{"id":134627,"date":"1977-05-06T00:00:00","date_gmt":"1977-05-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-rajasthan-ors-etc-etc-vs-union-of-india-etc-etc-on-6-may-1977"},"modified":"2019-01-15T10:00:08","modified_gmt":"2019-01-15T04:30:08","slug":"state-of-rajasthan-ors-etc-etc-vs-union-of-india-etc-etc-on-6-may-1977","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-rajasthan-ors-etc-etc-vs-union-of-india-etc-etc-on-6-may-1977","title":{"rendered":"State Of Rajasthan & Ors. Etc. Etc vs Union Of India Etc. Etc on 6 May, 1977"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of Rajasthan & Ors. Etc. Etc vs Union Of India Etc. Etc on 6 May, 1977<\/div>\n
Equivalent citations: 1977 AIR 1361, \t\t 1978 SCR (1)\t 1<\/div>\n
Author: M H Beg<\/div>\n
Bench: Beg, M. Hameedullah (Cj), Chandrachud, Y.V., Bhagwati, P.N., Goswami, P.K. & Gupta, A.C., Fazalali, S.M. & Untwalia, N.L.<\/div>\n
           PETITIONER:\nSTATE OF RAJASTHAN & ORS.  ETC. ETC.\n\n\tVs.\n\nRESPONDENT:\nUNION OF INDIA ETC. ETC.\n\nDATE OF JUDGMENT06\/05\/1977\n\nBENCH:\nBEG, M. HAMEEDULLAH (CJ)\nBENCH:\nBEG, M. HAMEEDULLAH (CJ)\nCHANDRACHUD, Y.V.\nBHAGWATI, P.N.\nGOSWAMI, P.K.\nGUPTA, A.C.\nUNTWALIA, N.L.\nFAZALALI, SYED MURTAZA\n\nCITATION:\n 1977 AIR 1361\t\t  1978 SCR  (1)\t  1\n 1977 SCC  (3) 592\n CITATOR INFO :\n D\t    1978 SC  68\t (38,63,143,150,158,196,198,201\n RF\t    1978 SC 499\t (14)\n RF\t    1979 SC 478\t (76,124)\n RF\t    1980 SC 653\t (11)\n RF\t    1980 SC1789\t (104)\n R\t    1981 SC2138\t (4)\n R\t    1982 SC 149\t (60,618,981)\n O\t    1982 SC 710\t (25,27)\n R\t    1984 SC1675\t (10)\n D\t    1985 SC1416\t (142)\n E&R\t    1987 SC 331\t (35,36)\n RF\t    1992 SC2219\t (87)\n\n\nACT:\nConstitution  of India, 1950, Articles 131, 256,  257-Advice\nby Home Minister, Union of India to Chief Minister of  State\ndated 18-4-1977 to recommend under Art. 163 to the  Governor\nto  dissolve  Legislative Assembly  under  Art.\t 174(2)(b).-\nNature\tof the advice, whether any relief as prayed  for  in\nthe suits and petitions can be granted.\nDoctrine of Rough separation of powers-Nature of-Duty of the\ncourt  regarding  questions  involving\tpolicy\tmatters\t and\nconstitutional\tissues-Constitution of India, 1950,  Article\n131.\nPresident's  satisfaction  under  Art.\t356-Whether  such  a\nsatisfaction can be based only on Governor's report-Power of\ncourt to question such satisfaction-Second part of Art.\t 355\ncovers\tProclamation  under Article 356-Direction  by  Union\nGovernment  under Articles 256, 257 to the State  Government\nto   recommend\tto  the\t Governor  to  dissolve\t the   State\nLegislature,  whether such a direction is  unconstitutional,\nillegal\t  and  ultra  vires-Constitution  of  India,   1950,\nArticles 74, 163, 174, 255, 256, 257, 355 and 356(1)(a).\nWords and phrases-\"State\" whether means \"State\tGovernment\"-\nConstitution  of India, 1950, Article 367 read with  General\nClauses Act, 1897.\nConstitution  of India, 1950, Article 131-Whether powers  of\nthe  Supreme  Court  to\t grant relief  under  Art.  131\t are\nrestricted to \"declaratory judgments\".\nConstitution of India, 1950, Articles 19(1) (f), 31 and\t 32,\n195  and 356-Rights of Members of Assemblies to\t draw  their\nsalary under Art. 195-Nature of-Whether as a consequence  of\nthe  threatened dissolution of Legislative Assembly  or\t the\nProclamation under Art. 356(1) dissolving States  Assemblies\nthe  rights  guaranteed to the\tpetitioners\/Legislators\t are\nviolated.\nInjunction-Permanent\/temporary injunction-Order XXXIX C.P.C.\nread  with  Order  XLVII of the Supreme\t Court\tRules  1966-\nWhether a proper relief in a suit challenging a proclamation\nunder Art. 356.\nConstitution\tof   India,   1950,   Articles\t 95,\t131,\nmaintainability\t of  a\tsuit under Art.\t 131  and  the\twrit\npetitions  under  Article  32-Constitution  of\tIndia,\tArt.\n356(1) scope and ambit of the power of the President.\n\n\n\nHEADNOTE:\nUnder  Article 74(1) of the Constitution \"there shall  be  a\nCouncil of Ministers to aid and advise the President in\t the\nexercise  of  his  functions\".\tUnder  Article\t163  of\t the\nConstitution there shall be a Council of Ministers with\t the\nChief Minister at the head to aid and advise the Governor of\na State in the exercise of his functions, except insofar  as\nby  or\tunder  the Constitution\t required  to  exercise\t his\nfunctions or any of them in his discretion.  Both under Art.\n74  and Art. 163 the question whether any, and if  so  what,\nadvice\twas  tendered  by the Council of  Ministers  to\t the\nPresident\/Governor  shall not be inquired into in any  court\nUnder Article 174(2)(b), the Governor may from time to, time\ndissolve  the Legislative Assembly.  Under Article 172(1)  a\nLegislative  Assembly of \"a State, unless sooner  dissolved,\nshall continue for six years from the date appointed for its\nmeeting and no longer and the expiration of the said  period\nof six years shall operate as a dissolution of the Assembly.\nArticles  256 & 257 enjoin that the executive powers of\t the\nUnion  shall  extend to the giving of such directions  to  a\nState  as  may\tappear\tto the Government  of  India  to  be\nnecessary  for that purpose.  Under Art. 355, \"it  shall  be\nthe duty of the Union to ensure that the Government of every\nState is carried on in accordance with the provisions of the\nConstitution.\" Article 356 empowers the President to  assume\nto himself all or any of the functions of the Government  of\nthe State and all or any of the powers\n2\nvested in or exercisable by the Governor or any body or\t any\nauthority  in  the State other than the Legislature  of\t the\nState,\tif  on receipt of a report from the  Governor  of  a\nState or otherwise, is satisfied that a situation has arisen\nin which the Government of the State cannot be carried on in\naccordance  with the provisions of the Constitution.   Under\nsub-section (5) of Art. 356 \"notwithstanding anything in the\nConstitution,  the satisfaction of the President  in  clause\n(1)  shall  be\tfinal  and  conclusive\tand  shall  not\t  be\nquestioned in any court on any ground.\nThe  Lok Sabha in which the Congress(R) had an\toverwhelming\nmajority  was dissolved on January 8, 1977 though under\t the\nConstitution  (Forty  Second Amendment Act) it\thad  another\nyear  to run out its extended term.  In the fresh  elections\nheld  in March 1977 the ruling party lost its  majority\t and\nwent out of power which it had exercised since independence.\nOn  March 24, 1977, the, Janata Party which had\t secured  an\noverwhelming majority of votes of the electorate, formed the\nnew  Government at the Centre.\tOn the date that the  Janata\nGovernment  took  office, the Congress (R) was in  power  in\nvarious\t States including Bihar, Haryana, Himachal  Pradesh,\nMadhya Pradesh, Orissa, Punjab, Rajasthan, Uttar Pradesh and\nWest Bengal.\nOn  April  18,\t1977, the Union Home  Minister\taddressed  a\nletter\tto the Chief.  Ministers of these States  \"earnestly\ncommending\" for their consideration that they may advise the\nGovernors of their respective States \"to dissolve the  State\nAssemblies  in exercise of the powers under  Art.  174(2)(b)\nand  seek a fresh mandate from the electorate.\t This  alone\naccording to the Home Minister's letter would be \"consistent\nwith constitutional precedents and democratic practices.\"\nIn  an\tinterview  on April 22, 1977,  in  the\t\"Spot  Light\nProgramme\" of All India Radio, Shri Shanti Bhushan, Minister\nof Law, Justice and Company Affairs said that \"a clear\tcase\nhad  been made out for the dissolution of the Assemblies  in\nthe   nine  congress-ruled  states  and\t holding  of   fresh\nelections\"  since  \"a serious doubt has been cast  on  their\nenjoying  the people's confidence, their party\thaving\tbeen\nrejected in the recent Lek Sabha elections.\" A report of the\nsaid interview appeared in various newspapers including\t the\n\"Statesman\"  of\t the  23rd April.  The\tcorrectness  of\t the\nreport is not disputed.\nThe  six plaintiff-States, namely, the State  of  Rajasthan,\nMadhya\tPradesh, Punjab, Bihar, Himachal Pradesh and  Orissa\nfiled suits in this court praying for a declaration that the\nletter of the Home Minister was illegal, and ultra vires  of\nthe  Constitution  and\tnot binding on\tthe  plaintiffs\t and\nprayed\tfor  an interim injunction restraining\tthe  Central\nGovernment  from resorting to Art. 356 of the  Constitution.\nA permanent injunction was also sought for by the plaintiffs\nin order to restrain the Central Government permanently from\ntaking\tany step to dissolve the Assemblies until the  fixed\nperiod\tof six years was over.\tSome of the Members  of\t the\nLegislative  Assembly  of  Punjab  had\talso  filed  a\twrit\npetition  complaining  of  violation  of  their\t fundamental\ntights and prayed for similar injunctions.\nThe principal common submissions on behalf of the plaintiffs\nas well as the petitioners were :-\nFirstly, that the letter dated 18th April 1977 discloses the\nsole  ground of an impending proclamation under Article\t 356\nof  the\t Constitution  to be followed by  a  dissolution  of\nLegislative Assembly of the State concerned and that such  a\nproclamation, resulting necessarily in the dismissal of\t the\nMinistries  in the six States and the dissolution  of  their\nLegislative Assemblies upon the grounds given in the letter,\nis  prima  facie  outside the purview of  Art.\t356  of\t the\nConstitution  and  would  be  destructive  of  the   federal\nstructure.\nSecondly, that, in any case, the condition precedent to\t the\ndissolution of the State Assembly is a ratification by\tboth\nHouses\tof Parliament of the Presidential action under\tArt.\n356  so\t that no dissolution at any rate  of  a\t Legislative\nAssembly can 'take place without ascertaining the wishes  of\nboth the Houses of Parliament.\n3\nThirdly,   that\t the  grounds  given,  being   outside\t the\nconstitutionally  authorised  purpose  and  objectives,\t the\nproposed action on the face of it is mala fide\nand unconstitutional.  'Me respondents' reply in defence are\n:-\nFirstly,  that\ton allegations made in the plaints  no\tsuit\ncould\tfall  within  the  purview  of\tArt.  131   of\t the\nConstitution  which  is meant for grievances  of  States  as\nsuch, against the Union Government and not those relating to\nmere  composition  of  State  Governments  and\tLegislatures\nwithout\t involving constitutional or other legal  rights  of\nStates as such.\nSecondly,   the\t questions  which  arise  for  guaging\t the\nexistence of a \"situation\", calling for action under Article\n356 are, by their very nature, non-justiciable and they\t are\nalso  made non-justiciable expressly by Art. 356(5)  of\t the\nConstitution  so  that, even if a State could, as  such,  be\nsaid  to be legally and properly interested in\tthe  dispute\nbetween its Government and the Union  Government, about\t the\ndesirability or need for any action by the Union  Government\nunder  Article\t356of the Constitution, such  a\t dispute  is\noutside\t the  sphere of justiciable matters.  If  the  final\naction or its grounds are non-justiciable, they could not be\nindirectly  assailed by challenging a process which  may  or\nmay not actually produce the apprehended result or action.\nThirdly,the letter of the Union Home Minister and the speech\nof the Union Law    Minister  do not indicate that  anything\nfailing outside the wide spectrum of\tArticle\t 356 of\t the\nConstitution  is  being or will be taken  into\taccount\t for\ntaking,\t action\t under Art. 356.  Hence, on  matters  stated\nthere, no cause of action could be said to have arisen.\nFourthly,  mere intimation of some facts, fully\t within\t the\npurview of Art. 356 of the Constitution, does not justify  a\nprohibition  to\t act  in future when the  situation  may  be\nserious\t enough\t on  the strength  of  facts  indicated\t and\npossibly others facts also, for action under Art. 356 of the\nConstitution.\tThe freedom of\tconstitutionally  authorised\nexecutive  action  of the highest executive  organs  of\t the\nUnion should not be impeded by judicial interference  except\non  grounds  of\t clearest and  gravest\tpossible  character.\nThere was nothing beyond bare possibilities before the court\nso  that  no  anticipatory  injunction\tor  order  could  be\ngranted.\nDismissing the suits as well as the petitions the Court,\nHELD :\nPer Beg, C.J.\n(1)  The  choice between a dissolution and re-election or  a\nretention  of the same membership of the Legislature or\t the\nGovernment  for\t a  certain  period  could  be\tmatters\t  of\npolitical expediency and strategy under a democratic system.\nUnder\tour  system.  quest  for  political  power   through\nformation   of\tseveral\t political  powers  with   different\nsocioeconomic  policies\t and programmes\t and  ideologies  is\nlegal.\t Hence, a mere attempt to get more  political  power\nfor  a\tparty as a means of pursuing the Programme  of\tthat\nparty,\t as  opposed  to  that\tof  other  parties  is\t not\nconstitutionally prohibited or per se illegal. [24 F-G]\n(2)  One  purpose of our Constitution and laws is  certainly\nto  give electors a periodic opportunity of  choosing  their\nState's\t  legislature  and,  thereby,  of  determining\t the\ncharacter of their State Governments also.  It is the object\nof every democratic constitution to give such opportunities.\nHence  a  policy  devised to serve that\t end  could  not  be\ncontrary   to\tthe  basic  structure  or  scheme   of\t the\nConstitution. [24 B]\n(3)  Article  356(1)  of  the  Constitution  calls  for\t  an\nassessment  of \"a situation\".  In so far as  Article  356(1)\nmay  embrance matters of political and executive policy\t and\nexpediency, Courts cannot interfere with these unless and\n4\nuntil\tit  is\tshown  what  constitutional  provision\t the\nPresident  'is\tgoing to contravene or\thas  contravened  on\nattempted  grounds  of action under Art. 356(1)\t for,  while\nArt.  74(2),  disables Courts from inquiring into  the\tvery\nexistence or nature or contents of ministerial advice to the\nPresident, Article 356(5) makes it impossible for Courts  to\nquestion  the  President's  satisfaction  'on  any  ground'.\nHence  Courts can only determine the validity of the  action\non  whatever remains for them or what is admitted on  behalf\nof   the  President  to\t be  the  grounds   of\t President's\nsatisfaction. [25 D, 26 E-F]\n(4)  If\t the Union Government thinks that the  circumstances\nof the situation demand that the State Governments must seek\na fresh mandate to justify their moral rights in the eyes of\nthe people to continue to exercise power in the interests of\ntheir  electors,  or else the discontent of the\t masses\t may\nhave  its  repercussion\t not  only  on\tthe  law  and  order\nsituation,  but will also affect legal\tresponsibilities  or\nduties\twhich the Union Government has towards a  particular\nState or towards Indian citizens in general, an of whom live\nin  some  State or other, it cannot be said that  resort  to\nArt. 356 of the Constitution is not called for. [25 E-F]\n(5)  Questions of political wisdom or executive policy\tonly\ncould  not  be\tsubjected to  judicial\tcontrol.   No  doubt\nexecutive    policy   must   also   be\t  subordinated\t  to\nconstitutionally sanctioned purposes.  It has its sphere and\nlimitations.   But,  so\t long as  it  operates\twithin\tthat\nsphere,\t  its\toperations   are   immune   from    judicial\ninterference.\tThis  is also a part of the  doctrine  of  a\nrough  separation  of  power  under  the  supremacy  of\t the\nConstitution.\n\t\t\t\t   [27 A-D]\n(6)  The   provisions  dealing\twith  the  Proclamation\t  of\nemergency  under  Art.\t352,  which have  to  be  grave\t and\nimminent seem to be covered by the first art of the duty  of\nthe  Union towards a State mentioned in Article 355 but\t the\nsecond part of that duty mentioned-in Art. 355, seems to  be\nof  somewhat  different and broader character.\t The  second\npart  seems to cover all steps which are enough \"to  ensure\"\nthat   the  Government\tof  every  State  is  carried,\t \"in\naccordance  with the provisions of the\tConstitution\".\t Its\n'sweep seems quite wide.  It is this part of the duty of the\nUnion towards each State which is sought to be covered by  a\nProclamation tinder Art. 356.  That Proclamation is not of a\ngrave emergency.  In fact. the word \"emergency\" is not\tused\nthere.\t It is a Proclamation intended either  to  safeguard\nagainst\t the  failure of the constitutional machinery  in  a\nState  or to repair the defects of a breakdown.\t It  may  be\neither\ta preventive or a curative action.  It is enough  if\nthe  President\twhich,\tin view of the\tamended\t Art.  73(1)\nreally means the Union Council of Ministers, concludes\tthat\n\"the  Government  of  the State cannot\tbe  carried  out  in\naccordance with the provisions of the Constitution\".  On the\nother  hand, action under Art. 352 is, more  properly,\tonly\ndefensive and protective action to be taken to avert or meet\na grave and immant danger. [30 C-F]\n(7)  The  language of Art. 356 is so wide and loose that  to\ncrib  and  confine it within a straight jacket will  not  be\njust interpreting or construing it but will be\tconstitution\nmaking legislation, which does not lie in the domain of\t the\nSupreme Court. [31 C-D]\nH.   H.\t Kesavananda  Bharati Sripadagalavaru  v.  State  of\nKerala,<\/a>\t [1973] Supp.  S.C.R. p. 1 @ 89, Smt.  Indira  Nehru\nGandhi\tv. Rai Narain<\/a> [1976] 2 S.C.R. 347 @ 539; Har  Sharan\nVarma, v. Chandra Bhan Gupta and Ors., A.I.R. 1962 All.\t 301\n@ 307 referred to.\n(8)  A conspectus of the provisions of our Constitution will\nindicate  that, whatever appearance of a  federal  structure\nour  Constitution  may have, its operations  are  certainly,\njudged\tboth by the contents of power which a number of\t its\nprovisions carry with them and the use that has been made of\nthem, more unitary than federal. [33 F]\nShamsher  Singh v. State of Punjab, [1975] 1 S.C.R.  p.\t 814\nreferred to.\n(9)  In\t a  sense,  the Indian Union is\t federal.   But\t the\nextent\tof federalism in it is largely watered-down  by\t the\nneeds of progress and development of 2\n5\ncountry\t which has to be nationally integrated,\t politically\nand economically co-ordinated and socially,,  intellectually\nand  spiritually uplifted. lit such a system,  the  States\ncannot\tstand in the way of legitimate\tand  comprehensively\nplanned development of the country in the manner directed by\nthe  Central  Government.   The question  of  legitimacy  of\nparticular  actions of the Central Government taking  us  in\nparticular  directions\tcan often be tested  and  determined\nonly  by  the verdicts of the people  at  appropriate  times\nrather\tthan by decisions of Courts.  For this reason,\tthey\nbecome,\t properly  speaking matters for\t political  debates.\nrather\tthan for legal discussion.  If the special needs  of\nour   country\tto  have   political   coherence,   national\nintegration,  and planned economic development of all  parts\nof  the\t country,  so  as to build  a  welfare\tState  where\n\"Justice-Social, economic and political\" are to prevail\t and\nrapid  strides are to be taken towards fulfilling the  other\nnoble  aspirations  act out in the Preamble  strong  Central\ndirections seem inevitable. [24 C-E]\n(10) Article 256 of the Constitution covers cases where' the\nPresident may want to\t give directions in exercise of\t the\nexecutive power of the Union to a State Government\t  in\nrelation  to  a matter covered by an existing  law  made  by\nParliament  which applies to that State.  But,\tArt.  257(1)\nimposes a wider obligation    upon  a State to exercise\t its\npowers\tin  such  a way as not to  impede  the\texercise  of\nexecutive  power  of the Union which, as would\tappear\tfrom\nArt.  73 of the Constitution, read with Art. 248  may  cover\neven  a\t subject on which there is no existing law,  but  on\nwhich  some legislation by Parliament impossible.  It  could\ntherefore, be argued that, although, the Constitution itself\ndoes not Jay down specifically when the power of dissolution\nshould\tbe  exercised by the Government on the advice  of  a\nCouncil of Ministers in\t\t       the State, yet, if  a\ndirection  on  that matter was properly given by  the  Union\nGovernment to a State Government, there is\t  a duty  to\ncarry  it  out.\t  The time for the dissolution\tof  a  State\nAssembly\tis not covered by any specific provision  of\nthe  Constitution  or any law made on the  subject.   It  is\npossible,, however, for the Union Government, in exercise of\nits  residuary executive power to consider it a fit  subject\nfor the issue of an appropriate direction when it  considers\nthat  the political situation in the country is such that  a\nfresh  election\t is necessary in the interest  of  political\nstability  or to establish the confidence of the  people  in\nthe Government of a State. [36 B-E]\n(11)  Undoubtedly, the subject is one on which\t'appropriate\nand  healthy  conventions should develop so that  the  power\nunder  Art.  356(1)  is neither\t exercised  capriciously  or\narbitrarily  nor  fails\t to be exercised  when\ta  political\nsituation  really calls for it.\t If the views of the  Union\nGovernment  and the State Government differ on the  subject,\nthere  is no reason why the Union Government should not\t aid\nthe  development  of  what  it considers  to  be  a  healthy\npractice  or convention by appropriate advice or  direction,\nand, even to exercise its powers under Art. 356(1) for\tthis\npurpose when it considers the observance of such a directive\nto be so essential that the constitutional machinery  cannot\nfunction  as it was meant to do unless it  interferes.\t The\nSupreme\t Court\tcannot, at any rate, interdict such  use  of\npowers\tunder  Art 356(1 ) unless and until  resort  to\t the\nprovision,  in\ta particular situation, is shown  to  be  so\ngrossly\t perverse and unreasonable as to  constitute  patent\nmisuse\tof this provision or an excess of power on  admitted\nfacts.\t It is not for courts to formulate, and, much  less,\nto  enforce  a\tconvention, however necessary  or  just\t and\nproper\ta  convention to regulate the exercise\tof  such  an\nexecutive  power may be.  That is a matter  entirely  within\nthe executive field of operations. [36 E-H]\n(12) All  that\tthe  Supreme Court can\tdo  is\tto  consider\nwhether an action Proposed    on  such a matter\t on  certain\ngrounds, would fall under Art. 356(1) of the Constitution if\nthe Union Government and the State Governments differ on the\nquestion whether, in a particular situation, the dissolution\nof  the State Assembly should take place or not.   The\tmost\nthat one could say is that a 'dissolution against the wishes\nof  the majority in a State Assembly is a grave and  serious\nmatter.\t  Perhaps  it could be observed that  it  should  be\nresorted to under Art. 356(1) of the Constitution only\twhen\n\"a  critical  situation'  has  arisen.\t It  is\t not  always\nnecessary  that the mere defeat of a State Government  in  a\nState Assembly must necessarily create a situation in  which\na  dissolution of the State Assembly is obligatory.   If  an\nalternate Government is\n6\ncapable\t of being formed which commands the majority in\t the\nState  Assembly\t it may be unnecessary.\t The  position\tmay,\nhowever,  be very different, when a State Government  has  a\nmajority  in the State Assembly behind it, but the  question\nis  whether the party in the majority in the State  Assembly\nforming the State Government for the time being having\tbeen\ntotally and emphatically rejected by the people, a  critical\nsituation\"  has\t arisen\t or is bound  to  arise\t unless\t the\n\"political  sovereign\" is given an opportunity of  giving  a\nfresh  verdict.\t A decision on such a  question\t undoubtedly\nlies in the Executive realm.  It involves a correct estimate\nof a \"situation\". [41 B-E]\n(13)  Article 174(2) (b)of the Constitution expressly  vests\nthe  power  of\tresolving the legislative  assembly  in\t the\nGovernment  even  if  that had to be on the  advice  of\t the\nCouncil\t of  Ministers in the State, but the power  to\tgive\nsuch  advice would automatically be taken over by the  Union\nGovernment,  for  the  purposes\t of  dissolution  of   State\nAssembly, when the President assumes Governmental powers  by\na  Proclamation\t under Art. 356(1).  A\tdissolution  by\t the\nPresident after the Proclamation would be as good as a\tdis-\nsolution by the Government of a State whose powers are taken\nover. [37 C-E]\n(14) Indeed,  the usual practice is that the President\tacts\nunder Art. 356(1) of the Constitution only on the Governor's\nreport.\t  But,\tthe  use of the\t words\t\"or  otherwise\"\t (In\nArticle\t 356) show that Presidential satisfaction  could  be\nbased  on  other  materials as well.  This  feature  of\t our\nConstitution  indicates most strikingly the extent to  which\ninroads\t have been made by it on the federal  principles  of\nGovernment. [38 A-C]\nShamsher  Singh v. State of Punjab, [1975] 1 S.C.R. p.\t875,\nreferred to.\n(15) As the question of the proper time for a dissolution of\na  State Assembly is not a matter extraneous to Art.  356(1)\nof  the\t Constitution,\tthe most that can be  said  is\tthat\nquestions raised do not go beyond sufficiency of grounds for\nresorting to Art. 356(1) of the Constitution. [41 H, 42 A]\nK.   K. Aboo v. Union of India, A.I.R.<\/a> 1965 Kerala 229;\t Rao\nBirender,  Singh  v. The Union of India A.I.R.\t1968  Punjab\n441;   In   re.\t  A.  Sreeramulu'  A.I.R.   1974-A.P.\t106,\nBijenananda  Patnaik  and.  Ors. v. President of  India\t and\nOrs., A.I.R. 1974 Orissa 52 referred to.\n(16) Attempts  to secure political victories by\t appeals  to\nthe  electorate,  are  parts of the recognised\trules  of  a\ndemocratic system of Government permitting contests  between\nrival parties so as to achieve certain other objectives.  If\nsuch  a\t contest with the desire for achieving\ta  political\nvictory in order to enforce certain programmes, believed  by\nthe members of a party to be beneficial for the people in  a\nState,\tas a method of achieving the objects set out in\t the\nPreamble,  are\tnot_only  legal and  permissible  under\t the\nConstitution,  but, obviously constitute the  only  possible\nand  legal means of attaining the power.to enforce  policies\nbelieved  to  be correct by various  parties,  according  to\ntheir  own  lights, it could not possibly be  asserted\tthat\nprocuring  the dissolution of a State  Legislative  Assembly\nwith  the  object  of gaining a\t political  victory  is,  in\nitself,\t an  extraneous object which could not fall  at\t all\nunder Art. 356 of the Constitution. [42 F-F]\nAttorney  General v. Dr. Keyser's Royal Hotel, 1920 AC\t508;\nLiversidge   v.\t  Anderson  1942  AC   206;   Addl.    Dist.\nMagistrate,  Jabalpur v. Shivakant Shukla, 1976\t Supp.\t SCR\n173,  Bhagat  Singh & Ors. v. The Kine Emperor, 50  I.A\t 169\nKing  Emperor v. Benorilal Sharma 72 I.A. 57,  Padfield\t and\nOrs.  v.  Minister Of Agriculture, Fisheries  and  Food\t and\nOrs., 1968 A.C. 997 @ 1006 (not applicable).\n(17) In\t all the grounds of action taken under\tArt,  356(1)\nare disclosed the public by the Union Government and its own\ndisclosure  of\tgrounds reveals that a\tconstitutionally  or\nlegally prohibited or extraneous or a collateral purpose  is\nsought to be achieved by an impending or actual proclamation\nunder  Art. 356 of the Constitution, the Supreme Court\twill\nnot shirk its duty to act in the manner in which the law may\nthen  oblige  it to act.  But, when allegation made  in\t the\nplains\tand  in the petitions before the  court\t relate,  in\nsubstance, only to the sufficiency of the grounds of  action\nunder Art. 356(1) of the Constitution and go no further, the\nCourt  cannot proceed further with the consideration of\t the\nplaints under Art. 131 or the petitions under Art. 32 of the\nConstitution.\n\t\t\t\t[46 E-G]\n7\n(18) Proclamations  under  Article 356(1) are  bound  to  be\nplaced\tunder  Art. 356(3) of the Constitution\tbefore\teach\nHouse of Parliament.  However, there is not only nothing  in\nArt.  356  to  make  a\tconsideration  by  either  House  of\nParliament  a  condition precedent to the  exercise  of\t the\npower of dissolution of a State Legislative Assembly by\t the\nPresident  under  Art.\t356 (1), but,  on  the\tother  hand,\nArticle 356(3) makes it clear that the only effect of even a\nfailure or refusal by either House of Parliament to  approve\nthe  Proclamation  is that it ceases to\t operate  after\t two\nmonths.\t Obviously, this means that it operates for at least\ntwo  months.   Hence, whatever is done in these\t two  months\ncannot be held to be illegal for that reason alone. [47 A-B]\n(19) It is true that the exercise of power under Art. 356 of\nthe Constitution is subject to Parliamentary control.\tThis\nmeans  that it is subject to such control as the two  Houses\nout  of\t which the Council of States really  represents\t the\nState Assembly may be able to exercise during the period for\nwhich  the Proclamation lasts.\tBut, the existence  of\tsuch\nParliamentary  control,\t as  a\tsafeguard  cannot   possibly\nnullify\t the legality of what is done in the  period  during\nwhich the Proclamation lasts. [47 C-D]\n(20) Although  Art 356(1)(a) of the Constitution  imposes  a\nbar   against  the  assumption\tby  the.President   of\t the\nlegislative  powers  of the State Legislature,\twhich  could\nonly be transferred to Parliament, its provisions, read with\nArt. 357 of the Constitution, do not operate as an  absolute\nbar  on any expenditure which could be legally\tincurred  by\nthe  President\tor  under  the\tPresidential  authority\t  in\naccordance   with   pre-existing  State\t  laws\t authorising\nexpenditure by other authorities or bodies whose powers\t can\nbe  taken  by the President under Art.\t356(1)(a).   In\t any\ncase, the provisions of Art. 357 could not possibly be\tused\nas  a bar against a dissolution of the State Assembly  by  a\nPresidential   Proclamation.   Nor  can\t they  be  used\t  to\nintroduce  as  a  condition precedent  to  the\tPresidential\nProclamation under Art. 356(1)(a), involving, as it  usually\ndoes, the dissolution of the State Assembly, an approval  of\nboth or either of the two.  Houses of Parliament. [49 A-C]\n(21) Even if there be some grounds for making a\t distinction\nbetween\t a  State's  interest and rights and  those  of\t its\nGovernment  or\tits  members, the Court need  not  take\t too\nrestrictive or stringent a view of the States' right to\t sue\nfor   any  rights,  actual  or\tfancied,  which\t the   State\nGovernment  chooses  to\t take  up on  behalf  of  the  State\nconcerned in a suit under Art. 131. [50 F-G]\nState  of Bihar v. Union of India and Anr.,<\/a> [1970] 2  S.C.R.\n522; explained.\nUnited\tProvinces v. The Governor General in  Council,\t1939\nFCR 124; referred to.\nPer, Chandrachud J.\n(1)  The use of the phrase \"Government of India\" in  Article\n131(a) and (b) does  not mean that one party to the  dispute\nhas  to\t be  the  Government  of  the  day  at\tthe  Centre.\n\"Government  of\t India\"\t means \"Union  of  India\"  The\ttrue\nconstruction  of Article 131(a) true in substance  and\ttrue\npragmatically is that a dispute must arise between the Union\nof India and a State. [53 E-G]\n(2)  The  dispute between the Union of India and the  State\ncannot\tbut be a dispute which arises out of the  difference\nbetween\t the  Government  in office at the  Centre  and\t the\nGovernment in office in the State.  But, there is a  further\nprerequisite  which narrows down the ambit of the  class  of\ndisputes which fall within Article 131.\t That requirement is\nthat  the dispute must involve a question whether of law  or\nfact,  on  which the existence or extent of  a\tlegal  right\ndepends.  it is this qualification which contains the,\ttrue\nguide  for  determining\t whether  a  particular\t dispute  is\ncomprehended   within  Art.  131.   Mere  wrangles   between\nGovernments  have  no place in the scheme of  that  Article.\nThe  purpose  of  Art.\t131 is to afford  a  forum  for\t the\nresolution  of disputes which depend for their\tdecision  on\nthe existence or extent of a legal right.  It is only when a\nlegal, not a mere political, issue arises touching upon\t the\nexistence  or  extent of a legal right that Article  131  is\nattracted. [54 A-C]\n8\n(3)  When  the Plaintiff-States by their suits\tdirectly  or\nspecifically question the constitutional right and authority\nof  the Union Government to issue a directive to  the  State\nGovernments  commending\t that  the  Chief  Ministers  should\ntender a certain advice to their Governors and also question\nthe constitutional right of the Union Government to dissolve\nthe  State Assemblies on the grounds mentioned in  the\tHome\nMinister's  letter  to the Chief Ministers, a legal,  not  a\npolitical, issue arising out of the existence and extent  of\na legal right squarely arises and the suits cannot be thrown\nout as falling outside the purview of Art. 131. [54 D-E]\n(4)  It\t is not necessary for attracting the  provisions  of\nArt.  131  that the plaintiff must assert a legal  right  in\nitself.\t  Art.\t131 contains no such restriction and  it  is\nsufficient  in order that its provisions may apply that\t the\nplaintiff  questions  the  legal  or  constitutional   right\nasserted by the defendant, be it the Government of India  or\nany  other State.  Such a challenge brings the\tsuit  within\nthe terms of Article 131 for, the question for the  decision\nof  the\t Court\tis  not\t whether  this\tor  that  particular\nLegislative Assembly is entitled to continue in office,\t but\nwhether\t  the  Government  of  India,  which   asserts\t the\nconstitutional right to dissolve the Assembly on the grounds\nalleged possesses any such right. [54 F-G]\n(5)  The States, have the locus and the interest to. contest\nand  seek an adjudication of the claim set up by  the  Union\nGovernment.   The bond of constitutional obligation  between\nthe Government of India and the States sustains that  locus.\n[54 H-55A]\n(6)  The  expression \"legal right\" which occurs in Art.\t 131\nhas  to be understood in its proper perspective.  The  legal\nright of the States consists in their immunity, in the sense\nof  freedom from the power of the Union\t Government.   The),\nare entitled under Art. 131, to assert that right either  by\ncontending  in the absolute that the Centre has no power  to\ndissolve   the\t Legislative   Assemblies   or\t with\t the\nqualification  that such a power cannot be exercised on\t the\ngrounds stated. [55 A-D]\nState  of  Bihar v. Union of India, [1970] 2 SCR  522;\theld\ninapplicable.\n(7)  By\t the Proclamation under Art. 356(1) the\t Legislative\nAssemblies of nine  States    were   dissolved\t  and\t the\nPresident's rule was imposed on those States.\t  As\t   a\nresult\tthe  writ petitioners ceased to be  Members  of\t the\nLegislative  Assemblies and as a result of their ceasing  to\nbe  such members the right to salary which they\t could\tonly\ndraw if they were members of the Assemblies came to an\tend.\nThough\tthe  petitioners could not be denied relief  on\t the\nground that it was not intended by issuing the\tProclamation\nto  deprive  them of their salary' the writ  petitions\twere\nliable to be dismissed on the ground that the injury to\t the\nalleged\t Fundamental  Rights  of  the  petitioners  was\t too\nindirect and remote. [56 G-H]\n(8)  Whether or not, the Proclamation issued under Art.\t 356\nof the Constitution is approved as enjoined in Art.  356(3),\nit has an assured life for a period\tof  two\t months\t and\nits  Validity during that period cannot be whittled down  by\nreading into Art. 356 a condition precedent in the nature of\nparliamentary  approval which, plainly, is not to  be  found\ntherein. [57 D]\n\t      [His  Lordship  considered it  unnecessary  to\n\t      consider\tthe  implications of clause  (5)  of\n\t      Art. 356, introduced by the 38th amendment and\n\t      applied\t\"Non-liquet\"   agreeing\t  with\t the\n\t      decision\t in   Stephen  Kalang\tNingkan\t  v.\n\t      Government of Malaysia, L.R. (1970) A.C.\t379,\n\t      392]\nPer Bhagwati J. (On behalf of Gupta J. & himself)\n(1)  The  satisfaction of the President is a subjective\t one\nand cannot be decided\t by  reference to  objective  tests.\nIt is deliberately and advisedly subjective  because\t the\nmatter\tin  respect to which he is to be satisfied is  '  of\nsuch a nature that its decision must necessarily be left  to\nthe  executive branch of Government.  It cannot by its\tvery\nnature be a fit subject-matter of judicial determination and\nhence  it  is  left to the subjective  satisfaction  of\t the\nCentral Government which is best in a position to decide it.\nThe Court cannot, in the circumstances, go into the question\nof correctness or adequacy of the facts\n9\nand  circumstances on which the satisfaction of the  Central\nGovernment is based.  That would be a dangerous exercise for\nthe  court,  both  because it is not a\tfit  instrument\t for\ndetermining  a\tquestion of this kind and also\tbecause\t the\ncourt  would  thereby  usurp  the  function  of\t a   Central\nGovernment  and\t in doing so enter the\t\"Political  thicket\"\nwhich  it must avoid if it is to retain its legitimacy\twith\nthe  people.   But, if the satisfaction is mala fide  or  is\nbased on wholly extraneous and irrelevant grounds, the court\nwould have jurisdiction to examine it, because in that\tcase\nthere would be no satisfaction of the President in regard-to\nthe  matter  on which he is required to be  satisfied.\t The\nsatisfaction  of the President is a condition  precedent  to\nthe  exercise  of power under Art. 356(1) and if it  can  be\nshown that there is no satisfaction of the President at all,\nthe exercise of the power would be constitutionally invalid.\nOf   course,  by  reason  of  clause  5\t of  Art.  356\t the\nsatisfaction  of the President is final and  conclusive\t and\ncannot\tbe  assailed on any ground, but this  immunity\tfrom\nattack\tcannot\tapply where the challenge is  not  that\t the\nsatisfaction  is improper or unjustified; but that there  is\nno  satisfaction  at  &H.  In such a case,  it\tis  not\t the\nsatisfaction   arrived\tat  by\tthe  President\t which.\t  is\nchallenged,  but the existence of satisfaction\titself.\t  In\nmost  cases  it would be difficult, if\tnot  impossible,  to\nchallenge  the exercise of power under Art. 356 clause\t(1),\neven   on  this\t limited  ground,  because  the\t facts\t and\ncircumstances  on which the satisfaction is based would\t not\nbe  known,  but\t where it is possible,\tto  know  them\tfrom\ndeclarations  made the existence of satisfaction can  always\nbe challenged on the ground that it is mala fide or based on\nwholly\textraneous or irrelevant ground. [ 81 G, H, 82\tA-H,\n83 A-B]\nNintgkan  v. Govt. of Malaysia, 1970 A.C. 379, King  Emperor\nv. Benoarilal Sarma, 72 I.A. 57 referred to.\n(2)  The  defeat  of  the  ruling party\t at  the  Lok  Sabha\nelection cannot by itself without anything more support\t the\ninference that the Government of the State cannot be carried\non  in accordance with the provisions of  the  Constitution.\nTo  dissolve the Legislative Assembly solely on such  ground\nwould be an indirect exercise of the right of recall of\t all\nthe  members  by  the  President  without  there  being\t any\nprovision  in  the  Constitution  for  recall  even  by\t the\nelectorate.  Where there has been a total rout of candidates\nbelonging to the ruling party and in some of the  plaintiff-\nStates, the ruling party has not been able to, secure even a\nsingle seat, it is proof of complete alienation between\t the\nGovernment  and\t the  people.\tIt  is\taxiomatic  that\t  no\nGovernment  can\t function  efficiently\tand  effectively  in\naccordance  with  the Constitution in a\t democratic  set  up\nunless\tit  enjoys the goodwill and support of\tthe  people.\nWhere  there  is a wall of estrangement\t which\tdivides\t the\nGovernment  from  the  people and there\t is  resentment\t and\nantipathy   in\tthe  hearts  of\t the  people   against\t the\nGovernment,  it is not at all unlikely that it may  lead  to\ninstability  and even the administration may  be  paralysed.\nThe consent of the people is the basis of democratic form of\nGovernment  and\t when  that is\twithdrawn  so  entirely\t and\nunequivocally  as  to  leave no room  for  doubt  about\t the\nintensity  of public feeling against the ruling\t party,\t the\nmoral  authority  of  the  Government  would  be   seriously\nundermined  and a situation may arise where the\t people\t may\ncease\tto  give  respect  and\tobedience  to\tGovernmental\nauthority  and even conflict and confrontation\tmay  develop\nbetween the Government and the people leading to collapse of\nadministration.\t These are all consequences which cannot  be\nsaid  to be unlikely to arise from such an unusual State  of\naffairs\t and they may make it impossible for the  Government\nof  the\t State\tto  be carried on  in  accordance  with\t the\nprovisions  of the Constitution.  Whether the  situation  is\nfraught\t with such consequences or not is entirely a  matter\nof   political\t judgment  for\tthe  executive\t branch\t  of\nGovernment.   But, it cannot be said that such\tconsequences\ncan never ensue and that the ground that on account of total\nand  massive  defeat of the ruling party in  the  Lok  Sabha\nelections, the Legislative Assembly of the State has  ceased\nto  reflect  the will of the people and\t there\tis  complete\nalienation  between the Legislative Assembly and the  people\nis  wholly extraneous or irrelevant to the purpose  of\tArt.\n356, Clause (1).\n  On  the facts and circumstances of the present  case\tthis\nground is clearly a relevant ground having reasonable  nexus\nwith the matter in regard to which the President is required\nto  be\tsatisfied before taking action\tunder  Article\t356,\nClause (1). [85 A-H]\n10\n(3)  There  are two limitations in regard to the  nature  of\nthe suit which can be entertained by the Supreme Court under\nArt.  131.  One is in regard to parties and the other is  in\nregard\tto the subject matter.\tIt does not contemplate\t any\nprivate\t party being arrayed as a disputant on. one side  or\nthe  other.   A\t dispute in which such a  private  party  is\ninvolved  must\tbe brought before a court,  other  than\t the\nSupreme\t  Court,  having  jurisdiction\tover   the   matter.\nMoreover, the dispute must be one, relating to a legal right\nand  not  a dispute on political plane not  based  on  legal\nright.\t A legal right which is the subject of dispute\tneed\nnot  arise  in\tthe  context of\t the  Constitution  and\t the\nfederalism  it\tsets up.  So also the power of\tthe  Supreme\nCourt  to  grant relief in a suit under Article 131  is\t not\nrestricted  only  to \"declaratory  Judgment\".\tThe  Supreme\nCourt  would  have  power  to  give  whatever  reliefs\t are\nnecessary for enforcement of the legal right claimed in\t the\nsuit,\t if    such    legal\tright\t is\testablished.\n[64 E-H, 65 A-D, 66 C]\nState  of  Bihar v. Union of India & Anr.,<\/a> (1970)  2  S.C.R.\n522, Explained doubted;\nShamsher  Singh\t v.  State of Punjab, [1975]  1\t S.C.R.\t 814\nreferred to.\n(4)  Unconstitutional  exercise\t of power by  the  President\nunder  Article 356 clause (1) may injuriously affect  rights\nof several persons.  It may infringe not only the individual\nrights\tof the members of the Legislative Assembly but\talso\nthe  constitutional  right of the State to insist  that\t the\nfederal\t basis\tof  the political structure set\t up  by\t the\nConstitution  shall not be violated by\tan  unconstitutional\nassault\t under Art. 356 clause (1).  The present suits\tseek\nto  enforce  legal  right of the States\t arising  under\t the\nConstitution and the suits could not be thrown out in limine\nas being outside the scope and ambit of Article 131. [68  G-\nH, 69 A]\n(5)  The threatened dissolution of the Legislative  Assembly\ndid  not  involve any infraction of  the  Fundamental  right\nguaranteed to the petitioners under Article 19(1)(f) and 31.\n[63 H, 64 A]\n(6)  It\t is  only  where  there\t is  direct  invasion  of  a\nfundamental right or imminent danger of such invasion that a\npetitioner can seek relief under Art 32.     The  impact  on\nthe  fundamental right must be direct and immediate and\t not\nindirect or remote.\nIn  the instant case, merely because by the  dissolution  of\nthe Legislative Assembly, the petitioners would cease to  be\nmembers\t and that would incidentally result in their  losing\ntheir  salary, it cannot be said that the dissolution  would\ninfringe their right to property.  The petitioners, as such,\nare  not entitled to maintain the Writ Petition\t under\tArt.\n32. [63 D, E, 64 A]\n(7)  The  directive of Home Minister, Government  of  India,\nwas  nothing  but  an  advice or  suggestion  to  the  Chief\nMinister  of  each  plaintiff  state  to  recommend  to\t the\nGovernment  dissolution of the Legislative Assembly  of\t the\nconcerned  State.   It\thas  been  wrongly  described  as  a\n\"directive.\"  It had no constitutional authority behind\t it.\nIt  is\talways\topen to the Home  Minister  of\tthe  Central\nGovernment  to\tgive  advice  or  suggestion  to  the  Chief\nMinister  of  a State and the Chief Minister may  accept  or\nreject\tsuch  advice or suggestion as he  thinks  fit.\t 'Me\nadvice\tor  suggestion has no binding effect  on  the  Chief\nMinister  and no legal consequences flow from it.  Hence  it\ncould  not  be\tsaid that 'directive'  issued  by  the\tHome\nMinister  was  unconstitutional,  illegal  or  ultra  vires.\nThere  was  also  no  question\tof  giving  effect  to\t the\n\"directive\"  and no injunction could, therefore, be  granted\nrestraining  it,;  implementation.  The \"directive\"  if\t not\naccepted  and carried out could certainly be a precursor  to\naction\tunder Art. 356 Clause (1) and, therefore,  might  be\nregarded  as indicative of a threat, but standing by  itself\nit  could not give rise to any cause of action in the  State\nto sue for declaration or injunction. [77 H, 78 A-B]\n(8)  It is true that if a question brought before a court is\npurely\ta political question not involving determination  of\nany  legal or constitutional right or obligation, the  Court\nwould not entertain it, since the Court is concerned only\n11\nwith  adjudication  of legal rights and\t liabilities.\tBut,\nmerely because a question has a political complexion that by\nitself is no ground for the Court to shrink from  performing\nits  duty under the Constitution, if it raises an issue\t for\nconstitutional determination.  A Constitution is a matter of\npurest politics and a structure of power. [79 G-H]\n(9)  Merely  because a question has a political\t colour\t the\ncourt cannot fold its hand in despair and declare  \"judicial\nhands  off.\"  So  long\tas  a  question\t arises\t whether  an\nauthority under the Constitution has acted within the limits\nof its power or exceeded it, it can certainly be decided  by\nthe Court.  Indeed it would be its constitutional obligation\nto  do so.  It is necessary to assert in the clearest  terms\nparticularly  in  the  context of recent  history  that\t the\nConstitution  is suprema lex, the paramount law of the\tland\nand there is no department or branch of Government above  or\nbeyond it. [80 F-H]\nBaker  v. Can 369 U.S. 186; Nixon v. Herndon 273  U.S.\t536;\nBrown  V.  Board  of Education 347 U.S.\t 483;  Gomillion  v.\nLightfoot  364\tU.S. 339, Colegrore v. Green  328  U.S.\t 549\nquoted with approval.\nPer Goswami J.\n(1)  Although  the  expression\tused in\t Art.  131  is\t\"any\ndispute\",  the\twidth of the expression is  limited  by\t the\nwords  that follow in respect of the nature of dispute\tthat\ncan  be\t entertained by the Supreme Court  in  its  original\njurisdiction.\tIt  is\tonly a dispute\twhich  involves\t any\nquestion of law or fact on which the existence or extent  of\na  legal right of the contending party depends that  can  be\nsubject-matter of a suit under Art. 131.  The dispute should\nbe in respect of legal rights and not disputes of  political\ncharacter.   Art  131  refers to the  parties  that  may  be\narrayed\t in the litigation as well as to the  subject-matter\nof the dispute. [86 F-G]\nState  of Bihar v. Union of India, [1970] 2\t S.C.R.\t 522\nreferred to.\n(2)  Article 131 speaks of a legal right.  That legal  right\nmust be that of the State.  The dispute about a legal right,\nits  existence\tor  extent, must  be  capable  of  agitation\nbetween\t the  Government  of  India  and  the  States.\t The\ncharacter  of  the dispute within the scope of\tArticle\t 131\nthat  emerges is with regard to a legal right  which  States\nmust  be  able to claim against the Government.\t  Where\t the\nHome  Minister,\t Government of India, is  asking  the  Chief\nMinisters  of  the Government of the States  to\t advise\t the\nGovernors  to dissolve the Legislative Assemblies,  and\t the\nChief  Ministers decline to accept the advice, it is  not  a\ndispute between the State on the one hand and the Government\nof  India on the other hand.  It is a real  dispute  between\nthe Government of the State and the Government of India.  It\nis  no\tdoubt  a question of life and death  for  the  State\nGovernment but not so for the State as a legal entity.\tEven\nafter  the  dissolution\t of the\t Assembly,  the\t State\twill\ncontinue to have a Government for the time being as provided\nfor  in\t the  Constitution,  in\t such  a  contingency.\t The\nsubject-matter\tof  the dispute does not  Pertain  to  legal\nrights of the State concerned to satisfy the requirements of\nArticle 131 of the Constitution. [87 G, 88 H, 89 A-B, 90 C]\n(3)  Whether  there  is a case for permanent  injunction  or\nother  appropriate writ in these matters are not called\t for\nin  view of the fact that the suits and writ  petitions\t are\nnot maintainable. [92 C-D]\n(Concurring with Bhagwati and\t   A. C. Gupta, JJ.)\nHELD  FURTHER: (4) There is no violation of the\t Fundamental\nrights guaranteed to the petitioners under Articles 19(1)(f)\nand  31\t of  the  Constitution\tas  a  consequence  of\t the\nthreatened  dissolution\t of the Legislative  Assembly.\t The\nWrit  Petitions\t are, therefore, not  maintainable  and\t are\nliable for rejection. [90 C-D]\nKing  Emperor v. Benorilal Sarma and Ors. 72 I.A. 57  @\t 64;\nBhagat Singh & Ors. v. The King Emperor<\/a> 58 IA 169;  Shamsher\nSingh  v. State of Punjab, [1975] 1 S.C.R. p.  814  referred\nto.\n2-722SCI\/77\n12\nPer Untwalia.  J.\n(1)  Assuming,\tthat the writ applications filed by some  of\nthe  Members of the Punjab Legislators under Art. 32 of\t the\nConstitution  of India axe maintainable, the petitioners  do\nnot make out a case for issue of any kind of writ  direction\nor order in the present case. [92 G]\n(2)  The suits as instituted under Art. 131, in the  instant\ncase, are not maintainable.  The dispute of the kind  raised\nin the suits does not involve any question whether of law or\nfact on which the existence or extent of any legal right  of\nthe  States concerned depends.\tThe facts as  disclosed\t are\ndefinitely  and exclusively within the prohibited area\tinto\nwhich it is neither permissible for the Courts, to enter nor\nshould they ever take upon themselves the hazardous task  of\nentering into such an area. [92 H, 93 A, 95 D-F, 97 D]\nBhagat\tSingh and Ors. v. The- King Emperor<\/a> 58 IA 169;\tKing\nEmperor v. Benori Lal Sarma and Ors. 72 IA 57; Lakhi Narayan\nDas v. The Province of Bihar<\/a> etc. 1949 F.C.R. 693; Mls.\t  S.\nK. G. Sugar Ltd. v. State of Bihar and Ors., [1975] 1 S.C.R.\n312 relied on.\nStephen Kalang Ningkan v. Govt. of Malaysia [1970] A.C.\t 379\nreferred to. Per Fazal Ali J.\n(1)  A\tdispute\t clearly  postulates  that  there  must\t  be\nopposing  claims which are sought to be put forward  by\t one\nparty  and  resisted  by the other.  One  of  the  essential\ningredients of Article 131 is that the dispute must  involve\na  legal  right.  based on law or  fact.   If  the  Central\nGovernment  chooses  to\t advise the  President\tto  issue  a\nProclamation,  the President has got no option but to  issue\nthe  Proclamation.  This manifestly shows that\tthe  Central\nGovernment  has a legal right to approach the  President  to\nissue  a  Proclamation for dissolution of an Assembly  as  a\npart  of the essential duties which a Council  of  Ministers\nhave  to  perform while aiding and advising  the  President.\nThe  State  Governments, however, do not  possess  any\tsuch\nright  at  all.\t There is no provision in  the\tConstitution\nwhich enjoins that the State Government should be  consulted\nor  their concurrence should be obtained before the  Council\nof Ministers submit their advice to the President  regarding\na  matter pertaining to the State so far as the\t dissolution\nof  an\tassembly  is  concerned.  The  right  of  the  State\nGovernments  to\t exist\tdepends on  the\t provisions  of\t the\nConstitution which is subject to Art. 356.  If the President\ndecides to accept the advice of the Council of Ministers  of\nthe  Central Government and issue a proclamation  dissolving\nthe  Assemblies, the State Governments have no right  object\nto the constitutional mandate contained in Art. 356.\n[103 B, F-H, 104 A-B]\n(2)  The  mere\tfact  that letters were sent  to  the  State\nGovernments  containing gratuitous advice could\t not  create\nany  dispute, if one does not exist before nor would such  a\ncourse\tof conduct clothe the State Government with a  legal\nright to call for a determination under Article 131.  If the\nState Governments do not possess such a legal, right or\t for\nthat  matter any right at all, then they cannot put  forward\nany claim before a court for a declaration or an injunction.\nUnless there is an existing dispute involving a legal  right\nbetween the parties,, the forum provided by Art. 131  cannot\nbe availed of by any party.  Having regard to the facts\t and\ncircumstances\tof  the\t present  case\tit  has\t  not\tbeen\nestablished  that there was any dispute involving the  legal\nright  between\tthe  Government\t of  India  and\t the   State\nGovernments and therefore, one of the essential\t ingredients\nof  Art.  131 not having been fulfilled, the suits  are\t not\nmaintainable on this ground alone. [104 C-D, 105 B-C]\nUnited\tProvinces v. The Governor General in Council  (1939)\nF.C.R. 124, 136 followed.\n(3)  The  right\t of  the  petitioners  as  members  of\t the\nLegislative Assembly of Punjab is not a Fundamental right as\nenvisaged in Part III of the Constitution.  At the most, the\nright  to  receive allowance as members of the\tAssembly  is\nmerely legal right consequent upon their election as members\nof  the\t Assembly.  The right of the petitioners is  only  a\nlimited and inchoate right in as much as it subsists only so\nlong  as  the Assembly runs its usual course of\t six  years.\nThe  right  may\t also cease to exist,  if  the\tAssembly  is\ndissolved by the\n13\nPresident  by  issuing a Proclamation under Art.  356.\t The\nright  therefore,  subsists  only  SO  long  as\t these\t two\ncontingencies  do not _ occur.\tThe Constitution  also\tdoes\nnot guarantee any right or allowances to the Members of\t the\nAssembly  which are given to them by. local Acts or  Ruler,.\nIt  was\t not a right which flows,  from\t the  Constitution.,\nThus,  there being no infraction of any Fundamental  right,.\nthe  petitioners  could not be allowed to take\trecourse  to\nArticle 32. [107 F-H; 108 G-H]\nH.   M.\t Maharajadhiraja  Madhay  Rao  Jivaji  Rao   Scindia\nBahadur and Ors.,\nv.   Union   of\t  India\t and  Ors,<\/a>  [1971]   3\t S.C.R.\t  9,\ndistinguished.\n(4)    The  letter  does  not  amount  to  a  directive\t  as\ncontemplated by Art. 256 and 257 and could not be binding on\nthe  Chief  Ministers as it pertains purely to\ttile  States\nconcerned, namely, giving of the advice to the Governors for\ndissolution  of the Assemblies.\t The Central Government\t can\nnot  interfere\twith  this  executive  power  of  the  State\nGovernment  by giving directions under Article 256  or\tArt.\n257  of\t the  Constitution because the\tdissolution  of\t the\nAssembly by the Governor was purely a matter concerning\t the\nState  and did not fall within the four corners\t of  either\nArt. 256 or 257. [111 A-F]\n\t      (His  Lordship refrained from  expressing\t any\n\t      opinion  regarding  the theory  of  the  basic\n\t      structure of the Constitution as the  question\n\t      according\t to  his Lordship did  not  actually\n\t      arise for decision in this case.)\n(5)  Clause  (5) of Art. 356 gives the order passed  by\t the\nPresident  under  Art. 356 complete immunity  from  judicial\nscrutiny.  As such the Courts cannot go into the sufficiency\nor  adequacy  of  the materials on the basis  of  which\t the\nCouncil\t of Ministers of the Central Government\t could\tgive\nany advice to the President. [116 C-D & 120 G]\nBhagat Singh & Ors. v. The Kinq Emperor LR 58 I.A. 169, 172.\nLaknt  Narayan\tDas v. Province of Bihar,<\/a> 1949\tF.C.R.\t693,\n699;  M\/s  S. K. G. Sugar Ltd. v. State of  Bihar  and\tOrs.\n[1975] 1 S.C.R. 312 applied.\nIn  re.\t Sreeramulu A.I.R. 1974 A.P. 106, S.R.K.  Manumantha\nRao v. State of A.P. (1975) 2 AWR.277 approved.\nColegrove v. Green (1925) 328 U.S. 549 referred to.\nKing v. Benoari Lal Sarma, L.R. 72 IA 57, 64 explained.\nPadfield v. Minister of Agriculture, Fisheries and Food L.R.\n1968 A.C. 997, 1007 Quoted with Approval.\n(6)  If\t the opinion of the Central Government was based  on\nextraneous  or\tirrelevant  materials or it  was  guided  by\npurely\tpersonal  considerations or  ulterior  motives,\t the\nCourts will always interfere and hold such action to be mala\nfide and strike it down. [119 B]\nDr.   A.  K. Shaihar and Ors. v.  Vice\tChancellor,  Benaras\nUniversity,<\/a> [1961] 3 S.C.R. 386; followed.\nObservation :\nAs  the\t reasons  given\t by  the  Council  of  Ministers  in\ntendering  their advice to the President cannot be  inquired\ninto by the Courts, it is hoped that the Central  Government\nin  taking  momentous decisions having far  reaching  conse-\nquence\ton  the working of the Constitution, will  art\twith\ngreat  care  and  circumspection and  with  some  amount  of\nobjectivity  so\t as to consider the pros and  cons  and\t the\nvarious shades and features of the problems before them in a\ncoot  and collected manner.  The guiding principles in\tsuch\ncases  should be the welfare of the people at large and\t the\nintention  to strengthen and preserve the Constitution.\t and\nthat  this matter will receive the serious attention of\t the\nGovernment.  The stamp of finality given by Cl. (5) of\tArt.\n356 of the Constitution does not imply a free licence to the\nCentral\t Government to give any advice to the President\t and\nget an order passed on reasons, which are wholly  irrelevant\nor  extraneous\tor which have absolutely no nexus  with\t the\npassing\t of the Order.\tTo this extent the  judicial  review\nremains. [121 B-D]\n14\nHELD FURTHER: (dissenting from the majority)\n(7)  The  import  and  purport\tof Art.\t 131  is  to  decide\ndisputes  between  one\tstate and  another  or\tbetween\t the\nGovernment  of India and one or more States.   The  founding\nfathers\t of the Constitution have used the words \"State'  in\nArt.   131  both  deliberately\tand  advisedly\tso   as\t  to\ncontemplate  the  State as a constituent unit of  the  Union\nalong  with its territory and permanent\t institutions.\t The\nquestion  as to the personnel who run these institutions  is\nonly  unrelatable  to the existence of a dispute  between  a\nState and the Government of India.  It is only when there is\na complete abolition.of any of the permanent institution  of\na  State  that a real dispute may arise.  A  mere  temporary\ndissolution of an assembly under Art. 356 does not amount to\nabolition   of\t a  State  Assembly   because\tafter\tsuch\ndissolution,  under  the  provisions  of  the  Constitution,\nelections are bound to follow and a new legislature would\nevidently come into existence after the voters have  elected\nthe candidates.\n[107 B-D]\n(8)  On\t a true and proper construction of Art. 131  of\t the\nConstitution  it may be said that dispute like\tthe  present\none  is\t totally  outside the scope of Article\t131  of\t the\nConstitution.\tTherefore,  the State Governments  who\thave\nraised\tthe  dispute  are not covered by  the  word  'State'\nappearing  in Article 131 and, therefore, the suits are\t not\nmaintainable on this ground also. [107 E]\n\n\n\nJUDGMENT:\n<\/pre>\n
ORIGINAL JURISDICTION : Original Suit Nos. 1 to 6 of 1977.
\n(Under Article 131 of the Constitution of India.)
\nNiren De,S.  K. Tewari, Adv.  Genl.  Rajasthan, S. M.  Jain,
\nfor the Plaintiff in Suit No. 1.\n<\/p>\n
Niren  De, Ram Panjwani and I. N. Shroff, for the  plaintiff
\nin Suit No. 2<\/span>
\nH.   R. Gokhale, Ram Panjwani, Vijay Panjwani, O. P. Sharma,
\nS.   K.\t Bagga and Mrs. S. Bagga, for the plaintiff in\tSuit
\nNo. 3.\n<\/p>\n
 Niren\tDe, D. P. Singh, S. C. Agarwal and U. P. Singh,\t for
\nthe plaintiff in Suit No. 4.\n<\/p>\n
Madan Bhatia, for the plaintiff in Suit No. 5.
\nG.   Rath,  Adv.  Genl, Orissa, Niren De, R. K.\t Mehta,\t for
\nplaintiff in Suit No. 6.\n<\/p>\n
Soli.\tJ. Sorabjee, Additional Solicitor General (in O.  S.
\nNos.  1-3\/77),\tB. Datta, (in Suit Nos. 1-3\/77)\t and  R.  N.
\nSachthey, for the defendant\/respondents in all the matters.
\nM.   K.\t Garg,\tS.  C. Agarwal and Y. J.  Francis,  for\t the
\npetitioners in the  Writ Petitions.\n<\/p>\n
J.   P.\t Goyal,\t S.  K.\t Sinha,\t B.  B.\t Singh\tand  A.\t  K.
\nSrivastava,   for  the\tapplicant\/interveners-Girdhari\t Lal
\nBhargva in O. S. No. 1\/77.\n<\/p>\n
J.   P.\t Goyal,\t Sharad\t Manohar and C.\t J.  Sahu,  for\t the
\napplicant interveners Chowdhary Devi Lal in Writ Petitions.
\nThe following Judgments of the Court were delivered
\nBEG.   C. J. Original Suits Nos. 1 to 6 of 1977,  before  us
\nnow  have been filed on behalf of the States  of  Rajasthan,
\nMadhya Pradesh, Punjab, Bihar, Himachal Pradesh, and  Orissa
\nagainst the Union
\n\t\t     15<\/span>
\nof  India under, Article 131 of the Constitution  of  India.
\nThere are also before us three writ Petitions, Nos. 67 to 69
\nof 1977, by three members of the Legislative Assembly of the
\nState of Punjab against tile Union of India and Shri  Charan
\nSingh,\tthe  Home Minister in the Government of\t India,\t and
\nShri  Zail Singh, Chief Minister of Punjab.  The  six  suits
\nand the, three Writ Petitions raise certain common questions
\nof  law\t and fact.  They were, therefore,  permitted  to  be
\nargued\ttogether.  We have already dismissed the  suits\t and
\npetitions  after hearing them at length and now\t propose  to
\nstate  our  reasons for doing so as stated in our  order  of
\n29th  April  1977.  Before dealing with, the.  questions  of
\nfact  and  law I will indicate the nature  of  the  reliefs,
\nsought by each plaintiff under Article 131 and the grievance
\nof each petitioner under Article 32 of the Constitution.
\nThe State of Rajasthan asked for a declaration that what  it
\ndescribed  as  a “directive” contained in the  letter  dated
\n18th  April,  1977, issued by Shri Charan Singh,  the  Union
\nHome  Minister,\t to  the Chief Minister\t of  the  State’  is
\n“unconstitutional, illegal and ultra vires the\tConstitution
\nand  also  a declaration that the plaintiff  State  is\t“not
\nconstitutionally  or  legally obliged to comply with  or  to
\ngive effect to the directive contained in the said letter.
\nThe State of Madhya Pradesh seeks the declaration that\t“the
\ndirection   \/order dated 18th April, 1977, of the  defendant
\nthrough its Home Minister is ultra vires the Constitution”.
\nThe  State  of\tPunjab asks for a  declaration\tof  what  it
\ndescribes   as\t“direction\/order”  as  “ultra\tvires”\t the
\nConstitution.\n<\/p>\n
The  State of Bihar calls the letter a “directive’ and\tasks
\nfor the declaration that it is “unconstitutional and  void”.
\nit also prays for a declaration that a refusal by the  Chief
\nMinister  of  Bihar to comply with it “cannot  be  made\t the
\nbasis  for the issue of proclamation under Article, 356,  of
\nthe Constitution”.  ‘It also seeks a declaration that  Arti-
\ncle 356 of the Constitution “cannot be invoked for the\tsole
\npurpose\t of  dissolving the State Legislative  Assembly\t and
\nholding\t fresh\telections for the said\tAssembly  after\t the
\ndefeat\tof the majority party- in the said Assembly  in\t the
\nelections for the Lok Sabha”.\n<\/p>\n
The State of Himachal Pradesh prays for eight declarations :
\nfirstly, that “the Council of Ministers of the State is\t not
\nliable\tto  resign  and\t the  Legislative  Assembly  of\t the
\nplaintiff  is not liable to be dissolved on the ground\tthat
\nthe   Congress\tParty,\twhich  holds  a\t majority   in\t the
\nLegislative  Assembly, had lost in the Lok  Sabha  elections
\nand  the  Janata Party has come into power at  the  centre”;
\nsecondly,  that\t “the  Executive ,of the  Defendant  is\t not
\nentitled  to  encroach\tupon the  sole\tprerogative  of\t the
\nCouncil\t of Ministers as to the nature of the  advice  which
\nthe ‘latter thinks fit to render to the Governor”;  thirdly,
\nthat “the provisions ,of Article 356 of the Constitution are
\nnot liable to be invoked by the President merely because the
\nPolitical party which has been returned to power in the\t Lok
\nSabha elections happens to be different from the party which
\nholds majority in the Legislative Assembly of the  plaintiff
\nand  which  might have lost heavily in the’ said  Lok  Sabha
\nelections”;   fourthly, that “the Legislative,\tAssembly  of
\nthe plaintiff is not liable to
\n16<\/span>
\nbe  dissolved  before  the  expiry of  the  term  under\t the
\nConstitution  because the views of the electorate,  have  an
\nundergone  a  change  as  stated  in  the  letter.  of\t the
\ndefendant’s Home Minister dated 18th April, 1977″;  fifthly,
\nthat  “‘the  circumstances mentioned in the letter  do\tnot
\nconstitute  a threat to law and order, and, in,\t any  case,-
\nsuch   a   threat  to  law  and\t order\t cannot\t  form\t any
\nconstitutional\tbasis  for dissolution\tof  the\t Legislative
\nAssembly  of  the  plaintiff”; sixthly,\t that  “reasons\t and
\ncircumstances\tstated\tin  the\t letter\t addressed  by\t the
\ndefendant   to\t the   plaintiff’s   Chief   Minister\t and
\nthe,resultant  threatened  action under Article 356  of\t the
\nConstitution  are Wholly unconstitutional and mala fide\t and
\nthat  a proclamation issued on. the facts and  circumstances
\nof the present case, would be utterly void”; seventhly\tthat
\nthe “condition precedent and prescribed in Article 356(1) of
\nthe  Constitution,  is non-existent”;  eighthly,  that\t“the
\nLegislature  of the plaintiff cannot be dissolved until\t and
\nunless\tany proclamation issued under Article 356(1) of\t the
\nConstitution,  is ratified by both Houses of  Parliament  as
\nenvisaged by Article 356 (3) of the Constitution
\nThe  State  of\tOrissa asked ‘for  a  declaration  that\t the
\n“directive” contained in, the letter of 18th April, 1977, is
\n“Unconstitutional, illegal and ultra vires the Constitution”
\nand  also that the plaintiff State is “not  constitutionally
\nor  legally obliged to comply with or to give effect to\t the
\ndirective contained in the said letter”.\n<\/p>\n
In  addition, each of the ‘plaintiffs in the six suits\tasks
\nfor a permanent as well as an interim injunction in slightly
\ndiffering  terms  but the object of all\t these,\t injunctions
\nsought is abundantly clear and common.\n<\/p>\n
The  State  of Rajasthan has sought a  permanent  injunction
\n“restraining  the  defendant  from  giving  effect  to\t the
\ndirective  contained in the said letter in any Manner”.\t  It
\nalso asks for permanent injunction restraining the defendant
\nresorting  to  Article 356 of the Constitution of  India  to
\ndissolve the Legislative, Assembly of the State of Rajasthan
\nand from taking any steps for holding fresh elections to the
\nState Assembly’before March, 1978.”\n<\/p>\n
“Perpetual”  injunctions are sought by the State  of  Madhya
\nPradesh against the defendant Union of India to restrain its
\nGovernment  “from  enforcing  directions  contained  in\t the
\nletter and,\/or dissolving the Legislature of the State”.
\nThe  State  of Punjab prays for “a perpetual  injunction  to
\nrestrain   the\tdefendant  from\t enforcing  the\t  directions
\ncontained  it,, the statement dated 18th April 1977  and  in
\nthe  letter dated 18th April 1977 to the Chief\tMinister  of
\nthe  plaintiff\tState  and restraining\tthe  defendant\tfrom
\ndissolving  the Legislative Assembly of the plaintiff  State
\nor-  imposing  Presidential Rule under\tArticle\t 356  before
\nMarch 1978”.\n<\/p>\n
The  State of Bihar asks for an injunction against issue  by
\nthe  defendant Union of a Proclamation under Article 356  of
\nthe  Constitution “for the purpose of dissolving  the  Bihar
\nState  Assembly\t and holding fresh elections for  the  State
\nAssembly.”\n<\/p>\n
17<\/span><\/p>\n
The  State of Himachal Pradesh seeks a permanent  injunction
\nfor restraining the defendant from issuing any\tProclamation
\nunder  Article\t356(1)\tof the\tConstitution”  except  in  a
\nsituation  contemplated\t by the provisions  and\t another  to
\nrestrain   the\t Union\tGovernment  from,   dissolving\t the
\nlegislative  assembly  of the State “until  and\t unless\t any
\nProclamation  issued under Art. 356 of the Constitution,  is
\nratified by both the Houses of Parliament”.  In other words,
\na prohibitory order, in the nature of a Writ of “Quo  Usquo”
\n(until condition precedent is fulfilled) is sought.
\nThe  State  of’ Orissa prays for  “a  permanent\t injunction”
\nrestraining  the  defendants  from  giving  effect  to\t the
\n“directive”  contained\tin the said letter “in\tany  manner”
\nand,   another\t “permanent   injunction   restraining\t the
\ndefendants  from  taking  recourse  to\tArticle\t 56  of\t the
\nConstitution  of India to dissolve the Legislative  Assembly
\nof  the\t State\tof Orissa and, from  taking  any  steps\t foe
\nholding\t fresh elections to the State Assembly before  March
\n1980”.\t It  may  be mentioned that  the  elections  to\t the
\nLegislative  Assembly of the State of Orissa took  place  in
\n1974.\n<\/p>\n
Each  of  the  six  States  have  also\tasked  for   interim
\ninjunctions so that the reliefs prayed foil in the suits may
\nnot become infructuous.\n<\/p>\n
The three petitioners in the Writ Petitions from Punjab\t are
\nMembers\t of the Legislative Assembly of the State of  Punjab
\nthey  assert  that there is a threat to\t their,\t fundamental
\nright  to property in the shape of a right to receive  their
\n“salaries” as Member of the Legislative Assembly as a result
\nof  an\timpending  dissolution.\t They submit  that  such  an
\nimpending  threat is enough, to enable them to\tinvoke\tthe
\njurisdiction   of  this\t Court\tunder  Article\t32  of\t the
\nConstitution.\n<\/p>\n
It  is\tobvious\t that  the cause of action  set\t up  by\t the
\nplaintiffs in each suit as well as by the petitioners  under
\nArticle\t 32 of the Constitution is said to be  furnished  by
\nthe  letter of Shri Charan Singh, the Home Minister  in\t the
\nUnion Government, and a statement said to have been made  by
\nShri   Shanti  Bhushan,\t the  Law  Minister  in\t the   Union
\nGovernment.   These,  according\t to  the  Plaintiffs   under
\nArticle 131 as well as petitioners under Article 32, provide
\nsufficient  grounds  for  inferring  that  the\t Legislative
\nAssembly  of each of the States involved will be  dissolved,
\nafter a Proclamation under Article 356 if what the letter of
\nShri  Charan Singh describes as “advice” is not carried\t out
\nby the Chief Minister of each of the six states.
\nThe principal common submissions on behalf of the plaintiffs
\nas well as the petitioners are :\n<\/p>\n
Firstly,, that the letter of.  Shri Charan Singh dated\t18th
\nApril,\t1977,  discloses  the sole ground  of  an  impending
\nProclamation  under  Art.  356 of  the\tConstitution  to  be
\nfollowed  by a dissolution of the ]Legislative\tAssembly  of
\nthe State concerned and that such a proclamation,  resulting
\nnecessarily  in the dismissal of the Ministries in  the\t six
\nStates\tand the dissolution of their Legislative  Assemblies
\nupon  the  grounds given in the letter, is  prima  facie  to
\noutside the purview of Article 356 of the Constitution.\n<\/p>\n
18<\/span><\/p>\n
Secondly, that, in any case, the condition precedent to\t the
\ndissolution  of\t the  State  Legislative  Assemblies  is   a
\nratification   by   both  Houses  of   Parliament   of\t the
\nPresidential   action\tunder  Article\t356   so   that\t  on
\ndissolution, at any rate, of a Legislative Assembly can take
\nplace without ascertaining the wishes of both the Houses of
\nParliament.\n<\/p>\n
3    Thirdly,  that  the  grounds given\t being\toutside\t the
\nconstitutionally authorised purposes and objectives make the
\nproposed   action,  on\tthe  face  of  it,  mala  fide\t and
\nunconstitutional.\t   Our attention was also  drawn  to
\ncertain assertions in the plaints and petitions for  advanc-
\ning the pleas of “malice in fact”‘ and “malice in law”.
\nThe replies on behalf of the Union of India are
\nFirstly,  that\ton allegations made in the plaints  no\tsuit
\nbefore\tus would fall within the purview of Art. 131 of\t the
\nConstitution  which  is meant for grievances of\t States,  as
\nsuch,. against the Union Government, and not those  relating
\nto  mere composition of State Governments  and\tLegislatures
\nwithout\t involving constitutional or other legal  rights  of
\nStates as such.\n<\/p>\n
Secondly,   the\t questions  which  arise  for  gauging\t the
\nexistence of a “situation”, calling for action under Article
\n356  are, by their very nature, inherently  non-jisticiable,
\nand  they  have also been made nonjusticiable  expressly  by
\nArticle 356(5) of the Constitution so that, even if a  State
\ncould,\tas  such,  be said to be legally  and  properly\t in-
\nterested in the dispute between its Government and the Union
\nGovernment about the desirability or need for any action  by
\nthe Union Government under Article 356 of the  Constitution,
\nsuch,  a  dispute  is  outside\tthe  sphere  of\t justiciable
\nmatters.   If  the  final action or  its  grounds  are\tnon-
\njusticiable,  they  could  not be  indirectly  assailed,  by
\nchallenging a process which may or may not actually  produce
\nthe apprehended result or action.\n<\/p>\n
Thirdly,  the  letter  of the Union Home  Minister  and\t the
\nspeech of the  Union  Law  Minister  do\t not  indicate\tthat
\nanything falling outside the wide spectrum of Article 356 of
\nthe  Constitutions being or will be taken into, account\t for
\ntaking\taction\tunder  Article\t356.\t\t  Hence,  on
\nmatters\t stated there, no cause of action could be  said  to
\nhave arisen.\n<\/p>\n
Fourthly  , mere intimation of some facts, fully within\t the
\npurview of Article 356 of the Constitution, does not justify
\na  prohibition\tto act in future when the situation  may  by
\nserious\t enough,  on  the strength of  facts  indicated\t and
\npossibly, other facts also, for action under Article.356  of
\nthe  Constitution.  In other words, the submission was\tthat
\nit  could not possibly be predicated now whether there\twere
\nor  not other facts or what other possible facts, which\t may
\naffect the situation, may arise in future.  It was submitted
\nthat  the freedom of constitutionally  authorised  executive
\naction\tof the highest executive organs of the Union  should
\nnot  be, impeded by judicial interference except on  grounds
\nof clearest and gravest possible character.  Just now, there
\nwas  nothing beyond bare possibilities before the  Court  so
\nthat no anticipatory Injunction or Order could be granted.\n<\/p>\n
19<\/span><\/p>\n
The  first  ground of objection on behalf of  the  Union  is
\nconfined to the suits.\tBut, the remaining three grounds  of
\nobjection  are\tcommon\tto the suits as\t well  as  the\tWrit
\nPetitions.\n<\/p>\n
On  behalf  of\tUnion of India\tnotices\t were  accepted\t and
\npreliminary  objections, mentioned above, were taken to\t the
\nmaintainability\t of  the  suits and  the  petitions  on\t the
\nallegations  made therein.  We, therefore proceeded to\thear
\narguments on the preliminary objections. with,out  requiring
\ndefendants  or\trespondents to file  written  statements  or
\nreplies\t or framing issues formally.  I propose\t to  examine
\nthe allegations made in the plaints and in the petitions  so
\nas to determine whether assertions made there, on  questions
\nof  fact,  are sufficient to disclose any  cause  of  action
\nnecessary to maintain the suits or the petitions for reliefs
\nasked for.\n<\/p>\n
As indicated above, the letter of Shri Charan Singh the Home
\nMinister  in the Union Government, to the Chief Minister  of
\neach  State provides the primary source of the grievance  of
\nthe  plaintiffs and petitioners.  One of  these\t identically
\nphrased letters (the one to the Chief Minister of Rajasthan)
\nmay be reproduced here. It runs as follows:-\n<\/p>\n
\t\t\t       “D. O. No. 355\/MS\/T\/77
\n\t\t\t\t   HOME MINISTER
\n\t\t\t\t       INDIA
\n\t\t\t\t     New Delhi,
\n\t\t\t\t   April 18, 1977.\n<\/p><\/blockquote>\n
Dear Shri Joshi,
\nWe  have given our earnest and serious consideration to\t the
\nmost  unprecedented political situation arising out  of\t the
\nvirtual\t rejection,  in the recent Lok Sabha  elections,  of
\ncandidates belonging to the ruling party in various  States.
\nThe  resultant\tclimate\t of  uncertainty  is  causing  grave
\nconcern\t to  us.  We have reasons to believe that  this\t has
\ncreated\t a  sense  of  diffidence  at  different  levels  of
\nAdministration.\t   People  at  large  do  not\tany   longer
\nappreciate the propriety of continuance in power of a  party
\nwhich has been unmistakably rejected by the electorate.\t The
\nclimate\t of  uncertainty,  diffidence  and  disrespect\t has
\nalready given rise to serious threats, to law and order.\n<\/p>\n
2.   Eminent  constitutional experts have long been  of\t the
\nopinion\t :that\twhen a Legislature no  longer  reflects\t the
\nwishes or views of the electorate and when there are reasons
\nto  believe ‘that the Legislature and the electorate are  at
\nvariance,  dissolution,\t with a view to\t obtaining  a  fresh
\nmandate\t from the electorate would be most appropriate.\t  In
\nthe  circumstances prevailing in your State, a fresh  appeal
\nto  the political sovereign would not only  be\tpermissible,
\nbut also, necessary and ,obligatory,
\n20<\/span>\n<\/p>\n
3.   I\t would,\t therefore,  earnestly\tcommend\t  for\tyour
\nconsideration that you may advise pour Governor to, dissolve
\nthe  State  Assembly  in exercise of  powers  under  Article
\n174(2)(b)  and\tseek a fresh mandate  from  the\t electorate.
\nThis  alone  would, in our considered view,  be\t consistent
\nwith constitutional precedents and democratic practices.\n<\/p>\n
4.   I would be grateful if you would kindly let me know  by
\nthe 23rd what you propose to do.\n<\/p>\n
\tWith regards,
\n\t\t\t\t   Yours sincerely,
\n\t\t\t\t       Sd\/-\n<\/p>\n
\t\t\t\t    (Charan Singh)
\nShri Harideo Joshi,
\nChief Minister of Rajasthan,
\nJaipur”.\n<\/p>\n
To substantiate the allegation that the letter,\t constituted
\na  “threat” of action under Article 356 of the\tConstitution
\nto  dismiss  the  Government, to  dissolve  the\t Legislative
\nAssembly  of  each  plaintiff  State  and  to  imposer\t the
\nPresident’s  rule upon it, corroboration was sought from  :a
\nreport\tof a talk of Shri Shanti Bhushan, the  Minister\t for
\nLaw,  Justice and Company Affairs, on the All  India  Radio,
\nwhich  appeared\t in  the  Statesman  of\t 23rd  April   1977.
\nAlthough, reports in newspapers do not constitute admissible
\nevidence of their truth, yet, I reproduce the extract  which
\nwas  either attached to or its substance reproduced in\tthe,
\nplaints,  only\tto  test whether,  even\t assuming  that\t its
\ncontents  were to be proved, by admissible evidence,  to  be
\ngiven  in  due\tcourse,\t all  the  allegations\twill,  taken
\ntogether, constitute something actionable.  The report\tsaid
\n:\n<\/p>\n
\t      “Advice to Nine States a Constitutional  duty,
\n\t      says Shanti Bhushan.\n<\/p><\/blockquote>\n
\t      Mr.  Shanti Bhushan, Union Law Minister,\tsaid
\n\t      on  Friday  night that a clear case  had\tbeen
\n\t      made out for dissolution of the Assemblies  in
\n\t      nine  Congress-ruled  States  and\t holding  of
\n\t      fresh elections, reports Samachar.
\n\t      In  an interview in the, Spot-light  programme
\n\t      of  All  India  Radio he said  that  the\tmost
\n\t      important\t basic feature of  the\tConstitution
\n\t      was  democracy, which meant that a  Government
\n\t      should function with the broad consent  of the
\n\t      people  and only so long as it  enjoyed  their
\n\t      confidence.   If\tState Governments  chose  to
\n\t      govern  the  people  after  having  lost\t the
\n\t      confidence  of  the  people,  they  would\t  be
\n\t      undemocratic Governments, he said.
\n\t      Under Article 355, a duty had been cast on the
\n\t      Union   Government   to  ensure\tthat   State
\n\t      Governments were carried on in accordance with
\n\t      the Constitution.\n<\/p><\/blockquote>\n
\t      21<\/span><\/p>\n
\t      The  Home\t Minister,  Mr.\t Charan\t Singh,\t had
\n\t      appealed\tto the Chief Ministers of  the\tnine
\n\t      States to advise their Governors to  recommend
\n\t      to  the  President dissolution  of  the  State
\n\t      Assemblies.-This\twas because a serious  doubt
\n\t      had  been cast on their enjoying the  people’s
\n\t      confidence,  their party having been  rejected
\n\t      in  the  recent Lok Sabha\t elections  the\t Law
\n\t      Minister said.\n<\/p><\/blockquote>\n
\t\t\tEXERCISE OF POWER
\n\t      Mr.  Shanti  Bhushan  was\t asked\twhether\t the
\n\t      Centre would not be failing in its duty if  it
\n\t      did  not\texercise its power at  this  crucial
\n\t      juncture\tto  test the legitimacy of  a  State
\n\t      Government.\n<\/p><\/blockquote>\n
\t      He-replied  that after all whenever the  power
\n\t      was conferred by the Constitution. it was\t not
\n\t      done  simply  for the sake of  conferring\t it.
\n\t      Obviously\t the Constitution  contemplated\t the
\n\t      circumstances under which that power should be
\n\t      exercised.  When those circumstances arose  it
\n\t      was  obligatory on the part of the  Centre  to
\n\t      exercise that power.<\/p><\/blockquote>\n
\t      Mr.  Shanti Bhushan said he failed to see\t why
\n\t      the State Governments objected to going to the
\n\t      people to seek their mandate.  “If\t  we recognise the
\n real sovereignty and  supremacy
\n\t      of  the people, there cannot be any  possible
\n\t      objection”.  If someone claimed a divine right
\n\t      to rule whether the people wanted him or\tnot,
\n\t      the in of course, there could be an  objection
\n\t      to go to the people.\n<\/p>\n
\t\t\t PREMATURE END
\n\t      Explaining   the\t Constitutional\t  provisions
\n\t      relating\tto premature dissolution  of  State.
\n\t      Assemblies,   Mr.\t Shanti\t Bhushan  said\t two
\n\t      articles\tdeal with this matter.\tArticle\t 172
\n\t      provided for the normal term which was earlier
\n\t      five years.  But this had been extended to six
\n\t      years by the Constitution 42nd Amendment\tAct.
\n\t      Then  Article 174 gave the Governor the  power
\n\t      to dissolve the Legislative Assembly from time
\n\t      to time even during the normal period of\tfive
\n\t      or  six years.  Normally this power was to  be
\n\t      exercised\t with  the  aid and  advice  of\t the
\n\t      Council of Ministers.\n<\/p>\n
\t      He  was asked whether it was  permissible\t for
\n\t      the President to resort to Article 356 if\t the
\n\t      Council of Ministers failed to aid and, advise
\n\t      the  Governor to dissolve the  Assembly  under
\n\t      Article 174.\n<\/p>\n
\t      Mr.   Shanti  Bhushan  explained\tthat   under
\n\t      Article 355 a duty had been, cast on the Union
\n\t      Government  to ensure that the Governments  in
\n\t      States were carried on in accordance with\t the
\n\t      Constitution.  The most important provision in
\n\t      the Constitution.\t “rather the most  important
\n\t      basic   feature  of  the\t Constitution”\t was
\n\t      democracy which meant that a
\n\t      22<\/span>
\n\t      Government  should  function  with  the  broad
\n\t      consent  of the people and only so long as  it
\n\t      enjoyed the confidence of the people.\n<\/p>\n
\t\t      CONTINUED CONFIDENCE
\n\t      Mr.  Shanti  Bhushan said that the  mere\tfact
\n\t      that at one time the Governments in the States
\n\t      enjoyed  the confidence of the people did\t not
\n\t      give  them  the right to\tgovern\tunless\tthey
\n\t      continued\t to  enjoy that\t confidence.   If  a
\n\t      situation\t arose in which a serious doubt\t was
\n\t      cast   upon   the\t Government   enjoying\t the
\n\t      continued\t confidence of the people, then\t the
\n\t      provision\t for  premature dissolution  of\t the
\n\t      Assembly immediately came into operation.
\n\t      The  provision not merely gives the power\t but
\n\t      it casts a duty because this power is  coupled
\n\t      with  duty,  namely,  the\t Assembly  must\t  be
\n\t      dissolved immediately and the Government\tmust
\n\t      go  to  the  people  to  see  whether  it\t has
\n\t      continued confidence of the people to  govern.
\n\t      Even  after having lost the confidence of\t the
\n\t      people,  if  the Government  chose  to  govern
\n\t      people, it would be undemocratic.\t This  would
\n\t      not  be in accordance with the  provisions  of
\n\t      the Constitution.\n<\/p>\n
\t      This  was precisely the philosophy behind\t the
\n\t      wide  powers  given  to  the  President  under
\n\t      Articles\t 355   and  356.    Obviously\tsome
\n\t      authority had to be given the power to  ensure
\n\t      that the functionaries under the\tConstitution
\n\t      were   working   in   accordance\t with\t the
\n\t      Constitution.\n<\/p>\n
\t      As there were a number of States, obviously no
\n\t      single  State  could  be\tgiven  this   power.\n<\/p>\n
\t      Therefore,  this\tpower was entrusted  to\t the
\n\t      Union   Government  to  see  that\t the   State
\n\t      Governments were acting in accordance with the
\n\t      Constitution,  which meant in accordance\twith
\n\t      democratic principles and conventions.\n<\/p>\n
\t\t\t    NOT WHOLLY IMMORAL
\n\t      Answering another question, Mr. Shanti Bhusban
\n\t      did   not\t agree,\t that  the  whole   of\t the
\n\t      Constitution  42nd Amendment Act was  immoral.
\n\t      But there were, serious objections to that Act
\n\t      on the ground of ethics.\tWhen this  amendment
\n\t      was rushed through Parliament, the five  years
\n\t      term of the members was over.  Their term\t had
\n\t      really  expired  and  they did  not  have\t the
\n\t      continued\t mandate to enact such an  important
\n\t      Act as the 42nd Amendment.  The results of the
\n\t      Lok  Sabha elections had also shown  that\t the
\n\t      people  had not really given them the  mandate
\n\t      to enact the amendment.\n<\/p>\n
\t      The other objection to the 42nd Amendment\t was
\n\t      that during the Emergency important leaders of
\n\t      the  opposition  parties were in\tjail.\tThey
\n\t      could not express their views.\n<\/p>\n
\t       23<\/span><\/p>\n
\t      Mr.   Shanti  Bhushan  said  that\t  the\t42nd
\n\t      Amendment had been enacted.  As the  Ministers
\n\t      had   taken   an\t oath  to   abide   by\t the
\n\t      Constitution,   they  could  not\tignore\t the
\n\t      provisions of the 42nd Amendment so long as it
\n\t      remained.\t With the result it was not possible
\n\t      to, have elections, in those States where\t the
\n\t      State Governments had not lost the mandate  of
\n\t      the people as was, reflected in the Lok  Sabha
\n\t      elections”.\n<\/p>\n
I  have\t set out the two basic sources of complaint  in\t the
\nplaints\t and  the petitions in order  to  consider  whether,
\nassuming  such\tstatements had ‘been made by  the  two\tvery
\nresponsible and important Ministers of the Union Government,
\nthey  could sustain suits for injunctions under Article\t 131
\nof  the\t Constitution  or writ petitions by  Members,  of  a
\nLegislative Assembly to be dissolved.\n<\/p>\n
So  far as the letter of Shri Charan Singh is concerned,  it
\ncertainly  does not contain even a reference to Article\t 356
\nof  the\t Constitution.\t Nevertheless, the  speech  of\tShri
\nShanti\tBhushan,  assuming that it was\tcorrectly  reported,
\ndoes  mention Articles 355 and 356 of the  Constitution\t and
\nexpounds  a  view  of  one of  the  basic  purposes  of\t the
\nConstitution  the observance of which could, in the  opinion
\nof the Law Minister, be secured by,’, resort to Art. 356  of
\nthe  Constitution.  The speech does express the view of\t the
\nLaw  Minister  that  there was a duty cast  upon  the  Union
\nGovernment  by Article 355 of the Constitution to  secure  a
\nconformity  between the current opinion of  the,  electorate
\nand  the  composition of the legislatures in  the  different
\nStates\twhere the Governments in power today  reflected\t the
\nopinions of the majority of electors in each State prevalent
\nonly  at  a  time  when\t the  last  election  to  the  State
\nLegislative  Assembly was held.\t The question whether  these
\nState Governments retain the confidence of the electorate or
\nnot  at\t present could only be answered\t decisively  by\t the
\nelectors  themselves.\tThat  was the  exclusive  right\t and
\nprivilege of the electors under a democratic  constitutional
\nscheme\tand  the law.  According to the\t Law  Minister,\t the
\nelected representatives cannot set up a right to continue in
\npower now, despite an overwhelmingly adverse verdict of\t the
\nelectorate  against  the  party to which  members  of  these
\nGovernment  belong.   In  his opinion, to  do  so  would  be
\ncontrary  to  the basic norms of  democracy  underlying\t our
\nConstitution.\n<\/p>\n
If  what  was assumed to be proposed to be done,  under\t the
\nthreat”\t of a constitutionally prescribed mode of  executive
\naction,\t could, in, no circumstances, be done under  Article
\n356,  we  may  be  able\t to check  a  misuse  or  excess  of
\nconstitutional\tpower  provided judicial  control  over\t all
\npurported exercise of power of issuing proclamations,  under
\nArticle\t 256,  is not either impliedly or  expressly  barred
\neven  if a proposed action is plainly ultra vires’  But,  if
\nthe   views   of   the\ttwo  Union   Ministers\t state\t the
\nconstitutional position correctly, no question of in “abuse”
\nor  “misuse  of\t powers’  for  a  collateral  purpose  or  a
\n“detournement de Pouvoir” or a fraud upon the  Constitution”
\nor  “malice  in\t face’ or “malice in  law”  (terms  denoting
\ndifferent  shades,  of culpability and types of\t excess,  of
\npower),\t can arise on. the allegations of threatened  action
\nin  the cases before us, which really amount only  to  this;
\nThe  Union Government proposes to act under Article  356  of
\nthe Constitution to give electors
\n24<\/span>
\nin the various States a fresh chance of showing whether they
\ncontinue  to  have  confidence\tin  the\t State\t Governments
\nconcerned  and\ttheir policies despite the evidence  to\t the
\ncontrary provided by the very recent Lok Sabha elections.
\nOne  purpose  of our Constitution and laws is  certainly  to
\ngive  electors\ta  periodic opportunity\t of  choosing  their
\nState’s\t  legislature  and,  thereby,  of  determining\t the
\ncharacter of their State’s Government also.  It\t   is\t the
\nobject\tof  every  democratic  constitution  to\t give\tsuch
\nopportunities.\t      Hence, a policy devised to serve\tthat
\nand could not  be contrary to the basic structure or  scheme
\nof the Constitution.\t The  question whether\tthey  should
\nhave  that  opportunity now or later may be  a\tquestion  of
\npolitical  expediency  or  executive policy.  Can  it  be  a
\nquestion  of legal right also unless there is a\t prohibition
\nagainst\t the dissolution of a legislative assembly before  a
\ncertain\t  period  has  expired\t?  If  there  had   been   a
\nconstitutional\tprohibition, so that the proposed action  of
\nthe   Union   Government   could   have\t  contravened\tthat
\nconstitutional\tinterdict, we would; have been\tobliged\t to,
\ninterfere, but, can we do so when there is no constitutional
\nprovision  which gives the legislature of a State the  right
\nto   continue\tundissolved  despite   certain\t supervening
\ncircumstances  which may, according to, one view,  make\t its
\ndissolution necessary ?\n<\/p>\n
It may have been possible for this Court to act if facts and
\nthe circumstances mentioned to support proposed action\twere
\nso completely outside the purview of Art. 356 or so  clearly
\nin conflict with a constitutional provision that a  question
\nof  excess  of power could have apparently arisen.  If,\t for
\nexample,  an  authoritative  statement,\t (on  behalf  of   a
\nUnion,Government, was issued that a dissolution is  proposed
\nonly  because  the Chief Minister or the  whole\t Council  of
\nMinisters of a State belongs to a particular caste or creed,
\nit could be urged that the proposed action would  contravene
\nthe fundamental rights of Indian citizens of equality before
\nthe  law  and absence of discrimination on  such  a  ground.
\nThere is, however, no such allegation or its particulars  in
\nthe plaints before us which may be capable of giving rise to
\nthe  inference\tthat any  such\tconstitutionally  prohibited
\naction is intended by the Union Government.
\nThe  choice  between  a dissolution  and  re-election  or  a
\nretention of the same memberships of the legislature or\t the
\nGovernment  for\t a  certain  period  could  be\tmatters\t  of
\npolitical  expediency  and  strategy under  a\tdemocratic
\nsystem.\t Under our system, quest of political power, through
\nformation  of  several\tpolitical  parties,  with  different
\nsocioeconomic  policies\t and programmes and  ideologies,  is
\nlegal.\t Hence it cannot be said that a mere attempt to\t get
\nmore political power for a party, as a means of pursuing the
\nprogramme  of  that  party, as, opposed\t to  that  of  other
\nparties, is constitutionally prohibited\t or per se  illegal.
\nThere  may  be moral or even political objections  to,\tsuch
\ncourses\t incertain circumstances.\t   It may  be  urged
\nthat  States should be permitted to function undisturbed  by
\nany  directions\t or advise by the Union\t Government  despite
\ntheir  differences  with it on matters of  socioeconomic  or
\npolitical policy on complexion.\t Rights
\n25<\/span>
\nwere  asserted,\t on behalf of State legislators,  as  though
\nthey  were legal rights to continue. as\t legislators  untill
\nthe expiry of the; constitutionally fixed spans of lives  of
\ntheir  legislatures, barring cases of earlier  dissolution.
\nWe are only concerned here with legal rights to dissolve and
\nlegal obstacles to such dissolution.\n<\/p>\n
It  could be argued, with considerable force,  on  political
\nand  moral  grounds, that electors should be given  a  fresh
\nopportunity  of pronouncing their verdict upon the  policies
\nand  programmes of the Governments in the States  when\tvery
\nconvincing proof of wide ,divergence between their views and
\nthose  of their Governments has become available.   The\t Law
\nMinister’s  view is that, where there is  an  overwhelmingly
\nlarge  electoral  verdict in a State against  the  party  to
\nwhich  its  Government\tbelongs,  the  situation  not\tonly
\njustifies but makes resort to a fresh election or an  appeal
\nto  the\t political sovereign imperative.  This I  think,  is
\nlargely a political and moral issue.  We are only  concerned
\nwith its relationship to constitutional provisions.  If\t its
\nimpact\ton  the\t minds and feelings  of\t electors  or  those
\nofficers who have to carry on the day to, day administration
\nis  such  that\tit  will frustrate the\tvery  objects  of  a
\nGovernment under the Constitution or make it impossible\t for
\nthe  Government in a State to function as it ought to  under
\nthe Constitution, it may come to the conclusion that  action
\nunder  Article\t356 of the Constitution is called  for.\t  We
\ncannot forget that article 356(1) calls for an assessment of
\na “situation”.\tWe, cannot anticipate decisions or interdict
\npossible  actions in situations which may or may  not  arise
\ndue  to\t all kinds of factors-economic,\t social,  moral\t and
\npolitical.\n<\/p>\n
If the Union Government thinks that the circumstances of the
\nsituation  demand  that the, State Governments must  seek  a
\nfresh  mandate to justify their moral rights in the eyes  of
\nthe people to continue to exercise power in the interests of
\ntheir  electors,  or else the discontent of the\t masses\t may
\nhave  its  repercussion\t not  only  on\tthe  law  and  order
\nsituation  but\twill also affect legal\tresponsibilities  or
\nduties\twhich the Union Government has towards a  particular
\nState  or  towards Indian citizens in general, all  of\twhom
\nlive  in  some\tState or other, can we say  that  resort  to
\nArticle 356 of the Constitution is not called for ? I  think
\nthat it is impossible to substitute our judgment for that of
\nthe Union Government on such a matter.\n<\/p>\n
Even if it is possible to see a federal structure behind the
\nsetting up, of separate executive, legislative, and judicial
\norgans\tin,  the  State and to urge, as it  has\t been  urged
\nbefore\tus, that so long as the State Governments and  their
\nlegislatures  are not shown to have committed a\t dereliction
\nof their- constitutional duties or violations of any consti-
\ntutional provisions, they ought not to be interfered with by
\nthe  Union  Government, it is also apparent, both  from\t the
\nmechanism  provided by Article 356 of our  Constitution,  as
\nwell  as  the manner in which it has been used\ton  numerous
\noccasions   in\tthe  past,  since  the\tinception   of\t our
\nConstitution,  that  the  Union\t Government  is\t capable  of
\nenforcing its own views on such matters against those of the
\nState  Government  as to how the  State\t Governments  should
\nfunction  and  who  should bold the reins of  power  in\t the
\nStates\tso  as\tto enable the Constitution to  work  in\t the
\nmanner the Union Government wants
\n26<\/span>
\nit  to\tdo  in a situation such as the one  now\t before\t us.
\nArticle 131 of the Constitution was, certainly not meant  to
\nenable\tus  to sit as a Court of appeal on  such  a  dispute
\nbetween\t the Union Government and a State Government.\tAnd,
\nour  Constitution is not an inflexible instrument  incapable
\nof meeting the needs of such a situation.\n<\/p>\n
It may be that, under our Constitution, there is too great a
\nscope  for  struggle merely for seats of power so  that\t the
\ngrand\tpurposes,   enshrined  in  the\t Preamble   to\t our
\nConstitution and the correct governmental policies needed by
\nthe mass of our people to give reality to their dreams\ttend
\nto be neglected in scrambles for political power.  The issue
\nbefore us, however, is not whether one party or another\t has
\nfailed in the very objectives and purposes for which  people
\ngive unto themselves Constitutions such as ours.  It is\t not
\nfor  us\t to  decide  whether  a\t party\twhich  has  had\t its
\nopportunities in the past has adequately met the objects  of
\nlodging political and legal power in its hands, or,  whether
\nthose  who  now wield power at the Centre will\tdo  so\tmore
\nwisely, more honestly, or more, effectively, from the  point
\nof  view  of the interests of the masses of  our  people  or
\npublic good.  These are questions for the people  themselves
\nto answer.\n<\/p>\n
I  think  that the two Union Ministers have  stated  certain
\ngrounds\t for  inferring that the time has come to  give\t the
\npeople\tthe  political sovereign a chance to  pronounce\t its
\nverdict\t on the fates of State Governments and\tlegislatures
\nin   the   nine\t  States  also\tin   a\t manner\t  which\t  is
\nconstitutionally not open to objection.\t In so far as  arti-
\ncle  356 (1) may embrace matters of political and  executive
\npolicy\tand  expediency courts cannot interfere\t with  these
\nunless and until’ it is shown what constitutional  provision
\nthe  President is going to contravene of has contravened  on
\nadmitted grounds of action under Article 356 (1) for,  while
\nArticle\t 74(2) disables Courts from inquiring into the\tvery
\nexistence or nature or contents of ministerial advice to the
\nPresident, Article 356(5) makes it impossible for Courts  to
\nquestion  the  President’s  satisfaction  “on  any  ground”.
\nHence, Court$, can only determine the validity of the action
\non  whatever  may remain for them to consider  on  what\t are
\nadmitted,  on  behalf  of the President, to  be\t grounds  of
\nPresidential   satisfaction.   Learned\tcounsel’   for\t the
\nplaintiffs and petitioners, when confronted with Article 356
\n(5),  said they would challenge its validity as a  provision
\nviolating,  the\t basic structure of  the  Constitution.\t We,
\nhowever,  heard objections to the maintainability  of  suits
\nand  petitions even apart from the specific bar\t in  Article
\n356(5).\t And, I propose to deal principally with those other
\nobjections.\n<\/p>\n
This  Court has never abandoned its constitutional  function
\nas  the\t final\tjudge  of  constitutionality  of  all\tacts
\npurported   to\t be  done  under  the\tauthority   of\t the
\nConstitution.\tIt  has not refused to\tdetermine  questions
\neither\tof  fact or of law so long as it  has  found  itself
\npossessed’ of power to do it and the cause of justice to  be
\ncapable of being vindicated by its actions.  But, it  cannot
\nassume unto itself powers the Constitution lodges  elsewhere
\nor  undertake tasks entrusted by the Constitution  to  other
\ndepartments of State which may be better equipped to perform
\nthem.  The scrupulously discharged duties of all’  guardians
\nof the Constitution include the duty not to transgress the-\n<\/p>\n
27<\/span><\/p>\n
limitations  of\t their\tOwn  constitutionally  circumscribed
\npowers\tby trespassing into what is properly the  domain  of
\nother constitutional organs.  Questions of political  wisdom
\nor executive policy only could not be subjected to  judicial
\ncontrol.    No\t doubt\texecutive  policy   must   also\t  be
\nsubordinated  to constitutionally sanctioned  purposes.\t  It
\nhas its sphere and limitations.\t But, so long as it operates
\nwithin that sphere, its operations are immune from  judicial
\ninterference.\tThis  is also a part of the  doctrine  of  a
\nrough  separation  of  powers under  the  Supremacy  of\t the
\nConstitution  repeatedly.propounded  by this  Court  and  to
\nwhich  the  Court unswervingly adheres even when  its  views
\ndiffer\tor  change  on\tthe  correct  interpretation  of   a
\nparticular constitutional provision.\n<\/p>\n
Assuming, therefore, that the letter of Shri Charan Singh in
\nthe  context  of  the reported speech of  the  Law  Minister
\nformed\tthe  basis of an absolutely correct  inference\tthat
\naction under Article 356 of, the Constitution would be taken
\nby  the President if the “advice” to the Chief Ministers  of
\nStates contained in it is not accepted, the only question we
\nneed determine here is whether such a use of Article 356  of
\nthe  Constitution  was,\t in  any  way,\tunconstitutional  or
\nlegally\t malafide.   Another way of putting the\t same  issue
\nwould  be to ask whether the- purposes-stated by  the  Union
\nLaw  Minister for the proposed action under Article  356  of
\nthe  Constitution, assuming that such a proposal  or  threat
\ncould be found there, could be said to be extraneous to\t the
\npurposes of Article 356 of the Constitution.
\nMr. R. K. Garg arguing for the petitioners from Punjab,\t has
\nput forward what appears to us to be, according to the\tvery
\nauthority  cited  by  the learned counsel, on  the  mode  of
\nconstruing  our Constitution, a very good justification\t for
\nthe  view  said\t to have been propounded by  the  Union\t Law
\nMinister.  Mr. Garg relied on a passage from the judgment of
\nSikri, C.J., in H. H. Kesavananda Bharati Sripadagalavaru v.
\nState of Kerala<\/a> : (1)
\n\t      “I  must interpret Art. 368 in the setting  of
\n\t      our  Constitution,  in the background  of\t our
\n\t      history  and in the light of  our\t aspirations
\n\t      and  hopes, and other relevant  circumstances.
\n\t      No other constitution combines under its wings
\n\t      such  diverse people, numbering now more\tthan
\n\t      550  millions,  with different  languages\t and
\n\t      religions and in different stages of  economic
\n\t      development,  into  one nation, and  no  other
\n\t      nation is faced with such vast  socio-economic
\n\t      problems”.\n<\/p>\n
\t      It was also said there (at p. 69) :\n<\/p>\n
\t      “I   need\t hardly\t observe  that\tI   am\t not
\n\t      interpreting   an\t ordinary  statute,  but   a
\n\t      Constitution  which  apart from setting  up  a
\n\t      machinery\t for  government, has  a  noble\t and
\n\t      grand vision.  The vision was put in words  in
\n\t      the  Preamble  and  carried  out\tin  part  by
\n\t      conferring  fundamental rights on the  people.
\n\t      The vision was directed to be further  carried
\n\t      out   by\t the   application   of\t   directive
\n\t      principles.\n<\/p>\n
(1) [1973] Supp.  S.C.R. 1.\n<\/p>\n
3-722SCI\/77
\n28<\/span>
\nIt  seems  to  me  that if “aspirations\t and  hopes  of\t the
\npeople”, “the noble and grand vision found in the  preamble”
\nand  the chapter on “Directive Principles of  State  Policy”
\nare  to\t be  taken  into account  in  deciding\twhether\t the
\nprovisions  of the Constitution are being carried out  by  a
\nparticular  Government\tor not, the  scope  of\tinterference
\nunder\tArticle\t 356  of  the  Constitution,  so  that\t the
\nprovisions  of\tthe Constitution may  be  observed,  becomes
\nquite  wide  and sweeping.  So long as we are bound  by\t the
\nmajority  view\tin Kesavananda Bharati’s case  (supra),\t the
\npurposes and the doctrines lying behind its provisions\talso
\nbecome,\t if  one may so put it, more or less, parts  of\t the
\nConstitution.  Whether a particular view or proposed action,
\nin   a\tparticular  situation,\tamounts\t to   enforcing\t  or
\nsubverting   the   constitution\t thus\tbecomes\t  a   highly
\ncontroversial  political  issue on which the letter  of\t the
\nConstitution tends to be relegated to the background.
\nAs I am, strictly speaking, only concerned with the law,  as
\nI  find\t it  in\t the Constitution, I  will  now\t proceed  to
\ninterpret Article 356 as I find it.  It reads :\n<\/p>\n
\t      “356(1)  If  the\tPresident on  receipt  of  a
\n\t      report  from  the\t Governor  of  a  State\t  or
\n\t      otherwise,  is satisfied that a situation\t has
\n\t      arisen  in which the government of  the  State
\n\t      cannot  be carried on in accordance  with\t the
\n\t      provisions of this Constitution, the President
\n\t      may by Proclamation-\n<\/p><\/blockquote>\n
\t      (a)   assume  to\thimself all or\tany  of\t the
\n\t      functions\t of the Government of the State\t and
\n\t      all  or  any  of\tthe  powers  vested  in\t  or
\n\t      exercisable  by  the Governor or any  body  or
\n\t      authority\t in the State other than the  Legis-
\n\t      lature of the State;\n<\/p><\/blockquote>\n
\t      (b)   declare   that   the   powers   of\t the
\n\t      Legislature of the State shall be\t exercisable
\n\t      by or under the authority of Parliament;\n<\/p><\/blockquote>\n
\t      (c)   make  such incidental and  consequential
\n\t      provisions  as appear to the President  to  be
\n\t      necessary or desirable or giving effect to the
\n\t      objects\tof   the   Proclamation,   including
\n\t      provision\t for suspending in whole or in\tpart
\n\t      the  operation  of  any  provisions  of\tthis
\n\t      Constitution relating to any body or authority
\n\t      in the State :\n<\/p><\/blockquote>\n
\t      Provided\tthat  nothing in this  clause  shall
\n\t      authorise that, President to assume to himself
\n\t      any of the powers vested in or exercisable  by
\n\t      a\t High  Court, or to suspend in whole  or  in
\n\t      part  the operation of any provision  of\tthis
\n\t      Constitution relating to High Courts.
\n\t      (2)   Any such Proclamation may be revoked  or
\n\t      varied by a subsequent proclamation.
\n\t      (3)   Every  Proclamation under  this  article
\n\t      shall be laid before each House of  Parliament
\n\t      and  shall, except where it is a\tProclamation
\n\t      revoking a previous Proclamation, cease
\n\t      29<\/span>
\n\t      to  operate  at the expiration of\t two  months
\n\t      unless before the expiration of that period it
\n\t      has  been\t approved  by  resolutions  of\tboth
\n\t      Houses of Parliament :\n<\/p><\/blockquote>\n
\t      Provided\tthat if any such  Proclamation\t(not
\n\t      being  a\tProclamation  revoking\ta   previous
\n\t      Proclamation)  is\t issued at a time  when\t the
\n\t      House  of\t the  People  is  dissolved  or\t the
\n\t      dissolution  of the House of the People  takes
\n\t      place during the period of two months referred
\n\t      to   in  this  clause  and  if  a\t  resolution
\n\t      approving the Proclamation has been passed  by
\n\t      the Council of States, but no resolution\twith
\n\t      respect  to such Proclamation has been  passed
\n\t      by   the\tHouse  of  the\tPeople\tbefore\t the
\n\t      expiration  of that period,  the\tProclamation
\n\t      shall  cease to operate at the  expiration  of
\n\t      thirty  days from the date on which the  House
\n\t      of   the\t People\t  first\t  sits\t after\t its
\n\t      reconstitution unless before the expiration of
\n\t      the  said period of thirty days  a  resolution
\n\t      approving\t the  Proclamation  has\t been\talso
\n\t      passed by the House of the People.
\n\t      (4)   A Proclamation so approved shall, unless
\n\t      revoked,\tcease to- operate on the  expiration
\n\t      of a period of six months from the date of the
\n\t      passing  of  the\tsecond\tof  the\t resolutions
\n\t      approving the Proclamation under clause (3) :
\n\t      Provided that if and so often as a  resolution
\n\t      approving\t the continuance in force of such  a
\n\t      Proclamation  is\tpassed\tby  both  Houses  of
\n\t      Parliament  the  Proclamation  shall,   unless
\n\t      revoked,\tcontinue  in  force  for  a  further
\n\t      period  of six months from the date  of  which
\n\t      under  this  clause it  would  otherwise\thave
\n\t      ceased  to operate, but no  such\tProclamation
\n\t      shall  in\t any case remain in force  for\tmore
\n\t      than three years :\n<\/p><\/blockquote>\n
\t      Provided\tfurther that if the  dissolution  of
\n\t      the House of the People takes place during any
\n\t      such  period  of\tsix  months  and  resolution
\n\t      approving\t the  continuance in force  of\tsuch
\n\t      Proclamation has been passed by the Council of
\n\t      States, but no resolution with respect to\t the
\n\t      continuance in force of such Proclamation\t has
\n\t      been passed by the House of the People  during
\n\t      the said period, the Proclamation shall  cease
\n\t      to  operate at the expiration of\tthirty\tdays
\n\t      from the date on which the House of the People
\n\t      first  sits  after its  reconstitution  unless
\n\t      before  the expiration of the said  period  of
\n\t      thirty   days  a\tresolution   approving\t the
\n\t      continuance  in force of the Proclamation\t has
\n\t      been also passed by the House of the People.\n<\/p><\/blockquote>\n
\t      (5)      Notwithstanding\tanything   in\tthis
\n\t      Constitution,   the   satisfaction   of\t the
\n\t      President\t mentioned  in clause (1)  shall  be
\n\t      final   and  conclusive  and  shall   not\t  be
\n\t      questioned in any Court on any ground”.\n<\/p><\/blockquote>\n
It  is true that article 356 occurs in part  XVIII,  dealing
\nwith “emergency provisions”.  But there are emergencies\t and
\nemergencies.   An emergency covered by article 352 can\tonly
\nbe  declared  if  the President is satisfied  that  a  grave
\nemergency  exists  whereby the security of India or  of\t any
\npart of the territory thereof is threatened, whether by
\n30<\/span>
\nwar or external aggression or internal disturbance”, Article
\n352(3) shows that what is known as “the present and imminent
\ndanger rule;’ is applicable to such emergencies.  It is\t not
\nnecessary  that the grave emergency contemplated by  article
\n352 must be preceded by actual occurrence of war or internal
\ndisturbance.   The imminence of its danger is enough.\tBut,
\narticle\t 356,  in  contrast,  does  not\t contain  such\tres-
\ntrictions.   The  effects of a “proclamation  of  emergency”
\nunder  article 352 are given in articles 353 and 354 of\t the
\nConstitution.\n<\/p>\n
After  the  first  three articles of  Chap.   XVIII  follows
\narticle 355 which enacts :\n<\/p>\n
\t      “355.   It shall be the duty of the  Union  to
\n\t      protect\t every\t State\t against    external
\n\t      aggression  and  internal disturbance  and  to
\n\t      ensure that the Government of every.  State is
\n\t      carried  on in accordance with the  provisions
\n\t      of this Constitution.”\n<\/p><\/blockquote>\n
Now,  the  provisions  dealing\twith  the  proclamation\t  of
\nemergency  under  article  352, which has to  be  grave\t and
\nimminent,  seem to be covered by the first part of the\tduty
\nof the’ Union towards a State mentioned in article 355,\t but
\nthe  second  part of that duty, mentioned  in  article\t355,
\nseems  to be of a somewhat different and broader  character.
\nThe  second part seems to cover all steps which\t are  enough
\n“to  ensure” that the Govt. of every State is carried on  in
\naccordance  with the provisions of Constitution.  Its  sweep
\nseems quite wide.  It is evident that it is this part of the
\nduty of the union towards each State which. is sought to  be
\ncovered\t  by  a\t proclamation  under  article\t356.\tThat
\nproclamation is not of a grave emergency.  In fact the\tword
\nemergency is not used there.  It is a proclamation  intended
\neither\t to   safeguard\t  against   the\t  failure   of\t the
\nconstitutional machinery in a state or to repair the effects
\nof a breakdown.\t It may be either a preventive or a curative
\naction.\t  It is enough if “the President” which, in view  of
\nthe amended article 73(1) really means the union council  of
\nMinisters,  concludes  that  “the Government  of  the  State
\ncannot\tbe carried on in accordance with the  provisions  of
\nthe, Constitution.” On the other hand, action under  article
\n352 is, more properly, only defensive and protective  action
\nto be taken to avert or meet a grave and imminent danger.
\nWhat  is  the  Constitutional  machinery  whose\t failure  or
\nimminent  failure the President can deal with under  article
\n356  ?\tIs it enough if a situation has arisen in which\t one
\nor more provisions of the Constitution cannot be observed  ?
\nNow what provisions of the Constitution, which are not being
\nobserved  in  a\t State, or to what  extent  they  cannot  be
\nobserved  are matters on which great differences of  opinion
\nare  possible.\t If  a\tbroad purpose, such  as\t that  of  a
\ndemocratic  Government,\t contained in the  Preamble  to\t our
\nConstitution which was used by this Court, as was done in H.
\nH. Kesavananda Bharti’s case (supra), to infer what has been
\ncalled the “basic structure”, was meant also to be served by
\narticle\t 356, the scope of a “situation” in which  proclama-
\ntion  under it can be made would seem wide.  If\t the  “basic
\nstructure”    embraces\t basic\t democratic    norms,\t the
\nConstitutional Machinery of article 356 could conceivably be
\nused by the Union Government for
\n31<\/span>
\nsecuring  compliance with its view of such norms,  when,  in
\nits  opinion’  the State Government has\t failed\t to  observe
\nthem.\tThe Union Government could say : “If, what we  think
\nis basic to, a democratic system is not done by you, we will
\nconclude that the Government of your State cannot be carried
\non  by\tyou  in\t accordance  with  the\tprovisions  of\t the
\nConstitution.  In  that case we will take over\tyour  power,
\nunder article 356, and do that for the people of your State,
\nwhich you should yourself have done.”Article 356 (1) of\t the
\nConstitution,  at any rate, does not seem to us to stand  in
\nthe way of such a view.\n<\/p>\n
Again,\tif the directive principles of State, Policy,  which
\nembrace\t a vast field of legislation for the welfare of\t the
\nmasses\tof.  our  people,  are\talso  parts  of\t the   basic
\nstructure, which has to be ensured or maintained by the\t use
\nof  the\t constitutional machinery, the failure of,  a  State
\nGovernment  or\tits  legislature to carry  out\tany  of\t the
\nConstitution’s\t mandates  or  directives,  by\t appropriate
\nlegislation, may, according to a possible view, be construed
\nas  a  failure\tof  its\t duties\t to  carry  ,out  what\t the
\nConstitution requires.\tOur difficulty is that the language,
\nof  article;  356  is so wide and loose\t that  to  crib\t and
\nconfine\t it  within  a\tstraight jacket\t will  not  be\tjust
\ninterpreting  or  construing it but  will  be  ,constitution
\nmaking\t legislation  which,  again,  does   not,   strictly
\nspeaking, lie in our domain.\n<\/p>\n
The  above  mentioned possibilities seem  to  follow,  quite
\nconceivably  from the fairly broad language used in  article
\n356(1)\tand the rather loose meaning of the basic  structure
\nof  the Constitution which this Court seems to have  adopted
\nin  Kesavananda\t Bharati’s case (supra).  This view  of\t the
\n“basic structure” seems, so to speak, to annex doctrines  to
\nprovisions.  If that be so, it becomes impossible for us  to
\nsay that the Union Government, even if it resorts to article
\n356  of the Constitution to enforce a political doctrine  or
\ntheory, acts unconstitutionally, so long as that doctrine or
\ntheory\tis  covered  by\t the  underlying  purposes  of\t the
\nConstitution found in the Preamble which has been held to be
\na part of the Constitution.\n<\/p>\n
We  have not sat here to determine whether the concept of  a
\nbasic\tstructure,  found  in  Kesavananda  Bharati’s\tcase
\n(supra),  requires  any\t clarification\tor  a  more  precise
\ndefinition.   I may mention here that I gave  the  following
\nexposition of what I understood to be “the basic  structure”
\nof  our\t Constitution  of which,  according  to\t Kesavananda
\nBharati’s case (supra), the doctrine of the supremacy of the
\nConstitution was apart :\n<\/p>\n
\t      “Neither\t of   the   three   constitutionally
\n\t      separate organs of State can, according to the
\n\t      basic scheme, of our Constitution today,\tleap
\n\t      outside\t the   boundaries   of\t  its\t own
\n\t      constitutionally\tassigned sphere or orbit  of
\n\t      authority into that of the other.\t This is the
\n\t      logical  and natural meaning of the  Principle
\n\t      of Supremacy of the Constitution”. (gee : Smt.
\n\t      Indira Nehru Gandhi v. Rai Narain)<\/a> (1).\n<\/p><\/blockquote>\n
Even  if  we  were to narrow down the  concept\tof  a  basic
\nstructure  to bring it in accordance with the concept  found
\nin the passage cited
\n(1)  [1976] 2 S.C.R. 347 at 539.\n<\/p>\n
32<\/span><\/p>\n
above, we could only strike down that executive policy which
\ncould  fairly appear to be a clear deviation from  what\t the
\nbasic  structure requires.  What would be, as the report  of
\nthe speech of the Law Minister shows, fairly and  reasonably
\nviewed as a policy intended to strengthen or secure what  is
\nincluded in that basic structure could not be struck down or
\ncontrolled at all by this Court as that would be an  attempt
\nto control executive policy within a sphere which is its own
\nand  where its supremacy must be and has  been\tconsistently
\nupheld by this Court.\n<\/p>\n
The  basic assumption underlying the views expressed  above,
\nis that each of the three organs of the State-The Executive,
\nthe  Legislature  and  the Judiciary has its  own  orbit  of
\nauthority and operation.  It must be left free by the  other
\norgans.\t to  operate within that sphere even if\t it  commits
\nerrors\tthere.\t It is not for one of the  three  organs  of
\nState  either to correct or to point an accusing  finger  at
\nthe other merely because it thinks that some error has\tbeen
\ncommitted by the other when acting within the limits of\t its
\nown powers.  But, if either the Executive or the Legislature
\nexceeds\t the  scope of its powers, it places itself  in\t the
\nregion where the effects of that excess should be capable of
\nremoval\t by the Judiciary which ought to redress  the  wrong
\ndone  when  properly  brought up before\t it.   A  scrupulous
\nadherence  to  this  scheme  is\t necessary  for\t the  smooth
\noperations  of our Constitutional mechanisms of\t checks\t and
\nbalances.  It implies due respect for and confidence in each
\norgan of our Republic by the other two.\n<\/p>\n
In Har Sharan Varma v. Chandra Bhan Gupta & Ors., (1)
\nAllahabad High Court, quite rightly observed :-\n<\/p>\n
\t      “It  is not possible for the Court  to  assess
\n\t      the  political  forces and  compulsions  which
\n\t      necessitated    any   political\t party\t  to
\n\t      act………. The Executive and the  Judiciary
\n\t      are,  independent of each other  within  their
\n\t      respective  spheres.  Each is conversant\twith
\n\t      the  peculiar  circumstances  within  its\t own
\n\t      sphere   and   has   special   knowledge\t  of
\n\t      complicated  questions which is denied to\t the
\n\t      other.  Each must have the fullest  discretion
\n\t      in  the discharge of its duties.\tThe acts  of
\n\t      the  Executive are not open to review  by\t the
\n\t      Judiciary as long as there is no violation  of
\n\t      the  law or the Constitution. it follows\tthat
\n\t      the Court could not ordinarily comment on\t any
\n\t      act  of the Executive unless the act  is\tsuch
\n\t      that  it is likely to promote  disrespect\t for
\n\t      the  law.\t  This Court must  extend  the\tsame
\n\t      courtesy to the other branches of\t government,
\n\t      which  it receives from them and refrain\tfrom
\n\t      making uncalled for comments on the wisdom  of
\n\t      the acts of the ministers of government.”\n<\/p><\/blockquote>\n
It  has, however, been vehemently contended before  us\tthat
\njust  as  it  is a part of the\tConstitutional\tscheme\tthat
\nneither the executive nor the legislature should attempt  to
\ninterfere  with\t the functions of the  judiciary,  operating
\nwithin\tits own sphere, and, just as the judiciary does\t not
\ninterfere  With executive or legislative function ‘so  long.
\nas
\n(1) A.I.R. 1962 All. 301 at 307.\n<\/p>\n
33<\/span><\/p>\n
there is no excess of power, which may be questioned  before
\nCourts,\t similarly,  the Union Government  cannot  interfere
\nwith  the normal functions of the Government in a  State  on
\nthe  plea  that there is a lack of  conformity\tbetween\t the
\nlegal rights of the State Government and the opinions of the
\nelectorate  which  could affect only the moral rights  of  a
\nState  Government  to continue in power.  It  was  submitted
\nthat such an allegedly moral ground does not give the  Union
\nGovernment  the legal right of action under article  256  of
\nthe Constitution.  This, it is urged by Mr. Niren De, raises
\na constitutional issue of grave import.\n<\/p>\n
In  some of the plaints, it is asserted that the moral\tplea
\nsought\tto  be given the colour of a legal right  of  action
\nunder article 356(1), on behalf of the people of the  State,
\nis  an\tattempt to give a legal and constitutional  garb  to
\nwhat  is  only\ta  matter  of  political  strategy.  it\t  is
\nsuggested, that the Union Government wants to take an  undue
\nadvantage of the temporary gust of feeling which is believed
\nto  be\tsweeping  the  country as a  result  of\t the  recent
\noverwhelming  victory of the Janata party and its  political
\nallies.\t In other words, both the question of the, extent of
\nState autonomy in a federal structure, and an alleged misuse
\nof  constitutional  power under article 356 of\tthe  Consti-
\ntutional, on grounds said to be extraneous to it, have\tbeen
\nraised\ton behalf of the States.  These\t considerations\t are
\nplaced before us as aids to a proper construction of article
\n356(1) as well as matters which deserve careful scrutiny and
\nadjudication after ascertainment of correct facts.
\nWe  are reluctant to embark on a discussion of the  abstract
\nprinciples  of federalism in the face of express  provisions
\nof  our Constitution.  Nevertheless, as the principles\thave
\nbeen   mentioned  as  aids  to\tthe  construction   of\t the
\nConstitution whose basic structure may, no doubt, have to be
\nexplored even when interpreting the language of a particular
\nprovision  of the document which governs the destiny of\t the
\nnation, we cannot avoid saying something on this aspect too.
\nA  conspectus  of the provisions of  our  Constitution\twill
\nindicate  that, whatever appearances of a federal  structure
\nour  constitution  may have, its operations  are  certainly,
\njudged\tboth by the contents of power which a number of\t its
\nprovisions carry with them and the use that has been made of
\nthem, more unitary than federal.  I mention the use that has
\nbeen made of the constitutional provisions because constitu-
\ntional practice and convention become so interlinked with or
\nattached  to  constitutional  provisions and  are  often  so
\nimportant  and\tvital  for grasping  the  real\tpurpose\t and
\nfunction  of Constitutional provisions that the\t two  cannot
\noften  be  viewed apart.  And where the content\t ,of  powers
\nappears so vague and loose from the language of a provision,
\nas  it seems to us to be in article 356(1), for the  reasons
\ngiven  above, practice and convention may so crystallise  as
\nto  become more significant than the letter of the law.\t  At
\nany  rate, they cannot be divorced from constitutional\tlaw.
\nThey  seem  to us to be relevant even in  understanding\t the
\npurpose,  the import, and the meaning of the words  used  in
\narticle\t 356(1).  This will be apparent also from a  perusal
\nof the
\n34<\/span>
\njudgment  of  this  Court  in  Shamher\tSingh  v.  State  of
\nPunjab(1).\n<\/p>\n
The  two  conditions Dicey postulated for the  existence  of
\nfederalism were : firstly, “a body of countries such as\t the
\nCantons\t of  Switzerland, the Colonies of  America,  or\t the
\nProvinces  of Canada, so closely connected by  locality,  by
\nhistory, by race, or the like, as be capable of bearing,  in
\nthe eyes of their inhabitants an impress of common  nationa-
\nlity”;\tand, secondly, absolutely essential to the  founding
\nof  a  federal system is the “existence of a  very  peculiar
\nstate of sentiment among the inhabitants of the\t countries”.
\nHe pointed out that, without the desire to unite there could
\nbe  no\tbasis for federalism.  But, if the desire  to  unite
\ngoes  to  the extent of forming an integrated whole  in\t all
\nsubstantial  matters  of Government, it produces  a  unitary
\nrather\tthan  a\t federal constitution.\tHence,\the  said,  a
\nfederal\t State\t“Is  a\tpolitical  contrivance\tintended  to
\nreconcile  national  unity  with the  maintenance  of  State
\nrights.” The degree to which the State rights are separately
\npreserved   and\t safeguarded  gives  the  extent  to   which
\nexpression is given to one of the two contradictory urges so
\nthat  there  is\t a  union without  a  unity  in\t matters  of
\ngovernment.   In  a sense, therefore, the  Indian  union  is
\nfederal.   But,\t the extent of federalism in it\t is  largely
\nwatered\t down by the needs of progress and development of  a
\ncountry\t which has to be nationally integrated,\t politically
\nand  economically coordinated, and socially,  intellectually
\nand  spiritually  up-lifted. In such a\tsystem,\t the  States
\ncannot\tstand in the way of legitimate\tand  comprehensively
\nplanned development of the country in the manner directed by
\nthe  Central  Government.   The question  of  legitimacy  of
\nparticular  actions of the Central Government taking  us  in
\nparticular  directions\tcan often be tested  and  determined
\nonly  by  the verdicts of the people  at  appropriate  times
\nrater  than by decisions of Courts.  For this reasons,\tthey
\nbecome,\t properly  speaking, matters for  political  debates
\nrather\tthan for legal discussion.  If the special needs  of
\nour   country,\t to  have  political   coherence,   national
\nintegration,  and planned economic development of all  parts
\nof  the\t country,  so  as to build  a  welfare\tState  where
\n“justice, social, economic and political” are to prevail and
\nrapid strides are to be taken towards fulfilling the of\t her
\nnoble  aspirations, set out in the Preamble, strong  central
\ndirections  seems  inevitable.\tIt is  the  country’s  need.
\nThat, at any rate, seems to be the basic assumption behind a
\nnumber of our Constitutional provisions.
\nMr.   Granville\t  Austin,  in  “The   Indian   Constitution-
\nCornerstone,  of a Nation” (see p. 186) in the course of  an
\naccount\t of  our Constitution making, points  out  that\t the
\nmembers of our Constituent assembly believed that India\t had
\nunique problems which bad not ‘confronted other\t federations
\nin  history’.  Terms such as ‘quasi-federal’ and  ‘statutory
\ndecentralization’ were not found by the learned author to be
\nilluminating.\t The   concepts\t and  aspirations   of\t our
\nConstitution makers were different from those in American or
\nAustralia.  Our Constitution could not certainly be said  to
\nembody\tDr. K. C. Where’s notion of “Federalism” where\t“The
\ngeneral\t and  regional\tgovernments of a  country  shall  be
\nindependent each of the other within its sphere.” Mr. Austin
\nthought\t that  our system, it, it could be  called  federal,
\ncould  be described as “cooperative federalism”.  This\tterm
\nwas used by another author, Mr.
\n(1)  [1975] 1 S.C.R. p. 814.\n<\/p>\n
35<\/span><\/p>\n
A.H.   Birch   (see  :\tFederalism,  Finance,\tand   Social
\nLegislation  in Canada, Australia, and the United States  p.\n<\/p>\n
305), to describe a system in which :\n<\/p>\n
\t      “.  .  .\t.  the\tpractice  of  administrative
\n\t      cooperation   between  general  and   regional
\n\t      governments,  the\t partial dependence  of\t the
\n\t      regional\tgovernments upon payments  from\t the
\n\t      general  governments,  and the fact  that\t the
\n\t      general governments, by the use of conditional
\n\t      grants,  frequently  promote  developments  in
\n\t      matters which are constitutionally assigned to
\n\t      the regions”.\n<\/p><\/blockquote>\n
In  our country national planning involves disbursements  of
\nvast  amounts  of  money collected as  taxes  from  citizens
\nresiding in all the States and placed at the disposal of the
\nCentral\t Government for the benefits of the  States  without
\neven  the “conditional grants” mentioned above.\t Hence,\t the
\nmanner\tin  which State Governments function and  deal\twith
\nsums placed at their disposal by the Union Government or how
\nthey carry on the general administration may also be matters
\nof considerable concern to the Union Government.
\nAlthough  Dr.  Ambedkar\t thought that  our  Constitution  is
\nfederal\t “inasmuch  as it establishes what may be  called  a
\nDual  Polity,”\the also said, in the  Constituent  Assembly,
\nthat our Constitution makers bad avoided the ‘tight mould of
\nfederalism’  in which the American Constitution was  forged.
\nDr.  Ambedkar,\tone  of\t the  principal\t architects  of\t our
\nConstitution, considered our Constitution to be both unitary
\nas well as federal according to the requirements of time and
\ncircumstances’.\n<\/p>\n
If then our Constitution creates a Central Government  which
\nis  amphibian”, in the sense that it can move either on\t the
\nfederal\t or  unitary plane, according to the  needs  of\t the
\nsituation and circumstances of a case, the question which we
\nare driven back to consider is whether an assessment of\t the
\n“situation” in which the Union Government should move either
\non  the federal or unitary plane are matters for  the  Union
\nGovernment  itself  or\tfor  this  Court  to  consider\t and
\ndetermine.  Each organ of the Republic, is expected to\tknow
\nthe  limits  of\t its own powers.   The\tjudiciary  comes  in
\ngenerally  only when any question of ultra vires  action  is
\ninvolved,  because questions relating to vires appertain  to
\nits domain.\n<\/p>\n
I may point out that there are various aspects of  relations
\nbetween\t the  Union  and the States  governed  by  different
\nprovisions  of the Constitution.  I may here refer to  those
\nwhich\trelate\tto  giving  of\t“direction”  by\t the   Union
\nGovernment  to\tthe State Governments  because\tarticle\t 365
\nprovides :\n<\/p>\n
\t      “365.   Where any State has failed  to  comply
\n\t      with  or\tto give effect\tto,  any  directions
\n\t      given  in the exercise of the executive  power
\n\t      of  the union under any of the  provisions  of
\n\t      this constitution, it shall be lawful for\t the
\n\t      President to hold that a situation has  arisen
\n\t      in which the government of the State cannot be
\n\t      carried  on in accordance with the  provisions
\n\t      of this Constitution.”\n<\/p><\/blockquote>\n
36<\/span><\/p>\n
Articles  256  and 257 mention a wide range of\tsubjects  on
\nwhich the Union Government may give executive directions  to
\nState  Governments.  Article 73(1) (a) of  the\tConstitution
\ntells  us that the Executive power of the Union\t extends  to
\nall  matters on which “parliament has power to\tmake  laws.”
\nArticle\t 248  of the Constitution vests exclusively  in\t the
\nParliament residuary powers of making laws on any matter not
\nenumerated in the Concurrent or State Lists.  Article 256 of
\nthe  Constitution covers cases where the President may\twant
\nto give directions in exercise of the executive power of the
\nUnion to a State Government in relation to a matter  covered
\nby an existing law made by Parliament which applies to\tthat
\nState.\tBut, article 257(1) imposes a wider obligation\tupon
\na  State  to  exercise its powers in such a way\t as  not  to
\nimpede\tthe exercise of executive power of the Union  which,
\nas  would appear from Article 73 of the\t Constitution,\tread
\nwith article 248 may cover even a subject on which there  is
\nno existing law but on which some legislation by  Parliament
\nis possible.It\t could,\t  therefore,  be   argued   that,
\nalthough, the. Constitution itselfdoes\t  not\tlay    down
\nspecifically  when  the\t power\tof  dissolution\t should\t  be
\nexercised  by  the Governor on the advice of  a\t Council  of
\nMinisters  in the State, yet if a direction on that  matter
\nwas properly given bythe  Union\t Government to\ta  State
\nGovernment,  there is a duty to carry it out.  The time\t for
\nthe  dissolution of a State Assembly is not covered  by\t any
\nspecific  provision of the Constitution or any law  made  on
\nthe  subject.\tIt  is\tpossible,  however,  for  the  Union
\nGovernment, in exercise of its residuary executive power  to
\nconsider  it a fit subject for the issue of  an\t appropriate
\ndirection when it considers that the political situation  in
\nthe  country is such that a fresh election is  necessary  in
\nthe  interest  of political stability or  to  establish\t the
\nconfidence of the people in the Govt. of a State.
\nUndoubtedly,  the  subject is one on which  appropriate\t and
\nhealthy\t conventions should develop so that the power  under
\narticle\t  356(1)  is  neither  exercised   capriciously\t  or
\narbitrarily  nor  fails\t to be exercised  when\ta  political
\nsituation  really calls for it.\t If the views of  the  Union
\nGovernment  and the State Government differ on the  subject,
\nthere  is no reason why the Union Government should not\t aid
\nthe  development  of  what  it considers  to  be  a  healthy
\npractice  or convention by appropriate advice or  direction,
\nand,  even to exercise its powers under article\t 356(1)\t for
\nthis  purpose  when it considers the observance\t of  such  a
\ndirective  to  be  so  essential  that\tthe   Constitutional
\nmachinery   cannot function as it was meant to do unless  it
\ninterferes.  This Court cannot, at any rate, interdict\tsuch
\nuse  of powers under article 356(1) unless and until  resort
\nto the provision, in a particular situation, is shown to  be
\nso grossly perverse and unreasonable as to constitute patent
\nmisuse\tof  this provision an excess of\t power\ton  admitted
\nfacts.\tOn the allegations before us we cannot reach such  a
\nconclusion.   And, it is not for Courts to  formulate,\tand,
\nmuch  less,  to enforce a convention however,  necessary  or
\njust  and  proper a convention to regulate the\texercise  of
\nsuch  an executive power may be.  That is a matter  entirely
\nwithin the Executive field, of operations,
\nIt   is\t  futile  to  urge  that  article  172(1)   of\t the
\nConstitution, as amended, lays down an unalterable  duration
\nof six years for a legislative
\n37<\/span>
\nassembly from its first meeting because this article clearly
\ncontains   the\texception  “unless  sooner  dissolved.”\t  As
\nobserved  above,  it  is no where laid down  either  in\t the
\nConstitution or any law dealing with holding of elections to
\na  legislative assembly what circumstances will justify\t its
\ndissolution  sooner  than the duration\tit  would  otherwise
\nenjoy.\n<\/p>\n
It was argued that the only authority empowered to  dissolve
\na  legislative\tassembly under Article 174 (2)\t(b)  of\t the
\nConstitution  was the Governor of a State who had to act  on
\nthe advice of the Council of Ministers in the State.  It was
\nsubmitted that the Union Government could not either advise,
\nor in the form of advice, direct the State Government to ask
\nthe  Governor  to  dissolve the\t State\tAssembly  under\t any
\ncircumstances.\t Apparently, the principle  of\tconstruction
\nrelied\tupon was a much used and easily\t misused  principle;
\n“expressio  unius  est exclusio alterius.” We do  not  think
\nthat such a principle could help the plaintiffs before us at
\nall  in\t as  much as article 356 of  the  Constitution\tvery
\nclearly\t provides  for the assumption by the  President\t ‘to
\n‘himself  all or any of the functions of the  Government  of
\nthe  State  and\t all  or any of\t the  powers  vested  in  or
\nexercisable  by\t the Governor.” Article 174(2)\t(b)  of\t the
\nConstitution  expressly\t vests the power of  dissolving\t the
\nlegislative assembly in the Governor even if that had to  be
\non the advice of the Council of Ministers in the State,\t but
\nthe power to give such advice would automatically, be  taken
\nover by the Union Government for the purposes of dissolution
\nof   the   State  Assembly  when   the\t President   assumes
\ngovernmental  powers by a proclamation under Article  356(1)
\nof  the Constitution.  A dissolution by the President  after
\nthe  proclamation would be as good as a dissolution  by\t the
\nGovernor of a State whose powers; are taken ‘over.
\nThe  position of the Governor as the Constitutional head  of
\nState  as a unit of the Indian Union as well) as the  formal
\nchannel\t of  communication between the Union and  the  State
\nGovernment,  who  is  appointed under  article\t155  of\t the
\nConstitution “by the President by Warrant under his hand and
\nseal,”\twas also touched in the course of  arguments  before
\nus.   On  the one hand, as the Constitutional  head  of\t the
\nState. he is ordinarily bound, by reason of a constitutional
\nconvention,  by\t the  advice of\t his  Council  of  Ministers
\nconveyed  to  him through the Chief  Minister  barring\tvery
\nexceptional circumstances among which’ may be as pointed out
\nby  my learned brothers Bhagwati and Iyer, JJ., in  Shamsher
\nSingh’s case, supra (p. 875) a situation in which an  appeal
\nto  the electorate by a dissolution is called for.   On\t the
\nother  hand,  as the defender of “the Constitution  and\t the
\nlaw” and the watch-dog of the interests of the whole country
\nand  well-being\t of the people of his State  in\t particular,
\nthe, Governor is vested with certain discretionary powers in
\nthe exercise of which he can act independently.\t One of\t his
\nindependent  functions\tis the making of the report  to\t the
\nUnion Government on the strength of which Presidential power
\nunder Article 356(1) of the Constitution could be exercised.
\nIn so far as he acts in the larger interests of the  people,
\nappointed  by the President” to defend the Constitution\t and
\nthe  Law” he acts as an observer on behalf of the Union\t and
\nhas to keep a watch on how the administrative machinery\t and
\neach organ of constitutional Government is working in the
\n38<\/span>
\nState.\t Unless he keeps such a watch over all\tgovernmental
\nactivities  and the State of public feelings about  them  he
\ncannot\tsatisfactorily discharge his function of making\t the
\nreport\twhich  may  form  the  basis  of  the\tPresidential
\nsatisfaction  under  Article  356(1)  of  the  Constitution.
\nIndeed, the usual practice is that the President acts  under
\nArticle\t 356(1) of the Constitution only on  the  Governor’s
\nreport.\t  But,\tthe,  use of the words\t“or  otherwise”\t (in
\narticle\t 356) show that Presidential satisfaction  could  be
\nbased  on  other  material as well.   This  feature  of\t our
\nConstitution  indicates most strikingly the extent to  which
\ninroads\t have been made by it on the federal  principles  of
\nGovernment.\n<\/p>\n
Mr. Setalvad in his Tagore Law Lectures, 1974, on “UNION AND
\nSTATE RELATIONS” has observed, while dealing with Governor’s
\nrole (at p. 164-165) :\n<\/p>\n
\t      “The powers of the President under Article 356
\n\t      have  been  frequently  exercised\t since\t the
\n\t      commencement   of\t  the\tConstitution.\t The
\n\t      occasions for its exercise emphasise not\tonly
\n\t      the  importance  of the power  in\t maintaining
\n\t      stable governments in the State, but also\t the
\n\t      vital  role which the Governor has to play  in
\n\t      enabling\tthe Union Executive to exercise\t the
\n\t      powers  vested in it under Article  356.\t The
\n\t      Constitutional  machinery in a State may\tfail
\n\t      to function in numerous ways.  There may be  a
\n\t      political\t  deadlock;  for  example  where   a
\n\t      Ministry\thaving resigned, the Governor  finds
\n\t      it’   impossible\t to  form   an\t alternative
\n\t      government;  or,\twhere for some\treason,\t the
\n\t      party  having  a\tmajority  in  the   Assembly
\n\t      declines to form a Ministry and the Governor’s
\n\t      attempts to find a coalition Ministry able  to
\n\t      command\ta   majority   have   failed.\t The
\n\t      Government of a State can also be regarded  as
\n\t      not  being carried on in accordance  with\t the
\n\t      Constitution   in\t cases\twhere  a   Ministry,
\n\t      although\tproperly constituted, acts  contrary
\n\t      to the provisions of the Constitution or seeks
\n\t      to use its powers for purposes not  authorised
\n\t      by   the\tConstitution  and   the\t  Governor’s
\n\t      attempts\tto call the Ministry to\t order\thave
\n\t      failed.  There could also be a failure of\t the
\n\t      constitutional  machinery where  the  Ministry
\n\t      fails to carry out the directives issued to it
\n\t      validly by the Union Executive in the exercise
\n\t      of  its powers under the Constitution.   The
\n\t      very  statement  of some\tof  the\t situations,
\n\t      which may bring about the use of the machinery
\n\t      provided\tby  Article 356\t shows\tthe  pivotal
\n\t      position\t which\tthe  Governor  occupies\t  in
\n\t      respect  of  these situations  and  the  grave
\n\t      responsibility of his duties in the matter  of
\n\t      reporting to the President under Articles 355:
\n\t      and 356 of the Constitution.”\n<\/p><\/blockquote>\n
The  question  was then mooted whether that was\t being\tdone
\nunder  article\t356 of the Constitution did  not  amount  to
\ntaking over by the
\n39<\/span>
\nPresident,  acting  on the advice of the  Union\t Council  of
\nMinisters,  of\tpowers for dissolving the  State  Assemblies
\nupon  facts and circumstances which, in the judgment of\t the
\nUnion  Council of Ministers, constituted sufficient  grounds
\nfor  a\tdissolution  of\t the  State  Assembly,\twhereas\t the
\nConstitution provides that this had to be done by the  State
\nGovernment  on the advice of the Council of Ministers  in  a
\nState.\tSuch an argument is really an argument in a  circle.
\nIt assumes that the taking over by the President, advised by
\nthe  Union  Council of Ministers, of the  functions  of\t the
\nGovernor, advised by the State Council of Ministers, on this
\nmatter,\t was  outside  the purview  of\tArticle\t 356(1).   A
\nsituation  in  which,  according to the view  of  the  Union
\nGovernment,  the  State\t Council of  Ministers\thad  wrongly
\nfailed\tto advise the State Governor to dissolve  the  State
\nLegislative Assembly, so that action under Article 3 5 6 ( 1
\n)  has to be taken, would be exceptional in  which  articles
\ngoverning  the exercise of functions normally are  suspended
\nand  do\t not  operate  at all.\tIf  article  356(1)  of\t the
\nConstitution  or any other article contained  any  provision
\nwhich amounted to a prohibition against assumption of powers
\nof  dissolution\t of  State Assemblies by  the  President  of
\nIndia, it would be a different matter, but that, as we\thave
\nrepeatedly  pointed out, is not the position here.   Indeed,
\nsuch  a provision, had it been there, would have  completely
\nnullified  article 356(1).  Obviously, a proclamation  under
\nArticle 356(1) to be effective must suspend the operation of
\narticle 174.  It is evident that one of the reasons, perhaps
\nthe   main  reason  for\t bringing  about  this\t exceptional
\nsituation in the cases now before us, is the refusal of\t the
\nState Chief Ministers to comply with the advice sent to them
\nwhich  they equate with a ‘direction’ given in\texercise  of
\nthe executive powers of the Union Government.
\nIf constitutionally correct practises could also be  pointed
\nout and enforced by the Union Government so that  provisions
\nof our Constitution may operate in the manner in which\tthey
\nwere intended to do and none of their objects is frustrated,
\nit  may be useful to glance at the convention which  governs
\nexercise  of the Crown’s “prerogative” power of\t dissolution
\nof  Parliament\tin  England.   Dicey  in  his  law  of\t the
\nConstitution 10th Edn., (at p. 432) observed
\n\t      “The prerogative, in short, of dissolution may
\n\t      constitutionally be so employed as to override
\n\t      the will of the representative body, or as  it
\n\t      is  popularly called.  “The People’s House  of
\n\t      Parliament.”  This looks at first\t sight\tlike
\n\t      saying  that in certain cases the\t prerogative
\n\t      can be so used as to set at nought the will of
\n\t      the  nation.  But in reality it is far  other-\n<\/p>\n
\t      wise.   The discretionary power of  the  Crown
\n\t      occasionally   may   be,\tand   according\t  to
\n\t      constitutional  precedents sometimes ought  to
\n\t      be, used to strip an existing House of Commons
\n\t      of  its  authority.  But the  reason  why\t the
\n\t      House can in accordance with the\tConstitution
\n\t      be deprived of power and of existence is\tthat
\n\t      an occasion has arisen on which there is\tfair
\n\t      reason  to  suppose that the  opinion  of\t the
\n\t      House  is not the opinion of the electors.   A
\n\t      dissolution  is in its essence an appeal\tfrom
\n\t      the  legal  to  the  political  sovereign.   A
\n\t      disso-\n<\/p>\n
\t      40<\/span><\/p>\n
\t      lution  is allowable, or\tnecessary,  whenever
\n\t      the  wishes  of the legislature  are,  or\t may
\n\t      fairly  be presumed to be different  from\t the
\n\t      wishes of the nation”.\n<\/p>\n
It was pointed out by Diecy that the conventional use of the
\n‘Prerogative”  of  the Crown to dissolve  Parliament  in  an
\nexceptional situation, even when the Government in power had
\nthe  support of a majority behind it, was  established.\t  He
\ngave  two instances; one of a dissolution of  Parliament  in
\n1784 and another in 1834.\n<\/p>\n
Presumably, two instances, with a gap of fifty years between
\nthem,  were  considered\t enough\t by  Dicey  to\testablish  a
\nconvention  governing exceptional situations.  A perusal  of
\nother authorities, such as Anson on “The Law & Custom of the
\nConstitution”  or  Erskine May’s  “Parliamentary  Practice”,
\nleads us to no different- result.  Dicey’s statement reveals
\n:  firstly,  there is, according to  British  convention,  a
\n“right”\t of  a\tGovernment, which  no  longer  commands\t the
\nsupport\t of a majority in the House of Commons, to demand  a
\ndissolution  or to force an appeal to the electorate or\t the
\n“Political   sovereign”;   and,\t secondly,   there   is\t  an
\n“overriding”  discretion in the Crown even to disregard\t the
\nadvice\tof  the Prime Minister, the spokesman of  the  whole
\nbody  of Ministers,  with a majority in\t the  Lower  House
\nbehind\thim,  and to force a dissolution in  an\t exceptional
\nsituation.\n<\/p>\n
A recent study of “The Theory and Practice of Dissolution of
\nParliament”, with particular reference to the experiences of
\nUnited\tKingdom and Greece, by Dr. B. S. Markesinis, in\t the
\nCambridge “International and Comparative Law” series (1972),
\ncontains  a detailed discussion of views of various  authors
\nand  accounts  of political situations which had  arisen  in
\nmore  recent times with regard to dissolutions.\t This  study
\nbrings\tout  the  grave responsibility\tof  the\t Crown\twhen
\nassessing   what   Prof.    Laski   called   the   “Critical
\ncircumstances in which the Crown may exercise its discretion
\nto  force a general election” which may result in “a  direct
\nconfrontation  between\tthe monarch and his people”  if\t the
\nKing acts contrary to the advice of the Government supported
\nby  a  majority in the House of Commons.  After\t an  illumi-
\nnating discussion of the views of Constitutional lawyers and
\nexperts, such as Keith, Jennings, Laski, Hubert, and Morgan,
\nDr. Markesinis refers to an impressive letter of the British
\nPrime Minister Mr. Asquith to the King written on 31st July,
\n1914.  That letter contained the following passage
\n\t      “Sovereign   undoubtedly\thas  the  power\t  of
\n\t      changing\this advisers but it is\trelevant  to
\n\t      point out that there has been during the\tlast
\n\t      130 years, one occasion only on which the King
\n\t      has   dismissed  the  Ministry   which   still
\n\t      possessed\t the  confidence  of  the  House  of
\n\t      Commons, (be continues \ud83d\ude42 Nothing can be\tmore
\n\t      important,  in the best interest of the  Crown
\n\t      and the Country, than that a practice, so long
\n\t      established   and\t  so   well   justified\t  by
\n\t      experience, should remain unimpaired. it frees
\n\t      the  occupant of the throne from all  personal
\n\t      responsibility  for the acts of the  executive
\n\t      and the legislature.”\n<\/p>\n
41<\/span><\/p>\n
The  King expressed his gratitude to the Prime Minister\t for
\nadvising  him  against being “dragged into  arena  of  party
\npolitics”  whether the King “wished it or not” and acted  on
\nthe Prime Minister’s advice.\n<\/p>\n
In so far as growth of healthy conventions on such a subject
\nare  essential\tfor  the  satisfactory\toperations  of\t the
\nmachinery  of  democratic Government, this is  a  matter  on
\nwhich  there  could  and  should be  a\tbroad  agreement  or
\nconsensus  between all parties interested in a\tsatisfactory
\nworking of the democratic system in this country.  It is not
\na matter on which the Court can give its opinion as to what
\nthe  proper precedent or view to follow or course of  action
\nto pursue in a particular situation is.\t All that this Court
\ncan  do is to consider whether an action proposed on such  a
\nmatter\ton certain grounds, would fall under article  356(1)
\nof  the Constitution if the Union Government and  the  State
\nGovernments differ on the question whether, in a  particular
\nsituation, the dissolution of the State Assembly should take
\nplace  or  not.\t  The  most that one could  say\t is  that  a
\ndissolution  against the wishes of the majority in  a  State
\nAssembly is a grave and serious matter.\t Perhaps it could be
\nobserved  by us that it should be resorted to under  Article
\n356(1) of the Constitution only when “a critical  situation”
\nhas arisen.  As the study of Dr. Aarkesinis shows it is\t not
\nalways\tnecessary that, under a multiple party\tsystem,\t the
\nmere  defeat of a State Government in a State Assembly\tmust
\nnecessarily create a situation in which a dissolution of the
\nState Assembly is obligatory.  If an alternate Government is
\ncapable\t of  being formed which commands the  support  of  a
\nmajority  in the State Assembly, it may not be ordered\teven
\nwhen  a\t Government  in\t power\tis  defeated  in  the  State
\nAssembly.  The position may, however, be very different when
\na  State  Government has a majority in\tthe  State  Assembly
\nbehind it but the question is whether the State Assembly and
\nthe State Government for the time being have been so totally
\nand  emphatically  rejected by ‘he people that\ta  “critical
\nsituation”  has\t arisen\t or is bound  to  arise\t unless\t the
\npolitical  sovereign”  is given an opportunity of  giving  a
\nfresh  verdict.\t A decision on such a  question\t undoubtedly
\nlies in the Executive realm.\n<\/p>\n
It  may be that, if the need to an appeal to the  electorate
\nis put forward only as a thin disguise for punishing a State
\nGovernment  by repeated dissolutions within  short  periods,
\nthe  use of article 356(1) for such a purpose may appear  to
\nbe plainly outrageous and extraneous.  In such\thypothetical
\nand  very exceptional circumstances the action of the  Union
\nGovernment  may appear to be mala fide and in excess of\t the
\npower  under  article  356(1)  of  the\tConstitution.\tBut,
\nnothing,  like\tthat  is alleged in any of  the\t plaints  or
\npetitions.   On\t the other band, it seems  that\t the  advice
\ngiven to the Chief Ministers of different States is based on
\na  matter  of  a uniform general policy\t resulting  from  an
\nestimate of what, in the opinion of the Union Government, is
\na  critical juncture in the history of the whole  nation  so
\nthat  the people in the States must be given an\t opportunity
\nof  showing whether the party in power in the States  should
\nor should not pursue policies which may be at variance\twith
\nthose  of the Union Government.\t No fact is alleged  showing
\nany  personal animus of any member of the  Union  Government
\nagainst a State Government or a State Assembly.\t As
\n42<\/span>
\nthe  question  of the proper time for a dissolution  of\t the
\nState Assembly is riot a matter extraneous to article 356(1)
\nof  the\t Constitution, the most ‘,.hat can be said  is\tthat
\nquestions raised do not go beyond sufficiency of grounds for
\nresorting to article 356(1) of the Constitution.
\nIn   our  country,  the\t power\tof  dissolving\t the   State
\nLegislature has been exercised by the Union Government or by
\nthe  Governor  carrying\t out the  directions  of  the  Union
\nGovernment after a proclamation under article 356(1) of\t the
\nConstitution  on  more than two dozen  occasions  since\t the
\ncommencement  of  the  Constitution.  On  several  of  these
\noccasions,  Presidential Proclamations under article  356(1)
\nwere  assailed\ton various grounds before High\tCourts.\t  On
\neach occasion the attack failed.  The cases cited before  us
\nwere : K. K. Aboo v. Union of India & Ors.<\/a>(1) Rao  Birinder
\nSingh  v.  The\tUnion  of  India  &  Ors.  (2),\t In  Re\t  A.
\nSreeamulu(3) and Bijayananda Patnaik & Ors. v.\t  President
\nof India & Ors.(4).\n<\/p>\n
In  no\tcase  brought to our notice was\t the  power  of\t the
\nPresident to dissolve a State Assembly, either by means of a
\nProclamation  under  article  356(1)  itself  or  after\t it,
\nchallenged  on\tthe  ground that it  falls  outside  article
\n356(1).\t  It  was urged before us that the sole\t purpose  of
\n‘the\tintended   Proclamations   being   procurement\t  of
\ndissolutions  of the State Legislatures with the  object  of
\ngaining\t political  victories was both extraneous  and\tmala
\nfide.  It seems to us that the assertions that the  exercise
\nof  power was mala fide in fact and in law were made on\t the
\nassumption  that  the whole object of the  exercise  of\t the
\npower is only to gain a political victory.\n<\/p>\n
As  we\thave  tried to indicate above,\tattempts  to  secure
\npolitical victories, by appeals to the electorate, are parts
\nof the recognised rules of a democratic system of government
\npermitting  contests between rival parties so as to  achieve
\ncertain other objectives.  If such a contest with the desire
\nfor  achieving\ta  political victory  in  order\t to  enforce
\ncertain programmes, believed by the members of a party to be
\nbeneficial  for\t the  people  in a State,  as  a  method  of
\nachieving the objects set out in the Preamble, are not\tonly
\nlegal\tand   permissible  under  the\tConstitution,\tbut,
\nobviously, constitute the only possible legitimate and legal
\nmeans of attaining the power to enforce policies believed to
\nbe  correct  by\t various parties,  according  to  their\t own
\nlights, it could not possibly be asserted that procuring the
\ndissolution of a State Legislative Assembly, with the object
\nof gaining a political victory, is, in itself, an extraneous
\nobject which could not fall at ail under article 356 of\t the
\nConstitution.  In order to apply the doctrine that something
\ncannot\tbe  done  indirectly because it could  not  be\tdone
\ndirectly,  it  must  first be established  either  that\t the
\nobject\tor the means are legally prohibited.  In  the  cases
\nbefore\tus,  it\t does not appear to us that  the  object  of
\ngaining\t a political victory, set out in the plaints is,  by
\nitself, legally prohibited.  Nor is there anything in law to
\nprohibit  a  recourse  to the means adopted.   There  is  no
\nassertion in the plaints or the petitions
\n(1)  A.I.R. 1965 Ker. 229.\n<\/p>\n
(2)  A.I.R. 1968 Punj. 441.\n<\/p>\n
(3)  A.I.R. 1974 AP 106.\n<\/p>\n
(4)  A.I.R. 1974 Orissa 52.\n<\/p>\n
43<\/span><\/p>\n
that  anything\tis  being  done\t or  attempted\tby   legally
\nprohibited means for a legally prohibited purpose.  All that
\nis  suggested is that it is morally represensible to try  to
\nobtain an electoral victory in the States by dissolving\t the
\nAssemblies  so as to get rid of the Congress Governments  in
\npower  there.  On such a question of moral worth  of  either
\nthe  ends or the means adopted, this Court  cannot  possibly
\nsit  in\t judgment.  It is enough for our purposes  that\t the
\nplaints\t  and  the  petitions  do  not\t disclose   anything
\nextraneous  to\tthe  purpose  of  Article  356\t(1)  of\t the
\nConstitution  in  the  eyes  of\t law.\tThe  sufficiency  or
\nadequacy  of the grounds for action under article 356(1)  of
\nthe  Constitution is quite another matter.  We do not  think
\nthat we can go into that at all here.\n<\/p>\n
We find that in the plaint of the State of Himachal  Pradesh
\nthe  term “prerogative’ has been used for the power  of\t the
\nState  Governor\t to dissolve a Legislative  Assembly,  under
\nArticle\t 174,  as  though  there was  a\t violation  of\tthat
\n“prerogative”  by some paramount “prerogative”\tasserted  by
\nthe  Union  Government.\t  I  do\t not  think  that  the\tterm
\n“prerogative” can be correctly used, in its technical sense,
\nwith   reference   to\tany  power   exercised\t under\t our
\nConstitution.  In English law the term “prerogative” is used
\nfor  “the residue of discretionary power left at any  moment
\nin  the\t hands of the Crown whether such power\tbe  in\tfact
\nexercised  by the King himself or by his Ministers”. (See  :
\nKeir & Lawson’s cases in Constitution Law, 5th Edn. p. 151).
\nDicey  said : “Every act which the executive Government\t can
\nlawfully  do without the authority of the Act of  Parliament
\nis done in virtue of ibis prerogative”. (Dicey : Law of\t the
\nConstitution,  10th  Edn.,  p. 425).   It  is,\thowever,  an
\nestablished principle of British Constitutional law that  no
\nclaim to prerogative could survive the passing of a  statute
\ncovering that very subject because the so-called prerogative
\nmerges\tin  the statute (Attorney General  v.  Dr.  Keyser’s
\nRoyal Hotel(1).\t It cannot conflict with statute.  Under our
\nConstitution  there  is no “prerogative” in  that  technical
\nsense.\t All  constitutional  powers are  regulated  by\t our
\nwritten Constitution.  There may be room for the development
\nof conventions on a matter not fully covered as to the\tmode
\nof exercise of a discretion or power.  But, that is a matter
\ndistinct  from “prerogative”.  Under our  Constitution,\t the
\nresidue\t of  that power, which is  neither  legislative\t nor
\njudicial,  is covered by the caption :\t“Executive”.   Thus,
\nthe  equivalent\t of most “prerogative”\tpowers\twould  fall,
\nunder  our  law, under the heading  of\t“executive”  powers.
\nInasmuch  as the term “prerogative” is sometimes used  in  a
\nwider  nontechnical  sense, as something  which\t gives\tpre-
\neminence  or an overriding attribute to a power, it  may  be
\nsaid  that  such a power is lodged in the  Union  Government
\nunder  Article\t356(1) of the Constitution  on\tall  matters
\ncovered by that provision.  The only question in such  cases
\nis  whether  the  matter  in relation  to  which  the  Union
\nGovernment  is proceeding or has acted is or is\t not  within
\nthe  purview of Article 356(t) of The Constitution.   If  it
\nlies within that sphere, the Courts cannot interfere on\t the
\nground, at any rate,, that it is extraneous.
\nWhenever the exercise of power to issue a proclamation under
\nArticle 356(1) of the Constitution has been challenged in  a
\nHigh
\n(1) [1920] A.C. 508.\n<\/p>\n
4-722SCI\/77
\n44<\/span>
\nCourt it has been held that sufficiency of grounds on  which
\nthe  order, is based could not be questioned.  Some  of\t the
\ndicta  found  there seem to lay down that  the\texercise  of
\npower to issue proclamations is not justiciable at all under
\nany circumstances.  This Court has not gone so far us  that.
\nIf  it is actually stated on behalf of the Union  Government
\nthat an action was taken on a particular ground which really
\nfalls completely outside the purview of Article 356(1),\t the
\nproclamation will be vitiated, not because the\tsatisfaction
\nwas  challenged\t or  called in question on  any\t ground\t but
\nbecause\t it  was admitted to be on matters  outside  Article
\n356(1).\n<\/p>\n
A challenge to the exercise of power to issue a proclamation
\nunder-,\t Article 352 of the Constitution would be even\tmore
\ndifficult  to entertain than to one under Article 356(1)  as
\nall these considerations would then arise which Courts\ttake
\ninto  account when the Executive, which alone can  have\t all
\nthe necessary information and means to judge such an  issue,
\ntells Courts that the nation is faced with a grave  national
\nEmergency  during which its very existence or stability\t may
\nbe  at\tstake.\tThat was the principle\twhich  governed\t the
\ndecision of the House of Lords in Liversidge v. Anderson(1).
\nThe  principle\tis summed up in the salutary maxim  :  Salus
\nPopuli\tSupreme Lex.  And, it was that principle which\tthis
\nCourt,\tdeprived  of the power to examine or  question-\t any
\nmaterials on which such declarations may be based, acted  in
\nAdditional  District  Magistrate,  Jabalpur  v.\t  Shivakant,
\nShukla<\/a>(2).   We\t need  not go so far as that  when  we\thave
\nbefore us only a proclamation under Article 356(1).
\nA reference was made by both sides to Bhagat Singh and\tOrs.
\nv.The King-Emperor,(3), where the Privy Council\t interpreted
\nthe provisions of section 72 of the Government of India Act,
\nwhich authorised the Governor-General in cases of  Emergency
\nto promulgate ordinances “for the peace and good  Government
\nof  British India or any put thereof which was not  to\tlast
\nbeyond\tsix months”.  In that case, an, attempt was made  to
\nquestion  the existence of a State of  Emergency.,  Viscount
\nDunedin, observed (at p. 172)
\n\t      “A  state of emergency is something that\tdoes
\n\t      not  permit  of  any  exact  definition  :  It
\n\t      cannotes\ta  state  of  matters  calling\t for
\n\t      drastic action, which is to be judged as\tsuch
\n\t      by  some\tone.  It is more than  obvious\tthat
\n\t      someone  must be the Governor-General, and  he
\n\t      alone.   Any other view would  render  utterly
\n\t      inapt the whole provision.  Emergency  demands
\n\t      immediate\t  action,   and\t  that\t action\t  is
\n\t      prescribed  to  be  taken\t by  the   Governor-\n<\/p>\n
\t      General’.\n<\/p>\n
The  power  of\tthe Governor-General was  described  as\t “an
\nabsolute;  power  ”  in Bhagat\tSingh’s\t case  (supra),\t but
\nlearned counsel for the plaintiffs relied on the observation
\nthere  that  “it  is only to be used  in  extreme  cases  of
\nnecessity where the good Government of India’
\n(1)  [1942] AC 206.\n<\/p>\n
(2)  [1976] Suppl.  S.C.R. 172.\n<\/p>\n
(3)  50 I.A. 169,
\n45<\/span>
\ndemands\t it”.  We do not think that much assistance  can  be
\nderived\t from  a provision of the Government of\t India\tAct,
\n1935,  which was really the precurser of Article 123 of\t our
\nConstitution and meant for use in a different context in  an
\nImperialistic  era.   Nevertheless,  it\t shows\tthat.\teven
\nwithout a provision ousting the jurisdiction of the  Courts,
\nthe  subjective\t satisfaction of  the  Governor-General\t was
\nheld.  to  be  unquestionable.\t Considerations\t which\thave
\narisen before us while considering the use and the ambit  of
\narticle 356(1) of our Constitution were not before the Privy
\nCouncil at all in that case.\n<\/p>\n
King Emperor v. Benorilal Sarnia & Ors.(1), also relating to
\nthe,  ordinance making powers of the Governor-General  under
\nsection 72 of the Government of India Act, 1935, was  cited.
\nIn  that  case, Bhagat Singh’s case  (supra)  was  commented
\nupon.  It was observed (at p. 62)
\n\t      “The definition of emergency in Bhagat Singh’s
\n\t      case does not purport to be exhaustive, but it
\n\t      does  say that it connotes a state of  matters
\n\t      calling  for  drastic  action,  and  that\t  it
\n\t      demands immediate action.\t Emergency does\t not
\n\t      mean  emergency at large.\t Under s. 72 of
\n\t      the Government of India Act the emergency with
\n\t      which  the Governor-General is dealing  should
\n\t      be  an existing emergency and should call\t for
\n\t      the particular kind of immediate action  which
\n\t      be  proposes to take.  If the particular\tkind
\n\t      of  emergency which a  the  Governor-General’s
\n\t      opinion justifies a particular kind of action.
\n\t      is  in  itself  wholly  in  prospect  and\t not
\n\t      present, then although there may be present an
\n\t      emergency\t of some other kind, that would\t not
\n\t      justify,\tunder  S. 72,  the  ordinance  being
\n\t      made.    The   existence\tof   the   emergency
\n\t      requiring\t immediate  action  is,\t under\tthat
\n\t      section,\tthe basis to a\tcondition  precedent
\n\t      which must be fulfilled by himself alone”.
\nThis  shows that the Court could inquire into the  existence
\nof a condition precedent to the use of emergency powers.
\nA  reference  was also made to the  following  passage\tfrom
\nPadfield & Ors. v. Minister of Agriculture, Fisheries & Food
\nand Ors.(2) at p. 1006)
\n\t      “It is said that the decision of the  Minister
\n\t      is administrative and not judicial.  But\tthat
\n\t      does  not\t mean that he can do as,  he  likes,
\n\t      regardless  of  right or wrong.  Nor  does  it
\n\t      mean that the courts are powerless to  correct
\n\t      him.    Good  administration   requires\tthat
\n\t      complaints  should  be investigated  and\tthat
\n\t      grievances    should   be\t  remedied.\tWhen
\n\t      Parliament has set up machinery for that\tvery
\n\t      purpose,\tit is not for the Minister to  brush
\n\t      it on one side.  He should not refuse to\thave
\n\t      a complaint investigated without good reason”.
\nCases before us are not those of a grave national  emergency
\nof  the\t kind. covered by article 352 of  the  Constitution.
\nNevertheless,
\n(1)  72 I.A. 57.\n<\/p>\n
(2)  [1968] A.C. 997 p. 1006.\n<\/p>\n
46<\/span><\/p>\n
analogous   principles\tseem  to  govern  the  exercise\t  of
\nextraordinary  powers  conferred by Article  356(1)  on\t the
\nhighest\t executive authorities of the Indian Union  who\t are
\nexpected  to  act with the utmost sense\t of  responsibility.
\nSuch  a\t consideration,\t combined  with\t the  existence\t  of
\nParliamentary  control\ton the exercise of  such  powers  by
\nministers responsible directly to Parliament, was taken into
\naccount,  in  Liversidge’s  case (supra),  to  abstain\tfrom
\njudicial interference.\n<\/p>\n
Courts\thave consistently held issues raising  questions  of
\nmere sufficiency of grounds of executive action, such as the
\none under Article 356(1) no doubt is to be  non-justiciable.
\nThe  amended  article 356(5) of the  Constitution  indicates
\nthat  the  Constitution makers did not wan+  such  an  issue
\nraising\t a  mere question of sufficiency of  grounds  to  be
\njusticiable.\tTo  the\t same  effect  are  the\t  provisions
\ncontained  in Article 352(5), 360(5).\tSimilarly,  Articles
\n123(4),\t 213(4), 239B(4) bar the jurisdiction of  Courts  to
\nexamine\t matters which lie within the executive\t discretion.
\nSuch  discretion  is governed by a large element  of  policy
\nwhich  is not amenable to the jurisdiction of courts  except
\nin  cases of patent or indubitable mala fides or  excess  of
\npower.\t Its  exercise\trests on  materials  which  are\t not
\nexaminable  by Courts.\tIndeed, it is difficult\t to  imagine
\nhow  the  grounds of action under article  356(1)  could  be
\nexamined  when\tarticle 74(2) lays down that  “the  question
\nwhether\t any,  and if so, what advice was  tendered  by\t the
\nMinisters  to the President, shall not be inquired  into  in
\nany Court.”\n<\/p>\n
It is true that, as indicated above, the advice tendered  by
\nthe Ministers to the President cannot be inquired into.\t  It
\nis also clear beyond doubt that the amended article 74(1) of
\nthe  Constitution,  whose validity has not  been  challenged
\nbefore us by any party, makes it obligatory on the President
\nto  act in accordance with the advice tendered by the  Union
\nCouncil\t of  Ministers, to him through the  Prime  Minister.
\nNevertheless,  if  all\tthe grounds of\taction\ttaken  under
\narticle\t 356(1)\t of the Constitution are  disclosed  to\t the
\npublic\tby  the Union Government and its own  disclosure  of
\ngrounds\t  reveals   that  a  constitutionally\tor   legally
\nprohibited or extraneous or collateral purpose is sought  to
\nbe  achieved  by  a proclamation under article\t356  of\t the
\nConstitution,  this Court will not shirk its duty to act  in
\nthe manner in which the law may then oblige it to act.\tBut,
\nwhen we find that allegations made in the plaints and in the
\npetitions  before  us  relate, in  substance,  only  to\t the
\nsufficiency of the grounds of action under article 356(1) of
\nthe Constitution, and go no further, we cannot proceed\tfur-
\nther with the consideration of the plaints under Article 131
\nor the petitions under Article 32 of the Constitution.
\nI would not like to leave certain other matters also  argued
\nbefore us untouched in this fairly comprehensive  expression
\nof our views.  It was urged that the power of dissolution of
\na State Legislative Assembly, even if it could be assumed by
\nthe  President\tunder Article 356(1)  of  the  Constitution,
\nafter  a  failure  of the State Government to  carry  out  a
\ndirection of the Union Government on the subject, could\t no+
\nbe  exercised  unless and until the matter bad\tbeen  placed
\nbefore\tboth  the Houses of Parliament so that it  bad\tbeen
\nsubjected  to  such control as either of the two  Houses  of
\nParliament may chose to
\n47<\/span>
\nexercise  over it.  Proclamations under article\t 356(1)\t are
\nbound to be placed under article 356(3) of the\tConstitution
\nbefore\teach house of Parliament.   Unfortunately,  however,
\nfor  this  line of argument, there is not  only\t nothing  in
\narticle\t 356  to  make a consideration by  either  House  of
\nParliament  a  condition precedent to the  exercise  of\t the
\npower of dissolution of a State Legislative Assembly by\t the
\nPresident  under  article 356(1), but, on  the\tother  hand,
\narticle 356(3). makes it clear that the only effect of\teven
\na  failure  or\trefusal by either  House  of  Parliament  to
\napprove the proclamation is that it ceases to operate  after
\ntwo  months.  Obviously, this means that it operates for  at
\nleast  two  months.  Hence, whatever is done  in  these\t two
\nmonths\tcannot be held to be illegal for ‘hat reason  alone.
\nThe  interpretation  placed  before  us\t for  acceptance  is
\ndirectly  opposed to the language of the provisions  of\t the
\nConstitution.\tIt  has,  therefore, to be  rejected  by  us
\noutright  as  quite unreasonable and” unacceptable.   It  is
\ntrue  that  the exercise of power under article 356  of\t the
\nConstitution  is  subject to  Parliamentary  control.\tThis
\nmeans that it is subject to such control as the two  Houses,
\nout  of\t which the Council of States really  represents\t the
\nState Assemblies, may be able to exercise during the  period
\nfor  which  the proclamation lasts.  But, the  existence  of
\nsuch Parliamentary control, as a safeguard, cannot  possibly
\nnullify\t the legality of what is done in the  period  during
\nwhich the Proclamation lasts.\n<\/p>\n
It  was\t also contended by Mr. R. K. Garg that,\t unless\t the
\nParliament acts legislatively for the State Legislature, the
\nincurring  of  any expenditure, by the Governor\t or  anybody
\nelse  after a Presidential Proclamation under  article\t356,
\nwould  not be permissible in view of Article 357(1)  (c)  of
\nthe Constitution.  After making such an assumption, we\twere
\nasked to import an implied prohibition against a dissolution
\nof a State Legislative Assembly unless and until both Houses
\nof Parliament bad discussed and approved of it.
\nArticle 357 is beaded “Exercise of legislative powers  under
\nProclamation issued under Article 356”.\t It lays down :\n<\/p>\n
\t      “357(1).\tWhereby a Proclamation issued  under
\n\t      clause  (1)  of  article\t356,  it  has\tbeen
\n\t      declared that the powers of the Legislature of
\n\t      the State shall be exercisable by or under the
\n\t      authority\t  of   Parliament,   it\t  shall\t  be
\n\t      competent-\n<\/p><\/blockquote>\n
\t      (a)   for\t  Parliament   to  confer   on\t the
\n\t      President the power of the Legislature of\t the
\n\t      State  to\t make  laws, and  to  authorise\t the
\n\t      President\t  to  delegate,\t subject   to\tsuch
\n\t      conditions as he may think fit to impose,\t the
\n\t      power  so conferred to any other authority  to
\n\t      be specified by him in that behalf;\n<\/p><\/blockquote>\n
\t      (b)   for Parliament, or for the President  or
\n\t      other  authority\tin whom such power  to\tmake
\n\t      laws  is vested under sub-clause (a), to\tmake
\n\t      laws conferring powers and imposing duties, or
\n\t      authorising  the conferring of powers and\t the
\n\t      imposition  of  duties,  upon  the  Union\t  or
\n\t      officers and authorities thereof;\n<\/p><\/blockquote>\n
\t      48<\/span><\/p>\n
\t      (c)for the President to authorise when  the
\n\t      House   of  the  People  is  not\tin   session
\n\t      expenditure from the Consolidated Fund of\t the
\n\t      State pending the sanction of such expenditure
\n\t      by Parliament.\n<\/p><\/blockquote>\n
\t      (2)Any law made in exercise of the power of
\n\t      the Legislature of the Slate by Parliament  or
\n\t      the  President or other authority referred  to
\n\t      in   sub-clause  (a)  of\tclause\t (1)   which
\n\t      Parliament  or  the President  or\t such  other
\n\t      authority\t would not but for the issued  of  a
\n\t      Proclamation  under  article  356,  have\tbeen
\n\t      competent to make shall, to the extent of\t The
\n\t      incompetency,  cease  to have  effect  on\t the
\n\t      expiration  of a period of one year after\t the
\n\t      Proclamation  has ceased to operate except  as
\n\t      respects\tthings\tdone or omitted to  be\tdone
\n\t      before  the  expiration of  the  said  period,
\n\t      unless the provisions which shall so cease  to
\n\t      have  effect are sooner repealed or  reenacted
\n\t      with  or\twithout modification by Act  of\t the
\n\t      appropriate Legislature.”\n<\/p><\/blockquote>\n
I  think  that article 357 has very little to  do  with\t the
\nincurring  of any expenditure by the President after  powers
\nof Governments of States have been assumed by the  President
\nunder  Article\t356(1) (a) of the Constitution.\t  It  really
\ngoverns the position when the legislative ,powers of a State
\nlegislature  have  been\t transferred  to  Parliament  by   a
\n:Presidential  Proclamation  under  Article  356(1)  of\t the
\nConstitution.\t,-By  means  of\t such  a  Proclamation\t the
\nPresident may assume to himself under Article 356(1) (a) all
\nor  any of the functions of the Government of the State\t and
\nall  or\t any of the powers of any authority or body  in\t the
\nState  other than the State Legislature.   The\tProclamation
\nmay  or may not contain also a declaration  contemplated  by
\nArticle 356(1) (b) of the Constitution enabling the exercise
\nof  the\t powers\t of the State Legislature by  or  under\t the
\nauthority  of Parliament. It is only when  the\tProclamation
\ncontains  a declaration under Article 356(1) (b)  also\tthat
\nthe question of incurring expenditure under the authority of
\nthe  President\tfrom  the Consolidated\tFund  of  the  State
\n“pending  sanction  of such expenditure by  Parliament”\t can
\narise.\tThe power of the President to authorise\t expenditure
\nfrom   the  Consolidated  Found\t awaiting  a   sanction\t  by
\nParliament  is provided for only for those cases  where\t the
\nState  Legislature’s  power  has  been\ttransferred  by\t the
\nPresidential proclamation to Parliament under Article 356(1)\n<\/p>\n
(b)  of\t the  Constitution  and the  Parliament\t is  not  in
\nsession.  That is a contingency which could only arise\twhen
\nthere is a prolonged presidential rule requiring the vesting
\nof  the functions of the State legislature in Parliament  so
\nthat  the  President  may be able to  authorise\t expense  in
\nanticipation of Parliamentary sanction when the House of the
\nPeople\t is   not  in  session.\t   When\t  the\tPresidential
\nproclamation  does  not contain any declaration\t under\tArt.
\n356(1)\t (b)  of  the  Constitution.  at  all  because\t the
\nPresidential  rule is of short duration and for\t a  specific
\npurpose,  there is nothing which will disable the  President
\nfrom  incurring expenditure under some law already  made  by
\nthe  Legislature of the State.\tIncurring of expenditure  in
\naccordance  with that law will be covered by the  provisions
\nof Art. 356(1) (a) of the Constitution.\n<\/p>\n
49<\/span><\/p>\n
In other words, although Art: 356(1) (a) of the Constitution
\nimposes\t a bar against the assumption, by the  President  of
\nthe,  legislative  ‘powers of the State\t Legislature,  which
\ncould\tonly   be  transferred\tto  Parliament,\t  yet,\t its
\nprovisions, read with Art. 357 of the Constitution, ,do\t not
\noperate as an absolute bar on any expenditure which could be
\nlegally incurred by the President or under the\tPresidential
\nauthority   in\taccordance  with  pre-existing\tState\tlaws
\nauthorising expenditure by other authorities or bodies whose
\npowers can be taken over by the President under Art.  356(1)\n<\/p>\n
(a).   In  any case, the provisions of Art.  357  could\t not
\npossibly  be,  used as a bar against a\tdissolution  of\t the
\nState Assembly by a Presidential Proclamation.\tNor can they
\nbe used to import and read, as a condition precedent to\t the
\nPresidential  proclamation under Art. 356(1) (a)  involving,
\nas  it usually does, the dissolution of the State  Assembly,
\nan  approval  of  both\tor either  of  the  two,  Houses  of
\nParliament.  To spell out some conditions precedent or\tbars
\nfrom  the provisions of Art 357 of the Constitution  against
\nthe   exercise\tof  powers  of\tthe  President\t to,   issue
\nProclamations under Art. 356(1) of the Constitution would be
\nutterly\t  unsound.   Constitutional  provisions\t meant\t for
\ndifferent purposes cannot be mingled and confused with\teach
\nother  when  each  is meant to regulate\t different  sets  of
\n,powers\t meant to be exercised by different  authorities  or
\nbodies under different circumstances.\n<\/p>\n
Objections  were also put forward to the maintainability  of
\nthe suits before us under Article 131 of the Constitution on
\nthe ground that this provision covers only disputes  between
\nthe Government of India and one or more “States” or  between
\ntwo  or more “States”.\tThis provision which may be set\t out
\nin full here reads as follows
\n\t      “131.   Subject  to  the\tprovisions  of\tthis
\n\t      Constitution, the Supreme Court shall, to\t the
\n\t      exclusion\t of any other court,  have  original
\n\t      jurisdiction in any dispute-\n<\/p>\n
\t      (a)between the Government of India and  one
\n\t      or more States; or\n<\/p>\n
\t      (b)between the Government of India and  any
\n\t      State  or States on one side and one  or\tmore
\n\t      other States on the other; or\n<\/p>\n
\t      (c) between two or more States;\n<\/p>\n
\t      if  and in so far as the dispute involves\t any
\n\t      question (whether of law or fact) on which the
\n\t      existence or extent of a legal right depends;
\n\t      Provided that the said jurisdiction shall\t not
\n\t      extend to a dispute arising out of any treaty,
\n\t      agreement,  convenant,  engagement  sanad\t  or
\n\t      other  similar instrument which,\thaving\tbeen
\n\t      entered\tinto   or   executed   before\t the
\n\t      commencement of this Constitution,continues
\n\t      in operation after such commencement, or which
\n\t      provides that the said jurisdiction shall\t not
\n\t      extend to such,a dispute”.\n<\/p>\n
50<\/span><\/p>\n
It  was argued that there is a distinction between  a  State
\nand a State Government.\t It was urged that the\tjurisdiction
\nunder Article 131 is a peculiar one meant for special  kinds
\nof disputes in which States, as such, ought to be interested
\nand not merely Governments of States which may come and\t go.
\nIt  was pointed out that, if the Union Government sought  to
\ndeprive\t a State of any constitutional right it would  be  a
\ndifferent  matter  which  could\t be  taken  up\tby  a  State
\nGovernment  on behalf of the State or its people.   But,  it
\nwas  submitted, there is no right given to any State by\t the
\nConstitution  that  its Government or  Legislative  Assembly
\nwould  continue\t undissolved for any  period.\tThe  dispute
\nbefore us relates to the time at which and the authority  by
\nwhich  the  power of dissolution could be exercised  in\t the
\nsituation  which  confronted the people in the\tnine  States
\nconcerned.\n<\/p>\n
Reference was made to passages from State of Bihar v.  Union
\nof India & Anr.<\/a>(1) and the United Provinces v. The Governor-
\nGeneral\t in Council.(2) It seems to me that the decision  of
\nthis  Court  in State of Bihar and Union of India  and\tAnr.
\n(supra)\t was largely based upon the assumption that  Article
\n131  was  meant\t to cover the same area as  s.\t204  of\t the
\nGovernment  of India Act.  Moreover, the learned  Additional
\nSolicitor General, appearing on behalf of the Union, did not
\npress\tthe  argument  that  article  131  is  confined\t  to
\ndeclaratory decrees in view of the fact that (as Mr. Seervai
\npointed\t out  in the Constitutional Law of India,  2nd\tEdn.
\nVol.  11  at p. 1385) article 142 (1)  of  the\tConstitution
\nprovides for enforcement of decrees of this Court.  The view
\nexpressed  in  the Bihar case (supra) seemed  to  have\tbeen
\naffected  considerably\tby the fact that there was  no\tpro-
\nvision\tin  the\t Government of India Act  of  1935  for\t the
\nenforcement of the decrees of the Federal Court, but Article
\n142(1) seems to have been overlooked in that case.
\nArticle\t 300 of the Constitution provides, inter alia,\tthat
\n“the Government of a State may sue or be sued by the name of
\nthe State”.  From this, Mr. Niren De wanted us to infer that
\nthere  was  no\tdistinction between a State  and  the  State
\nGovernment  as\tjuristic entities.  Even if  there  be\tsome
\ngrounds for making a distinction between a State’s interests
\nand rights and those of its Government or its members, I  do
\nnot  think that we need take a too restrictive or  a  hyper-
\ntechnical view of the State’s rights to sue for any  rights,
\nactual\tor  fancied, which the State Government\t chooses  to
\ntake  up  on behalf of the State concerned in a\t suit  under
\nArticle\t 131.  Moreover as we have decided not to grant\t any
\nreliefs\t after\thaving heard detailed  arguments  and  fully
\nconsidered the merits of contentions advanced by both sides,
\nI do not think that we need determine, on this occasion, the
\nprecise scope of a suit under Article 131.  I prefer to base
\nmy judgment on other grounds.\n<\/p>\n
Having\tconsidered the cases set out in the plaints and\t the
\npetition  before  us,  from every conceivable  angle,  I  am
\nunable to find
\n(1)  [1970] 2 S.C.R. 522.\n<\/p>\n
(2)  [1939] F.C.R. 124.\n<\/p>\n
51<\/span><\/p>\n
a cause of action for the grant of any injunction or a\twrit
\nor  order  in the nature of a Mandamus against\tany  of\t the
\nDefendents Opposite parties.\n<\/p>\n
In  my\topinion perhaps the technically more correct  order,
\nin the situation before us would have been, on the  findings
\nreached by me, one rejecting the plaints under Order  XXIII,
\nRule  6 of the Rules of this Court, and rejecting  the\tWrit
\nPetitions in limine.  Afterall, we had not proceeded  beyond
\nthe  stage  of hearing certain\tpreliminary  objections\t put
\nforward by Mr. Soli Sorabji, Additional Solicitor General to
\nthe  maintainability of the suits and petitions\t before\t us.
\nAlthough, we heard very full arguments on these\t preliminary
\nobjections, we did not even frame any issues which is  done,
\nunder the provisions of Part III of the Rules of this Court,
\napplicable  to the exercise of the Original Jurisdiction  of
\nthis  Court,  before we generally formally dismiss  a  suit.
\nHowever,  as  the form in which we have already\t passed\t our
\norders,\t dismissing  the  suit\tand  petitions,\t which\t was
\napproved  by us on 29th April, 1977, has  substantially\t the
\nsame  effect  as  the rejection of plaints  for\t failure  to
\ndisclose  a triable cause of action, I concur in the  orders
\nalready recorded.  The parties will bear their own costs.
\nCHANDRACHUD, J.-The Lok Sabha in which the Congress (R)\t had
\nan  overwhelming majority was dissolved on January 18,\t1977
\nthough\tunder the Constitution (42nd Amendment) Act, it\t had
\nanother year to run out its extended term.  Fresh  elections
\nwere held to the Lok Sabha in March 1977 in which the ruling
\nparty  lost its majority and went out of power which it\t had
\nexercised since Independence.  On March 24, 1977 the  Janata
\nparty which secured the verdict of the electorate formed the
\nnew  government\t at the Centre.\t This  is  an  unprecedented
\nevent  since,  for  the first time in the  history  of\tthis
\ncountry,  the ruling party at the Centre is not in power  in
\nany  of the federating States.\tOn the date that the  Janata
\nparty took office, the Congress (R) was in power in  various
\nStates\tincluding Bihar.  Haryana, Himachal Pradesh,  Madhya
\nPradesh, Orissa, Punjab.  Rajasthan, Uttar Pradesh and\tWest
\nBengal.\n<\/p>\n
On  April 18, 1977 Shri Charan Singh, Union  Home  Minister,
\naddressed  a letter to the Chief Ministers of  these  States
\n“earnestly commending” for their consideration that they may
\nadvise the Governors of their respective States “to dissolve
\nthe  State Assembly in exercise of the power  under  Article
\n174(2)(b)  and\tseek a fresh mandate from  the\telectorate.”
\n“This alone”, according to the Home Minister’s letter, would
\nbe “consistent with constitutional precedents and democratic
\npractices.”\n<\/p>\n
In an interview on April 22nd in the “Spot-light  programme”
\nof  All India Radio, Shri Shanti Bhushan, Minister for\tLaw,
\nJustice,  and  Company Affairs said that “a clear  case\t had
\nbeen  made out for the dissolution of the Assemblies in\t the
\nnine Congress-ruled States and holding of fresh\t elections”,
\nsince  “a serious doubt had been cast on their enjoying\t the
\npeoples’ confidence, their party having been rejected in the
\nrecent\tLok  Sabha elections”.\tA report of  this  interview
\nappeared in various newspapers including the ‘Statesman’  of
\nthe 23rd.  The correctness of the report is not disputed.\n<\/p>\n
52<\/span><\/p>\n
On  the 25th\/26th April, six out of nine States filed  suits
\nin.  this Court under Art. 131 of the Constitution.  On\t the
\n25th,  three.  members of the  Punjab  Legislative  Assembly
\nfiled  Writ  Petitions in this %Court under Art. 32.   By  a
\nunanimous  order dated April 29, we dismissed the suits\t and
\nwrit petitions as also motions for interim relief.   Reasons
\nfor the order remained to be given.\n<\/p>\n
With  respect,\tI agree with the conclusion of my  Lord\t the
\nChief  Justice\tbut  considering that the  matter  is  of  a
\nsingular nature, I would like to express my view on some  of
\nthe issues debated before, us.\n<\/p>\n
In  substance, the suits and writ petitions have been  filed
\nto obtain a declaration that the directive contained in\t the
\nHome   Minister’s   letter  to\tthe  Chief   Minister’s\t  is
\nunconstitutional,  that\t the,  State  Governments  are\t not
\nlegally or, constitutionally obliged to comply with it, that
\nthe  refusal  of the Chief Ministers to give effect  to\t the
\ndirective  cannot  be made a, basis for the  issuance  of  a
\nproclamation under art. 356 and that the said article cannot
\nbe  invoked  for the sole purpose of. dissolving  the  State
\nAssemblies   and   holding  fresh   elections.\t  The\tWrit
\nPetitioners  complain of the deprivation of their  right  of
\nproperty   :since,   if\t the  Legislative   Assemblies\t are
\ndissolved,  they will be denied the right to receive  salary
\nas members of these Assemblies.\t An injunction is sought  by
\nthe plaintiffs and the petitioners to restrain the Union  of
\nIndia,\tamongst\t others,  from giving  effect  to  the\tHome
\nMinister’s directive.\n<\/p>\n
The  learned  Additional  Solicitor-General  has  raised   a
\npreliminary  objection to the maintainability of  the  suits
\nwhich  may  first  be disposed of.  Article  131(a)  of\t the
\nConstitution  confers on the Supreme Court, subject  to\t the
\nother  provisions  of the Constitution,\t exclusive  original
\njurisdiction in any dispute between the Government of  India
\nand  one  or more States, if and in so far  as\tthe  dispute
\ninvolves any question (whether of law or fact) on which\t the
\nexistence  or extent of a legal right depends.\tIt is  urged
\nby  the\t Additional  Solicitor\tGeneral\t that  the   dispute
\ninvolved  in  the suits filed by the State,  Governments  is
\noutside\t the scope of art. 131 since the dispute is not\t be-
\ntween  the  Government of India and State as such,  but\t the
\ndispute\t is between the Government of India on the one\thand
\nand  each of the nine State Governments on the\tother.\t The
\ndispute relates to the question whether the State Assemblies
\nshould\tbe  dissolved, and that, according to  the  counsel,
\ndoes  not  involve any question, on which the  existence  or
\nextent\tof  a  legal right  depends.   Whether\tthe.   State
\nAssemblies  should  be\tdissolved  or not  is  a  matter  of
\npolitical expediency and though the Government for the\ttime
\nbeing  in  power  in  a\t State\tmay  be\t interested  in\t the
\ncontinuance of the Legislative Assembly ‘for the full  term,
\nthe  State  has no legal right to ensure  such\tcontinuance.
\nIndeed, it is urged, the State, apart from the State Govern-
\nment,  is  not\teven interested in the\tquestion  whether  a
\nparticular  Legislative\t Assembly should or  should  not  be
\ndissolved  because the State as a constitutional  entity  is
\nnever  interested in the complexion of the Government.\t The
\nargument, in other words, is that Legislative Assemblies may
\ncome  and go but the State lives for ever and therefore\t the
\ndispute is outside the purview of Art. 131.\n<\/p>\n
53<\/span><\/p>\n
The preliminary objection is based on an unpragmatic view of
\nthe functioning of the-Constitution and has therefore to be:
\nrejected.   Article  367  of the  Constitution\tapplies\t the
\nGeneral\t Clauses  Act, 1897 for the  interpretation  of\t the
\nConstitution but nothing contained in. section 3(58) of that
\nAct,  which  defines  “State” or  in  section  3(60)  which,
\ndefines\t “State\t Government” helps  determine  the  question
\nwhether\t suits\tof the present nature are,  foreign  to\t the
\nscope  of art. 131.  The work-a-day definitions\t of  “State”
\nand “State Government” contained in the General Clauses\t Act
\nneither touch upon the problem of alleged dichotomy  between
\na  State  and its government nor do they,  even\t if  applied
\nliterally, throw any useful light on. the question whether a
\ndispute\t regarding the dissolution of a State  Assembly\t can
\nlegitimately  be  propounded or defended by the State  as  a
\nperpetual political entity.  Truly, the definitions say\t no,
\nmore than this : “State” means a State specified in the\t 1st
\nSchedule  of the Constitution and “State  Government”  means
\n“The  Governor”.  All of the six States who have  filed\t the
\nsuits  in this Court are included in the 1st Schedule.\t And
\nthough\tthere  is a point that turns on the non-use  of\t the
\nexpression  “State Government” in art. 131, a point which  I
\nwill consider presently, the fact remains that there is\t no
\noccasion for applying the dictionary of the, General Clauses
\nAct, section 3(60), to the interpretation of art. 13 1.
\nThe absence of the expression “State Government” and the use
\nin its place of the expression “State” in art. 131, is\tsaid
\nto furnish intrinsic evidence that for a suit to fall  under
\nthat Article, the dispute must arise between the  Government
\nof  India and a State, not between the Government  of  India
\nand  the Government of a State.\t The intrinsic evidence,  it
\nis  argued, assumes greater credibility in the context\tthat
\nthe article does employ the expression “Government of India”
\nwhen\twhat\twas   meant   was   the\t   government,\t  as
\ncontradistinguisbed  from  the State.  The presence  of\t the
\nparticular expressions in art. 131 does not, in my  opinion,
\nsupport\t the inference, suggested on behalf of the Union  of
\nIndia.\tThe use of the phrase “Government of India” in\tart.
\n131 (a) and (b) does not mean that one party to the  dispute
\nhas  to,  be  the  Government of  the  day  at\tthe  Centre.
\n“Government  of\t India” means “Union of\t India”\t because  if
\nthere  be  merit  in  the  logic  that\tart.  131  does\t not
\ncomprehend  disputes in which the Government of a. State  as
\ncontrasted  with  the State itself is  interested,  it\tmust
\nfollow\tthat correspondingly, the “Government of India”\t too
\ncannot\tmean the Government for the time being in  power  at
\nthe  centre.  The true construction of art. 131(a), true  in
\nsubstance and true pragmatically, is that dispute must arise
\nbetween the Union of India and a State.\n<\/p>\n
This  may  sound  paradoxical  because\tif  the\t preliminary
\nobjection is unsustainable, it would be easier to. say\tthat
\nthe  expression “Government of India” means  “Government  in
\noffice”\t and  the expression “State’ means the\tState  as  a
\npolity\tand not “the Government in Office’.  But  convenient
\ninterpretations\t are apt to blur the significance of  issues
\ninvolved for interpretations.  Therefore, the effort has  to
\nbe to accept what the words truly mean and to, work out\t the
\nConstitutional\tscheme\tas it may reasonably be\t assumed  to
\nhave been conceived.\n<\/p>\n
54<\/span><\/p>\n
The  dispute between the Union of India and a  State  cannot
\nbut be a dispute which arises out of the differences between
\nthe Government in office at the Centre and the Government in
\noffice\tin the State.  ‘In office’ means ‘in power’ but\t the
\nuse  of the latter expression may prudently be avoided\twith
\nthe  realization  of what goes with power.  But there  is  a
\nfurther\t prerequisite  which narrows down the ambit  of\t the
\nclass  of  disputes  which  fall  within  Art.\t131.\tThat
\nrequirement  is\t that the dispute must involve\ta  question,
\nwhether of law or fact, on which the existence or extent  of
\na  legal  right\t depends.  It is  this\tqualification  which
\naffords the true guide for determining whether a  particular
\ndispute\t is  comprehended within art.  131.   Mere  wrangles
\nbetween\t governments  have no place in the  scheme  of\tthat
\narticle.   They have to be resolved elsewhere and  by  means
\nless  solemn  and sacrosanct than a court  proceeding.\t The
\npurpose of art. 131 is to afford a forum for the  resolution
\nof disputes which depend for their decision on the existence
\nor extent of a legal right.  It is only when a legal, not  a
\nmere political, issue arises touching upon the existence  or
\nextent of a legal right that art. 131 is attracted.
\nIt  seems to me impossible to hold that the suits  filed  by
\nthe  six States do not raise a dispute involving a  question
\ndepending  upon\t the existence or extent of a  legal  right.
\nThe  plaintiffs, by their suits, directly  and\tspecifically
\nquestion the constitutional right and authority of the Union
\nGovernment  to\tissue a directive to the  State\t Governments
\ncommending that the Chief Ministers should tender a  certain
\nadvice to their Governors.  The plaintiffs also question the
\nconstitutional right of the Union Government to dissolve the
\nState  Assemblies  on  the grounds  mentioned  in  the\tHome
\nMinister’s letter to the Chief Ministers.  Thus a legal, not
\na  political, issue arising out of the existence and  extent
\nof  a  legal right squarely arises and the suits  cannot  be
\nthrown out as falling outside the purview of art. 131.
\nThe   error  of\t the  preliminary  objection  lies  in\t the
\nassumption that it is necessary for attracting art. 131 that
\nthe  plaintiff\tmust assert a legal right in  itself.\tThat
\narticle contains no such restriction and it is sufficient in
\norder  that  its  provisions may apply\tthat  the  plaintiff
\nquestions the legal or constitutional right asserted by\t the
\ndefendant, be it the Government of India or any other State.
\nSuch  a challenge brings the suit within the terms  of\tart.
\n131  for, the question for the decision of the Court is\t not
\nwhether\t this  or that particular  legislative\tAssembly  is
\nentitled to continue in office but whether the Government of
\nIndia,\twhich asserts the constitutional right\tto  dissolve
\nthe  Assembly  on the grounds alleged,\tpossesses  any\tsuch
\nright.\n<\/p>\n
I find it difficult to accept that the State as a polity  is
\nnot  entitled  to  raise a dispute of  this  nature.   In  a
\nfederation, whether classical or quasi-classical, the States
\nare  vitally interested in the definition of the  powers  of
\nthe  Federal  Government on one hand and their\town  on\t the
\nother.\t A  dispute bearing upon the  delineation  of  those
\npowers is precisely the one in which the federating  States,
\nno less than the Federal Government itself, are\t interested.
\nThe States, therefore, have the locus
\n55<\/span>
\nand the interest to contest and seek an adjudication of\t the
\nclaim  set  up\tby  the\t Union\tGovernment.   The  bond\t  of
\nconstitutional\tobligation between the Government  of  India
\nand the States sustains that locus.\n<\/p>\n
The expression “legal right” which occurs in art. 131 has to
\nbe understood in its proper perspective.  In a strict sense,
\nlegal rights are correlative of legal duties and are defined
\nas   interests\t which\t the  law   protects   by   imposing
\ncorresponding duties on others.\t But in a generic sense, the
\nword  “right”  is used to mean an immunity  from  the  legal
\npower  of  another immunity is exemption from the  power  of
\nanother\t in  the same way as liberty is exemption  from\t the
\nright of another.  Immunity, in shirt, is no-subjection.”(1)
\nR.W.M. Dias says in his “Jurisprudence” (1976 Ed.  pp.-33-4)
\nthat  the  word “right” has undergone successive  shifts  in
\nmeaning\t and  connotes four different ideas  concerning\t the
\nactivity,   or\tpotential  activity,  of  one  person\twith
\nreference   to\t another.    One   of\tthese\tfour   jural
\nrelationships, according to the learned author, is the\t“you
\ncannot”\t relationship, which is the same thing as the  right
\nof  immunity  which  “denotes  freedom\tfrom  the  power  of
\nanother” (p. 58).  Paton’s book on Jurisprudence (3rd Ed. p.\n<\/p>\n
256)  contains\ta similar exposition of legal  rights.\t The
\nlegal right of the States consists in their immunity, in the
\nsense  of  freedom from the power of the  Union\t Government.
\nThey  are  entitled, under art. 131, to\t assert\t that  right
\neither by contending in the absolute that the Centre has  no
\npower  to  dissolve the Legislative Assemblies or  with\t the
\nqualification  that such a power cannot be exercised on\t the
\nground stated.\n<\/p>\n
It  is true that the State, like the British Monarch,  never
\ndies.  A Legislative Assembly may be dissolved, a Council of
\nMinisters  may go out of power, the President’s rule may  be
\nintroduced or imposed, or an emergency may be declared which
\ncan   conceivably  affect  the\tStates’\t power\tin   matters
\nlegislative   and  executive.\tThe  State  survives   these
\nupheavals.   But it is constitutionally unsound to say\tthat
\nthe  State, as a political entity, has no legal interest  in
\nsuch  cataclysmic  events and no legal rights to  assert  in
\nrelation  thereto.   Were it so, which then are,  the  legal
\nrights\t which\t the  State,  as  distinguished\t  from\t its
\nGovernment,  can  agitate under Art. 131 ? Whatever  be\t the
\nnature of the claim, the argument can always be put  forward
\nthat the Government, not the State, is interested in  making
\nthat  claim.   Such a rigid interpretation of the  scope  of
\nart.  131  will\t virtually reduce it to\t a  dead-letter\t and
\ndestroy\t a precious safeguard against the use  of  arbitrary
\npower.\t  The  interpretation  canvassed  by   the   learned
\nAdditional Solicitor-General must therefore, be avoided,  in
\nso  far as the language of the article permits it, which  in
\nmy opinion it does.\n<\/p>\n
The  debates of the Constituent Assembly (Vol. 8,  pp.\t588-\n<\/p>\n
590) do not throw any fight on the question in issue.
\nThe  judgment  of this Court in State of Bihar v.  Union  of
\nIndia(2) affords no real assistance on the question  arising
\nbefore\tus.  In that case, the Court raised three issues  in
\nthe suits filed under art. 131. The
\n(1)  Salamond’s jurisprudence 11th Ed.\tPP. 276-7.
\n(2)  [1970] 2 S.C.R. 522.\n<\/p>\n
56<\/span><\/p>\n
first issue which related to the question whether the  suits
\nwere  within the scope of art. 131 was not answered  by\t the
\nCourt  because\tit held on the second issue that  the  suits
\nwere not maintainable, since, a private party was  impleaded
\nthereto,  The only assistance which may be derived from\t the
\njudgment  in  that case is that it said\t that  the  disputes
\nunder  art. 131 should be; “in respect of legal\t rights\t and
\nnot  disputes of a political character” and that  though  it
\nwas unnecessary to define the scope of art. 131, “this\tmuch
\nis  certain  that the legal right which is  the\t subject  of
\ndispute\t must arise in the context of the  Constitution\t and
\nthe Federalism it sets up” (p. 529).  These observations  do
\nnot affect the constitution which I have placed on art. 131.
\n1 have endeavoured to show that it is competent to the State
\nGovernments to bring suits of the present nature under\tthat
\narticle\t and that by these suits, the State Governments\t are
\nraising a legal, not a political issue.\t Their assertion  is
\nthat   the  Government\tof  India  does\t not   possess\t the
\nconstitutional power claimed by it and therefore, this Court
\nshould\tdeclare that they are- immune from the\texercise  of
\nthat  power.   The  States  assert  their  legal  right,  of
\nimmunity which, as explained above, denotes freedom from the
\npower of another.\n<\/p>\n
The  preliminary objection raised by the learned  Additional
\nSolicitor  General to the maintainability of the suits\tmust
\ntherefore be rejected.\n<\/p>\n
The writ petitions have, however, no cause of action such as
\ncan   sustain  their  petitions\t for  the   enforcement\t  of
\nfundamental rights under art. 32 of the Constitution.\tThey
\ncontend that the threatened dissolution of the,\t Legislative
\nAssembly  of which they are members will inevitably  deprive
\nthem  of  their right to draw the salary to which  they\t are
\nentitled  as such members.  That, according to them,  is  an
\ninfringement  of  art. 19(1) (f) of the\t Constitution  which
\nguarantees  to all citizens the right to acquire,  hold\t and
\ndispose of property.\n<\/p>\n
The  grievance made by the petitioners is contingent on\t the
\nissuance  of a proclamation dissolving the  Assembly,  which
\nwas  not  issued till the conclusion of arguments  in  these
\nmatters.    Petitions\tcomplaining  of\t the   invasion\t  of
\nfundamental  rights  on hypothetical considerations  are  to
\nentertained   by  this\tCourt  under  art.  32.\t   But\t the
\nproclamation   having  since  been  issued,  it\t  would\t  be
\nhypertechnical\tto dismiss the writ petitions on the  ground
\nthat there was no invasion of the petitioners’ rights on the
\ndate when the petitions were filed in this Court.
\nBut  the  violation  of the fundamental\t right\tto  property
\ncomplained of by the petitioners is indirect and remote, not
\ndirect\tor  proximate.\tBy the proclamation  issued  by\t the
\nPresident  under  art.\t356(1)\tof  the\t Constitution,\t the
\nLegislative  Assemblies\t of nine States were  dissolved\t and
\nwhat  is commonly known as the President’s rule was  imposed
\non  those States.  As a result, the writ petitioners  ceased
\nto,  be\t members of the.  Legislative Assembles.  And  as  a
\nresult\tof their ceasing to be such members, their right  to
\ndraw salary, which they could only draw if they were members
\nof  the Assemblies, came to an end.  Though  the  petitioner
\ncannot\tbe  denied  relief on the ground  that\tit  was\t not
\nintended  by  issuing the proclamation to  deprive  them  of
\ntheir  salary,\tYet  the writ Petitions\t are  liable  to  be
\ndismissed  on  the  ground that the injury  to\tthe  alleged
\nfundamental right of the petitioners is too indirect
\nand remote.\n<\/p>\n
57<\/span><\/p>\n
Nevertheless,  I  would like to deal  with  ‘lie  contention
\nraised\tby Mr. R. K. Garg on behalf of the writ\t petitioners
\nthat  the  proclamation issued by the President\t under\tArt.
\n356(1) of the Constitution cannot have any force and  cannot
\nbe  acted  upon without the approval of both Houses  of\t the
\nParliament.    This  contention\t is   wholly   misconceived.
\nArticle\t  356(1)   empowers  the  President   to   issue   a
\nproclamation  if, on receipt of a report from the,  Governor
\nof  a State or otherwise, he is, satisfied that a  situation
\nhas  arisen in which the government of the State  cannot  be
\ncarried\t on  in\t accordance  with  the\tprovisions  of\t the
\nConstitution.\tArticle\t 356(3)\t enjoins  that\tevery\tsuch
\nproclamation  shall be laid before each House of  Parliament
\nand  shall,  except where, it is a proclamation\t revoking  a
\nprevious proclamation, cease to operate at the expiration of
\ntwo  months unless before the expiration of that  period  it
\nhas   been  approved  by  resolutions  of  both\t Houses\t  of
\nParliament.   It,  is  impossible to hold in  view  of\tthis
\nexpress\t provision  that the proclamation can  have  neither
\nforce  nor validity until it is approved by the\t Parliament.
\nThe  scheme  of art. 356 is that  the;\tproclamation  issued
\nunder it will remain in operation for a period of two months
\nin any event.  If it is approved by resolutions of both\t the
\nHouses\tof Parliament before the expiration of\ttwo  months,
\nits operation is extended for the period mentioned in clause
\n(4) of art. 356.  But whether or not it is so approved,\t the
\nproclamation has an assured life for a period of two  months
\nand its validity during that period cannot be, whittled down
\nby reading into art. 356 a condition precedent in the nature
\nof parliamentary approval which, plainly, is not to be found
\ntherein.  The proviso to clause (3) of art.. 356 makes\tthis
\nposition clearer still.\t If the proclamation is issued at  a
\ntime  when  the Lok Sabha is dissolved\tor  its\t dissolution
\ntakes  place during the period of two months, and the  Rajya
\nSabha,\tbut not the Lok Sabha, approves of the\tproclamation
\nwithin two months, it ceases to operate at the expiration of
\nthirty\tdays  from the date on which the  reconstituted\t Lok
\nSabha  first  sits.  If before the expiry of  the  aforesaid
\nperiod\tof thirty days, the Lok Sabha too approves  it,\t its
\nlife  will  be extended for the period mentioned  in  clause
\n(4).  In other words’, the prior approval of the  Parliament
\nor ally of its two Houses is not necessary to give  validity
\nto the proclamation.  What would happen if the\tproclamation
\nis disapproved by either or both Houses of Parliament within
\ntwo months does not arise for decision in these proceedings,
\nand though, it would appear as a matter of constitutionality
\nthat  the proclamation can nevertheless remain in  operation
\nfor a period of two months, it is reasonable to suppose that
\nfaced  with  such disapproval, a mature\t political  judgment
\nwould lean in favour of the revocation of the  proclamation.
\nSuch constitutional crises cannot furnish a safe clue to the
\ninterpretation of the Constitution.\n<\/p>\n
The contrast between the provisions of arts. 356 and 123  is
\nilluminating.\tArticle 123 which empowers the President  to
\npromulgate ordinances provides by clause (2) that every such
\nordinance  shall cease to operate at the expiration  of\t six
\nweeks from the reassembly of Parliament; if, however, before
\nthe   expiry   of  the\tsix   week’s   period,\t resolutions
\ndisapproving the proclamation are passed by both Houses,  it
\nceases\tto operate upon the passing of the second  of  those
\nresolutions.   Thus,  whereas a proclamation issued  by\t the
\nPresident under Art. 356
\n58<\/span>
\ncontinues  in  operation for a period of two months  in\t any
\nevent, an. ordinance issued by the same dignitary ceases  to
\noperate\t no  sooner than the second of the  two\t resolutions
\ndisapproving is passed by a House of Parliament.
\nThe reason for this distinction is evident from the language
\nand context of the respective provisions.  Article 356 which
\noccurs\tin  the\t Chapter called\t “Emergency  Provisions”  is
\nintended  to  be resorted to in that  exceptional  class  of
\nsituations,  which  though have been  occurring\t too  often,
\nwhere  the government of the State cannot be carried  on  in
\naccordance  with  the provisions of the\t Constitution.\t The
\nbreakdown   of\t the  Constitution  in\t the   affairs\t and
\nadministration of the State is the occasion for the exercise
\nof  the\t emergency  provision contained in  art.  356.\t The
\nframers\t of  the Constitution perhaps intended that  such  a
\nserious situation can be dealt with effectively, only if the
\nPresident  is  empowered to issue a  proclamation  and\tthat
\nproclamation is given a minimum life of two months,  whether
\nthe  Parliament approves it or not.  On the other hand,\t the
\npower  to  issue an ordinance is limited to  occasions\twhen
\nneither\t of  the  two Houses of Parliament  is\tin  session.
\nSince that power is co-related partly to both Houses of Par-
\nliament being in recess, if was provided that the  ordinance
\nshall  lapse on the expiry of six weeks from the  reassembly
\nof  Parliament, and if it is disapproved by both the  Houses
\nwithin\tthat period, upon the passing of the second  of\t the
\ntwo resolutions.\n<\/p>\n
Mr.  Garg  expressed  a\t grave concern\tfor  the  future  of
\ndemocracy,  if this be the true interpretation of art.\t356.
\nThat  argument\tdoes  not  appeal to  me  because  the\tsame
\nConstitution under which the people of this country resolved
\nto constitute India into a Sovereign “Democratic”  Republic,
\ngave  to it a law of laws containing empowerment  to  detain
\nits citizens, to pass ordinances and to declare emergencies.
\nA  declaration\tof emergency brings in its trail a  host  of
\nconsequences  calculated  to  impair  both  the\t  democratic
\nfoundation  and the federal structure of  our  Constitution.
\nThe  executive power of the Union then extends to giving  of
\ndirections  to\tany  State as to the  manner  in  which\t the
\nexecutive  power thereof is to be exercised; the power\tof
\nParliament to make laws extends to matters not enumerated in
\nthe  Union List; the restraints of Art. 19 on the  power  of
\nthe  State to make any law or to take any  executive  action
\nare  removed; and it is a well-known fact of recent  history
\nthat  the  right to move tiny Court for the  enforcement  of
\nfundamental rights can be suspended.  If the power to  apply
\nsuch  drastic remedies and to pass such draconian laws is  a
\npart  of the democratic functioning of the Constitution,  it
\nis  small  wonder  that\t not  only  does  the\tPresidential
\nproclamation  under art. 356 not require the prior  approval
\nof  the\t Parliament but it has full force and effect  for  a
\nminimum period of two months, approvals or no approval.\t The
\nreason of this rule is that there may be situations in which
\nit  is imperative to act expeditiously and recourse  to\t the
\nparliamentary process may, by reason of the delay  involved,
\nimpair rather than strengthen the functioning of  democracy-
\nThe  Constitution ha-, therefore provided  safety-valves  to
\nmeet extra ordinary situations.\t They have an impe-\n<\/p>\n
59<\/span><\/p>\n
rious garb and a repressive content but they are designed to
\nsave, not destroy, democracy.  The fault, if any, is not  in
\nthe making of the Constitution but in the working of it.
\nIt is undoubtedly true that within this impregnable duration
\nof two months ‘the President, acting of course on the advice
\nof  the Council of Ministers, may take various\tsteps  under
\nclauses\t (a)  to  (c) of art.  356(1)  which,  though  taken
\nwithout\t the approval of the Parliament, may be\t irrevocable
\nand   cannot  be  retraced.   One  such\t step  can  be\t the
\ndissolution  of\t a State Assembly and the holding  of  fresh
\nelections thereto.  But here too, as on the last point which
\nI  have just discussed, the answer is that the\tConstitution
\nexpressly confers vast and varied powers on the President if
\nhe arrives at a certain satisfaction.  The declaration of  a
\nfinancial  emergency under art. 360(1) carries with  it\t the power to issu
\ne directions for reducing the salaries of per-
\nsons  serving in connection with the affairs of\t the  Union,
\nincluding-the  Judges  of  the Supreme Court  and  the\tHigh
\nCourt.\tClause (2) of art. 360 makes clause (2) of art.\t 352
\napplicable  to proclamations of financial  emergencies\twith
\nthe  result, that anything done or any action  taken  during
\nthe  period  of\t two  months  after  the  issuance  of\t the
\nproclamation,  remains inviolable for that period.  That  in
\nfact, is the common thread which runs through arts. 352, 356
\nand 360.  The suspension of the right to move any Court\t for
\nthe  enforcement of fundamental rights, the lifting  of\t the
\nprohibition  of\t art. 19 as against the making of  laws\t and
\ntaking\texecutive  action, the assumption  of  powers  under
\nclauses (a), (b) and (c) of art. 356 have full effect  while
\nthe proclamations are in operation during the minimum period
\nof  two\t months.  Action taken during those two\t months,  if
\nirrevocable, remains unremedied.\n<\/p>\n
There is also no substance in the contention that by issuing
\na  proclamation under art. 356, the President cannot  assume
\nthe  power to dissolve a State Assembly.  By clause  (a)  of
\nart.  356(1),  the President may by Proclamation  assume  to
\nhimself all or any of the functions of the Government of the
\nState and “all or any of the powers vested in or exercisable
\nby  the Governor.” Article 174(2) (b) empowers the  Governor
\nto  “dissolve the Legislative Assembly” from time  to  time.
\nIt seems to me incapable of any serious controversy that  by
\nreason\tof the provisions contained in art. 356(1) (a),\t the
\nPresident      can   exercise  the  power  vested   in\t and
\nexercisable by theGovernor   under  art.  174(2)  (b)\tto
\ndissolve the Legislative Assembly ofthe State.
\nThat leaves for consideration an argument advanced on behalf
\nof the State Governments by Shri Niren De, Shri Gokhale\t and
\nthe   learned  Advocate\t of  Himachal  Pradesh.\t  Shri\t Ram
\nPanjwani,  supporting Shri Gokhale, cited texts\t to  support
\nthat  argument.\t  The  core  of the  argument  is  that\t the
\nConstitutional\tpower to dissolve a legislative assembly  is
\nbeing utilised by the President for an indirect and  oblique
\npurpose,  that\tthere  is no  justification  whatsoever\t for
\ndissolving  the nine State Assemblies and that\tthe  reasons
\ncontained  in  the  Home  Minister’s  letter  to  the  Chief
\nMinisters are wholly inadequate and irrelevant for
\n5-722SCI\/77
\n60<\/span>
\ntaking the proposed action.  Several other alternatives,  it
\nis  urged, are open to the Government of India to adopt\t for
\nmeeting the situation complained of by the Home Minister but
\ninstead of doing so, they have decided to act drastically by
\nthreatening   the  dissolution\tof  ,the  nine\t Legislative
\nAssemblies  in which the Congress (R) has a majority.\tSuch
\nnaked\tabuse  of  power,  which  is  being  exercised\t for
\nliquidating the Congress (R) governments which are in  power
\nin  the nine states must, it is stressed, be struck down  as
\nunconstitutional.   Mr. Gokhale even argued that clause\t (5)
\nof  Article 356 which was introduced by the 38th  Amendment,
\ngiving\tfinality  to the satisfaction of the  President\t and
\nputting it beyond the reach of Courts, is no bar to striking
\ndown  a mala fide exercise of power.  An order\twhich  lacks
\nbona  fides  has no existence in the eye of  law,  says\t the
\ncounsel,  and  courts ought not to perpetuate  injustice  by
\nrefusing  to  interfere with such orders.   These  arguments
\nhave a familiar, though strange, echo but that is beside the
\npoint.\t There is no gain saying that the various points  of
\nview  presented\t by  the learned  counsel  require  a  close
\nattention.\n<\/p>\n
 I  would like to begin with the assumption, though that  is
\ncontroverted  by the Additional Solicitor-General, that\t the
\nproposed proclamation is likely to be founded solely on\t the
\nreasons contained in the Home Minister’s letter.  Even then,
\nI  find\t it hard to conclude that those reasons\t are  wholly
\nextraneous to or irrelevant for the exercise of the power to
\nissue  a  proclamation under art. 356 of  the  Constitution.
\nThe  sine  qua\tnon of the exercise of\tthat  power  is\t the
\nsatisfaction of the President that a situation has arisen in
\nwhich  the government of the State cannot be carried  on  in
\naccordance  with  the provisions of the\t Constitution.\t The
\nreasons\t contained in the Home Minister’s letter may not  be
\nsuch as to necessarily lead to the conclusion that there  is
\na break-down of constitutional machinery in the nine States.
\nBut  the  test of proof by preponderance  of  probabilities,
\nleave alone the test of circumstances being consistent\twith
\na  sole hypothesis, is entirely out of place in\t considering
\nthe constitutional validity of a Presidential  proclamation.
\nIt is for the President to judge whether a situation of\t the
\nparticular description has arisen necessitating the issuance
\nof a proclamation for assumption of all or any of the powers
\nmentioned in clause (a), (b) and (e) of art. 356(1).  He  is
\nexpected  and  ought to judge fairly but we  cannot  sit  in
\njudgment  over his satisfaction for determining whether\t any
\nother view of the situation is not reasonably possible.\t  So
\nlong  as  the reasons, if any are disclosed, given  for\t the
\naction\tproposed or taken, bear a reasonable nexus with\t the
\nexercise  of the particular power, the satisfaction  of\t the
\nPresident  must be treated as conclusive.  It will then\t not
\nbe  open  to judicial scrutiny.\t It,  however,\tthe  reasons
\ngiven  are  wholly  extraneous\tto  the\t formation  of\t the
\nsatisfaction,  the proclamation would be open to the  attack
\nthat it is vitiated by legal mala fides.\n<\/p>\n
Such is not the case here.  The Home Minister’s letter shows
\nthat (i) an unprecedented political situation had arisen  by
\nthe virtual rejection, in the recent Lok Sabha elections, of
\ncandidates belonging to the ruling party in various  states;\n<\/p>\n
(ii)  the  resultant climate of uncertainty was such  as  to
\ncause grave concern; (iii) the situation had created a sense
\nof  diffidence at different levels of  administration;\t(iv)
\npeople at
\n61<\/span>
\nlarge  did  not appreciate the propriety of  continuance  in
\npower  of  a party which was unmistakably  rejected  by\t the
\nelectorate;  and (v) the climate of uncertainty,  diffidence
\nand disrespect had given rise to serious threats to law\t and
\norder.\t It is on the basis of these reasons that  the\tHome
\nMinister  concluded  that a fresh appeal  to  the  political
\nsovereign   was\t  not  only  permissible  but\thad   become
\nobligatory.  These grounds, cannot with any show of  reason,
\nbe dismissed as bearing no rational nexus with the necessity
\nfor  issuing  a proclamation with a view to  dissolving\t the
\nLegislative Assemblies of the nine States.
\nProbing\t at any greater depth into the reasons given by\t the
\nHome  Minister\tis to enter a field from which\tJudges\tmust
\nscrupulously  keep  away.  That field is  reserved  for\t the
\nPolitician  and the courts must avoid trespassing  into\t it.
\nThat  is  not  always  an easy\ttask  because  the  line  of
\ndemarcation that separates ‘he functions of this Court\tfrom
\nthose  of  the\tGovernment  tend  to  become  blurred,\twhen
\nconstitutional\tproblems  raise issues concerning  the\thigh
\npolicies  of  the  executive.\tIn  the\t United\t States,  De
\nToqueville  noted as early as in 1832 that sooner  or  later
\nevery  political question becomes a judicial question.\t Leo
\nPreffer therefore thought that though when the Supreme Court
\ndecided\t Constitutional questions it had the trappings of  a
\nCourt  of  Law,\t “it  is supreme, but it  is  not  really  a
\nCourt”(1).  This is a wanting well worth remembering but  it
\nmust  not deter the courts from discharging their  functions
\nif  they  find\tthat  a constitutional\tpower  meant  to  be
\nexercised  for\tpreserving  democracy  is  being  used\t for
\ndestroying  it.\t The Home Minister’s letter is\tclearly\t and
\nindubitably  on\t the  safe side of the line  and  I  see  no
\njustification either for questioning the ,bona fides of\t the
\ncase  made  out\t by him in the letter or  for  doubting\t the
\nauthenticity  of  the  facts stated  therein.\tAs  said  by
\nJustice Harlan F. Stone in his oft-quoted dissenting opinion
\n: “Courts are not the only agency of Government that must be
\nassumed to have capacity to govern” (2).\n<\/p>\n
I  need\t not therefore enter into the question\twhether\t the
\nGovernment  of India has reasons apart from those stated  in
\nthe  Home  Minister’s letter for advising the  President  to
\nissue the proclamation.\t It they have, so far so good.\tThey
\nmay not choose to disclose them but it they do, as they have
\ndone  now, they cannot prevent a judicial  scrutiny  thereof
\nfor  the limited purpose of seeing whether the reasons\tbear
\nany rational nexus with the action proposed.  I am  inclined
\nto  the opinion that the Government cannot claim the  credit
\nat  the people’s bar for fairness in disclosing the  reasons
\nfor  the proposed action and at the same time deny  to\tthis
\nCourt the limited power of finding whether the reasons\tbear
\nthe necessary nexus or are wholly extraneous to the proposed
\naction.\t  The argument that “if the Minister need  not\tgive
\nreasons,  what\tdoes it matter if he gives bad\tones”  over-
\nlooks that bad reasons can destroy a possible nexus and\t may
\nvitiate\t the  order  on\t the  ground  of  mala\tfides.\t The
\nargument,  be  it  stated,  was\t not  made  by\tthe  learned
\nAdditional Solicitor-General but it is interesting to
\n(1)”This  Honourable Court” by Leo Pfeffer,  Indian  Reprint
\n1967, P.7. (2) United States v. Butler-297 U.S. 1, 87.\n<\/p>\n
62<\/span><\/p>\n
know how it was repelled by Lord Denning M.R. in Padfield v.
\nMinister of Agriculture, Fisheries and Food(1).
\nIt  is\talso  unnecessary to consider  the  implications  of
\nclause\t(5)  of art. 356 which was introduced by  the  38th-
\nAmendment,  making the satisfaction of the  President  final
\nand  conclusive, not open to be questioned in any court,  on
\nany ground.  I have upheld the validity of the\tproclamation
\non  the view that the reasons that are cited in its  support
\nbear a nexus with it.\n<\/p>\n
 A  large number of decisions were cited on either  side  on
\nthe  question  whether the Presidents satisfaction  on\tsuch
\nissues\tis justiciable.\t The learned  Additional  Solicitor-
\nGeneral relied upon the decisions of this Court, the Federal
\nCourt, the Privy Council and of various High Courts to\tshow
\nthat  apart  from clause (5) of art.  356,  the\t President’s
\nsatisfaction  is conclusive and the Courts have no power  to
\ngo  behind it. These decisions have been discussed fully  in
\nhis  judgment by my Lord the Chief Justice.  In the  view  I
\nhave taken, I prefer to express no opinion on this  question
\nexcept\tto  state  that though the question  is\t treated  as
\n“well-settled”, the Privy Council in Stephen Kalong  Ninskan
\nv. Government of Malaysia(1) said :\n<\/p>\n
\t      “Whether\t a  proclamation  under,   statutory
\n\t      powers  by the Supreme Head of the  Federation
\n\t      can be challenged before the courts on some or
\n\t      any  grounds is a constitutional\tquestion  of
\n\t      far-reaching importance which, on the  present
\n\t      state  of the authorities,  remains  unsettled
\n\t      and debatable.”\n<\/p><\/blockquote>\n
It  would appear that in this branch of constitutional\tlaw,
\nwhich  cannot  be entirely divorced from  considerations  of
\npolitical policies, only one proposition may be said to\t be.
\nwell-settled  : “No question in this branch of law is  well-
\nsettled”.   The\t ‘political  question’\tis  an\topen  sesame
\nexpression  that  can  become  a  password  for\t gaining  or
\npreventing  admission into forbidden fields.  And it  is  an
\naccepted  fact\tof constitutional  interpretation  that\t the
\ncontent\t of  justiciability  changes according\tto  how\t the
\njudge’s\t value preferences respond to the  multi-dimensional
\nproblems-  of  the  day.   An awareness\t of  history  is  an
\nintegral  part of those preferences.  In the last  analysis,
\nthe  people for whom the Constitution is meant,\t should\t not
\nturn  their faces away from it in disillusionment  for\tfear
\nthat justice is a will-o’-the-wisp.\n<\/p>\n
These then are my reasons in support of the unanimous  order
\nwhich the Court passed on April, 29, 1977.\n<\/p>\n
BHAGWATI,  J.-Two main questions arise for consideration  in
\nthese  suits and writ petitions.  One is whether  the  suits
\nare  maintainable under Article 131 and the  Writ  petitions
\nunder Article 32 of the Constitution, and the other is as to
\nwhat  is the scope and ambit of the power of  the  President
\nunder Article 356, clause (1) and whether and if so, in what
\ncircumstances, can the Court interfere with the exercise  of
\nthis power by the President.  The facts giving rise to these
\nsuits and writ petitions have been set out in detail in\t the
\njudgment
\n(1)  L.R. [1968] A.C. 997, 1006.\n<\/p>\n
(2)  L.R. [1970] A.C. 379, 392.\n<\/p>\n
63<\/span><\/p>\n
prepared by the learned Chief Justice and it would be futile
\nexercise  on our part to reiterate them.  Hence\t we  proceed
\nstraight   to\tconsider  the  questions  that\t arise\t for
\ndetermination.\tThese questions are of great  constitutional
\nsignificance.\n<\/p>\n
We will first examine the question of maintainability of the
\nsuits and the writ petitions.  The writ petitions have\tbeen
\nfiled by three legislators from the State of Punjab  seeking
\nenforcement of the fundamental right to property  guaranteed
\nto them under Articles 19(1) (f) and 31.  They complain that
\nif  the\t Legislative  Assembly of the  State  of  Punjab  is
\ndissolved by the President acting under Article 356,  clause
\n(1), as threatened by the Government of India, they would be
\ndeprived of their right to receive salary as members of\t the
\nLegislative  Assembly and the fight to receive salary  being
\nproperty,  there  would be  unconstitutional  infraction  of
\ntheir right to property under Articles 19 (1) (f) and 31 and
\nhence they are entitled to move this Court under Article  32
\nfor preventing such threatened infraction.  This  contention
\nis clearly unsustainable.  Of course, there can be no doubt,
\nand  indeed  it\t must be said in  fairness  to\tthe  learned
\nAdditional Solicitor General who argued the case with  great
\nability,  that he did not contend to the contrary,  that  if
\nthere is a threatened violation of a fundamental right,\t the
\nperson\tconcerned is entitled to approach this\tCourt  under
\nArticle\t 32  and claim relief by way of injunction as  in  a
\nquia  timet action.  But the difficulty here in the  way  of
\nthe  petitioners is that it is not possible to say  that  by
\nthe threatened dissolution of the Legislative Assembly,\t any
\nfundamental right of the petitioners would be infringed.  It
\nis  only  where there is direct invasion  of  a\t fundamental
\nright or imminent danger of such invasion that a  petitioner
\ncan  seek  relief  under  Article 32.\tThe  impact  on\t the
\nfundamental  right  must  be direct and\t immediate  and\t not
\nindirect  or remote.  Merely because, by the dissolution  of
\nthe Legislative Assembly, the petitioners would cease to  be
\nmembers\t and that would incidentally result in their  losing
\ntheir  salary, it cannot be said that the dissolution  would
\ninfringe  their\t right\tto  property.\tThat  would  be\t the
\nindirect   effect  of  the  dissolution\t but  that  is\t not
\nsufficient to constitute infraction of the fundamental right
\nto  property.\tIf  the argument  of  the  petitioners\twere
\ncorrect,  even a civil servant dismissed in violation  of  a
\nlegal or constitutional provision by the Government of India
\nor  a State Government or even an authority  falling  within
\nthe definition of ‘State’ in Article 12 would be entitled to
\ncomplain  that\tby  reason of the  dismissal,  be  has\tbeen
\ndeprived of his right to salary and hence it is competent to
\nhim to approach this Court under Article 32 challenging\t his
\ndismissal  as invalid on ground of violation of Articles  19
\n(1) (f) and 3 1. This surely could never have been  intended
\nby  the\t constitution-makers.\tThe  direct  impact  of\t the
\ndissolution  of the Legislative Assembly would be, that\t the
\npetitioners  would cease to be members and obviously no\t one
\nhas  a\tfundamental  right  to continue as  a  member  of  a
\nlegislative  assembly.\tIt is true that if  the\t petitioners
\ncease  to be the members of the Legislative  Assembly,\tthey
\nwould lose their right to receive salary, but that would  be
\nthe result of their ceasing to be the members of the  Legis-
\nlative\tAssembly  and  not the direct  consequences  of\t the
\ndissolution of the Legislative Assembly.  We are. therefore.
\nof   the  view\tthat  the  threatened  dissolution  of\t the
\nLegislative Assembly does not involve
\n64<\/span>
\nany  infraction’ of the fundamental right guaranteed to\t the
\npetitioners  under Articles 19 (1) (f) and 31 and  since  no
\nother  fundamental  right  has\tbeen  relied  upon  by\t the
\npetitioners,  it must be held that they are not entitled  to
\nmaintain the writ petitions under Article 32.
\nThat  takes  us to the question of  maintainability  of\t the
\nsuits.\tThere are six suits before us filed by the States of
\nRajasthan,  Madhya Pradesh, Punjab, Bihar, Himachal  Pradesh
\nand  Orissa.   Each  of these suits  has  been\tfiled  under
\nArticle\t 131  of  the Constitution.   This  Article  confers
\noriginal jurisdiction on the Supreme Court, to the exclusion
\nof  all\t other courts, in respect of certain  categories  of
\nsuits and is in the following terms
\n\t      “131.   Subject  to  the\tprovisions  of\tthis
\n\t      Constitution, the Supreme Court shall, to\t the
\n\t      exclusion\t of any other court,  have  original
\n\t      jurisdiction in any dispute-\n<\/p>\n
\t      (a)   between  the Government of India and  or
\n\t      more States; or\n<\/p>\n
\t      (b)   between the Government of India and\t any
\n\t      State  or States on one side and one  or\tmore
\n\t      other States on the other, or\n<\/p>\n
\t      (c)   between two or more States,
\n\t      if  and in so far as the dispute involves\t any
\n\t      question (whether of law or fact) on which the
\n\t      existence or extent of a legal right depends.
\n\t      Provided that the said jurisdiction shall\t not
\n\t      extend to a dispute arising out of any treaty,
\n\t      agreement,  covenant,  engagement,  sanad\t  or
\n\t      other  similar instrument which,\thaving\tbeen
\n\t      entered\tinto   or   executed   before\t the
\n\t      commencement of the Constitution, continues in
\n\t      operation\t after such commencement,  or  which
\n\t      provides that the said jurisdiction shall\t not
\n\t      extend to such a dispute.”\n<\/p>\n
There  are  two limitations in regard to the nature  of\t the
\nsuit  which  can be entertained by the Supreme\tCourt  under
\nthis Article.  One is in regard to parties and the other  is
\nin regard to the subject matter.  The Article provides in so
\nmany terms in clauses (a), (b) and (c) that the dispute must
\nbe  between the Government of India and one or more  States,
\nor  between the Government of India and any other  State  or
\nStates\ton  one\t side and one or more other  States  on\t the
\nother,\tor  between  two  or  more  States.   It  does\t not
\ncontemplate any private,, party being arrayed as a disputant
\non  one\t side or the other.  The par-, ties to\tthe  dispute
\nmust  fall  within one or the other  category  specified  in
\nclauses\t (a),  (b)  and\t (c).  That  was  established  by  a
\ndecision of this Court in State of Bihar v. Union of India &
\nAnr.<\/a>(1)\t where\tthis Court pointed out : ” a  dispute  which
\nfalls within the ambit of Article 131 can only be determined
\nin the forum mentioned therein,
\n(1) [1970]2 S.C.R. 522
\n65<\/span>
\nnamely,\t the Supreme Court of India, provided there has\t not
\nbeen impleaded in any said dispute any private party, be  it
\na  citizen  or a firm or a corporation along  with  a  State
\neither\tjointly or in the alternative.\tA dispute  in  which
\nsuch  a private party is involved must be brought  before  a
\ncourt,\tother than this court, having jurisdiction over\t the
\nmatter.”  This is the limitation as to parties.\t  The  other
\nlimitation as to subject-matter flows from the words “if and
\nin  so far as the dispute involves any question (whether  of
\nlaw  or\t fact) on which the existence or extent of  a  legal
\nright  depends.”  These\t words\tclearly\t indicate  that\t the
\ndispute\t must  be one relating to a legal right\t and  not  a
\ndispute\t on the political plans not based on a legal  right,
\nfor instance, to take an example given by Mr. Seervai in his
\nwell  known  work on ‘Constitutional Law of India’  at\tpage
\n1385 : “a claim that a State ‘project should be included  in
\nthe  Five-Year Plan.” The dispute must,\t therefore,  involve
\nassertion or vindication of a legal right of the  Government
\nof  India  or a State.\tIt is not necessary that  the  right
\nmust  be a constitutional right.  All that is  necessary  is
\nthat it must be a legal right.\tIt is true that in the State
\nof Bihar v. Union of India & Anr.<\/a> (supra) this Court,  while
\ndiscussing the scope of the dispute which may be  determined
\nby the Supreme Court under Article 131, happened to make  an
\nobservation that “this much is certain that the legal  right
\nwhich is the subject of dispute must arise in the context of
\nthe  Constitution and the federalism it sets up.”  But\tthis
\nobservation, in so far as it suggests that the legal  right
\nmust  be one which arises under the Constitution, goes\tmuch
\nfurther than what the language of Article 131 warrants.\t The
\nArticle speaks only of ‘legal right’ and does not qualify it
\nby  any other words.  It may be noted that the provision  in
\nthe  corresponding  section 204 of the Government  of  India
\nAct,  1935  was\t significantly different.   It\tcontained  a
\nproviso\t that  the  dispute  must  inter  alia\tconcern\t the
\ninterpretation\tof the Government of India Act, 1935 “or  of
\nan  Order  in Council made thereunder or the extent  of\t the
\nlegislative or executive authority vested in the  Federation
\nby  virtue  of the Instrument of Accession of  that  State.”
\nThis provision has been deliberately and designedly  omitted
\nin Article 131 and now any legal right can be enforced by  a
\nsuit  in  the Supreme Court provided the  parties  fill\t the
\ncharacter  specified  in  clauses (a),\t(b)  and  (c).\t The
\nquestion  which\t therefore  requires  to  be  considered  in
\ndetermining the maintainability of the suits is whether\t any
\nlegal right of the States is sought to be vindicated in\t the
\nsuits.\t We  shall  presently consider\tthis  question,\t but
\nbefore we do so, we must point out one other error in which,
\nwith  the greatest respect, the learned Judges\twho  decided
\nthe case of State of Bihar v. Union of India & Anr.<\/a>  (supra)
\nseem to have fallen.  They held that in a suit under Article
\n131 one only order which the Supreme Court. could make was a
\ndeclaration  adjudicating on the legal right claimed in\t the
\nsuit and once such a declaration was given., the function of
\nthe Supreme Court under Article 131 was at an end.  If\tthis
\nconclusion  were correct, then obviously the  present  suits
\nseeking\t permanent injunction restraining the Government  of
\nIndia from issuing a proclamation under Article 356,  clause
\n(1) could not lie and equally no interim injunction could be
\ngranted\t by this Court but the learned Additional  Solicitor
\nGeneral, with his usual candour, and fairness, conceded that
\nhe  was not in a position to support this view.\t  This\tview
\nseems to be erroneous and for two very good reasons.\n<\/p>\n
66<\/span><\/p>\n
In the first place, it overlooks the fact that whereas\tsub-
\nsection (2) of section- 204 of the Government of India\tAct,
\n1935  provided\tthat the Federal Court, in exercise  of\t its
\noriginal  jurisdiction,\t shall not pronounce  any  judgment,
\nother  than  a\tdeclaratory  judgment,\tno  such   provision
\nlimiting  the  power of the Supreme Court in regard  to\t the
\nrelief\tto  be granted is to be found in Article  131. The
\npower  of the Supreme Court to grant relief in a suit  under
\nArticle\t  131  is  not\trestricted  only   to\t‘declaratory
\njudgment’.   Secondly, as pointed out by Mr. Seervai in\t his
\nbook  at  page\t1385,  “when  a\t court\tis  given  exclusive
\njurisdiction in respect of a dispute between the parties, it
\nis  reasonable to hold that the court has power\t to  resolve
\nthe  whole dispute”, unless its power is limited by  express
\nwords  or  by  necessary  implication.\t There\tis  no\tsuch
\nlimitation in Article 131 and hence it is not correct to say
\nthat the Supreme Court can only give a declaratory  judgment
\nin  a suit under Article 131.  The Supreme Court would\thave
\npower to give whatever reliefs are necessary for enforcement
\nof  the legal right claimed in the suit if such legal  right
\nis established.\n<\/p>\n
 Turning now to the question whether the present suits\tseek
\nto enforce any legal right of the State, it. is necessary to
\nhave  a look at a few provisions of the Constitution.\tSave
\nfor  the purpose of Part III ‘State’ is not defined  in\t the
\nConstitution,  but by reason of Article 367, clause (1),  it
\nmust  be  given\t the same meaning which\t it  has  under\t the
\nGeneral\t Clauses Act, 1897.  Section 3, clause (56)  of\t the
\nGeneral\t Clauses Act, 1897 defines ‘State’, inter  alia,  to
\nmean  “a  State\t specified  in the  first  Schedule  to\t the
\nConstitution”.\t The  States of Rajasthan,  Madhya  Pradesh,
\nPunjab,\t Bihar,\t Himachal  Pradesh  and\t Orissa\t are  States
\nspecified  in the First Schedule and hence they\t are  States
\nwithin\tthe meaning of the Constitution.  Article 1,  clause
\n(1) declares that India, that is Bharat, shall be a Union of
\nStates and a State is consequently a constituent part of the
\nUnion  of  India.   Part VI  of\t the  Constitution  contains
\nprovisions  regarding  the States.  Article  153  says\tthat
\nthere  shall be a Governor for each State and under  Article
\n154  the  executive  power of the State\t is  vested  in\t the
\nGovernor and has to be, exercised by him either directly  or
\nthrough\t officers subordinate to him in accordance with\t the
\nConstitution.\tArticle\t 163  provides\tfor  a\tCouncil\t  of
\nMinisters  with\t a  Chief Minister at the head\tto  aid\t and
\nadvise the Governor in the exercise of his functions  except
\nin  respect of. a limited area where he is by or  under\t the
\nConstitution  required to exercise his functions or  any  of
\nthem  in his discretion.  There is no express  provision  in
\nthe Constitution requiring the Governor to act in accordance
\nwith  the advice of the Council of Ministers as there is  in
\nthe  newly amended Article 74, clause (1) in regard  to\t the
\nPresident,  but\t it is now well settled as a result  of\t the
\ndecision of this Court in Shamsher Singh & Anr. v. State  of
\nPunjab(1) that except in the narrow minimal area covered  by
\nArticles  163 (2), 371A(1) (b) and (d), 371A(2) (b) and\t (f)
\nand sixth Schedule, Para 9(2), the Governor also is bound to
\nact  according\tto the advice of the Council  of  Ministers.
\nThis is broadly the scheme of the provisions in regard to
\n(1)  [1975] S.C.R. 814.\n<\/p>\n
67<\/span><\/p>\n
the  exercise  of the executive power of  the  States.\t The
\nlegislative  power  of\tthe  State  is\texercisable  by\t the
\nLegislature under Article 168 and according to that Article,
\nthe  Legislature of the State is to consist of the  Governor
\nand the Legislative Assembly, together with the\t Legislative
\nCouncil\t in some of the States.\t Article 172  provides\tthat
\nevery  Legislative  Assembly  of  a  State,  unless   sooner
\ndissolved,  shall  continue  for six  years  from  the\tdate
\nappointed  for its first meeting.  Originally the  term\t was
\nfive  years, but it was extended to six years by the  Forty-
\nSecond Constitution Amendment Act.  Article 213 deals with a
\nsituation  where  the  Legislature is  not  in\tsession\t and
\nprovides  that in such a case the Governor may legislate  by
\npromulgating   ordinances   when  he   is   satisfied\tthat
\ncircumstances  exist  which render it necessary for  him  to
\ntake immediate action.\tIt will thus be seen that under\t the
\nprovisions  of the Constitution the executive power  of\t the
\nState is exercisable by the Governor aided and advised by a
\nCouncil\t of  Ministers\tand the Legislative  power,  by\t the
\nLegislature  of the State and in an emergent situation\twhen
\nthe Legislature is not in session, by the Governor.
\nNow,  in  order\t to determine whose  legal  right  would  be
\nviolated by the threatened action under Article 356,  clause
\n(1),  we  must proceed on the assumption that  such  action,
\nwhen taken, would be constitutionally invalid, because if it
\nwere  valid,  there would be no cause  for  complaint.\t The
\nquestion   is\t:  who\twould  have  cause  of\t action\t  if
\nunconstitutional action were taken under Article 356, clause
\n(1)  ?\tIf the executive power of the State  vested  in\t the
\nGovernor were taken away by the President or the legislative
\npower  of the State were exercisable not by the\t Legislature
\nof the State or the Governor, but by or under the  authority
\nof Parliament or the Legislature of the State were  &solved-
\nall  these  being actions which can be taken  under  Article
\n356,  clause (1)-who would be aggrieved ? Can the State\t say
\nthat  its legal right is infringed ? We believe it can.\t  Is
\nit  not the right of the State under the  Constitution\tthat
\nits  executive\tpower shall be exercisable by  the  Governor
\nexcept\twhen  any functions of the State Government  or\t any
\npowers of the Governor are assumed by the President by valid
\nexercise of power under Article 356, clause (1) ? Is it\t not
\ncompetent  to the State to insist that it shall continue  to
\nhave  its  legislature for making its laws, until  its\tterm
\nexpires\t  or  it  is  validly  dissolved?   Is\tit   not   a
\nconstitutional\tright  of the State that its laws  shall  be
\nmade  by its legislature, unless the President declares,  in
\nexercise  of the power under Article 356, clause  (1),\tthat
\nthe  powers  of\t the  legislature  of  the  State  shall  be
\nexercisable by or under the authority of Parliament ?  These
\nrights of the State under the Constitution. would  certainly
\nbe affected by invalid exercise of power under Article\t356,
\nclause (1).\n<\/p>\n
The  learned Additional Solicitor General or behalf  of\t the
\nGovernment of India contended that the expression ‘State’ in
\nArticle\t 131 is not synonymous with ‘State  Government’\t and
\nthere is intrinsic evidence in the Article that the two\t are
\ndistinct.   When the functions of the State  Government\t are
\nunconstitutionally  assumed  by the President,\tit is  the
\nState Government which would be aggrieved and not the State.\n<\/p>\n
68<\/span><\/p>\n
There  is  no  legal right in a State to be  governed  by  a
\nparticular Council of Ministers.  So also when a Legislative
\nAssembly  is  dissolved, it is the individual right  of\t the
\nmembers\t which\tmay  be affected and not the  right  of\t the
\nState.\t  Discussion  of  a  Legislative  Assembly  is\t not
\ntantamount  to dissolution of the State, so as to give\trise
\nto  a cause of action in the State.  The learned  Additional
\nSolicitor General fairly conceded that if the office of\t the
\nGovernor or the Legislative Assembly of the State were to be
\nabolished  altogether, it might affect a legal right of\t the
\nState, because the State is entitled to have a Governor\t and
\na  Legislative\tAssembly  under the  Constitution,  but\t his
\nargument was that mere assumption of the powers of the State
\nGovernment  or\ttaking away the power to make laws  for\t the
\nState  from the Legislature and making it exercisable by  or
\nunder  the  authority of Parliament or\tdissolution  of\t the
\nLegislative Assembly would not affect any legal right of the
\nState.\t This contention is not well founded and  cannot  be
\nsustained.\n<\/p>\n
It  is true that there is a distinction between ‘State’\t and
\n‘State Government’ and this distinction is also evident from
\nthe language of’ Article 131 ‘and, therefore, what has to be
\nseen  for  the purpose of determining the  applicability  of
\nthat  Article  is whether any legal right of the  State,  as
\ndistinct  from\tthe State Government,  is  infringed.\tNow,
\nundoubtedly,  a State has no legal right to insist  that  it
\nshall  have a particular Council of Ministers or  particular
\npersons as members of the Legislative Assembly.\t But a State
\nhas certainly a right under the Constitution to say that its
\nexecutive and legislative powers shall be exercisable in the
\nmanner provided in the Constitution.  If a legal right of  a
\nState  can be said to have been infringed when its  Legisla-
\ntive  Assembly is abolished, it is difficult to see how\t any
\nother conclusion can follow when the Legislative Assembly is
\nnot  abolished\tbut suspended or dissolved.  In\t the  former
\ncase,  the  State  is  unconstitutionally  deprived  of\t its
\nlegislative organ and its legislative power is given over to
\nanother\t authority  : in the  letter,  the  constitutionally
\nappointed  organ  remains but it is made ineffectual  for  a
\nperiod\t  during    which   the\t  legislative\t power\t  is
\nunconstitutionally vested in another authority.\t ‘We fail to
\nsee any difference in the two situations so far as the State
\nis  concerned.\t The  position\tis  the\t same  whether\t the
\nconstitutionally appointed organ for exercise of legislative
\npower  is amputated or paralysed.  If one affects the  legal
\nright of the State, equally the other does.  It may be\tthat
\nif a Legislative Assembly is suspended or dissolved and\t the
\nlegislative  power of the State become,,, exercisable by  or
\nunder the authority of Parliament by reason of\tPresidential
\naction under Article 356, clause (1), the individual  rights
\n(A the members of the Legislative Assembly may be  affected,
\nbut  that  does not mean that the legal right of  the  State
\nwould  also  not  thereby  be  infringed.   Unconstitutional
\nexercise of power by the President under Article 356, clause
\n(1)  may injuriously affect rights of several  persons.\t  It
\nmay  infringe not only the individual rights of the  members
\nof  the\t Legislative Assembly, but also\t the  constitutional
\nright  of the State to insist that the federal basis of\t the
\npolitical structure set up by the constitution shall not  be
\nviolated  by an unconstitutional assault under Article\t356,
\nclause (1), we are, therefore, of the view,
\n69<\/span>
\nthat:the present suits seek to enforce a legal right of\t the
\nStates\tarising under the Constitution and the suits  cannot
\nbe thrown out in limine as being outside the scope and ambit
\nof  Article 131.  We must proceed, to consider the suits  on
\nmerits.\n<\/p>\n
The   important\t and  serious  question\t which\tarises\t for
\nconsideration on merits is as to what is the scope and ambit
\nof  the\t power\tunder  Article 356,  clause  (1).   Can\t the
\nPresident  in  exercise\t of  this  power  dissolve  a  State
\nLegislature,  and if so, are there any limitations  on\tthis
\npower ?,To answer this question, it is necessary to  examine
\nthe scheme and language of different clauses of Article 3,56
\nand  the object and purpose for which it has  been  enacted.
\nArticle 356 occurs in Part XVIII which contains a fasciculus
\nof  articles from Article 352 to 360 dealing with  emergency
\nprovisions.  One of us (Bhagwati, J.) has occasion to  point
\nout  in\t Additional District Magistrate, Jabalpur v.  S.  S.
\nShukla<\/a>(1) that there are three types of emergency which\t may
\ncause  crisis in the life of a nation.\tThe first  is  where
\nthe security of the country is threatened by war or external
\naggression  :  the  second arises on account  of  threat  or
\npresence  of internal disturbance calculated to disrupt\t the
\nlife of the country and jeopardize the existence of  consti-
\ntutional  Government and the third is occasioned when  there
\nis  break  down\t or  potential break  down  of\tthe  economy
\nthreatening  the  financial  stability\tor  credit  of\t the
\ncountry.  The first two types of emergency are dealt with in
\nArticle\t 352, while the third type is dealt with in  Article\n<\/p>\n
360.  Article 352, clause (1) provides that if the President
\nis  satisfied  that  a grave emergency\texists\twhereby\t the
\nsecurity  of  India  or\t of any part  of  its  territory  is
\nthreatened,  whether  by  war  or  external  aggression\t  or
\ninternal  disturbance,\tbe  may,  by  proclamation,  make  a
\ndeclaration  to that effect and clause (2) of  that  Article
\nrequires  that such Proclamation shall be laid\tbefore\teach
\nHouse  of Parliament and “it shall cease to operate  at\t the
\nexpiration  of\ttwo months unless before the  expiration  of
\nthat  period  it has been approved by  resolutions  of\tboth
\nHouses of Parliament”.\tThe constitutional implications of a
\ndeclaration of emergency under Article 352, clause (1) are
\nvast  and they are provided in Articles 250, 353,  354,\t 358
\nand  359.  The\temergency being\t an  exceptional  situation,
\narising out of a, national crisis, certain wide and sweeping
\npower-,\t have been conferred on the Central  Government\t and
\nParliament  with a view to combat the situation and  restore
\nnormal conditions.  One such power is that given by  Article
\n250 which provides that while a Proclamation of Emergency is
\nin  operation, Parliament shall have the power to make\tlaws
\nfor  the  whole or any part of the territory of\t India\twith
\nrespect to any of the matters enumerated in the State  List.
\nThe  effect of this provision is that the federal  structure
\nbased  on separation of powers is put out of action for\t the
\ntime  being.   Another\tpower  of a  similar  kind  is\tthat
\nconferred  by  Article 353 which says that during  the\ttime
\nthat  Proclamation of Emergency is in force.  the  executive
\npower  of the Union shall extend to the giving of  direction
\nto  any State as to the manner in which the executive  power
\nthereof\t is to be exercised.  This provision also  derogates
\nfrom  the  federal principle which forms the  basis  of\t the
\nConstitution.\t This  departure  from\tthe   constitutional
\nprinciple  of  federalism is permitted by  the\tConstitution
\nbecause of the extraordi-\n<\/p>\n
[1976] Supp.  S.C.R.  172.\n<\/p>\n
70<\/span><\/p>\n
nary  situation\t arising  out of  threat  to  the  continued
\nexistence of constitutional democratic Government.  Then  we
\ncome  to Article, 355 which enjoins a duty on the  Union  to
\nprotect every State against external aggression and internal
\ndisturbance and to ensure that the government of every State
\nis  carried  on\t in accordance with the\t provisions  of\t the
\nConstitution.\tArticle 356 contains provisions for  dealing
\nwith another kind of emergent situation arising from failure
\nof  constitutional  machinery in the States and, so  far  as
\nmaterial, reads as follows
\n\t      “356.  (1)  If the President on receipt  of  a
\n\t      report  from  the\t Governor  of  a  State\t  or
\n\t      otherwise,  is satisfied that a situation\t has
\n\t      arisen  in which the government of  the  State
\n\t      cannot  be carried on in accordance  with\t the
\n\t      provisions of this Constitution, the President
\n\t      way by Proclamation-\n<\/p>\n
\t      (a)   assume  to\thimself all or\tany  of\t the
\n\t      functions\t of the Government of the State\t and
\n\t      all  or  any  of\tthe  powers  vested  in\t  or
\n\t      exercisable  by  the Governor or any  body  or
\n\t      authority\t  in  the  State  other\t  than\t the
\n\t      Legislature of the State;\n<\/p>\n
\t      (b)   declare   that   the   powers   of\t the
\n\t      Legislature of the State shall be\t exercisable
\n\t      by or under the authority of Parliament,\n<\/p>\n
\t      (c)   make  such incidental and  consequential
\n\t      provisions  as appear to the President  to  be
\n\t      necessary or desirable for
\n\t      giving   effect\tto  the\t  objects   of\t the
\n\t      Proclamation,    including   provisions\t for
\n\t      suspending  in whole or in part the  operation
\n\t      of   any\tprovisions  of\t this\tConstitution
\n\t      relating\tto  any\t body or  authority  in\t the
\n\t      State;\n<\/p>\n
Provided  that\tnothing in this clause shall  authorise\t the
\nPresident  to assume to himself any of the powers vested  in
\nor exercisable by a High Court, or to suspend in whole or in
\npart  the  operation of any provision of  this\tConstitution
\nrelating to High Courts.\n<\/p>\n
\t      (2)Any such Proclamation may be revoked  or
\n\t      varied by a subsequent Proclamation.\n<\/p>\n
\t      (3)Every\tProclamation under  this  article
\n\t      shall be laid before each House of  Parliament
\n\t      and  shall, except where it is a\tProclamation
\n\t      revoking\ta  previous Proclamation,  cease  to
\n\t      operate at the expiration of two months unless
\n\t      before  the expiration of that period  it\t has
\n\t      been approved by resolutions of both Houses of
\n\t      Parliament:\n<\/p>\n
\t      (5)Notwithstanding    anything   in    this
\n\t      Constitution,   the   satisfaction   of\t the
\n\t      President\t mentioned  in clause (1)  shall  be
\n\t      final   and  conclusive  and  shall   not\t  be
\n\t      questioned in any court on any ground.”\n<\/p>\n
71<\/span><\/p>\n
Since some reliance was placed on behalf of the\t petitioners
\nin  the writ petitions on Article 357, clause (1), we  shall
\nreproduce the relevant part of that clause in these terms :\n<\/p>\n
\t      357. (1) Where by a Proclamation issued  under
\n\t      clause (1) of   article  356,  it\t  has\tbeen
\n\t      declared that the powers of the\t  Legislature
\n\t      of the State shall be exercisable by or  under
\n\t      the   authority  of  Parliament, it  shall  be
\n\t      competent-\n<\/p><\/blockquote>\n
\t      (c)  for the President to authorise the  House
\n\t      of  the People is not in\tsession\t expenditure
\n\t      from  the\t Consolidated  Fund  of\t the   State
\n\t      pending  the sanction of such  expenditure  by
\n\t      Parliament.”\n<\/p><\/blockquote>\n
Now  it\t is obvious on a plain natural construction  of\t the
\nlanguage. of Article 356, clause (1) that the President\t can
\ntake  action  under  this clause only if, on  receipt  of  a
\nreport\tmade by the Governor of a State or otherwise  he  is
\nsatisfied   that  a  situation\thas  arisen  in\t which\t the
\nGovernment  of the State cannot be carried on in  accordance
\nwith  the provisions of the Constitution.  The\tsatisfaction
\nof  the President that a situation has arisen in  which\t the
\ngovernment  of a State. cannot be carried on  in  accordance
\nwith  the  provision of” the- Constitution  is\ta  condition
\nprecedent  which must be fulfilled before the President\t can
\ntake action  under  Article 356, clause\t (1).\tWhen  this
\ncondition  precedent  is satisfied, the President  may\ttake
\naction under Article 356, clause (1) and exercise all or any
\nof  the powers specified in subclauses (a), (b) and  (c)  of
\nthat  clause.\tThe  exercise of these\tpowers\tplainly\t and
\nunmistakably  strikes at the root of the  federal  principle
\nbecause it vests the executive power of the state which,  in
\nthe  federal  structure\t set  up  by  the  Constitution,  is
\nexercisable  by the Governor with the aid and advice of\t his
\nCouncil\t of Ministers, in the President and takes  away\t the
\npowers\tof  the\t Legislature of the State  and\tthey  become
\nexercisable  by or under the authority of  Parliament.\t The
\nadministration\tof the State is for all purposes taken\tover
\nby  the President which means in effect and  substance-\t the
\nCentral Government since by reason of Article 74, clause (1)
\nand even otherwise, the President is bound by the advice  of
\nhis  Council of Ministers and the legislative power  of\t the
\nState is also transferred to the Parliament.  The  President
\ncan also dissolve the Legislative Assembly of  the  State,
\nbecause\t when  he assumes to himself all the powers  of\t the
\nGovernor under Article 356, clause (1) sub-clause (a) one of
\nthe powers assumed by him would be the power to dissolve the
\nLegislative  Assembly  under Article 174 (2) (b).   It\twill
\nthus be seen that Article 356, clause (1) authorises serious
\ninroad\tinto  the  principle of federalism  enacted  in\t the
\nConstitution   and  that  is  permitted\t because,   in\t the
\n‘subjective  satisfaction of the President, a situation\t has
\narisen\tin  which  the government of  the  State  cannot  be
\ncarried\t on  in\t accordance  with  the\tprovisions  of\t the
\nConstitution.  It is the duty of the Union under Article 355
\nto ensure that the government of the State is carried on  in
\naccordance  with  the provisions of the\t Constitution,\tand,
\ntherefore,  when  the President finds that a  situation\t has
\narisen\tin  which  the Government of  the  State  cannot  be
\ncarried on, he can act under Art. 356 Cl. (1) indeed it
\n72<\/span>
\nwould be his constitutional obligation to do so and put\t the
\nfederal\t mechanism  out of action so far as  that  State  is
\nconcerned.   This is indeed a very drastic power  which,  if
\nmisused\t  or   abused,\tcan   destroy\tthe   Constitutional
\nequilibrium  between  the  Union and  the  States and  its
\npotential for harm was recognised even by the  constitution-
\nmakers.\t  Dr.  Ambedkar\t pointed out  in  his  speech  while
\nwinding up the debate on this Article :\n<\/p>\n
\t      “I may say that I do not altogether deny that
\n\t      there is a possibility of these articles being
\n\t      abused or employed for political purposes. But
\n\t      the  objection  applies to every part  of\t the
\n\t      Constitutionwhich\t  gives\t power\tto   the
\n\t      Centre to over-ride the Provinces. In fact  I
\n\t      share   the   sentiments\t expressed   by\t  my
\n\t      honourable friend Mr. Gupta yesterday that the
\n\t      proper  thing we ought to expect is that\tsuch
\n\t      articles\twill never be called into  operation
\n\t      and that they would remain a dead letter.\t  If
\n\t      at all they are brought into operation, I hope
\n\t      the  President,  who  is\tendowed\t with  these
\n\t      powers,  will take proper\t precautions  before
\n\t      actually suspending the administration of\t the
\n\t      provinces.”\n<\/p><\/blockquote>\n
But despite the lurking danger in article, the constitution-
\nmakers\tthought\t that there was no alternative\tin  case  of
\nbreak  down  of constitutional machinery in the\t States\t and
\nhence  they  adopted  this  article,  even  though  it\t was
\nanalogous  to  the  hated section 93  which  disfigured\t the
\nGovernment of India Act, 1935 symbolising British  dominance
\nover  nationalist  aspirations.\t  The\tconstitution-makers,
\nconscious  as they were of the serious consequences  flowing
\nfrom  the exercise of this power, limited it by hedging\t its
\nexercise  with\tthe condition that the President  should  be
\nsatisfied that the Government of the State cannot be carried
\non in accordance with the provisions of the Constitution
\nNow, when On the satisfaction of the condition limiting\t the
\nexercise  of  the  power, a proclamation is  issued  by\t the
\nPresident  under Article 356, clause (1), it can be  revoked
\nor  varied  at any time by a Subsequent\t proclamation  under
\nclause\t(2) of Article 356.  Clause (3) of Article 356,\t Eke
\nclause (2) of Article 352, require& that every\tProclamation
\nissued\tunder Article 356, clause (1) shall be\tlaid  before
\neach  House of Parliament and it shall cease to\t operate  at
\nthe expiration of two months unless before the expiration of
\nthat  period,  it has been approved by\tresolution  of\tboth
\nHouses\tof  Parliament.\t The learned  counsel  appearing  on
\nbehalf\t of the petitioners in the writ\t petitions contended
\nthat it is clear from the provision enacted in Article\t356,
\nclause (3) that the exercise of power by the President under
\ncause  (1)  is\tsubject to the control\tof  both  Houses  of
\nParliament.  The Proclamation issued by the President  under
\nArticle\t 356, clause (1) would cease to be in force  at\t the
\nexpiration  of\ttwo  months unless it is  approved  by\tboth
\nHouses\tof  Parliament,\t and,  therefore,  no  irretrievable
\naction\tsuch as dissolution of the legislative\tAssembly  of
\nthe State can be taken by the President before the  approval
\nof  both  the Houses of Parliament is given to\tthe  Procla-
\nmation.\t  Otherwise  the  parliamentary\t control  would\t  be
\ndefeated and
\n73<\/span>
\nit would be possible for the Central Government to  present
\na fait accompli to the two Houses of Parliament and  neither
\nHouse would be able to remedy the mischief done, even if  it
\ndisapproved  the  Proclamation’ Moreover,  either  House  of
\nParliament  may disapprove the Proclamation even before\t the
\nexpiry\tof two months and where that happens, the  President
\nwould  be  bound  to revoke  the  Proclamation\timmediately,
\nbecause the proclamation cannot continue in defiance of, the
\nwill  of either House of Parliament “without destroying\t the
\ncollective responsibility of the Council of Ministers to the
\nHouse.\t “. It was also urged that during the period of\t two
\nmonths,\t no  power  can\t be  exercised\tin  virtue  of\t the
\nProclamation which would-bring about a final and irrevocable
\nconsequence,  if  the President has reason to  believe\tthat
\neither\tHouse of Parliament may not approve it, or also\t the
\ncontrol of both Houses of Parliament would be completely set
\nat   naught  and  the  executive  would\t be  able  to\ttake
\nirreversible  action  like dissolution\tof  the\t Legislative
\nAssembly  by passing both Houses of Parliament and  ignoring
\ntheir wishes altogether.  That would be plainly contrary  to
\nthe basic principles of democratic Government.\tReliance was
\nalso  placed on Article 357, Clause (1), sub-clause (c)\t and
\nit was pointed out that whereby a Proclamation issued  under
\nclause\t(1)  it\t has been declared that the  powers  of\t the
\nLegislature  of the State shall be exercisable by  or  under
\nthe  authority\tof  Parliament, no expenditure\tout  of\t the
\nConsolidated  Fund  of\tthe State can  be  incurred  without
\nappropriation made by Parliament, but when the House of\t the
\nPeople\tis  not\t in session, the President  can\t incur\tsuch
\nexpenditure pending sanction by Parliament.  This means that
\nif  the\t House of the People is in session at  the  time  of
\nissue  of the Proclamation or as soon as it assembles  after
\nthe   issue  of\t the  Proclamation,  the   President   would
\nimmediately  have  to  go  to  Parliament  for\tsanction  of
\nexpenditure  and  if  Parliament  does\tnot  sanction,\t the
\nexpenditure  would be unauthorised and the  President  would
\nnot  be\t able  to exercise his\tfunctions.   There  is\tthus
\neffective Parliamentary control over the President, that is,
\nthe  Central Government, through the purse and hence  during
\nthe  period  of two months, the President  cannot  take\t any
\naction involving expenditure out of the Consolidated Fund of
\nthe  State unless he is assured that such expenditure  would
\nbe sanctioned by Parliament.  The suggestion was chat  since
\nthe ruling party at the Centre has no majority in the  Rajya
\nSabha, the President cannot issue a Proclamation authorising
\nhim to discharge functions involving expenditure out of\t the
\nConsolidated  Fund of the State.  These arguments  urged  on
\nbehalf\tof the petitioners raise a question of\tconstruction
\nof clause (1) to (3) of Article 356.\n<\/p>\n
Now,  if  we look at the language of clauses (1) to  (3)  of
\nArticle 356 it is clear that once a Proclamation is  validly
\nissued\tby the President under clause (1), it has  immediate
\nforce and effect and its efficiency is not made\t dependent
\non  the approval of both Houses of Parliament.\tThere is  no
\nprovision  in’\tany clause of Article 356 or  in  any  other
\nArticle of the Constitution that the President shall have no
\npower  to issue a Proclamation under clause (1) when  either
\nor  both  Houses  of Parliament are-in\tsession.,  The\tonly
\nlimitation on the exercise of the power of the President  to
\nissue a proclamation is that he should be satisfied that the
\nGovernment of the State cannot be carried on
\n74<\/span>
\nin  accordance\twith  the provisions  of  the  Constitution.
\nWhere  the  President is so satisfied, and, as\tpointed\t out
\nabove,\tthe President means the Central Government,  he\t can
\nissue a\t proclamation even when either or both\tHouses\tof
\nParliament  are\t in session.  The President  is\t given\tthis
\npower because immediate action may have to be taken when  an
\nexceptional situation has arisen on account of break down of
\nconstitutional\tmachinery in the State.\t It is an  emergency
\npower  and  it has necessarily to be vested in\tthe  Central
\nGovernment  because  quick  and\t immediate  action  may\t  be
\nnecessary  to avert or combat constitutional break  down  in
\nthe  State and moreover a constitutional obligation is\tlaid
\non the Union to ensure, that the, Government of every  State
\nis  carried  on\t in accordance with the\t provisions  of\t the
\nConstitution.\t Any   delay  in  taking   action   may\t  in
\nconceiveable cases frustrate the very object and purpose  of
\nconferment  of this power on the President.  Promptness\t may
\nbe  the\t essence of effectiveness in such cases\t and  public
\ninterest  may  suffer  on account of  tardiness\t in  action.
\nHence  the  power conferred on the President  under  Article
\n356,  clause  (1) is not limited by the\t condition  that  it
\ncannot\tbe  exercised  when  either  or\t both  1-louses\t  of
\nParliament are in session.  Then again, clause (3) of  Arti-
\ncle 356 provides that a proclamation issued under clause (1)
\nshall  cease  to operate at the expiration  of\ttwo  months,
\nunless\tbefore\tthe expiration of that period  it  has\tbeen
\napproved by resolutions of both Houses of Parliament.\tThis
\nmeans that it shall continue to operate for a period of\t two
\nmonths,\t unless sooner revoked.\t It is only for the  purpose
\nof its extension beyond two months that the approval of both
\nHouses\tof Parliament is required by clause (3)\t of  Article\n<\/p>\n
356.   If no such approval is forthcoming  the\tproclamation
\ncannot\tcontinue  after the expiration of  two\tmonths,\t but
\nuntil  then  it certainly continues and has full  force\t and
\neffect.\t It may be noted that clause (3) of Article 356 does
\nnot  say  that the proclamation shall be operative  only  on
\napproval  by both Houses of Parliament, nor does it  provide
\nthat it shall cease to operate even before the expiry of two
\nmonths, if disapproved by either House of Parliament, it  is
\ninteresting to compare the language of Clause (3) of Article
\n356   with  that  of  Article,\t123.  clause  (2)  in\tthis
\nconnection,  Article  123, clause (1) confers power  on\t the
\nPresident  to  promulgate  an  ordinance  during  recess  of
\nParliament  when  be is satisfied that\tcircumstances  exist
\nwhich  render it necessary for him to take immediate  action
\nand clause (2) of that Article provides that such  ordinance
\n“shall cease to operate at the expiration of six weeks\tfrom
\nthe reassembly of Parliament, or if before the expiration of
\nthat  period resolutions disapproving it are passed by\tboth
\nHouses,\t  upon\t the  passing  of  the\t second\t  of   those
\nresolutions”.  The ordinance would continue to operate until
\nthe   expiration  of  six  weeks  from\tthe  reassembly\t  of
\nParliament  unless before that date is disapproved  by\tboth
\nHouses\tof  Parliament.\t But when we come to clause  (3)  of
\nArticle\t 356, we find that a different scheme in  regard  to
\nthe  life  of  a proclamation issued  under  clause  (1)  is
\nadopted in that clause.\t Clause (3) of Article 356 does\t not
\nconfer power,,on the two Houses of Parliament to put an\t end
\nto the proclamation by disapproval before the expiration  of
\nthe  Period of two months and it is only if the life of\t the
\nproclamation  is  to he extended beyond the  period  of\t two
\nmonths that is required to be approved by both
\n75<\/span>
\nHouses\t of  Parliament,  it  is,  therefore,\tclear\tthat
\ndisapproval by the either House of the Parliament before the
\nexpiration of two months has no constitutional relevance  to
\nthe  life  of the Proclamation and  the\t proclamation  would
\ncontinue  in force for a period of two months ,despite\tsuch
\ndisapproval.\n<\/p>\n
It  would  be  clear  from  this  discussion  that  when   a
\nproclamation  is  validly  issued  by  the  President  under
\nArticle 356, clause (1), it has immediate force and  effect,
\nthe moment it is issued and where, by the proclamation,\t the
\nPresident has assumed to himself the powers of the  Governor
\nunder  sub-clause  (a),\t he is entitled\t to  exercise  those
\npowers as fully and effectually as the Governor, during\t the
\nperiod of two months when the Proclamation is in  operation.
\nThere  is  no  limitation  imposed by  any  Article  of\t the
\nConstitution  that  these  powers ,of the  Governor  can  be
\nexercised   by\tthe  President\tonly  when  they   have\t  no
\nirreversible   consequence   and  where\t  they\t have\tsuch
\nconsequence, they cannot be exercised until the proclamation
\nis  approved  by  both Houses  of  Parliament.\t Whilst\t the
\nproclamation  is in force during the period of\ttwo  months,
\nthe, President can exercise all the powers of the  Governor
\nassumed\t by  him and the Court cannot read  any\t limitation
\nwhich  would have the effect of cutting down the  width\t and
\namplitude of such powers by confining their exercise only to
\nthose cases where no irretrievable consequence would  ensure
\nwhich  would  be  beyond  repair.  When\t any  power  of\t the
\nGovernor is assumed by the President under the Proclamation,
\nthe   President\t can,  during  the  two\t months\t  when\t the
\nproclamation is in force, do, whatever the Governor could in
\nexercise  of such power, and it would be immaterial  whether
\nthe  consequence  of  exercise of such power  is  final\t and
\nirrevocable  or not.  To hold otherwise would be, to  refuse
\nto give full effect to the proclamation which as pointed out
\nabove,\tcontinues  to  operate with full  force\t and  vigour
\nduring\tthe  period of two months.  It\twould  be  rewriting
\nArticle 356 and making approval of both Houses of Parliament
\na  condition  precedent\t to the coming\tinto  force  of\t the
\nproclamation  so far as the particular power  is  concerned.
\nNow  one of the powers of the Governor which can be  assumed
\nby  the\t President under the proclamation is  the  power  to
\ndissolve  the Legislative Assembly ,of the State under\tArt.
\n174(2)\t(b) and, therefore, the President also can  dissolve
\nthe  Legislative  Assembly  during the time  that  the\tpro-
\nclamation  is  in  force.  It is difficult to  see  bow\t the
\nexercise  of  this  power  by  the  President  can  be\tmade
\nconditional  on the approval of the proclamation by the\t two
\nHouses\tof Parliament.\tIf the proclamation has\t full  force
\nand  effect  during the period of two  months  even  without
\napproval  by  the two Houses of\t Parliament,  the  President
\ncertainly can exercise the power of the Governor to dissolve
\nthe  Legislative Assembly of the State without\twaiting\t for
\nthe   approval\tof  the\t proclamation  by  both\t Houses\t  of
\nParliament.   It is true that once the Legislative  Assembly
\nis  dissolved  by  the President in exercise  of  the  power
\nassumed\t  by  him  under  the  proclamation,  it  would\t  be
\nimpossible   to\t  restore  the\tstatus\tquo  ante   if\t the
\nproclamation  is not approved by both Houses of\t Parliament,
\nbut  that  is the inevitable consequence  flowing  from\t the
\nexercise,  of  the  power which\t the  President\t undoubtedly
\nPossesses during the time that the Proclamation is in force.
\nThis  is  clearly  a  necessary\t power\tbecause\t there\t may
\nconceivably be
\n6–722SCI\/77
\n76<\/span>
\ncases where the exercise of the power of dissolution of\t the
\nLegislative  Assembly  may  become imperative  in  order  to
\nremedy the situation arising on account of break down of the
\nconstitutional\tmachinery  in  the  State  and\tfailure\t  to
\nexercise this power promptly may frustrate the basic  object
\nand  purpose of a proclamation………. under Article\t356,
\nclause (1).  It is, therefore, not possible to accede to the
\nargument  of  the petitioners, in the  writ  petitions\tthat
\nduring\tthe  period  of two months before  approval  of\t the
\nproclamation   by   the\t two  Houses   of   Parliament,\t  no
\nirreversible action, such as dissolution of the\t Legislative
\nassembly  of the State, can be taken by the President.\t The
\npower  to  dissolve the Legislative Assembly  of  the  State
\ncannot\talso be denied to the President on the\tground\tthat
\nthe  proclamation  may not be approved by one or  the  other
\nHouse of Parliament.  In the first place, the existence of a
\nconstitutional power or the validity of its exercise  cannot
\nbe  determined by reference to a possible contingency.\t The
\nCourt  cannot enter the realm of conjecture and surmise\t and
\nspeculate as to what would be the position at the expiration
\nof  two months whether the proclamation will be approved  by
\nboth Houses of Parliament or not.  Secondly, it is  entirely
\nimmaterial  whether or not the proclamation is\tapproved  by
\nboth  Houses  of Parliament, because even if it\t is  not  so
\napproved, it would continue to be in full force, and  effect
\nfor  a period of two months, unless sooner revoked.   It  is
\nalso  difficult to appreciate how Article 357,\tclause\t(1),
\nsubclause  (c)\tcan  possibly assist  the  argument  of\t the
\npetitioners.   That sub-clause provides that when the  House
\nof the People is not in session, the President can authorise
\nexpenditure  out  of  the Consolidated\tFund  of  the  State
\npending\t receipt  of  sanction of such\texpenditure  by\t the
\nParliament   and  consequently,\t it  is\t possible  that\t  if
\nParliament  does  not  sanction\t such  expenditure,  serious
\ndifficulty  might arise.  But that is merely  a\t theoretical
\npossibility  which  in practical reality of  politics  would
\nhardly arise and it need not deflect us from placing on\t the
\nlanguage  of  Article 356 the  only  correct  interpretation
\nwhich  its  language  bears.  When the\tPresident  issues  a
\nproclamation  on  the advice of the Central  Government,  it
\nstands\tto reason that the House of the People in which\t the
\nCentral\t  Government   enjoys\tmajority   would    sanction
\nexpenditure  out of the Consolidated Fund of the State.\t  We
\nare,  therefore, of the view that even during the period  of
\ntwo  months,  without the approval of the  proclamation\t by,
\nboth  Houses of Parliament, the President can  dissolve\t the
\nLegislative  Assembly of the State in exercise of the  power
\nof  the\t Governor under Article 174(2) (b)  assumed  by\t him
\nunder the proclamation.\n<\/p>\n
This is the correct constitutional interpretation of  clause
\n(1)  and (3) of Article 356 guided by the language of  these
\nclauses and the context and setting in which they occur.  It
\nmight  appear  at  first  blush\t that  this   constitutional
\ninterpretation would completely eliminate the  Parliamentary
\ncentral\t over  the issue of proclamation  and  exercise\t of
\npowers under it and the Central Government would be free  to
\ntake  over the administration of the State and\tparalyse  or
\neven  dissolve the Legislative Assembly, even if  it  should
\nappear\tthat one or the other House of Parliament might\t not
\napprove it.  But ‘this apprehension
\n77<\/span>
\nneed not cause any undue anxiety, for it is based  primarily
\non  the\t possibility of abuse of the Power  conferred  under
\nArticle 356, clause (1).  It must be remembered that  merely
\nbecause\t power may sometime be abused, it is no\t ground\t for
\ndenying\t the existence of the power.  The wisdom of man\t has
\nnot  yet  been able to conceive of a government\t with  power
\nsufficient  to\tanswer all its legitimate needs and  at\t the
\nsame  time incapable of mischief.  In the last\tanalysis,  a
\ngreat deal must depend on the wisdom and honesty,  integrity
\nand  character of those who are in charge of  administration
\nand  the existence of enlightened and alert public  opinion.
\nMoreover,  it  is  apparent  that  a  piquant  situation  of
\nconsiderable complexity and extra-ordinary consequences\t may
\narise  if  either  House of Parliament\tdisapproves  of\t the
\nproclamation and, therefore, political and pragmatic  wisdom
\nof  the highest order and circumspection of  utmost  anxiety
\nwould  necessarily  inform  the\t Central  Government  before
\nexercising  the\t weighty  power conferred  by  Article\t356,
\nclause\t(1).  Further more, it must be remembered  that\t the
\nprinciple  of cabinet responsibility to Parliament  lies  at
\nthe  core of our democratic structure of Government and\t the
\nCentral\t Government  is accountable for all its\t actions  to
\nParliament which consists of elected representatives of\t the
\npeople and if any action is taken by the Central  Government
\nwhich  is  improper  or unjustified  by\t moral,\t ethical  or
\npolitical  norms,  Parliament would certainly  be  there  to
\nbring  them  to book.  The Political  control  exercised  by
\nParliament would always be a salutary check against improper
\nexercise  of power or its misuse or abuse by the  executive.
\nAnd  lastly the powers conferred on the President, that\t is,
\nthe Central Government, being a limited power, its  exercise
\nwould,\twithin\tthe  narrow minimal  area,  which  we  shall
\nindicate  later,  be  subject to  judicial  review  ability.
\nThese  are the safeguards which must alley the\tapprehension
\nthat   the   Central  Government  may  act  want   only\t  or
\ncapriciously  in issuing a proclamation under  Article\t356,
\nclause\t(1)  by\t passing  and ignoring\tthe  two  Houses  of
\nParliament.\n<\/p>\n
That  takes us to the next question whether  any  injunction
\ncan  be\t granted against the Union of India  restraining  it
\nfrom  issuing a proclamation and dissolving the\t Legislative
\nAssemblies  of the States under Art. 356, cl. (1), for\tthat
\nis  the primary relief claimed by the States in\t the  suits.
\nThis  question\thas  been argued on a  demurrer\t as  if\t the
\naverments  made\t in  the plaints  were\tcorrect.   We  shall
\npresently  consider this question, but before that,  we\t may
\ndispose\t of  a\tshort  point in\t regard\t to  what  has\tbeen
\ndescribed  as  a  ‘directive’  by  Shri\t Charan\t Singh\tHome
\nMinister  to the Central Government, to the Chief  Ministers
\nof the States concerned in the, suits (hereinafter  referred
\nto  as the Plaintiff States).  Each of the plaintiff  states
\nhas sought a declaration that the ‘directive’ of Shri Charan
\nSingh  is  ‘Unconstitutional, illegal and  ultra  vires\t the
\nConstitution”  and  an injunction restraining the  Union  of
\nIndia  from giving effect to this ‘directive’.\tWe  fail  to
\nsee how such declaration or injunction can be granted by the
\nCourt.\tThe ‘directive’ of Shri Charan Singh is nothing\t but
\nan  advice  or\tsuggestion to the  Chief  Minister  of\teach
\nplaintiff State to recommend to the Governor dissolution  of
\nthe  Legislative  Assembly of the concerned State.   It\t has
\nbeen  wrongly  described  as  a\t ‘directive’.\tIt  has\t  no
\nconstitutional\tauthority behind it.  It is always  open  to
\nthe Home
\n78<\/span>
\nMinister  of  the  Central  Government\tto  give  advice  or
\nsuggestion  to the Chief Minister of a State and  the  Chief
\nMinister  may  accept or reject such  advice  or  suggestion
\naccording as he thinks fit.  The advice or suggestion has no
\nbinding\t  effect  on  the  Chief  Minister  and\t  no   legal
\nconsequence  flow from it.  Hence it is not possible to\t say
\nthat  the  ‘directive’\tissued\tby  Shri  Charan  Singh\t was
\nunconstitutional, illegal or ultra vires.  There is also no,
\nquestion  of  giving  effect  to  the  ‘directive’  and\t  no
\ninjunction  can,  therefore,  be  granted  restraining\t its
\nimplementation.\t  The  ‘directive’,  if\t not  accepted\t and
\ncarried\t but would certainly be a precursor to action  under
\nArt.  356,  cl.\t (1)  and, therefore,  may  be\tregarded  as
\nindicative of a threat, but standing- by itself, it does not
\ngive  rise  to\tany  cause  of\taction\tin  the\t State\t for
\ndeclaration  or\t injunction.  Turning to the  relief  sought
\nagainst the threatened exercise of power under Art. 356, cl.
\n(1)  we\t find  that what is prayed for\tin  this  relief  is
\n‘permanent injunction restraining the defendent from  taking
\nrecourse under Art. 356 of the Constitution of India to
\ndissolve    the\t  Legislative\tAssembly   of\tthe    State
\nand  from taking any steps from holding fresh  elections  to
\nthe  State  Assembly  before  March,  1978.”  It  is  indeed
\ndifficult  to  appreciate,  how such  a\t wide  and  sweeping
\ninjunction  can\t be granted by this  Court  restraining\t the
\nUnion  of India from exercising altogether its powers  under
\nArt. 356, cl. (1).  How can the Union of India be  prevented
\nby   this   Court  from\t  discharging\tits   constitutional
\nobligations to the State.  We have already pointed out\tthat
\nthere  is  a constitutional duty enjoined on  the  Union  of
\nIndia  to  ensure  that the Government\tof  every  State  is
\ncarried\t on  in\t accordance  with  the\tprovisions  of\t the
\nConstitution   and   there  is\tequally\t  a   constitutional
\nobligation on the President that is, the Central Government,
\nto, take action under Art. 356, Cl. (1), if he finds that  a
\nsituation  has\tarisen\twhere the Government  of  the  State
\ncannot\tbe carried on in accordance with the  provisions  of
\nthe  Constitution.   Can this Court issue  a  blanket  order
\nagainst\t the Union of India that whatever be  the  situation
\nwhich  may develop in the State and howsoever  necessary  it
\nmay become to exercise the power under Art. 356 cl. (1), the
\nUnion  of  India shall not take recourse, to that  power  to
\ndissolve  the  Legislative Assembly of the  State  and\thold
\nfresh  elections, to the State Legislative  Assembly  before
\nMarch,\t1978.  That would clearly obstruct its discharge  of
\nthe constitutional obligations by the Central Government and
\nno  such injunction can be issued by this Court.   Realising
\nthis difficulty in their way, the plaintiff-States sought to
\nlimit  the relief of injunction by confining it only to\t the
\nground\tset out in the ‘directive’ of Shri Charan Singh\t and
\nin the statement made by Shri Shanti Bhushan, Law  Minister,
\nat a talk on the All India Radio given by him.\tThat ground,
\naccording  to  the  plaintiff-States,  was  that  since\t the
\nCongress which was the ruling party in these States suffered
\na  massive defeat at the General Elections to the Lok  Sabha
\nheld  in  March 1977, the Legislative  Assemblies  of  these
\nStates\tno  longer  reflected the wishes  or  views  of\t the
\nelectorate  and\t hence\ta  fresh  appeal  to  the  political
\nsovereign  had\tbecome\tnecessary  and\tobligatory  and\t the
\nLegislative Assemblies of these States should, therefore, be
\ndissolved with a view to obtaining a fresh mandate from\t the
\nelectorate.   It was contended on behalf of  the  Plaintiff-
\nStates\tthat  this  was the only  ground  on  which  Central
\nGovernment  proposed to take action under Art. 356, cl.\t (1)
\nand since this ground was wholly extraneous and
\n79<\/span>
\nirrelevant  to the basic condition for taking  action  under
\nArt.   356,   cl.   (1),   the\t Central   Government\t was
\nconstitutionally  not  entitled to take. action\t under\tthis
\nclause\tand  if any such action were taken  by\tthe  Central
\nGovernment,   it  would\t be  outside  the  limits   of\t its
\nconstitutional authority.  The learned Additional  Solicitor
\nGeneral\t combated  this\t contention  by\t giving\t a  two-fold
\nanswer.\t First, he contended that it was not correct to\t say
\nthat  the points of view expressed by Shri Charan Singh\t and
\nShri Shanti Bhushan constituted the only material or  ground
\nfor  the possible action under Art. 356, cl. (1). He  urged
\nthat the points of view of these two ministers could not  be
\nequated with the advice which the Council of Ministers might
\ngive  to the President under Art. 74, cl. (1) in  regard  to
\nthe  dissolution  of  the  Legislative\tAssemblies  of\t the
\nPlaintiff-States.  The exercise of power under Art. 356, cl.
\n(1),  it  was said, depends on a wide range,  of  situations
\ndepending  upon varied and diverse considerations and it  is
\nnot possible to say what grounds might ultimately weigh with
\nthe  Council  of  Ministers in giving their  advice  to\t the
\nPresident under Art. 74, cl. (1).  Secondly he urged that in
\nany event the ground that the, Legislative Assemblies of the
\nPlaintiff-States  had  ceased  to reflect the  will  of\t the
\nelectorate and, therefore, in order to ascertain the will of
\nthe  people, and give effect to it, it was appropriate\tthat
\nthe Legislative Assemblies should be dissolved and  election
\nshould be held, was a ground which had reasonable nexus with
\nthe basic condition for invoking the exercise of power under
\nArt.  356,  cl.\t (1) and it was a  legitimate  and  relevant
\nground which could be taken into account in arriving at\t the
\nsatisfaction  that  the Government of the  State  cannot  be
\ncarried\t on  in accordance with the provisions of  the\tCon-
\nstitution.  These were the rival contentions of the  parties
\nwhich we must now proceed to consider.\n<\/p>\n
But  before we do so, we must at the threshold refer to\t one
\nother  argument of the learned Additional Solicitor  General
\nwhich  sought  to exclude the jurisdiction of the  Court  in
\nrelation to a question of this kind.  He contended that\t the
\nquestion  whether  in. a particular State  a  situation\t has
\narisen\twhere the Government of the State cannot be  carried
\non  in\taccordance with the provisions of  the\tConstitution
\nand,  therefore. action should be taken under Art. 356,\t cl.
\n(1)  is\t essentially a political question entrusted  by\t the
\nConstitution  to the Union executive and on that account  it
\nis  not justiciable before the Court.  He urged that  having
\nregard\tto  the political nature of the problem, it  is\t not
\namenable to judicial determination and hence the Court\tmust
\nabstain\t from  inquiring into, it.  We do not think  we\t can
\naccept\tthis  argument.\t  Of course, it is true\t that  if  a
\nquestion  brought  before the Court is\tpurely\ta  political
\nquestion  not involving determination of any legal  or\tcon-
\nstitutional  right  or\tobligation,  the  Court\t would\t not
\nentertain  it,\tsince  the  Court  is  concerned  only\twith
\nadjudication  of legal rights and liabilities.\t But  merely
\nbecause\t a  question  has a political  complexion,  that  by
\nitself\tis  no\tground\twhy the\t Court\tshould\tshrink\tfrom
\nperforming  its duty under the Constitution if it raises  an
\nissue of constitutional determination.\tEvery constitutional
\nquestion   concerns   the   allocation\t and   exercise\t  of
\ngovernmental  power  and  no  constitutional  question\tcan,
\ntherefore, fail to be political.  A constitution is a matter
\nof purest politics, a structure of power and as pointed\t out
\nby Charles Black in
\n80<\/span>
\nPerspectives  in  Constitutional law’  “constitutional\tlaw’
\nsymbolizes  an\tintersection of law  and  politics,  wherein
\nissues of political power are acted on by persons trained in
\nthe  legal  tradition,\tworking\t in  judicial  institutions,
\nfollowing the procedures of law, thinking as lawyers think”.
\nIt was pointed out by Mr. Justice Brennan in the Opinion  of
\nthe  Court  delivered by him in Baker v. Carr,(1)  an  apoch
\nmaking\tdecision  in American constitutional  history,\tthat
\n“the  mere  fact  that\tthe  suit  seeks  protection,  of  a
\npolitical  right does not mean that it presents a  political
\nquestion.”  This was put in more emphatic terms in Nixon  v.
\nHerndon(2) by saying that such an objection “is little\tmore
\nthan  a play upon words”.  The, decision in Baker  v.  Carr,
\n(Supra)\t was  indeed  a striking advance  in  the  field  of
\nconstitutional law in the United States.  Even before  Baker
\nv. Carr., the courts in the United States were dealing\twith
\na  host of questions ‘political’ in ordinary  comprehension.
\nEven  the  desegregation decision of the  Supreme  Court  in
\nBrown  v.  Board  of Education(3) had  a  clearly  political
\ncomplexion.  The Supreme Court also entertained questions in
\nregard\tto  the\t political  right  of  voting  and  felt  no
\nhesitation about relieving against racial discrimination  in
\nvoting\tand in Gomillion v. Lightfoot(4), it did  this\teven
\nwhen the racial discrimination was covert, being achieved by
\nso  redrawing a municipal boundary as to  exclude  virtually
\nall Negroes, and no whites, from the city franchise.  It  is
\ntrue that in Colegrove v. Green(5) the Supreme Court refused
\nrelief\tagainst\t Congressional\tdistricting  inequities\t  in
\nillinois,  but only three out of seven Justices who  sat  in
\nthat case based their decision on the ground that the  ques-
\ntion presented before them was political and non-justiciable
\nand  this view was in effect and substance reversed  by\t the
\nSupreme Court in Baker v. Carr.\t The Supreme Court in  Baker
\nv.  Carr,  held\t that it was within the\t competence  of\t the
\nfederal Courts to entertain an action challenging a  statute
\napportioning legislative districts as contrary to the  equal
\nprotection clause.  This case clearly decided a\t controversy
\nwhich  was political in character, namely,  apportioning  of
\nlegislative districts but it did so because a constitutional
\nquestion-of  violation\tof the equal protection\t clause\t was
\ndirectly   involved  and  that\tquestion  was  plainly\t and
\nindubitably   within  the  jurisdiction\t of  the  Court\t  to
\ndecide.It  will,  therefore,be seen that  merely  because  a
\nquestion  has a political colour, the Court cannot fold\t its
\nhands in despair and declare as a question arises whether an
\nauthority under the constitution has acted within the limits
\nof its power or exceeded it, it can certainly be  decided by
\nthe Court.  Indeed it would be its constitutional obligation
\nto do so.  It is necessary to assert in the clearest  terms,
\nparticularly  in  the context of recent\t history,  that\t the
\nConstitution is Suprema lex, the paramount law of the  land,
\nand there is no department or branch of government above  or
\nbeyond\tit.  Every organ of government, be it the  executive
\nor  the legislature or the judiciary, derives its  authority
\nfrom the Constitution and it has to act
\n(1)  369 U.S. 186.\n<\/p>\n
(2)  273 U.S. 536.\n<\/p>\n
(3)  347 U.S. 483.\n<\/p>\n
(4)  364 U.S. 339.\n<\/p>\n
(5 ) 328 U.S. 549.\n<\/p>\n
81<\/span><\/p>\n
within the limits of its authority.  No one howsoever highly
\nplaced\tand no authority howsoever lofty can claim  that  it
\nshall be the sole judge of the extent of its power under the
\nConstitution or whether its action is within the confines of
\nsuch  power laid down the Constitution.\t This Court  is\t the
\nultimate  interpreter of the Constitution and to this  Court
\nis  assigned  the delicate task of determining what  is\t the
\npower conferred on each branch of government, whether it  is
\nlimited,  and  if so, what are the limits  and\twhether\t any
\naction\tof that branch transgresses such limits.  It is\t for
\nthis  Court  to\t uphold the ,constitutional  values  and  to
\nenforce the constitutional limitations.\t That is the essence
\nof  the\t rule  of law.\tTo quote the words  of\tMr.  Justice
\nBrennan in Baker v. Carr, “Deciding whether a matter has  in
\nany  measure been committed by the Constitution\t to  another
\nbranch\tof government or whether the action of that  branch
\nexceeds\t whatever authority has been committed, is itself  a
\ndelicate exercise in constitutional interpretation and is  a
\nresponsibility of this Court as ultimate interpreter of\t the
\nConstitution”.\t Where\tthere  is  manifestly\tunauthorised
\nexercise of power under the Constitution, it is the duty  of
\nthe Court to intervene.\t Let it not be forgotten, that\tto
\nthis  Court as much as to other branches of  government,  is
\ncommitted  the\tconservation and furtherance  of  democratic
\nvalues.\t The Court’s task is to identify those values in the
\nconstitutional plan and to work them into life in the  cases
\nthat  reach  the Court.\t “Tact and wise restraint  ought  to
\ntamper\t any  power  but  courage  and\tthe  acceptance\t  of
\nresponsibility have their place too”.  The Court cannot\t and
\nshould\tnot shirk this responsibility, because it has  sworn
\nthe  oath  of  alligance to the\t Constitution  and  is\talso
\naccountable to the people of this Country.  There are indeed
\nnumerous decisions of this Court where constitutional issues
\nhave  been adjudicated upon though enmeshed in questions  of
\nreligious  tenets, social practices, economic doctrines\t or
\neducational   policies.\t  The  Court  has  in  these   cases
\nadjudicated  not  upon the social, religious,  economic\t ,or
\nother  issues,\tbut solely on the  constitutional  questions
\nbrought\t before it and in doing so, the Court has  not\tbeen
\ndeterred by the fact that these constitutional questions may
\nhave such other overtones or facets.  We cannot,  therefore,
\ndecline\t to  examine  whether there  is\t any  constitutional
\nviolation involved in the President doing what he  threatens
\nto  do,\t merely on the facile ground that  the\tquestion  is
\npolitical in tone, colour or complexion.\n<\/p>\n
But  when  we  say  this, we must make\tit  clear  that\t the
\nconstitutional\tjurisdiction of this Court is confined\tonly
\nto  saying whether the limits on the power conferred by\t the
\nConstitution have been observed or there is transgression of
\nsuch  limits.\tHere  the only limit on\t the  Power  of\t the
\nPresident  under  Art. 356, cl. (1) is\tthat  the  President
\nshould\tbe satisfied that a situation has arisen  where\t the
\nGovernment  of the State cannot be carried on in  accordance
\nwith the provisions of the Constitution.  The  satisfaction
\nof  the President is a subjective one and ,cannot be  tested
\nby reference to any objective tests.  It is deliberately and
\nadvisedly subjective because the matter in respect to  which
\nhe is to be satisfied is of such a nature that its  decision
\nmust  necessarily  be  left  to\t the  executive\t branch\t  of
\nGovernment.   There may be a wide range of situations  which
\nmay arise and their political implications and consequences
\nmay have to be evaluated in order to decide whether
\n82<\/span>
\nthe  situation\tis  such that the Government  of  the  State
\ncannot\tbe carried on in accordance with the  provisions  of
\nthe  Constitution.  It is not a decision which can be  based
\non what the Supreme Court of United States has described  as
\n“judicially discoverable and manageable standards.” It would
\nlargely\t be  a\tpolitical judgment based  on  assessment  of
\ndiverse\t and  varied  factors,\tfast  changing\t situations,
\npotential  consequences,  public reaction,  motivations\t and
\nresponses   of\tdifferent  classes  of\tpeople\t and   their
\nanticipated   future   behaviour  and  a   host\t  of   other
\nconsiderations, in the light of experience of public affairs
\nand  pragmatic\tmanagement  of\tcomplex\t and  often  curious
\nadjustments  that  go to make up  the  highly  sophisticated
\nmechanism  of  a modern democratic government.\t It  cannot,
\ntherefore,  by its very nature be a fit subject\t matter\t for
\njudicial   determination  and  hence  it  is  left  to\t the
\nsubjective  satisfaction of the Central Government which  is
\nbest  in a position to decide it.  The Court cannot  in\t the
\ncircumstances,\tgo  into  the  question\t of  correctness  or
\nadequacy  of  the  facts  and  circumstances  on  which\t the
\nsatisfaction of the Central Government is based.  That would
\nbe  a dangerous exercise for the Court, both because  it  is
\nnot a fit instrument for determining a question of this kind
\nand also because the Court would thereby usurp the  function
\nof  the\t Central  Government  and in  doing  so,  enter\t the
\n‘Political thicket’, which it must avoid if it is to  retain
\nits  legitimacy\t with the people.  In fact it would  not  be
\npossible  for  the Court to undertake this  exercise,  apart
\nfrom total lack of jurisdiction to do so, since by reason of
\nArt.  74  cl. (2), the question whether any and if  so\twhat
\nadvice was tendered by the Ministers to the President cannot
\nbe  enquired  into by the Court, and  moreover,\t “the  steps
\ntaken  by  the\tresponsible Government\tmay  be\t founded  on
\ninformation  and  apprehensions which are not known  to\t and
\ncannot\talways be made, known to, those who seek  to  impugn
\nwhat  has been done.,’ (Vide Ningkan v. Government of  Malay
\nsica (1).  But one thing is certain that if the satisfaction
\nis mala fide or is based on wholly extraneous and irrelevant
\ngrounds,  the Court would have jurisdiction to\texamine\t it,
\nbecause\t in that case there would be no satisfaction of\t the
\nPresident in regard to the matter which he is required to be
\nsatisfied.  The satisfaction of the President is a condition
\nprecedent  to the exercise of power under Art. 356, cl.\t (1)
\nand if it can be shown that there is no satisfaction of\t the
\nPresident  at  all,  the  exercise of  the  power  would  be
\nconstitutionally invalid.  Of course by reason of cl. (5) of
\nArt.  356,  the satisfaction of the President is  final\t and
\nconclusive  and\t cannot be assailed on any ground  but\tthis
\nimmunity from attack cannot apply where the challenge is not
\nthat  the satisfaction is improper or unjustified, but\tthat
\nthere is, no satisfaction at all.  In such a case it is\t not
\nthe  satisfaction  arrived  at by  the\tPresident  which  is
\nchallenged,  but the existence of the  satisfaction  itself.
\nTake,  for  example, a case where the  President  gives\t the
\nreason\tfor taking action under Art. 356, cl. (1)  and\tsays
\nthat he is doing so, because the Chief Minister of the State
\nis below five feet in height and, therefore, in his  opinion
\na  situation  has arisen where the Government of  the  State
\ncannot\tbe carried on in accordance with the  provisions  of
\nthe  Constitution.   Can the so called satisfaction  of\t the
\nPresident  in  such a case not be challenged on\t the  ground
\nthat it is absurd or perverse or mala fide or based on
\n(1)  [1970] A.C. 379.\n<\/p>\n
83<\/span><\/p>\n
a wholly extraneous and irrelevant ground and is, therefore,
\nno satisfaction at all.\t It must of course be concerned that
\nin  most cases it would be difficult, if not impossible,  to
\nchallenge  the\texercise of power under Art. 356, cl.  (1  )
\neven   on  this\t limited  ground,  because  the\t facts\t and
\ncircumstances  on which the satisfaction is based would\t not
\nbe  known,  but where it is possible, the existence  of\t the
\nsatisfaction can always be challenged on the ground that  it
\nis  mala fide or based on wholly extraneous  and  irrelevant
\ngrounds.  This proposition derives support from the decision
\nof  the\t Judicial  Committee of the Privy  Council  in\tKing
\nEmperor\t v. Banwari Lal Sarma(1) where Viscount Simon,\tL.C.
\nagreed that the Governor General in declaring that emergency
\nexists\tmust  act  bona\t fide and  in  accordance  with\t his
\nstatutory powers.  This is the narrow minimal area in  which
\nthe exercise of power under Art. 356, cl. (1) is subject  to
\njudicial  review and apart from it, it cannot rest with\t the
\nCourt  to challenge the satisfaction of the  President\tthat
\nthe situation contemplated in that clause exists.
\nLet  us now turn to the facts and examine them in the  light
\nof  the principle discussed.  It would seem from  the  above
\ndiscussion  that if it can be established affirmatively\t (1)
\nthat  the proposed action of the President under  Art.\t356,
\nCl.  (1)  would\t be  based only\t on  the  (,round  that\t the
\nLegislative  Assemblies of the Plaintiff-States have  ceased
\nto  reflect  the  will of the electorate  and  they  should,
\ntherefore, be dissolved with a view to giving an opportunity
\nto  the people to elect their true representatives  and\t (2)
\nthat this ground is wholly extraneous and irrelevant to\t the
\nquestion which the President has to consider for the purpose
\nof  arriving at the requisite satisfaction,  the  Plaintiff-
\nStates might have a case for injunction against the Union of
\nIndia.\t But  we  are  afraid  that  neither  of  these\t two
\npropositions  can be said to be established in\tthe  present
\nsuits.\n<\/p>\n
Re  :  Proposition 1 : It is not possible to accede  to\t the
\nargument  of the Plaintiff-StaLes that the ground  that\t the
\nLegislative Assemblies of the Plaintiff-States have lost the
\nmandate of the people and no longer reflect the will of\t the
\nelectorate  is the only ground on which the President  would
\nact,  in  case he decides to exercise the power\t under\tArt.
\n356, Cl. (1), which, subsequent to, the making of our  order
\non  29th April, 1977, he has in fact done.  It is true\tthat
\nthis  ground is mentioned in the ‘directive’ of Shri  Charan
\nSingh and the statement of Shri Shanti Bhushan, but it would
\nbe  hazardous  in the extreme to proceed on  the  assumption
\nthat  this  would be the only ground before the\t Council  of
\nMinisters  when it considers whether or not to\ttake  action
\nunder Art. 356, Cl. (1).  There may be other grounds  before
\nthe Council of Ministers which may not have been articulated
\nby  Shri Charan Singh and Shri Shanti Bhushan.\tIt  is\talso
\npossible  that in a rapidly changing situation, new  grounds
\nmay  emerge by the time the Council of\tMinisters  considers
\nthe  question and these grounds may persuade the Council  of
\nMinisters to decide to take action under Art. 356, Cl.\t(1).
\nThe Court cannot equate the points of view expressed by Shri
\nCharan Singh and Shri Shanti Bhushan with the advice of\t the
\nCouncil of Ministers nor can the Court speculate as to\twhat
\nwould be
\n(1)  72 I.A. 57.\n<\/p>\n
84<\/span><\/p>\n
the grounds which would ultimately weigh with the Council of
\nMinisters.   Moreover, it may be noted that this is not\t the
\nonly  ground referred to in the ‘directive’ of\tShri  Charan
\nSingh.\tHe has also after referring to the virtual rejection
\nin  the Lok Sabha elections, of the candidates belonging  to
\nthe ruling party in the Plaintiff-States, pointed out
\n\t      The   resultant  climate\tof  uncertainty\t  is
\n\t      causing grave concern to us.  We have  reasons
\n\t      to  believe that this has created a  sense  of
\n\t      diffidence    at\t  different    levels\t  of
\n\t      Administration.\tPeople at large do  not\t any
\n\t      longer appreciate the propriety of continuance
\n\t      in  power of a party which has been  unmistak-
\n\t      ably rejected by the electorate.\tThe  climate
\n\t      of uncertainty, diffidence and disrespect\t has
\n\t      already  given rise to serious threats to\t law
\n\t      and order.”\n<\/p>\n
The  premise  on  which the  entire  superstructure  of\t the
\nargument of the Plaintiff-States is based is thus wanting.
\nRe  :  Proposition 2 : It is not necessary to  consider\t the
\nquestion arising under this proposition on the view taken by
\nus  in\tregard\tto  the first  proposition,  but  since\t the
\nquestion  was argued before us in some detail, we  think  it
\nproper\tto express our opinion upon it.\t The question  is  :
\ncan the ground that the Legislative Assembly of a State\t has
\nceased\tto reflect the will of the electorate and  that\t the
\nLegislative Assembly and the electorate are at variance with
\neach  other be said to be wholly extraneous  and  irrelevant
\nfor  the  purpose of Art. 356.\tCl. (1) ? Has it  any  nexus
\nwith the matter in regard to which the President is required
\nto  be satisfied under Art. 356, Cl. (1) ? Does it  bear  at
\nall  on\t the  carrying of the Government  of  the  State  in
\naccordance with the provisions of the Constitution ? Now, we
\nhave no doubt at all that merely because the ruling party in
\na State suffers defeat in the elections to the Lok Sabha  or
\nfor the matter of that, in the panchayat elections, that  by
\nitself\tcan be no ground for saying that the  Government  of
\nthe  State  cannot  be carried on  in  accordance  with\t the
\nprovisions of the Constitution.\t The Federal structure under
\nour  constitution clearly postulates that there may  be\t one
\nparty  in power in the State and another at the Centre.\t  It
\nis  also not an unusual phenomenon that the same  electorate
\nmay  elect  a  majority\t of members  of\t one  party  to\t the
\nLegislative  Assembly,\twhile at the same  time\t electing  a
\nmajority  of  members  of another party to  the\t Lok  Sabha.
\nMoreover,  the\tLegislative Assembly, once  elected,  is  to
\ncontinue  for  a  specific  term  and  mere  defeat  at\t the
\nelections  to the Lok Sabha prior to the expiration  of\t the
\nterm  without  anything\t more would be\tno  ground  for\t its
\ndissolution.  The defeat would not necessarily in all  cases
\nindicate  that\tthe electorate is no longer  supporting\t the
\nruling party because the issues may be different.  But\teven
\nif it were indicative of a definite shift in the opinion  of
\nthe  electorate,  that\tby itself would\t be  no\t ground\t for
\ndissolution,  because  the  Constitution  contemplates\tthat
\nordinarily the will of the electorate shall be expressed  at
\nthe end of the term of the Legislative Assembly and a change
\nin  the electorate’s will in between would not be  relevant.
\nIt may be noted that the Constitution does not
\n85<\/span>
\nprovide for a right of recall, individual or collective.  If
\nsuch a provision were there it might have perhaps  justified
\nthe argument that the ruling party in the State having\tlost
\nin  the elections to the Lok Sabha, the continuance  of\t the
\nLegislative  Assembly  would not be in accordance  With\t the
\nprovisions of the Constitution.\t To dissolve the Legislative
\na  provision, the defeat of the ruling party in a  State  at
\nthe  Lok Sabha elections cannot by itself, without  anything
\nmore, support the inference that the Government of the State
\ncannot\tbe carried on in accordance with the  provisions  of
\nthe  Constitution.   To dissolve  the  Legislative  Assembly
\nsolely\ton such ground would be an indirect exercise of\t the
\nright of recall of all the members by the President  without
\nthere  being  any provision in the Constitution\t for  recall
\neven  by  the electorate.  The situation here  is,  however,
\nwholly different.  This is not a case where just an ordinary
\ndefeat\thas been suffered by the ruling party in a State  at
\nthe elections to the Lok Sabha.\t There has been a total rout
\nof candidates belonging to the ruling party.  In some of the
\nPlaintiff  States,  the ruling party has not  been  able  to
\nsecure a single seat.  Never in the history of this  country
\nhas such a clear and unequivocal verdict being given by\t the
\npeople,\t never a more massive vote of no-confidence  in\t the
\nruling\tparty.\tWhen there is such crushing defeat  suffered
\nby the ruling party and the people have expressed themselves
\ncategorically  against\tits policies, it is  symptomatic  of
\ncomplete  alienation between the Government and the  people.
\nIt is axiomatic that no Government can function\t efficiently
\nand  effectively  in accordance with the Constitution  in  a
\ndemocratic set up unless it enjoys the goodwill and  support
\nof the people.\tWhere there is a wall of estrangement  which
\ndivides\t the  Government  from\tthe  people,  and  there  is
\nresentment and antipathy in the hearts of the people against
\nthe  Government, it is not at all unlikely that it may\tlead
\nto instability and even the administration may be paralysed.
\nThe consent of the people is the basis of democratic form of
\nGovernment  and when that is withdrawn so entirely  and\t un-
\nequivocally  as\t to  leave  no\troom  for  doubt  about\t the
\nintensity  of public feeling against the ruling\t party,\t the
\nmoral  authority  of  the  Government  would  be   seriously
\nundermined  and a situation may arise where the\t people\t may
\ncease\tto  give  respect  and\tobedience  to\tgovernmental
\nauthority  and even conflict and confrontation\tmay  develop
\nbetween the Government and the people leading to collapse of
\nadministration.\t These are all consequences which cannot  be
\nsaid  to be unlikely to arise from such an unusual state  of
\naffairs\t and they may make it impossible for the  Government
\nof  the\t State\tto  be carried on  in  accordance  with\t the
\nprovisions  of\tthe Constitution, Whether the  situation  is
\nfraught\t with such consequences or not is entirely a  matter
\nof   political\t judgment  for\tthe  executive\t branch\t  of
\nGovernment.   But it cannot be said that ,such\tconsequences
\ncan never ensue and that the ground that on account of total
\nand  massive  defeat of the ruling party in  the  Lok  Sabha
\nelections, the Legislative Assembly of the State has  ceased
\nto  reflect  the will of the people and\t there\tis  complete
\nalienation  between the Legislative Assembly and the  people
\nis  wholly extraneous or irrelevant to the purpose  of\tArt.
\n356,  Cl. (1).\tWe hold that on the facts and  circumstances
\nof the present case this ground is clearly a relevant ground
\nhaving\treasonable nexus with the matter in regard to  which
\nthe  President\tis required to be  satisfied  before  taking
\naction under Art. 356.\tCl. (1).\n<\/p>\n
86<\/span><\/p>\n
These are the reasons which have prevailed with us in making
\nour  order dated 29th April, 1977 dismissing the  Suits\t and
\nWrit   Petitions  and  rejecting  the  prayer  for   interim
\ninjunction.\n<\/p>\n
GOSWAMI,  J.-We\t already dismissed the suits  and  the\twrit
\npetitions on April 29,1977, and accordingly rejected  the
\nprayers for interim injunctions. We  promised to give  our
\nreasons later and the same may now be stated.
\nThe facts of all these matters appear in the judgment of the
\nlearned Chief Justice and need not be repeated.
\nThe  fundamental  questions  ‘involved in  these  suits\t are
\nthese,
\n\t      (1)   Do\tthe suits lie under Article  131  of
\n\t      the Constitution\t\t   of India ?\n<\/p>\n
\t      (2)   What is the scope of Article 356  vis-a-\n<\/p>\n
\t      vis the Court’s jurisdiction ?\n<\/p>\n
\t      (3)   If\tthe suits lie, is there a case,\t for
\n\t      permanent injunction and,. as an\tintermediate
\n\t      step, for an interim temporary injunction ?\n<\/p>\n
\t      (4)   Have    the\t  writ\t  petitioners\t any\n\t      fundamental    rights   to   maintain    their\n\t      applications   under   Article   32   of\t the\n\t      Constitution?'\n<\/pre>\n
In these suits as well as in the Writ Petitions the  central
\nissue  that  is involved is the constitutional\tright  of  a
\nCouncil\t of  Ministers to function as the  Government  of  a
\nState and of a Legislative Assembly to continue until expiry
\nof its term provided for in the Constitution.
\nThe suits are filed under Article 131 of the,  Constitution.
\nArticle 131 gives this Court exclusive original jurisdiction
\nin any dispute-\n<\/p>\n
\t      (a)   between the Government of India and\t one
\n\t      or more States or\n<\/p><\/blockquote>\n
\t      (b)   between the Government of India and\t any
\n\t      State  or States, on one side and one or\tmore
\n\t      other States on the other : or\n<\/p><\/blockquote>\n
\t      (c)   between two or more States.\n<\/p><\/blockquote>\n
Although the expression used in Article 131 is any  dispute,
\nthe  width  of the expression is limited by the\t words\tthat
\nfollow\tin  respect  of the nature of dispute  that  can  be
\nentertained by this Court in its original jurisdiction.\t  It
\nis only a dispute which involves any question of law or fact
\non  which the, existence or extent of a legal right  of\t the
\ncontending party depends that can be the subject matter of a
\nsuit under Article 131.\t The dispute should be in respect of
\nlegal  rights and not disputes of political character.\t The
\nArticle, thus, refers to the parties that may be arrayed  in
\nthe  litigation\t as  well as to the subject  matter  of\t the
\ndispute. (See State of Bihar v. Union of India & Anr.).<\/a>(1)
\n(1)[1970]   2 S.C.R. 522.\n<\/p>\n
87<\/span><\/p>\n
The  suits  are,  in  form, being filed\t by  the  States  of
\nRajasthan,  Madhya Pradesh, Punjab, Bihar, Himachal  Pradesh
\nand  Orissa.   But is the dispute  sought  for\tadjudication
\nwithin the scope or ambit of Article 131 ? That is the first
\nquestion.\n<\/p>\n
In a parliamentary form of Government when one Government is
\nreplaced by another, the State’s continuity is not  snapped.
\nThere may come a moment in the life of a Government when  it
\nmay  cease  to be truly representative of  the\tpeople\tand,
\ntherefore,  the. interest of the State as a polity or  legal
\nentity\tand  that  of the Government  established  on  party
\nsystem\tmay  cease to be identical.  In\t such  a  situation,
\nfactual\t or  imminent, a suit by a State Government  in\t the
\nname  of the State against the Union Government’s action  in
\ndefence,  of the former’s legitimate existence and right  of
\ncontinuance will not relate to the legal right of the State.
\nThe  judgment,\twhether in truth and  reality  a  particular
\nsituation exists or is portentously imminent, may be correct
\nor  incorrect,\tbut it is a political  issue.\tThe  Court’s
\njurisdiction is not political but entirely judicial.
\nThe  right  of\ta  particular State to\tsue  is\t not  always
\nequivalent  to the right of the Council of Ministers in\t all
\nmatters.   Even\t if  a\tGovernment  goes  the  State  lives.
\nWhether\t a  particular\tCouncil\t of  Ministers\tcan  survive
\nthreats\t to their existence depends no doubt immediately  on
\nits  ability to enjoy the confidence of the majority in\t the
\nLegislature, but also, in the last resort, in its ability to
\nenjoy  the  confidence\tof  the\t political  sovereign,\t the
\nelectorate.  The questions affecting the latter domain\tare.
\nof  highly political complexion and appertain  to  political
\nrights\tof  the Government and not to legal  rights  of\t the
\nState.\t  The\trights\tagitated  by  the   plaintiffs\t are
\nprincipally of the Governments concerned who are  interested
\nin continuing the legislatures whose confidence they  enjoy.
\nOn the other hand, it is claimed by the Home Minister in his
\nletter that these Legislatures have lost the mandate of\t the
\npeople\tand  that there is clear evidence ,of  their  having
\nlost the confidence of the people as a result of the verdict
\nin the recent general election to the Parliament.  The Court
\nis  not concerned whether this is a (correct  assessment  or
\nnot.   The  Union Government is entitled to  take  political
\ndecisions.   However,  even if a political decision  of\t the
\nGovernment  of India affects legal rights of the State as  a
\nlegal entity, the existence and extent of that right will be
\ntriable\t under\tArticle\t 131.  The question  is,  are  legal
\nrights of the State involved in the dispute ?
\nArticle 131 speaks of a legal right.  That legal right\tmust
\nhe that ,of the State.\tThe dispute about a legal right, its
\nexistence  or extent, must be capable of  agitation  between
\nthe  Government of India and the States.  The  character  of
\nthe dispute within the scope of Article 131 that emerges  is
\nwith  regard to, a legal right which the States may be\table
\nto claim against the Government.  For example, the State  as
\na  party  must\taffirm a legal right of its  own  which\t the
\nGovernment  of India has denied or is interested in  denying
\ngiving\trise  to  a cause of action.   For  the\t purpose  of
\ndeciding whether Article 131 is attracted the subject matter
\nof the dispute, therefore, assumes great importance.\n<\/p>\n
88<\/span><\/p>\n
Part  VI  deals with the States.  The word  “State”  is\t not
\ndefined\t for  the  purpose of Article 131  in  Part  V.\t The
\n“State”\t is,  however,\tdefined under  Article\t12  for\t the
\npurpose Part III (Fundamental Rights).\tThis\t is\t the
\ndefinition also for Part IV (Directive principles of  State,
\nPolicy).   Under  Article  367(1),  the\t provisions  of\t the
\nGeneral\t  Clauses   Act,   1897,  are\ta   applicable\t for
\ninterpretation\tof the constitution.  Section 3(58)  of\t the
\nGeneral Clauses Act defines State, after the commencement of
\nthe  Constitution (Seventh Amendment), Act, 1956, to mean  a
\nState  specified in the First Schedule to  the\tConstitution
\nand shall include a Union Territory.  The First Schedule  to
\nthe   Constitution   describes\t22  States   and   9   Union
\nTerritories.   The  State Government is\t separately  defined
\nunder section 3(60) of the General Clauses Act-thus  keeping
\nthe distinction.  Article 131 of the Constitution relates to
\nlegal  rights  of the State or of the Government  of  India.
\nAny   violation\t of  the  provisions  of  the\tConstitution
\nimpinging  on the rights of the States or of the  Government
\nof India will be justiciable under Article 131.\t  Similarly,
\nboundary  disputes or disputes relating to rival  claims  to
\nreceipts from taxes and other duties between two States\t are
\ncognizable by this Court, to refer only to a few  instances.
\nNow  in these above mentioned cases the rights of the  State
\nas  a legal entity distinguished from the Government,  being
\nthe  executive\tagent,\twill  be  involved.   Even  if\t one
\nGovernment is replaced by another Government, such a dispute
\nwill not abate or disappear since the State endures and\t the
\ncause of action survives.\n<\/p>\n
Keeping\t in  view the, above concept, we will  undertake  to
\nexamine the nature of the dispute which is involved in these
\nsuits.\t Shortly stated the States apprehend a grave  threat
\nto  the assumption of the executive functions of, the  State
\nby  the\t President  on non compliance with  the\t advice\t or
\ndirection contained in the letter of the Home Minister.\t  It
\nis true that the threat to an illegal action also  furnishes
\na cause of action for a suit or proceeding.\n<\/p>\n
     Under  Article 172(1) all the State Assemblies,  except
\nOrissa,\t  will\tcontinue,  if not dissolved earlier,  for  a
\nperiod\tof six years from the date appointed for  its  first
\nmeeting and in that view in the normal course will continue
\nfor  some  more months.\t The Legislative  Assembly  of’\t the
\nState of Orissa, on the other hand, having held its election
\nin 1974, will in the normal course continue till 1980 unless
\nearlier dissolved.     The States apprehend that this normal
\nlife of the Legislatures is going to be snapped resulting in
\nthe,  annihilation of their legal and constitutional  rights
\nunder  Article 172(1). That furnishes a cause of action\t for
\nthe   suits  for  permanent  injunction\t according  to\t the
\nplaintiffs.\n<\/p>\n
The  dispute  is this : The Home,  Minister,  Government  of
\nIndia,\tis asking the Chief Ministers of the Governments  of
\nthe   States  to  advise  the  Governors  to  dissolve\t the
\nLegislative  Assemblies.   The Chief Ministers\tdeclined  to
\naccept the advice and filed the suits.\tWhat is the,  nature
\nof this dispute ?  On the one hand there is the claim
\n89<\/span>
\nof  a right to continue the present Government of the  State
\nand necessarily to continue the Legislative Assembly and  on
\nthe other the right to take action under Article 356 by\t the
\nPresident  to  assume  functions of  the  State\t Government.
\n‘This dispute involves a major issue of great constitutional
\nimportance   and   the\taggrieved  party  may\thave   other
\nappropriate.  forum  to\t complain  against  any\t substantial
\ninjury Even so, it is not a dispute between the State on the
\none hand and the Government of India on the other.  It is  a
\nreal  dispute  between the Government of the State  and\t the
\nGovernment of India.  It is, no doubt a question of life and
\ndeath for the State Government but not so for the State as a
\nlegal  entity.\tEven after the dissolution of  the  Assembly
\nthe  State will continue to have a Government for  the\ttime
\nbeing  as  provided  for  in  the  Constitution\t in  such  a
\n(contingency.\n<\/p>\n
A Legislature of the State under Article 168 consists of the
\nGovernor  and the Legislative Assembly or where there  is  a
\nLegislative  Council  both the, Houses.\t This also  has\t its
\nsignificance  in  comprehending the nature of  the  dispute.
\nThe members constituting the State Legislature of which the
\nCouncil\t of Ministers is the executive body, alone,  do\t not
\neven  constitute the State Legislature.\t The Governor is  an
\nintegral   part\t  of  the  State   Legislature\t under\t the
\nConstitution.  The rights of the Council of Ministers or  of
\nthe  members of the State Legislature cannot, therefore,  be
\nequated\t with  the  rights of the State\t even  though  those
\nrights may be those of the State Government, pro tempore.
\nThe  distinction  between the, State and the  Government  is
\nbrought\t out  with  conspicuous\t clarity  in  the  following
\npassages :-\n<\/p>\n
\t      “The  distinction\t between the State  and\t its
\n\t      Government  is  analogous to  that  between  a
\n\t      given   human  individual,  as  a\t moral\t and
\n\t      intellectual person, and his material physical
\n\t      body  :  By the term State is  understood\t the
\n\t      political person or entity which possesses the
\n\t      law  making right.  By the term Government  is
\n\t      understood  the agency through which the\twill
\n\t      of  the  State is\t formulated,  expressed\t and
\n\t      executed.\t  The  Government thus acts  as\t the
\n\t      machinery of the State, and those who  operate
\n\t      this machinery…………. act as the  agents
\n\t      of the State.”(“)
\n\t      “In all constitutionally organised States\t the
\n\t      State  is permitted to sue in the\t courts\t not
\n\t      only with reference to its own proprietary  or
\n\t      contractual  interests, but also in behalf  of
\n\t      the  general  interests of its  citizen  body.
\n\t      When  appearing  as plaintiff  in\t the  latter
\n\t      capacity it is known as Parens Patriae.\tThis
\n\t      jurisprudential  doctrine\t is  stated  in\t the
\n\t      Cyclopedia of Law and Procedure as follows :-
\n\t      ‘A   State,  like\t any  other  party,   cannot
\n\t      maintain a suit unless it appears that it\t has
\n\t      such an interest in the subject-matter thereof
\n\t      as  to authorise the bringing of the  suit  by
\n\t      it.\n<\/p><\/blockquote>\n
(1)  The  Fundamental  Concepts of Public Law by  Westel  W.
\nWilloughly, page 49.\n<\/p>\n
90<\/span><\/p>\n
\t      In  this connection, however,  a\tdistinction,
\n\t      should be noted between actions by the  people
\n\t      or  by the State in a sovereign capacity,\t and
\n\t      suits  founded on some pecuniary interest\t for
\n\t      proprietary right’.” (1)
\n\t      “The  value of the distinction  between  State
\n\t      and government is the possibility it offers of
\n\t      creating institutional mechanisms for changing
\n\t      the   agents  of\tthe  state,  that  is,\t the
\n\t      government,  when\t the  latter  shows   itself
\n\t      inadequate to its responsibilities.” (2)
\nI  am  clearly of opinion that the, subject  matter  of\t the
\ndispute in these suits does not appertain to legal rights of
\nthe  States concerned to satisfy the requirement of  Article
\n131  of the Constitution.  These suits are,  therefore,\t not
\nmaintainable in law and on this ground they are liable to be
\ndismissed.\n<\/p>\n
With  regard to the Writ Petitions I had the opportunity  to
\ngo  through the judgments of my brothers Bhagwati and  Gupta
\nand I entirely agree with their reasoning and conclusion.  I
\nam  clearly  of opinion that there is no  violation  of\t the
\nfundamental  rights  guaranteed\t to  the  petitioners  under
\nArticles   19(1)(f)  and  31  of  the  Constitution   as   a
\nconsequence of the threatened dissolution of the Legislative
\nAssembly.    ‘the   Writ  Petitions  are,   therefore,\t not
\nmaintainable and are liable for rejection.
\nSince,\thowever, the question of mala fides of the  proposed
\naction\tof  the Home Minister was argued at  length  with  a
\npointed\t focus\ton  the ensuing\t Presidential,\telection,  I
\nshould touch on the point.\n<\/p>\n
It is submitted that these grounds, ex facie, are completely
\nirrelevant and extraneous and even mala fide.  Mr. Niren  De
\nreferred  to  the  decision of the Privy  Council  in  King-
\nEmperor\t v. Benoari Lal Sarma and Others(3) and read  to  us
\nthe following passage :\n<\/p>\n
\t      “It is to be observed that the section (72  of
\n\t      Government  of  India  Act,  1935)  does\t not
\n\t      require  the  Governor-General to\t state\tthat
\n\t      there  is an emergency, or what the  emergency
\n\t      is  either in the text of the ordinance or  at
\n\t      all,  and assuming that he acts bona fide\t and
\n\t      in  accordance with his statutory\t powers,  it
\n\t      cannot  rest with the courts to challenge\t his
\n\t      review that the emergency exists.”\n<\/p><\/blockquote>\n
Relying on the above passage, Mr. De submits that this Court
\nis entitled to examine whether the direction is mala fide or
\nnot.\n<\/p>\n
(1)  The  Fundamental  Concepts of Public Law by  Westel  W.
\nWilloughly pp. 487-488.\n<\/p>\n
(2)  The  State in Theory and practice by Harold  J.  Laski,
\npage 25.\n<\/p>\n
(3)  72 I.A. 57, 64.\n<\/p>\n
91<\/span><\/p>\n
The Additional Solicitor General has drawn our attention  to
\nBhagat\tSingh and Others v. The King-Emperor<\/a>(1) which  is  a
\ndecision  of  the  Privy Council  followed  in\tBenoari\t Lai
\nSarma’s case (supra) He read to us the following passage
\n\t      “A  state of emergency is something that\tdoes
\n\t      not  permit  of  any  exact  definition.\t  If
\n\t      connotes\ta  state  of  matters  calling\t for
\n\t      drastic action, which is to be judged as\tsuch
\n\t      by  some\tone.  It is more than  obvious\tthat
\n\t      some one must be the Governor-General, and  he
\n\t      alone.   Any other view would  render  utterly
\n\t      inept the whole provision.  Emergency  demands
\n\t      immediate\t  action,   and\t  that\t action\t  is
\n\t      prescribed  to  be  taken\t by  the   Governor-\n<\/p>\n
\t      General.\t It is he alone who  can  promulgate
\n\t      the Ordnance.”\n<\/p>\n
The  President in our Constitution is a constitutional\thead
\nand is bound to act on the aid and advice of the Council  of
\nMinisters (Article 74).\t This  was the position even  before
\nthe amendment of Article 74(1)\t   of  the  Constitution  by
\nthe 42nd Amendment (See Shamsher Singh\t&  Anr. v. State  of
\nPunjab) (2). The position has been made absolutely  explicit
\nby  the amendment of Article 74(1) by the Constitution\t42nd
\nAmendment which says “there shall be a Council of  Ministers
\nwith  the Prime Minister at the head to aid and\t advise\t the
\nPresident  who shall, in the exercise of his functions,\t act
\nin  accordance\twith  such  advise.”  What  was\t  judicially
\ninterpreted  even under the unamended Article 74(1) has\t now
\nbeen  given  parliamentary recognition by  the\tConstitution
\nAmendment.   There  can,  therefore, be no  doubt  that\t the
\ndecision under Article 356 of the Constitution which is made
\nby the President is a decision of the Council of  Ministers.
\nBecause certain reasons ate given in the letter of the\tHome
\nMinister,  it  cannot be said that those will, be  the\tonly
\ngrounds which will weigh with the Council of Ministers\twhen
\nthey  finally  take  a decision when  the  advise  has\tbeen
\nrejected  by  the  Chief  Ministers.   There  are  so\tmany
\nimponderables  that  may intervene between the time  of\t the
\nletter and the actual advice of the Council of Ministers  to
\nthe  President.\t  There\t may  be  further  developments\t  or
\napprehension  of developments which the Government may\thave
\nto  take  not of and finally when the Council  of  Ministers
\ndecides\t and advises the President to issue  a\tproclamation
\nunder  Article 356, the Court will be barred from  enquiring
\ninto  the  advice that was tendered by the  Cabinet  to\t the
\nPresident (Article 74(2).  Then again under Article  356(5),
\nthe   satisfaction   of\t the  President\t  in   issuing\t the
\nproclamation  under  Article  356(1)  shall  be\t final\t and
\nconclusive and shall not be questioned in any court on,\t any
\nground.\t  In  the view I have taken, I am  not\trequired  to
\nconsider in the matters before us whether Article 356(5)  of
\nthe  Constitution  is ultra vires the Constitution  or\tnot.
\nEven the Additional Solicitor General based his arguments on
\nthe  very  terms of Article 356(1) de  hors  Article  356(5)
\nrelying upon Bhagat Singh’s case (supra) that the subjective
\nsatisfaction of the President is not justiciable.  It is in
\n(1)  58 I.A. 169, 172.\n<\/p>\n
(2)  [1975] 1 S.C.R. 814.\n<\/p>\n
7-722 SCI\/77
\n92<\/span>
\nview  of  this\tstand  of the Union that  Mr.  De  drew\t our
\nattention  to  Benoari Lai Sarma’s case\t (supra)  where\t the
\nPrivy  Council seems to have indicated that the question  of
\nmala fides could be gone in to by the court.  Mr. De submits
\nthat a mala fide order under Article 356 will be no order in
\nthe eye of law.\n<\/p>\n
I am not prepared to say that this Court, which is the\tlast
\nrecourse  for  the oppressed and the bewildered,  will,\t for
\ngood,  refuse  to  consider when  there\t may  be  sufficient
\nmaterials  to  establish that a proclamation  under  Article
\n356(1) is tainted with mala fides.  I would, however, hasten
\nto add that the grounds given in the Home Minister’s  letter
\ncannot\tbe  any strength of imagination be held to  be\tmala
\nfide  or extraneous or irrelevant.  These ground  will\thave
\nreasonable  nexus with the subject of a\t proclamation  under
\nArticle\t 356(1) of the Constitution.  The matter would\thave
\nbeen  entirely\tdifferent if there were\t no  proposal,\tpari
\npassu, for an appeal to the electorate by holding  elections
\nto these Assemblies.\n<\/p>\n
In  view of my conclusion that the suits and Writ  Petitions
\nare not maintainable I do not feel called upon to deal\twith
\nthe   question\twhether\t there\tis  a  case  for   permanent
\ninjunction or other appropriate writ in these matters.\t The
\nsuits  and  the\t Writ  Petitions  were,\t therefore,  already
\ndismissed.\n<\/p>\n
I  part\t with the records with a cold  shudder.\t  The  Chief
\nJustice was good enough to tell us that the acting President
\nsaw  him during the time we were considering judgment  after
\nhaving already announced the order and there was mention  of
\nthis  pending matter during the conversation.  I have  given
\nthis  revelation  the  most anxious  thought  and  even\t the
\nstrongest  judicial restraint which a Judge would prefer  to
\nexercise,  leaves me no option but to place this  on  record
\nhoping that the majesty of the High Office of the President,
\nwho should be beyond the high-watermark of any\tcontroversy,
\nsuffers not in future.\n<\/p>\n
UNTWALIA, J. The unanimous order of the Bench in these cases
\nwas  delivered on April 29, 1977.  The judgments in  support
\nof  the\t order\tare now being  delivered.   While  generally
\nagreeing  with the reasons given in the leading judgment  of
\nthe  learned  Chief Justice, on some of the points  I  would
\nlike  to  add a few words and make some observations  of  my
\nown.\n<\/p>\n
As to the maintainability of the writ applications filed  by
\nsome of the members of the Punjab Legislature under  Article
\n32  of\tthe Constitution of India, I would,  as\t at  present
\nadvised,  not  like to express any opinion one\tway  or\t the
\nother.\tI will assume in their favour that at the  threshold
\nthe applications are maintainable.  Yet they do not make out
\na  case\t for  issuance of any kind of  writ,  direction,  or
\norder.\n<\/p>\n
But  as\t to  the maintainability of the\t suits\tfiled  under
\nArticle 131 by the various States I would like to say  that,
\nalthough  the  point is highly debatable and not  free\tfrom
\ndifficulty, the dispute of the kind raised in the suits does
\nnot involve any question whether of law or fact on which the
\nexistence or extent of any legal right of the States con-\n<\/p>\n
93<\/span><\/p>\n
cerned\tdepends.  To my mind the dispute raised\t is  between
\nthe   Government  of  India  and  the  Government   or\t the
\nLegislative  Assembly of the States concerned.\tOne or\tmore
\nlimbs,\tnamely, and the Government, the Legislature  or\t the
\nJudiciary  of  a  State cannot be equated  with\t the  State.
\nAlthough  the expression “legal right” occurring in  Article
\n131  embraces within its ambit not only\t the  constitutional
\nrights\tof the States but also other kinds of legal  rights,
\nthe  dispute must relate to the territory, property or\tsome
\nother  kind of legal right of the State.  Broadly  speaking,
\nthe  nature  of\t the  dispute in these\tcases  is  that\t the
\nPresident  on  the advice of the Council  of  Ministers,  in
\nother  words, the Government of India proposes\tto  exercise
\nhis  powers under Article 356 for making a  proclamation  in
\norder  to  dissolve the Legislative Assembly  of  the  State
\nconcerned  and\tto dislodge the Council\t of  Ministers,\t the
\nparticular  Government\tin  power in  that  State.   Such  a
\ndispute, in my opinion, is not a dispute vis-a-vis the legal
\nright  of the State a unit of the Union of India.  It  falls
\nshort  of  that.  What is alleged is that  pursuant  to\t the
\nimpugned  proclamation the President will assume to  himself
\nall  or any of the functions of the Government of the  State
\nand all or any of the powers vested in or exercisable by the
\nGovernor including the power to dissolve the Assembly  under
\nArticle\t 174(2) (b).  Such a proposed or  threatened  action
\ndoes  affect the legal right of the Government in power\t and
\nthe  Legislative Assembly a part of the\t State\tLegislature,
\nbut  not  of  the State itself.\t The  State  undoubtedly  is
\nentitled to have a Governor a Government in one form or\t the
\nother and the Legislature.  No part of it can be  abolished.
\nAbolition would affect the legal right of the State.  But it
\nis not quite correct to say that a State has legal right  to
\nhave  a particular Governor or a particular Government or  a
\nparticular  Legislative Assembly.  In contrast to  the\tword
\n“dissolved”  used  in  Article 174 I would  point  ,out\t the
\nprovision  of  “abolition” of the Legislative Council  of  a
\nState mentioned in Article 169.\t Similarly, to illustrate my
\nview point, I may refer to Article 153 which provides “there
\nshall  be a Governor for each State”, and Article 156  which
\nprovides for a particular Governor holding office during the
\npleasure  of the President. if a dispute arises in  relation
\nto  an\taction or threat of the Government  of\tIndia  under
\nArticle\t 153 it will affect the legal right of the State  as
\nthe  State  cannot  exist without a Governor.\tBut  if\t the
\ndispute concerns merely the removal of a particular Governor
\nby  the\t President, it only affects the legal right  of\t the
\nperson holding the office or the Government of the State but
\nnot  of\t the  State itself.  That  the\tdistinction,  though
\nsubtle,\t is significant and appreciable, is clear  from\t the
\nlanguage  of  the various clauses of Article 131  itself  as
\nalso  from  the definitions of State  Governments  given  in
\nsection\t 3 (5 8) and 3 (60) of the General Clauses Act.\t  In
\nmy  considered judgment, therefore, the suits as  instituted
\nunder Article 131 are not maintainable.\n<\/p>\n
But  I would not rest content to maintain the  dismissal  of
\nthe suits only on this technical ground.\n<\/p>\n
Putting the matter briefly in some words of my own as to the
\nmerits of the suits I would like to emphasize, in the  first
\ninstance,  that\t it  is\t difficult  to\tpresume,  assume  or
\nconclude  that the only basis of the proposed action by\t the
\nPresident is the facts mentioned in the letter of the
\n94<\/span>
\nHome Minister to the Chief Ministers of the States concerned
\nor  the\t speech\t of the Law Minister of\t the  Government  of
\nIndia.\t There\tis  no warrant\tnor  any  adequate  material
\ndisclosed in any of the plaints in support of any  assertion
\nto the contrary.  Secondly, even if one were to assume\tsuch
\na  fact in favour of the plaintiffs or the  petitioners\t the
\nfacts  disclosed, undoubtedly, lie in the field or  an\tarea
\npurely\tof  a political nature, which are  essentially\tnon-
\njusticiable.  It would be legitimate to characterise such  a
\nfield as prohibited area in which it is neither\t permissible
\nfor  the  Courts  to enter nor should they  ever  take\tupon
\nthemselves the hazardous task of entering into such an area.
\nIn  the very nature of things the President must be left  to
\nbe  the sole Judge, of course, on the advice of his  Council
\nof  Ministers,\tfor  his satisfaction as  to  whether  there
\nexists or not a situation in which the Government of a State
\ncannot\tbe carried on in accordance with the  provisions  of
\nthe  Constitution.   Such  a satisfaction may  be  based  on
\nreceipt\t of  a\treport\tfrom the  Governor  of\ta  State  or
\notherwise.   Neither can the President be compelled to\tdis-
\nclose\tall   the  facts  and  materials  leading   to\t his
\nsatisfaction  for  an action under Article 356\tnor  is\t his
\nconclusion  as\tto the arising of a situation  of  the\tkind
\nenvisaged  in  Article 356(1), generally speaking,  open  to
\nchallenge even on the disclosed facts.\n<\/p>\n
I, however, must hasten to add that I cannot persuade myself
\nto  subscribe  to the view that under  no  circumstances  an
\norder  of proclamation made by the President  under  Article
\n356  can be challenged in a Court of Law.  And, I am  saying
\nso notwithstanding the provision contained in clause (5)  of
\nthe  said  Article  introduced\tby  the\t Constitution  (38th
\nAmendment)  Act,  1975.\t In support of the  divergent  views
\ncanvassed  before us either in relation to the\tproclamation
\nof  emergency  under  Article 352 or  a\t proclamation  under
\nArticle 356, extreme hypothetical examples were cited on one
\nside  or the other.  From a practical point of view most  of
\nsuch examples remain only in hypothesis and in an  imaginary
\nworld.\t It is difficult to find them in realty but yet\t not
\nimpossible in a: given case or cases.  Then, where lies\t the
\ndifference?   Even before the introduction of clause (5)  in
\nArticle 356 or a similar clause in some other Articles, such
\nas  Articles  352  and 123, the doors were  closed  for\t the
\nCourts\tto enter the prohibited area which is popularly\t and
\ngenerally  called the political field.\tIf the\tvalidity  of
\nthe action taken by the President in exercise of his  power,
\nsay,  under any of the three Articles referred to  above  is
\nchallenged   attracting\t the  necessity\t of   entering\t the
\nprohibited  field to peep into the reality of the  situation
\nby  examination of the facts for themselves, either  on\t the
\nground\tof  legality or mala fides the\tCourts\thave  always
\nresisted  and  shall continue to resist\t the  inducement  to
\nenter  the Prohibited field; for example, Bhagat  Singh\t and
\nothers v. The King-Emperor,<\/a> (1) King-Emperor v. Benoari\t Lal
\nSarma and others; (2)
\n(1)  58, Indian Appeals, 169.\n<\/p>\n
(2)  72 Indian Appeals, 57.\n<\/p>\n
95<\/span><\/p>\n
Lakhi Naryana Das v. The Province of Bihar<\/a> etc. etc.(1)\t and
\nM\/s S.K. G.    Sugar  Ltd. v. State of Bihar and  Ors.\t(2).
\nTo put it graphically clause (5)has merely put a seal  on
\nsuch closed doors to check more emphatically the  temptation
\nor  the urge to make the Courts enter the prohibited  field.
\nAttempts  have always been made by the party who is  out  of
\nthe  field of power, if I can equate it with the  prohibited
\nfield aforesaid, to induce the Court to enter that field  in
\norder  to  give\t relief against the  taking  of\t the  extra-
\nordinary  steps\t by  the  President on\tthe  advice  of\t the
\nGovernment in power.  On the other hand, the party in  power
\nhas  always resisted such move.\t In a democracy the  current
\nof  public opinion and franchise may push a particular\tship
\non one side of the shore or the other.\tBut this Court, like
\nthe  Pole Star, has to guide and has guided the path of\t all
\nmariners in an even manner remaining aloof from the  current
\nand irrespective of the fact whether a particular ship is on
\nthis shore or that.\n<\/p>\n
But  then,  what did I mean by saying that a  situation\t may
\narise in a given case where the jurisdiction of the Court is
\nnot  completely ousted ? I mean this.  If, without  entering
\ninto the prohibited area, remaining on the fence, almost  on
\nthe  face of the impugned order or the threatened action  of
\nthe  President it is reasonably possible to say that in\t the
\neye  of\t law it is no order or action as it is\tin  flagrant
\nviolation  of  the  very  words\t of  a\tparticular  Article,
\njustifying  the\t conclusion that the order is  ultra  vires,
\nwholly\tillegal or passed mala fide, in such a situation  it
\nwill be tantamount in law to be, no order at all.  Then this
\nCourt  is not powerless to interfere with such an order\t and
\nmay, rather, must strike it down.  But it is incompetent and
\nhazardous  for\tthe  Court  to\tdraw  such  conclusions\t  by
\ninvestigation  of  facts  by entering  into  the  prohibited
\narea..\tIt would be equally untenable to say that the  Court
\nwould be powerless to strike down the order, if on its face,
\nor, if I may put it, by going round the circumference of the
\nprohibited  area,  the\tCourt  finds the  order\t as  a\tmere
\npretense  or  a colourable exercise  of\t the  extra-ordinary
\npowers given under certain Articles of the Constitution.  In
\na  given  case it may be possible to conclude that it  is  a
\nfraud  on  the exercise of the power.  But as  I  have\tsaid
\nabove  in all such types of cases from a practical point  of
\nview  are likely to seldom occur and even if they occur\t may
\nbe  few and far between, the Courts have to arrive  at\tsuch
\nconclusions  by\t checking  their  temptation  to  enter\t the
\nprohibited  area  of  facts  which  are\t essentially  of   a
\npolitical  nature.  It is in this context Lord\tMac  Dermott
\nseems to have observed in the case of Stephen Kalong Ningkan
\nand Government of Malaysia(3) at pages 391-92 :\n<\/p>\n
\t      “The  issue  of justiciability raised  by\t the
\n\t      Government of Malaysia led to a difference  of
\n\t      opinion\tin  the\t Federal  Court,  the\tLord
\n\t      President of Malaysia and the Chief Justice of
\n\t      Malaya  holding  that  the  validity  of\t the
\n\t      proclamation  was not justiciable and  Ong  J.<\/p><\/blockquote>\n
\t      holding  that it was.  Whether a\tproclamation
\n\t      under statutory powers by the Supreme Head of
\n(1)  [1949] F.C.R.693.\n<\/p>\n
(2)  [1975] 1 S.C.R., 312.\n<\/p>\n
(3)  [1970] Appeal Cases, 379.\n<\/p>\n
96<\/span><\/p>\n
\t      the  Federation can be challenged\t before\t the
\n\t      courts   on,   some  or  any  grounds   is   a
\n\t      constitutional   question\t  6(\tfar-reaching
\n\t      importance which, on the present state of\t the
\n\t      authorities, remains unsettled and debatable.”
\nIn  the application of the principle enunciated by me,\tand.
\nin  the\t demarcation of the prohibited\tarea,  opinions\t may
\nsometimes differ, mistakes may sometimes be committed either
\nby  unduly enlarging the area of the prohibited field or  by
\nunduly\tlimiting.  But such differences are inherent in\t the
\nvery  nature  of  administration of  justice  through  human
\nagency.\t  No way out has yet been involved nor can one\tcon-
\nceive  of a better methodology.\t Nonetheless the Courts\t and
\nthe  Judges manning them are the best arbiters\tof  judging,
\ntheir  own  limits of jurisdiction as the custodian  of\t the
\nfunctions  to watch and see every Limb of the  State  acting
\nunder  the  constitution  in  accordance  with\tit.   It  is
\nintrinsic  and not uncommon to find that a party in  control
\nof  the\t field which I have described as a  prohibited\tarea
\nwould  be  trying  to view and make that area  as  large  as
\npossible and the party outside that field will endeavour  to
\nnarrow\tit down as far as feasible.  But the Courts do\tkeep
\nand  have  got to keep that area the same as far  as  it  is
\nhumanly and legally possible to do so either for the one  or
\nthe  other party.  It is neither possible nor  advisable  or
\nuseful\tto  make an attempt to define such  area  by  taking
\nexamples  one way or the other to illustrate as to when\t the
\nCourt  would  be  able to say that : “I am  striking  out  a
\nparticular  order  of  the President  without  entering\t the
\nprohibited area or vice versa”.\t In these cases I would rest
\ncontent\t by saying that, as I view the facts  placed  before
\nus, they are exclusively within the prohibited area.
\nThe  main  theme of contention has been that  the  President
\ncannot\tmake the proclamation because when laid before\teach
\nHouse  of  the Parliament in accordance with clause  (3)  of
\nArticle\t 356 it is sure Or very likely that it will  not  be
\napproved by the Rajya Sabha where the party in power in\t the
\nconcerned  States  is in clear majority; in any\t event,\t the
\nPresident  cannot  and should not be permitted to  take\t any
\naction\tpursuant  to  the  proclamation\t of  dissolving\t the
\nAssembly  without  the\tapproval  of  both  the\t Houses\t  of
\nParliament, as the act of dissolution will be  irretrievable
\nand  in flagrant violation of the federal structure  of\t the
\nconstitution.\tI  find no words of such limitation  on\t the
\npower  of  the President either in the original\t Article  as
\nframed\tand passed by the Constituent Assembly or in any  of
\nthe  amendments\t brought  therein from time  to\t time.\t The
\nproclamation  made and an action taken pursuant thereto,  if
\notherwise valid and not open to challenge in the manner\t and
\nwithin the limitation I have indicated above, arc valid till
\nthe  proclamation lasts, the maximum period of which is\t two
\nmonths\t even  without\tthe  approval  of  the\t Houses\t  of
\nParliament.   On the revocation of the proclamation  by\t the
\nPresident or its disapproval or non-approval by either House
\nof the Parliament the proclamation merely ceases to  operate
\nwithout\t in  any way affecting or  invalidating\t the  action
\ntaken  pursuant\t to the proclamation before  its  cesser  of
\noperation.  No body has yet suggested, nor could any one  do
\nso,  with  any semblance of justification that such  a\twide
\npower  conferred  on  the President  even  by  the  original
\nconstitution as passed and adopt-\n<\/p>\n
97<\/span><\/p>\n
ed by the people of India could have any relevancy to the so
\ncalled\tdestruction  of the basic federal structure  of\t the
\nconstitution.  In this respect I, for myself, do not see any
\nappreciable  or\t relevant difference between the  action  of
\ndissolution  of\t an Assembly by the Governor of a  State  in
\nexercise  of his power under Article 1740) (b), or  such  an
\naction\ttaken  pursuant to the\tproclamation  under  Article
\n356(1)\t (a).\t There\tmay  be\t justifiable   and   genuine
\ndifferences  of opinion between the  politicians,  political
\nthinkers,  jurists  and others whether the  grounds  of\t the
\nproposed  action disclosed so far in the letter of the\tHome
\nMinister or the speech of the Law Minister of the Government
\nof  India can necessarily lead to the conclusion  whether  a
\nsituation  has arisen in which the Government of  the  State
\ncannot\tbe carried on in accordance with the  provisions  of
\nthe constitution.  Firstly, the possibility of other grounds
\nbeing there for the proposed action under Article 356 cannot
\nbe  ruled out.\tEven if ruled out, the conclusion  drawn  on
\nthe  facts  disclosed  cannot be said  to  be  so  perverse,
\nerroneous  and palpably unsustainable so as to\tenable\tthis
\nCourt  to  say that standing on the, fence  the\t Court\tcan,
\ndeclare\t that the proposed action of proclamation  on  these
\nfacts  falls  in the category of the cases where  the  Court
\nwill  be  justified  to prevent\t the  threatened  action  by
\ninjuncting the President either to issue the proclamation or
\nto dissolve the Assembly of a particular State. 1, for\tone,
\nwould  meticulously  guard  myself  against  expressing\t any
\nopinion\t one way or the other except saying that  the  facts
\ndisclosed so far, in my considered judgment, are  definitely
\nand   exclusively  within  the\tprohibited  area   and\t the
\nconclusions   drawn  therefrom\tare   reasonably   possible,
\nespecially in the background of Article 355.  On the  facts,
\nas they are, it is difficult, rather, impossible to say that
\nthe proposed proclamation is going to be made mala fide with
\nan  ulterior  motive.  Apart from the  other  technical\t and
\ninsurmountable difficulties which are therein the way of the
\nplaintiffs or the petitioners in getting any of the  reliefs
\nsought\tI have thought it advisable to pin-point in  my\t own
\nhumble way the main grounds in support of the order we\thave
\nalready declared.\n<\/p>\n
FAZAL  ALI, J. In a big democracy like our’s  the  popularly
\nelected\t executive  Government\thas  sometimes\tto  face   a
\ndifficult and delicate situation and in. the exercise of its
\nfunctions  it  has to perform onerous duties  and  discharge
\nheavy responsibilities which are none too easy or pleasant a
\ntask.  Circumstances  may arise where  problems\t facing\t the
\nGovernment arepolitical,  moral, legal or  ethical  calling
\nfor a careful and cautiousexercise   of\t discretion   of
\npowers conferred on the Government by theConstitution of
\nthe country.  Even though the Government may have acted with
\nthe  best of intentions, its actions may displease some\t and
\nplease\tothers, as a result of which  serious  controversies
\nand problems arise calling for an immediate and satisfactory
\nsolution.  The present suits filed by some of the States and
\nthe writ petitions filed by three members of the Legislative
\nAssembly of Punjab are ridden with legal and  constitutional
\nproblems  due to ,an action taken by the Central  Government
\nto meet, what in its opinion was, an unprecedented political
\nsituation.   My\t Lord  the  Chief  Justice  has\t  succinctly
\ndetailed  the facts of the present suits and  the  petitions
\nand it is not necessary for me to repeat the same, except in
\n98<\/span>
\nso  far\t as  they may be relevant for the  decision  of\t the
\nconclusions to which I arrive.\tI might also mention that  I
\nfully agree with the judgment proposed by my Lord the  Chief
\nJustice\t giving\t complete reasons for the  order  which\t the
\nCourt  had unanimously passed on April 29, 1977,  dismissing
\nthe  suits  as\talso the writ petitions\t and  rejecting\t the
\ninjunctions  sought for and other interim orders.  I  would,
\nhowever,  like to give my own reasons high-lighting some  of
\nthe important aspects that arise in the case.
\nBy  virtue of the President’s order dated the  18th  January
\n1977  published in the Gazette of India-Extraordinary,\tPart
\n1-section  1-by a notification dated the 19th  January\t1977
\nthe  President in exercise of the powers conferred upon\t him
\nby  sub-clause\t(b)  of\t clause\t (2)  of  Art.\t85  of\t the
\nConstitution dissolved the Lok Sabha.  Thus notification was
\nsoon  followed\tby  another  notification  dated  the\t10th
\nFebruary  1977\tissued by the Ministry of Law,\tJustice\t and
\nCompany\t  Affairs   calling  upon  all\t the   parliamentary
\nconstituencies to elect members in accordance with S.  14(2)
\nof  the\t Representation\t of  the,  People  Act,\t 1951.\t  In
\npursuance  of this Notification the Election  Commission  on
\nthe  same day appointed the dates when elections were to  be
\nheld in various constituencies.\t This order was passed under
\ns.  30\tof  the\t Representation of  the\t People\t Act,  1951.
\nFurther\t details  are  not  necessary  for  the\t purpose  of
\ndeciding  the  issues arising in this case.  Suffice  it  to
\nmention that in consequence of the elections which were held
\nin  March  1977,  the Congress Party was  almost  routed  in
\nBihar,\tU.P.,  Himachal Pradesh,  Haryana,  Madhya  Pradesh,
\nOrissa, Punjab, Rajasthan and West Bengal, and\tparticularly
\nin  some of the States not a single candidate set up by\t the
\nCongress  Party\t was returned.\tThe Congress also  lost\t its
\nmajority  in  the  Lok\tSabha as  a  result  of.  which\t the
\nGovernment  at the centre was formed by the Janata Party  in
\ncoalition  with\t the Congress for  Democracy.\tMr.  Morarji
\nDesai  the present Prime Minister was sworn in\tafter  being
\nelected\t as  the  party\t leader on March  24,  1977  and  he
\nselected  his Council of Ministers on March 25, 1977.\tSoon
\nthereafter the Union Home Minister addressed a letter to the
\naforesaid   nine  states,  namely,  Bihar,  U.P.,   Himachal
\nPradesh, Haryana, Madhya Pradesh, Orissa, Punjab,  Rajasthan
\nand  West  Bengal, asking them to  advise  their  respective
\nGovernors  to  dissolve\t the Assemblies\t and  seek  a  fresh
\nmandate from the people.\n<\/p>\n
The six plaintiffs, namely, the States of Rajasthan,  Madhya
\nPradesh,  Punjab,  Bihar, Himachal Pradesh and\tOrissa\thave
\nfiled suits in this Court praying for a declaration that the
\nmatter\tof the Home Minister was illegal and ultra vires  of
\nthe  Constitution  and\tnot binding on\tthe  plaintiffs\t and
\nprayed\tfor  an interim injunction restraining\tthe  Central
\nGovernment  from resorting to Art. 356 of the  Constitution.
\nA permanent injunction was also sought for by the plaintiffs
\nin order to restrain the Central Government permanently from
\ntaking\tany  steps to dissolve the  Assemblies\tuntil  their
\nnormal\tperiod of six years was over.  The writ\t petitioners
\nwho  are some members of the Legislative Assembly of  Punjab
\nhave  filed writ petition complaining of violation of  their
\nfundamental   rights  and  have\t also  prayed  for   similar
\ninjunctions.   The prayer of the plaintiffs as also that  of
\nthe
\n\t\t     99<\/span>
\npetitioners   has   been   seriously   contested   by\t the
\ndefendant\/respondent  Union  of India on  whose\t behalf\t the
\nAdditional  Solicitor-General  raised  several\t preliminary
\nobjections and also contested the claim on merits.
\nHaving discussed the nature of the claim by the\t plaintiffs,
\nif may now be germane to examine the preliminary  objections
\ntaken  by the defendant to the maintainability of the  suits
\nby  the\t plaintiffs  as also of the  petitions.\t  The  first
\npreliminary  objection\traised by the  Additional  Solicitor
\nGeneral was that the suits were not maintainable under\tArt.
\n131  of\t the Constitution because one of the  essential\t re-
\nquirements  of\tArt. 131 was that there must  be  a  dispute
\nbetween the Government of India and one or more States,\t and
\nthe present dispute is, on the very face of the\t allegations
\nmade by the plaintiffs, not between the Government of  India
\nand one or more States, but it is between the Government  of
\nIndia  and the States Governments which is not\tcontemplated
\nby  Art. 131 of the Constitution.  Mr. Niren  De,  appearing
\nfor  some  of the plaintiffs, however,\tsubmitted  that\t the
\nlanguage of Art. 131 is wide enough to include not only\t the
\nStates\tbut  also  the State  Governments  which  alone\t can
\nrepresent  the states and context any legal right on  behalf
\nof the States.\n<\/p>\n
It  was next contended by the  Additional  Solicitor-General
\nthat  even if the first condition of Art. 131 is  satisfied,
\nthere  was  no dispute, as contemplated by  Art.  131.\t Mr.
\nNiren  De  rebutted  this argument by  contending  that\t the
\nletter of the Home Minister disclosing the grounds on  which
\nthe   Central  Government  proposed  to\t take\taction\t (or
\ndissolution of the Assemblies was a sufficient dispute which
\nentitled  the plaintiffs to approach this Court\t under\tArt.\n<\/p>\n
131.
\nLastly, it was submitted by the Additional Solicitor-General
\nthat while the plaintiffs have prayed for the relief of both
\ntemporary  and permanent injunctions, this Court, hearing  a
\nsuit  under Art. 131 of the Constitution, cannot  grant\t the
\nrelief\tfor injunction and the only relief which this  Court
\ncan  give would be purely of a declaratory character.\tThis
\npoint,\thowever,  was later on given up\t by  the  Additional
\nSolicitor-General,  and in our opinion rightly,\t because  s.
\n204 of the Government of India Act, 1935, which preceded the
\nConstitution contained an express provision, viz. sub-s. (2)
\nwhich  expressly barred the right of the Court to grant\t any
\nrelief\texcepting a declaratory one, whereas in Art. 131  of
\nthe   Constitution   that   particular\t clause\t  has\tbeen
\ndeliberately omitted and the restriction imposed under\tthat
\nclause by the Government of India Act has been removed, as a
\nresult\tof  which this Court can grant any relief  which  it
\nthinks suitable and which is justified by the necessities of
\na particular case.\n<\/p>\n
In  order  to examine the validity of  the  contentions\t put
\nforward\t by counsel for the parties, it may be necessary  to
\nextract the provisions of Art. 131 of the Constitution,\t the
\nrelevant part of which runs thus :\n<\/p>\n
\t      “131.  Original  jurisdiction of\tthe  Supreme
\n\t      Court.-Subject  to  the  provisions  of\tthis
\n\t      Constitution, the Supreme
\n100<\/span>
\n\t      Court  shall,  to the exclusion of  any  other
\n\t      Court,  have  original  jurisdiction  in\t any
\n\t      dispute-\n<\/p><\/blockquote>\n
\t      (a)   between the Government of India and\t one
\n\t      or more States; or\n<\/p><\/blockquote>\n
\t      (b)   between the Government of India and\t any
\n\t      State  or States on one side and one  or\tmore
\n\t      other States on the other, or\n<\/p><\/blockquote>\n
\t      (c)   between two or more States,
\n\t      if  and in so far as the dispute involves\t any
\n\t      question (whether of law or fact) on which the
\n\t      existence or extent of a legal right depends.”\n<\/p><\/blockquote>\n
An  analysis of this provision would indicate that before  a
\nsuit can be entertained by this Court under this  provision,
\nthe following conditions must be satisfied :\n<\/p>\n
\t      (i)   that there must be a dispute;\n<\/p><\/blockquote>\n
\t      (ii)  that  the  dispute must be\tbetween\t the
\n\t      Government of India and one or more States  or
\n\t      between  Government of India and any State  or
\n\t      States  on  one  side and one  or\t more  other
\n\t      States  on the other, or between two  or\tmore
\n\t      States,,\n<\/p><\/blockquote>\n
\t      (iii) that   the\tdispute\t must  involve\t any
\n\t      question (whether of law or fact) on which the
\n\t      existence or extent of a legal right  depends;
\n\t      and\n<\/p><\/blockquote>\n
\t      (iv)  that there is no other provision in\t the
\n\t      Constitution  which can be resorted  to  solve
\n\t      such a dispute.\n<\/p><\/blockquote>\n
Before we apply these conditions to the facts of the present
\ncase, it may be necessary to run through the contents of the
\nletter\tof the Home Minister as\t also the Press\t interviews
\ngiven by him and by the, Law Minister which according to the
\nplaintiffs  form  an  integral\tpart  of  the  communication
\nreceived by them from the Home Minister.  My Lord the  Chief
\nJustice\t has  extracted in extenso the press  statements  as
\nalso the contents of the letter of the Home Minister written
\nto  the\t various Chief Ministers of the States and  I  would
\nlike, however, to indicate the main points contained therein
\nfor the purpose of deciding whether or\tnot  a real  dispute
\narose in the case.\n<\/p>\n
The  statement\tof.  the  Home\tMinister  to  the  Press  is
\nextracted at p.\t    25\tin Original Suit No. 2 of  1977\t and
\nthe relevant part of the same runs thus :\n<\/p>\n
\t      “We have given our most earnest  consideration
\n\t      to   the\tunprecedented  political   situation
\n\t      arising  out of the virtual rejection, in\t the
\n\t      recent  Lok  Sabha Elections of  the  Congress
\n\t      candidates in several States.  I have in\tmind
\n\t      Punjab, Haryana, Himachal Pradesh,  Rajasthan,
\n\t      Madhya  Pradesh, Bihar, Orissa, Uttar  Pradesh
\n\t      and West Bengal.\n<\/p><\/blockquote>\n
\t      101<\/span><\/p>\n
\t      propriety of the Congress Governments in these
\n\t      States, continuing in power without seeking  a
\n\t      ‘fresh mandate from the electorate.”\n<\/p><\/blockquote>\n
Similarly  the\trelevant part-of the contents  of  the\tHome
\nMinister’s  letter to the Chief Ministers may  be  extracted
\nthus
\n\t      “We   have  given\t our  earnest  and   serious
\n\t      consideration   to  the\tmost   unprecedented
\n\t      political situation arising out of the virtual
\n\t      rejection, in the recent Lok Sabha  elections,
\n\t      of candidates belonging to the ruling party in
\n\t      various  States.\tWe have reasons\t to  believe
\n\t      that this has created a sense of diffidence at
\n\t      different levels of administration.  People at
\n\t      large   do  not  any  longer  appreciate\t the
\n\t      propriety\t of continuance in power of a  party
\n\t      which  has been unmistakably rejected  by\t the
\n\t      electorate.\n<\/p>\n
\t\t\t\t (Emphasis supplied)
\nRelevant  portions of the extracts from the interview  given
\nby  Mr. Shanti Bhushan in a spotlight programme of  the\t All
\nIndia  Radio-may  also be quoted from Annexure\t‘B’  of\t the
\nPaper Book in Original Suit No. 1 of 1977 filed by the State
\nof Rajasthan which run thus :\n<\/p>\n
\t      “In  an interview in the spot-light  programme
\n\t      of  All  India  Radio he said  that  the\tmost
\n\t      important\t basic feature of  the\tConstitution
\n\t      was  democracy, which meant that a  Government
\n\t      should function with the broad consent of\t the
\n\t      people and only solong as it enjoyed  their
\n\t      confidence.  If State Governmentschose   to
\n\t      govern  the  people  after  having  lost\t the
\n\t      confidenceof   the  people,  they\t would\t be
\n\t      undemocratic Governments he said”.\n<\/p><\/blockquote>\n
\t\t\t       (Emphasis supplied)
\n\t      Constitution was democracy which meant that  a
\n\t      Government  should  function  with  the  broad
\n\t      consent  of the people and only so long as  it
\n\t      enjoyed the confidence of the people.
\n\t      Mr.  Shanti  Bhushan said that the  mere\tfact
\n\t      that at one time the Government in the  States
\n\t      enjoyed  the confidence of the people did\t not
\n\t      give  them  the right to\tgovern\tunless\tthey
\n\t      continued\t to  enjoy that\t confidence.   If  a
\n\t      situation\t arose in which a serious doubt\t was
\n\t      cast   upon   the\t Government   enjoying\t the
\n\t      continued\t confidence of the people, then\t the
\n\t      provision\t for  premature dissolution  of\t the
\n\t      Assembly immediately came into operation.
\n\t      The  provision not merely gives the power\t but
\n\t      it casts a duty because this power is  coupled
\n\t      with  duty,  namely,  the\t Assembly  must\t  be
\n\t      dissolved immediately and the Government\tmust
\n\t      go  to  the people to see whether it  has\t the
\n\t      continued confidence of the people to govern.”\n<\/p><\/blockquote>\n
102<\/span><\/p>\n
Thus analysing the stands taken by the Home Minister and the
\nLaw  Minister,\tthe following grounds appear  to  have\tbeen
\nrelied\ton by them for the purpose of maintaining  that\t the
\nAssemblies  should  be\tdissolved and  the  Chief  Ministers
\nthemselves should advise the Governors accordingly
\n\t      (1)   that    an\t  unprecedented\t   political
\n\t      situation had arisen by the virtual rejection,
\n\t      in  the  recent Lok Sabha\t elections,  of\t the
\n\t      Congress\tcandidates in the States  concerned,
\n\t      namely   the  plaintiffs\tin  the\t six   suits
\n\t      including\t Uttar\tPradesh,  Haryana  and\tWest
\n\t      Bengal);\n<\/p>\n
\t      (2)   that   the\tpeople\tat  large  did\t not
\n\t      consider\t it  expedient\tfor   the   Congress
\n\t      Governments  to  continue\t without  seeking  a
\n\t      fresh  mandate,  when the Congress  party\t was
\n\t      completely  routed in the Lok Sabha  elections
\n\t      from the States concerned;\n<\/p>\n
\t      (3)   that  the  constitutional  experts\thave
\n\t      also advised the Home Minister that the  State
\n\t      Governments   have  impliedly  forfeited\t the
\n\t      confidence of the people;\n<\/p>\n
\t      (4)   that  there is a climate of\t uncertainty
\n\t      which  has  created a sense of  diffidence  at
\n\t      different levels of administration;\n<\/p>\n
\t      (5)   that  such a climate of uncertainty\t has
\n\t      given  rise  to  serious threats\tto  law\t and
\n\t      order;\n<\/p>\n
\t      (6)   that the most important basic feature of
\n\t      the Constitution being democracy, a Government
\n\t      had to function with the broad consent of\t the
\n\t      people  so long as it enjoyed its\t confidence.
\n\t      If the State Government lost the confidence of
\n\t      the people, then it would be undemocratic\t for
\n\t      them to continue;\n<\/p>\n
\t      (7)   that  if a situation arises in  which  a
\n\t      serious  doubt  was cast upon  the  Government
\n\t      enjoying\tthe  continued\tconfidence  of\t the
\n\t      people,  then  the  provision  for   premature
\n\t      dissolution  of the Assembly would at once  be
\n\t      attracted.  Where such a situation arises, the
\n\t      power contained in the Constitution is coupled
\n\t      with  a  duty  to dissolve  the  Assembly\t and
\n\t      direct  the Government to go to the people  in
\n\t      order  to\t see whether it\t has  the  continued
\n\t      confidence of the people to govern them.\n<\/p>\n
The  correctness  of  the extracts  quoted  above  from\t the
\ndocuments  filed by the plaintiffs has not been disputed  by
\nthe  Additional\t Solicitor-General.  Mr. Niren\tDe  contends
\nthat in view of the stand taken by the Law Minister and\t the
\nHome  Minister\tthere  arose a\tclear  dispute\tbetween\t the
\nGovernment of India and the State Governments so as to\tcall
\nfor  an\t adjudication  by this Court.  In  my  opinion,\t the
\ncrucial question to be considered is whether or not there is
\na   dispute.   Statements  by  Ministers  or  even  by\t the
\nGovernment or made by one party and denied by the other\t may
\nnot amount to a dispute, unless
\n103<\/span>
\nsuch a dispute is based on a legal right.  A “dispute?’\t has
\nbeen  defined  in  the\tWebster’s  Third  New  International
\nDictionary as follows
\n\t      “verbal  controversy  :  strife  by   opposing
\n\t      argument\tor expression of opposing  views  or
\n\t      claims :\tcontroversial discussion.”\n<\/p>\n
A dispute, therefore, clearly postulates that there must  be
\nopposing  claims which are sought to be put forward  by\t one
\nparty  and  resisted by the others.  One  of  the  essential
\ningredients  of Art. 131 is that the dispute must involve  a
\nlegal  right based on law or fact.  The question  which\t one
\nwould  ask is what is the legal right which is\tinvolved  in
\nthe  ‘statements  given\t by the Home  Minister\tor  the\t Law
\nMinister or the letter addressed by the Home Minister to the
\nChief  Ministers  The governmental authorities\thave  merely
\nexpounded  the\tconsequences of the  interpretation  of\t the
\nconstitutional provisions relating to the dissolution of the
\nAssemblies.  There can be no doubt that under Art. 356 it is
\nthe  Central Government alone which, through its Council  of
\nMinisters, can advise the President to issue a\tproclamation
\ndissolving  the\t Assemblies.  The word\t“otherwise”  clearly
\nincludes  a contingency where the President acts not on\t the
\nreport of the Governor but through other modes, one of which
\nmay  be\t the advice tendered by the  Council  of  Ministers.
\nUnder  Art. 74 as amended by the Constitution  (Forty-second
\nAmendment)  Act,  1976, the relevant part of  which  may  be
\nextracted below :\n<\/p>\n
\t      “There  shall be a Council of  Ministers\twith
\n\t      the  Prime  Minister at the head\tto  aid\t and
\n\t      advise   the  President  who  shall,  in\t the
\n\t      exercise\tof his functions, act in  accordance
\n\t      with such advice.”\n<\/p><\/blockquote>\n
the Council of Ministers has to aid and advise the President
\nand  once  the\tadvice is given, the President\thas  got  to
\naccept\tit, there being no discretion left in him.  Thus  if
\nthe  Central Government chooses to advise the  President  to
\nissue  a proclamation dissolving an Assembly, the  President
\nhas  got  no  option but to issue  the\tproclamation.\tThis
\nmanifestly  shows  that the Central Government has  a  legal
\nright to approach the President to issue a Proclamation\t for
\ndissolution of an Assembly as a part of the essential duties
\nwhich the Council of Ministers have to perform while  aiding
\nand advising the President.  The State Governments, however,
\ndo not possess any such right at all.  There is no provision
\nin the Constitution which enjoins that the State  Government
\nshould be consulted or their concurrence,should be  obtained
\nbefore\tthe Council of Ministers submit their advice to\t the
\nPresident regarding a matter pertaining to the State so\t far
\nas the dissolution of an Assembly is concerned.\t Article 356
\nalso  which  confers  a power on the President\tto  issue  a
\nProclamation  dissolving all Assembly does not\tcontain\t any
\nprovision   which  requires  either  prior   or\t  subsequent
\nconsultation  or concurrence of the State Government  before
\nthe President exercises this power.  In these circumstances,
\ncan  it be said that the State Governments have a  right  to
\nassert\tthat an order under Art. 356 shall not be passed  by
\nthe President or to file
\n104<\/span>
\na  suit\t for a\tdeclaration  that  the\tPresident  may\tbe
\ninjuncted  from\t passing such an order ? The  right  of\t the
\nState Governments to exist depends on the provisions of\t the
\nConstitution which is subject to Art. 356.  If the President
\ndecides to accept the advice of the Council of Ministers  of
\nthe Central Government and issues a proclamation  dissolving
\nthe  Assemblies,  the  State Governments have  no  right  to
\nobject to the constitutional mandate contained in Art.\t356.
\nIt is conceded by Mr. Niren De that if the President, on the
\nadvice\tof  the Council of Ministers, would  have  passed  a
\nnotification dissolving the State Assemblies under Art. 356,
\nthe  plaintiffs were completely out of court and  the  suits
\nwould not have been maintainable.  It is not  understandable
\nhow  the  position would be any different or worse,  if\t the
\nCentral\t  Government   chose  to  be  fair  to\t the   State Governments
\nconcerned by informing them of the grounds  on
\nthe basis of Which they were asked to advise their Governors
\nto dissolve the Assemblies.  The mere fact that such letters
\nwere  sent  to the State  Government  containing  gratuitous
\nadvice\twould not create any dispute, if one did  not  exist
\nbefore, nor would such a course of conduct clothe the  State
\nGovernment  with a legal right to call for  a  determination
\nunder  Art.  131.  If the State Governments do\tnot  possess
\nsuch  a\t legal right, or for that matter any right  at\tall,
\nthen they cannot put forward any claim before a Court for  a
\ndeclaration or injunction.  Mr. Niren De, however, submitted
\nthat  the very fact that the Home Minister was compelled  to
\naddress a communication to the Chief Ministers of the  State
\nGovernments  for  advising  the Governors  to  dissolve\t the
\nrespective  Assemblies\tand the Chief Ministers\t refused  to
\naccept the advice of the Home Minister shows that a  dispute
\narose.\t In  my opinion, however, the  contention  does\t not
\nappear\t to  be\t well  founded.\t  Assuming  that  the\tHome
\nMinister’s letter to the Chief Ministers raised some sort of
\na  dispute,  the moment the Chief  Ministers  answered\tthat
\nletter\tand spurned the advice given by the  Home  Minister,
\nthe  dispute  came to an end and ceased\t to  exist.   Unless
\nthere is on existing dispute involving a legal right between
\nthe  parties,  the  forum provided by  Art.  131  cannot  be
\navailed\t of  by any party.  I am fortified in my view  by  a
\ndecision of the Federal Court in The United Provinces v. The
\nGovernor-General in Council,(1) where Gwyer, C.J.,  speaking
\nfor the Court observed thus :\n<\/p>\n
\t      “The  Federal  Court has by s. 204(1)  of\t the
\n\t      Constitution   Act   an\texclusive   original
\n\t      jurisdiction   in\t any  dispute  between\t the
\n\t      Governor-General\t in   Council\t(or,   after
\n\t      federation, the Federation) and any  Province,
\n\t      if  and in so far as the dispute involves\t any
\n\t      question, whether of law or fact, on which the
\n\t      existence or extent of a legal right  depends.
\n\t      It  is  admitted that the legal right  of\t the
\n\t      Province\t to   have  the\t fines\t now   under
\n\t      discussion credited to Provincial revenues and
\n\t      not  to the Cantonment Funds depends upon\t the
\n\t      validity or otherwise of s. 106 of the Act  of
\n\t      1924.  The plaintiffs deny the validity of the
\n\t      section,\tthe  defendant asserts\tit;  and  it
\n\t      seems  to\t me that this is clearly  a  dispute
\n\t      involving a question on which the existence of
\n\t      a legal right depends.”\n<\/p><\/blockquote>\n
(1)  [1939] F.C.R. 124,136.\n<\/p>\n
10 5
\nThis  case  effords a clear illustration of a  real  dispute
\ninvolving a legal; right.  In that case the main dispute was
\nregarding  the\tquestion  whether  the\tfines  credited\t  to
\nProvincial revenues and not to the Cantonment Funds belonged
\nto  the\t Province  or the  Central  Government\tthrough\t the
\nCantonment.   It  will\tbe noticed that\t the  Federal  Court
\nclearly\t held  that such a dispute clearly fell\t within\t the
\npurview\t of S. 204(1) of the Government of India  Act  which
\nwas  in pari materia to Art. 131 of the Constitution.\tThat
\ncase is purely illustrative and decides that it is only such
\ntype of disputes as are contemplated by Art. 131.  For these
\nreasons,  therefore,  I am clearly of the view\tthat  having
\nregard\tto the facts and circumstances of the present  case,
\nit  has\t not  been established that there  was\tany  dispute
\ninvolving a legal right between the Government of India\t and
\nthe  State Governments, and therefore one of  the  essential
\ningredients of Art. 131 not having been fulfilled the  suits
\nare not maintainable on this ground alone.
\nThe  next  preliminary\tobjection taken\t by  the  Additional
\nSolicitor  General was that there is no dispute between\t the
\nGovernment  of\tIndia and the States because what  Art.\t 131
\npostulates   is\t that  the  dispute  must  be  between\t the
\nGovernment  of\tIndia and the States as\t understood  in\t the
\nproper\tsense, namely, the territories comprising the  State
\nor  the\t permanent institutions comprised in it,  e.g.,\t the
\nGovernor,  the\tLegislature,  the  High\t Court,\t the  Public
\nService Commission and the like.  In other words, where\t the
\nCentral\t  Government   wants  to  oblish   the\t Legislature
\ncompletely or to abolish the institution of the Governor  or
\nthe High Court, this will be a matter which will concern the
\nState  and the State Government as such.  I am\tinclined  to
\nagree  with  the contention put forward\t by  the  Additional
\nSolicitor-General.   What Art. 131 takes within its fold  is
\nnot  the State Government comprising of a particular set  of
\nMinisters, but the Government itself, which exists for ever,
\neven though the personnel running the Government may change,
\nfrom  time  to time.  Article 12 of  the  Constitution,\t the
\nscope of which is restricted only to the fundamental rights,
\ndoes  provide that the “State” includes the  Government\t and
\nParliament  of India and the Government and the\t Legislature
\nof each of the States.\tHere the term “State” has been given
\na very broad spectrum because the definition is dealing with
\nthe  exposition\t of  fundamental  rights  and  its   various
\nincidents  which  have\tto be interpreted  in  the  broadest
\npossible  sense\t so  as\t to protect  the  citizen  from\t any
\ninstitution included in the term “State” which even includes
\nnot only the Government of the State but also Government  of
\nIndia.\t Article 12, however, does not apply to\t Chapter  IV
\nwhere  Art.  131  occurs  and which  deals  with  the  Union
\nJudiciary.   In fact the word “State” as mentioned  in\tArt.
\n131  has  not  been defined anywhere  in  the  Constitution.
\nUnder\tArt.  367  if  any  term  is  not  defined  in\t the
\nConstitution recourse can be had to the General Causes\tAct,
\n1897, for the purpose of understanding the meaning of such a
\nterm.\tSection\t 3(58) of the General  Clauses\tAct  defines
\n“State” thus :\n<\/p>\n
“State”-\n<\/p>\n
.lm15\n<\/p>\n
(a)as  respects any period before the commencement of  the
\nConstitution  (Seventh\tAmendment) Act, 1956, shall  mean  a
\nPart A State, a Part B State or a Part C State; and
\n10 6\n<\/p>\n
(b)as  respects any period after such commencement,  shall
\nmean  a\t State specified in the First Schedule to  the\tCon-
\nstitution and shall include a Union territory :”
\nOn the other hand S. 3(23) defines the word “Government”  or
\n“the  Government” as including both the\t Central  Government
\nand  any State Government.  Thus it will be clear  from\t the
\ndefinition  of\t“State’\t given in s. 3(58)  of\tthe  General
\nClauses\t Act  that the “State” does not\t include  the  State
\nGovernment.\n<\/p>\n
\t      The  relevant parts of Arts.  1 and 3  of\t the
\n\t      Constitution run thus
\n\t      ” 1.  Name and territory of the Union :-\n<\/p>\n
\t      (1)   India, that is Bharat, shall be a  Union
\n\t      of States.\n<\/p>\n
\t      (2)   The\t States and the territories  thereof
\n\t      shall be as specified in the first schedule.
\n\t      (3)   The territory of India shall comprise-\n<\/p>\n
\t      (a)   the territories of the States;\n<\/p>\n
\t      (b)   the\t Union territories specified in\t the
\n\t      First Schedule; and\n<\/p>\n
\t      (c)   such   other  territories  as   may\t  be
\n\t      acquired.”\n<\/p>\n
\t      “3.  Formation of new States and alteration of
\n\t      areas, boundaries or names of existing States
\n\t      Parliament may by law-\n<\/p>\n
\t      (a)   form  a  new  State\t by  separation\t  of
\n\t      territory from any State or by uniting two  or
\n\t      more  States or parts of States or by  uniting
\n\t      any territory to a part of any State;\n<\/p>\n
\t      (b)   increase the area of any State;\n<\/p>\n
\t      (c)   diminish the area of any State;\n<\/p>\n
\t      (d)   alter the boundaries of any State;\n<\/p>\n
\t      (e)   alter the name of any State : ”\n<\/p>\n
A  perusal  of these Articles would  reveal  in\t unequivocal
\nterms  that  wherever  the Constitution has  used  the\tword
\n“State”\t without any qualification it means “State”  in\t the
\nordinary sense of its term, namely, the State along with its
\nterritory or institutions.  Article 3 expressly empowers the
\nParliament to increase or diminish the area or territory  of
\nany  State.  It has no reference to the State Government  at
\nall or for that matter to a particular State Government\t run
\nby  a particular party.\t In my opinion, therefore, the\tword
\n“State”\t in  Art. 131 has also been used  in  this  ordinary
\nsense  so as to include only the territory of the State\t and
\nthe  permanent\tinstitutions contained therein.\t  A  dispute
\narising\t between the personnel running the  institutions  is
\nbeyond the ambit of Art. 131.  Further more, it would appear
\nthat  cls. (a) & (b) of Art. 131 deliberately and  advisedly
\nuse the word “Government of
\n107<\/span>
\nIndia  and  one or more States”.  If the  intention  was  to
\nbring  even,  a Stale Government as run by  the\t Council  of
\nMinisters  within  the purview of this provision,  then\t the
\nwords “one or more State Governments” should have been\tused
\ninstead\t of using the word “State”.  This is, therefore,  an
\nintrinsic circumstance which shows that the founding fathers
\nof  the\t Constitution intended that the\t dispute  should  be
\ncontained only to the Government of India and the States  as
\na  polity or a constituent unit of the republic\t instead  of
\nbringing  in  dispute  raised by the  Government  run  by  a
\nparticular  Council of Ministers which does not\t pertain  to
\nthe State as such.\n<\/p>\n
Thus, summarising my conclusions on this point, the position
\nis  that  the  import & purport of Art.\t 131  is  to  decide
\ndisputes  between  one\tState and  another  or\tbetween\t the
\nGovernment  of India and one or more States.   The  founding
\nfathers\t of the Constitution have used the word\t “State”  in
\nArt.   131  both  deliberately\tand  advisedly\tso   as\t  to
\ncontemplate  the  State as a constituent unit of  the  Union
\nalong  with its territory and permanent\t institutions.\t The
\nquestion  as to the personnel who run these institutions  is
\nwholly\tunrelatable to the existence of a dispute between  a
\nState and the Government of India.  It is only when there is
\na complete abolition of any of the permanent institutions of
\na  State  that a real dispute may arise.  A  mere  temporary
\ndissolution of an Assembly under Art. 356 does not amount to
\nan  abolition  of  a  State  Assembly,\tbecause\t after\tsuch
\ndissolution   under  the  provisions  of  the\tConstitution
\nelections  are bound to follow and a new  Legislature  would
\nevidently come into existence after the voters have  elected
\nthe  candidates.  Unfortunately, there is no clear  decision
\nof  this  Court directly on this point, but on\ta  true\t and
\nproper\tconstruction  of Art. 131, 1 am of the view  that  a
\ndispute\t like  the present is totally outside the  scope  of
\nArt. 131 of the Constitution.  For these reasons, therefore.
\nI  hold\t that  the State Governments  who  have\t raised\t the
\ndispute\t in  this case are not covered by the  word  “State”
\nappearing  in  Art.  131 and therefore\tthe  suits  are\t not
\nmaintainable  on this ground also. 1, therefore,  record  my
\nrespectful dissent from the view taken by my lord the  Chief
\nJustice and brother Judges on this particular point.
\nSimilarly  in  the case of writ\t petitions,  the  Additional
\nSolicitor-General  raised a preliminary objection as to\t the
\nmaintainability of the petitions.  It was contended that the
\nright  of  the\tpetitioners as members\tof  the\t Legislative
\nAssembly of Punjab was not a fundamental right as  envisaged
\nby part III of the Constitution.  At the most, the right  to
\nreceive\t allowances as members of the Assembly was merely  a
\nlegal right consequent upon their election as members of the
\nAssembly.   It\twas  not  a  right  which  flowed  from\t the
\nConstitution.  Thus argued the Additional  Solicitor-General
\nthat there being no infraction of any fundamental right, the
\npetitioners cannot be allowed to take recourse to Art. 32 of
\nthe  Constitution of India.  This argument was sought to  be
\nrepelled  by Mr. Garg, Counsel for the petitioners,  on\t the
\nground\tthat in view of the decision of this Court in H.  H.
\nMaharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur & Ors.
\nv. Union of India<\/a>(1) commonly known as “Privy Purses  Case”-
\nthe  right  to\treceive allowances by  the  petitioners\t was
\nundoubtedly a right to property and by the
\n(1) [1971] 3 S.C.R. 9.\n<\/p>\n
8-722SCI\/77
\n108<\/span>
\nthreatened  dissolution of the Assembly there was  a  direct
\nthreat\tto  the\t fundamental right  to\tproperty  which\t the
\npetitioners  had both under Art. 19 (1 ) (f) and Art. 31  of
\nthe Constitution.  Very attractive though they are, we\tare,
\nhowever,  unable to accept the arguments put forward by\t Mr.
\nGarg.  This Court in the Privy Purses Case was considering a
\nlegal  right in quite a different context, namely, Art.\t 291
\nof  the\t Constitution which has since been repealed  by\t the
\nConstitution  (Twenty-sixth Amendment) Act,  1971.   Article
\n291 as it stood then may be extracted thus
\n“291.  Privy purse sums of Rulers:-\n<\/p>\n
\t      Where under any covenant or agreement  entered
\n\t      into  by the Ruler of any Indian State  before
\n\t      the  commencement\t of this  Constitution,\t the
\n\t      payment  of  any sums, free of tax,  has\tbeen
\n\t      guaranteed or assured by the Government of the
\n\t      Dominion\tof India to any Ruler or such  State
\n\t      as privy purse-\n<\/p><\/blockquote>\n
\t      (a)   such sums shall be charged on, and\tpaid
\n\t      out of, the Consolidated Fund of India, and\n<\/p><\/blockquote>\n
\t      (b)   the\t sums so paid to any Ruler shall  be
\n\t      exempt from all taxes on income.”\n<\/p><\/blockquote>\n
A perusal of this provision would clearly indicate that\t the
\nfounding  fathers  of the Constitution sought  to  guarantee
\ncertain\t legal rights conferred on the Rulers by making\t the
\nsums  paid  to\tthem a charge on the  Consolidated  Fund  of
\nIndia.\t The payments made to the Rulers were guaranteed  by
\nthe Constitution itself and it was in view of this  peculiar
\nand special provision that this Court held that the right of
\nthe  Rulers to receive payments free of tax was not  only  a
\nlegal  right flowing from the Constitution but also a  right
\nto   property,\t because  a  charge  was  created   on\t the
\nConsolidated  Fund of India for the payments to be  received
\nby the Rulers.\tIn other words, the right to property  arose
\ndirectly  from the status occupied by the Rulers  under\t the
\nConstitutional\tprovision itself and it was  not  consequent
\nupon the Rulers obtaining a particular status as members  of
\nthe Assembly or otherwise which may be consequential to\t the
\nacquisition  of\t their ‘subsequent status.  In\tthe  instant
\ncase,  the right of the petitioners is only a limited  right
\ninasmuch  as it subsists only so long as the  Assembly\truns
\nits usual course of six years.\tThe right may also cease  to
\nexist  if  the\tAssembly is dissolved by  the  President  by
\nissuing\t  a  proclamation  under  Art.\t356.\tThe   right,
\ntherefore, subsists only so long as these two  contingencies
\ndo  not\t occur.\t  Further more, the  Constitution  does\t not
\nguarantee  any\tright or allowances to the  Members  of\t the
\nAssembly which are given to them by local Acts or Rules.  In
\nthese  circumstances, therefore, the ratio decidendi of\t the
\nPrivy  Purses Case cannot apply to the petitioners.   Hedge,
\nJ.,  while  dealing  with  the nature  of  the\tlegal  right
\npossessed by the Rulers in the Privy Purses case observed as
\nfollows
\n\t      “As I am satisfied that the rights under Arts.
\n\t      31  and 19(1)(f) have been contravened  it  is
\n\t      not   necessary\tto   examine   the   alleged
\n\t      contravention of other rights.\n<\/p>\n
\t      109<\/span><\/p>\n
\t      I have earlier come to the conclusion that the
\n\t      right to get the privy purse under Art. 291 is
\n\t      a legal right. from that it follows that it is
\n\t      a right enforceable through the courts of law.
\n\t      That right is undoubtedly a property.  A right
\n\t      to  receive  cash\t grants\t annually  has\tbeen
\n\t      considered by this Court to be a\tproperty-see
\n\t      State  of\t M.P. v. Ranojirao Shinde  and\tAnr-<\/a>\n<\/p>\n
\t      (1968) 3 SCR 489.\t Even if it is considered as
\n\t      a\t pension  as the same is payable  under\t law
\n\t      namely  Art.  291, the  same  is\tproperty-see
\n\t      Madhaorao\t Phalke v. State of  Madhya  Bharat-<\/a>
\n\t      (1961) 1 SCR 957.”\n<\/p>\n
It  is\tobvious that the observations of this  Court  cannot
\napply  to  the petitioners who cannot be said  to  have\t any
\nfundamental right contained in Part III of the Constitution.
\nFor  these reasons, therefore, I am of the opinion that\t the
\npreliminary  objection raised by the  Additional  Solicitor-
\nGeneral is well founded and must prevail.\n<\/p>\n
Since we have heard the suits and the petitions on merits at
\ngreat length also, even if we assume that the writ petitions
\nare maintainable, we shall deal with the merits of both\t the
\nsuits  and the writ petitions.\tWe now proceed to deal\twith
\nthe merits of the suits and the writ petitions, although  we
\nthink that the suits of the plaintiffs as also the petitions
\nare  liable  to be rejected on\tthe  preliminary  objections
\nraised by the Additional Solicitor-General.
\nComing\tto  the merits, three contentions were\tput  forward
\nbefore us by counsel for the plaintiffs and the\t petitioners
\n:\n<\/p>\n
\t      (1)   that   the\tletter\tsent  by  the\tHome
\n\t      Minister to the Chief Ministers amounted to  a
\n\t      directive\t by  the Central Government  to\t the
\n\t      Chief  Ministers\tto  advice  the\t  respective
\n\t      Governors\t  for  dissolving   the\t  Assemblies
\n\t      resulting\t in interference in the federal\t set
\n\t      up   of\tthe  States  contemplated   by\t the
\n\t      Constitution;\n<\/p><\/blockquote>\n
\t      (2)   that  even\tif the letter  of  the\tHome
\n\t      Minister\twas  not  a  directive,\t it  clearly
\n\t      amounted\tto  a  threat to the  right  of\t the
\n\t      present  Government to continue in office\t and
\n\t      to be dissolved if the directions given to the
\n\t      Chief Ministers were not carried out;
\n\t      (3)   that the circumstances mentioned in\t the
\n\t      letter  did not constitute  sufficient  reason
\n\t      for  dissolution of the Assemblies under\tArt.
\n\t      356  and the action of the Central  Government
\n\t      in  writing the letter to the Chief  Ministers
\n\t      and giving interviews at the Press and the All
\n\t      India  Radio  amounted  to  a  mala  fide\t and
\n\t      colourable  action  which\t was  sufficient  to
\n\t      vitiate  the  advice  which  the\tCouncil\t  of
\n\t      Ministers\t might\tgive to\t the  President\t for
\n\t      resorting to Art. 356 of the Constitution.\n<\/p><\/blockquote>\n
Lastly,\t Mr. Niren De as also Mr. Garg submitted  that\tArt.
\n356  would have no application to the facts of\tthe  present
\ncase.\n<\/p>\n
We shall now deal separately with the contentions raised  by
\ncounsel\t for the parties.  As, regards the first  contention
\nthat the letter of
\n110<\/span>
\nthe  Home Minister to the Chief Ministers of the  plaintiff-
\nStates\tamounted  to  a\t directive  issued  by\tthe  Central
\nGovernment,  it was clarified by counsel for the  plaintiffs
\nthat  the  Central  Government had no  authority  under\t any
\nprovision  of  the Constitution to give a directive  to\t the
\nChief Ministers in the matter concerning purely the  States.
\nIn the first place, a careful perusal and an adroit analysis
\nof  the contents of the letter does not at all show that  it
\namounts\t to a directive given by the Central  Government  to
\nthe  Chief  Ministers.\t Although  the\tHome  Minister\t has
\nexpressed  his\tviews in the matter, but in  the  concluding
\nportion\t of  the  letter he has\t merely\t advised  the  Chief
\nMinisters   without   interfering   with   their    absolute
\ndiscretion.  The concluding portion of the letter  extracted
\nthus-\n<\/p>\n
\t      I would, therefore earnestly command for\tyour
\n\t      consideration   that  you\t may   advise\tyour
\n\t      Governor\tto  dissolve the State\tAssembly  in
\n\t      exercise\tof powers under Article\t 174(2)\t (b)
\n\t      and seek a fresh mandate from the\t electorate.
\n\t      This  alone would in our considered  view,  be
\n\t      consistent with constitutional precedents\t and
\n\t      democratic practices.”\n<\/p><\/blockquote>\n
Clearly shows that no compulsion was brought to bear on\t the
\nChief Ministers by the Home Minister and he sought to  state
\ncertain facts with great stress for the consideration of the
\nChief  Ministers.   The words “earnestly  commend  for\tyour
\nconsideration  that  you may advise” clearly show  that\t the
\nHome  Minister sought to give a friend advice to  the  Chief
\nMinisters  as  to  what\t they should  do  in  the  facts  an
\ncircumstances  of  the situation.  The\twords  “may  advise”
\nfurther\t indicate that the Home Minister did not  intend  to
\ngive  any mandator)directions to the Chief Ministers in\t the
\nmatter.\t  In of the words, the aforesaid letter if  properly
\nconstrued  is  no  more than an act  of\t political  courtesy
\ncontaining a suggestion or an advice or a fervent appeal  to
\nthe Chief Ministers lo consider the desirability of advising
\nthe  Governors\tto dissolve the Assemblies in  view  of\t the
\nfacts and circumstances disclosed in the said document.\t  It
\nis  in no measure binding on the Chief Ministers and  it  is
\nopen  to  them\tto refuse to act on  the  gratuitous  advice
\ntendered by the Home Minister which the Chief Ministers have
\nalready done.  Reading the letter as a whole, as I do, I  am
\nunable\tto  regard the letter as a directive issued  by\t the
\nCentral Government and as contemplated by Arts. 256 and\t 257
\nof  the Constitution of India.\tIn fact Art. 256 which\truns
\nthus
\n“Obligation of States and the Union ;\n<\/p>\n
\t      The executive power of every State shall be so
\n\t      exercised\t as  to ensure compliance  with\t the
\n\t      laws made by Parliament and any existing\tlaws
\n\t      which  apply in that Stale, and the  executive
\n\t      power of the Union shall extend to the  giving
\n\t      of such directions to a State as may appear to
\n\t      the  Government of India to be  necessary\t for
\n\t      that purpose.”\n<\/p><\/blockquote>\n
clearly defines the limits within which the executive  power
\nof  Parliament may exist and the directions contemplated  by
\nArt. 256 can be given to the States only within the  limited
\nsphere\tas  prescribed\tby Art. 256  i.e.,  in\trelation  to
\nexisting laws made by Parliament and those
\n111<\/span>
\nlaws which apply in the States.\t Article 257 contains a note
\nof  warning  and caution to both the Union  and\t the  States
\nagainst\t functioning  in  such\ta way so  as  to  impede  or
\nprejudice  exercise  of the executive power  of\t the  Union.
\nArticle 257 contains a further restriction on the Government
\nof India in that the power has to be exercised only for\t the
\npurposes mentioned in Arts. 256 and 257.\n<\/p>\n
With due respects of my Lord the Chief Justice, I am  unable
\nto subscribe to his view that the directive contained in the
\nletter\tmust be carried out, as I am clearly of the  opinion
\nthat   the  letter  does  not  amount  to  a  directive\t  as
\ncontemplated  by Arts. 256 and 257 of the  Constitution\t and
\ncannot\tbe  binding on the Chief Ministers  as\tit  pertains
\npurely to the States concerned, namely, giving of the advice
\nto  the\t Governors for dissolution of the  Assemblies.\t Our
\nConstitution  contains a well distributed system  of  checks
\nand balances on the various constituents, namely, the Union,
\nthe   States,  the  Executive,\tthe  Legislature   and\t the
\nJudiciary.    An   analysis  of\t the   provisions   of\t the
\nConstitution  would show that a separate sphere for each  of
\nthe  constituent units has been carved out and they have  to
\nfunction  within the limits of their sphere, or\t within\t the
\nlimits\tof the orbit, as my lord the Chief Justice  has\t put
\nit.   In order to ensure a smooth and  efficient,  pragmatic
\nand purposeful working of the Constitution, it is  necessary
\nthat  the Union and the States should work n close  coopera-
\ntion  and  absolute  coordination  with\t each  other.\t Any
\nconfrontation  may lead to a constitutional breakdown  which
\nmay  be\t avoided in all circumstances.\t Under\tArt.  174(2)
\nclauses\t (a) and (b) the Governor has the power to  prorogue
\nthe  House or to dissolve the Legislative Assembly.   It  is
\nobvious that this power has to be exercised by the  Governor
\ngenerally  on the advice of the Council of  Ministers.\t The
\nChief  Minister, as the head of the Council of Ministers  in
\nthe  State,  has  the undoubted\t discretion  to\t advise\t the
\nGovernor to dissolve the Assembly if a particular  situation
\ndemands\t such a step.  The Chief Minister is the best  judge
\nto  assess  the\t circumstances under which  such  an  advice
\nshould\tbe  given to the Governor.  The\t Central  Government
\ncannot\tinterfere  with this executive power  of  the  State
\nGovernment  by giving directions under Art. 256 or Art.\t 257
\nof the Constitution, because the dissolution of the Assembly
\nby the Governor is purely a matter concerning the State\t and
\ndoes  not fall within the four comers of either Art. 256  or
\nArt. 257 of the Constitution.\n<\/p>\n
It  was also contended that the direction contained  in\t the
\nletter\t of   the  Home\t Minister  amounts  to\t a   serious
\ninterference  with  the federal set-up contemplated  by\t the
\nConstitution and is likely to bring the autonomy enjoyed  by
\nthe  States  into jeopardy.  My Lord the Chief\tJustice\t has
\ndealt  with the federal aspect of the Constitution in  great
\nlength\tand has pointed out that while our  Constitution  is
\nbased  on a federal pattern it is, to quote Dr. Ambedkar  “a
\ntight mold of Federalism” so that it can move from a federal
\nto unitary plane, according as the situation requires.\t The
\nfederal\t  nature  of  our  Constitution\t has  been   clearly
\nexplained  by  my Lord the Chief Justice and I\tfully  agree
\nwith  his  views  and have nothing useful to  add.   It\t is,
\nhowever,  not  necessary  for me to dilate  on\tthis  point,
\nbecause in
\n112<\/span>
\nmy view the letter of the Home Minister does not amount to a
\ndirective at all and therefore the question of\tinterference
\nwith the autonomous rights of the State Government does\t not
\narise.\t As to what would have happened if a  directive\t was
\ngiven  by the Central Government in a matter like this is  a
\npurely\thypothetical  question which does not call  for\t any
\nanswer in the facts and circumstances of the present case as
\nthe same does not arise.  In this view of the matter it-  is
\nobvious\t that  the  plaintiffs cannot get  a  relief  for  a
\ndeclaration  that  the letter amounted to  a  directive\t and
\nbeing against the authority of law was ultra vires and hence
\nnot binding on the plaintiffs.\tIn fact it seems to me\tthat
\nthe  plaintiffs\t themselves  did not take the  letter  as  a
\ndirective  at  all and had, therefore, written back  to\t the
\nHome Minister refusing to accept the advice given to them.
\nThe  next question that arises for consideration is  whether
\nthe  letter  of\t the Home Minister amounts to  a  threat  to
\ndissolve the Assembly.\tAlthough there are no clear words in
\nthe  letter  or in the interviews to show that any  kind  of
\nthreat\tor  force  was\tused  against  the  Chief  Ministers
\nconcerned,  but\t even assuming that the letter\tcontained  a
\nveiled\tthreat,\t I  fail  to see what  kind  of\t relief\t the
\nplaintiffs  could  get,\t even  if this\tis  so.\t  The  Chief
\nMinisters  of  the  States  had\t the  right  to\t advise\t the
\nGovernors  to dissolve the Assemblies or not to do so.\tEven
\nif there was a threat given by the Home Minister they  could
\nhave  ignored  the threat because the right  to\t advise\t the
\nGovernors  to dissolve the Assemblies belonged to the  Chief
\nMinisters  of the States themselves, and as indicated by  me
\nthe  Central Government had no right to interfere with\tthis
\ndiscretion of the Chief Ministers.\n<\/p>\n
Mr.  Garg appearing for the petitioners, however,  submitted
\nthat  the  action of the Central Government  amounted  to  a
\nthreat\tof the fundamental right of the petitioners  and  be
\nwas  entitled  to  ask for  an\tinjunction  restraining\t the
\nCentral Government from resorting to Art. 356.\tIn the first
\nplace,\tI  have\t already held that the\tpetitioners  had  no
\nfundamental right at all so as to approach this Court  under
\nArt.  32  of the Constitution.\tAssuming that they  had\t the
\nright the threat was not so imminent and the prayer made  by
\nthe  petitioners was premature as no action appears to\thave
\nbeen  taken by the Central Government at the time  when\t the
\npetitions  were filed.\tFinally, if the\t Central  Government
\nhad  a\tconstitutional\tpower to  advise  the  President  to
\ndissolve the Assemblies under Art. 356, the Courts could not
\ninterfere  with\t the  exercise of that\tpower,\tbecause\t the
\nfundamental right of the Petitioners itself existed so\tlong
\nas  the\t Assembly  was not dissolved.  Article\t172  of\t the
\nConstitution  itself  provides that the\t Assembly  of  every
\nState  shall  continue\tfor  six  years,  unless   dissolved
\nearlier.  The petitioners therefore could not have a  better
\nright than what was conferred by Art. 172.  If the  Assembly
\nwas  dissolved earlier than six years, i.e. before its\tfull
\nduration  expired, under the provisions of the\tConstitution
\nitself\tno complaint could be made by the  petitioners\tthat
\nthere  had been an infringement of their fundamental  right.
\nIt  was\t not a case where the petitioners  had\tindefeasible
\nright to property which itself was threatened.\tThe right of
\nthe petitioners, if any, was merely a temporary and inchoate
\nright.\tFor these reasons, therefore, even
\n113<\/span>
\nif the letter of the Home Minister be treated to be a veiled
\nthreat,\t the  petitioners cannot get any  relief  from\tthis
\nCourt.\n<\/p>\n
Coming\tto  the\t third\tcontention  that  the  circumstances
\nmentioned in the letter did not constitute sufficient reason
\nfor  dissolution of the Assemblies under Art. 356, the\tsame
\nwas  repelled by the Additional Solicitor-General mainly  on
\nthe ground that the Courts could not go into the sufficiency
\nor  adequacy  of  the materials on the basis  of  which\t the
\nCouncil\t of Ministers of the Central Government\t could\tgive
\nany  advice to the President.  It was also argued that\tthis
\nmatter was not a justiciable issue.  In order to answer this
\ncontention  we\thave  to  consider  two\t different   facets.
\nFirstly,  whether or not the issue was\tjusticiable.   Apart
\nfrom Cl. (5) of Art. 356 which gives the order passed by the
\nPresident under this Article complete immunity from judicial
\nscrutiny  it  was pointed out by the  Additional  Solicitor-
\nGeneral\t that  even before Cl. (5) which was  added  by\t the
\nConstitution (Forty second Amendment) Act, 1976 the law laid
\ndown  by this Court, Privy Council and the High\t Courts\t was
\nthe  same.  Reliance was placed on a decision of  the  Privy
\nCouncil\t in Bhagat Singh and others v. The  King-Emperor,<\/a>(“)
\nwhere  the Privy Council, dwelling on the  question  whether
\nthe  existence\tof  an\temergency  was\tjusticiable  or\t not
\nobserved thus :\n<\/p>\n
\t      ” A state of emergency is something that\tdoes
\n\t      not   permit  of\tany  exact  definition;\t  It
\n\t      connotes\ta  state  of  matters  calling\t for
\n\t      drastic action, which is to be judged as\tsuch
\n\t      by  some\tone.  It is more than  obvious\tthat
\n\t      that  some one must be the  Governor  General,
\n\t      and  he  alone.  Any other view  would  render
\n\t      utterly inept the whole provision.\n<\/p><\/blockquote>\n
\t      x\t\t   x\t     x\t       x\t   x\n\t      x\n<\/pre>\n
\t      Yet,  if the view urged by the petitioners  is
\n\t      right,  the judgment of  the  Governor-General
\n\t      could  he\t upset\teither\t(a)  by\t this  Board
\n\t      declaring\t  that\t once  the   Ordinance\t was
\n\t      challenged  in  proceedings by way  of  habeas
\n\t      corpus the crown ought to prove  affirmatively
\n\t      before  a\t Court\tthat a\tstate  of  emergency
\n\t      existed,\tor  (b) by a finding of\t this  Board
\n\t      after  a\tcontentious and\t protracted  inquiry
\n\t      that  no state of emergency existed, and\tthat
\n\t      the Ordinance with all that followed on it was
\n\t      illegal.\n<\/p><\/blockquote>\n
\t      In  fact,\t the  contention  is  so  completely
\n\t      without  foundation on the face of it that  it
\n\t      would  be idle to allow an appellant to  argue
\n\t      about it.”\n<\/p><\/blockquote>\n
A  similar  view  was taken by the federal  Court  in  Lakhi
\nNaravan\t Das v. Province of Bihar<\/a>(2), where  describing\t the
\nnature and incidents of art Ordinance, the Court observed as
\nfollows :\n<\/p>\n
\t      “The  language  of the section  shows  clearly
\n\t      that it is the Governor and the Governor alone
\n\t      who  has\tgot  to satisfy himself\t as  to\t the
\n\t      existence of circumstances necessitating the
\n(1)  L.R. 58 I.A. 169, 172.\n<\/p><\/blockquote>\n
(2)  [1949] F.C.R. 693. 699.\n<\/p>\n
114<\/span><\/p>\n
.lm15
\npromulgation of an Ordinance.  The existence of such  neces-
\nsity  is not a justiciable matter which the Courts could  be
\ncalled upon to determine by applying an objective test.’-‘
\nThe same view was taken by this Court in M\/s S. K. G.  Sugar
\nLtd.  v.  state of Bihar and others(1) where it was observed
\nthus :\n<\/p>\n
“It is however well-settled that the necessity of  immediate
\naction and of “Promulgating an Ordinance is a matter  purely
\nfor the subjective satisfaction of the Governor.  He is\t the
\nsole  Judge  as\t to  the  existence  of\t the   circumstances
\nnecessitating the making of an Ordinance.  His\tsatisfaction
\nis  not\t a justiciable matter.\tIt cannot be  questioned  on
\nground of error of judgment or otherwise in court-see  State
\nof Punjab v. Sat Pal Dang<\/a> (1969) 1 S.C.R. 633.”
\nThe  Andhra Pradesh High Court has also expressed  the\tsame
\nview  in In re.\t A. S. Sreeramulu(2) where it  was  observed
\nthus :\n<\/p>\n
“We have seen that there is a wide range of situations\twhen
\nthe  President\tmay act under Article  356.   The  important
\nthing to notice is that the Constitution does not  enumerate
\nthe situations and there is no ‘satisfactory criteria for  a
\njudicial determination’ of what are relevant considerations.
\nThe very absence of satisfactory criteria makes the question
\none which is intrinsically political and beyond the reach of
\nthe  Courts.   The  considerations which  are  relevant\t for
\naction\t under\tArticle\t 356  and  the\tweighing  of   those
\nconsiderations\tappear\tto be clearly matters  of  political
\nwisdom, not for judicial scrutiny.”\n<\/p>\n
I  find myself in complete agreement with  the\tobservations
\nmade by the learned Judge.\n<\/p>\n
The  same  view was taken by another Division Bench  of\t the
\nAndhra\tPradesh\t High Court in S. R. K.\t Hanumantha  Rao  v.
\nState of Andhra Pradesh. (3)
\nIt is obvious that exercise of discretion under Art. 356  by
\nthe  President is purely a political matter and\t depends  on
\nthe  advice  that  the President gets from  the\t Council  of
\nMinisters.   The Council of Ministers are the best judge  to
\nassess\t the  needs  of\t the  situation,   the\t surrounding
\ncircumstances,\tthe feelings and aspirations of\t the  people
\nand the temper of the times.  If on an overall assessment of
\nthese  factors the Council of Ministers in  their  political
\nwisdom\tor  administrative  expediency decide  to  tender  a
\nparticular advice to the President.  The Courts cannot enter
\ninto   this  arena  which  is  completely  beyond   judicial
\nscrutiny.   Even  if the Chief Ministers did  not  think  it
\nadvisable  to dissolve the Assemblies, their views  are\t not
\nbinding
\n(1)  [1975] 1 S.C.R. 312, 317.\n<\/p>\n
(2)  A.I.R. 1974 A.P. 106.\n<\/p>\n
(3)  (1975) 2 A.W.R. 277.\n<\/p>\n
115<\/span><\/p>\n
on  the Central Government which can form its  own  opinion.
\nThe exercise of the power under Art. 356 by the President is
\na  matter  which falls directly within the exercise  of\t the
\npowers of the Union and the Council of Ministers need not be
\nguided\tby the views of the Chief Ministers in the  exercise
\nof this power.\tIn colegrove v. Green(1) Justice Frankfurter
\nvery aptly observed thus :\n<\/p>\n
\t      “We are of opinion that the petitioners ask of
\n\t      this  Court what is beyond its  competence  to
\n\t      grant.   This  is\t one  of  those\t demands  on
\n\t      judicial\tpower which cannot be met by  verbal
\n\t      fencing  about  “jurisdiction.”  It  must\t  be
\n\t      resolved\tby  considerations on the  basis  of
\n\t      which  this  Court,  from time  to  time,\t has
\n\t      refused to intervene in controversies.
\n\t      It  is  hostile  to  a  democratic  system  to
\n\t      involve  the judiciary in the politics of\t the
\n\t      people.  And it is not less pernicious if such
\n\t      judicial\t intervention  in   an\t essentially
\n\t      political\t  contest  be  dressed\tup  in\t the
\n\t      abstract phrases of the law.”\n<\/p><\/blockquote>\n
It  is manifestly clear that the Court does not possess\t the
\nresources  which are in the hands of the Government to\tfind
\nout  the political needs that they seek to subserve and\t the
\nfeelings  or  the aspirations of the nation that  require  a
\nparticular  action to be taken at a particular time.  It  is
\ndifficult  for\tthe Court to embark on an inquiry  of  that
\ntype.\tThus what the Constitution (Forty-second  Amendment)
\nAct,  1976 has done by adding clause (5) to Art. 356  is  to
\ngive  statutory\t recognition  to the law laid  down  by\t the
\nCourts long before.\n<\/p>\n
Mr.  Niren  De\tsubmitted in reply to the  argument  of\t the
\nlearned\t Additional Solicitor-General that in two cases\t the
\nPrivy  Council\thad  taken a contrary  view.   Reliance\t was
\nplaced\ton a decision of the, Privy Council in King  Emperor
\nv.  Benoari  Lal  Sarma\t (2) where  Viscount  Simon,  L.  C.
\nobserved thus :\n<\/p>\n
\t      “Their  Lordships entirely agree with  Rowland
\n\t      J’s  view\t that such circumstances  might,  if
\n\t      necessary,    properly   be   considered\t  in
\n\t      determining  whether an emergency had  arisen;
\n\t      but,  as that learned judge goes on  to  point
\n\t      out,  and, as had already been  emphasized  in
\n\t      the  High\t Court,\t the  question\twhether\t  an
\n\t      emergency\t existed at the time when  an  ordi-
\n\t      nance  is made and promulgated is a matter  of
\n\t      which the Governor-General is the sole  judge.
\n\t      This proposition was laid down by the Board in
\n\t      Bhagat Singh v. The King Emperor-L.R.<\/a> 58\tI.A.
\n\t      169″.\n<\/p><\/blockquote>\n
Although  the  first  part  of\tthe  observations  of  their
\nLordships  supports  the argument of Mr. Niren\tDe  to\tsome
\nextent,\t the second part of the observations  clearly  shows
\nthat their Lordships had fully endorsed the proposition laid
\ndown by the Court in Bhagat Singh’s case (supra).  In  these
\ncircumstances, therefore, this authority does not appear  to
\nbe of any assistance to Mr. Niren De.\n<\/p>\n
(1)  [1945] 328 U.S. 549,
\n(2)  L.R. 72 I.A. 57, 64.\n<\/p>\n
116<\/span><\/p>\n
Reliance  was  also  placed  on\t Padfield  v.  Minister\t  of
\nAgricultural,  Fisheries and Food() where Lord\tDenning,  M.
\nR., observed as follows :\n<\/p>\n
\t      “If it appears to the court that the  Minister
\n\t      has  been,  or must have been,  influenced  by
\n\t      extraneous  considerations which ought not  to
\n\t      have   influenced\t him-or,   conversely,\t has
\n\t      failed,  or  must have failed,  to  take\tinto
\n\t      account  considerations  which ought  to\thave
\n\t      influenced   him-the   court  has\t  power\t  to
\n\t      interfere.”\n<\/p><\/blockquote>\n
These observations, however, do not support the argument  of
\nMr.  Niren De at all.  Even if an issue is not\tjusticiable,
\nif the circumstances relied upon by the executive  authority
\nare  absolutely extraneous and irrelevant, the\tCourts\thave
\nthe  undoubted power to scrutinise such an exercise  of\t the
\nexecutive  power.   Such a judicial scrutiny  is  one  which
\ncomes  into  operation when the exercise  of  the  executive
\npower is colourable or mala fide and based on extraneous  or
\nirrelevant considerations.  I shall deal with this aspect of
\nthe  matter a little later.  It is, however, ‘sufficient  to
\nindicate here that an order passed under Art. 356 is  immune
\nfrom  judicial\tscrutiny  and unless it is  shown  that\t the
\nPresident  has been guided by extraneous  considerations  it
\ncannot be examined by the Courts.\n<\/p>\n
This brings us to the second facet of this argument, namely,
\nwhether the facts stated in the letter of the Home  Minister
\nor  in the press or the radio interviews are  sufficient  to
\nenable\tthe Central Government to take a decision to  advise
\nthe  President\tto dissolve the State Assemblies.   We\thave
\nalready\t extracted the important portions of the  statements
\nmade  in  the letter of the Home Minister and in  the  radio
\ninterview of the Law Minister and the Press interview of the
\nHome  Minister.\t These assertions made by the  Ministers  of
\nthe  Central  Government  have,\t however,  to  be  read\t and
\nunderstood  in\tthe light of  the  prevailing  circumstances
\nwhich  are established from the notifications issued by\t the
\nGovernment  of India from time to time which we\t shall\tdeal
\nwith hereafter.\n<\/p>\n
By  virtue  of Ministry of Home\t Affairs,  Notification\t No.
\nG.S.R.\t353 (E) dated June 26, 1975 the President  of  India
\nissued\ta  proclamation\t declaring that\t a  grave  emergency
\nexists\twhereby\t the, security of India\t was  threatened  by
\ninternal  disturbance.\t This notification was\tfollowed  by
\nanother Ministry of Home Affairs Notification No. G.S.R. 361
\n(E) dated June 27, 1975 issued by the President under clause
\n(1)  of Art. 359 of the Constitution by which the  right  of
\nany  person  to move any Court for the\tenforcement  of\t the
\nrights conferred by article 14, article 21 and article 22 of
\nthe Constitution were suspended for the period during  which
\nthe  proclamation of emergency was in force.  Then  followed
\nthe Maintenance of Internal Security (Amendment)  Ordinance,
\n1975 (No. 4 of 1975) which was promulgated an June 29,\t1975
\nand  published\tin the Government of India  Gazette,  Extra-
\nordinary,  Part 11, Section I dated June, 1975. pp.  213-15.
\nSection 5 of the Ordinance added s. 16A and sub-s.
\n(1)  L.R. [1968] A.C. 997,1007.\n<\/p>\n
117<\/span><\/p>\n
(6)  of\t s. 16A provided that it shall not be  necessary  to
\ndisclose to any\t    person detained under a detention  order
\nthe grounds on which the order\thad  been  made\t during\t the
\nperiod the declaration made in respect of such a person\t was
\nin force.  This was followed by the Maintenance of  Internal
\nSecurity  (Amendment) Act, 1976 passed on January  25,\t1976
\nwhich added sub-s. (9) to s. 16A of the principal Act  which
\nprovided that the grounds on which an order of detention was
\nmade  or purported to be made under s. 3 against any  person
\nin  respect of whom a declaration was made under sub-s.\t (2)
\nor sub-s. (3) and any information or materials on which such
\ngrounds\t or a declaration under sub-s. (2) or a\t declaration
\nor  confirmation  under sub-s. (3) etc. was made was  to  be
\ntreated\t as  confidential and shall be deemed  to  refer  to
\nmatters of State and it would be against the public interest
\nto disclose the same.  Thus the effect of this provision was
\nthat  no Court could call for the materials on the basis  of
\nwhich  the order of detention was passed.  In  other  words,
\nany  detention\tmade  during  this  period  was\t put  beyond
\njudicial scrutiny.  While this state of affairs existed, the
\nPresident by order dated January 18, 1977 dissolved the\t Lok
\nSabha under Art.- 85 of the Constitution as would appear the
\nLok  Sabha Secretariat Notification dated January  19,\t1977
\npublished in the Government of India Gazette  Extraordinary,
\nPart  I,  Section  1,  dated January  19,  1977.   This\t was
\nfollowed  by  notification dated February 10,  1977  by\t the
\nMinistry  of Law.  Justice and Company Affairs passed  under
\nsub-s. (2) of s. 14 of the Representation of the People Act,
\n1951  by which the President called upon  the  parliamentary
\nconstituencies\tto  elect  members in  accordance  with\t the
\nprovisions of the said Act and of the rules and orders\tmade
\nthereunder.  In pursuance of this notification the  Election
\nCommission  of India issued a notification on the  same\t day
\nappointing  the\t dates of elections to be  held\t in  various
\nconstituencies\twhich varied from 16th to 20th March,  1977.
\nAccording to this Notification there were 54  constituencies
\nin  Bihar,  10\tconstituencies in  Haryana,  4\tin  Himachal
\nPradesh, 40 in Madhya Pradesh, 25 in Rajasthan, 85 in  Uttar
\nPradesh,  42 in West Bengal, 21 in Orissa and 13 in  Punjab.
\nAll  these constituencies elected their representatives\t and
\nfrom the results of the Lok Sabha as published in the Indian
\nExpress\t of  March 25, 1977 it would appear that out  of  85
\nconstituencies\tin  Uttar  Pradesh not\ta  single  candidate
\nbelonging to the Congress party was returned.  Similarly  in
\nBihar out of 54 constituencies not a single candidate of the
\nCongress   party   was\telected.   Similarly   out   of\t  13
\nconstituencies\tin Punjab and 10 constituencies\t in  Haryana
\nnot  a single candidate of the Congress party was  returned.
\nThe same position obtained in Himachal Pradesh where out  of
\n4  constituencies  not\ta  Single  Congress  candidate\t was
\nelected.   In the States of Madhya Pradesh, Rajasthan,\tWest
\nBengal and Orissa, the Congress party appears to have  fared
\nvery  badly  also.  In Madhya Pradesh out of 40\t seats,\t the
\nCongress party could bag only one seat, whereas in Rajasthan
\nalso the Congress met with a similar fate where it got\tonly
\nI  seat out of 25 seats.  In Orissa, also the  Congress\t got
\nonly  4\t seats out of 21 and in West Bengal it\tgot  only  3
\nseats  out  of 42.  It would thus appear that  in  the\tnine
\nstates referred to above, the Congress party was practically
\nrouted.\t It is also clear that the voters who voted for\t the
\ncandidates standing for the Lok Sabha in the States
\n118<\/span>
\nwere more or less the same who had voted the Congress  party
\nin the State Assemblies during the previous elections.
\nThus, summarising the position in short, it is clear
\n\t      (1)   that  a grave emergency was\t clamped  in
\n\t      the whole country;\n<\/p>\n
\t      (2)   that civil liberties were withdrawn to a
\n\t      great extent;\n<\/p>\n
\t      (3)   that important fundamental rights of the
\n\t      people were suspended;\n<\/p>\n
\t      (4)   that strict censorship on the press\t was
\n\t      placed; and
\n\t      (5)   that  the judicial powers were  crippled
\n\t      to a large extent.\n<\/p>\n
In  the\t new elections the Congress party suffered  a  major
\nreverse in the nine states and the people displayed complete
\nlack  of confidence in the Congress party.   The  cumulative
\neffect\tof the circumstances mentioned above may lead  to  a
\nreasonable  inference  that the people had given  a  massive
\nverdict not only against the Congress candidates who  fought
\nthe elections to the Lok Sabha but also to the policies\t and
\nideologies  followed by the Congress Governments as a  whole
\nwhether\t at  the Centre or in the States during\t the  twenty
\nmonths\tpreceding the elections.  In these circumstances  it
\ncannot be said that the inference drawn by the Home Minister
\nthat the State Governments may have forfeited the confidence
\nof  the people is not a reasonable one or had no nexus\twith
\nthe  action  proposed to be taken under Art.  356  for\tdis-
\nsolution of the Assemblies.\n<\/p>\n
It  was in the background of these admitted facts  that\t the
\nCentral\t Government  formed  the  opinion  that\t the   State
\nGovernments  should  seek a fresh mandate  from\t the  people
\nbecause they ceased to enjoy the confidence of the people of
\nthe   States  concerned.   In  other  words.   the   Central
\nGovernment  thought that from the nature of  the  concerned,
\nresults\t of  the elections a reasonable inference  could  be
\ndrawn that the State Governments concerned had forfeited the
\nconfidence  of\tthe  people.  It  was,\thowever,  vehemently
\nargued\tby the plaintiffs and the petitioners that the\tmere
\nfact  that the Congress party lost its majority in  the\t Lok
\nSabha  was  not\t sufficient  to\t lead  to  the\tirresistible
\ninference  that the Congress Governments in the States\talso
\nforfeited  the confidence of the people in the States  where
\nthey  were  in\toverwhelming  majority so  as  to  call\t for
\ndissolution  of the Assemblies and fresh elections.  Mr.  H.
\nR.  Gokhale, appearing for the State of Punjab, argued\tthat
\neven  in the past it had often happened that the people\t had
\nvoted candidates of one party for the Lok Sabha and  another
\nparty for the States and a similar distinction seems to have
\nbeen made by the voters this time also.\t The instance  cited
\nby  Mr.\t Gokhale  was  of  1967\t elections.   This  solitary
\ncircumstance  in  my opinion does not appear to be  of\tmuch
\navail, because having regard to the circumstances prevailing
\nbefore the last elections what inference should be drawn  is
\na matter to be considered by the Central Government and\t not
\nby  the Courts.\t The Central Government, on a  complete\t and
\noverall\t  assessment  of  the  election\t results   and\t the
\ncircumstances  prevailing during the emergency\tas  detailed
\nabove, in that the funda-\n<\/p>\n
119<\/span><\/p>\n
mental rights of the people were suspended, the right of the
\ndetenus\t to  move  the Courts was  almost  crippled,  strict
\ncensorship  was\t placed\t on the press,\tand  this  state  of
\naffairs having prevailed for about 20 months when  elections
\nwere  held after which the people gave their  clear  verdict
\nagainst\t the Congress so far as the Lok Sabha election\twere
\nconcerned may have had some justification for coming to\t the
\nconclusion  that  the State Governments\t had  forfeited\t the
\nconfidence of the people.  It is true that if the opinion of
\nthe Central Government was based on extraneous or irrelevant
\nmaterials or it was guided by purely personal considerations
\nor  ulterior  motives,\tthe Court could have  held  such  an
\naction to be mala fide and struck it down.  In Dr.  Akshabar
\nLal  & Ors. v. Vice Chancellor, Banaras Hindu  University<\/a>(1)
\nthis  Court  explained as to what was the  true\t nature\t and
\ncharacter  of a mala fide action, and quoted  the  following
\nobservations of Warrington, L. J., where it observed thus :\n<\/p>\n
\t      “The appellants characterised the whole action
\n\t      as lacking in bona fide.\tThe action can\tonly
\n\t      be questioned if it is ultra vires, and  proof
\n\t      of  alien\t or  irrelevant motive\tis  only  an
\n\t      example  of the ultra vires character  of\t the
\n\t      action,  as observed by Warrington, L. J.,  in
\n\t      the following passage :\n<\/p><\/blockquote>\n
\t      “My  view then is that only case in which\t the
\n\t      Court  can interfere with an act of  a  public
\n\t      body which is, on the face of it, regular\t and
\n\t      within its powers, is when it is proved to  be
\n\t      in  fact ultra vires, and that the  references
\n\t      in the judgments in the several cases cited in
\n\t      argument\tto bad faith, corruption, alien\t and
\n\t      irrelevant  motives, collateral  and  indirect
\n\t      objects,\tand  so forth, are  merely  intended
\n\t      when  properly understood as examples of\tmat-
\n\t      ters which if proved to exist might  establish
\n\t      the  ultra  vires character of the  action  in
\n\t      question.” ”\n<\/p><\/blockquote>\n
I  find myself in complete agreement with  the\tobservations
\nmade by Warrington, L. J., extracted above.
\nBut  the  serious question to be considered here  is  as  to
\nwhether\t the action of the Central Government in  trying  to
\npersuade  the  Chief Ministers to advise  the  Governors  to
\ndissolve  the  Assemblies  can be mid to  be  mala  fide  or
\ntainted\t by personal motives or\t extraneous  considerations.
\nIt  was\t suggested that the present ruling party  wanted  to
\nhave a President of its own choice and, therefore, it wanted
\nto dissolve all the Assemblies and order fresh elections  so
\nthat  they  are able to get candidates of their\t own  choice
\nelected\t to  the various Assemblies.  In  the  first  place,
\nthere is no reliable material to prove this fact or to\tshow
\nthat  the Central Government was in any way swayed by  those
\nconsiderations.\t  Secondly, if the Congress  Governments  in
\nthe  States Concerned Were so sure of their position,  I  do
\nnot  see any reason why they should not be able to face\t the
\nchallenge  and\tafter taking fresh mandate from\t the  people
\nvindicate their stand.\tFurthermore, we have to look at\t the
\ncircumstances catalogued above in order to find out  whether
\nan  inference  drawn by the Central  Government\t from  those
\ncircumstances  can  be said to be a  reasonable\t one.\tEven
\nassuming
\n(1)  [1961] 3 S.C.R. 386.\n<\/p>\n
120<\/span><\/p>\n
that  from  the\t circumstances mentioned  above,  the  other
\ninference   that  the  electorate  might  choose   different
\ncandidates  for\t the  States and the Lok  Sabha\t is  equally
\npossible  that\tby itself does not make the  action  of\t the
\nCentral\t Government  mala  fide\t or  ultra  vires.   If\t two
\ninferences  are reasonably possible, the very foundation  of
\nmala  fide  disappears.\t On the other  hand,  the  important
\nquestion  to ask oneself is, could under  the  circumstances
\nmentioned  above  and the manner in which  the\tpeople\thave
\nacted  and reacted to the emergency and the  post  emergency
\nera by returning a massive verdict against the Congress,  it
\nbe  said  that the Central Government was guided  by  purely
\nirrelevant or inept considerations or external or extraneous
\nmotives\t  in  wanting  to  have\t fresh\telections   to\t the
\nAssemblies?   The  answer  must be in the  negative.   I  am
\nconvinced  that having regard to the circumstances  detailed
\nabove,\tthe  view  taken by the Home Minister  and  the\t Law
\nMinister   cannot  be  said  to\t be  either  extraneous\t  or
\nirrelevant or mala fide.  The contention of the counsel\t for
\nthe  plaintiffs\t and  the  petitioners\ton  this  score\t is,
\ntherefore, overruled.\n<\/p>\n
There  is yet another facet of this problem.  Assuming\tthat
\nthe  reasons and the grounds disclosed by the Home  Minister
\nin his letter are extraneous or irrelevant this is only\t the
\nfirst  stage of the matter.  The second stage-which  is\t the
\nmost vital stage-is the one which comes into existence\twhen
\nthe  Council of Ministers deliberate and finally  decide  to
\nadvise\tthe  President.\t As to what further grounds  may  be
\nconsidered  by them at that time is anybody’s guess.  It  is
\nquite  possible that the Council of Ministers may  base\t the
\nadvice\ton grounds other than those mentioned in the  letter
\nof the Home Minister.  Article 74(2) which runs thus :\n<\/p>\n
\t      “(2) The question whether any, and if so\twhat
\n\t      advice  was  tendered  by\t Ministers  to\t the
\n\t      President\t shall not be inquired into  in\t any
\n\t      court.”\n<\/p><\/blockquote>\n
completely  bars any inquiry by any Court into\tthe  matters
\nwhich  form  the subject-matter of the advice given  by\t the
\nCouncil\t  of  Ministers\t to  the  President.   This   Court,
\ntherefore,   cannot  probe  into  that\tmatter.\t  In   these
\ncircumstances,\tthe argument of counsel for  the  plaintiffs
\nand the petitioners cannot be accepted at this stage.  It is
\ntrue that while an order passed by the President under\tArt.
\n356 is put beyond judicial scrutiny by cl. (5) of Art.\t356,
\nbut  this  does\t not  mean  that  the  Court  possesses\t  no
\njurisdiction  in the matter at all.  Even in respect of\t cl.
\n(5)  of\t Art.  356,  the Courts have  a\t limited  sphere  of
\noperation  in that on the reasons given by the President  in
\nhis  order  if\tthe Courts find\t that  they  are  absolutely
\nextraneous and irrelevant and based on personal and  illegal
\nconsiderations\tthe Courts are not powerless to strike\tdown
\nthe  order on the ground of mala fide if proved.   We  must,
\nhowever,  hasten  to add that this does not  mean  that\t the
\nCentral Government has a free licence to pass any  arbitrary
\nor despotic order or to clothe it with a blanket power to do
\nany  thing it Ekes against the well established legal  norms
\nor  principles\tof political ethics.  Such an  arbitrary  or
\nnaked action in a suitable case may amount to a fraud on the
\nConstitution  and  destroy  the\t very  roots  of  the  power
\nexercised.    In  fact\tthe   Additional   Solicitor-General
\ncandidly conceded that if the
\n121<\/span>
\naction under Art. 356 is absolutely and demonstrably  absurd
\nor  perverse or self-evidently mala fide and there is  total
\nabsence of any nexus whatsoever between the action taken and
\nthe scope and object of Art. 356, judicial intervention\t may
\nbe  available in such a case.  For the reasons that  I\thave
\nalready\t given,\t this is, in my opinion,  not  the  position
\nhere.  We, however, think that this is the least expected of
\nsuch a high and mature authority as the Council of Ministers
\nof the Central Government.  We might also like to stress the
\nfact  that as the reasons given by the Council of  Ministers
\nin  tendering  their  advice  to  the  President  cannot  be
\ninquired   into\t by  the  Courts,  we  expect  the   Central
\nGovernment in taking momentous decisions having far reaching
\nconsequences  on the working of the.  Constitution,  to\t act
\nwith  great care and circumspection and with some amount  of
\nobjectivity  so\t as to consider the pros and  cons  and\t the
\nvarious shades and features of the problems before them in a
\ncool  and collected manner.  The guiding principles in\tsuch
\ncases  should be the welfare of the people at large and\t the
\nintention  to strengthen and preserve the Constitution,\t and
\nwe  do\thope  that  this matter\t will  receive\tthe  serious
\nattention of the Government.  The stamp of finality given by
\nCl.  (5)  of Art. 356 of the Constitution does not  imply  a
\nfree licence to the Central Government to give any advice to
\nthe  President and get an order passed on reasons which\t are
\nwholly irrelevant or extraneous or which have absolutely  no
\nnexus  with  the passing of the Order.\tTo this\t extent\t the
\njudicial  review  remains.  In the  instant  case,  however,
\nconsidering  the circumstances indicated above, I feel\tthat
\nthe  grounds  taken by the Home Minister have  got  a  clear
\nnexus with the issue in question, namely, the passing of  an
\norder  by the President under Art. 356 in order to  dissolve
\nthe State Assemblies.  The argument of mala fide put forward
\nby  the\t plaintiffs  and  the  petitioners  is,\t  therefore,
\nrejected.\n<\/p>\n
I now come to the last contention raised by counsel for\t the
\nplaintiffs and the petitioners.\t Mr. Garg, appearing for the
\npetitioners vehemently\t contended   that   Art.   356\t has
\nabsolutely no application to the facts of    the     present
\ncase,  as  it does not give any power to  the  President  to
\ndissolve  the Assembly.\t In order to examine  this  argument
\nclosely,  it may be, necessary to extract the relevant\tpart
\nof Art. 356 thus :\n<\/p>\n
\t      “356.  (1)  If  the President  on\t receipt  of
\n\t      report  from  the the Governor of a  State  or
\n\t      otherwise,  is satisfied that a situation\t has
\n\t      arisen  in which the government of  the  State
\n\t      cannot  be carried on in accordance  with\t the
\n\t      provisions of this Constitution, the President
\n\t      may by Proclamation-\n<\/p><\/blockquote>\n
\t      (a)   assume  to\thimself all or\tany  of\t the
\n\t      functions\t of the Government of the State\t and
\n\t      all  or  any  of\tthe  powers  vested  in\t  or
\n\t      exercisable  by  the Governor or any  body  or
\n\t      authority\t  in  the  State  other\t  than\t the
\n\t      Legislature of the State;\n<\/p><\/blockquote>\n
\t      xx\t       x\t    x\t\t   x\n\t      x\n<\/pre>\n
\t      (3)   Every  proclamation under  this  article
\n\t      shall be laid before each House of  Parliament
\n\t      and\t     shall, except
\n\t      122<\/span>
\n\t      where it is a proclamation revoking a previous
\n\t      Proclamation,   cease   to  operate   at\t the
\n\t      expiration  of  two months unless\t before\t the
\n\t      expiration of that period it has been approved
\n\t      by resolution of both Houses of Parliament :\n<\/p><\/blockquote>\n
\t      x\t\t x\t      x\t       x\t   x\n\t      x\n\t      (5)   Notwithstanding    anything\t  in\tthis\n\t      Constitution,\t    the satisfaction of\t the\n<\/pre>\n
\t      President\t mentioned  in Clause (1)  shall  be
\n\t      final  and conclusive and shall not  be  ques-
\n\t      tioned in any court on any ground”.\n<\/p><\/blockquote>\n
The  first part of Art. 356(1) gives power to the  President
\nto  issue a proclamation if he is satisfied on a  report  of
\nthe   Governor\tof  the\t State\tor  otherwise  to   make   a
\nproclamation.  In the instant case as there is no report  of
\nthe Governor of any of the States, the President can   act
\non  other methods which includes the advice given to him  by
\nthe  Council  of  Ministers.   Another\tcondition  that-  is
\nnecessary for the   application\t of  Art. 356  is  that\t the
\nPresident must be satisfied that the\tGovernment  of\t the
\nState cannot be carried on in accordance with the provisions
\nof the Constitution.  Great stress was laid on this part  of
\nthe ingredient of Art. 356(1) by counsel for the  plaintiffs
\nand the Petitioners who contended that there is not an\tiota
\nof material to show that there was any apprehension that the
\nGovernment  of\tthe  State  could  not\tbe  carried  on\t  in
\naccordance With the provisions of the Constitution or  there
\nwas  any break-down of the Constitutional  machinery.\tThis
\nis,  however,  a  matter which\tdepends\t on  the  subjective
\nsatisfaction  of  the President based on the advice  of\t the
\nCouncil\t of Ministers.\tIt is not for the Court to  make  an
\nobjective assessment of this question as if it were  sitting
\nin appeal over the advice given by the Council of  Ministers
\nor the order passed by the President, Even so, there can  be
\nno  doubt that having regard to the circumstances  in  which
\nthe Congress was completely routed in the nine States during
\nthe  Lok  Sabha\t Elections, the\t possibility  of  the  State
\nGovernments having lost the confidence of the people  cannot
\nbe ruled out.  If so, to continue in office even after\tthis
\nwould\tbe  purely  undemocratic  in  character.    As\t our
\nConstitution   is   wedded  to\ta  democratic\tpattern\t  of
\nGovernment,  if a particular State Government ceases  to  be
\ndemocratic or acts in an undemocratic fashion, it cannot  be
\nsaid  that  the\t Government of the State is  carried  on  in
\naccordance with the provisions of the Constitution.  Such  a
\ncourse of action is opposed to the very tenor and spirit  of
\nthe Constitution.  In these circumstances, therefore, on the
\nfacts  and  materials  placed before  us,  the\tsecond\tpart
\nmentioned  in  Art.  356 appears to have  been\tprima  facie
\nsatisfied  and the argument of the learned counsel  for\t the
\nplaintiffs  and\t the  petitioners  on  this  ground  is\t not
\ntenable.\n<\/p>\n
It  was then contended by Mr. Garg that a perusal of  clause
\n(3)  of Art. 356 and the proviso thereof clearly shows\tthat
\nthe  proclamation  can operate only for the  period  of\t two
\nmonths\tand automatically expires at the expiration of\tthis
\nperiod.\t It is argued that if the Assembly is dissolved\t and
\nthis  action  is  not  capable of  being  confirmed  by\t the
\nParliament within two months, then it is incapable of
\n123<\/span>
\nratification   by   the\t Parliament,  and   therefore,\t the
\nreasonable  inference  should  be  that\t Art.  356   clearly
\nexcludes  any power to do anything which cannot be  ratified
\nincluding dissolution of the Assemblies in the States.\t The
\nargument  is undoubtedly attractive and interesting, but  on
\ncloser scrutiny it does not impress me.\t In the first place,
\nunder  Art. 356(1) (a) the President is empowered to  assume
\nto himself all or any of the functions of the Government  of
\nthe  State  and\t all  or any of\t the  powers  vested  in  or
\nexercisable  by\t the Governor.\tThe power  to  dissolve\t the
\nAssembly  is  contained in Art. 174(2) of  the\tConstitution
\nwhich  empowers\t the Governor to prorogue  or  dissolve\t the
\nLegislative  Assembly.\t This very power by  force  of\tArt.
\n356(1)\t(a)  is conferred on the President  implicitly,\t and
\nonce  this  power is conferred by the  application  of\tArt.
\n356(1)\t(a) the President has the undoubted jurisdiction  to
\ndissolve the Legislative Assembly by assuming the same power
\nwhich the Governor has under Art. 174(2).  A Division  Bench
\nof the Kerala High Court in K. K. Aboo v. Union of India and
\nothers<\/a>,(1) while interpreting this particular aspect of Art.
\n356  observed as follows :\n<\/p>\n
\t      “Art.  356(1)  (b)  empowers  the\t  President,
\n\t      whenever\the is satisfied of a  Constitutional
\n\t      breakdown\t  in   the   State,   to   issue   a
\n\t      Proclamation  declaring inter alia, “that\t the
\n\t      powers  of the Legislature of the State  shall
\n\t      be  exercisable by or under the  authority  of
\n\t      Parliament.” That necessarily implies a  power
\n\t      to dissolve the State Legislature.  No  resort
\n\t      therefore need be had by the President to\t the
\n\t      provisions of Art. 356 (1) (a) read with\tArt.
\n\t      172   or\tArt.  174  to  dissolve\t the   State
\n\t      Legislative  Assembly.  The power to  dissolve
\n\t      the State Legislature is implicit in Cl.\t_(1)\n<\/p><\/blockquote>\n
\t      (b) of Art. 356 itself”.\n<\/p><\/blockquote>\n
I full endorse the aforesaid observations which lay down the
\ncorrect law on the subject on this particular aspect of\t the
\nmatter.\n<\/p>\n
As  Art. 356 occurs in Part XVIII of the Constitution  which
\nrelates to emergency provisions, it is obvious that when the
\nAssembly  is  dissolved\t no  Council  of  Ministers  is\t  in
\nexistence and, therefore there is no occasion for either the
\nGovernor or the President to take the advise of the  Council
\nof   Ministers\tof  the\t State.\t  In  these   circumstances,
\ntherefore, I am clearly of the opinion that Art. 356(1)\t (a)
\nconfers the powers of the Governor under Art. 174(2) on\t the
\nPresident in clear and categorical terms and I cannot  infer
\nexclusion  of  the  power  merely from\tthe  fact  that\t the
\nproclamation  is  to expire after two months.  Even  if\t the
\norder  dissolving  the Assembly cannot be  ratified  by\t the
\nParliament  under  Cl.\t(3)  of\t Art.  356  that  makes\t  no
\ndifference,  because Cl. (3) does not touch  actions  taken,
\nproceedings   completed,  consequences\tensued\tand   orders
\nexecuted.   At\tthe  time  when\t Parliament  exercises\t the
\ncontrol,  all these actions have already taken place and  it
\nis not possible to put the clock back or to reverse  actions
\nwhich have already been taken and completed, nor was such  a
\ncontingency  contemplated  by the founding  fathers  of\t the
\nConstitution.\tI  am,\ttherefore,  unable  to\taccent\t the
\nargument of Mr. Garg on this point.\n<\/p>\n
(1) A.I.R. 1965 Ker. 229, 231.\n<\/p>\n
9-722SCI\/77
\n124<\/span>
\nIt  was\t further argued by Mr. Garg as also  by\t Mr.  Bhatia
\nappearing  for\tthe  State of  Himachal\t Pradesh  that\teven
\nassuming that Art. 356() (a) confers the power given to\t the
\nGovernor  by Art. 174(2) it would be a proper  exercise\t of
\nthe  discretion\t of the President to prorogue  the  Assembly
\ninstead\t of  taking  the extreme course\t of  dissolving\t it.
\nThis,  however,\t is purely a matter which  lies\t within\t the
\ndomain\tof  politics.\tThe  Court  cannot  substitute\t its
\ndiscretion for that of the President nor is it for the Court
\nto  play the role of an Advisor as to what the President  or
\nthe  Council of Ministers should do in a  particular  event.
\nThe  Central Government which advises the President  is\t the
\nbest  Judge of facts to decide as to what course  should  be
\nadopted\t in  a particular case, namely, whether\t the  Legis-
\nlative\tAssembly should be prorogued or should be  dissolved
\nand  it\t is open to the President to take any of  these\t two
\nactions\t and if he prefers one to the other, this matter  is
\nbeyond judicial review.\t For these reasons, therefore, I  am
\nclearly\t of the opinion that Art. 356 does not\tcontain\t any
\nexpress or implied limitations on the nature or functions of
\nthe  Governor  which are to be exercised  by  the  President
\nunder Art. 356(1) (a)..\n<\/p>\n
I  generally  agree with my Lord the Chief  Justice  on\t the
\nother points lucidly discussed by him, except with regard to
\nhis observations regarding the theory of the basic structure
\nof the Constitution on which I would refrain from expressing
\nany  opinion, because the question does not  actually  arise
\nfor decision in this Case.\n<\/p>\n
These  are  my\treasons in-support of  the  unanimous  order
\npassed by this Court on April 29, 1977 dismissing the  suits
\nand writ petitions and rejecting the prayers for injunctions
\nand interim reliefs.\n<\/p>\n
There will be no order as to costs.\n<\/p>\n
S.R.\t\t     (Suits & Petitions dismissed).\n125<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of Rajasthan & Ors. Etc. Etc vs Union Of India Etc. Etc on 6 May, 1977 Equivalent citations: 1977 AIR 1361, 1978 SCR (1) 1 Author: M H Beg Bench: Beg, M. Hameedullah (Cj), Chandrachud, Y.V., Bhagwati, P.N., Goswami, P.K. & Gupta, A.C., Fazalali, S.M. & Untwalia, N.L. PETITIONER: STATE […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-134627","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of Rajasthan & Ors. Etc. Etc vs Union Of India Etc. 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