RAMESHWAR PRASAD AND ORS. v. UNION OF INDIA AND ANR (2)

Citation: [2006] 1 S.C.R. 562

Court: Supreme Court of India

Bench: Y.K. SABHARWAL, K.G. BALAKRISHNAN, B.N. AGRAWAL, ASHOK BHAN, ARIJIT PASAYAT

Case summary

RAMESHWAR PRASAD AND ORS. v. UNION OF INDIA AND ANR (2).pdf

Judgment text

• RAMESHWAR PRASAD AND ORS. v. UNION OF INDIA AND ANR. JANUARY 24, 2006 [Y. K. SABHARWAL, CJ. , K. G. BALAKRISHNAN, B. N. AGRAWAL, ASHOK BHAN AND ARIJIT PASAYAT, JJ. ) Constitution of India, 1950; Articles 321226, 356, 74 and 163: Ifivoking ofpower under Article 356-/ssue ofproclamation-- Subjective satisfaction of President-Conditions precedent-Scope ofjudicial review. Articles 356 and 74-Satisfaction ofPresident under -. Vature o. f-Duty ofCouncil of Ministers before recommending issuance ufproclamation- -On facts, held: Governor has misled Union Council of Ministers. Article 356--Nature and Scope ofpower---Held, is un emergency power but not an absolute power. Articles 32, 226 and Preamble-Scope of interference. •.

Articles 356, 163 and 174(2)(b)-Dissolution ofState Assembly-Floor test-Necessity of > Articles 356, I74(2)(b), 8j(2)(b) and Schedule X-Dissolution ofnewly elected Assembly-Grounds to be taken into consideration-Hung Assembly- Realignment of parties/MlAs-Unethical means/horse lrading- Recommendation ofdissolution on that ground-Scope ofjudicial review in such situations. Articles 159, 163, 164, I 74(2)(b) and 356--/nsta/lation of new Government after election-Duty ofGovernor. Articles 79, 168, 245 and 246-Parliament-Nature of acts o. f-When legislative. -f RAMESHWAR PRASAD v. U. 0. 1. 563 Articles 356, /74(2)(b).

85, 32 and 226-Unconstitutionality of -~ proclamation under Article 356 dissolving Legislative Assembly of Statepower to mould relief Articles 157 and 155-Governor-Criteria for appointment a/- Suggestions given in Sarkaria Commission Report-Need for observance of Articles 163, 153, 154 and 159-Governor-Nature and role of office of-Discharge ofpowers and duties-Discretionary powers-Scope of Article 361-Scope of immunity granted to Governors and President- Discussed. Articles 327, 324, 329, 174, 168, 172, 83. 85 and 79-"Due constitution" or coming into existence of a. legislative Assembly-When takes place. Words and Phrases: "Emergency "-Meaning of in the context of Part XVlll of the Constitution. "Merger"-Meaning of in the context of Para 4 Schedule X of the Constitution. "Required"-Meaning of in the context of discretionary powers of the Governor under the Constitution. ~.

In these Writ Petitions, the petitioners have challenged the validity of the proclamation dated 23rd May, 2005 issued under Article 356 of the Constitution ordering dissolution of Bihar Legislative Assembly. They have also prayed for restoration of the Election Commission Notification dated 4th March, 2005 issued under Section 73 of the Representation of People Act, 1951 notifying the names of the elected members. It was contended on behalf of the petitioners that the 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; and that the Governor could 564 SUPREME COlJRT REPORTS (2006j I S. C. R. 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 and Ors. v. Union ofIndia and Ors.. 1199413 SCC I, it was contended that action of the Governor is ma/a 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. It was 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 su~pended 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.

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, this Court accepted the submission of the Government that notice may not be issued to the Governor, and for giving brief reason in the order to be followed by detailed reasons later. The points that fell for determination by this Court are : (1) Is it permissible to dissolve the Legislative Assembly under Article 174(2)(b) of the Constitution without its first meeting taking place? (2) Whether the proclamation dated 23rd May, 2005 dissolving the Assembly of Bihar is illegal and unconstitutional? (3) 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? (4) 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 -J RAMESHWAR PRASAD v. U. 0. 1. 565 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. Disposing of the Writ Petitions, giving detailed reasons in support of its order dated 7th October, 2005, the Court HELD: Per Majority (Y. K. Sabharwal, CJ! for himself and B. N. Agrawal and Ashok Bhan, JJ. ): 1. 1. 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 np 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 566 SliPREMF COURT REPORTS [2006I I S. C. R. 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, this Court is 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 pCJwer of dissolution under Article l 74(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 Chapters 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). [609-C-H; 610-A, Bl 1. 2.

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. 1611-A-BI 1. 3. The constitution of any Assembly can only be under Section 73 of the RP Act, 1951 and the requirement of Article 188 of the Constitution suggests that the Assembly comes into existence even before its first sitting commences. [611-C-DI Special Reference No. I of2002 (Gujarat Assembly Election matter) p (2002) 8 sec 237, relied on. K. K. Abu v. Union ofIndia and Ors. , AIR (1965) Kerala 229, approved. Udai Narain Sinha v. State of U. P. and Ors.. AIR [19871 All. 203, disapproved. 2. I. The proclamation dated 23rd May, 2005 is unconstitutional.

Under Article 356 of the Constitution, the dissolution of an Assembly can be ordered on the satisfaction that a situation has arisen in which th~ . 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 j RAMESHWAR PRASAD v. U. 0. 1. 567 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 ~he satisfaction contemplated by Article 356. The expression 'or otherwise' is of wide amplitude. [611-H; 612-A, Bl 2. 2.

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. (612-C, DI 2. 3. 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. 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. (612-H; 614-BI 2. 4. The expression "required" found in Article 163(1) is stated to signify that the Governor can exercise his discretionary powers only if there is a compelling necessity to do so.

It has been reasoned that the expression "by or under the Constitution" means that the necessity to exercise such powers may arise from any express provision of the Constitution or by necessary implication. The Sarkaria Commission Report further adds that such necessity may arise even from rules and orders made "under" the Constitution. Observing that the Governor needs to discharge "dual responsibility" - to the Union and the State - the Sarkaria Commission has sought to evaluate the role of the Governors in certain controversial circumstances, such as, in appointing the Chief Minister, in ascertaining the majority, in dismissal of the Chief Minister, in dissolving the Legislative Assembly, in recommending President's Rule and in reserving Bills for President's consideration. [615-C-E[ 2. 5.

It is seen that one day a person is in active politics in as much as he holds the office of the Chief Minister or Minister or a party post and·almosfon the following day or, in any case, soon thereafter, the same person is appointed as the Governor in another State with hardly any cooling period. Ordinarily, it is difficult to expect detachment from party 568 Sl PRE\1E COURT HPORTS [2006[ 1 S. C. R. ... politics from such a person while performing the constitutional functions as Governor. [620-B-C! 2. 6. Undisputedly, a Governor is charged with the duty to preserve, protect and defend the Constitution and the laws, has a concomitant duty and obligation to preserve democracy and not to permit the 'canker' of political defections to tear into the vitals of the Indian democracy. But on facts of the present case, this Court is unable to accept that the Governor by reports dated 27th April and 21st May, 2005 sought to achieve the aforesaid objective.

There was no material, let alone relevant, with the Governor to assume that there was no legitimate realignment of political parties and there was blatant distortion of democracy by induced defections through unfair, illegal, unethical and unconstitutional means. [624-H; 625-A, B[ 2. 7. The report dated 27th April, 2005 refers to (1) serious attempt to cobble a majority; (2) winning over MLAs by various means; (3) targeting parties for a _split; (4) high pressure moves; (5) offering various al,lurements like castes, posts, money etc. ; and (6) Horse-trading. Almost similar report was sent by the Governors of Karnataka and Nagaland leading to the dissolution of the Assembly of Karnataka and Nagaland, invalidated in Bommai 's case.

Further, the contention that the Central Government did not act upon the report dated 27th April, 2005 is of no relevance and cannot be considered in isolation since the question is about the manner in which the Governor moved, very swiftly and with undue haste, finding that one political party may be close to getting majority and the situation had reached where claim may be staked to form the Government which led to the report dated 21st May, 2005. It is in this context that the Governor says that instead of installing a Government based on a majority achieved by a distortion of the system, it would be preferable that the people/electorate could be provided with one more opportunity to seek the mandate of the people. This approach makes it evident that the object was to prevent a particular political party from staking a claim and not the professed object of anxiety not to permit the distortion of the political system, as sought to be urged.

Such a course is nothing but wholly illegal and irregular and has to be described as ma/u fide. The recommendation for dissolution of the Assembly to prevent the staking of claim to form the Governmrnt purportedly on the ground tha~ the majority was achieved by distortion of system by allurement, corruption and bribery was based on such general assumptions without RAMESHWAR PRASAD v. U. 0. 1. 569· any material which are quite easy to be made if any political party not gaining absolute majority is to be kept out of governance. No assumption without any basis whatever could be drawn that the reason for a group to support the claim to form the Government by Nitish Kumar, was only the aforesaid distortions. That stage had not reached. It was not allowed to be reached. If such majority had been presented and the Governor forms a legitimate opinion that the party staking claim would not be able to provide stable Government to the State, that may be a different situation.

Under no circumstances, the action of Governor can be held to ~ be bonafide when it is intended to prevent a political party to stake claim for formation of the Government. After elections, every genuine attempt is to be made which helps in installation of a popular Government, whichever be the political party. 1625-C-H; 626-AI 2. 8. The question of morality is of course very serious and important matter. It has been engaging the attention of many constitutional experts, legal luminaries, jurists and political leaders. The concept of morality has also been changing from time to time also having regard to t. he ground ).. realities and the compulsion of the situation including the aspect and relevance ofcoalition governance as opposed to a single party Governn. ent. Even in the economic field, the concept of morality has been a matter of policy and priorities o~. th,Governm. ent.

The Government may give incentive, which ideally may be considered unethical and immoral, but in so far as Government is concerned, it may become necessa ry to give incentive to unearth black money. It may be difficult to leave such aspects to be determined by high constitutional functionaries, on case to case basis, depending upon the facts of the case, and personal mould of the constitutional functionaries. With all these imponderables, the Constitution does not contemplate the dissolution of Assemblies based on the assumption of such immoralities for formation or the satisfaction that situation has arisen in which the Government cannot be ofthe Constitution or India. (628-A-DI 2. 9. Articles 355 and 356 of the Constitution set the tenor for the precedence of the Union over the States.

It has been explained that the rationale for introducing Article 355 was to distinctly demarcate the functioning of the State and Union governments and to prevent any form of unprincipled invasions by the Union into the affairs of the State. It was felt that through the unambiguous language of Articles 355 and 356, the Union shall be constitutionally obliged fo interfere only under certain 570 SUPREME COURT REPOR rs (2001 limited circumstances as laid down in the provisions. 1632-B, q 2. 10. In State o(Rujusthun 's case, there was a broad consensus l five of the seven Judges that the Court can interfere if it is satisfied the power has been exercised ma/a fide or on "wholly extraneous or irrelevant grounds". Some Judges have stated the rule in narrow terms and some others in a little less narrow terms but not a single Judge held that the proclamation is immune from judicial scrutiny.

It must be remembered that at that time clause (5) was there barring judicial review of the proclamation and yet they said that Court can interfere on the ground of mu/a fides. Surely, the deletion of clause (5) has not restricted (' the scope of judicial review but has widened it. f632-G, H; 633-A, Bl 2. 11. When the facts of the present case are examined in light of the scope of judicial review as is clear from the aforesaid which represents ratio decidendi of majority opinion of Bommai 's case, it becomes evident that the challenge to the impugned Proclamation must succeed. The case in hand is squarely covered against the Government by the dicta laid down in Bommui 's case. There cannot be any presumption of allurement or horse-trading only for the reason that some MLAs, expressed the view which was opposed to the public posture of their leader and decided to support the formation of the Government by the leader ofanother political party. The minority Governments are not unknown.

It is also not unknown that the Governor, in a given circumstance, may not accept the claim to form the Government, if satisfied that the party or the group staking claim would not be able to provide to the State a stable Government. It is also not unknown that despite various differences of perception, the party, group or MLAs may still not opt to take a step which may lead to the fall of the Government for various reasons including their being not prepared to face the elections. These and many other imponderables can result in MLAs belonging to even different political parties to come together. It does not necessarily lead to assumption of allurement and horse-trading. 1649-C-Ff 2. 12.

As opposed to the cases of dissolution of Karnataka and Nagaland, while considering the cases of dissolution of assemblies of Madhya Pradesh, Rajasthan and Himachal Pradesh, it was held in Bommai that the reports of the Governors disclosed that the State Governments had miserably failed to protect the citizens and property . of the State against internal disturbances, it was found that the Governor's reports RAMESHWAR PRASAD v. U. 0. 1. 571 are based on relevant material and are made bona fide and after due verification. It is in the light of these findings that the validity of the Proclamation was unanimously upheld in respect of these three States. (649-G-H; 650-AJ 2. 13. It is open to the Court, in exercise of judicial review, to examine the question whether the Governor's report is based upon relevant material or not; whether it is made bonafide or not; and whether the facts have been duly verified or not.

The absence of these factors resulted in me majority declaring the dissolution of State Legislatures of Karnataka and Nagaland as invalid. [659-D) 2. 14. In the present case, there is nothing except the reports of the Governor. In absence of the relevant material much less due verification, the report of the Governor has to be treated as the personal ipse dixit of the Governor. The drastic and extreme action under Article 356 cannot be justified on mere ipse dixit, suspicion, whims and fancies of the Governor. This Court cannot remain a silent spectator watching the subversion of the Constitution. It is to be remembered that this Court is the sentinel on the qui vive. In the facts and circumstances of this case, the Governor may be main player, but Council of Ministers should have verified facts stated in the report of the Governor before hurriedly accepting it as a gospel truth as to what Governor stated.

Clearly, the Governor has mislead the Council of Ministers which lead to aid and advice being given by the Council of Ministers to the President leading to the issue of the impugned Proclamation. (659-F-H; 660-A) 2. 15. In the present case, like in Bommai's case, there is no material whatsoever except the ipse dixit of the Governor. The action which results in preventing a political party from staking claim to form a Government after election, on such fanciful assumptions, if allowed to stand, would be destructive of the democratic fabric. It is one thing to come to the conclusion that the majority staking claim to form the Government, wo. uld not be able to provide stable Government to the State but it is altogether different thing to say that they have garnered majority by illegal means and, therefore, their claim to form the Government cannot be accepted. fn the latter case, the matter may have to be left to t.

he wisdom and will of the people, either in the same House it being taken up by the opposition or left to be determined by the people in the elections to follow. Without highly cogent material, it would be wholly irrational for constitutional 572 SUPREME (_'()l :RT REPfJRTS [20061 I S. C. R. authority to deny the claim made by a majority to form the Government , .... only on the ground that the majority has been obtained by offering allurements and bribe which deals have taken place in the cover of darkness but his undisclosed sources have confirmed such deals. The extraordinary emergency power of recommending dissolution of a Legislative Assembly is not a matter of course to be resorted to for good governance or cleansing of the politics for the stated reasons without any authentic material. These are the matters better left to the wisdom of others including opposition and electorate. 1661-D-GI 2. 16.

The proposition that given a choice between going back to the electorate and accepting a majority obtained improperly, only the former is the real alternative, is too broad and wide to merit acceptance. Acceptance of such a proposition as a relevant consideration to invoke exceptional power under Article 356 may open a floodgate of dissolutions and has far reaching alarming and dangerous consequences. It may also be a handle to reject post-election alignments and realignments on the ground of same being unethical, plunging the country or the State to another election. This aspect assumes great significance in situation of fractured verdicts and in the formation of coalition Governments. If, after polls two or more parties come together, it may be difficult to deny their claim of majority on the stated ground of such illegality.

These are the aspects better left to be determined by the political parties which, of course, must set healthy and ethical standards for themselves, but, in any case, the ultimate judgment has to be left to the electorate and the legislature comprising also of members of opposition. 1662-DI • 2. 17. A political party primajacie having majority has to be permitted to continue with the Government or permitted to form the Government, as the case may be. In both categories, ultimately the majority shall have to be proved on the floor of the House. The contention also overlooks the basic issue. It being that a party even, prima facie, having majority can be prevented to continue to run the Government or claim to form the Government declined on the purported assumption of the said majority having been obtained by illegal means.

There is no question of such basic issues allegedly falling in the category of "political thicket" being closed on the ground that there are many imponderables for which there is. no judicially manageable standards and, thus, outside the scope of judicial review. 1663-E-GI i /' RAMESHWAR PRASAD v. U. 0. 1. 573 2. 18. For more than one reason, this Court is unable to accept the \ contention of the proclamation of the nature in question being a legislative act. Firstly, if the contention was to be accepted, Bommai 's case would not have held the proclamation in case of h'. arnataka and Nagaland as illegal and invalid. Secondly, the contention was specifically rejected in the majority opinion. The contention was that the proclamation of the present nature assumes the character of legislation and that it can be struck down only on the ground on which a legislation can be struck down.

Rejecting the contention, it was held that every act of Parliament does not amount to and does not result in legislation and that the Parliament performs many other functions. One ofsuch functions is the approval of the proclamation under clause (3) of Article 356. Such approval can, by no stretch of imagination, be called 'legislation'. Its legal character is wholly different. It is a constitutional function, a check upon the exercise of power under clause (1) of Article 356. It is a safeguard conceived in the interest of ensuring proper exercise of power under clause (1 ). It is certainly not legislation nor legislative in character. 1664-D-FI 2. 19. Though Bommai has widened the scope of judicial review, but going even by principles laid in State ofRajasthan 's case, the existence of the satisfaction can always be challenged on the ground that it is malafide or based on wholly extraneous and irrelevant grounds.

Apart from the fact that the narrow minimal area of judicial review as advocated in State ofRajasthan 's case is no longer the law of the land in view of it:; extension in Bommai's case but the present case even when considered by applying limited judicial review, cannot stand judicial scrutiny as the satisfaction herein is based on wholly extraneous and irrelevant ground. The main ground being to prevent a party to stake claim to form the Government. 1665-B-CJ 2. 20. What ultimately determines the scope of judicial review is the facts and circumstances of the given case and it is for this reason that the Proclamations in respect of Karnataka and Nagaland were held to be bad and not those relating to Madhya Pradesh, Rajasthan and Himachal Pradesh. 1668-H; 669-AI 2. 21.

The provision of the Tenth Schedule dealing with defections, those of AA Act of 1951 dealing with corrupt practice, electoral offences and disqualification and the provisions of Prevention of Corruption Act, 1988 are legal safeguards available for ensuring purity of public life in 574 Sl'PREME COl RI RL\'ORIS l2006J I S. C. R. democracy. But, in so far as the present case is concerned, these had no relevance at the stage when the dissolution of the Assembly was recommended without existenc~ of any material whatsoever. There was no material for the assumption that claim may be staked based not on democratic principles and based on manipulation by breaking political parties. 1669-F, Gj 2. 22. There cannot be any doubt that the oath prescribed under Article 159 requires the Governor to faithfully perform duties of his office and to the best of his ability preserve, protect and defend the Constitution and the laws.

The Governor cannot, in the exercise of his discretion or otherwise, do anything what is prohibited to be done. The Constitution enjoins upon the Governor that after the conclusion of elections, every possible atte~pt is made for formation of a popular Government representing the will of the people expressed through the electoral process. If the Governor acts to the contrary by creating a situation whereby a party is prevented even to stake a claim and recommends dissolution to achieve that object, the only inescapable inference to be drawn is that the exercise of jurisdiction is wholly illegal and unconstitutiollal. Governor's report dated 21st May, 2UUS, inter u! iu, stated that 17 - 18 MLAs belonging to LJP party arc moving towards JDU which would mean JDU may be in a position to stake claim to form the Government.

The further assumption that the move of the said members was itself indicative of various allurements having been offered to them and on that basis drawing an assumption that the claim that may be staked to form a Government would affect the constitutional provisions and safeguards built therein and distort the verdict of the people would be arbitrary. This shows that the approach was to stall JDU from staking a claim to form the Government. At that ' stage, such a view cannot be said to be consistent with the provisions of Tenth Schedule. In fact, the provisions of the said Schedule at that stage had no relevance. It is not a case of 'assumption', or 'perception' as to the provisions of Constitution by the Governor. It is a clear case where attempt was to somehow or the other prevent the formation of a Government by a political party - an area wholly prohibited in so far as the functions, duties and obligations of the Governor are concerned. It was thus a wholly unconstitutional act.

1669-H; 670-A-E] 2. 23. It is true as has been repeatedly opined in various reports and by various constitutional experts that the defections have been a bane of the Indian Democracy but, at the same time, it is to be remembered that ( / RAMESHWAR PRASAD v. U. 0. 1. 575 the defections have to be dealt with in the manner permissible in law. (670-F) 2. 24. If a political party with the support of other political party or other MLA's stakes claim to form a Government and satisfies the Governor about its majority to form a stable Government, the Governor cannot refuse formation of Government and override the majority claim because of his subjective assessment that the majority was cobbled by illegal and unethical means. No such power has been vested with the Governor. Such a power would be against the democratic principles of majority rule. Governor is not an autocratic political Ombudsman. Ifsuch a power is vested in the Governor and/or the President, the consequences can be horrendous.

The ground of maladministration by a State Government enjoying majority is not available for invoking power under Article 356. The remedy for corruption or similar ills and evils lies elsewhere and not in Article 356(1). In the same vein, it has to be held that the power under Tenth Schedule for defection lies with the Speaker of the House and not with the Governor. The power exercised by the Speaker under the Tenth Schedule is of judicial nature. The Governor cannot assume to himself aforesaid judicial power and based on that assumption come to the conclusion that there would be violation of Tenth Schedule and use it as a reason for recommending dissolution of assembly. (670-G, H; 671-A-D) 2. 25. The Governor, a high Constitutional functionary is required to be kept out from the controversies like disqualification of members of a.

Legislative Assembly and, therefore, there are provisions like Article 192(2) in the Constitution providing for Goyernor obtaining the opinion of the Election Commission and acting according to such opinion, in the constitutional scheme of things. Similar provision, in so far as, member of Parliament is concerned being in Article 103(2) of the Constitution. [671-D, E( S. R. Bommai and Ors. v. Union of India and Ors. , (1994) 3 SCC 1, followed. Hargovind Pant v. Dr. Raghuku/ Tilak & Ors. , (1979) 3 SCC 458; KihotoHollohan v. Zachi//hu & Ors. , (1992) Supp. 2 SCC 651; Maru Ram v. Union ofIndia and Ors. , [1981) 1SCC107; Kehar Singh & Anr. v. Union ofIndia and Anr. , [1989( l SCC 204; Maru ! J. am v. Union ofIndia, [1981 ( l SCC 107; Re: The Delhi Laws Act, 1912, the Ajmer-Merwara (Extension of Laws) Act, 1947 and the Part C States (Laws) Act, 1950 119511 SCR 747; Jayantilal Amrit Lal Shodhan v. F. N. Rana and Ors. , 119641 5 SCR 294; Rameshchandra Kachardas Porwal and Ors. v.

State ofMaharashtra and Ors. , (198112SCC722; A. K. Roy v. Union of India & Ors.. (198211 SCC 27; Barium Chemicals Ltd and Anr. v. Company Law Board and Ors. , (1966) Supt. SCR 311; Brundaban Nayuk v. Election Commission ofIndia & Anr. , (19651 3 SCR 53 and Election Commission of India & Anr. v. Dr. Subramaniam Swamy and Anr. , (1996) 4 SCC 104, referred to. Council a/Civil Service Unions v. Minister for the Civil Service, (19841 3 All. ER 935; Puhlhofer v. Hillingdon, London Borough Council, 11986) I AIL ER 467; R. K. Garg & Ors. v. Union ofIndia & Ors. , (19811 4 SCC 675 and Muhammad Sharif v. Federation of Pakistan, PLD 1988 (LAH) 725, referred to. Report of the Sarkaria Commission on Centre-State Relations (1988) (Chapters IV, VI); V. R. Krishna Iyer, A Constitutional Miscellany (Second Edition, Lucknow:Eastern Book Co. , 2003) at p. 44; Constituent Assembly Debates (Volume V! II, Revised Edition); The framing of India India's Constitution - Select Documents (Volume IV, B.

Shiva Rao (ed. ), New Delhi: Universal Law Publishing Co. , 2004) p. 86; Report of P. V. Rajamannar Committee (1969), Inquiry Committee constituted by the Government a/Tamil Nadu to report on the Centre-State relations; Report ofthe Study Team ofthe Administrative Reforms Commission (1967) headed by Shri MC. Setalvad; White Paper on the Office ofthe CJovernor, CJovernment ofKarnataka (22nd September, 1983); Harvard law Review, Vol. I 16 (2002-2003);Designing f Federalism - A Theory ofSelf-Sustainable Federal Institution - a write up. ; T. K. Thope: Dr. Ambedkar and Article 356 ofthe Constitution, (1993) 4 SCC (Jour) I; Constituent Assembly Debates (Volume IX, Revised Edition) at pp. 175-177, referred to. 3. As a consequence of the view taken, the Court could have made an order of status quo ante as prev'liling before dissolution of Assembly.

However, having regard to the facts and the circumstances of the case, in terms of order of this Court dated 7th October, 2005, such a relief was declined. Reasons are the larger public interest, keeping in view the ground realities and taking a pragmatic view. As a result of the impugned Proclamation, the Election Commission of India had not only made preparations for the four phase election to be conducted in the State of RAMESHWAR PRASAD v. U. 0. 1. 577 Bihar but had also issued Notification in regard to first two phases before conclusion of arguments. Further, in regard to these two phases, before 7th October, 2005, even the last date for making nominations and scrutiny thereof was also over. In respect of 1st phase of election, even the last date for withdrawal of nominations also expired and polling was fixed for 18th October, 2005. The election process had been set in motion and was at an advanced stage.

Judicial notice could be taken of the fact that considerable amount must have been spent; enormous preparations made and ground works done in the process of election and that too for election in a State like the one under consideration. Having regard to these subsequent developments coupled with numbers belonging to different political parties, it was thought fit not to put the State in another spell of uncertainty. Having regard to the peculiar facts, despite unconstitutionality of the Proclamation, the relief was moulded by not directing status quo ante and consequently permitting the completion of the ongoing election process with the fond hope that the electorate may again not give fractured verdict and may give a clear majority to one or other political party - the Indian electorate possessing utmost intelligence and having risen to the occasion on various such occasions in the past. [671-G, H; 672-A-D] 4. 1.

A plain reading of Article 361(1) shows that there is a complete bar to the impleading and issue of notice to the President or the Governor inasmuch as they are not answerable to any Court for the exercise and performance of their powers and duties. Most of the actions are taken on aid and a! lvice of Council of Ministers. The personal immunity from answerability provided in Article 361 does not bar the challenge that may be made to their actions. Under law, such actions including those actions where the challenge may be based on the allegations of malafides are required to be defended by Union of India or the State, as the case may F \ he. Even in cases where the personal malafides are alleged and established, it would not be open to the Governments to urge that the same cannot be satisfactorily answered because of the immunity granted.

In such an eventuality, it is for the respondent defending the action to satisfy the Court either on the basis of the material on record or even filing the affidavit of the person against whom such allegation of personal malafides are made. Article 361 does not bar filing of an affidavit if one wants to file on his own. The bar is only against the power of the Court to issue notice or making the President or the Governor answerable. In view of the bar, the Court cannot issue direction to President or Governor for even filing of affidavit to assist the Court. Filing of an affidavit on one's own volition is one thing than issue of direction by the Court to file an affidavit. The personal immunity under Article 361(1) is complete and, therefore, there is no question of the President or the Governor being made answerable to the Court in respect of even charges of malajides. 1674-B-FI 4. 2. The position in law is that the Governor enjoys complete immunity.

Governor is not answerable to any Court for the exercise and performance of the powers and duties of his office or for any act done or .. purporting to be done by him in the exercise and performance of those powers and duties. The immunity granted by Article 361(1) dots not, however, take away the power of the Court to examine the validity of the action including on the ground of malajides. 1676-F, GI Union Carbide Corporation, etc. , 1ble to them. This is a sad reflection on the morals of the political parties who do not loose the opportunity of politicizing the _post of the Governor. Sooner remedial measures are taken would be better for the democracy. (788-E-H; 789-AI 2. 2. It is not deficiency in the Constitution which is responsible for the situation. It is clearly attributable to the people who elect the Governors on considerations other than merit.

It is a disturbing feature, -r' i and if media reports are to be believed, Raj Bhawans are increasingly turning into extensions of party offices and the Governors are behaving like party functionaries of a particular party. This is not healthy for the 586 SUPREM! - COUR I' REPORTS [20061 I S. C. R. democracy. 1789-B, q 2. 3. The key actor in the Centre-State relations is the Governor who is a bridge between the Union and the State. The founding fathers deliberately avoided election to the office of the Governor, as is in vogue in the U. S. A. to insulate the office from the linguistic chauvinism. The President has been empowered to appoint him as executive head of the State under Article t55 in Part VI, Chapter ll. The executive power of the State is vested in him by Article 154 and exercised by him with the aid and advice of the Council of Ministers, the Chief Minister as its head.

Under Article 159 the Governor shall discharge his functions in accordance with the oath to protect and defeVJd the Constitution and the law. The office of the Governor, therefore, is intended to ensure protection and sustenance of the constitutional process of the working of the Constitution by the elected executive and given him an umpire's role. He would be an arbiter when there was a constitutional dead lock in the State and he would be able to play an impartial role. There would be administrative mechanism through which the constitutional crisis would be resolved in the State. The Governor thus should play an important role. In his dual undivided capacity as a head of the State he should impartially assist the President. As a constitutional head of the ~tate Government in times of constitutional crisis he should bring about sobriety. The link is apparent when one finds that Article 356 would be put into operation normally based on Governor's report.

He should truthfully and with high degree of constitutional responsibility, in terms of oath, inform the President that a situation has ' arisen in which the constitutional machinery in the State has failed and the Government of State cannot be carried on in accordance with the provisions of the Constitution, with necessary detailed factual foundation. It is incumbent on each occupant of every high office to be constantly aware of the power in the High Office he holds that is meant to be exercised in public interest and only for public good, and that it is not meant to be used for any personal benefit or merely to elevate the personal status of the current holder of that office. [789-C-H; 790-A, Bl 2. 4. Article 356, as finally adopted, limits the functions of the Governor to making a report to the President that a situation has arisen in which there has been failure of the constitutional machinery.

The decision whether a Proclamation may be issued under Article 356 rests with the President, that is to say, the Union Government. Significantly, the President can exercise the power "on receipt of a report from the Governor or otherwise" if he is satisfied that the situation requires the RAMESHWAR PRASAD v. U. 0. l. 587 issue of such a Proclamation. [795-A, Bl 2. 5. Recourse to Article 356 should be the last resort for a Governor to seek. A frequent criticism of the Governor in this connection is that he sometimes acts at the behest of the Union Government. This criticism emanates largely from a lack of appreciation of the situations which confront the Governors. Imposition of President's rule normally results in the President vesting the Governor with executive functions which belong to his Council of Ministers This is a responsibility which no Governor would lightly accept.

Under President's rule he functions in relation to the administration of the State under the superintendence, direction and control of the President and concurrently with him by virtue of an order of the President. As Head of the State, the Governor has a duty to see that the administration of the State does not break down due to political instability. He has equally to take care that responsible Government in the State is not lightly disturbed or superseded. In ensuring these, it is not the Governor alone but also the political parties which must play a proper role. Political parties come to power with a mandate from the electorate and they owe primary responsibility to the Legislature. The norms of parliamentary Government are best maintained by them. (i95-C-Fl 2. 6. It is not in the event of political instability alone that a Governor may report to the President under Article 356.

Governor may have to report to the President about any serious internal disturbances in the State, or more especially of the existence or possibility of a danger of external aggression. In such situations also it may become necessary for the Governor to report to the President for action pursuant to Article 356. It is difficult to lay down any precise guidelines in regard to the imposition of President's rule. The Governor has to act on each occasion according to his best judgment, the guiding principle being that the constitutional machinery in the State should, as far as possible, be maintained. (795-F-H; 796-Al Special Reference No. I of2002, (20021 8 SCC 237, referred to. Wade's ! ntrod~ion of Dicey's Law of the Constitution (1962) edn. referred to. 3. There is no challenge to the validity of Section 73 of the R. P. Act, which is in no way repugnant by any provision to the Constitution. That being so, by operation ofSection 73 of the R. P. Act the Assembly was duly constituted.

The stand that the Governor was obliged to convene the Session for administering oath to the members and for formation of a ... Cabinet thereafter has no relevance and is also not backed by any constitutional mandate. There was no compulsion on the Governor to convene a session or to install a Cabinet unless the pre-requisites in that regard were fulfilled. The reports of the Governor clearly indicated that it was not possible to convene a session for choosing a Chief Minister or for formation of a Cabinet. Even if hypothetically it is held that the dissolution notifications are unsustainable, yet restoration ofstatus quo ante is not in the present case the proper relief. As noted supra, no stake was claimed by any person before the Governor. The documents relied upon to show that a majority existed lack authenticity and some of them even have the stamp of manipulation. The elections as scheduled had reached an advanced stage. l.

Jndisputedly, the Election Commission had made elaborate arrangements. It would be inequitable to put the clock back and direct restoration of stats quo ante. (798-E-H; 799-A( 4. A Public Interest Litigation cannot be entertained where the stand taken was contrary to the stand taken by those who are affected by any action. In such a case the Public Interest Litigation is not to be entertained. That is the case here. (803-EJ CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No. 257 of 2005. (Under Article 32 of the Constitution of India. ) Milon K. Banerjee, AG, Goolam E. Vahanvati, SG, Gopal Subramaniam, ASG, Soli J. Sorabjee, Ranjit Kumar, P. P. Rao, H. L. Aggarwal, Maninder Singh, Ms. Pratibha M. Singh, Preetesh Kapur, Abhinav Mukherji, Sunil Fernandes, A. K. Prasad, Saurabh Mishra, Ms. Jaspreet Kaur, Satyajeet Kumar, Ms. Shweta Singh, Ray Vikram Nath, Syed Ali Ahmed, Syed Tanweer Ahmed, Girdhar Upadhyay, S. S. Bandyopadhyay, Vinita G.

Upadhyay, Awadhesh Kumar Singh, Rajeev Sharma, R. D. Upadhyay, Syed Tanweer Akhtar, R. D. Upadhyay, P. S. Narasimha, Sridhar Potaraju, Ananga Bhattacharya, Avijeet Kumar Lala, Asutosh Pandey, B. K. Prasad, R. M. Sharma, Ms. Sushma Suri, Navin Prakash, Ms. Sandhya Goswami, Gaurav Agrawal, S. Muralidhar, S. K. Mendiratta, Amit Sharma, B. B. Singh, Kumar Rajesh Singh, B. P. Yadav, Ramjee Prasad Kushwaha, Wahid Hussain, Mushtaq Ahmad and Viplav Sharma in-person for the appearing parties. ... The Judgment of the Court was delivered by RAMESHWAR PRASAD v. U. 0. 1. [SABHARWAL, CJ. ] 589 Y. K SABHARWAL, CJ. 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 unqer Article 356(1) of the Constitution oflndia 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 'NOA'}, 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: "(!

) NOA 92 (2) RJD 75 (3) LJP 29 (4) Congress (I) 10 (5) CPI (ML) 07 (6) Samajwadi Party 04 (7) NCP 03 (8) Bahujan Samaj Party 02 (9) Independents 17 (IO) 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-1) 2. Based on the results that have come up, the following is the partywise position: I. R. J. D. 75 2. J. D. (U) 55 3. B. J. P. 37 4. Cong(! ) IO 5. B. S. P. 02 6. L. J. P. 29 7. C. P. l. 03 8. C. P. l. (M) 01 9. C. P. l. (M. L. ) 07 .. - 10. N. C. P. 03 11. S. P. 04 ) RAMESHWAR PRASAD v.

U. O. l. [SABHARWAL, CJ. ] 591 12. Independent: 17 The R. J. D. and its alliance positic-n is as follows: I. R. J. D. 75 2. Cong. (I) JO 3. C. P. I. 03 (support letter not recd. ) 4. C. P. I. (M) OJ 5. N. C. P. 03 92 The N. D. A. alliance position is as follows: I. B. J. P. 37 2. J. D. (U) 55 92 3. 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. 4. 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. 5. 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. 6. 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 fonnation of the Govt. He also met me on 2. 3. 2005. 7. 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 woula not support any group in the fonnation ofGovernment. 8. 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. 9. 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 : I. Cong(! ) 10 2. NCP 03 3. CPl(M) 01 4.

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. 10. The NDA delegation led by Shri Sushi! 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 l0 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 I02, which is short of the minimum requirement of 122. ) RAMESHWARPRASADv. U. 0. 1. [SABHARWAL,CJ. ] 593 11. 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 Government and they will be able to get support of others (Annexure VIII). They have not submitted any authorization letter supporting their claim. 12. 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) white 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 doubtfol 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 fonr stable Government, it would be case of completely demonstrable inability of any political party to form a stable Government commanding the confidence ofthe majority members of the Legislature. It would be a case of failUre of constitutional machinery. " 13.

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. 14. 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. 15.

I, therefore, recommend that the present newly constituted Assembly be kept in suspended animation for the present, and the President oflndia is requested to take such appropriate action/decision, as required. " Since no political party was in a position to fo: m 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 2lst 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 } ' RAMESHWARPRASADv. U. 0. 1. [SABHARWAL,CJ. ] 595 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 NOA Jed 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 NOA ro~e to I09 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 represei:itatives 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, , ii I invite a rderence 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. 2. As none of the parties either individually or with the then preelection 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 r,·port with the said recommendation. 3. 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. 4. The National Commission to review the working ofthe Constitution has also noticed that the reasons for increasing instability of elected RAMESHWARPRASAD v. U. 0. 1. [SABHARWAL, CJ.

] 597 Governments was attributable to unprincipled and opportunistic political realignment from time to time. Areasonable degree ofstability of Government and a strong Government is important. It has also noticed that the changing alignment ofthe members ofpolitical 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 I0th 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. 5.

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. Ifthese attempts are allowed to contiirne then it would be amounting to tampering with constitutional provisions. 6.

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. 7. 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 Jed 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 ihat he was opposed to RJD as well as NOA led by the BJP.

MLAs belonging to LJP were in a rebellious mood. A. bout 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 ofthe 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, 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. lelectorate 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 / RAMESHWAR PRASAD v. U. 0. 1. [SABHARWAL, CJ. ] 599 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 desirabl. e 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. (! ST).

President of India accorded his approval and sent the same through the _fax message which was received at 0350 hrs. (! ST) on 23rd May, 2005. After due process the notification was issued formally at 1430 hrs. (! ST) 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 o~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 suspendetJ 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 materiaf 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 and Ors. v. Union of India & Ors.

, [1994] 3 SCC l, it was contended that action of the Governor is ma/a 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 RAMESHWARPRASADv. U. 0. 1. [SABHARWAL,CJ. ] 601 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 ofAssembly 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 ofBihar. 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 of2005, and Mr.

Viplav Shanna, petitioner-in-person in Writ Petition (C) No. 258 of2005. 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(I), 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(I), 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(I) of the Constitution of India on the ground of ma/a fides or it being ultra vires. It would be for the Government to satisfy the court and adequately meet such ground of challenge. A ma/a 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 ma/a 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 ma/a 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 ma/a 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 : (I) ls it permissible to dissolve the Legislative Assembly under Article l74(2)(b) of the Constitution without its first meeting taking place? (2) Whether the proclamation dated 23rd May, 2005 dissolving the Assembly of Bihar is illegal and unconstitutional? J RAMESHWARPRASADv. U. 0. 1. (SABHARWAL, CJ. ) 603 (3) 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? (4) 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. t62(E) dated 7th March, 2005, issued in exercise ofpowers un