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". 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 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 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 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, 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 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 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 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 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 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. 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] (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. (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 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 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 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
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
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,
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
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:-
“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
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
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
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;
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
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.
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
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,
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
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
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
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)
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
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
“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
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
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,
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
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
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
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.
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
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
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
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
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
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
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
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
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”,
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
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
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
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
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
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
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
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
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
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
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
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
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
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.
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
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.
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
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
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
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
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
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,
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
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
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
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-
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
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
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,
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
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
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
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.
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,
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
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.
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
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,
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
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
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
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
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
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
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
(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
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
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
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 :
“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
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
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
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
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
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
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
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
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
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 :
“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
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
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
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
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
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
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,
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
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