)   between the Government of India and  any               State  or States on one side and one  or  more               other States on the other, or

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             (c)   between two or more States,               if  and in so far as the dispute involves  any               question (whether of law or fact) on which the               existence or extent of a legal right depends." An  analysis of this provision would indicate that before  a suit can be entertained by this Court under this  provision, the following conditions must be satisfied :               (i)   that there must be a dispute;               (ii)  that  the  dispute must be  between  the               Government of India and one or more States  or               between  Government of India and any State  or               States  on  one  side and one  or  more  other               States  on the other, or between two  or  more               States,,               (iii) that   the  dispute  must  involve   any               question (whether of law or fact) on which the               existence or extent of a legal right  depends;               and               (iv)  that there is no other provision in  the               Constitution  which can be resorted  to  solve               such a dispute. Before we apply these conditions to the facts of the present case, it may be necessary to run through the contents of the letter  of the Home Minister as  also the Press  interviews given by him and by the, Law Minister which according to the plaintiffs  form  an  integral  part  of  the  communication received by them from the Home Minister.  My Lord the  Chief Justice  has  extracted in extenso the press  statements  as also the contents of the letter of the Home Minister written to  the  various Chief Ministers of the States and  I  would like, however, to indicate the main points contained therein for the purpose of deciding whether or  not  a real  dispute arose in the case. The  statement  of.  the  Home  Minister  to  the  Press  is extracted at p.     25  in Original Suit No. 2 of  1977  and the relevant part of the same runs thus :               "We have given our most earnest  consideration               to   the  unprecedented  political   situation               arising  out of the virtual rejection, in  the               recent  Lok  Sabha Elections of  the  Congress               candidates in several States.  I have in  mind               Punjab, Haryana, Himachal Pradesh,  Rajasthan,               Madhya  Pradesh, Bihar, Orissa, Uttar  Pradesh               and West Bengal.               101               propriety of the Congress Governments in these               States, continuing in power without seeking  a               ’fresh mandate from the electorate." Similarly  the  relevant part-of the contents  of  the  Home Minister’s  letter to the Chief Ministers may  be  extracted thus               "We   have  given  our  earnest  and   serious               consideration   to  the   most   unprecedented               political situation arising out of the virtual               rejection, in the recent Lok Sabha  elections,               of candidates belonging to the ruling party in               various  States.  We have reasons  to  believe               that this has created a sense of diffidence at               different levels of administration.  People at               large   do  not  any  longer  appreciate   the               propriety  of continuance in power of a  party               which  has been unmistakably rejected  by  the               electorate.                                  (Emphasis supplied) Relevant  portions of the extracts from the interview  given

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by  Mr. Shanti Bhushan in a spotlight programme of  the  All India  Radio-may  also be quoted from Annexure  ’B’  of  the Paper Book in Original Suit No. 1 of 1977 filed by the State of Rajasthan which run thus :               "In  an interview in the spot-light  programme               of  All  India  Radio he said  that  the  most               important  basic feature of  the  Constitution               was  democracy, which meant that a  Government               should function with the broad consent of  the               people and only solong as it enjoyed  their               confidence.  If State Governmentschose   to               govern  the  people  after  having  lost   the               confidenceof   the  people,  they  would   be               undemocratic Governments he said".                                (Emphasis supplied)               Constitution was democracy which meant that  a               Government  should  function  with  the  broad               consent  of the people and only so long as  it               enjoyed the confidence of the people.               Mr.  Shanti  Bhushan said that the  mere  fact               that at one time the Government in the  States               enjoyed  the confidence of the people did  not               give  them  the right to  govern  unless  they               continued  to  enjoy that  confidence.   If  a               situation  arose in which a serious doubt  was               cast   upon   the  Government   enjoying   the               continued  confidence of the people, then  the               provision  for  premature dissolution  of  the               Assembly immediately came into operation.               The  provision not merely gives the power  but               it casts a duty because this power is  coupled               with  duty,  namely,  the  Assembly  must   be               dissolved immediately and the Government  must               go  to  the people to see whether it  has  the               continued confidence of the people to govern." 102 Thus analysing the stands taken by the Home Minister and the Law  Minister,  the following grounds appear  to  have  been relied  on by them for the purpose of maintaining  that  the Assemblies  should  be  dissolved and  the  Chief  Ministers themselves should advise the Governors accordingly               (1)   that    an    unprecedented    political               situation had arisen by the virtual rejection,               in  the  recent Lok Sabha  elections,  of  the               Congress  candidates in the States  concerned,               namely   the  plaintiffs  in  the  six   suits               including  Uttar  Pradesh,  Haryana  and  West               Bengal);               (2)   that   the  people  at  large  did   not               consider   it  expedient  for   the   Congress               Governments  to  continue  without  seeking  a               fresh  mandate,  when the Congress  party  was               completely  routed in the Lok Sabha  elections               from the States concerned;               (3)   that  the  constitutional  experts  have               also advised the Home Minister that the  State               Governments   have  impliedly  forfeited   the               confidence of the people;               (4)   that  there is a climate of  uncertainty               which  has  created a sense of  diffidence  at               different levels of administration;               (5)   that  such a climate of uncertainty  has               given  rise  to  serious threats  to  law  and               order;               (6)   that the most important basic feature of

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             the Constitution being democracy, a Government               had to function with the broad consent of  the               people  so long as it enjoyed its  confidence.               If the State Government lost the confidence of               the people, then it would be undemocratic  for               them to continue;               (7)   that  if a situation arises in  which  a               serious  doubt  was cast upon  the  Government               enjoying  the  continued  confidence  of   the               people,  then  the  provision  for   premature               dissolution  of the Assembly would at once  be               attracted.  Where such a situation arises, the               power contained in the Constitution is coupled               with  a  duty  to dissolve  the  Assembly  and               direct  the Government to go to the people  in               order  to  see whether it  has  the  continued               confidence of the people to govern them. The  correctness  of  the extracts  quoted  above  from  the documents  filed by the plaintiffs has not been disputed  by the  Additional  Solicitor-General.  Mr. Niren  De  contends that in view of the stand taken by the Law Minister and  the Home  Minister  there  arose a  clear  dispute  between  the Government of India and the State Governments so as to  call for  an  adjudication  by this Court.  In  my  opinion,  the crucial question to be considered is whether or not there is a   dispute.   Statements  by  Ministers  or  even  by   the Government or made by one party and denied by the other  may not amount to a dispute, unless 103 such a dispute is based on a legal right.  A "dispute?’  has been  defined  in  the  Webster’s  Third  New  International Dictionary as follows               "verbal  controversy  :  strife  by   opposing               argument  or expression of opposing  views  or               claims :  controversial discussion." A dispute, therefore, clearly postulates that there must  be opposing  claims which are sought to be put forward  by  one party  and  resisted by the others.  One  of  the  essential ingredients  of Art. 131 is that the dispute must involve  a legal  right based on law or fact.  The question  which  one would  ask is what is the legal right which is  involved  in the  ’statements  given  by the Home  Minister  or  the  Law Minister or the letter addressed by the Home Minister to the Chief  Ministers  The governmental authorities  have  merely expounded  the  consequences of the  interpretation  of  the constitutional provisions relating to the dissolution of the Assemblies.  There can be no doubt that under Art. 356 it is the  Central Government alone which, through its Council  of Ministers, can advise the President to issue a  proclamation dissolving  the  Assemblies.  The word  "otherwise"  clearly includes  a contingency where the President acts not on  the report of the Governor but through other modes, one of which may  be  the advice tendered by the  Council  of  Ministers. Under  Art. 74 as amended by the Constitution  (Forty-second Amendment)  Act,  1976, the relevant part of  which  may  be extracted below :               "There  shall be a Council of  Ministers  with               the  Prime  Minister at the head  to  aid  and               advise   the  President  who  shall,  in   the               exercise  of his functions, act in  accordance               with such advice." the Council of Ministers has to aid and advise the President and  once  the  advice is given, the President  has  got  to accept  it, there being no discretion left in him.  Thus  if the  Central Government chooses to advise the  President  to

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issue  a proclamation dissolving an Assembly, the  President has  got  no  option but to issue  the  proclamation.   This manifestly  shows  that the Central Government has  a  legal right to approach the President to issue a Proclamation  for dissolution of an Assembly as a part of the essential duties which the Council of Ministers have to perform while  aiding and advising the President.  The State Governments, however, do not possess any such right at all.  There is no provision in the Constitution which enjoins that the State  Government should be consulted or their concurrence,should be  obtained before  the Council of Ministers submit their advice to  the President regarding a matter pertaining to the State so  far as the dissolution of an Assembly is concerned.  Article 356 also  which  confers  a power on the President  to  issue  a Proclamation  dissolving all Assembly does not  contain  any provision   which  requires  either  prior   or   subsequent consultation  or concurrence of the State Government  before the President exercises this power.  In these circumstances, can  it be said that the State Governments have a  right  to assert  that an order under Art. 356 shall not be passed  by the President or to file 104 a  suit  for a  declaration  that  the  President  may  be injuncted  from  passing such an order ? The  right  of  the State Governments to exist depends on the provisions of  the Constitution which is subject to Art. 356.  If the President decides to accept the advice of the Council of Ministers  of the Central Government and issues a proclamation  dissolving the  Assemblies,  the  State Governments have  no  right  to object to the constitutional mandate contained in Art.  356. It is conceded by Mr. Niren De that if the President, on the advice  of  the Council of Ministers, would  have  passed  a notification dissolving the State Assemblies under Art. 356, the  plaintiffs were completely out of court and  the  suits would not have been maintainable.  It is not  understandable how  the  position would be any different or worse,  if  the Central   Government   chose  to  be  fair  to   the   State Governments concerned by informing them of the grounds  on the basis of Which they were asked to advise their Governors to dissolve the Assemblies.  The mere fact that such letters were  sent  to the State  Government  containing  gratuitous advice  would not create any dispute, if one did  not  exist before, nor would such a course of conduct clothe the  State Government  with a legal right to call for  a  determination under  Art.  131.  If the State Governments do  not  possess such  a  legal right, or for that matter any right  at  all, then they cannot put forward any claim before a Court for  a declaration or injunction.  Mr. Niren De, however, submitted that  the very fact that the Home Minister was compelled  to address a communication to the Chief Ministers of the  State Governments  for  advising  the Governors  to  dissolve  the respective  Assemblies  and the Chief Ministers  refused  to accept the advice of the Home Minister shows that a  dispute arose.   In  my opinion, however, the  contention  does  not appear   to  be  well  founded.   Assuming  that  the   Home Minister’s letter to the Chief Ministers raised some sort of a  dispute,  the moment the Chief  Ministers  answered  that letter  and spurned the advice given by the  Home  Minister, the  dispute  came to an end and ceased  to  exist.   Unless there is on existing dispute involving a legal right between the  parties,  the  forum provided by  Art.  131  cannot  be availed  of  by any party.  I am fortified in my view  by  a decision of the Federal Court in The United Provinces v. The Governor-General in Council,(1) where Gwyer, C.J.,  speaking for the Court observed thus :

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             "The  Federal  Court has by s. 204(1)  of  the               Constitution   Act   an   exclusive   original               jurisdiction   in  any  dispute  between   the               Governor-General   in   Council   (or,   after               federation, the Federation) and any  Province,               if  and in so far as the dispute involves  any               question, whether of law or fact, on which the               existence or extent of a legal right  depends.               It  is  admitted that the legal right  of  the               Province   to   have  the  fines   now   under               discussion credited to Provincial revenues and               not  to the Cantonment Funds depends upon  the               validity or otherwise of s. 106 of the Act  of               1924.  The plaintiffs deny the validity of the               section,  the  defendant asserts  it;  and  it               seems  to  me that this is clearly  a  dispute               involving a question on which the existence of               a legal right depends." (1)  [1939] F.C.R. 124,136. 10 5 This  case  effords a clear illustration of a  real  dispute involving a legal; right.  In that case the main dispute was regarding  the  question  whether  the  fines  credited   to Provincial revenues and not to the Cantonment Funds belonged to  the  Province  or the  Central  Government  through  the Cantonment.   It  will  be noticed that  the  Federal  Court clearly  held  that such a dispute clearly fell  within  the purview  of S. 204(1) of the Government of India  Act  which was  in pari materia to Art. 131 of the Constitution.   That case is purely illustrative and decides that it is only such type of disputes as are contemplated by Art. 131.  For these reasons,  therefore,  I am clearly of the view  that  having regard  to the facts and circumstances of the present  case, it  has  not  been established that there  was  any  dispute involving a legal right between the Government of India  and the  State Governments, and therefore one of  the  essential ingredients of Art. 131 not having been fulfilled the  suits are not maintainable on this ground alone. The  next  preliminary  objection taken  by  the  Additional Solicitor  General was that there is no dispute between  the Government  of  India and the States because what  Art.  131 postulates   is  that  the  dispute  must  be  between   the Government  of  India and the States as  understood  in  the proper  sense, namely, the territories comprising the  State or  the  permanent institutions comprised in it,  e.g.,  the Governor,  the  Legislature,  the  High  Court,  the  Public Service Commission and the like.  In other words, where  the Central   Government   wants  to  oblish   the   Legislature completely or to abolish the institution of the Governor  or the High Court, this will be a matter which will concern the State  and the State Government as such.  I am  inclined  to agree  with  the contention put forward  by  the  Additional Solicitor-General.   What Art. 131 takes within its fold  is not  the State Government comprising of a particular set  of Ministers, but the Government itself, which exists for ever, even though the personnel running the Government may change, from  time  to time.  Article 12 of  the  Constitution,  the scope of which is restricted only to the fundamental rights, does  provide that the "State" includes the  Government  and Parliament  of India and the Government and the  Legislature of each of the States.  Here the term "State" has been given a very broad spectrum because the definition is dealing with the  exposition  of  fundamental  rights  and  its   various incidents  which  have  to be interpreted  in  the  broadest possible  sense  so  as  to protect  the  citizen  from  any

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institution included in the term "State" which even includes not only the Government of the State but also Government  of India.   Article 12, however, does not apply to  Chapter  IV where  Art.  131  occurs  and which  deals  with  the  Union Judiciary.   In fact the word "State" as mentioned  in  Art. 131  has  not  been defined anywhere  in  the  Constitution. Under   Art.  367  if  any  term  is  not  defined  in   the Constitution recourse can be had to the General Causes  Act, 1897, for the purpose of understanding the meaning of such a term.   Section  3(58) of the General  Clauses  Act  defines "State" thus : "State"- .lm15 (a)as  respects any period before the commencement of  the Constitution  (Seventh  Amendment) Act, 1956, shall  mean  a Part A State, a Part B State or a Part C State; and 10 6 (b)as  respects any period after such commencement,  shall mean  a  State specified in the First Schedule to  the  Con- stitution and shall include a Union territory :" On the other hand S. 3(23) defines the word "Government"  or "the  Government" as including both the  Central  Government and  any State Government.  Thus it will be clear  from  the definition  of  "State’  given in s. 3(58)  of  the  General Clauses  Act  that the "State" does not  include  the  State Government.               The  relevant parts of Arts.  1 and 3  of  the               Constitution run thus               " 1.  Name and territory of the Union :-               (1)   India, that is Bharat, shall be a  Union               of States.               (2)   The  States and the territories  thereof               shall be as specified in the first schedule.               (3)   The territory of India shall comprise-               (a)   the territories of the States;               (b)   the  Union territories specified in  the               First Schedule; and               (c)   such   other  territories  as   may   be               acquired."               "3.  Formation of new States and alteration of               areas, boundaries or names of existing States               Parliament may by law-               (a)   form  a  new  State  by  separation   of               territory from any State or by uniting two  or               more  States or parts of States or by  uniting               any territory to a part of any State;               (b)   increase the area of any State;               (c)   diminish the area of any State;               (d)   alter the boundaries of any State;               (e)   alter the name of any State : " A  perusal  of these Articles would  reveal  in  unequivocal terms  that  wherever  the Constitution has  used  the  word "State"  without any qualification it means "State"  in  the ordinary sense of its term, namely, the State along with its territory or institutions.  Article 3 expressly empowers the Parliament to increase or diminish the area or territory  of any  State.  It has no reference to the State Government  at all or for that matter to a particular State Government  run by  a particular party.  In my opinion, therefore, the  word "State"  in  Art. 131 has also been used  in  this  ordinary sense  so as to include only the territory of the State  and the  permanent  institutions contained therein.   A  dispute arising  between the personnel running the  institutions  is beyond the ambit of Art. 131.  Further more, it would appear that  cls. (a) & (b) of Art. 131 deliberately and  advisedly

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use the word "Government of 107 India  and  one or more States".  If the  intention  was  to bring  even,  a Stale Government as run by  the  Council  of Ministers  within  the purview of this provision,  then  the words "one or more State Governments" should have been  used instead  of using the word "State".  This is, therefore,  an intrinsic circumstance which shows that the founding fathers of  the  Constitution intended that the  dispute  should  be contained only to the Government of India and the States  as a  polity or a constituent unit of the republic  instead  of bringing  in  dispute  raised by the  Government  run  by  a particular  Council of Ministers which does not  pertain  to the State as such. Thus, summarising my conclusions on this point, the position is  that  the  import & purport of Art.  131  is  to  decide disputes  between  one  State and  another  or  between  the Government  of India and one or more States.   The  founding fathers  of the Constitution have used the word  "State"  in Art.   131  both  deliberately  and  advisedly  so   as   to contemplate  the  State as a constituent unit of  the  Union along  with its territory and permanent  institutions.   The question  as to the personnel who run these institutions  is wholly  unrelatable to the existence of a dispute between  a State and the Government of India.  It is only when there is a complete abolition of any of the permanent institutions of a  State  that a real dispute may arise.  A  mere  temporary dissolution of an Assembly under Art. 356 does not amount to an  abolition  of  a  State  Assembly,  because  after  such dissolution   under  the  provisions  of  the   Constitution elections  are bound to follow and a new  Legislature  would evidently come into existence after the voters have  elected the  candidates.  Unfortunately, there is no clear  decision of  this  Court directly on this point, but on  a  true  and proper  construction  of Art. 131, 1 am of the view  that  a dispute  like  the present is totally outside the  scope  of Art. 131 of the Constitution.  For these reasons, therefore. I  hold  that  the State Governments  who  have  raised  the dispute  in  this case are not covered by the  word  "State" appearing  in  Art.  131 and therefore  the  suits  are  not maintainable  on this ground also. 1, therefore,  record  my respectful dissent from the view taken by my lord the  Chief Justice and brother Judges on this particular point. Similarly  in  the case of writ  petitions,  the  Additional Solicitor-General  raised a preliminary objection as to  the maintainability of the petitions.  It was contended that the right  of  the  petitioners as members  of  the  Legislative Assembly of Punjab was not a fundamental right as  envisaged by part III of the Constitution.  At the most, the right  to receive  allowances as members of the Assembly was merely  a legal right consequent upon their election as members of the Assembly.   It  was  not  a  right  which  flowed  from  the Constitution.  Thus argued the Additional  Solicitor-General that there being no infraction of any fundamental right, the petitioners cannot be allowed to take recourse to Art. 32 of the  Constitution of India.  This argument was sought to  be repelled  by Mr. Garg, Counsel for the petitioners,  on  the ground  that in view of the decision of this Court in H.  H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur & Ors. v. Union of India(1) commonly known as "Privy Purses  Case"- the  right  to  receive allowances by  the  petitioners  was undoubtedly a right to property and by the (1) [1971] 3 S.C.R. 9. 8-722SCI/77 108

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threatened  dissolution of the Assembly there was  a  direct threat  to  the  fundamental right  to  property  which  the petitioners  had both under Art. 19 (1 ) (f) and Art. 31  of the Constitution.  Very attractive though they are, we  are, however,  unable to accept the arguments put forward by  Mr. Garg.  This Court in the Privy Purses Case was considering a legal  right in quite a different context, namely, Art.  291 of  the  Constitution which has since been repealed  by  the Constitution  (Twenty-sixth Amendment) Act,  1971.   Article 291 as it stood then may be extracted thus "291.  Privy purse sums of Rulers:-               Where under any covenant or agreement  entered               into  by the Ruler of any Indian State  before               the  commencement  of this  Constitution,  the               payment  of  any sums, free of tax,  has  been               guaranteed or assured by the Government of the               Dominion  of India to any Ruler or such  State               as privy purse-               (a)   such sums shall be charged on, and  paid               out of, the Consolidated Fund of India, and               (b)   the  sums so paid to any Ruler shall  be               exempt from all taxes on income." A perusal of this provision would clearly indicate that  the founding  fathers  of the Constitution sought  to  guarantee certain  legal rights conferred on the Rulers by making  the sums  paid  to  them a charge on the  Consolidated  Fund  of India.   The payments made to the Rulers were guaranteed  by the Constitution itself and it was in view of this  peculiar and special provision that this Court held that the right of the  Rulers to receive payments free of tax was not  only  a legal  right flowing from the Constitution but also a  right to   property,   because  a  charge  was  created   on   the Consolidated  Fund of India for the payments to be  received by the Rulers.  In other words, the right to property  arose directly  from the status occupied by the Rulers  under  the Constitutional  provision itself and it was  not  consequent upon the Rulers obtaining a particular status as members  of the Assembly or otherwise which may be consequential to  the acquisition  of  their ’subsequent status.  In  the  instant case,  the right of the petitioners is only a limited  right inasmuch  as it subsists only so long as the  Assembly  runs its usual course of six years.  The right may also cease  to exist  if  the  Assembly is dissolved by  the  President  by issuing   a  proclamation  under  Art.  356.    The   right, therefore, subsists only so long as these two  contingencies do  not  occur.   Further more, the  Constitution  does  not guarantee  any  right or allowances to the  Members  of  the Assembly which are given to them by local Acts or Rules.  In these  circumstances, therefore, the ratio decidendi of  the Privy  Purses Case cannot apply to the petitioners.   Hedge, J.,  while  dealing  with  the nature  of  the  legal  right possessed by the Rulers in the Privy Purses case observed as follows               "As I am satisfied that the rights under Arts.               31  and 19(1)(f) have been contravened  it  is               not   necessary   to   examine   the   alleged               contravention of other rights.               109               I have earlier come to the conclusion that the               right to get the privy purse under Art. 291 is               a legal right. from that it follows that it is               a right enforceable through the courts of law.               That right is undoubtedly a property.  A right               to  receive  cash  grants  annually  has  been               considered by this Court to be a  property-see

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             State  of  M.P. v. Ranojirao Shinde  and  Anr-               (1968) 3 SCR 489.  Even if it is considered as               a  pension  as the same is payable  under  law               namely  Art.  291, the  same  is  property-see               Madhaorao  Phalke v. State of  Madhya  Bharat-               (1961) 1 SCR 957." It  is  obvious that the observations of this  Court  cannot apply  to  the petitioners who cannot be said  to  have  any fundamental right contained in Part III of the Constitution. For  these reasons, therefore, I am of the opinion that  the preliminary  objection raised by the  Additional  Solicitor- General is well founded and must prevail. Since we have heard the suits and the petitions on merits at great length also, even if we assume that the writ petitions are maintainable, we shall deal with the merits of both  the suits  and the writ petitions.  We now proceed to deal  with the merits of the suits and the writ petitions, although  we think that the suits of the plaintiffs as also the petitions are  liable  to be rejected on  the  preliminary  objections raised by the Additional Solicitor-General. Coming  to  the merits, three contentions were  put  forward before us by counsel for the plaintiffs and the  petitioners :               (1)   that   the  letter  sent  by  the   Home               Minister to the Chief Ministers amounted to  a               directive  by  the Central Government  to  the               Chief  Ministers  to  advice  the   respective               Governors   for  dissolving   the   Assemblies               resulting  in interference in the federal  set               up   of   the  States  contemplated   by   the               Constitution;               (2)   that  even  if the letter  of  the  Home               Minister  was  not  a  directive,  it  clearly               amounted  to  a  threat to the  right  of  the               present  Government to continue in office  and               to be dissolved if the directions given to the               Chief Ministers were not carried out;               (3)   that the circumstances mentioned in  the               letter  did not constitute  sufficient  reason               for  dissolution of the Assemblies under  Art.               356  and the action of the Central  Government               in  writing the letter to the Chief  Ministers               and giving interviews at the Press and the All               India  Radio  amounted  to  a  mala  fide  and               colourable  action  which  was  sufficient  to               vitiate  the  advice  which  the  Council   of               Ministers  might  give to  the  President  for               resorting to Art. 356 of the Constitution. Lastly,  Mr. Niren De as also Mr. Garg submitted  that  Art. 356  would have no application to the facts of  the  present case. We shall now deal separately with the contentions raised  by counsel  for the parties.  As, regards the first  contention that the letter of 110 the  Home Minister to the Chief Ministers of the  plaintiff- States  amounted  to  a  directive  issued  by  the  Central Government,  it was clarified by counsel for the  plaintiffs that  the  Central  Government had no  authority  under  any provision  of  the Constitution to give a directive  to  the Chief Ministers in the matter concerning purely the  States. In the first place, a careful perusal and an adroit analysis of  the contents of the letter does not at all show that  it amounts  to a directive given by the Central  Government  to the  Chief  Ministers.   Although  the  Home  Minister   has

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expressed  his  views in the matter, but in  the  concluding portion  of  the  letter he has  merely  advised  the  Chief Ministers   without   interfering   with   their    absolute discretion.  The concluding portion of the letter  extracted thus-               I would, therefore earnestly command for  your               consideration   that  you  may   advise   your               Governor  to  dissolve the State  Assembly  in               exercise  of powers under Article  174(2)  (b)               and seek a fresh mandate from the  electorate.               This  alone would in our considered  view,  be               consistent with constitutional precedents  and               democratic practices." Clearly shows that no compulsion was brought to bear on  the Chief Ministers by the Home Minister and he sought to  state certain facts with great stress for the consideration of the Chief  Ministers.   The words "earnestly  commend  for  your consideration  that  you may advise" clearly show  that  the Home  Minister sought to give a friend advice to  the  Chief Ministers  as  to  what  they should  do  in  the  facts  an circumstances  of  the situation.  The  words  "may  advise" further  indicate that the Home Minister did not  intend  to give  any mandator)directions to the Chief Ministers in  the matter.   In of the words, the aforesaid letter if  properly construed  is  no  more than an act  of  political  courtesy containing a suggestion or an advice or a fervent appeal  to the Chief Ministers lo consider the desirability of advising the  Governors  to dissolve the Assemblies in  view  of  the facts and circumstances disclosed in the said document.   It is  in no measure binding on the Chief Ministers and  it  is open  to  them  to refuse to act on  the  gratuitous  advice tendered by the Home Minister which the Chief Ministers have already done.  Reading the letter as a whole, as I do, I  am unable  to  regard the letter as a directive issued  by  the Central Government and as contemplated by Arts. 256 and  257 of  the Constitution of India.  In fact Art. 256 which  runs thus "Obligation of States and the Union ;               The executive power of every State shall be so               exercised  as  to ensure compliance  with  the               laws made by Parliament and any existing  laws               which  apply in that Stale, and the  executive               power of the Union shall extend to the  giving               of such directions to a State as may appear to               the  Government of India to be  necessary  for               that purpose." clearly defines the limits within which the executive  power of  Parliament may exist and the directions contemplated  by Art. 256 can be given to the States only within the  limited sphere  as  prescribed  by Art. 256  i.e.,  in  relation  to existing laws made by Parliament and those 111 laws which apply in the States.  Article 257 contains a note of  warning  and caution to both the Union  and  the  States against  functioning  in  such  a way so  as  to  impede  or prejudice  exercise  of the executive power  of  the  Union. Article 257 contains a further restriction on the Government of India in that the power has to be exercised only for  the purposes mentioned in Arts. 256 and 257. With due respects of my Lord the Chief Justice, I am  unable to subscribe to his view that the directive contained in the letter  must be carried out, as I am clearly of the  opinion that   the  letter  does  not  amount  to  a  directive   as contemplated  by Arts. 256 and 257 of the  Constitution  and cannot  be  binding on the Chief Ministers  as  it  pertains

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purely to the States concerned, namely, giving of the advice to  the  Governors for dissolution of the  Assemblies.   Our Constitution  contains a well distributed system  of  checks and balances on the various constituents, namely, the Union, the   States,  the  Executive,  the  Legislature   and   the Judiciary.    An   analysis  of  the   provisions   of   the Constitution  would show that a separate sphere for each  of the  constituent units has been carved out and they have  to function  within the limits of their sphere, or  within  the limits  of the orbit, as my lord the Chief Justice  has  put it.   In order to ensure a smooth and  efficient,  pragmatic and purposeful working of the Constitution, it is  necessary that  the Union and the States should work n close  coopera- tion  and  absolute  coordination  with  each  other.    Any confrontation  may lead to a constitutional breakdown  which may  be  avoided in all circumstances.   Under  Art.  174(2) clauses  (a) and (b) the Governor has the power to  prorogue the  House or to dissolve the Legislative Assembly.   It  is obvious that this power has to be exercised by the  Governor generally  on the advice of the Council of  Ministers.   The Chief  Minister, as the head of the Council of Ministers  in the  State,  has  the undoubted  discretion  to  advise  the Governor to dissolve the Assembly if a particular  situation demands  such a step.  The Chief Minister is the best  judge to  assess  the  circumstances under which  such  an  advice should  be  given to the Governor.  The  Central  Government cannot  interfere  with this executive power  of  the  State Government  by giving directions under Art. 256 or Art.  257 of the Constitution, because the dissolution of the Assembly by the Governor is purely a matter concerning the State  and does  not fall within the four comers of either Art. 256  or Art. 257 of the Constitution. It  was also contended that the direction contained  in  the letter   of   the  Home  Minister  amounts  to   a   serious interference  with  the federal set-up contemplated  by  the Constitution and is likely to bring the autonomy enjoyed  by the  States  into jeopardy.  My Lord the Chief  Justice  has dealt  with the federal aspect of the Constitution in  great length  and has pointed out that while our  Constitution  is based  on a federal pattern it is, to quote Dr. Ambedkar  "a tight mold of Federalism" so that it can move from a federal to unitary plane, according as the situation requires.   The federal   nature  of  our  Constitution  has  been   clearly explained  by  my Lord the Chief Justice and I  fully  agree with  his  views  and have nothing useful to  add.   It  is, however,  not  necessary  for me to dilate  on  this  point, because in 112 my view the letter of the Home Minister does not amount to a directive at all and therefore the question of  interference with the autonomous rights of the State Government does  not arise.   As to what would have happened if a  directive  was given  by the Central Government in a matter like this is  a purely  hypothetical  question which does not call  for  any answer in the facts and circumstances of the present case as the same does not arise.  In this view of the matter it-  is obvious  that  the  plaintiffs cannot get  a  relief  for  a declaration  that  the letter amounted to  a  directive  and being against the authority of law was ultra vires and hence not binding on the plaintiffs.  In fact it seems to me  that the  plaintiffs  themselves  did not take the  letter  as  a directive  at  all and had, therefore, written back  to  the Home Minister refusing to accept the advice given to them. The  next question that arises for consideration is  whether the  letter  of  the Home Minister amounts to  a  threat  to

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dissolve the Assembly.  Although there are no clear words in the  letter  or in the interviews to show that any  kind  of threat  or  force  was  used  against  the  Chief  Ministers concerned,  but  even assuming that the letter  contained  a veiled  threat,  I  fail  to see what  kind  of  relief  the plaintiffs  could  get,  even  if this  is  so.   The  Chief Ministers  of  the  States  had  the  right  to  advise  the Governors  to dissolve the Assemblies or not to do so.  Even if there was a threat given by the Home Minister they  could have  ignored  the threat because the right  to  advise  the Governors  to dissolve the Assemblies belonged to the  Chief Ministers  of the States themselves, and as indicated by  me the  Central Government had no right to interfere with  this discretion of the Chief Ministers. Mr.  Garg appearing for the petitioners, however,  submitted that  the  action of the Central Government  amounted  to  a threat  of the fundamental right of the petitioners  and  be was  entitled  to  ask for  an  injunction  restraining  the Central Government from resorting to Art. 356.  In the first place,  I  have  already held that the  petitioners  had  no fundamental right at all so as to approach this Court  under Art.  32  of the Constitution.  Assuming that they  had  the right the threat was not so imminent and the prayer made  by the  petitioners was premature as no action appears to  have been  taken by the Central Government at the time  when  the petitions  were filed.  Finally, if the  Central  Government had  a  constitutional  power to  advise  the  President  to dissolve the Assemblies under Art. 356, the Courts could not interfere  with  the  exercise of that  power,  because  the fundamental right of the Petitioners itself existed so  long as  the  Assembly  was not dissolved.  Article  172  of  the Constitution  itself  provides that the  Assembly  of  every State  shall  continue  for  six  years,  unless   dissolved earlier.  The petitioners therefore could not have a  better right than what was conferred by Art. 172.  If the  Assembly was  dissolved earlier than six years, i.e. before its  full duration  expired, under the provisions of the  Constitution itself  no complaint could be made by the  petitioners  that there  had been an infringement of their fundamental  right. It  was  not a case where the petitioners  had  indefeasible right to property which itself was threatened.  The right of the petitioners, if any, was merely a temporary and inchoate right.  For these reasons, therefore, even 113 if the letter of the Home Minister be treated to be a veiled threat,  the  petitioners cannot get any  relief  from  this Court. Coming  to  the  third  contention  that  the  circumstances mentioned in the letter did not constitute sufficient reason for  dissolution of the Assemblies under Art. 356, the  same was  repelled by the Additional Solicitor-General mainly  on the ground that the Courts could not go into the sufficiency or  adequacy  of  the materials on the basis  of  which  the Council  of Ministers of the Central Government  could  give any  advice to the President.  It was also argued that  this matter was not a justiciable issue.  In order to answer this contention  we  have  to  consider  two  different   facets. Firstly,  whether or not the issue was  justiciable.   Apart from Cl. (5) of Art. 356 which gives the order passed by the President under this Article complete immunity from judicial scrutiny  it  was pointed out by the  Additional  Solicitor- General  that  even before Cl. (5) which was  added  by  the Constitution (Forty second Amendment) Act, 1976 the law laid down  by this Court, Privy Council and the High  Courts  was the  same.  Reliance was placed on a decision of  the  Privy

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Council  in Bhagat Singh and others v. The  King-Emperor,(") where  the Privy Council, dwelling on the  question  whether the  existence  of  an  emergency  was  justiciable  or  not observed thus :               " A state of emergency is something that  does               not   permit  of  any  exact  definition;   It               connotes  a  state  of  matters  calling   for               drastic action, which is to be judged as  such               by  some  one.  It is more than  obvious  that               that  some one must be the  Governor  General,               and  he  alone.  Any other view  would  render               utterly inept the whole provision.               x            x         x         x           x               x               Yet,  if the view urged by the petitioners  is               right,  the judgment of  the  Governor-General               could  he  upset  either  (a)  by  this  Board               declaring   that   once  the   Ordinance   was               challenged  in  proceedings by way  of  habeas               corpus the crown ought to prove  affirmatively               before  a  Court  that a  state  of  emergency               existed,  or  (b) by a finding of  this  Board               after  a  contentious and  protracted  inquiry               that  no state of emergency existed, and  that               the Ordinance with all that followed on it was               illegal.               In  fact,  the  contention  is  so  completely               without  foundation on the face of it that  it               would  be idle to allow an appellant to  argue               about it." A  similar  view  was taken by the federal  Court  in  Lakhi Naravan  Das v. Province of Bihar(2), where  describing  the nature and incidents of art Ordinance, the Court observed as follows :               "The  language  of the section  shows  clearly               that it is the Governor and the Governor alone               who  has  got  to satisfy himself  as  to  the               existence of circumstances necessitating the (1)  L.R. 58 I.A. 169, 172. (2)  [1949] F.C.R. 693. 699. 114 .lm15 promulgation of an Ordinance.  The existence of such  neces- sity  is not a justiciable matter which the Courts could  be called upon to determine by applying an objective test.’-’ The same view was taken by this Court in M/s S. K. G.  Sugar Ltd.  v.  state of Bihar and others(1) where it was observed thus : "It is however well-settled that the necessity of  immediate action and of "Promulgating an Ordinance is a matter  purely for the subjective satisfaction of the Governor.  He is  the sole  Judge  as  to  the  existence  of  the   circumstances necessitating the making of an Ordinance.  His  satisfaction is  not  a justiciable matter.  It cannot be  questioned  on ground of error of judgment or otherwise in court-see  State of Punjab v. Sat Pal Dang (1969) 1 S.C.R. 633." The  Andhra Pradesh High Court has also expressed  the  same view  in In re.  A. S. Sreeramulu(2) where it  was  observed thus : "We have seen that there is a wide range of situations  when the  President  may act under Article  356.   The  important thing to notice is that the Constitution does not  enumerate the situations and there is no ’satisfactory criteria for  a judicial determination’ of what are relevant considerations. The very absence of satisfactory criteria makes the question

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one which is intrinsically political and beyond the reach of the  Courts.   The  considerations which  are  relevant  for action   under  Article  356  and  the  weighing  of   those considerations  appear  to be clearly matters  of  political wisdom, not for judicial scrutiny." I  find myself in complete agreement with  the  observations made by the learned Judge. The  same  view was taken by another Division Bench  of  the Andhra  Pradesh  High Court in S. R. K.  Hanumantha  Rao  v. State of Andhra Pradesh. (3) It is obvious that exercise of discretion under Art. 356  by the  President is purely a political matter and  depends  on the  advice  that  the President gets from  the  Council  of Ministers.   The Council of Ministers are the best judge  to assess   the  needs  of  the  situation,   the   surrounding circumstances,  the feelings and aspirations of  the  people and the temper of the times.  If on an overall assessment of these  factors the Council of Ministers in  their  political wisdom  or  administrative  expediency decide  to  tender  a particular advice to the President.  The Courts cannot enter into   this  arena  which  is  completely  beyond   judicial scrutiny.   Even  if the Chief Ministers did  not  think  it advisable  to dissolve the Assemblies, their views  are  not binding (1)  [1975] 1 S.C.R. 312, 317. (2)  A.I.R. 1974 A.P. 106. (3)  (1975) 2 A.W.R. 277. 115 on  the Central Government which can form its  own  opinion. The exercise of the power under Art. 356 by the President is a  matter  which falls directly within the exercise  of  the powers of the Union and the Council of Ministers need not be guided  by the views of the Chief Ministers in the  exercise of this power.  In colegrove v. Green(1) Justice Frankfurter very aptly observed thus :               "We are of opinion that the petitioners ask of               this  Court what is beyond its  competence  to               grant.   This  is  one  of  those  demands  on               judicial  power which cannot be met by  verbal               fencing  about  "jurisdiction."  It  must   be               resolved  by  considerations on the  basis  of               which  this  Court,  from time  to  time,  has               refused to intervene in controversies.               It  is  hostile  to  a  democratic  system  to               involve  the judiciary in the politics of  the               people.  And it is not less pernicious if such               judicial   intervention  in   an   essentially               political   contest  be  dressed  up  in   the               abstract phrases of the law." It  is manifestly clear that the Court does not possess  the resources  which are in the hands of the Government to  find out  the political needs that they seek to subserve and  the feelings  or  the aspirations of the nation that  require  a particular  action to be taken at a particular time.  It  is difficult  for  the Court to embark on an inquiry  of  that type.   Thus what the Constitution (Forty-second  Amendment) Act,  1976 has done by adding clause (5) to Art. 356  is  to give  statutory  recognition  to the law laid  down  by  the Courts long before. Mr.  Niren  De  submitted in reply to the  argument  of  the learned  Additional Solicitor-General that in two cases  the Privy  Council  had  taken a contrary  view.   Reliance  was placed  on a decision of the, Privy Council in King  Emperor v.  Benoari  Lal  Sarma  (2) where  Viscount  Simon,  L.  C. observed thus :

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             "Their  Lordships entirely agree with  Rowland               J’s  view  that such circumstances  might,  if               necessary,    properly   be   considered    in               determining  whether an emergency had  arisen;               but,  as that learned judge goes on  to  point               out,  and, as had already been  emphasized  in               the  High  Court,  the  question  whether   an               emergency  existed at the time when  an  ordi-               nance  is made and promulgated is a matter  of               which the Governor-General is the sole  judge.               This proposition was laid down by the Board in               Bhagat Singh v. The King Emperor-L.R. 58  I.A.               169". Although  the  first  part  of  the  observations  of  their Lordships  supports  the argument of Mr. Niren  De  to  some extent,  the second part of the observations  clearly  shows that their Lordships had fully endorsed the proposition laid down by the Court in Bhagat Singh’s case (supra).  In  these circumstances, therefore, this authority does not appear  to be of any assistance to Mr. Niren De. (1)  [1945] 328 U.S. 549, (2)  L.R. 72 I.A. 57, 64. 116 Reliance  was  also  placed  on  Padfield  v.  Minister   of Agricultural,  Fisheries and Food() where Lord  Denning,  M. R., observed as follows :               "If it appears to the court that the  Minister               has  been,  or must have been,  influenced  by               extraneous  considerations which ought not  to               have   influenced  him-or,   conversely,   has               failed,  or  must have failed,  to  take  into               account  considerations  which ought  to  have               influenced   him-the   court  has   power   to               interfere." These observations, however, do not support the argument  of Mr.  Niren De at all.  Even if an issue is not  justiciable, if the circumstances relied upon by the executive  authority are  absolutely extraneous and irrelevant, the  Courts  have the  undoubted power to scrutinise such an exercise  of  the executive  power.   Such a judicial scrutiny  is  one  which comes  into  operation when the exercise  of  the  executive power is colourable or mala fide and based on extraneous  or irrelevant considerations.  I shall deal with this aspect of the  matter a little later.  It is, however, ’sufficient  to indicate here that an order passed under Art. 356 is  immune from  judicial  scrutiny  and unless it is  shown  that  the President  has been guided by extraneous  considerations  it cannot be examined by the Courts. This brings us to the second facet of this argument, namely, whether the facts stated in the letter of the Home  Minister or  in the press or the radio interviews are  sufficient  to enable  the Central Government to take a decision to  advise the  President  to dissolve the State Assemblies.   We  have already  extracted the important portions of the  statements made  in  the letter of the Home Minister and in  the  radio interview of the Law Minister and the Press interview of the Home  Minister.  These assertions made by the  Ministers  of the  Central  Government  have,  however,  to  be  read  and understood  in  the light of  the  prevailing  circumstances which  are established from the notifications issued by  the Government  of India from time to time which we  shall  deal with hereafter. By  virtue  of Ministry of Home  Affairs,  Notification  No. G.S.R.  353 (E) dated June 26, 1975 the President  of  India issued  a  proclamation  declaring that  a  grave  emergency

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exists  whereby  the, security of India  was  threatened  by internal  disturbance.   This notification was  followed  by another Ministry of Home Affairs Notification No. G.S.R. 361 (E) dated June 27, 1975 issued by the President under clause (1)  of Art. 359 of the Constitution by which the  right  of any  person  to move any Court for the  enforcement  of  the rights conferred by article 14, article 21 and article 22 of the Constitution were suspended for the period during  which the  proclamation of emergency was in force.  Then  followed the Maintenance of Internal Security (Amendment)  Ordinance, 1975 (No. 4 of 1975) which was promulgated an June 29,  1975 and  published  in the Government of India  Gazette,  Extra- ordinary,  Part 11, Section I dated June, 1975. pp.  213-15. Section 5 of the Ordinance added s. 16A and sub-s. (1)  L.R. [1968] A.C. 997,1007. 117 (6)  of  s. 16A provided that it shall not be  necessary  to disclose to any     person detained under a detention  order the grounds on which the order  had  been  made  during  the period the declaration made in respect of such a person  was in force.  This was followed by the Maintenance of  Internal Security  (Amendment) Act, 1976 passed on January  25,  1976 which added sub-s. (9) to s. 16A of the principal Act  which provided that the grounds on which an order of detention was made  or purported to be made under s. 3 against any  person in  respect of whom a declaration was made under sub-s.  (2) or sub-s. (3) and any information or materials on which such grounds  or a declaration under sub-s. (2) or a  declaration or  confirmation  under sub-s. (3) etc. was made was  to  be treated  as  confidential and shall be deemed  to  refer  to matters of State and it would be against the public interest to disclose the same.  Thus the effect of this provision was that  no Court could call for the materials on the basis  of which  the order of detention was passed.  In  other  words, any  detention  made  during  this  period  was  put  beyond judicial scrutiny.  While this state of affairs existed, the President by order dated January 18, 1977 dissolved the  Lok Sabha under Art.- 85 of the Constitution as would appear the Lok  Sabha Secretariat Notification dated January  19,  1977 published in the Government of India Gazette  Extraordinary, Part  I,  Section  1,  dated January  19,  1977.   This  was followed  by  notification dated February 10,  1977  by  the Ministry  of Law.  Justice and Company Affairs passed  under sub-s. (2) of s. 14 of the Representation of the People Act, 1951  by which the President called upon  the  parliamentary constituencies  to  elect  members in  accordance  with  the provisions of the said Act and of the rules and orders  made thereunder.  In pursuance of this notification the  Election Commission  of India issued a notification on the  same  day appointing  the  dates of elections to be  held  in  various constituencies  which varied from 16th to 20th March,  1977. According to this Notification there were 54  constituencies in  Bihar,  10  constituencies in  Haryana,  4  in  Himachal Pradesh, 40 in Madhya Pradesh, 25 in Rajasthan, 85 in  Uttar Pradesh,  42 in West Bengal, 21 in Orissa and 13 in  Punjab. All  these constituencies elected their representatives  and from the results of the Lok Sabha as published in the Indian Express  of  March 25, 1977 it would appear that out  of  85 constituencies  in  Uttar  Pradesh not  a  single  candidate belonging to the Congress party was returned.  Similarly  in Bihar out of 54 constituencies not a single candidate of the Congress   party   was  elected.   Similarly   out   of   13 constituencies  in Punjab and 10 constituencies  in  Haryana not  a single candidate of the Congress party was  returned. The same position obtained in Himachal Pradesh where out  of

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4  constituencies  not  a  Single  Congress  candidate   was elected.   In the States of Madhya Pradesh, Rajasthan,  West Bengal and Orissa, the Congress party appears to have  fared very  badly  also.  In Madhya Pradesh out of 40  seats,  the Congress party could bag only one seat, whereas in Rajasthan also the Congress met with a similar fate where it got  only I  seat out of 25 seats.  In Orissa, also the  Congress  got only  4  seats out of 21 and in West Bengal it  got  only  3 seats  out  of 42.  It would thus appear that  in  the  nine states referred to above, the Congress party was practically routed.  It is also clear that the voters who voted for  the candidates standing for the Lok Sabha in the States 118 were more or less the same who had voted the Congress  party in the State Assemblies during the previous elections. Thus, summarising the position in short, it is clear               (1)   that  a grave emergency was  clamped  in               the whole country;               (2)   that civil liberties were withdrawn to a               great extent;               (3)   that important fundamental rights of the               people were suspended;               (4)   that strict censorship on the press  was               placed; and               (5)   that  the judicial powers were  crippled               to a large extent. In  the  new elections the Congress party suffered  a  major reverse in the nine states and the people displayed complete lack  of confidence in the Congress party.   The  cumulative effect  of the circumstances mentioned above may lead  to  a reasonable  inference  that the people had given  a  massive verdict not only against the Congress candidates who  fought the elections to the Lok Sabha but also to the policies  and ideologies  followed by the Congress Governments as a  whole whether  at  the Centre or in the States during  the  twenty months  preceding the elections.  In these circumstances  it cannot be said that the inference drawn by the Home Minister that the State Governments may have forfeited the confidence of  the people is not a reasonable one or had no nexus  with the  action  proposed to be taken under Art.  356  for  dis- solution of the Assemblies. It  was in the background of these admitted facts  that  the Central  Government  formed  the  opinion  that  the   State Governments  should  seek a fresh mandate  from  the  people because they ceased to enjoy the confidence of the people of the   States  concerned.   In  other  words.   the   Central Government  thought that from the nature of  the  concerned, results  of  the elections a reasonable inference  could  be drawn that the State Governments concerned had forfeited the confidence  of  the  people.  It  was,  however,  vehemently argued  by the plaintiffs and the petitioners that the  mere fact  that the Congress party lost its majority in  the  Lok Sabha  was  not  sufficient  to  lead  to  the  irresistible inference  that the Congress Governments in the States  also forfeited  the confidence of the people in the States  where they  were  in  overwhelming  majority so  as  to  call  for dissolution  of the Assemblies and fresh elections.  Mr.  H. R.  Gokhale, appearing for the State of Punjab, argued  that even  in the past it had often happened that the people  had voted candidates of one party for the Lok Sabha and  another party for the States and a similar distinction seems to have been made by the voters this time also.  The instance  cited by  Mr.  Gokhale  was  of  1967  elections.   This  solitary circumstance  in  my opinion does not appear to be  of  much avail, because having regard to the circumstances prevailing

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before the last elections what inference should be drawn  is a matter to be considered by the Central Government and  not by  the Courts.  The Central Government, on a  complete  and overall   assessment  of  the  election  results   and   the circumstances  prevailing during the emergency  as  detailed above, in that the funda- 119 mental rights of the people were suspended, the right of the detenus  to  move  the Courts was  almost  crippled,  strict censorship  was  placed  on the press,  and  this  state  of affairs having prevailed for about 20 months when  elections were  held after which the people gave their  clear  verdict against  the Congress so far as the Lok Sabha election  were concerned may have had some justification for coming to  the conclusion  that  the State Governments  had  forfeited  the confidence of the people.  It is true that if the opinion of the Central Government was based on extraneous or irrelevant materials or it was guided by purely personal considerations or  ulterior  motives,  the Court could have  held  such  an action to be mala fide and struck it down.  In Dr.  Akshabar Lal  & Ors. v. Vice Chancellor, Banaras Hindu  University(1) this  Court  explained as to what was the  true  nature  and character  of a mala fide action, and quoted  the  following observations of Warrington, L. J., where it observed thus :               "The appellants characterised the whole action               as lacking in bona fide.  The action can  only               be questioned if it is ultra vires, and  proof               of  alien  or  irrelevant motive  is  only  an               example  of the ultra vires character  of  the               action,  as observed by Warrington, L. J.,  in               the following passage :               "My  view then is that only case in which  the               Court  can interfere with an act of  a  public               body which is, on the face of it, regular  and               within its powers, is when it is proved to  be               in  fact ultra vires, and that the  references               in the judgments in the several cases cited in               argument  to bad faith, corruption, alien  and               irrelevant  motives, collateral  and  indirect               objects,  and  so forth, are  merely  intended               when  properly understood as examples of  mat-               ters which if proved to exist might  establish               the  ultra  vires character of the  action  in               question." " I  find myself in complete agreement with  the  observations made by Warrington, L. J., extracted above. But  the  serious question to be considered here  is  as  to whether  the action of the Central Government in  trying  to persuade  the  Chief Ministers to advise  the  Governors  to dissolve  the  Assemblies  can be mid to  be  mala  fide  or tainted  by personal motives or  extraneous  considerations. It  was  suggested that the present ruling party  wanted  to have a President of its own choice and, therefore, it wanted to dissolve all the Assemblies and order fresh elections  so that  they  are able to get candidates of their  own  choice elected  to  the various Assemblies.  In  the  first  place, there is no reliable material to prove this fact or to  show that  the Central Government was in any way swayed by  those considerations.   Secondly, if the Congress  Governments  in the  States Concerned Were so sure of their position,  I  do not  see any reason why they should not be able to face  the challenge  and  after taking fresh mandate from  the  people vindicate their stand.  Furthermore, we have to look at  the circumstances catalogued above in order to find out  whether an  inference  drawn by the Central  Government  from  those

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circumstances  can  be said to be a  reasonable  one.   Even assuming (1)  [1961] 3 S.C.R. 386. 120 that  from  the  circumstances mentioned  above,  the  other inference   that  the  electorate  might  choose   different candidates  for  the  States and the Lok  Sabha  is  equally possible  that  by itself does not make the  action  of  the Central  Government  mala  fide  or  ultra  vires.   If  two inferences  are reasonably possible, the very foundation  of mala  fide  disappears.  On the other  hand,  the  important question  to ask oneself is, could under  the  circumstances mentioned  above  and the manner in which  the  people  have acted  and reacted to the emergency and the  post  emergency era by returning a massive verdict against the Congress,  it be  said  that the Central Government was guided  by  purely irrelevant or inept considerations or external or extraneous motives   in  wanting  to  have  fresh  elections   to   the Assemblies?   The  answer  must be in the  negative.   I  am convinced  that having regard to the circumstances  detailed above,  the  view  taken by the Home Minister  and  the  Law Minister   cannot  be  said  to  be  either  extraneous   or irrelevant or mala fide.  The contention of the counsel  for the  plaintiffs  and  the  petitioners  on  this  score  is, therefore, overruled. There  is yet another facet of this problem.  Assuming  that the  reasons and the grounds disclosed by the Home  Minister in his letter are extraneous or irrelevant this is only  the first  stage of the matter.  The second stage-which  is  the most vital stage-is the one which comes into existence  when the  Council of Ministers deliberate and finally  decide  to advise  the  President.  As to what further grounds  may  be considered  by them at that time is anybody’s guess.  It  is quite  possible that the Council of Ministers may  base  the advice  on grounds other than those mentioned in the  letter of the Home Minister.  Article 74(2) which runs thus :               "(2) The question whether any, and if so  what               advice  was  tendered  by  Ministers  to   the               President  shall not be inquired into  in  any               court." completely  bars any inquiry by any Court into  the  matters which  form  the subject-matter of the advice given  by  the Council   of  Ministers  to  the  President.   This   Court, therefore,   cannot  probe  into  that  matter.   In   these circumstances,  the argument of counsel for  the  plaintiffs and the petitioners cannot be accepted at this stage.  It is true that while an order passed by the President under  Art. 356 is put beyond judicial scrutiny by cl. (5) of Art.  356, but  this  does  not  mean  that  the  Court  possesses   no jurisdiction  in the matter at all.  Even in respect of  cl. (5)  of  Art.  356,  the Courts have  a  limited  sphere  of operation  in that on the reasons given by the President  in his  order  if  the Courts find  that  they  are  absolutely extraneous and irrelevant and based on personal and  illegal considerations  the Courts are not powerless to strike  down the  order on the ground of mala fide if proved.   We  must, however,  hasten  to add that this does not  mean  that  the Central Government has a free licence to pass any  arbitrary or despotic order or to clothe it with a blanket power to do any  thing it Ekes against the well established legal  norms or  principles  of political ethics.  Such an  arbitrary  or naked action in a suitable case may amount to a fraud on the Constitution  and  destroy  the  very  roots  of  the  power exercised.    In  fact  the   Additional   Solicitor-General candidly conceded that if the

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121 action under Art. 356 is absolutely and demonstrably  absurd or  perverse or self-evidently mala fide and there is  total absence of any nexus whatsoever between the action taken and the scope and object of Art. 356, judicial intervention  may be  available in such a case.  For the reasons that  I  have already  given,  this is, in my opinion,  not  the  position here.  We, however, think that this is the least expected of such a high and mature authority as the Council of Ministers of the Central Government.  We might also like to stress the fact  that as the reasons given by the Council of  Ministers in  tendering  their  advice  to  the  President  cannot  be inquired   into  by  the  Courts,  we  expect  the   Central Government in taking momentous decisions having far reaching consequences  on the working of the.  Constitution,  to  act with  great care and circumspection and with some amount  of objectivity  so  as to consider the pros and  cons  and  the various shades and features of the problems before them in a cool  and collected manner.  The guiding principles in  such cases  should be the welfare of the people at large and  the intention  to strengthen and preserve the Constitution,  and we  do  hope  that  this matter  will  receive  the  serious attention of the Government.  The stamp of finality given by Cl.  (5)  of Art. 356 of the Constitution does not  imply  a free licence to the Central Government to give any advice to the  President and get an order passed on reasons which  are wholly irrelevant or extraneous or which have absolutely  no nexus  with  the passing of the Order.  To this  extent  the judicial  review  remains.  In the  instant  case,  however, considering  the circumstances indicated above, I feel  that the  grounds  taken by the Home Minister have  got  a  clear nexus with the issue in question, namely, the passing of  an order  by the President under Art. 356 in order to  dissolve the State Assemblies.  The argument of mala fide put forward by  the  plaintiffs  and  the  petitioners  is,   therefore, rejected. I now come to the last contention raised by counsel for  the plaintiffs and the petitioners.  Mr. Garg, appearing for the petitioners vehemently   contended   that   Art.   356   has absolutely no application to the facts of    the     present case,  as  it does not give any power to  the  President  to dissolve  the Assembly.  In order to examine  this  argument closely,  it may be, necessary to extract the relevant  part of Art. 356 thus :               "356.  (1)  If  the President  on  receipt  of               report  from  the the Governor of a  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-               (a)   assume  to  himself all or  any  of  the               functions  of the Government of the State  and               all  or  any  of  the  powers  vested  in   or               exercisable  by  the Governor or any  body  or               authority   in  the  State  other   than   the               Legislature of the State;               xx               x            x              x               x               (3)   Every  proclamation under  this  article               shall be laid before each House of  Parliament               and            shall, except               122               where it is a proclamation revoking a previous               Proclamation,   cease   to  operate   at   the

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             expiration  of  two months unless  before  the               expiration of that period it has been approved               by resolution of both Houses of Parliament :               x          x            x        x           x               x               (5)   Notwithstanding    anything   in    this               Constitution,         the satisfaction of  the               President  mentioned  in Clause (1)  shall  be               final  and conclusive and shall not  be  ques-               tioned in any court on any ground". The  first part of Art. 356(1) gives power to the  President to  issue a proclamation if he is satisfied on a  report  of the   Governor  of  the  State  or  otherwise  to   make   a proclamation.  In the instant case as there is no report  of the Governor of any of the States, the President can   act on  other methods which includes the advice given to him  by the  Council  of  Ministers.   Another  condition  that-  is necessary for the   application  of  Art. 356  is  that  the President must be satisfied that the    Government  of   the State cannot be carried on in accordance with the provisions of the Constitution.  Great stress was laid on this part  of the ingredient of Art. 356(1) by counsel for the  plaintiffs and the Petitioners who contended that there is not an  iota of material to show that there was any apprehension that the Government  of  the  State  could  not  be  carried  on   in accordance With the provisions of the Constitution or  there was  any break-down of the Constitutional  machinery.   This is,  however,  a  matter which  depends  on  the  subjective satisfaction  of  the President based on the advice  of  the Council  of Ministers.  It is not for the Court to  make  an objective assessment of this question as if it were  sitting in appeal over the advice given by the Council of  Ministers or the order passed by the President, Even so, there can  be no  doubt that having regard to the circumstances  in  which the Congress was completely routed in the nine States during the  Lok  Sabha  Elections, the  possibility  of  the  State Governments having lost the confidence of the people  cannot be ruled out.  If so, to continue in office even after  this would   be  purely  undemocratic  in  character.    As   our Constitution   is   wedded  to  a  democratic   pattern   of Government,  if a particular State Government ceases  to  be democratic or acts in an undemocratic fashion, it cannot  be said  that  the  Government of the State is  carried  on  in accordance with the provisions of the Constitution.  Such  a course of action is opposed to the very tenor and spirit  of the Constitution.  In these circumstances, therefore, on the facts  and  materials  placed before  us,  the  second  part mentioned  in  Art.  356 appears to have  been  prima  facie satisfied  and the argument of the learned counsel  for  the plaintiffs  and  the  petitioners  on  this  ground  is  not tenable. It  was then contended by Mr. Garg that a perusal of  clause (3)  of Art. 356 and the proviso thereof clearly shows  that the  proclamation  can operate only for the  period  of  two months  and automatically expires at the expiration of  this period.  It is argued that if the Assembly is dissolved  and this  action  is  not  capable of  being  confirmed  by  the Parliament within two months, then it is incapable of 123 ratification   by   the  Parliament,  and   therefore,   the reasonable  inference  should  be  that  Art.  356   clearly excludes  any power to do anything which cannot be  ratified including dissolution of the Assemblies in the States.   The argument  is undoubtedly attractive and interesting, but  on closer scrutiny it does not impress me.  In the first place,

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under  Art. 356(1) (a) the President is empowered to  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.  The power  to  dissolve  the Assembly  is  contained in Art. 174(2) of  the  Constitution which  empowers  the Governor to prorogue  or  dissolve  the Legislative  Assembly.   This very power by  force  of  Art. 356(1)  (a)  is conferred on the President  implicitly,  and once  this  power is conferred by the  application  of  Art. 356(1)  (a) the President has the undoubted jurisdiction  to dissolve the Legislative Assembly by assuming the same power which the Governor has under Art. 174(2).  A Division  Bench of the Kerala High Court in K. K. Aboo v. Union of India and others,(1) while interpreting this particular aspect of Art. 356  observed as follows :               "Art.  356(1)  (b)  empowers  the   President,               whenever  he is satisfied of a  Constitutional               breakdown   in   the   State,   to   issue   a               Proclamation  declaring inter alia, "that  the               powers  of the Legislature of the State  shall               be  exercisable by or under the  authority  of               Parliament." That necessarily implies a  power               to dissolve the State Legislature.  No  resort               therefore need be had by the President to  the               provisions of Art. 356 (1) (a) read with  Art.               172   or  Art.  174  to  dissolve  the   State               Legislative  Assembly.  The power to  dissolve               the State Legislature is implicit in Cl.  _(1)               (b) of Art. 356 itself". I full endorse the aforesaid observations which lay down the correct law on the subject on this particular aspect of  the matter. As  Art. 356 occurs in Part XVIII of the Constitution  which relates to emergency provisions, it is obvious that when the Assembly  is  dissolved  no  Council  of  Ministers  is   in existence and, therefore there is no occasion for either the Governor or the President to take the advise of the  Council of   Ministers  of  the  State.   In  these   circumstances, therefore, I am clearly of the opinion that Art. 356(1)  (a) confers the powers of the Governor under Art. 174(2) on  the President in clear and categorical terms and I cannot  infer exclusion  of  the  power  merely from  the  fact  that  the proclamation  is  to expire after two months.  Even  if  the order  dissolving  the Assembly cannot be  ratified  by  the Parliament  under  Cl.  (3)  of  Art.  356  that  makes   no difference,  because Cl. (3) does not touch  actions  taken, proceedings   completed,  consequences  ensued  and   orders executed.   At  the  time  when  Parliament  exercises   the control,  all these actions have already taken place and  it is not possible to put the clock back or to reverse  actions which have already been taken and completed, nor was such  a contingency  contemplated  by the founding  fathers  of  the Constitution.   I  am,  therefore,  unable  to  accent   the argument of Mr. Garg on this point. (1) A.I.R. 1965 Ker. 229, 231. 9-722SCI/77 124 It  was  further argued by Mr. Garg as also  by  Mr.  Bhatia appearing  for  the  State of  Himachal  Pradesh  that  even assuming that Art. 356() (a) confers the power given to  the Governor  by Art. 174(2) it would be a proper  exercise  of the  discretion  of the President to prorogue  the  Assembly instead  of  taking  the extreme course  of  dissolving  it. This,  however,  is purely a matter which  lies  within  the domain  of  politics.   The  Court  cannot  substitute   its

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discretion for that of the President nor is it for the Court to  play the role of an Advisor as to what the President  or the  Council of Ministers should do in a  particular  event. The  Central Government which advises the President  is  the best  Judge of facts to decide as to what course  should  be adopted  in  a particular case, namely, whether  the  Legis- lative  Assembly should be prorogued or should be  dissolved and  it  is open to the President to take any of  these  two actions  and if he prefers one to the other, this matter  is beyond judicial review.  For these reasons, therefore, I  am clearly  of the opinion that Art. 356 does not  contain  any express or implied limitations on the nature or functions of the  Governor  which are to be exercised  by  the  President under Art. 356(1) (a).. I  generally  agree with my Lord the Chief  Justice  on  the other points lucidly discussed by him, except with regard to his observations regarding the theory of the basic structure of the Constitution on which I would refrain from expressing any  opinion, because the question does not  actually  arise for decision in this Case. These  are  my  reasons in-support of  the  unanimous  order passed by this Court on April 29, 1977 dismissing the  suits and writ petitions and rejecting the prayers for injunctions and interim reliefs. There will be no order as to costs. S.R.                 (Suits & Petitions dismissed). 125