JUDGMENT
V.C. Daga, J.
1. These two Writ Petitions under Article 226 of the
Constitution of India have been referred to me in view of
the split judgment by the two learned Judges of the Goa
Bench of this Court. While Justice A.S. Aguiar was of
the view that these petitions ought to be allowed and Rule
granted therein be made absolute, another learned Judge,
Justice P.V. Hardas, took a view that these Writ
Petitions ought to be dismissed and Rule granted therein
be discharged. The Division Bench did not formulate
points of difference and ordered that these petitions be
placed before the Honble Chief Justice for being referred
to a third Judge. The learned Chief Justice was pleased
to refer these petitions for my opinion as a third Judge
under Clause 36 of the Letters Patent. That is how these
petitions were placed before me for hearing and opinion.
On maintainability of reference to a third Judge:
2. At the first instance, when these petitions
were placed on board for directions Shri S.G. Dessai,
learned Senior Counsel, at the relevant time, appearing
for the petitioners in Writ Petition No.88/2002 has raised
an objection to this reference being violative of Section
98(2) of Civil Procedure Code (C.P.C. for short).
According to him, no point of law arose for consideration
or at any rate, no point of law was framed or stated by
the learned Judges of the Division Bench which expressed
difference of opinions, inasmuch as the matter is referred
to a third Judge without following the procedure of
Section 98(2) C.P.C.; the reference to a third Judge is a
nullity.
3. The learned Advocate General appearing for the
State of Goa pointed out that Section 98(2) has no
application to the facts of these cases and that the
contention has no merit whatsoever and that the provision
of Section 98(3) has obviously been overlooked by the
learned counsel for the Petitioners. As per that
sub-section nothing in Section 98 shall be deemed to alter
or otherwise affect any provision of the Letters Patent of
any High Court. Admittedly, this High Court has Letters
Patent. The learned Advocate General pointed out that
Clause 36 of the Letters Patent provides that in the event
of difference of opinion between two Judges as to the
decision on any point, the case shall be heard upon that
point by one or more of the other Judges and the case must
be decided on the majority of the opinion. He relied upon
the judgment of the Apex Court in the case of S.P.G.
Committee v. M.P. Dass Chela, ,
wherein the judgment of the High Court of Punjab and
Haryana in Mahant Swaran Dass v. Shiromani Gurudwara
Parbandhak Committee, Amritsar, with other rulings taking the same view that
the provisions of Section 98(2) C.P.C. are not applicable
to High Courts which are governed by Letters Patent and
the matter can be referred to a third Judge on a
difference of opinion between the two Judges even on point
of facts.
4. In the above view of the matter, it is clear
that the reference does not suffer from any legal or
factual infirmity. All the questions and issues based on
facts and law involved in the petitions are open for the
opinion of the third Judge. In this backdrop, both
petitions were heard on merits to render my opinion on the
questions of fact and law both.
OUTLINE CHRONOLOGY.
5. Goa which was liberated on 19th December, 1961
along with Daman and Diu from 451 years of Portuguese
Colonial Rule, became the 25th State of Indian Union when
it was conferred Statehood on 30th May, 1987.
6. The State of Goa has a Legislative Assembly
with a strength of 40 elected members. The Governor is
the Head of State and is advised by the Council of
Ministers headed by the Chief Minister.
7. Goa, a tiny emerald land on the west coast of
India, with its natural scenic beauty, abundant greenery,
attractive beaches and temples and churches with
distinctive style of architecture and above all,
hospitable people with a rich culture milieu, has always
been suffering from bad political weather. In the recent
past, the evil of political defections has been a
political phenomenon in Goa. The other disturbing picture
of this phenomenon emerging on the screen of these
petitions is multiple acts of defections by the same
persons or set of persons; indifference on the part of
the defectors to political proprieties, constituency
preference or public opinion and the belief held by the
people and expressed in the press that corruption and
bribery were behind some of these defections. The
frequent crossing of the floor and changing allegiance
from one party to another by the legislators of the State
appears to have damaged the political fabric of the State
of Goa.
8. In order to appreciate the controversy, it
would be necessary to state brief matrix of facts leading
to the present petitions. Though the petitioners are
different but legal and factual challenges are identical.
Hence no separate outline chronology giving rise to these
two separate petitions is necessary.
9. The petitioners were the members of the Goa
State Legislative Assembly which came to be dissolved by
the impugned Order dated 27th February, 2002. The
petitioner in Writ Petition No.84/2002 was the Leader of
the Opposition in the House and was the Chief Minister
for some time till 24th November, 1999. He was required
to resign due to reduction in strength of his party Indian
National Congress, on account of defection of 11 members
of his party.
10. The challenge in the above two petitions is
to two Orders, both dated 27th February, 2002 bearing Nos.
G/2/2002/2881 and G/2/2002/2882 respectively; whereby the
Governor of Goa dissolved the State Legislative Assembly
with immediate effect and under second Notification
ordered the Council of Ministers headed by the Chief
Minister of Goa to continue to carry on functions as a
Council of Ministers until its successor takes office
under the Constitution. The Notification dated 27th
February, 2002 dissolving the Legislative Assembly reads
hereunder :-
” RAJ BHAVAN
ORDER
No. G/2/2002/2881
In exercise of the powers
conferred upon me under Article
174(2)(b) of the Constitution of
India, and all other powers enabling
me in that behalf, I, Mohd. Fazal,
Governor of Goa, on the advice of the
Council of Ministers, hereby dissolve
the Legislative Assembly of Goa, with
immediate effect.
Dona Paula.
Dated:27th February, 2002.(MOHD.FAZAL)
Governor of Goa
RAJ BHAVAN ”
11. The petitioners challenge the aforesaid Order
of the Governor dissolving the State Legislative Assembly
under Article 174(2)(b) of the Constitution of India being
unconstitutional, void and inter alia on the ground that
the Chief Minister in order to avoid to face the vote of
no-confidence which was imminent; opted for dissolution
of the House on the aid and advice of the Chief Minister
and his Council of Ministers; which was not likely to
continue for want of majority. The said action in their
opinion is contrary to the well settled principles
governing dissolution of Legislative Assembly.
12. It is alleged that on 13th February, 2002 the
House was summoned by the Governor for 13th March, 2002
for passing the Budget. The dissolution was ordered
within less than two weeks prior to the said meeting,
without taking into consideration the fact that the State
would be thrown into a state of financial crisis if the
Budget was not passed. The Governor did not even consider
the consequences of his dissolving the House prematurely.
The act of dissolution was a mindless act without any
concern for public welfare and meant only for satisfying
objectives of the party in power in the State.
13. It is further alleged that subsequent to the
Notification dated 13th February, 2002 convening the
meeting of the Legislative Assembly for approving the
Budget on 13th March, 2002, there was no change of
circumstances in the following two weeks preceding
decision to dissolve the Assembly on 27th February, 2002,
warranting dissolution of the House. The Chief Minister
being aware of the imminent loss of confidence in the
House, resorted to subterfuge and persuaded the Governor
to dissolve the House, on the alleged aid and advice of
the Chief Minister alleged to be supported by the Council
of Ministers. The dissolution of the House on the advice
of the Chief Minister, who did not command stable
majority, was an abuse of power on the part of the
Governor.
14. It is further alleged that the Chief Minister
reported at a Cabinet meeting on 27th February, 2002,
scheduled at 10.30 a.m. discussed the issue of the State
Assembly, despite the fact that the issue was not on the
Agenda circulated to the Ministers and despite the fact
that the Cabinet had not agreed to the dissolution, the
Chief Minister proceeded to meet the Governor at 11.15
a.m. on the same day and advised dissolution of the
Legislative Assembly. The Chief Minister produced before
the Governor the Cabinet advice for dissolution signed
only by himself. The advice of the Chief Minister was not
of the Council of Ministers but it was a decision taken by
the Chief Minister unilaterally with mala fide intent of
avoiding imminent fall of the Government which was clear
from the newspaper articles appearing in the daily
newspapers. The Governor has acted in undue haste without
even seeking any information from the Council of Ministers
or from the Leader of the Opposition. The Governor ought
not to have agreed to the dissolution of the Legislative
Assembly, since there were more than two years left for
the expiry of the term of the House.
15. It is further alleged that the mala fides
inherent in the advice of the Chief Minister percolated in
the decision making process of the Governor as such the
said decision stood vitiated, and that the Governor
faulted in the discharge of his constitutional duty. The
failure on the part of the Governor to explore the
continuation of the Assembly for full term is a failure on
the part of the Governor in protecting and upholding the
Constitution.
16. On the aforesaid canvas of facts, the
petitioners are seeking a declaration that both the
impugned orders of the Governor of Goa dated 27th
February, 2002 be declared as unconstitutional, null and
void and be set aside.
Subsequent events:
17. The respondent No.1 filed affidavit dated
10.7.02 affirmed by the Chief Secretary to the Government
of Goa bringing on record subsequent events which have
occurred during the pendency of these petitions. The said
affidavit revealed that on 11.5.02 a Notification was
issued by the Election Commission of India, declaring the
general elections to the Legislative Assembly of the State
of Goa to be held on 30th May, 2002 in pursuance of the
election programme, notified by the Chief Election
Commissioner of Goa. Accordingly on 30th May, 2002 the
elections to the Assembly of the State of Goa were held
and new Assembly was constituted under Notification dated
2.6.2002 a copy of which is produced on record showing
details of 40 returned candidates of the Assembly of the
State of Goa in which the names of the petitioners also
figure. The text of the Notification is reproduced
hereinbelow:-
“EXTRAORDINARY
GOVERNMENT OF GOA
DEPARTMENT OF ELECTIONS
Office of the Chief Electoral
Officer
Notification
No.308/GOA-LA/2002:- Whereas,
in pursuance of Notification
No.58-2002/ELEC, issued by the
Governor of Goa on 6th May, 2002,
under sub-section (2) of Section 15
of the Representation of the People
Act, 1951 (43 of 1951), a General
Election has been held for the
purpose of constituting a new
Legislative Assembly for the State of
Goa; and
Whereas, the results of the
elections in all the Assembly
Constituencies in the said General
Election have been declared by the
Returning Officers concerned;
Now, therefore, in pursuance
of Section 73 of the Representation
of the People Act, 1951 (43 of 1951),
the Election Commission hereby
notifies the names of the members
elected for those constituencies,
along with their party affiliation,
if any, in the SCHEDULE enclosed to
this notification.
By Order,
C.R. BRAHMAN,
Secretary to the
Election Commission of India.
SCHEDULE
No. and Name of Name of Party
Assembly Constituency Elected Affi-
Member liation (if any) 2. Pernem Deshprabhu Indian Jitendra National Raghuraj Congress 13. St. Andre Silveira Indian Francis National Manuel Congress 32. Navelim Faleiro Indian Luizinho National Congress By Order, C.R. BRAHMAM, Secretary to the Election Commission of India"
18. It is further brought on record that on
3.6.2002 Respondent No.3 was sworn in as Chief Minister of
Goa along with the other 12 Cabinet Ministers and the first
session of the Assembly was held on 13.06.2002. In the
said session business including presentation of the State
budget was done on 15.6.2002, Vote on Account Bill was
passed which was assented by the Government. The next
session of the Assembly was being summoned to be held on
22nd July, 2002. The said affidavit was taken on record.
The petitioners did not file any counter affidavits. The
facts brought on record by way of subsequent events are
thus not in dispute.
Rival submissions:
19. S/Shri S.K. Kakodkar, V.B. Nadkarni, learned
Senior Counsel addressed this Court in support of the
petitioners. Learned Additional Solicitor General of
India, Shri R.N. Trivedi, learned Advocate General of Goa,
Shri A.N.S. Nadkarni, Shri M.S. Usgaonkar, Senior Counsel
appearing for the respondent No.3 sought to support the
impugned action of the Governor.
Submission of Petitioners:
20. The petitioners contend that the impugned
order of the Governor dissolving the Legislative Assembly
on the aid and advice of the Council of Ministers does not
state that it has been made in the exercise of discretion
of the Governor as is purported to be made out in the
affidavit of the respondents. The petitioners further
submit that the affidavit of the Chief Secretary stating
that the Order is made in exercise of discretion of the
Governor is contrary to the Governors own Order. The
Chief Secretary cannot be permitted to make a statement and
contradict the order of the Governor. Reliance is placed
on Mohinder Gill v. Election Commission (1978) 1 SCC 407.
21. It is further contended that in view of the
Judgment of the Apex Court in the case of Shamsher Singh v.
State of Punjab, , the
order for dissolution has to be passed on the aid and
advice of the Council of Ministers. That is why according
to the petitioners in the present case the order speaks
that the said order has been made under Article 174(2)(b)
“on the aid and advice of the Council of Ministers”.
22. The learned counsel for the petitioners
relying upon Constituent Assembly Debates; Official Report
and report of Sarkaria Commission contended that the
Constitution had contemplated that in the matter of
dissolution, the Governor would be required to act in his
discretion but this provision was subsequently deleted on
the ground that the Governor need not discharge this
function as per his discretion and would fully be advised
in all these matters by the Council of Ministers.
Attention was invited to the Constituent Assembly Debates
Official Report, Vol.VIII, Page 41, Vol.III and Sarkaria
Commission Report, Para 4.11.16.
23. Based on above foundation, the Petitioners
pressed into service a Division Bench Judgment of this
Court in the case of Pratapsingh Rane v. Governor of Goa,
and relied upon para 29 of the said
judgment, relevant portion thereof reads as under :-
” (i) The exercise of
executive power in accordance with the
provisions of the Constitution by or
under the Order of the Governor
wherein full judicial review is
available.
(ii) Orders passed by the
Governor on aid and advice of the
Council of Ministers headed by Chief
Minister wherein full judicial review
is available.
(iii) Orders like grant of
pardon under Article 161 and the
Orders passed by the President on the
report submitted by the Governor under
Article 356 on account of which
limited judicial review is available
and
(iv) Where Governor acts
without aid and advice of the Council
of Ministers headed by Chief Minister
and acts in his own discretion. ”
24. In the present case, according to the
petitioners, the Governor has acted on the aid and advice
of the Council of Ministers and therefore this case would
be well within the sweep of category (ii) mentioned in
para 27 Supra wherein full judicial review is available.
In other words, in this case since the Governor has not
acted in his sole discretion but based his judgment on the
aid and advice of the Council of Ministers, his action is
not immune from challenge in the Court.
25. The petitioners further contend that in view
of the judgment of the Apex Court in the case of B.R.
Kapur v. State of Tamil Nadu, the
current view of the law is that if any action is taken by
the Governor even in the matter of appointment of the
Chief Minister, and if the action of the Governor is found
to be contrary to the Constitution, the Court will have
the power to strike it down. In their submission the
action of the highest authority including the President of
India; who is advised by his Council of Ministers is
amenable to judicial review as was ruled by the Apex Court
in the case of Kehar Singh v. Union of India, 1981 1 SCC
204.
26. The petitioners, on the aforesaid legal
foundation looking to the facts of the case on hand,
contend that on 27.3.2002 the Cabinet met at 10.30 a.m.
and decided to recommend to the Governor to immediately
dissolve the State Legislative Assembly. In absence of
any explanation for such immediate dissolution, it is
logical to infer that it was required to be effected
immediately to prevent the diminution in the strength of
the party in power.
27. The petitioners further contend that under
Articles 202 and 204 of the Constitution the Annual
Financial Statement is required to be laid before the
Assembly in respect of the financial year and a bill to
provide for appropriation is required to be introduced.
Rather than taking steps for passing the budget or a Vote
on Account, the Assembly was dissolved with immediate
effect. Any chance of voting in the Assembly was sought
to be avoided due to apprehension that the Government
would not be able to pass the resolution in which event it
would amount to a vote of no confidence in the Government.
Based on these factors, the contention advanced is that
the only hidden reason for seeking dissolution of the
Assembly was to avoid a test on the floor of the Assembly.
The contention therefore, is that the dissolution ordered
on 27.2.2002 was nothing but a blatant abuse of the power
of the Governor under Article 174(2)(b) of the
Constitution.
28. The petitioners, further contend that the
reasons sought to be given or the explanation sought to be
offered in the affidavit of the respondents is patently
false because, according to the Chief Minister (Respondent
No.3) Government had the strongest majority of over 2/3rd
of the Legislative Assembly; which could pass any
legislation or policy it desired. No change of
circumstances were pleaded or brought on record for
seeking a fresh mandate. Therefore, in absence of any
legitimate reason it is logical to conclude that this
immediate dissolution was intended to prevent loss of
political support in the Assembly. In his submission the
power to dissolve the Legislative Assembly has been abused
for the purpose not authorised by law, only to avoid loss
of strength in the Legislative Assembly and an attempt to
survive by dissolution and to remain in power as a
Caretaker Government and to take another chance at the
polls whilst remaining in power as the Government.
29. The petitioners further went on to urge that
all powers vested in the Constitution or statutory
authority can be exercised for legitimate purpose. If the
power is misused for an illegitimate purpose, the Court
should not hesitate to strike down such an exercise
treating it as a fraud on the Constitution. The
petitioners further contend that the plea of popular
mandate put forth in the aid and advice to dissolve the
Assembly is self contradictory if examined on the basis of
the claim of the respondent No.3 that he had majority of
2/3rds in the Assembly. It is further submitted that
political expediency cannot be pressed into service to
cover illegal action. The Court is not precluded from
examining the question of exercise of power merely because
it has political overtones. He relied upon the judgment
of the Apex Court in the case of State of Rajasthan v.
Union of India, .
30. The petitioners further contend that it was
incumbent upon the respondents to placed before the Court
material on which the advice was tendered to the Governor
for dissolution. If any action taken by the Governor in
exercise of his function is questioned in a Court of law,
it is for the Council of Ministers to justify the same
including their decision. In such a case there is no
question of not disclosing any material possessed by the
Council of Ministers alleged to be shown to the Governor
which is required to be inquired into by the Court under
Article 163(3) of the Constitution as held by the Apex
Court in the case of S.R. Bommai v. Union of India,
.
31. It is further contended that the Government
cannot claim shelter for disclosure on the ground of
privilege so as not to disclose Cabinet decision; as is
attempted to be done in the affidavit of the Chief
Secretary, of the State. There could be no injury to
public interest if the Cabinet decision is disclosed. In
the present case in the interest of justice all material
including Cabinet decisions ought to have been disclosed
or at any rate the Court has the power to inspect the
relevant documents including class of documents or other
material and in absence of disclosure of any such material
it would be logical on the part of the Court to infer
legal mala fides; since the power has been exercised by
the Governor for the purpose not authorised by law.
32. It is further contended that Article
174(2)(b) of the Constitution postulates that the Governor
may, from time to time dissolve the Legislative Assembly.
Although there are no express words of limitation in
Article 174(2)(b), still the Governors power will have to
be read subject to limitation implied in the Scheme of the
Constitution keeping in mind that rule of law, responsible
and representative parliamentary democracy are essential
features of the Constitution. Limitations on the power of
the Governor can further be spelt out from the preamble to
the Constitution to constitute a democratic republic and
the oath to be taken by the Governor to preserve, protect
and defend the Constitution and the law (Art.159) and the
Ministers (Schedule II). It is further contended that in
the case of Samsher Singh v. State of Punjab, the Supreme Court listed the
following as one of the exceptional situations in which
the President/Governor may not act upon and in accordance
with the advice of the Ministers :-
” (C) the dissolution of the
House where an appeal to the country
is necessitous, although in this area
the head of State should avoid getting
involved in politics and must be
advised by his Prime Minister (Chief
Minister) who will eventually take the
responsibility for the step. We do
not examine in detail the
constitutional proprieties in these
predicaments except to utter the
caution that even here the action must
be compelled by the peril to democracy
and the appeal to the House or to the
country must become blatantly
33. Based on the aforesaid passage, two
limitations were sought to be spelt out:- (i) action must
be compelled; and (ii) the appeal to the House or to the
country must become blatantly obligatory. In the
submission of the petitioners none of these circumstances
were in existence warranting dissolution of the Assembly.
34. The petitioners further contend that in a
written Constitution it is rarely that everything is said
expressly. Powers and limitations are always implied from
the scheme and other provisions of the Constitution.
Implied limitations have been read into the Constitutional
provisions. Reliance is placed on the case of Kesavananda
Bharati . It is contended that Art. 368
of the Constitution does not speak of any limitations
though plenary in nature has been held by Supreme Court to
be subject to implied and inherent limitations; namely,
that power of amendment cannot be so exercised as to
destroy or damage the basic structure of the Constitution.
Applying the doctrine that the basic structure of the
Constitution constitutes an implied limitation on the
power of amendment under Article 368; Supreme Court
struck down Article 368(5) of the Constitution. The
petitioners relied upon another instance of implied
limitation arising out of constitutional scheme emerging
from is the doctrine that Parliament cannot intrude into
judicial field and nullify judgment of the Court without
removing the legal infirmity or the legal base of the
judgment. The judgment of the Apex Court in the case of
Janapada Sabha, Chhindwara , is relied
upon wherein it was ruled that it was not open to the
Legislature to overrule or set aside the decision of the
Apex Court keeping in view the Constitutional Scheme under
the Constitution. The petitioners further relied upon the
passage from the Administrative Law by Wade & Forsyth, 8th
Edition to contend that there is no unfettered discretion
in public law:-
” There is no unfettered
discretion in public law. Statutory
power conferred for public purpose is
conferred as it were upon trust not
absolutely, that is to say it can be
validly used only in the right and
proper way, which Parliament when
conferring it is presumed to have
intended. Although the Crown lawyers
have argued in numerous cases that
unrestricted permissive language
confers unfettered discretion, the
truth is that, in a system based on
rule of law unfettered governmental
discretion is contradiction in terms.
There is nothing paradoxical in the
imposition of such legal limits. It
would be indeed paradoxical if they
were not imposed. Nor is this
principle an oddity of British or
American law. It applies no less to
the Ministers of the Crown. Nor is it
confined to the sphere of
administration. It operates wherever
discretion is given for a public
purpose. It is only where powers are
given for personal benefit of the
person empowered that the discretion
is absolute. Plainly this can have no
application in public law.
For the same reasons there
should in principle be no such thing
as unreviewable administration
discretion which should be just as
much a contradiction in terms as
unfettered discretion.
It remains axiomatic that all
discretion is capable of abuse and
that legal limits to every power are
to be found somewhere.”
35. The petitioners also took me through the
passage from the book of O. Hood Philips & Jackson on
Constitutional and Administrative Law, 8th Edition, (page
166), reading as under:-
” The reason for the general
conventions that the Sovereign is
bound by the advice of her Ministers
is not applicable if they do not
represent the wishes of the electorate
(or the Commons). Among other factors
that would have to be taken into
account before the Sovereign could
properly refuse a dissolution would be
the time that had elapsed since the
last dissolution, whether the last
dissolution took place at the instance
of the present opposition, whether the
question in issue is of great
political importance, the supply
position, (the grant of a dissolution
been voted to the Crown for the period
that would elapse before the meeting
of the new Parliament) whether
Parliament is nearing the end of its
maximum term, whether the Prime
Minister is in a minority in the
Cabinet, and whether there is a
minority government. ”
Based on the above passages it was contended that it was
not obligatory on the part of the Governor to accept the
action tendered on the advice of the Council of Ministers.
36. The petitioners further argued that under
Article 163(2) the Governor himself is the authority to
decide whether he is required by or under the Constitution
to act in his discretion. The Council of Ministers will,
therefore, be powerless as against the Governor on
difference of opinion on this question. No Court can
nullify its decision on the ground that he should not have
acted in his discretion in respect of the matter before
the Court. Therefore, the submission is, if the question
arises whether any matter is or is not a matter as respect
to which Governor is by or under any provision of the
Constitution required to act in his discretion, the
decision of the Governor on that question is final and the
validity of anything done by the Governor is not to be
called in question on the ground that he ought or ought
not to have acted in his discretion. Under Article 163(2)
the Governor is the sole Judge to decide whether or not
any power is required by the Constitution to be exercised
in his discretion and the Courts are precluded from
examining that question but the ultimate decision taken by
the Governor is open to challenge in the Court of law. On
the aforesaid canvas of submissions; a prayer is made to
exercise power of review and to examine the order of the
Governor, dissolving the Assembly and consequent order
appointing – asking the outgoing Ministry to continue as a
caretaker Government, applying all judicial parameters of
administrative law and set aside the same holding it bad,
illegal and contrary to the scheme of the Constitution of
India.
Submissions of Respondents:
37. PER CONTRA, the learned Advocate General on
behalf of the respondent No.1/State, refuting all the
submissions advanced on behalf of the Petitioners, at the
outset, contends that there is material, literal and
substantive distinction and difference between Art.174(2)(b) and Art. 356 of the Constitution of India. Material
available such as Governors report, other reports, etc.
in case of Art. 356 can never be present in matters of
dissolution under Art. 174(2)(b). The condition for the
exercise of the powers under Art. 356 and Art. 174(2)(b)
are entirely different. Therefore, Bommais case (cited
supra) is not applicable in the present case. Bommais
case was one dealing with a situation, wherein; there
could be an impending danger to the federal
structure/federation; when Presidents Rule is inflicted;
while under Art. 174(2)(b), dissolution is voluntary made
on recommendation of the Chief Minister, Council of
Ministers by the Governor.
38. He further contends that in either of the
petitions there is no whisper of mala fides against the
Governor as such petitioners cannot be allowed to canvas
this contention across the Bar. The pleadings allege that
the advice was given by the Chief Minister and not by the
Council of Ministers and further alleged that the Chief
Minister malafidely mis-represented it to be the decision
of the Council of Ministers, which is clearly negatived by
all the affidavits filed in reply. It is further pointed
out no ground is taken in the petitions nor alleged in the
petitions that there was no material before the Council of
Ministers or Governor. No averment is to be found in the
petitions in this behalf nor is it pointed out during the
course of hearing as to which Article is violated or that
there was legal prohibition for dissolution of the
Assembly. In his submission the entire petition raises
serious disputed questions of fact; which are incorrect
and seriously disputed by the respondents. The petitions
therefore, are required to be dismissed on this short
count.
39. He further contends that the petition is not
maintainable in view of the protection to the action taken
by the Governor keeping in view the provisions of Article
163(2) and Article 161 of the Constitution; as such the
Writ Petitions challenging the order of dissolution are
not maintainable in law. In his submission the Governor
as per Article 361 enjoys immunity and would not be
answerable to any Court for the exercise and performance
of powers and his duties subject to the exception; such
as blatant or serious violation of a Constitutional
provisions, lack of power.
40. He further pressed into service the argument
that the Governor exercises discretionary power when he
accepts advice of the Council of Ministers and no court
would enquire into such advice tendered by the Council
Ministers. The very decision of the Governor to accept
the advice of the Council of Ministers is an act of
discretion. He further contended that the petitioners
have no right as members of the Legislative Assembly to
have an undissolved term of 5 years or a tenure of 5
years. Tenure of Assembly of 5 years is subject to the
factum of earlier dissolution. The words “unless sooner
dissolved” in Art.172 clearly indicate that power under
Art.174(2)(b) intervenes and overrides the normal term of
the Legislative Assembly. It is the prerogative and an
absolute right of a party commanding majority in the House
to seek Dissolution on ground of political expediency and
Governor normally is bound to act in harmony with such
advice of the Chief Minister. In support of his
submissions he placed reliance on paragraphs (54), (55),
(88), (108) and (154) appearing in Samsher Singhs case
(Supra) and also borrowed support from Sarkaria Commission
Report, Volume (I), page 185.
41. He further contended that the Constitution is
silent as to when the Government can dissolve the
Legislative Assembly. In his submission two propositions
are available:- (a) Governor may not dissolve the House
suo motu, without Ministerial advice; (b) A Chief
Minister having a majority support can get a dissolution
of the House as and when he wants, in other words like in
other democratic set up in other parts of the world, it is
for the Chief Minister to choose the most
propitious/opportune time to go for public mandate. He
further contended that such advice given by the Council of
Ministers recommending dissolution of the Legislative
Assembly being for political reasons is beyond judicial
scrutiny. The judicial review is available in matters
which are covered by Constitutional questions such as
violation of Constitutional provision or breach of
Constitutional mandate.
42. He further submits that on a plain reading of
Article 174(2)(b) it is clear that the power of the
Governor to dissolve the Assembly is untrammelled in the
sense no restrictions are put on the Governor in exercise
of the said power unlike Article 356, which can only be
invoked in case of failure of the Constitutional machinery
in any State. Article 356 requires the President to be
satisfied regarding the failure or breakdown of the
Constitutional machinery in the State; whereas Article
174(2)(b) does not postulate such kind of satisfaction of
the Governor before dissolving the State Assembly. In his
submission, the present petitions have raised questions
which intricately relate to political thicket and are not
the Constitutional questions. He further submits that the
affidavits filed on behalf of respondent No.2 clearly
prove beyond doubt that the advice was on the Council of
Ministers and the resolution was adopted after due
deliberations at the Cabinet meeting, the contents of
which cannot be disclosed. The claim of privilege in this
behalf has already been made in the affidavit filed by the
State Government. He further submits that the impugned
orders cannot be challenged as they have been passed in
exercise of the discretionary powers of the Governor. The
discretionary powers are not subject to challenge in view
of the provision contained in the Article 163(2) and
Article 361 of the Constitution of India. In his
submission the judicial review of exercise of
discretionary powers can be on the ground; (a) There is
total absence of power, and (b) if the power exists, the
authority either exceeds its power or ignores standards
contained such as preconditions, etc. prescribed in the
statute for the exercise of that power. In his submission
the effect of dissolution of Assembly by Governor under
Article 174(2)(b) is nothing but for the purpose of fresh
election and there was no other alternative available. He
submitted that the Cabinet decision was taken in order to
go for fresh elections to secure a fresh popular mandate
which is clearly borne out from the Affidavit as well as
admissions flowing from averments contained in the
petitions in this behalf. He relied upon specific
averment made in Writ Petition No.88/2002 which states,
“the Chief Minister dissolved the Assembly to go for a
popular mandate” and also pressed into service some of the
pleadings contained in the petitions so as to point out
that the Assembly in a recent past had suffered two
defections i.e. prior to dissolution. Based on the
aforesaid submission he submitted that the Governor was
well within his right to accept the advice tendered by
Council of Ministers enjoying majority of the House and
prayed for rejection of the petition.
43. Shri R.N. Trivedi, learned Additional
Solicitor General of India, appearing for the Governor,
contends that Part XVIII of the Constitution relates to
“emergency provisions” which is an exception to the normal
democratic functioning of the Legislature and the
Executive of the State. The decision to exercise power
under Article 356 is dependent upon the “satisfaction” of
the President on receipt of “Report” from the Governor.
This predicts an objective assessment by the Governor and
its evaluation by the President. Being an exception, the
reasons and causes for promulgation of Presidents Rule
can have no general application, nor the principles laid
down for determining the scope and nature of power and the
extent of its justiciability is relevant for interpreting
the provisions like Article 174 read with Articles 163 and
161 of the Constitution. In his submission, the Report
and the satisfaction should be such as a reasonable person
would come to a conclusion that a situation has arisen in
which the Government of the State cannot be carried on in
accordance with the provisions of the Constitution. He
further submitted that the Constituent Assembly was of the
unmistakable opinion that the power under Article 356
should be resorted only in exceptional cases and as a last
resort. He further submitted that a suggestion was made
before the Constituent Assembly while debating draft under
Article 153 (now Article 174) that the power of
dissolution should be exercised by the Governor only “if
the Governor is satisfied that the administration is
failing and the Ministry has become unstable.” The
proposed amendment was negatived. It is, therefore,
submitted that certain restrictions and conditions
proposed under Article 174 were consciously and
deliberately negatived. The things which were consciously
excluded cannot be implied. It is thus urged that
circumstances and the nature of exercise of power under
Article 356 and Article 174 are two ends of spectrum.
44. He further submitted that the observations
made by the Supreme Court in the case of S.R. Bommai
(supra) related to the scope and power under Article 356,
the extent and standard of permissive judicial review,
interpretation of “satisfaction”, the need for disclosure
of “material” leading to satisfaction and its evaluation.
He submitted that power conferred by Article 356 is a
conditional power; it is not an absolute power to be
exercised in the discretion of the President. The
existence of the relevant material is a precondition to
the formation of the satisfaction. The Apex Court in the
wake of conditional power was pleased to hold that
judicial review is possible only to a limited extent, that
too, in case of subjective political judgment, where
satisfaction is perverse, malafide or based on extraneous
grounds. In order to ascertain whether the satisfaction
is subjective, the material on which the satisfaction is
based needs to be examined but such satisfaction is not
necessary when power under Article 174(2)(b) is to be
exercised. To summarise some of the basic differences
between Article 356 and Article 174 he highlighted some of
the point reproduced in undermentioned comparative chart:
ARTICLE 356 | ARTICLE 174 |
1. Failure of constitutional | 1. No failure of constitutional
machinery. | machinery.
|
2.Cannot be made on a | 2. Appeal to the electorate is
Government being reduced to | expedient.
minority. |
——————————-|———————————
3. Not on advice of Council of| 3. On advice of Council of Mi-
Ministers. | nisters which is invariably
| accepted.
——————————-|———————————
4. Dismissal inflicted by the | 4. Voluntary action of the
President on report of the | Council of Ministers which on
Governor. | the date of the advice has
| majority and even by a
| minority government.
——————————|———————————
5. Proclamation is subject | Judicial review is not
to limited judicial re- | possible as there are no
view as it is based | words of limitation and
on the report of the | there being no judicially
Governor and the | manageable standard,
President has to be | stating of reasons is not
“satisfied” that there | required.
was failure of Constitu- | tional machinery. Stating | of reasons is thus | mandatory. |
——————————-|———————————
6.Casts a stigma on | 6. Calling for elections
Government. | does not cast any stigma.
——————————-|———————————
7.Judicial review | 7. Judicial review not
permissible. | permissible.
——————————|———————————
8.It can be exercised | 8. No such requirement is
only in case of failure of | contemplated.
Constitution in the State. |
|
—————————————————————–
45. The learned Additional Solicitor General
referring to the Division Bench Judgment of this Court in
the case of Pratapsingh Rane (supra) contended that the
said case related to a dismissal of Chief Minister and the
appointment of another person as the Chief Minister. In
that context, propositions were submitted on behalf of the
Respondent No.2 in that case. He submitted that
proposition (ii) in that case was never accepted or
recognised as a settled legal proposition by the Court but
the same was relied upon based on concession; since the
said proposition was accepted by all the concerned parties
in the case. As a matter of fact in his submission the
said question did not arise for determination and thus
cannot be treated as a precedent.
46. In his submission, the Governors power of
dissolution under Article 174 is not an “executive power”
but it is a “Constitutional power”. Alternatively, he
submits that even if it is held to be an executive powers,
it is not the exercise of all such power which is subject
to full judicial review. Dissolution is one such
exception. He further submitted that the principle of
S.R. Bommais case (supra) to dissolution under Article
174(2)(b) cannot be applied. He pressed into service Para
(209) of S.R. Bommais decision wherein it has been
observed that “….. the prorogation of Parliament or
dissolution of parliament done under Article 85 is not
liable to judicial review.” He further submitted that the
decision of the Apex Court in the case of S.R. Bommai
cannot be treated as a precedent for interpreting Article
174. There is no requirement for the Governor to mention
in the Order under Article 174(2)(b) about material on the
basis of which the dissolution was based. He thus
submitted that the decision in the case of S.R. Bommai
(supra) should be read in the context of the provision of
Article 356 and not in isolation. A decision is only an
authority for what it actually decides.
47. The learned Additional Solicitor General
further submitted that normally the Governor has to
exercise his power in harmony with the advice of the
Council of Ministers. In the matter of dissolution, the
Governor is bound by the advice of the Council of
Ministers as held by the Apex Court in the case of Shamser
Singh (supra). He further drew support to this submission
from the British Parliamentary system and tried to point
out that in England the Parliament is dissolved on the
advice of the Prime Minister which is invariably accepted
(Halsburys Laws of England Vol.I(34) 4th Edition). He
also tried to show that in Canada, there was only one
incident where the advice of the Prime Minister was not
accepted for dissolving the House.(Constitutional law of
Canada, 3rd Edition, By Peter W. Hogg. Page 251). He
also relied upon the report of the Sarkaria Commission
wherein similar recommendations were made.
48. He further contends that the entire pleadings
in the Petitions are based on the assumptions that the
Respondent No.3 (Chief Minister) was not likely to
continue with the majority and that the Leader of the
Opposition was not called upon to explore the possibility
of forming an alternate Government without pleading that
on the relevant date any other party other than ruling
party had a majority support. Lastly, he submits that the
Order, directing dissolution of the House/Assembly being a
discretionary Order of the Governor based on the political
judgment taken by the Council of Ministers, is not open to
judicial review and that there are no judicially
discoverable and manageable standards for the judicial
review of the Order of dissolution based on political
expediency. It is further submitted that Governor enjoys
complete immunity in view of Article 161, as such, this
Court should not dwell upon the contentions sought to be
raised in the Petition and prayed for dismissal of the
Petition.
49. Shri M.S. Usgaonkar, learned Senior Counsel
appearing for the Respondent No.3 while adopting the
submissions made on behalf of Respondents No.1 and 2,
contends that not a single breach or abuse of
Constitutional power on the part of the Governor is to be
found in either of the Petitions. If no breach was
pleaded, no reply was called for from the Respondents. He
further pressed into service the submission that the
decision given by the Governor being final and as per
Article 163(1), second part, read with Article 163(2),the
same is immune from judicial review and further contended
that the decision given by the Governor as per the advice
of the Council of Ministers is not open to debate in any
Court. It is outside the purview of the judicial review.
50. He further submitted that there is no legal
right in the Member of Legislative Assembly to have the
Assembly for 5 years, but on the contrary the wording of
Article 174(2) namely “time to time” is an indication that
there is no Constitutional provision prohibiting the
dissolution before its term. Article 172 itself states
that the life of an Assembly is 5 years unless sooner
dissolved, indicating that it can be dissolved at any time
before expiry of 5 years.
51. He further tried to highlight the shifting
stand taken by the Petitioners from time to time. In his
submission, as per the frame of the Petitions it was
sought to be pleaded in the Petitions that the
recommendation for dissolution was an unilateral act of
the Respondent NO.3, Chief Minister. In the light of the
replies filed, this point was not pressed for and the
arguments proceeded on the basis that there was a
recommendation of the Council of Ministers. He further
pointed out from the frame of the Petitions that it was
sought to be further pleaded in the Petitions that the
Government headed by Respondent No.3 did not have stable
majority. In the light of reply filed that point was not
pressed for and the argument proceeded on the basis that
the Government headed by Respondent No.3 had almost 2/3
majority in the House of 40.
52. The learned Counsel for Respondent No.3 drew
my attention to the Ground (C) (page 10) of Writ Petition
No.84 of 2002 and submitted that the Petition appears to
be founded on wrong assumption that the advice of the
Chief Minister was not of Council of Ministers but was a
unilateral advice of the Chief Minister, as it had no
support of the remaining other Ministers. He submitted
that the Respondent No.3 denied the said facts in Paras
(41) and (45) of his Affidavit, as such the very basis of
the Petition being based on absolute falsehood it needs to
be thrown out.
53. Mr. Usgaonkar further criticised the tenor
of the Petition it being suggestive of encouraging
defections. In his submission, the Leader of the
Opposition never staked his claim to form Government or
never claimed majority in the House at any time till
dissolution. Not a single Member of the Legislative
Assembly at any time approached the Governor or any
authority like Speaker informing withdrawal of support to
the Council of Ministers. The Council of Ministers did
not resign at any point of time. Consequently, the
question of formation of the alternate Government did not
arise at any time. If that be so, no fault can be found
in the action of the Governor if he has accepted the
advice of the Council of Ministers enjoying confidence of
the House. In his submission looking the Constitutional
scheme the said advice was binding on the Governor as such
he has rightly accepted the same considering the
prevailing political scenario in the State of Goa. He
thus prayed for dismissal of the Petitions.
54. Shri M.S. Usgaonkar, learned Senior Counsel
appearing for the Respondent No.3,Chief Minister,
submitted that since the present Petitions are praying for
writs in the nature of Certiorari, to challenge not an
executive action but an action taken in exercise of
Constitutional power exercised by highest Constitutional
functionary of the State, the parameters of Constitutional
power and justiciability have to be kept in mind while
dealing with such types of cases.
55. The learned Counsel further took me to the
entire test of the Petitions and tried to demonstrate from
the various quoted instances given by the Petitioners to
show that the Petitioners themselves do not dispute that
the Governor was required to use his discretion while
exercising his powers and discharging his functions under
Article 174(2)(b) read with Article 163. In order to
buttress his submission he pressed into service certain
allegations and/or averments leading to undue haste on the
part of the Governor in dissolving and accepting the
advice of the Council of Ministers. He pointed out that
the Petitioners strongly tried to make out a case that the
Governor ought to have called upon the Leader of
Opposition and given him an opportunity to prove his
majority. In his submission all these instances are
sufficient to clearly indicate that as per the Petitioners
own submission the dissolution of the Assembly was an
action taken by the Governor in his discretion. The
learned Counsel, therefore, submits that the discretion of
the Governor is immune from judicial review. He submits
that the attack made against the action of the Governor is
therefore without merit. Consequently, the said action
cannot be faulted with on the ground that the Governor
ought or ought not to have acted in a particular manner in
exercise of his discretion under Article 163(2) and
therefore the Petition is not maintainable.
56. He further criticised the tenor of the
Petitions it being suggestive of encouraging defections.
In his submission, the Leader of the Opposition never
staked his claim to form Government or never claimed
majority in the House at any time till dissolution. Not a
single Member of the Legislative Assembly at any point of
time approached the Governor or any authority; like;
Speaker informing withdrawal of support to the Council of
Ministers. The Council of Ministers did not resign at any
point of time. Consequently, the question of formation of
the alternate Government did not arise at any time. If
that be so, no fault can be found with the action of the
Governor if he has accepted the advice of the Council of
Ministers enjoying confidence of the House. In his
submission looking to the Constitutional scheme; the said
advice was binding on the Governor as such he has rightly
accepted the same considering the prevailing political
scenario in the State of Goa.
57. The learned Counsel while concluding his
submissions, submits that the present Petition is of
dissolution of Legislative Assembly on the aid and advice
of the Council of Ministers commanding majority in the
House. Even otherwise, the Governor having acted on the
advice of the Council of Ministers, such action cannot be
faulted with in view of Article 163(3). The question of
whether any, and if so what, advice was tendered by the
Ministers to the Governor cannot be enquired into in or by
any Court as such the question of producing advice and/or
material in support thereof, does not arise. He strongly
submitted that the Petitioners miserably failed to
discharge their burden. At any rate onus, did not shift
on the Respondents as such there was no question of
producing any material in rebuttal. He submits that these
Petitions should not be examined on merits. He relied
upon some of the passages from the judgment of S.R.
Bommai (supra) in support of his submissions.
Bommai (supra) in support of his submissions. advice
which cannot be enquired into, there is no material which
can be produced.
CONSIDERATION
58. Having heard the rival contentions, one thing
is clear that both sides canvassed two extreme points of
view before me.
ONE VIEW, that the power of dissolution exercised
by the Governor under Article 174(2)(b) is in exercise of
his discretion though that might have been exercised on
the basis of aid and advice of the Council of Ministers
with the Chief Minister at its head and the same is beyond
the judicial scrutiny by virtue of immunity conferred by
Article 163(2) and (3) of the Constitution.
THE OTHER VIEW, canvassed is that the power of
dissolution exercised by the Governor having been
exercised on the basis of the advice of the Council of
Ministers, there is no question of exercise of discretion,
as such full judicial enquiry is available and at any rate
assuming dissolution to be an outcome of the discretion of
the Governor, still the material on the basis of which
advice was tendered is open for judicial scrutiny; may be
to a limited extent i.e. to the extent of examining its
constitutionality.
59. Both views have strong friends to support.
Both views were strongly canvassed with strong back-up
material, by the rival parties to support their rival
submissions. Before going to dwell on the question
whether or not judicial review is available, it is
necessary to examine: is it a fit case to undertake this
judicial exercise ? In the case of S.R. Bommai (supra)
on which heavy reliance was placed by the Petitioners in
unequivocal terms said thus:
” …Before exercise of the courts
jurisdiction sufficient caution must
be administered and unless a strong
and cogent prima facie case is made
out, the President i.e. the
Executive must not be called upon to
answer the charge. In this
connection I agree with the
observation of Ramaswamy, J. I am
also in agreement with Verma, J.
when he says that no quia timet
action would be permissible in such
cases in view of the limited scope of
judicial review in such cases.”
60. The same view has been reiterated by Justice
Jeevan Reddy in the following words:-
” We agree that merely because a
person challenges the validity of the
Proclamation, the court would not as
a matter of course call upon the
Union of India to produce the
material/information on the basis of
which the President formed the
requisite satisfaction. The court
must be satisfied, prima facie, on
the basis of the averments made by
the petitioner and the material, if
any, produced by him that it is a fit
case where the Union of India should
be called upon to produce the
material/information on the basis of
which the President formed the
requisite satisfaction.”
61. Thus looking to the above majority opinion
coming from Justice Ahmadi, Justice Verma for himself and
Justice Yogeshwar Dayal, Justice Ramaswamy, Justice Jeewan
Reddy for himself and Justice Agrawal, I would be failing
in my duty if I do not examine, prima facie, as to whether
or not a strong and cogent prima facie case is made out by
the Petitioners on the basis of averments made in the
Petitions and the material; if any, produced by them so
as to shift onus of proof on the Respondents. I therefore
propose to first address myself on the issue; is it a fit
case warranting production and examination of the material
on the basis of which the decision was taken to advise
dissolution of the Assembly or is it a case wherein prima
facie burden is discharged by the Petitioners so as to
call upon the Respondents to justify their action. It is
needless to mention that prima facie case does not mean
that the Court will examine the merits of the case closely
and come to a conclusion that the Petitioners have a case
in which they are likely to succeed. This would be
amounting to prejudging the case on merits. All that the
Court has to see is that on the face of it the person
invoking jurisdiction of the court needs consideration and
which is not to fail by virtue of some apparent defects.
62. I therefore without entering into the hotly
debated area giving rise to debatable virgin
Constitutional issues, without laying down any law or
without determining any question as to whether or not
judicial review of the impugned action is permissible, if
permissible to what extent it is permissible. This is
being made clear because the possibility of overlapping
consideration and discussion in Judgment cannot be ruled
out inspite of best efforts. I, prima facie; examined
the merits of the Petitions to ascertain whether any case
is made out so as to shift onus of proof on the
Respondents keeping in mind that when any particular
proclamation is challenged the burden of establishing its
invalidity lies upon the Petitioners. It is for them to
produce material to substantiate their contentions. In
this behalf it would be useful to quote observations made
by Apex Court in the case of S.R. Bommai (supra) reading
as under:-
” It was urged by Shri Parasaran,
learned counsel appearing for the
Union of India that where a person
challenges the validity of the
Proclamation under Article 356(1),
the burden lies upon him to establish
its validity and that it is not part
of the duty of the Union of India to
assist the petitioner in establishing
his case. Reliance is placed on
certain observations in Stephen
Kalong Ningkong. He submitted that
it would not be a correct practice
for the court to call upon the Union
of India to justify and establish the
validity of the Proclamation merely
because a person chooses to question
it. We do not think that there ought
to be any room for confusion on this
score.”
There appears to be no dissent on this question amongst
the other Judges constituting the Bench.
FINDINGS
62. Having heard parties, these are not the fit
cases wherein this Court should dwell on either of the
views convassed. These cases are bound to fail by virtue
of apparent defects in the petitions. The petitioners
could not succeed in shifting onus of proof on the
respondents so as to call upon them to justify their
action. These petitions cannot succeed because of their
own inherent weaknesses. In support of my conclusion the
following are the reasons :
REASONS
63. In order to answer the issue, whether or not
any case is made out by the Petitioners to call upon the
Respondents to produce adequate material to support their
impugned action, a cursory look at the Constitutional
Scheme or our Constitution, would be necessary.
CONSTITUTIONAL SCHEME 64. Before I proceed to consider the
Constitutional Scheme, it is necessary to have a brief
look at the historical background and the relevant
provisions of the Constitution of India and some of the
Judgments of the Apex Court holding the field.
Historical background :
65. The Government of India Act, 1858 transferred
the responsibility for administration of India from the
East India Company to the British Crown. The Governor
then became an agent of the Crown, functioning under the
general supervision of the Governor-General. He was the
pivot of the Provincial administration.
66. The Government of India Act, 1935 introduced
provincial autonomy. The Governor was now required to act
on the advice of Ministers responsible to the legislature.
The Governor could also act on his discretion in specified
matters. He functioned under the general superintendence
and control of the Governor General, whenever he acted in
his individual judgment or discretion.
67. Independence inevitably brought about a
change in the role of the Governor. Until the
Constitution came into force, the provisions of the
Government of India Act, 1935 as adopted by the Indian
(Provisional Constitution) Order, 1947, were applicable.
This order omitted the expressions in his discretion;
acting in his discretion and exercising his individual
judgement wherever they occurred in the Act. Whereas,
earlier, certain functions were to be exercised by the
Governor either in his discretion or in his individual
judgment, the Adaptation Order made it incumbent on the
Governor to exercise these as well as all other functions
only on the advice of his Council of Ministers.
68. The framers of the Constitution accepted, in
principle, the Parliamentary or Cabinet system of
Government of the British model both for the Union and
States. While the pattern of the two levels of Government
with demarcated powers remained broadly similar to the
pre-Independence arrangements, their roles and
inter-relationships were given a major re-orientation.
The Constituent Assembly discussed at length the various
provisions relating to the Governor. Two important issues
were considered. The first issue was whether there should
be an elected Governor. The second issue related to the
extent of discretionary powers to be allowed to the
Governor. Following the decision to have a nominated
Governor, references in the various articles of the Draft
Constitution relating to the exercise of specified
functions by the Governor in his discretion were
deleted. The only explicit provisions retained were those
relating to Tribal Areas in Assam where the administration
was made a Central responsibility. The Governor, as agent
of the Central Government during the transitional period
could act independently of his Council of Ministers.
Nonetheless, no change was made in the Draft Article which
referred to the discretionary powers of the Governor.
This provision in Draft Article 143
(now Article 163)
generated considerable discussion. When Clause 143 of the
Draft Constitution (as Article 163 then was) was under
discussion in the Constituent Assembly, Shri H.V. Kamath
moved an amendment for deletion from this Article the
words “except in so far as he is by or under this
Constitution required to exercise his function, or any of
them in his discretion” and consequent deletion of
sub-clause (ii), (which corresponds to clause (2) of the
present Article giving a definitive powers to the Governor
to decide the question, if any raised, whether any matter
is or is not one as respects which he is by or under the
Constitution required to act in his discretion). The
proposed amendment was vigourously supported by Dr. H.N.
Kunzru, Prof. Shibban Lal Saksena, Shri H.V. Pataskar
and Shri Rohini Kumar Chaudhuri. The focal point of their
criticism was that the wide phraseology in which Clause
143 was couched, gave the Governor a general power to
choose in his discretion, whether or not in the
performance of any of his functions he had to solicit,
abide by or overrule the advice of his Council of
Ministers. In concurrence with Shri T.T. Krishnamachari
and Shri Alladi Krishnaswami (who opposed the amendment),
Dr. Ambedkar tried to dispel the apprehensions of Dr.
Kunzru and others by giving this interpretation about the
use and scope of Clause 143: “This Clause is a very
limited clause, it says except in so far as he is by or
under this Constitution”. Therefore, article 143 will
have to be read in conjunction with such other articles
which specifically reserve the power to the Governor. It
is not a general clause giving the Governor power to
disregard the advice of his Ministers in any matter in
which he finds he ought to disregard.
Relevant provisions of the Constitution :
69. Inspite of the aforesaid view of the framers
of the Constitution, Article 163 which came to be
incorporated in the Constitution, reads as under :
163. Council of Ministers to aid and
advise Governor. – (1) There shall be a
Council of Ministers with the Chief Minister
at the head to aid and advise the Governor in
the exercise of his functions, except in so
far as he is by or under this Constitution
required to exercise his functions or any of
them in his discretion.
(2) If any question arises whether any
matter is or is not a matter as respects which
the Governor is by or under this Constitution
required to act in his discretion, the
decision of the Governor in his discretion
shall be final, and the validity of anything
done by the Governor shall not be called in
question on the ground that he ought or ought
not to have acted in his discretion.
(3) The question whether any, and if so
what, advice was tendered by Ministers to the
Governor shall not be inquired into any Court.
Article 163 states that there shall be a Council of
Ministers, with the Chief Minister at the head to aid and
advise the Governor in the exercise of his functions,
except in so far as he is by or under this Constitution
required to exercise his functions or any of them in his
discretion. Article 163(2) states that if any question
arises whether any matter is or is not a matter as
respects which the Governor is by or under this
Constitution required to act in his discretion, the
decision of the Governor in his discretion shall be final
and the validity of anything done by the Governor shall
not be called in question on the ground that he ought or
ought not to have acted in his discretion.
70. The next Article which needs a reference, is
Article 174, which reads as under :
174. Sessions of the State Legislature,
prorogation and dissolution. – (1) The
Governor shall from time to time summon the
House or each House of the Legislature of the
State to meet at such time and place as he
thinks fit, but six months shall not intervene
between its last sitting in one session and
the date appointed for its first sitting in
the next session.
(2) The Governor may from time to time –
(a) prorogue the House or either House;
(b) dissolve the Legislative Assembly.
Draft Article 153(3) said that the functions of the
Governor under Clauses (a) and (c) of the Clause (2) of
the Article shall be exercised by him in his discretion.
Draft Article 153(3) was totally amended when it became
Article 174 of our Constitution.
71. At this juncture, in order to understand the
Constitutional philosophy of Article 163, it is necessary
to take into account the historical background of Article
74. Our Constitution deals with the Union and the State
Executive separately, but as the provisions follow, a
common pattern and are in most cases mutatis mutandis the
same for the Union and for the States. It would,
therefore, be necessary to refer to Article 74 of the
Constitution, which reads as under :
74. Council of Ministers to aid and
advise President.- [(1) 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:]
[Provided that the President may require
the Council of Ministers to reconsider such
advice, either generally or otherwise, and the
President shall act in accordance with the
advice tendered after such reconsideration.]
(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.”
72. It is noticeable that though in Article 74
it is stated that there shall be a Council of Ministers
with Prime Minister at the head to aid and advise the
President in exercise of his functions, there is no
provision in Article 74 comparable to Article 163 that
the aid and advice is except in so far as he is required
to exercise his functions or any of them in his
discretion.
73. In order to appreciate the contentions
raised in these petitions with respect to the role played
by the Governor of the State of Goa, I also examined
relevant portion of Article 361 of the Constitution.
“361. Protection of President and
Governors and Rajpramukhs.- (1) The
President, or the Governor or Rajpramukh of a
State, shall not be answerable to any Court
for the exercise and performance of the
powers and duties of his office or for any
done or purporting to be done by him in the
exercise and performance of those powers and
duties :
Provided that the conduct of the
President may be brought under review by any
Court, tribunal or body appointed or
designated by either House of Parliament for
the investigation of a charge under article
61:
Provided further that nothing in this
clause shall be construed as restricting the
right of any person to bring appropriate
proceedings against the Government of India
or the Government of a State.
(2) No criminal proceedings whatsoever
shall be instituted or continued against the
President, or the Governor of a State, in any
court during his term of office.
(3) No process for the arrest or
imprisonment of the President, or the
Governor of a State, shall issue from any
court during his term of office.
(4) No civil proceedings in which relief
is claimed against the President, or the
Governor of a State, shall be instituted
during his term of office in any court in
respect of any act done or purporting to be
done by him in his personal capacity, whether
before or after he entered upon his office as
President, or as Governor of such State,
until the expiration of two months next after
notice in writing has been delivered to the
President or the Governor, as the case may
be, or left at his office stating the nature
of the proceedings, the cause of action
therefor, the name, description and place of
residence of the party by whom such
proceedings are to be instituted and the
relief which he claims.
74. At this juncture, it will not be out of
place to mention that much debate was generated on the
scope of Article 163 vis-a-vis Article 356 of the
Constitution. Article 356 deals with provisions in case
of failure of constitutional machinery in States.
However, reproduction thereof is not necessary.
75. The constitutional scheme reveals that the
executive power of the Union is vested in the President
under Article in the President under Article 53(1). The
executive power of the State is vested in the Governor
under Article 154(1). The expressions “Union” and
“States” occurring in Articles 53(1) and 154(1)
respectively to bring about the federal principles
embodied in the Constitution. Any action taken in
exercise of the executive power of the Union vested in
the President under Article 53(1) is taken by the
Government of India in the name of the President as will
appear in Article 77(1). Similarly, any action taken in
the exercise of the executive power of the State vested
in the Governor under Article 154(1) is taken by the
Government of the State in the name of the Governor as
will appear in Article 166(1).
76. There are two significant features in regard
to the executive action taken in the name of the
President or in the name of the Governor. Neither the
President nor the Governor may sue or be sued for any
executive action of the State. First, Article 300 states
that the Government of India may sue or be sued in the
name of the Union and the Governor may sue or be sued in
the name of the State. Second, Article 361 states that
proceedings may be brought against the Government of
India and the Government of the State but not against the
President or the Governor. Articles 300 and 361 indicate
that neither the President nor the Governor can be sued
for executive actions of the Government. The reason is
that neither the President nor the Governor exercises the
executive functions individually or personally.
Executive action taken in the name of the President is
the action of the Union. Executive action taken in the
name of the Governor is the executive action of the
State. Article 361 provides absolute immunity to the
President and the Governor for the exercise and
performance of the powers and duties of their office or
for any act done or purporting to be done by them in the
exercise and performance of those powers and duties,
subject, as regards the President, to an impeachment
under Article 61. Article 361(2) offers a complete
immunity to the Governor not only against the institution
of such proceedings but against their continuance if he
was appointed as a Governor after the proceedings were
instituted.
77. Having created the offices of the President
and the Governor, and vested the executive power of the
Union and the States respectively in them, the executive
power of the Union is made co-extensive with its
legislative power, except that unless expressly provided
in the Constitution or by any law made by Parliament, the
executive power does not extend to any matter in the
concurrent legislative list. Similarly, the executive
power of the State is made co-extensive with its
legislative power, subject, as regards matters in the
concurrent legislative list, to the executive power
expressly conferred by the Constitution or by any law
made by Parliament, upon the Union or the authorities
thereof.
78. The exercise of the executive power of the
Union or the States is a function of the President and
the Governors respectively and in order to aid and advise
them in the exercise of their functions, provision is
made for a Council of Ministers. Article 74(1) provides
that there shall be a Council of Ministers with the Prime
Minister at the head. The question whether any and if so
what advice was tendered by ministers to the President is
not to be inquired into in any Court. Articles 163 and
164 contain mutatis mutandis the same provisions for the
Council of Ministers to aid and advise the Governor with
the qualification that the Council of Ministers is to
“aid and advise the Governor in exercise of his
functions, except in so far as he is by or under this
Constitution required to exercise his functions or any of
them in his discretion.” If any question arises, whether
any matter is or is not a matter as respects with the
Governor is by or under the Constitution required to act
in his discretion, the decision of the Governor on that
question is final and the validity of anything done by
him is not to be called in question on the ground that he
ought or ought not to have acted in his discretion. The
executive power is not defined in our Constitution.
Articles 73 and 163 are concerned primarily with the
extent of executive power, and its distribution between
the Union and the States.
79. A Seven Judges Bench decided a very
important question about the constitutional position of
the President and the Governor under our Constitution.
The Seven Judges Bench was constituted to consider
whether the decision in the case of Sardari Lal v. Union
of India, was correct. The
decision lays down the following proposition:
” (a) Our Constitution generally
embodies the Parliamentary or the Cabinet
form of Govt. on the British model, both
for the Union and the States.
(b) It is a fundamental principle of
English constitutional law that the
Sovereign does not act on his own
responsibility but on the advice of his
Ministers who accept responsibility and who
command the confidence of the house of
Commons. This principle of English
constitutional law is embodied in our
Constitution.
(c) It follows from the British form of
Parliamentary or Cabinet Govt. that the
President and the Governors are the formal
or Constitutional heads of the Union and the
States and they must act with the aid and
advice of the Council of Ministers except
where a contrary provision is made by the
Constitution.
(d) …
(e) …
(f) However, the position of the
Governor is slightly different, because,
Art. 163 provides: “Council of Ministers
to aid and advise Governor.- (1) There shall
be a Council of Ministers with the Chief
Minister at the head to aid and advise the
Governor in the exercise of his functions,
except in so far as he is by or under this
Constitution required to exercise his
functions or any of them in his discretion.
2) If any question arises whether any
matter is or is not a matter as respects
which the Governor is by or under this
Constitution required to act in his
discretion, the decision of the Governor in
his discretion shall be final, and the
validity of anything done by the Governor
shall not be called in question on the
ground that he ought or ought not to have
acted in his discretion. (3) The question
whether, any, and if so, what advice was
tendered by Minister to the Governor shall
not be inquired into in any Court.”
(g) Provisions of our Constitution which
use the expression “in his discretion” with
reference to the Governor are : Art..
371A(1)(b) and (d) and 2(b) and (f), and
Sch. VI pares 9(2) and 18(3). In addition to
the expression provisions mentioned above
there are two provisions where, by necessary
implication, the Governor can act in his
discretion. Thus Art. 356 shows that the
Governor can make a report to 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. “Here the Governor would be
justified in exercising his discretion even
against the advice of his Council of
Ministers (because) the failure of the
Constitutional machinery may be because of
the conduct of the Council of Ministers”.
Again, “Art. 200 requires the Governor to
reserve (for the consideration of the
President) any Bill which in his opinion if
it became law would so derogate form the
Power of the High Court as to endanger the
position which the High Court is designed to
fill under the Constitution… Art. 200
indicates another instance where the
Governor may act irrespective of the advice
from the Council of Ministers.”
(h) Article 163 provides for a Council of
Ministers to aid and advise the Governor in
the exercise of his functions makes him the
sole and final judge whether any function is
to be exercised in his discretion or on the
advice of the Council of Ministers. Although
Art. 74 also provides for a Council of
Ministers to aid and advise the President,
that Article does not refer to any
discretionary power on the President and as a
consequence, there is no provision in Art. 74
corresponding to Art. 163(2) which makes the
Governor the sole judge in any matter in which
he is required to act in his discretion.
(i) …
(j) ….
(k) ….
(l) …. ”
In proposition (h) above, the distinction between
the provisions of Art. 74 and 163(2) has been noticed by
the Apex Court and observed :
” Of course, there is some qualitative
difference between the position of the
President and the Governor. The former,
under Article 74 has no discretionary
powers; the latter too have none, save in
the tiny strips covered by Articles 163(2),
371-A(1)(b) and (d), 371-A(2)(b) and (f), VI
Schedule para 9 (2) (and VI Schedule para
18(3), until omitted recently with effect
from 21.1.1972). These discretionary powers
exist only where expressly spelt out and
even these are not left to the sweet will of
the Governor but are remote-controlled by
the Union Ministry which is answerable to
Parliament for those actions. Again a
minimal area centering round reports to be
dispatched under Article 356 may not, in the
nature of things, be amenable to ministerial
advice. The practice of sending periodical
reports to the Union Government is a
pre-constitutional one and it is doubtful if
a Governor could or should report behind the
back of his Ministers. For a centrally
appointed constitutional functionary to keep
a dossier on his Ministers or to report
against them or to take up public stances
critical of Government policy settled by the
Cabinet or to interfere in the
administration directly – these are
unconstitutional faux pas and run counter to
parliamentary system. In all his
constitutional function it is the
Ministers who act; only in narrow area
specifically marked out for discretionary
exercise by the Constitution, he is
untrammelled by the State Ministers acts
and advice. Of course, a limited
free-wheeling is available regarding choice
of Chief Minister and dismissal of the
Ministry, as in the English practice adapted
to Indian conditions.”
80. However, the question which requires
consideration in the light of the fact that Article 74(1)
provides that there shall be Council of Ministers to aid
and advise the President in the exercise of his functions.
Article 163(1) makes the same provision, mutatis mutandis
for the Governors. If the correct conclusion to draw from
Articles 74(1) and 163(1) is that the President and the
Governors are not obliged to accept and act according to
that advice, it would follow that in the discharge of
their functions, the president and the Governors have a
discretion to disregard the advice of the Council of
Ministers. But such a conclusion is inconsistent with the
express conferment of discretionary power on the Governor
under Article 163(2), for, if Governors have a discretion
in all matters under Article 163(1), it would be
unnecessary to confer on Governors an express power to act
in their discretion in a few specified matters. The
conferment of specified discretionary powers on the
Governor by Article 163(2), but not on the President by
Article 74, negatives the view that the President and the
Governors have a general discretionary power to act
against the advice of the Council of Ministers.
81. In view of the above decision in Samsher
Singhs (supra) case, the proposition that the Governor is
required to act in his discretion only by express
provisions, is no longer good law, for, both the judgments
(of A.N. Ray, C.J. and Krishna Iyer, J.) ruled that in
some cases the Governor had power to act in his discretion
as a matter of necessary implication. Again, the
statement that the words “in his discretion” have the
technical meaning given to them under the Government of
India Act 1935 is also not good law and the Supreme Court
gave those words their plain natural meaning; namely,
that where the Governor acts “in his discretion”, he is
not obliged to follow the advice given to him by the
Council of Ministers.
82. The Sarkaria Commission was appointed to look
into and report on Central-State relations considered,
inter alia, the manner in which this power has been
exercised over the years and made certain recommendations
designed to prevent its misuse. Since the Commission was
headed by a distinguished Judge of the Apex Court and also
because it made its report after an elaborate and
exhaustive study of all relevant aspects, the Apex Court
in S.R. Bommais case (cited supra) observed that the
said opinion is certainly entitled to great weight
notwithstanding the fact that the report had not been
accepted at the relevant time by the Government of India.
In para 4.11.25, the said the Commission observed that the
Council of Ministers may advise the Governor to dissolve
the Legislative Assembly on the ground that it wishes to
seek a fresh mandate from the electorate. If the Ministry
enjoys a clear majority in the Assembly, the Governor must
accept the advice. However, when the advice of dissolving
the Assembly is made by the Ministry which has lost or
appears to have lost majority support, the Government
should adopt the course of action suggested in paras
4.11.09 to 4.11.13 and 4.11.20 of the said
recommendations. Thus from the said recommendations, it
would be clear that the Governor must accept the advice of
the Ministry enjoying clear majority in the Assembly.
83. At this juncture it will not be out of place
to refer to the decision of P. Joseph John v. State of
Travancore Cochin, and on the
following observations made therein at page 165 of the
report :
“It is an elementary principle of
democratic Government prevailing in
England and adopted in our
Constitution that the Rajpramukh or
the Governor as head of the State is
in such matters merely a
constitutional head and is bound to
accept the advice of his Ministers.”
The National Commission constituted to Review the Working
of the Constitution, had an occasion to circulate a
consultation paper on the Institution of Governor under
the Constitution, wherein, the recommendations made by the
Sarkaria Commission contained in Chapter IV (relating to
Governors) were by and large accepted, subject to certain
suggestions made in the said working paper. One of such
recommendations is that so long as the Council of
Ministers enjoys the confidence of the Legislative
Assembly, the advice of the Council of Ministers in regard
to summoning and proroguing a House of the Legislature and
in dissolving the Legislative Assembly, if such advice is
not patently unconstitutional, should be deemed as binding
on the Governor. If the Assembly is to be dissolved and
an election can be held early, the Governor should
normally ask the outgoing Ministry to continue as a
caretaker Government. However, this step would not be
proper if the outgoing Ministry has been responsible for
serious mal-administration or corruption. A convention
should be adopted that a caretaker Government should not
take any major policy decisions. Since the Commission to
review Constitution was headed by a distinguished former
Chief Justice of India and also because it made its report
after elaborate and exhaustive study of the working of the
Constitution in the past, its recommendations are
certainly entitled to great weight, notwithstanding the
fact that the report has not yet been accepted by the
Government of India. Thus, taking into account the above
recommendations and suggestions, one has to consider as to
whether the petitioners have made out a prima facie case,
so as to call upon the respondents to justify their
action. At this juncture, I must make it clear that I am
not recording any findings as to whether a judicial review
is available or not. The Constitutional Scheme is looked
into only to reach to the conclusion as to whether or not
prima facie case is made out by the petitioners warranting
determination of issue whether judicial review
and/or justiciability of the issue is or is not open?
84. Having examined the historical background and
scheme of our Constitution, in that light, let me examine,
in the facts and circumstances of these cases; whether
the petitioners have made out any prima facie case,
warranting judicial review or for that matter
justiciability of the issue of dissolution. If yes, to
what extent. This question will have to be addressed
looking to the pleadings and allegations made in the
petitions. Now let me turn to the facts stated in the
WP.No.84/2002 Shri Luizinho Joaquim Faleiro v. State of
Goa.
W.P. No.84/2002:
85. The contents of paras 1. 2(i) to (xi) deal
with the bare facts and the inferences drawn by the
petitioner himself. In para 2(xii), the allegations are
that without proper notice to the Members of the Council
of Ministers or without following appropriate procedure,
passing resolution of the Council of Ministers, the Chief
Minister, in connivance with the Chief Secretary of the
State, mis-represented to the Governor that the Council of
the Ministers had taken unanimous resolution to recommend
to the Governor of Goa to dissolve the Legislative
Assembly. Therefore, an attempt made in the petition,
appears to be to make out a case that no resolution was
ever passed, much less any unanimous resolution was
passed. As I further proceed to read petition, para 2
(xiii) makes a factual averment which hardly needs any
investigation. Para 3 contains formal allegations;
whereas in para 3.(A), the petitioner asserts that the
Chief Minister would have had to face a vote of no
confidence, as such, he opted for alternative and sought
the dissolution of the House and the Governor acted
contrary to the well established principles governing
dissolution of the Legislative Assembly on the advice of
the Council of Ministers which was not likely to continue
with the majority. In the subsequent part of this para,
an attempt is made to bring on record the alleged
instability of the Government and certain news paper
reports were sought to be relied upon, which are,
admittedly, subsequent to the order of dissolution.
86. In para 3.B., an attempt is made to allege
that the Chief Minister did not command the stable
majority and exercise of power on the part of the Governor
to dissolve the house almost 2 and half years prior to the
expiry of its normal term, was bad and illegal.
87. Then in para 3.C. allegations are that the
Leader of Opposition was not granted interview by the
Governor and he dissolved the Legislative Assembly on the
advice of the Chief Minister and not of the Council of
Ministers and in doing so, the Governor acted in undue
haste and that the Governor should not have exercised
these powers and ought to have refused the dissolution.
Then in the rest of the petition, a case is sought to be
made out that there was no change in circumstances after
convening meeting of the Legislative Assembly for
approving the budget. Relying upon the Judgment of the
Apex Court in S.R. Bommais case (cited supra), a case is
sought to be made out that the Governor should have
invited the Leader of Opposition and given him time to
prove his majority on the Floor of the House and should
have explored the possibility to ensure Constitutional
Government in the State. It is further alleged that the
Governor was duty bound to protect, preserve and uphold
the Constitution. With these pleadings, declaration of
invalidity of the order dissolving the State Assembly is
prayed for.
W.P. No.88/2002
88. The second petition being WP. No.88/2002 is
also directed against the order of the Governor permitting
the Chief Minister, Respondent No.3 and his Council of
Ministers to continue to carry on their functions. The
petitioners in para 3 of this petition tried to make out a
case that the advice tendered by the Chief Minister was
mala fide in dissolving the Legislative Assembly ahead of
more than two years of its tenure. No real and genuine
grounds existed on the basis of which an honest opinion
could be formed by the Governor to dissolve the Assembly
and in fact, the decision of the Governor was vitiated by
mala fide considerations. This petition also repeats the
same allegations as are made in the earlier petition to
the effect that the Governor was bound to follow the
constitutional mandate of holding consultation with the
Leader of Opposition and ought to have taken into account
the newspaper reports and should have taken independent
decision to reject the advice tendered by the Chief
Minister. An attempt is made to make out a case that the
Governor should have consulted individual members of the
Council of Ministers to ascertain the veracity of the
claim of the Chief Minister and the reasons sought to be
given by respondent No.3 that he recommended dissolution
in order to seek fresh mandate from the people as he was
having fractured mandate. An attempt is also made to make
out a case that even in the absence of judicially
discernible standards the Courts have every power to
exercise jurisdiction as the policy of the judicial hands
off in political matters will not be applicable to the
facts of the present cases.
89. The petitioners, relying on the Judgment of
S.R. Bommai (cited supra) prayed for judicial review and
consequently for setting aside the action of the Governor.
The petition is mainly based on the aforesaid extracted
pleadings. An attempt is made to make out a case that
respondent No.3 was expecting a motion of No Confidence
and therefore, with mala fide intention to avoid landing
in precarious situation, he unilaterally tendered advice
to dissolved the Legislative Assembly and in accepting the
said advice, without consulting the Lead of Opposition or
without providing an opportunity to form an alternate
Government, the Governor decision to dissolve the House
was with undue haste.
90. The aforesaid pleadings and the total impact
thereof, if taken into account, prima facie attempt seems
to be to establish that the Chief Minister and the Council
of Ministers were likely to face some defection with the
result, party in power was to be reduced to insignificant
minority. In order to avoid this situation, the Chief
Minister on his own, unilaterally, without there being any
decision of the Council of Ministers, advised the Governor
of the State to dissolve the House, so as to seal fate of
motion of no confidence. In this situation, the assertion
is that the Governor should not have accepted the advice
and should have made an attempt to give an opportunity to
the petitioners, or the Leader of Opposition to form an
alternate Government. In not doing so, the Governor acted
in undue haste and dissolved the Legislative Assembly
without application of mind. These are the bare
challenges set up in the petitions, though these petitions
were argued on the larger canvass, larger than the scope
of respective petition.
91. The aforesaid allegations were replied by all
the respondents by filing affidavits. The situation
emerging on record therefrom is that the meeting of
Council of Ministers did take place at 10.30 a.m. on
27.2.2002. The Chief Secretary of the State himself was
present for the said Meeting. In the said meeting, the
Council of Ministers resolved to advise the Governor of
the State to dissolve the Legislative Assembly. In
support of this fact, 21 Affidavits are filed on record,
affirmed by the 21 Members of the Legislative Assembly,
including that of 13 Members of Council of Ministers (13
Ministers), who, unequivocally said on oath that they were
present for the Cabinet Meeting chaired by the Chief
Minister of the State (Respondent No.3) and it was
unanimously resolved to tender advice to the Governor of
the State to dissolve the Legislative Assembly. As
against this, there is only one affidavit filed on record
affirmed by one Mr. Jose Philip DSouza, affirmed on
18.3.2002, who had tendered is resignation from the
Council of Ministers on 2.3.2002. Thus, looking to the
date of his resignation and the date of filing the
affidavit, it is not difficult to read as to why he chose
to file this affidavit. Further, if his Affidavit is
perused, it would be clear that he does not dispute the
Cabinet Meeting dated 27.2.2002, but asserts that abruptly
it was informed that the meeting has been convened to
recommend dissolution of Assembly and some of the Members
of the Council strongly objected and that there was no
unanimity on the issue and that no decision was taken by
the Council of Ministers in the meeting, held on
27.2.2002, to recommend dissolution of the State
Legislative Assembly.
92. It is significant to notice that 13 Ministers
present in the Cabinet Meeting affirmed on oath that there
was a meeting of the Cabinet and unanimous decision was
taken in the said meeting and 21 out of Members of the
Legislative Assembly affirmed on oath to stand by the
decision taken by the Council of Ministers to dissolve the
Legislative Assembly, thus looking to the magic figure of
21 out of 40, can it be said that the Chief Minister was
not enjoying majority in the House or the Council of
Ministers were not enjoying confidence of the House or
that the ruling party had no majority in the house or that
looking to the affidavits of all the 13 Ministers who were
Members of the Council of Ministers, can it be said that
there was no meeting of the Council of Ministers or that
no such resolution was adopted in the said meeting. The
Affidavit filed by Mr. Jose Philip DSouza, coming on
record after his resignation, speaks volume about the
reasons why he is filing such affidavit on record. At any
rate, he also does not deny that there was no meeting at
all. With this material on record, the assertions made by
the petitioners that there was no meeting or that there
was no meeting of the Council of Ministers or that the
advice tendered by the Chief Minister was his unilateral
advice or the Council of Ministers were not enjoying the
confidence of the House or majority in the House, must
fail.
93. With the above material on record, the
picture is clear that respondent No.3, the Chief Minister
was enjoying majority of the House and the Council of
Ministers did resolve to recommend dissolution of the
House to seek popular mandate as the Government was being
run on fractured mandate. Now the question is, when such
a advice comes to the Governor of the State, what should
be the role of the Governor or how the Government should
act or what procedure the Governor should adopt while
exercising his power or while accepting advice of the
Council of Ministers enjoying majority.
94. Factually, it is brought on record that on
receipt of the resolution containing advice of the Council
of Ministers, the Governor had verified the factual events
which had taken place in the Meeting of the Council of
Ministers; deliberations which took place in the said
Meeting through the Chief Secretary of the State and
appears to have consulted the Advocate General of the
State before deciding to accept the advice tendered by the
Council of Ministers. In this backdrop, what decision the
Governor should have taken, is not a question. The
question is, can it be said that the Governor has faulted
in accepting the said aid and advice tendered by the
Council of Ministers through the Chief Minister ? In this
behalf, it would be relevant to refer to the
recommendations of the Sarkaria Commission wherein it is
specifically mentioned that various Governors have adopted
different approaches in similar situations in regard to
dissolution of the Legislative Assembly. However, where
the Chief Minister had lost such support, some Governors
refused to dissolve the Legislative Assembly on his
advice, while others in similar situations, accepted his
advice and dissolved the Assembly. The Assembly was
dissolved in Kerala (1970) and in Punjab (1971) on the
advice of the Chief Minister whose claim to majority
support was doubtful. However, in more or less similar
circumstances in Punjab (1967), Uttar Pradesh (1968),
Madhya Pradesh (1969) and Orissa (1971) the Legislative
Assembly was not dissolved. Attempts were made to install
alternative Ministry. The opinion expressed by the
Sarkaria Commission is that the advice of the Chief
Minister enjoying majority is normally binding on the
Governor. The recommendation of the Sarkaria Commission
in this behalf are as under :
“4.11.15 The Council of Ministers may
advice the Governor to dissolve the
Legislative Assembly on the ground that it
wishes to seek a fresh mandate from the
electorate. If the Ministry enjoys a clear
majority in the Assembly, the Governor must
accept the advice. However, when the
advice for dissolving the Assembly is made
by a Ministry which has lost or appears to
have lost majority support, the Governor
should adopt the course of action suggested
in paras 4.11.09 to 4.11.13 and 4.11.20
above as may be appropriate.”
[emphasis
supplied]
The aforesaid recommendation, would clearly establish that
if the Ministry enjoys a clear majority in the Assembly,
the Governor must accept the advice and the said
recommendation further makes a recommendation in para
4.16.14 reading as under :
“4.16.14 So long as the Council of Ministers
enjoys the confidence of the Legislative
Assembly, the advice of the Council of
Ministers in regard to summoning and
proroguing a House of the Legislature and in
dissolving the Legislative Assembly, if such
advice is not patently unconstitutional,
should be deemed as binding on the
Governor.”
Keeping in view the aforesaid recommendations and
considering the situations from two different angles,
namely that the advice tendered by the Council of
Ministers enjoying clear majority in the Assembly, the
Governor must accept the advice and he has no discretion,
then in that event, this is a case wherein the Chief
Minister was enjoying clear majority, which is borne out
from the affidavits filed on record affirmed by 21
individual Members of the State Assembly. In this
situation, can it be said that any prima facie case is
made out to establish that the decision of the Governor
was arbitrary or malafide, prima facie answer to it would
be obviously, no.
95. Considering the same case from the another
angle that the Governor had a discretion in accepting such
advice, then can it be said that the Governor faulted in
accepting the said advice. On the historical backdrop of
exercise of discretionary powers by the various Governors
adopting different approaches in similar situation in
regard to the dissolution of the Legislative Assembly, in
order to answer this question one has to consider that the
“discretion” is the act or the liberty of deciding
according to the principles of justice and ones ideas of
what is right and proper under the circumstances, without
wilfulness or favour, and, as applied as to public
functionaries, means the power or right of acting
officially, according to what appears just and proper
under the circumstances. It must in a legal sense is the
responsible exercise of official conscience on all facts
of a particular situation in the light of the purpose for
which the power exists. The term “discretion” imports
exercise of judgment, wisdom and skill, as
contradistinguished from unthinking folly, heady violence,
and rash injustice. The “discretion means the equitable
decision of what is just under the circumstances. It
means the liberty or power of acting, without other
control in ones own judgment.
96. Thus, in absence of a hard and fast rule for
the establishment of a clearly defined rule, the duty
involves the character of Judgment or discretion which
cannot be controlled by mandamus. In the wake of this
meaning assigned to the word “discretion” can it be said
that the Governor has used his discretion
unconstitutionally in the matter of dissolution of the
State Legislative Assembly or the said discretion suffers
from unthinking folly, heady violence and rash injustice.
Can it be said that it is capricious or arbitrary action
on the part of the Governor. The discretion may be, and
is to a very great extent related by usage or by
principles which the authorities or constitutional
functionaries have learned by experience, when applied to
the great majority of issues, but it is still left to the
authorities to determine whether an issue is exactly alike
in every colour, circumstances and features to those upon
which the usage or principle is founded or in which it has
been applied. As already stated hereinabove, various
Governors have adopted different approaches in similar
situations in regard to dissolution of the Legislative
Assembly and in the backdrop of the fact that the advice
of a Chief Minister enjoying majority support in the
Assembly is normally binding on the Governor, I am of the
prima facie opinion that the Governor has exercised his
discretion in harmony with the Council of Ministers.
Judged from this angle, can it be said that any prima
facie case is made out by the petitioners to exercise
powers of review. Can it be said that any case is made
out by them so as to say that onus of proof stood shifted
on the respondents to justify their action, prima facie
answer to it would be obviously, no.
97. At this juncture, one more aspect which needs
to be taken into account is that the WP No.84/2002 itself
brings on record the earlier defections which have taken
place in the recent past on the political horizon of the
State, which is clear from the pleadings of the
petitioners themselves. In this backdrop, if the Governor
felt that having regard to the conditions then
prevailing in the State, he should accept the aid and
advice tendered by the Council of Ministers and should
exercise his discretion in harmony with his Council of
Minister to prevent further defections, horse trading or
to give an opportunity to the State to have a stable
Government in this backdrop, can it be said that any prima
facie case is made out to say that onus got shifted on the
respondents to justify their action. I think no. On the
above canvas of facts and circumstances, can it be said
that the decision of the Governor was tainted with mala
fides, so as to call upon the Governor to justify his
acts. I think no. A large number of decisions of
different Courts have been relied on by the petitioners,
but none of those Judgments are necessary or relevant for
the present. All those Judgments would have been relevant
only for deciding the issue on merits, had the petitioners
crossed the first hurdle and would have been successful in
shifting onus on the respondents.
CONSIDERATION OF SUBSEQUENT EVENTS :
98. I examined the facts of the present cases on
their own merits and have reached to the conclusion that
the petitioners failed to make out any case even for prima
facie enquiry. I am also of the opinion that the
subsequent events are such in nature and dimensions that
the case propounded by the petitioners have been
completely overshadowed and eclipsed by the said events
and the petitions are liable to be dismissed on this count
also.
99. The respondents submitted that whenever
subsequent events of facts and law which have bearing on
the entitlement of the parties to reliefs or on aspects
which have bearing on the petitions, the Court is not
precluded in taking cautious cognizance of the subsequent
changes of fact and law to mould the relief.
100. The petitioners strongly opposed the said
move to introduce these subsequent events on record and to
press them into service on the ground that the third Judge
is not expected to take fresh material on record which was
not before the Division Bench when the petitions were
heard and respective judgments were delivered in these
Writ Petitions. The submissions advanced on behalf of the
petitioners in this behalf need not detain me in view of
the fact that the petitioners themselves have moved Misc.
Civil Application No.371/2002 seeking production of the
material allegedly considered by the Governor while
dissolving the Assembly. The objection raised by the
petitioners for considering subsequent events is running
counter to the conduct of the petitioners themselves. If
the petitioners were of the view that no fresh material
could be taken on record and were serious in their
submissions, then they themselves would not have moved an
application seeking production of evidence which is not on
record.
FINDINGS ON SUBSEQUENT EVENTS :
101. Now turning to the rival submissions
advanced, it is needless to mention that the law on the
subject is well settled. The parties to the proceedings
cannot be prevented from bringing on record subsequent
events having bearing on the issues. In Lekh Raj v. Muni
Lal and others, (2001) 2 S.C.C., 762, The Apex Court has
observed thus :-
” 11. The law on the subject is
also settled. In case subsequent event
or fact having bearing on the issues or
relief in a suit or proceeding, which any
party seeks to bring on record, the court
should not shut its door. All laws and
procedures including functioning of
courts are all in aid to confer justice
on all who knock its door. Courts should
interpret the law not in derogation of
justice but in its aid. Thus bringing on
record subsequent event, which is
relevant, should be permitted to be
brought on record to render justice to a
party. But the Court in doing so should
be cautious not to permit it in a
routine. It should refuse where a party
is doing so to delay the proceedings,
harass the other party or doing so for
any other ulterior motive. The Courts
even before admitting should examine,
whether the alleged subsequent event has
any material bearing on the issues
involved and which would materially
affect the result. In Pasupuleti
Venkateshwarlu v. Motor & General
Traders this Court has very clearly held
to the same effect: (SCC pp. 772-73,
para 4).
” It is basic to our processual
jurisprudence that the right to relief
must be judged to exist as on the date a
suitor institutes the legal proceeding.
Equally clear is the principle that
procedure is the handmaid and not the
mistress of the judicial process. If a
fact, after the lis has come to Court and
has a fundamental impact on the right to
relief or the manner of moulding it, is
brought diligently to the notice of the
Tribunal, it cannot blink at it or be
blind to events which stultify or render
inept the decretal remedy. Equity
justifies bending the rules of procedure,
where no specific provision or fair play
is violated, with a view to promote
substantial justice – subject, of course,
to the absence of other disentitling
factors or just circumstances. Nor can
we contemplate any limitation on this
power to take note of updated facts to
confine it to the trial court. If the
litigation pends, the power exists,
absent other special circumstances
repelling resort to that course in law or
justice. Rulings on this point are
legion, even as situations for
applications of this equitable rule are
myriad. We affirm the proposition that
for making the right or remedy claimed by
the party just and meaningful as also
legally and factually in accord with the
current realities, the court can, and in
many cases must take cautious cognizance
of events and developments subsequent to
the institution of proceeding provided
the rules of fairness to both sides are
scrupulously obeyed. ”
12. This Court in Ramesh Kumar v.
Kesho Ram held: (SCC pp. 626-27, para
6)
“6. The normal rule is that in any
litigation the rights and obligations of
the parties are adjudicated upon as they
obtain at the commencement of the lis.
But this is subject to an exception.
Wherever subsequent events of fact or law
which have a material bearing on the
entitlement of the parties to relief or
on aspects which bear on the moulding of
the relief occur, the court is not
precluded from taking a cautious
cognizance of the subsequent changes of
fact and law to mould the relief. In
Lachmeshwar Prasad Shukul v. Keshwar Lal
Chaudhuri Chief Justice Sir Maurice Gwyer
observed: (AIR p.6):
But with regard to the question
whether the court is entitled to take
into account legislative changes since
the decision under appeal was given, I
desire to point out that the rule adopted
by the Supreme Court of the United States
is the same as that which I think
commends itself to all three members of
this Court. In Patterson v. State of
Alabama Hughes, C.J., said: ” We have
frequently held that in the exercise of
our appellate jurisdiction we have power
not only to correct error in the judgment
under review but to make such disposition
of the case as justice requires. And in
determining what justice does require,
the Court is bound to consider any
change, either in fact or in law, which
has supervened since the judgment was
entered. ” ”
Keeping in view the above observations, it is clear that
subsequent events having great impact on these petitions
can be taken into consideration.
102. Taking into account the aforesaid subsequent events
leading to subsequent elections to the Assembly of the
State of Goa, consequent upon Notification dated 2.6.02, a
new Legislative Assembly for the State came to be
constituted and that it has started functioning with its
first meeting. There was no challenge to the elections
notified on 6.5.02 nor is there any challenge to the
Notification dated 11.5.02 issued by the Election
Commission of India whereby fresh elections for the
constitution of new Assembly were directed. Even there is
no challenge to the newly constituted Legislative Assembly
of the State. None of the newly elected members of the
Legislative Assembly are parties to these petitions. None
of them are before this Court. The petitioners are
seeking a relief of declaration as prayed, if granted, it
will have the effect of reviving the dissolved Assembly
and unseating all the newly elected members of the
Legislative Assembly without there being any challenge to
their election or to the newly constituted Assembly of the
State, that too without affording them any opportunity of
hearing. The question is can such a relief be granted in
the present petitions resurrecting the dissolved Assembly
and thereby putting life in the dissolved Assembly and
thereby taking away the vested rights of the newly elected
members of the Legislative Assembly ? To my mind, the
answer must be in the negative.
103. On the above factual matrix the question with regard
to the validity of the proclamation dissolving the
Assembly is no longer a live issue. The issues sought to
be raised in the petitions have become academic due to
subsequent elections to the Assembly giving birth to a
newly constituted Legislative Assembly of the State. In
absence of any challenge to fresh elections or to the
newly constituted Assembly it would be impermissible to
issue any such declaration or directions to revive the
dissolved Assembly and to reinduct the erstwhile State
Government into the office. As a matter of fact, in these
petitions, in my view, the petitioners ought to have
challenged the Notification dated 11.05.2002 issued by the
Election Commissioner of India, declaring general
elections for constituting the new Assembly of the State
of Goa, which were scheduled to be held on 30th May, 2002
so as to keep the issue alive. In Pearelal v. Union of
India, no relief was granted by the Apex
Court as orders issued subsequent to the order under
challenge, were not challenged by amending the petition.
It was, thus, held that the original petition had become
infructuous.
104. The fresh elections have taken place during
the pendency of these petitions. Legislative Assembly and
Ministries have been constituted. The issue involved in
the petitions has become academic. Thus in absence of any
challenge to the Notification directing fresh elections
and further challenge to the constitution of newly
constituted Assembly, it will not be possible for this
Court to exercise any power under Article 226 to put the
clock back.
105. The writ jurisdiction is meant for
extraordinary relief and limited by conditions, it is
intended to be issued for a definite and fruitful purpose
for doing substantial justice. It cannot be issued for a
mere declaration of right. The Supreme Court in the case
of Suresh v. Vasant, held that while
granting relief High Court should keep in view that the
issue of writ would not be futile. In Balmadies
Plantations v. State of Tamil Nadu, ,
wherein the question of validity of a notice under the Act
which had not been brought into force was not examined as
the matter was purely academic in nature. In the case of
M. Ismail Faruqui v. Union of India, , the Apex Court while dealing with the
maintainability of the reference refused to answer
Reference and returned the same. The observations made in
this behalf are reproduced hereinbelow :
“…. the Reference made under Art.
143(1) becomes superfluous and
unnecessary. For this reason, it is
unnecessary for us to examine the merits
of the submissions made on the
maintainability of this Reference. We,
accordingly, very respectfully decline to
answer the Reference and return the same.
106. As already set out hereinabove, no challenge
was set up by amending petitions to the Notification
issued by the Election Commission of India holding
elections to the General Assembly. Elections have been
held to the State Assembly. New Assembly, by virtue of
Notification dated 2.06.2002 has been constituted. Newly
constituted Assembly is not under challenge. Newly
elected members of the Legislative Assembly are not
parties to the petitions. Under these circumstances, one
has to reach to the conclusion that the issue is not a
live issue and has become academic. The same approach was
adopted by the Judges of the Apex Court in the case of
S.R. Bommai (supra) though the majority view was that it
would be open to this Court to restore the status quo ante
to the issuance of the proclamation to restore the
Legislative Assembly and Ministry provided the issue is
kept burning. As a matter of fact, the State of Rajasthan
V/s. Union of India, holds that
inspite of disapproval or non-approval does not survive
the Legislative Assembly which may have been dissolved
but, this aspect has not been dealt with, specially in
view of the law declared by the Supreme Court that no such
dissolution is permissible before approval off both the
Houses. However, in these petitions, dissolution being in
exercise of powers under Article 174(2)(b) different
consideration would prevail. At any rate because of other
vital defects in the petitions, as pointed out
hereinabove, it will be futile to issue any writ in
exercise of writ jurisdiction of this Court. Thus it
follows as a fortiori the validity of the impugned
dissolution cannot be examined in these petitions. The
petitions must fail.
107. The petitioners having contested the
elections to the newly constituted State Legislative
Assembly, have caused substantial damage to their
petitions. In my view, in view of the acquiescence on the
part of the petitioners by contesting fresh elections,
these writ petitions filed by the petitioners are now
rendered infructuous and it would be futile to issue any
writ at this stage. The Apex Court in the case of
Rajendra Prasad Yadav and ors. v. State of M.P. and
ors., , adopted the similar approach and
refused to issue futile writ. All the petitioners are now
elected members to the newly constituted Legislative
Assembly. They are enjoying all the privileges in that
capacity. They cannot be allowed to blow hot and cold.
In this view of the matter, as a matter of propriety, they
should not have proceeded to prosecute and/or pursued
these petitions any more being responsible Members of the
law making fraternity after having become members of the
newly constituted Legislative Assembly and should have
helped this Court by gracefully withdrawing the petitions,
so as to save valuable and precious judicial time. But it
appears that the petitioners prosecuted these petitions
only to gain political mileage. Practice of using the
judicial forums or Courts for political benefits needs to
be arrested. In this view of the matter, the petitions
need to be dismissed with heavy costs. In the aforesaid
premises, I agree with the order passed by my Brother,
Hardas, J. that these petitions deserve to be dismissed.
108. I, therefore, make the following Order :
In the result, both the petitions are dismissed
with costs quantified in the sum of Rs.25,000/- to be paid
by each petitioner. Rule stands discharged in both the
petitions.
Before parting with the case, I wish to place my
appreciation on record for the assistance rendered to me
by all the learned Counsel appearing on behalf of the
respective parties to the petitions.
In accordance with the Clause 36 of the Letters
Patent, read with Rule 15 of Chapter XVII of the Bombay
High Court Appellate Side Rules 1960, these petitions be
now placed before the Division Bench for pronouncement of
final Judgment or Order disposing of these petitions.
V.C. Daga, J.
109. Heard rival contentions. Shri Y.V.
Nadkarni, learned counsel appearing for the petitioner in
Writ Petition No.84 of 2002, submitted that this matter
should be heard by this Division Bench after the receipt
of the certified copy of the judgment by the petitioner.
110. It is needless to mention that when the
Judgment was delivered by one of us as a Third Judge
(Daga, J.), the Judgment was ready and available for
perusal of the parties. In this view of the matter, we do
not think that the request made is reasonable. Hence, the
request is rejected.
111. Shri J. DSouza, learned counsel appearing
for the petitioners in Writ Petition No.88 of 2002,
reported no instructions. The statement made by him and
information passed on to this Court is taken note of.
112. In view of the majority view, the petitions
are dismissed. Rule in both petitions stands discharged.
Each petitioner shall bear the costs of the respondents,
separately quantified in the sum of Rs.25,000/- (Rupees
twenty five thousand only) per petitioner.
V.C. Daga, J.
P.V. Hardas, J.
Hardas, J:
113. In addition to our above order, I propose to
place on record that when these petitions were heard by me
with Learned Brother Aguiar J., certain subsequent events,
which have taken place such as holding of the elections,
declaration of the results thereof and consequent
constitution of the new Legislative Assembly of the State
were not the subject-matter of consideration as these are
subsequent events.
114. In view of the subsequent events, I herewith
endorse the views of my Learned Brother Daga J., that the
issue is no longer alive and petitions are rendered
infructuous in view of the subsequent events and no
fruitful purpose would be served by issuing writs as
prayed for in the petitions. The petitions are thus
liable to be dismissed on this count also. Accordingly,
these petitions are dismissed as per the order recorded in
the opening part of this Order.