JUDGMENT
B.P. Singh, J.
1. This writ petition has been filed by the petitioners for quashing that part of the direction of the Governor dated 9-3-99 whereby he has called upon the Chief Minister to prove her majority on the floor of the House within ten days of the date on which she was administered oath of office and secrecy by the Governor. Petitioner No. 1 claims to be anon political institution engaged in the work of legal studies, and research for the growth of democratic culture while petitioner No. 2 is a practicing advocate of this Court. Their, grievance is that the Governor has no authority under the Constitution to call upon the Chief Minister who has been administered oath of office to prove her majority on the floor of the house within the period prescribed by the Governor. According to the petitioners, there is no such thing as a ‘vote of confidence under the Indian Constitution and, therefore, by giving such a direction the Governor has acted beyond his powers and in an unconstitutional manner. Mr. Ram Janam Ojha, senior advocate who appeared for the petitioners clearly stated before us that he was not challenging the decision of the Governor to administer the oath of office to Smt. Rabri Devi who had been elected the leader of Rashtriya Janata Dal in the Bihar Legislative Assembly. The challenge is only to that part of the decision whereby she has been called upon to prove her majority on the floor of the House within ten days.
2. The learned Advocate General appearing on behalf of the State of Bihar has strenuously urged before us that the objection of the petitioners has no force as it ignores the very basic characteristics of the Indian Constitution which has adopted the Cabinet form of Government based on the West minister model. It is a cardinal principle of parliamentary democracy as envisaged in the Indian Constitution that the Council of Ministers must be collectively responsible to the Legislative Assembly of the State. By calling upon the Chief Minister to prove her majority on the floor of the House, the Governor has only sought to invoke and enforce this principle which is implicit in the constitutional scheme. He has also raised a preliminary objection as to the maintainability of this writ petition submitting that since the Governor has acted in his discretion, the same cannot be questioned before this Court in view of the express provision contained in Article 163 (2) of the Constitution of India.
3. A few facts not disputed by the parties may be noticed at the threshold. By a proclamation issued on 12th February, 1999 by the President of India under Article 356 of the Constitution of India President’s Rule was imposed in the State of Bihar and the government headed by Smt. Rabri Devi was dismissed. However, the Legislative Assembly was not dissolved and was kept in a state of suspended animation. The presidential
proclamation received the approval of Lok Sobha but before the same could be approved by the Rajya Sabha, ‘the proclamation was revoked on 8th March, 1999. On 9th March, 1999 the Governor of Bihar wrote to Smt. Rabri Devi that he had been informed that she had been elected the leader of Rashtriya Janata Dal in the Bihar Legislative Assembly. He there fore, invited her under Article 164(1) of the Constitution of India on 9th March, 1999 at 5.30 P.M. for administering to her the oath of office and secrecy. He further directed her that within ten days of the administering of oath of office and secrecy, she must prove her majority in the Legislative Assembly and inform him accordingly.
4. The instant writ petition was filed on 15th March 1999 and wasptaced before a Bench of this Court on 16th March, 1999. The Bench directed that the matter be placed before another Bench. That is how this matter came up before this Bench on 16th March, 1999. By its order dated 16th March, 1999 this Court dismissed the interlocutory application filed by the petitioners in which it was prayed that this Court may be pleased to stay the operation of the direction of the Governor contained in his communication dated 9th March 1999 requiring the Chief Minister to prove her majority on the floor of the House within ten days. The matter has thereafter been heard at length, and we now proceed to dispose of the writ petition.
5. It was strenuously urged before us on behalf of the petitioners that there is no provision in the Constitution which empowers the Governor to call upon the Chief Minister, to whom he has administered the oath of office and secrecy, to prove her majority on the floor of the House within the stipulated period. Counsel submitted that in the absence of such a provision, the direction of the Governor is void in law. In the absence of singh a provision, applying the rule of causes omissus, neither the Governornor the Court could read into the Constitution something which has not been provided for, and for this he has placed reliance upon a decision of the Supreme Court in Commr. of Income Tax, Central Calcutta v. National Taj Traders, AIR 1980 SC 485.
6. It was then submitted by counsel for the petitioners that having appointed a Chief Minister, the Governor should have left the matter to the legislature. If the legislature had no confidence in the Council of Ministers, it could pass a no-confidence motion forcing the government to resign, failing which the Governor could dismiss the Government which failed to secure a majority in the Legislative Assembly.
7. He placed reliance on the Rules of Procedure and Conduct of Business framed by the Bihar Legislative Assembly, and submitted that the only procedure recognised by the rules to remove a government which had lost its majority in the House against the government. The direction of the Governor requiring the Chief Minister to secure a vote of confidence in the House was a novel procedure unrecognised by the Constitution and Rules of Procedure and Conduct of Business framed by the Legislature Assembly. He submitted that by requiring the Chief Minister to prove her majority on the floor of the House, the Governor had created a situation which may give rise to horse trading and other unethical political practices. Moreover by proving her majority on the floor of the House, the party in power will get an opportunity to prove its strength and gain political mileage.
8. The learned Advocate General, on the other hand, submitted that the direction of the Governor did not suffer from any legal infirmity since his direction is in conformity with the very scheme of the Indian Constitution which generally embodies the parliamentary or cabinet form of Government on the British model for both Union and the States. Though there was no reference to a vote of confidence or no-confidence in the Constitution of India, while interpreting a Constitution which establishes a parliamentary system of Government with a cabinet, one has to keep in mind the conventions prevalent at the time the Constitution was framed. Powers of a Governor of a State must be exercised in a manner which helps the efficient functioning of a parliamentary and cabinet form of Government which makes the Council of Ministers collectively responsible to the House. If the Governor exercises his discretion with a view to enforce this collective responsibility, his action cannot be said to be extra-constitutional, He further submitted that even a vote of no-confidence is not a creature of the Indian Constitution in the sense that there is ‘no express provision for passing a vote of no-confidence. The submission urged on behalf of the petitioners is, therefore, illogical, and if the submission is to be accepted, there can be no legal justification for a legislature to pass a vote of no-confidence against the government. If the Constitution is interpreted in the manner proposed by the petitioners, it would lead to an absurdity and destroy the very basic principles which govern the functioning of a parliamentary democracy with a cabinet form ‘of Government, where the Council of Ministers is responsible to the Legislature.
9. The learned Advocate General raised a preliminary objection as to the maintainability of this writ petition. He submitted that Article 163(2) of the Constitution of India provides that when a question arises whether any matter is or is not a matter as respects which the Governor is by or under the 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. He also referred to Article 361 of the Constitution of India and submitted that the Governor is not answerable to any Court for the exercise and performance of the powers and duties of his office or for any act done orpurported to be done by him in the exercise and performance of those powers and duties. He, therefore, submitted that since the Governor has acted in his discretion, that cannot be called in question and the Governor is not even answerable to this Court for the exercise and performance of his discretionary powers and duties.
10. We find no force in the preliminary objection. So far as Article 163 (2) is concerned, it is true that, if any question arises whether any matter is or is not a matter as respects which the Governor is by or under the Constitution, required to act in his discretion, the decision of the Governor in his discretion shall be final. The validity of anything done by the Governor cannot be called in question on the ground that he ought or ought not to have acted in his discretion. Patently anything done by the Governor in his discretion cannot be called in question on the ground that he ought or ought not have acted in his discretion. In the instant case the challenge to the action of the Governor is not on the ground that he ought not to have acted in his discretion, but on the ground of lack of power to issue such a direction,’ which has been described as extra-constitutional. In a nutshell, the petitioners contend that the Governor has no power, to require the Chief Minister to prove his/her majority on the floor of the legislature and not that the Governor should not have in his discretion called upon the Chief Minister to prove his/her majority. Such a question may arise only if there is a Council of Ministers to aid and advise the Governor. In the instant case there was no Council of Ministers in existence when the Governor issued the communication dated 9th March, 1999 inviting Smt. Rabri Devi to form the Government. The question then is whether the action of the Governor can be challenged on any other ground. Having regard to the principles laid down by the Supreme Court in , S.R. Bommai v. Union of India, AIR 1994 SC 1918 it would be difficult to contend that the action of the Governor even in the exercise of his discretion is not justiciable and, therefore, not open to judicial review, though the extent of justiciability is a matter which has to be considered by the Court. The personal protection given to-the Governor under Article 361 does not mean that his action cannot be challenged in a court of law. The preliminary objection of the Advocate General must, therefore, be rejected.
11. The spirit of the Constitution must be gathered from the language used while remembering that it is a Constitution, a mechanism under which laws are to be made and not a mere Act which declares what the law is to be. Therefore; the Constitution must not be construed in a narrow or pedantic manner. It is not for a court to enlarge constructively the conditions and restrictions contained in the Constitution, but the nature of the Constitution may be important on a question of construction. New situations may arise with the passage of time which the framers of the Constitution may not have visualised and, therefore, a generic interpretation or flexible construction may be given to the Constitution which is a living organism so that it may meet the requirement of the changing society at different times. The Supreme Court in State of Madras v. Cannon Dunkerley & Co., (Madras) Ltd., AIR 1958 SC 560 emphasised the utility of this principle in these words (Para 36):
“the principle of these decisions is that when, after the enactment of a legislation, new facts and situations arise which would not have been in its contemplation, the statutory provisions could properly be applied to them if the words thereof are in a broad sense capable of containing them. In that situation, “it is not that the meaning of the words changes, but the changing circumstances illustrate and illuminate the full import of that meaning. “The question then would be not what the framers understood by those words, but whether those words are broad enough to include the new facts.”
12. It is also settled law that our Constitution generally embodies the parliamentary or the cabinet form of Government on the British model and it is a fundamental principle of English constitutional law that the sovereign does not act on his own responsibility but on the advice of the Ministers, who accept the responsibility and who command the confidence of the House of Commons. This principle of English Constitutional law in embodied in our Constitution. Article 163 providing 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 Council of Ministers. Powers of the President and the Governors are similar to the powers of the crown under the British Parliamentary system (see Samsher Singh v. State of Punjab, AIR 1974 SC 2192).
13. Article 163 of the Constitution provides that there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in exercise of his functions, except in so far as he is by or under the Constitution required to exercise his functions or any of them in his discretion. The Constitution does, therefore, make a distinction between matters in which the Governor must act on the aid and advice of the Council of Ministers and matters in which he must act in his discretion. It cannot be disputed that the President and the Governors are the formal or constitutional heads of the Union and States and they must act on the aid and advice of the Council of Ministers, except where provision is made to the contrary by the Constitution. The discretionary powers of the Governor need not be express but may be necessarily implied. Article 164 provides that the Chief Minister shall be appointed by the Governor and other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor. Clause (2) of Article 164 further provides that the Council of Ministers shall be collectively responsible to the legislative Assembly of the State. It, therefore, follows that the Governor while appointing a Chief Minister must keep in mind the fact that the Council of Ministers is collectively responsible to the Legislative Assembly and consequently the person appointed as the Chief Minister must be one who can form a Government which enjoys the majority support of the members of the Legislative Assembly. The Chief Minister is appointed by the Governor in his discretion, but the other Ministers are appointed by the Governor in the advice of the Chief Minister, though they hold office during the pleasure of the Governor. The clear words of the Article necessarily imply that the Governor has a discretion in making appointment of Chief Minister. The discretion so vested in the Governor may not be of much significance in normal situation, hut in the changed situations they may become highly significant. If after general election a party is returned with a clear majority the discretion of the Governor in appointing the Chief Minister would ordinarily be a formality, but if it appears from the result of the general election that no party with a clear majority is returned to the legislative assembly, the Governor has a real discretion to ascertain for himself which party or combination of parties can form a suitable Government. He has also to ascertain which of the persons contending for leadership is accepted by such party or parties as their leader. In such a situation the Governor must necessarily act in his discretion. It was observed by Krishna Iyer, J. in Shamsher Singh’s case (para 153 of AIR):
“We declare the law of this branch of our Constitution to be that the President and Governor, custodians of all executive and other powers under various Articles shall, by virtue of these provisions exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well-known exceptional situations without being dogmatic or exhaustive, these situations relate to (a) the choice of Prime Minister (Chief Minister), restricted this choice is by the paramount consideration that he should command a majority in the house; (b) the dismissal of a Govt. which has lost its majority in the House but refuses to quit office; (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 obligatory.”
14. In U. N. R. Rao v. Smt. Indira Gandhi, AIR 1971 SC 1002 it was held that in interpreting the provisions of our Constitution relating to the Cabinet form of a Government regard must be had to the conventions prevailing in England when the Constitution was framed. No doubt if the words of the Article are clear, notwithstanding any relevant convention, effect will no doubt be given to the words. It must be remembered that we are interpreting a Constitution and not an Act of Parliament. A Constitution which established a parliamentary system of Government with cabinet. In trying to understand one may well keep in mind the conventions prevalent at the time the Constitution was framed.
15. The framers of our Constitution were familiar with the conventions in England governing the relation between the Crown and the Prime Minister. The conventions of the British Constitution broadly fall in two categories and those which relate to the prerogative of the Crown and those which relate to the privileges of the Parliament. Some of those conventions are embodied in our Constitution, others are not, but are necessarily implied. The convention that the crown is bound to exercise her legal powers in accordance with the advice tendered to her by the Cabinet finds embodiment in Article 163 of the Constitution of India. Similarly, right of the crown to be informed and to express her views on the questions at issue finds expression in Article 167 of the Constitution. The convention that the crown must invite the leader of the party or group commanding the majority of the House of Commons to form a ministry and that the crown must appoint as her other Ministers, such persons as the Prime Minister advises her to appoint is substantially incorporated in Article 164 (1) of the Constitution. The convention that the Ministers are collectively responsible to Parliament also finds expression in Article 164(2) of the Constitution which, provides that the Council of Ministers shall be collectively responsible to the Legislative Assembly of the Stale.
16. In this background of the settled legal position, we shall now consider the submission urged on behalf of the petitioners that since there is no provision in the Constitution empowering the Governor to require a Chief Minister to prove his majority on the floor of the House, the Governor could not have directed the Chief Minister to do so. Counsel placed considerable reliance upon a decision in Commr. of Income-tax, Central Calcutta v. National Taj Traders, AIR 1980 SC 485. In the aforesaid decision their Lordships observed that two principles of construction -one relating to casus omissus and the other in regard to reading the statute as a whole, appeared to be well-settled. It quoted with approval the statement of law as it appears in Maxwell on Interpretation of Statutes (12th Edn.) at page 33 that it is a corollary to the general rule of literal construction that nothing is to be added to or taken from a statute unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express. Further every clause of a statute is to be construed with reference to the context and other clause of the Act, so as, as far as possible, to make a consistent enactment of the whole statute. Their Lordships then declared the law as follows (At Pp. 489-90 of AIR) :
“In other words, under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature.”
17. The casus omissus rule is at best a rule of construction and as held by the Supreme Court it does not place an absolute bar on the court to read something in the statute which it does not provide for specifically. There are exceptions to the broad rule and where a clear necessity and reason for it is found in the four corners of the statute itself, the court may read into a statute that which has not been expressly provided for, so that the construction put on a particular provision makes a consistent enactment of the whole statute. Particularly if the literal construction leads to manifestly absurd or anomalous result which could not have been intended by the legislature. The question is whether in the exercise of his discretion the Governor cannot call upon the Chief Minister to be appointed to prove his strength on the floor of the House. To us it appears that even if the Constitution does not refer in express words to a vote of confidence, or to a vote of no confidence, the principle of collective responsibility of the Council of Ministers to the legist live Assembly includes within its ambit the rule that the Council of Ministers must enjoy the support of the majority of members of the Legislative Assembly, How this majority has to be ascertained is left to the discretion of the Governor, and in a given situation there may be more than one method of ascertaining the support of the majority. Where the picture is clear and unambiguous and there is no doubt that a particular party enjoys a majority in the House, and a particular person has been elected as the leader of that party, the Governor, must, in the exercise of his discretion, invite the leader of that party to form the Government. Where the picture is not very clear, it is left to the discretion of the Governor to make his own assessment. It is also left to the discretion of the Governor as to the method that he may adopt for making his assessment. The discretion of the Governor is unfettered in this regard, and he may choose any one of the methods which appears to him to be most suitable and appropriate to the situation then real test, because whatever a member of the Legislative Assembly may say outside the Legislative Assembly has no significance unless he acts in accordance with the declaration made by him while voting as a member of the Legislative Assembly. As long as the Governor acts in a reasonable manner and with a view to achieve an objective consistent with the constitutional scheme, his discretion cannot be questioned. In the instant case it is not urged on behalf of the petitioners that the Governor did not act constitutionally in inviting Smt. Rabri Devi to form the Government. His sole objection is that having done so, the Governor should not have called upon the Chief Minister to prove her majority on the floor of the House. We are of the view that the Governor in his discretion may not call upon the Chief Minister to prove her strength on the floor of the House. His discretion cannot be questioned on any tenable ground. But we are also of the view that if he docs call upon the Chief Minister to prove his strength on the floor of the House, even that is within the scope of his discretion. We cannot lose sight of the fact that the government when it was dismissed, enjoyed the confidence of the majority of the members of the House. That government was dismissed, and consequently did not exist on the day on which the Presidential proclamation was revoked. The Legislative Assembly, however, reviewed since it was kept in a state of suspended animation. The Governor was, therefore, faced with a situation where mere was a Legislative Assembly but no Chief Minister or Council of Ministers; much the same situation as emerges immediately after the general election. In the circumstances, it was necessary for him to call upon someone to form a Government, and the Government so formed must enjoy the confidence of the majority of members of the legislative assembly since there was no change in the political situation, upon Smt. Rabri Devi being elected as leader of the majority party, he had no difficulty in inviting her to form the Government: One cannot, however, overlook the fact that the State was under President’s rule for a few weeks, and the possibility that there may have been some change in the political situation could not be ruled out, though, prima facie, there did not appear any significant change. The Governor was satisfied that Smt. Rabri Devi was the leader of the political party which enjoyed majority support in the House but with a view to lend assurance to the decision taken by him he called upon her to prove her majority on the floor of the House. Nothing has been shown to us which prevented the Governor from doing so. The insistence upon the Government seeking a vole of confidence in the House serves the twin purpose of assuring the Governor that his decision was correct, and satisfying the electorate that the Chief Minister appointed by the Governor enjoyed the majority support of the members of the Legislative Assembly. There appears to be nothing irrational or malicious in the direction of the Governor, and the direction was given only with a view to induct a government which enjoyed the majority support in the Legislative Assembly to which it was collectively responsible.
18. It is implicit in the constitutional scheme itself that the Governor, before he calls upon a leader of a political party to form a Government, must satisfy himself at least prima facie, that he enjoys the majority support in the Legislative Assembly. The claim of a political party can really be tested only on the floor of the House, and in a situation where there is no Council of Ministers, obviously the Governor cannot be expected to act on the advice of Council of Ministers. At the time he exercises his discretion it is not possible for him to hold the floor test, which can be held only after a particular leader of a political party is invited to form a Government. The Governor acts in his discretion only with a view to achieve the constitutional objective, namely, to invite a leader of a political party to form a Government which enjoys the majority support in the Legislative Assembly. He, therefore, does not act in any manner contrary to the constitutional scheme, and his effort is only to induct a government which has majority support in the House. There is, therefore, a clear necessity for him to make an assessment of the political situation with a view to give effect to the constitutional scheme. If the provisions of the Constitution were to be construed literally, without having regard to the constitutional scheme, it would lead to manifestly absurd result which could not have been intended by the framers of the Constitution. If applying the rule related to casus omissus it were to be held that the Governor cannot call upon a party claiming a majority to satisfy him about the genuineness of its claim inter alia, by seeking a vote of confidence on the floor of the House, the discretion vested in the Governor would be rendered otiose and the constitutional scheme can never be implemented. Of necessity, therefore, with a view to implement the constitutional scheme the Governor must in his discretion invite the leader of a political party to form a Government, and this he can do only after satisfying himself that the Government inducted by him will have the support of majority of members in the Legislative Assembly. Article 164 cannot be read in isolation, and must be construed with reference to the context and other provisions of the Constitution, so that the construction put is consistent with the constitutional scheme. Good reasons, therefore, existed which justified the action of the Governor calling upon the Chief Minister to prove her majority on the floor of the House by seeking a vote of confidence. As noticed earlier, the Constitution does not make any reference either to a vote of confidence or to a vote of no-confidence, and it would indeed be preposterous to suggest that since the Constitution does not refer to these, in a parliamentary form of Government there can be no vote of confidence or vote of no-confidence for or against the Government. The entire constitutional scheme envisaged a parliamentary form of government with a cabinet system would be defeated if such a construction is put on the provision of Article 164 of the Constitution of India applying the rule relating to casus omissus. We, therefore, find no force in the main submission urged on behalf of the petitioners.
19. Counsel for the petitioners referred to the decision in Bommai’s case (AIR 1994 SC 1918) and submitted that upon revocation of the proclamation the legislature revived and so did the Council of Ministers and, therefore, there was no need for the Council of Ministers to seek a vote of confidence, since the situation as it existed before the proclamation was issued, was restored. In our view, the decision in Bommai’s case on this aspect of the matter does not help the petitioners. In Bommai’s case the majority opinion was that on the president’s proclamation being held to be invalid or not being approved by both the Houses of Parliament, the dismissed ministry was reinducted in office and the dissolved legislature was revived and continued to function as before. This was on the principle that an action held to be unconstitutional is non est and can have no effect. In the instant case the proclamation has not been held to be invalid by a Court of law or has it been disapproved by both the Houses of Parliament. Indeed, though it has the approval of Lok Sabha it was revoked before it could be placed for approval before the Rajya Sabha. The principle laid down in Bommai case will not, therefore, apply to the case of a presidential proclamation which has been revoked, and not disapproved by both the Houses of Parliament or held to be invalid by a Court of law. !n any event this question does not arise for consideration in this writ petition because the legislature had not been dissolved, and as a matter of fact it did revive automatically on the revocation of the proclamation. Moreover the same leader of the same party was inducted into office by the (sic) It cannot, therefore, be urged that the Governor did something which can even be remotely be considered to be illegal.
20. It was then faintly submitted that Rules of Procedure and conduct of business framed by the Legislative Assembly provide a detailed procedure for consideration of a vote of no-confidence by the House, but no procedure has been laid down for consideration of a vote of confidence. Even if it be so, that would not affect in any manner the discretion vested in the Governor. Rules of Procedure and conduct of Business framed by the Legislative Assembly do not control the discretionary power vested in the Governor. In any event, it is always open to the Legislative Assembly to evolve a procedure for consideration of a vote of confidence.
21. It was lastly submitted that there should also be a positive vote of confidence and the legislature should be asked to specify who if not the Chief Minister in power should be invited to form a Government. This question is academic in the facts and circumstances of this case. The question may arise if at all, where a vote of no confidence is sought to be passed against the government in power, and there are conflicting claims to majority in the House. In the instant case the petitioners have not even alleged that Rabri Devi Government did not enjoy majority support in the House. In fact as subsequent events prove, the vote of confidence was passed by Legislative Assembly.
22. For these reasons we find no merit in the writ petition and the same is, accordingly, dismissed.
Ashish N. Trivedi, J.
23. I agree.