Rameshwar Prasad & Ors Vs. Union of India & Anr [2006] Insc 35 (24 January 2006)
Y.K. Sabharwal, B.N. Agrawal & Ashok Bhan
[With W.P. (C) No.255 of 2005, W.P. (C) No.258 of 2005 and W.P.(C) No.353 of 2005] Y.K. Sabharwal, CJI.
The challenge in these petitions is to the constitutional validity of Notification dated 23rd May, 2005 ordering dissolution of the Legislative Assembly of the State of Bihar. It is a unique case. Earlier cases that came up before this Court were those where the dissolutions of Assemblies were ordered on the ground that the parties in power had lost the confidence of the House. The present case is of its own kind where before even the first meeting of the Legislative Assembly, its dissolution has been ordered on the ground that attempts are being made to cobble a majority by illegal means and lay claim to form the Government in the State and if these attempts continue, it would amount to tampering with constitutional provisions.
One of the questions of far reaching consequence that arises is whether the dissolution of Assembly under Article 356(1) of the Constitution of India can be ordered to prevent the staking of claim by a political party on the ground that the majority has been obtained by illegal means. We would first note the circumstances which led to the issue of impugned notification.
Factual Background Election to the State of Bihar was notified by the Election Commission on 17th December, 2004. Polling for the said elections were held in three phases, i.e., 3rd February, 2005, 5th February, 2005 and 13th February, 2005. Counting of votes took place on 27th February, 2005. Results of the said elections were declared by the Election Commission. On 4th March, 2005, Notification was issued by the Election Commission in pursuance of Section 73 of Representation of People Act, 1951 (for short 'the RP Act, 1951') duly notifying the names of the members elected for all the constituencies along with party affiliation.
Bihar Legislative Assembly comprises of 243 members and to secure an absolute majority support of 122 Members of Legislative Assembly (in short 'MLAs'), is required. National Democratic Alliance (for short 'NDA'), a political coalition of parties comprising of the Bharatiya Janata Party (for short 'BJP') and the Janata Dal (United) (for short 'JD(U)') was the largest pre-poll combination having the support of 92 MLAs. The party-wise strength in the Assembly was as under:
"NDA 92
RJD 75
LJP 29
Congress (I) 10
CPI (ML) 07
Samajwadi Party 04
NCP 03
Bahujan Samaj Party02
Independents 17
Others 09" Report dated 6th March, 2005 was sent by the Governor to the President, recommending newly constituted Assembly to be kept in suspended animation for the present. It reads as under:
"Respected Rashtrapati Jee, The present Bihar Legislative Assembly has come to an end on 6th March, 2005. The Election Commission's notification with reference to the recent elections in regard to constitution of the new Assembly issued vide No. 308/B.R.-L.A./2005 dated 4th March 2005 and 464/Bihar-LA/2005, dated the 4th March, 2005 is enclosed (Annexure-I)
Based on the results that have come up, the following is the party-wise position:
R.J.D. : 75
J.D.(U) : 55
B.J.P. : 37
Cong(I) : 10
B.S.P. : 02
L.J.P. : 29
C.P.I. : 03
C.P.I.(M) : 01
C.P.I.(M.L.): 07
N.C.P. : 03
S.P. : 04
Independent: 17 --------------------------------------- 243 ________________________ The R.J.D. and its alliance position is as follows:
R.J.D. : 75
Cong.(I) : 10
C.P.I. : 03 (support letter not recd.)
C.P.I.(M) : 01
N.C.P. : 03 _________________________ 92 _________________________ The N.D.A. alliance position is as follows:
B.J.P. : 37
J.D.(U) : 55 92 _______________________
The present C.M., Bihar, Smt. Rabri Devi met me on 28.2.2005 and submitted her resignation along with her Council of Ministers. I have accepted the same and asked her to continue till an alternative arrangement is made.
A delegation of members of LJP met me in the afternoon of 28.2.2005 and they submitted a letter (Annexure II) signed by Shri Ram Vilas Paswan, President of the Party, stating therein that they will neither support the RJD nor the BJP in the formation of Government. The State President of Congress Party, Shri Ram Jatan Sinha, also met in the evening of 28.2.2005.
The State President of BJP, Shri Gopal Narayan Singh along with supporters met me on 1.3.2005. They have submitted a letter (Annexure III) stating that apart from combined alliance strength of 92 (BJP & JD(U) they have support of another 10 to 12 Independents. The request in the letter is not to allow the RJD to form a Government.
Shri Dadan Singh, State President of Samajwadi Party, has sent a letter (Annexure IV) indicating their decision not to support the RJD or NDA in the formation of the Govt. He also met me on 2.3.2005.
Shri Ram Naresh Ram, Leader of the CPI (ML-Lib.), Legislature Party along with 4 others met me and submitted a letter (AnnexureV) that they would not support any group in the formation of Government.
Shri Ram Vilas Paswan, National President of LJP, along with 15 others met me and submitted another letter (Annexure VI). They have reiterated their earlier stand.
The RJD met me on 5.3.2005 in the forenoon and they staked claim to form a Government indicating the support from the following parties :
Cong(I) : 10
NCP : 03
CPI(M) : 01
BSP : 02 (Copy enclosed as Ann.VII) The RJD with the above will have only 91.
They have further claimed that some of the Independent members may support the RJD. However, it has not been disclosed as to the number of Independent MLAs from whom they expect support nor their names.
Even if we assume the entire Independents totalling 17 to extend support to RJD alliance, which has a combined strength of 91, the total would be 108, which is still short of the minimum requirement of 122 in a House of 243.
The NDA delegation led by Shri Sushil Kumar Modi, MP, met me in the evening of 5.3.2005. They have not submitted any further letter. However, they stated that apart from their pre- election alliance of 92, another 10 Independents will also support them and they further stated that they would be submitting letters separately. This has not been received so far. Even assuming that they have support of 10 Independents, their strength will be only 102, which is short of the minimum requirement of 122.
Six Independent MLAs met me on 5.3.2005 and submitted a letter in which they have claimed that they may be called to form a Government and they will be able to get support of others (Annexure VIII). They have not submitted any authorization letter supporting their claim.
I have also consulted the Legal experts and the case laws particularly the case reported in AIR 1994 SC 1918 where the Supreme Court in para 365 of the report summarised the conclusion.
The relevant part is para 2, i.e., the recommendation of the Sarkaria Commission do merit serious consideration at the hands of all concerned. Sarkaria Commission in its report has said that Governor while going through the process of selection should select a leader who in his judgment is most likely to command a majority in the Assembly. The Book "Constitution of India" written by Shri V.N. Shukla (10th edition) while dealing with Article 75 and Article 164 of the Constitution of India has dealt with this subject wherein it has quoted the manner of selection by the Governor in the following words :
"In normal circumstances the Governor need have no doubt as to who is the proper person to be appointed; it is leader of majority party in the Legislative Assembly, but circumstances can arise when it may be doubtful who that leader is and the Governor may have to exercise his personal judgment in selecting the C.M. Under the Constitutional scheme which envisages that a person who enjoys the confidence of the Legislature should alone be appointed as C.M." In Bommai's case referred to above in para 153, S.C. has stated with regard to the position where, I quote :
"After the General Elections held, no political party or coalition of parties or group is able to secure absolute majority in the Legislative Assembly and despite the Governor's exploring the alternatives, the situation has arisen in which no political party is able to form stable Government, it would be case of completely demonstrable inability of any political party to form a stable Government commanding the confidence of the majority members of the Legislature. It would be a case of failure of constitutional machinery."
I explored all possibilities and from the facts stated above, I am fully satisfied that no political party or coalition of parties or groups is able to substantiate a claim of majority in the Legislative Assembly, and having explored the alternatives with all the political parties and groups and Independents MLAs, a situation has emerged in which no political party or groups appears to be able to form a Government commanding a majority in the House. Thus, it is a case of complete inability of any political party to form a stable Government commanding the confidence of the majority members. This is a case of failure of constitutional machinery.
I, as Governor of Bihar, am not able to form a popular Government in Bihar, because of the situation created by the election results mentioned above.
I, therefore, recommend that the present newly constituted Assembly be kept in suspended animation for the present, and the President of India is requested to take such appropriate action/decision, as required." Since no political party was in a position to form a Government, a notification was issued on 7th March, 2005 under Article 356 of the Constitution imposing President's rule over the State of Bihar and the Assembly was kept in suspended animation. Another notification of the same date was also issued, inter alia, stating that the powers exercisable by the President shall, subject to the superintendence, direction and control of the President be exercisable also by the Governor of Bihar.
The object of the proclamation imposing President's rule was to give time and space to the political process to explore the possibility of forming a majority Government in the State through a process of political realignment as is reflected in the speech of Home Minister Shri Shivraj V. Patil in the Rajya Sabha on 21st March, 2005 when the Bihar Appropriation (Vote on Account) Bill, 2005 was discussed. The Home Minister said :
". But, I would like to make one point very clear. We are not very happy to impose President's Rule on the State of Bihar. Let there be no doubt in the minds of any Members of the House; we are not happy. After the elections we would have been happy if Government would have been formed by the elected representatives. That was not possible and that is why, President's Rule was imposed. But we cannot take pleasure in saying "Look we did this". We are not happy about it. I would ensure that the President's Rule is not continued for a long time. The sooner it disappear, the better it would be for Bihar, for democracy and for the system we are following in our country. But, who is to take steps in this regard? It is the elected representatives who have to take steps in this respect. The Governor can and, I would like to request in this House that elected representatives should talk to each other and create a situation in which it becomes possible for them to form a Government. Even if it is minority Government with a slight margin, there is no problem.." The Home Minister gave a solemn assurance to the nation that the imposition of President's rule was temporary and transient and was intended to explore the possibility of forming a popular Government.
According to the petitioners, process of realignment of forces was set in motion and several political parties and independent MLAs re-considered their position in terms of their commitment to provide a majority Government in deference to the popular wishes of the people and announced support to the NDA led by Shri Nitish Kumar. First such announcement was made by the entire group of 17 independent MLAs on 8th April, 2005. The signed declaration was released by these MLAs to the media. With the support of 17 independent MLAs the support base of the NDA rose to 109 MLAs.
Later on, it rose to 115 MLAs with the declaration of support by the Samajwadi Party (SP), the Bahujan Samaj Party (BSP) and the Nationalist Congress Party (NCP).
Governor of Bihar sent a report on 27th April, 2005 to the President of India, inter alia, stating that the newspaper reports and other reports gathered through meeting with various party functionaries/leaders and also intelligence reports received, indicated a trend to gain over elected representatives of the people and various elements within the party and also outside the party being approached through various allurements like money, caste, posts etc., which was a disturbing feature.
According to the said report, the situation was fast approaching a scenario wherein if the trend is not arrested immediately the consequent political instability will further give rise to horse trading being practiced by various political parties/groups trying to allure elected MLAs. That it would not be possible to contain the situation without giving the people another opportunity to give their mandate through a fresh poll. The report is reproduced below in its entirety.
"Respected Rashtrapati Jee, I invite a reference to my D.O. No.33/GB dated the 6th March, 2005 through which a detailed analysis of the results of the Assembly elections were made and a recommendation was also made to keep the newly constituted Assembly (constituted vide Election Commission's notification No.308/BR- L.A./2005 dated the 4th March, 2005 and 464/Bihar-LA/2005, dated the 4th March, 2005) in a suspended animation and also to issue appropriate direction/decision. In the light of the same, the President was pleased to issue a proclamation under Article 356 of the Constitution of India vide notification NO.G.S.R. 162(E), dated 7th March, 2005, and the proclamation has been approved and assented by the Parliament.
As none of the parties either individually or with the then pre-election combination or with post-election alliance combination could stake a claim to form a popular Government wherein they could claim a support of a simple majority of 122 in a House of 243, I had no alternative but to send the above mentioned report with the said recommendation.
I am given to understand that serious attempts are being made by JD-U and BJP to cobble a majority and lay claim to form the Government in the State. Contacts in JD-U and BJP have informed that 16-17 LJP MLAs have been won over by various means and attempt is being made to win over others. The JD-U is also targetting Congress for creating a split. It is felt in JD-U circle that in case LJP does not split then it can still form the Government with the support of Independent, NCP, BSP and SP MLAs and two-third of Congress MLAs after it splits from the main Congress party. The JD-U and BJP MLAs are quite convinced that by the end of this month or latest by the first week of May JD-U will be in a position to form the Government. The high pressure moves of JD-U/BJP is also affecting the RJD MLAs who have become restive.
According to a report there is a lot of pressure by the RJD MLAs on Lalu Pd. Yadav to either form the Government in Bihar on UPA pattern in the centre, with the support of Congress, LJP and others or he should at least ensure the continuance of President's rule in the State.
The National Commission to review the working of the Constitution has also noticed that the reasons for increasing instability of elected Governments was attributable to unprincipled and opportunistic political realignment from time to time. A reasonable degree of stability of Government and a strong Government is important. It has also noticed that the changing alignment of the members of political parties so openly really makes a mockery of our democracy.
Under the Constitutional Scheme a political party goes before the electorate with a particular programme and it sets up candidates at the election on the basis of such programmes. The 10th Schedule of the Constitution was introduced on the premise that political propriety and morality demands that if such persons after the elections changes his affiliation, that should be discouraged. This is on the basis that the loyalty to a party is a norm, being based on shared beliefs. A divided party is looked on with suspicion by the electorate.
Newspaper reports in the recent time and other reports gathered through meeting with various party functionaries/leaders and also intelligence reports received by me, indicate a trend to gain over elected representatives of the people and various elements within the party and also outside the party being approached through various allurements like money, caste, posts etc., which is a disturbing feature. This would affect the constitutional provisions and safeguards built therein. Any such move may also distort the verdict of the people as shown by results of the recent elections. If these attempts are allowed to continue then it would be amounting to tampering with constitutional provisions.
Keeping in view the above mentioned circumstances the present situation is fast approaching a scenario wherein if the trend is not arrested immediately, the consequent political instability will further give rise to horse trading being practiced by various political parties/groups trying to allure elected MLAs. Consequently it may not be possible to contain the situation without giving the people another opportunity to give their mandate through a fresh poll.
I am submitting these facts before the Hon'ble President for taking such action as deemed appropriate." According to the petitioners, Lok Janashakti Party (LJP) had contested elections on the plank of opposing the then Government led by Rashtriya Janata Dal (RJD), which again is a constituent of United Progressive Alliance (UPA) in the Centre. It had a strength of 29 MLAs in the new assembly. The leader of LJP Shri Ram Vilas Paswan had taken the stand that he was opposed to RJD as well as NDA led by the BJP. MLAs belonging to LJP were in a rebellious mood. About 22 MLAs belonging to the LJP assembled on or around 21st May, 2005 and started working towards a major political realignment in the stand of the said party. According to them, 22 LJP members of the Legislative wing supported by members of the original political party reached a consensus subsequently to merge their party with the JD(U). That, with this the repolarisation of political forces was complete. According to them the proposed merger between two political formations was in consonance with the principles enumerated in para 4 of the Tenth Schedule to the Constitution. It provides that on a merger of the political party, all the members of the new political party with which the merger has taken place if and only if not less than two-third of the members of the said party have agreed to the said merger. It is their allegation that in order to thwart the formation of a Government led by JD(U) the Governor of Bihar sent another report from its Camp Office in Delhi on 21st May, 2005 to the President of India. It was reiterated in the report that from the information gathered through reports from media, meeting with various political functionaries, as also intelligence reports, a trend was indicated to win over elected representatives of the people. In his view a situation had arisen in the State wherein it would be desirable in the interest of State that assembly which has been kept in suspended animation be dissolved so that the people/electorate could be provided with one more opportunity to seek the mandate of the people at an appropriate time to be decided in due course. The report dated 21st May, 2005 is reproduced in its entirety as follows :
"Respected Rashtrapati Jee, I invite a reference to my D.O. letter No.52/GB dated 27th April, 2005 through which I had given a detailed account of the attempts made by some of the parties notably the JD-U and BJP to cobble a majority and lay a claim to form a Government in the State. I had informed that around 16-17 MLAs belonging to LJP were being wooed by various means so that a split could be effected in the LJP. Attention was also drawn to the fact that the RJD MLAs had also become restive in the light of the above moves made by the JD-U.
As you are aware after the Assembly Elections in February this year, none of the political parties either individually or with the then pre-election combination or with post-election alliance combination could stake a claim to form a popular Government since they could not claim a support of a simple majority of 122 in a House of 243 and hence the President was pleased to issue a proclamation under Article 356 of the Constitution vide notification No. GSR 162 (E) dated 7th March, 2005 and the Assembly was kept in suspended animation.
The reports received by me in the recent past through the media and also through meeting with various political functionaries, as also intelligence reports, indicate a trend to win over elected representatives of the people.
Report has also been received of one of the LJP MLA, who is General Secretary of the party having resigned today and also 17-18 more perhaps are moving towards the JD-U clearly indicating that various allurements have been offered which is very disturbing and alarming feature.
Any move by the break away faction to align with any other party to cobble a majority and stake claim to form a Government would positively affect the Constitutional provisions and safeguards built therein and distort the verdict of the people as shown by the results in the recent Elections. If these attempts are allowed it would be amounting to tampering with Constitutional provisions.
Keeping the above mentioned circumstances, I am of the considered view that if the trend is not arrested immediately, it may not be possible to contain the situation. Hence in my view a situation has arisen in the State wherein it would be desirable in the interest of the State that the Assembly presently kept in suspended animation is dissolved, so that the people/electorate can be provided with one more opportunity to seek the mandate of the people at an appropriate time to be decided in due course." The report of the Governor was received by Union of India on 22nd May, 2005 and on the same day, the Union cabinet met at about 11.00 P.M. and decided to accept the report of the Governor and sent the fax message to the President of India, who had already left for Moscow, recommending the dissolution of the Legislative Assembly of Bihar. This message was received by the President of India at his Camp office in Moscow at 0152 hrs. (IST).
President of India accorded his approval and sent the same through the fax message which was received at 0350 hrs. (IST) on 23rd May, 2005. After due process the notification was issued formally at 1430 hrs. (IST) on 23rd May, 2005 dissolving the Bihar Assembly which has been impugned in these writ petitions.
Challenging proclamation dated 23rd May, 2005 issued under Article 356 of the Constitution ordering dissolution of Bihar Legislative Assembly, petitioners have also prayed for restoration of Election Commission notification dated 4th May, 2005 issued under Section 73 of the RP Act of 1951.
According to the petitioners, the condition precedent for dissolving the assembly is that there must be satisfaction of the President that a situation has arisen in which the Government of a State cannot be carried on in accordance with the provisions of the Constitution. That this satisfaction has to be based on cogent material.
Power of dissolution cannot be used to prevent the staking of claim for the formation of a Government by a political party with support of others. That the assembly was placed under suspended animation with the intention of providing time and space to political parties to explore the possibility of providing a majority Government in the State. No sooner the process of realignment was complete ensuring that the NDA led by Shri Nitish Kumar had the support of over 135 MLAs, report was sent by the Governor. The midnight meeting of the Cabinet was hurriedly called in order to prevent the formation of a Government. It was incumbent upon the Governor to make a meaningful and real effort for securing the possibility of a majority Government in the State. According to them the intention of the Governor was to prevent the formation of a Government led by Shri Nitish Kumar. That there was no material available or in existence to indicate that any political defection was being attempted through the use of money or muscle power. In the absence of any such material the exercise of power under Article 356 was a clear fraud on the exercise of power.
That allegations in the Governor's report of horse trading was factually incorrect and fictional. It was incumbent upon the Governor to verify the facts personally from the MLAs. That under the scheme of the Constitution the decision with regard to mergers and disqualifications on the ground of defection or horse trading is vested in the Speaker. The Governor could not have attempted to act on that basis and arrogated to himself such an authority. Relying heavily on the Nine Judge Bench judgment of this Court in S.R.Bommai & Ors. v. Union of India & Ors. [(1994) 3 SCC 1], it was contended that action of the Governor is mala fide in law; irrational, without any cogent material to support the conclusion arrived at and is based on mere ipse dixit and, thus, was not sustainable in law. It was contended that in exercise of judicial review this Court should quash the impugned notification and as a consequence restore the legislative assembly constituted by the Election Commission notification dated 4th March, 2005.
Mr.Soli Sorabjee led the arguments in support of the challenge to the validity of the impugned notification contending that the dissolution of the Assembly when examined in the light of law laid down in Bommai's case (supra) is clearly unconstitutional and deserves to be set aside and the status quo ante at least as on 7th March, 2005 may be directed.
Mr.Viplav Sharma, advocate, appearing in person in writ petition No.258 of 2005 adopting the arguments of Mr.Sorabjee further contended that before even elected candidates making and subscribing oath or affirmation, as contemplated by Article 188 of the Constitution, even the Assembly could not be placed under suspended animation and status quo as on the date of issue of notification under Section 73 of the RP Act of 1951 deserves to be directed.
Mr. Narasimha, appearing in Writ Petition (C) No.353 for the petitioner, also adopted the arguments of Mr.Sorabjee but at the same time further contended that it is not legally permissible to order the dissolution of Assembly before its meeting even once and the MLAs being administered the oath as contemplated by the Constitution. This was also the submission of Mr. Viplav Sharma. Arguments on behalf of respondent Union of India were led by learned Attorney General, Mr. Milon Banerjee, followed by learned Solicitor General and Additional Solicitor General, Mr. Gulam Vahanavati and Mr. Gopal Subramaniam respectively. Mr. P.P. Rao, learned senior advocate argued for State of Bihar. We place on record our appreciation for excellent and very able assistance rendered by all the advocates.
After hearing arguments on the question of the Governor not being answerable to any Court in view of immunity granted by Article 361(1) of the Constitution, we accepted the submission of the Government in terms of our order dated 8th September, 2005 that notice may not be issued to the Governor, giving brief reason in order to be followed by detailed reasons later. The said order reads as under :
"On the question whether the Governor could be impleaded in his capacity as the Governor and whether notice could be issued to him on the writ petitions in the context of averments made and the prayers contained in the petitions and other aspects highlighted in the order dated 31st August, 2005, we have heard Mr. Soli J. Sorabjee, learned senior counsel appearing in Writ Petition (C) No.257 of 2005, and Mr. Viplav Sharma, petitioner-in-person in Writ Petition (C) No.258 of 2005. We have also heard the submissions made by Mr. Milon K.
Banerji, Attorney General for India, and Mr. Gopal Subramaniam, learned Additional Solicitor General. The Constitution of India grants immunity to the Governor as provided in Article 361. Article 361(1), inter alia, provides that the Governor shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in exercise and performance of those powers and duties. It is submitted by learned Attorney General and Additional Solicitor General that in view of Article 361(1), this Court may not issue notice to the Governor. While we accept the submission but, at the same time, it is also necessary to note that the immunity granted to the Governor does not affect the power of the Court to judicially scrutinize the attack made to the proclamation issued under Article 356(1) of the Constitution of India on the ground of mala fides or it being ultra vires. It would be for the Government to satisfy the court and adequately meet such ground of challenge. A mala fide act is wholly outside the scope of the power and has no existence in the eyes of law. Even, the expression "purporting to be done" in Article 361 does not cover acts which are mala fide or ultra vires and, thus, the Government supporting the proclamation under Article 356(1) shall have to meet the challenge. The immunity granted under Article 361 does not mean that in the absence of Governor, the ground of mala fides or proclamation being ultra vires would not be examined by the Court. At this stage, we have not examined the question whether the exercise of power by the Governor was mala fide or ultra vires or not. That is a question still to be argued.
These are our brief reasons. We will give detailed reason later." Under the aforesaid factual background, the points that fall for our determination are :
Is it permissible to dissolve the Legislative Assembly under Article 174(2)(b) of the Constitution without its first meeting taking place?
Whether the proclamation dated 23rd May, 2005 dissolving the Assembly of Bihar is illegal and unconstitutional?
If the answer to the aforesaid question is in affirmative, is it necessary to direct status quo ante as on 7th March, 2005 or 4th March, 2005?
What is the scope of Article 361 granting immunity to the Governor? After hearing elaborate arguments, by a brief order dated 7th October, 2005, the notification dated 23rd May, 2005 was held to be unconstitutional but having regard to the facts and circumstances of the case, relief directing status quo ante to restore the Legislative Assembly as it stood on 7th March, 2005, was declined. The Order dated 7th October reads as under :
"The General Elections to the Legislative Assembly of Bihar were held in the month of February 2005. The Election Commission of India, in pursuance of Section 73 of the Representation of the People Act, 1951 in terms of Notification dated 4th March, 2005 notified the names of the elected members.
As no party or coalition of the parties was in a position to secure 122 seats so as to have majority in the Assembly, the Governor of Bihar made a report dated 6th March, 2005 to the President of India, whereupon in terms of Notification G.S.R.162(E) dated 7th March, 2005, issued in exercise of powers under Article 356 of the Constitution of India, the State was brought under President's Rule and the Assembly was kept in suspended animation. By another Notification G.S.R.163(E) of the same date, 7th March, 2005, it was notified that all powers which have been assumed by the President of India, shall, subject to the superintendence direction and control of the President, be exercisable also by the Governor of the State. The Home Minister in a speech made on 21st March, 2005 when the Bihar Appropriation (Vote on Account) Bill, 2005 was being discussed in the Rajya Sabha said that the Government was not happy to impose President's Rule in Bihar and would have been happy if Government would have been formed by the elected representatives after the election. That was, however, not possible and, therefore, President's Rule was imposed.
It was also said that the Government would not like to see that President's Rule is continued for a long time but it is for elected representatives to take steps in this respect; the Governor can ask them and request them and he would also request that the elected representatives should talk to each other and create a situation in which it becomes possible for them to form a Government. The Presidential Proclamation dated 7th March, 2005 was approved by the Lok Sabha at its sitting held on 19th March, 2005 and Rajya Sabha at its sitting held on 21st March, 2005.
The Governor of Bihar made two reports to the President of India, one dated 27th April, 2005 and the other dated 21st May, 2005. On consideration of these reports, Notification dated 23rd May, 2005 was issued in exercise of the powers conferred by sub-clause (b) of Clause (2) of Article 174 of the Constitution, read with clause (a) of the Notification G.S.R.162(E) dated 7th March, 2005 issued under Article 356 of the Constitution and the Legislative Assembly of the State of Bihar was dissolved with immediate effect.
These writ petitions have been filed challenging constitutional validity of the aforesaid Proclamation dated 23rd May, 2005. Mr. Soli J. Sorabjee, Senior Advocate and Mr. P.S. Narasimha, Advocate and Mr. Viplav Sharma, advocate appearing-in-person have made elaborate submissions in support of the challenge to the impugned action of dismissing the assembly.
On the other hand, Mr. Milon K. Banerjee, Attorney-General for India, Mr. Goolam E. Vahanavati, Solicitor General and Mr. Gopal Subramaniam, Additional Solicitor General appearing for Union of India and Mr. P.P. Rao, Senior Advocate appearing for the State of Bihar also made elaborate submissions supporting the impugned Proclamation dated 23rd May, 2005.
Many intricate and important questions of law having far reaching impact have been addressed from both sides. After the conclusion of the hearing of oral arguments, written submissions have also been filed by learned counsel.
Fresh elections in State of Bihar have been notified. As per press note dated 3rd September, 2005 issued by Election Commission of India, the schedule for general elections to the Legislative Assembly of Bihar has been announced. According to it, the polling is to take place in four phases commencing from 18th October, 2005 and ending with the fourth phase voting on 19th November, 2005. As per the said press note, the date of Notification for first and second phase of poll was 23rd September and 28th September, 2005, date of poll being 18th October, 2005 and 26th October, 2005 respectively.
Notifications for third and fourth phases of poll are to be issued on 19th and 26th October, 2005 respectively.
Keeping in view the questions involved, the pronouncement of judgment with detailed reasons is likely to take some time and, therefore, at this stage, we are pronouncing this brief order as the order of the court to be followed by detailed reasons later.
Accordingly, as per majority opinion, this court orders as under:
The Proclamation dated 23rd May, 2005 dissolving the Legislative Assembly of the State of Bihar is unconstitutional.
Despite unconstitutionality of the impugned Proclamation, but having regard to the facts and circumstances of the case, the present is not a case where in exercise of discretionary jurisdiction the status quo ante deserves to be ordered to restore the Legislative Assembly as it stood on the date of Proclamation dated 7th March, 2005 whereunder it was kept under suspended animation." POINT NO.1 - Is it permissible to dissolve the Legislative Assembly under Article 174(2) (b) of the Constitution without its first meeting taking place? Article 174 of the Constitution deals with the power of the Governor to summon the House, prorogue the House and dissolve the Legislative Assembly. This Court never had the occasion to consider the question of legality of dissolution of a Legislative Assembly even before its first meeting contemplated under Article 172 of the Constitution. It has been contended on behalf of the petitioners by Mr. Narsimha and Mr. Viplav Sharma, appearing-in-person, that a Legislative Assembly can be dissolved under Article 174(2)(b) only after its first meeting is held as postulated by Article 172 of the Constitution. The argument is that there cannot be any dissolution without even members taking oath and the Legislative Assembly coming into existence. What does not exist, cannot be dissolved, is the submission. In this regard, the question to be considered also is whether the date for first meeting of the Legislative Assembly can be fixed without anyone being in a position to form the Government.
Let us first examine the relevant constitutional and statutory provisions. Part VI of the Constitution dealing with the States has six chapters but relevant for our purpose are Chapter II and Chapter III. Chapter II comprising Article 153 to Article 167 relates to the executive, Chapter III comprising Article 168 to Article 212 relates to the State Legislature.
The federal structure under our Constitution contemplates that there shall be a Legislature for every State which shall consist of a Governor and one or two Houses, as provided in Article 168. Article 170 prescribes that the Legislative Assembly of each State shall consist of members chosen by direct election from territorial constituencies in the States. Article 170, therefore, brings in the democratic process of election.
Article 164 puts into place an executive Government. It enjoins upon the Governor to appoint the Chief Minister and other ministers on the advice of the Chief Minister. The Council of Ministers (Article 163) exercises the executive power of the State as provided under Article 154. Article 164(2) provides that the Council of ministers shall be collectively responsible to the Legislative Assembly of the State.
As provided in Article 172, every Legislative Assembly of every State, unless sooner dissolved, shall continue for five years from the date appointed for its first meeting and no longer and the expiration of the said period of five years shall operate as a dissolution of the Assembly. Article 174(1) provides that the Governor shall from time to time summon the House to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session.
Article 174(2) (b) provides that the Governor may from time to time dissolve the Legislative Assembly.
Every member of the Legislative Assembly of the State shall, before taking his seat, make and subscribe before the Governor, an oath or affirmation, as provided in Article 188 of the Constitution.
The contention urged is that the function of the Governor in summoning the House and administering the oath or affirmation to the members of the Legislative Assembly are not the matters of privilege, prerogative or discretion of the Governor but are his primary and fundamental constitutional obligations on which the principles of parliamentary democracy, federalism and even 'separation of power' are dependent. Further contention is that another constitutional obligation of the Governor is to constitute the executive Government.
According to Mr. Narasimha, the Governor failed to fulfill these constitutional obligations. Neither the executive Government nor the Legislative Assembly has been constituted by the Governor. On the other hand, the Governor has frustrated the very object of exercise of his constitutional obligation by dissolving the Legislative Assembly under Article 174(2)(b) without the Legislative Assembly being even constituted. When the Legislative Assembly is not even constituted, where is the question of its dissolution, is the contention urged. The submission is that under the scheme of Indian Constitution, it is impermissible to dissolve a Legislative Assembly before its first meeting and members making oath or affirmation as required by Article 188. According to the petitioners, under Indian Constitution, the Legislative Assembly is duly constituted only upon the House being summoned and from the date appointed for its first meeting. Article 172 which provides for duration of State Legislatures reads as under:
"172. Duration of State Legislatures –
Every Legislative Assembly of every State, unless sooner dissolved shall continue for (five years) from the date appointed for its first meeting and no longer and the expiration of the said period of (five years) shall operate as a dissolution of the Assembly:
Provided that the said period, may while a proclamation of Emergency is in operation, be extended by Parliament by law for a period not exceeding one year at a time and not extending in any case beyond a period of six months after the Proclamation has ceased to operate.
The Legislative Council of a State shall not be subject to dissolution, but as nearly as possible one third of the members thereof shall retire as soon as may be on the expiration of every second year in accordance with the provisions made in that behalf by Parliament by law.
The aforesaid constitutional provision stipulates that five years term of a Legislative Assembly shall be reckoned from the date appointed for its first meeting and on the expiry of five years commencing from the date of the first meeting, the Assembly automatically stands dissolved by afflux of time. The duration of the Legislative Assembly beyond five years is impermissible in view of the mandate of the aforesaid provision that the Legislative Assembly shall continue for five years and 'no longer'. Relying upon these provisions, it is contended that the due constitution of the Legislative Assembly can only be after its first meeting when the members subscribe oath or affirmation under Article 188. The statutory deemed constitution of the Assembly under Section 73 of the R.P. Act, 1951, according to the petitioners, has no relevance for determining due constitution of Legislative Assembly for the purpose of Constitution of India.
Reference on behalf of the petitioners has also been made to law existing prior to the enforcement of the Constitution of India contemplating the commencement of the Council of State and Legislative Assembly from the date of its first meeting. It was pointed out that Section 63(d) in the Government of India Act, 1915 which dealt with Indian Legislature provided that every Council of State shall continue for five years and every Legislative Assembly for three years from the date of its first meeting. Likewise, Section 72(b) provided that every Governor's Legislative Council shall continue for three years from its first meeting. The Government of India Act, 1919, repealing 1915 Act, provided in Section 8(1) that every Governor's Legislative Council shall continue for three years from its first meeting and in Section 21 provided that every Council of State shall continue for five years and every Legislative Assembly for three years from its first meeting. Likewise, the Government of India Act, 1935 repealing 1919 Act, had provision identical to Article 172 of the Constitution.
Section 73 of the R.P. Act 1951, in so far as relevant for our purposes, is as under:
"73. Publication of results of general elections to the House of the People and the State Legislative Assemblies. Where a general election is held for the purpose of constituting a new House of the People or a new State Legislative Assembly, there shall be notified by [the Election Commission] in the Official Gazette, as soon as may be after [the results of the elections in all the constituencies] [other than these in which the poll could not be taken for any reason on the date originally fixed under clause (d) of section 30 or for which the time for completion of the election has been extended under the provisions of section 153] have been declared by the returning officer under the provisions of section 53 or, as the case may be section 66, the names of the members elected for those constituencies] and upon the issue of such notification that House or Assembly shall be deemed to be duly constituted." In the present case, Notification under Section 73 of the RP Act, 1951 was issued on 4th March, 2005. The deemed constitution of the Legislative Assembly took place under Section 73 on the issue of the said notification. The question is whether this deemed constitution of Legislative Assembly is only for the purpose of the RP Act, 1951 and not for the constitutional provisions so as to invoke power of dissolution under Article 174(2)(b). The stand of the Government is that in view of aforesaid legal fiction, the constitution of the Legislative Assembly takes place for all purposes and, thus, the Legislative Assembly is deemed to have been 'duly constituted' on 4th March, 2005 and, therefore, the Governor could exercise the power of dissolution under Article 174(2)(b).
Section 73 of the RP Act, 1951 enjoins upon the Election Commission to issue notification after declaration of results of the elections in all the constituencies. The superintendence, direction and control of elections to Parliament and to the Legislature of every State vests in Election Commission under Article 324 of the Constitution. Article 327 provides that Parliament may make provision with respect to all matters relating to, or in connection with, elections to the Legislative Assembly of a State and all other matters necessary for securing the 'due constitution' of the House of the Legislature. Article 329 bars the interference by courts in electoral matters except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature. Article 327 read with Section 73 of the RP Act, 1951 provide for as to when the House or Assembly shall be 'duly constituted'. No provision, constitutional or statutory, stipulates that the 'due constitution' is only for the purposes of Articles 324, 327 and 329 and not for the purpose of enabling the Governor to exercise power under Article 174(2)(b) of the Constitution. In so far as the argument based on Article 172 is concerned, it seems clear that the due constitution of the Legislative Assembly is different than its duration which is five years to be computed from the date appointed for its first meeting and no longer. There is no restriction under Article 174(2)(b) stipulating that the power to dissolve the Legislative Assembly can be exercised only after its first meeting. Clause (b) of proviso to Section 73 of the RP Act, 1951 also does not limit the deemed constitution of the Assembly for only specific purpose of the said Act or Articles 324, 327 and 329 of the Constitution. The said clause provides that the issue of notification under Section 73 shall not be deemed to affect the duration of the State Legislative Assembly, if any, functioning immediately before the issue of the said notification. In fact, clause (b) further fortifies the conclusion that the duration of the Legislative Assembly is different than the due constitution thereof. In the present case, we are not concerned with the question of duration of the Assembly but with the question whether the Assembly had been duly constituted or not so as to enable the Governor to exercise the power of dissolution under Article 174(2)(b). The Constitution of India does not postulate one 'due constitution' for the purposes of elections under Part XV and another for the purposes of the executive and the State Legislature under Chapter II and III of Part VI. The aforenoted provisions existing prior to the enforcement of Constitution of India are also of no relevance for determining the effect of deemed constitution of Assembly under Section 73 of the RP Act, 1951 to exercise power of dissolution under Article 274 (2)(b).
In K.K. Abu v. Union of India and Ors. [(AIR 1965 Kerala 229], a learned Single Judge of the High Court rightly came to the conclusion that neither Article 172 nor Article 174 prescribe that dissolution of a State Legislature can only be after commencement of its term or after the date fixed for its first meeting. Once the Assembly is constituted, it becomes capable of dissolution. This decision has been referred to by one of us (Arijit Pasayat, J.) in Special Reference No.1 of 2002 (popularly known as Gujarat Assembly Election matter) [(2002) 8 SCC 237]. No provision of the Constitution stipulates that the dissolution can only be after the first meeting of the State Legislature.
The acceptance of the contention of the petitioners can also lead to a breakdown of the Constitution. In a given case, none may come forth to stake claim to form the Government, for want of requisite strength to provide a stable Government. If petitioners' contention is accepted, in such an eventuality, the Governor will neither be able to appoint Executive Government nor would he be able to exercise power of dissolution under Article 174(2)(b). The Constitution does not postulate a live Assembly without the Executive Government.
On behalf of the petitioners, reliance has, however, been placed upon a decision of a Division Bench of Allahabad High Court in the case of Udai Narain Sinha v. State of U.P. and Ors. [AIR 1987 All.203].
Disagreeing with the Kerala High Court, it was held that in the absence of the appointment of a date for the first meeting of the Assembly in accordance with Article 172(1), its life did not commence for the purposes of that article, even though it might have been constituted by virtue of notification under Section 73 of the RP Act, 1951 so as to entitle the Governor to dissolve it by exercising power under Article 174(2). It was held by the Division Bench that Section 73 of the RP Act, 1951 only created a fiction for limited purpose for paving the way for the Governor to appoint a date for first meeting of either House or the Assembly so as to enable them to function after being summoned to meet under Article 174 of the Constitution. We are unable to read any such limitation.
In our view, the Assembly, for all intends and purposes, is deemed to be duly constituted on issue of notification under Section 73 and the duration thereof is distinct from its due constitution. The interpretation which may lead to a situation of constitutional breakdown deserves to be avoided, unless the provisions are so clear as not to call for any other interpretation. This case does not fall in the later category.
In Gujarat Assembly Election Matter, the issue before the Constitution Bench was whether six months' period contemplated by Article 174(1) applies to a dissolved Legislative Assembly. While dealing with that question and holding that the said provision applies only to subsisting Legislative Assembly and not to a dissolved Legislative Assembly, it was held that the constitution of any Assembly can only be under Section 73 of the RP Act, 1951 and the requirement of Article 188 of Constitution suggests that the Assembly comes into existence even before its first sitting commences. (Emphasis supplied by us).
In view of the above, the first point is answered against the petitioners.
POINT NO.2:
Whether the proclamation dated 23rd May, 2005 dissolving the Assembly of Bihar is illegal and unconstitutional? This point is the heart of the matter. The answer to the constitutional validity of the impugned notification depends upon the scope and extent of judicial review in such matters as determined by a Nine Judge Bench decision in Bommai's case. Learned counsel appearing for both sides have made elaborate submissions on the question as to what is the ratio decidendi of Bommai's case.
According to the petitioners, the notification dissolving the Assembly is illegal as it is based on the reports of the Governor which suffered from serious legal and factual infirmities and are tainted with pervasive mala fides which is evident from the record. It is contended that the object of the reports of the Governor was to prevent political party led by Mr. Nitish Kumar to form the Government. The submission is that such being the object, the consequent notification of dissolution accepting the recommendation deserves to be annulled.
Under Article 356 of the Constitution, the dissolution of an Assembly can be ordered on the satisfaction that a situation has arisen in which the Government of the State cannot be carried on in accordance with the Constitution. Such a satisfaction can be reached by the President on receipt of report from the Governor of a State or otherwise. It is permissible to arrive at the satisfaction on receipt of the report from Governor and on other material. Such a satisfaction can also be reached only on the report of the Governor. It is also permissible to reach such a conclusion even without the report of the Governor in case the President has other relevant material for reaching the satisfaction contemplated by Article 356. The expression 'or otherwise' is of wide amplitude.
In the present case, it is not in dispute that the satisfaction that a situation has arisen in which the Government of State cannot be carried on in accordance with the provisions of the Constitution has been arrived at only on the basis of the reports of the Governor. It is not the case of the Union of India that it has relied upon any material other than the reports of the Governor which have been earlier reproduced in extenso.
The Governor in the report dated 6th March, 2005 has referred to Bommai's case as also to the recommendations of Sarkaria Commission. Sarkaria Commission Report in Chapter IV deals extensively with the role of the Governors. Since in this case, the dissolution of the Assembly is based solely on the reports of the Governor and the issue also is as to the role played by the Governor and submissions also having been made on role which is expected from a high constitutional functionary like Governor, it would be useful to first examine that aspect.
Role of Governor The role of the Governor has been a key issue in the matters of Central-State relations. The Constitution of India envisages three tiers of Government the Union, State and the Local Self-Government. From the functional standpoint, it is stated that such a Constitution "is not a static format, but a dynamic process" [Report of the Sarkaria Commission on Centre-State Relations (1988)].
In the context of Union-State relations it has been noted that "the very dynamism of the system with all its checks and balances brings in its wake problems and conflicts in the working of Union-State relations." In the light of a volatile system prevailing today, it is pertinent to recognize the crucial role played by the Governors in the working of the democratic framework.
Addressing the Conference of Governors in June 2005, the President of India Dr. A.P.J. Abdul Kalam stressed the relevance of recommendations of the Sarkaria Commission and observed that "While there are many checks and balances provided by the Constitution, the office of the Governor has been bestowed with the independence to rise above the day-to-day politics and override compulsions either emanating from the central system or the state system." The Prime Minister Dr. Manmohan Singh on the same occasion noted that "you are the representatives of the center in states and hence, you bring a national perspective to state level actions and activities." In Hargovind Pant v. Dr. Raghukul Tilak & Ors. [(1979) 3 SCC 458], observing on the issue as to whether a Governor could be considered as an "employee" of the Government of India, this Court said "it is no doubt true that the Governor is appointed by the President which means in effect and substance the Government of India, but that is only a mode of appointment and it does not make the Governor an employee or servant of the Government of India." Referring to Article 356 of the Constitution, the Court reasoned that "one highly significant role which he (Governor) has to play under the Constitution is of making a report where he finds that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution" and further added that the Governor "is not amenable to the directions of the Government of India, nor is he accountable to them for the manner in which he carries out his functions and duties. He is an independent constitutional office which is not subject to the control of the Government of India." Fortifying the same, Justice V.R. Krishna Iyer has observed that the mode of appointment can never legitimize any form of interference in the working of the Governor, else the concept of "judicial independence" would not be tenable, as even the judges of the High Courts and the Supreme Court are appointed by the President. (V.R. Krisnha Iyer, A Constitutional Miscellany (Second Edition, Lucknow:Eastern Book Co., 2003) at p.44).
The then Vice-President of India, Shri G.S. Pathak, had remarked in 1970 that "in the sphere which is bound by the advice of the Council of Ministers, for obvious reasons, the Governor must be independent of the Centre" as there may be cases "where the advice of the Centre may clash with advice of the State Council of Ministers" and that "in such cases the Governor must ignore the Centre's "advice" and act on the advice of his Council of Ministers." Relevant for the present controversy, very significant observations were made in Bommai's case, when it was said "He (Governor) is as much bound to exercise this power in a situation contemplated by Article 356 as he is bound not to use it where such a situation has not really arisen" (para 272 Jeevan Reddy, J. Emphasis supplied by us) The role of the Governor has come in for considerable criticism on the ground that some Governors have failed to display the qualities of impartiality expected of them. The Sarkaria Commission Report has noted that "many have traced this mainly to the fact that the Governor is appointed by, and holds office during the pleasure of the President, i.e., in effect, the Union Council of Ministers." Rejecting the suggestion of an elected Governor, the Constituent Assembly repeatedly stressed on consultation with the Provincial/State Government prior to the appointment of the Governor. Sir Alladi Krishnaswamy Ayyar is quoted to have stated that "a convention of consulting the provincial cabinet might easily grow up" as was said to be the case in Canada (White Paper on the Office of the Governor, Government of Karnataka (22nd September, 1983) c.f. V.R. Krishna Iyer, A Constitutional Miscellany (Second Edition, Lucknow: Eastern Book Co., 2003) at p.45). Shri Jawaharlal Nehru had also observed in the debate on the appointment of Governor in the Constituent Assembly that a Governor "must be acceptable to the Province, he must be acceptable to the Government of the Province and yet he must not be known to be a part of the party machine of that province." He was of the opinion that a nominated Governor shall have "far fewer common links with the Centre." Querying as to what could be an objective and representative body which will fit into our Constitutional framework to facilitate the appointment of Governors on meritorious basis, the Sarkaria Commission has observed that "There is no gainsaying that a procedure must be devised which can ensure objectivity in selection and adherence to the criteria for selection and insulate the system from political pressures. Also, the new procedure must not only be fair but should be seen to be fair." (Chapter IV "Role of the Governor", Report of the Sarkaria Commission on Centre-State Relations (1988) at para 4.6.30). Recommending that the Vice-President of India and the Speaker of the Lok Sabha should be consulted by the Prime Minister in selecting a Governor, the Sarkaria Commission has noted that "such consultation will greatly enhance the credibility of the selection process." The other related issue of debate was regarding the extent of discretionary powers to be allowed to the Governor. Following the decision to have a nominated Governor, references in the various articles of the Draft Constitution relating to the exercise of specified functions by the Governor 'in his discretion' were deleted. (Chapter IV "Role of the Governor", Report of the Sarkaria Commission on Centre-State Relations (1988) at para 4.2.07). Article 163 of the Constitution (then Draft Article 143) generated considerable discussion, and Dr. Ambedkar is stated to have "maintained that vesting the Governor with cert