# RAMESHW AR PRASAD AND ORS v. UNION OF INDIA AND ANR

- **Citation:** [2006] 1 S.C.R. 562
- **Court:** Supreme Court of India
- **Decided:** 2006-01-24
- **Bench:** Y.K. Sabharwal, K.G. Balakrishnan, B.N. Agrawal, Ashok Bhan, Arijit Pasayat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rameshw-ar-prasad-and-ors-v-union-of-india-and-anr-21105
- **Pages:** 243

## Headnote

Constitution of India, 1950; Articles 321226, 356, 74 and 163:
Ifivoking of power under Article 356-/ssue of proclamation-- Subjective
satisfaction of President-Conditions precedent-Scope of judicial review.
Articles 356 and 74-Satisfaction of President under -.Vature o.f-Duty
of Council of Ministers before recommending issuance uf proclamation- -On
D facts, held: Governor has misled Union Council of Ministers.
E
Article 356--Nature and Scope of power---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 of State Assembly-Floor
test-Necessity of
Articles 356, I 74(2)(b), 8j(2)(b) and Schedule X-Dissolution of newly
F elected Assembly-Grounds to be taken into consideration-Hung AssemblyRealignment of parties/MlAs-Unethical means/horse lradingRecommendation of dissolution on that ground-Scope of judicial review in
such situations.
Articles 159, 163, 164, I 74(2)(b) and 356--/nsta/lation of new
G Government after election-Duty of Governor.
H
Articles 79, 168, 245 and 246-Parliament-Nature of acts o.f-When
legislative.
562
•
•.
>
-f
-~
RAMESHWAR PRASAD v.U.0.1.
563
Articles 356, /74(2)(b). 85, 32 and 226-Unconstitutionality of A
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 of powers and duties-Discretionary powers-Scope of
Article 361-Scope of immunity granted to Governors and PresidentDiscussed.
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.
B
c
D
E
~.
In these Writ Petitions, the petitioners have challenged the validity
of the proclamation dated 23rd May, 2005 issued under Article 356 of the F
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 G
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 H
564
SUPREME COlJRT REPORTS
(2006 j I S.C.R.
A 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 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
B 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.
c
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.

## Text

_Characters 0–39,991 of 604,213. This is a partial read: ask again with offset=39991 for what follows._

A
B
c
RAMESHW AR 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 of power under Article 356-/ssue of proclamation-- Subjective
satisfaction of President-Conditions precedent-Scope of judicial review.
Articles 356 and 74-Satisfaction of President under -.Vature o.f-Duty
of Council of Ministers before recommending issuance uf proclamation- -On
D facts, held: Governor has misled Union Council of Ministers.
E
Article 356--Nature and Scope of power---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 of State Assembly-Floor
test-Necessity of
Articles 356, I 74(2)(b), 8j(2)(b) and Schedule X-Dissolution of newly
F elected Assembly-Grounds to be taken into consideration-Hung AssemblyRealignment of parties/MlAs-Unethical means/horse lradingRecommendation of dissolution on that ground-Scope of judicial review in
such situations.
Articles 159, 163, 164, I 74(2)(b) and 356--/nsta/lation of new
G Government after election-Duty of Governor.
H
Articles 79, 168, 245 and 246-Parliament-Nature of acts o.f-When
legislative.
562
•
•.
>
-f
-~
RAMESHWAR PRASAD v.U.0.1.
563
Articles 356, /74(2)(b). 85, 32 and 226-Unconstitutionality of A
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 of powers and duties-Discretionary powers-Scope of
Article 361-Scope of immunity granted to Governors and PresidentDiscussed.
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.
B
c
D
E
~.
In these Writ Petitions, the petitioners have challenged the validity
of the proclamation dated 23rd May, 2005 issued under Article 356 of the F
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 G
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 H
564
SUPREME COlJRT REPORTS
(2006 j I S.C.R.
A 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 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
B 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.
c
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.
D
After hearing arguments on the question of the Governor not being
E
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?
F
(2) Whether the proclamation dated 23rd May, 2005 dissolving the
G
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
H 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 A
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
B
c
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 D
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 E
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 F
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 G
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
H
566
SliPREMF COURT REPORTS
[2006 I I S.C.R.
A 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
B 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
C 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
D 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
E 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 of 2002 (Gujarat Assembly Election matter)
p (2002) 8 sec 237, relied on.
G
K.K. Abu v. Union of India 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
H 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 A
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
B
the Union of India that it has relied upon any material other than the C
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 D
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 E
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 F
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[
G
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 H
568
Sl PRE\1E COURT HPORTS
[2006[ 1 S.C.R.
A 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
B 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
C 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)
D 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
E 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
F 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
G 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,
H 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 A
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 B
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 bona fide 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, C
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 D
)..
realities and the compulsion of the situation including the aspect and
relevance of coalition 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 E
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 F
assumption of such immoralities for formation or the satisfaction that
situation has arisen in which the Government cannot be of the Constitution
or India. (628-A-DI
2.9. Articles 355 and 356 of the Constitution set the tenor for the G
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 H
570
SUPREME COURT REPOR rs
(2001
A 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
B 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
D 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 of another political
E 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
F 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.
G
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
H 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 A
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 bona fide 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
B
c
be justified on mere ipse dixit, suspicion, whims and fancies of the
Governor. This Court cannot remain a silent spectator watching the D
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 E
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 F
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 G
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 H
572
SUPREME (_'()l :RT REPfJRTS
[20061 I S.C.R.
A 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
B
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
c 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
D
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
E 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
F 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
G 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
H
i /'
RAMESHWAR PRASAD v.U.0.1.
573
2.18. For more than one reason, this Court is unable to accept the A
\
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 B
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 of such functions is the approval of the proclamation
under clause (3) of Article 356. Such approval can, by no stretch of C
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 of Rajasthan 's case, the existence of
the satisfaction can always be challenged on the ground that it is mala fide
or based on wholly extraneous and irrelevant grounds. Apart from the
D
fact that the narrow minimal area of judicial review as advocated in State E
of Rajasthan '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 F
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 G
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 a H
574
Sl'PREME COl RI RL\'ORIS
l2006J I S.C.R.
A 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
B 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
C 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
D 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
E 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
F 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
G 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
H the Indian Democracy but, at the same time, it is to be remembered that
'
(
/
RAMESHW AR PRASAD v. U .0.1.
575
the defections have to be dealt with in the manner permissible in law.
A
(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. If such
B
a power is vested in the Governor and/or the President, the consequences C
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 D
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) E
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 F
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, G
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 of India and Ors., [1981) 1SCC107; Kehar Singh & Anr. v. Union
of India and Anr., [1989( l SCC 204; Maru !J.am v. Union of India, [1981 ( l H
576
SUPREME COURT REPORTS
(2006] I S.C.R.
A 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 of Maharashtra and Ors.,
(198112SCC722; A.K. Roy v. Union of India & Ors .. (198211 SCC 27;
B Barium Chemicals Ltd and Anr. v. Company Law Board and Ors., (1966)
Supt. SCR 311; Brundaban Nayuk v. Election Commission of India & 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
C 3 All. ER 935; Puhlhofer v. Hillingdon, London Borough Council, 11986) I
AIL ER 467; R.K. Garg & Ors. v. Union of India & 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)
D (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
E Committee (1969), Inquiry Committee constituted by the Government a/Tamil
Nadu to report on the Centre-State relations; Report of the Study Team of the
Administrative Reforms Commission (1967) headed by Shri MC. Setalvad;
White Paper on the Office of the CJovernor, CJovernment of Karnataka (22nd
September, 1983); Harvard law Review, Vol. I 16 (2002-2003);Designing
Federalism - A Theory of Self-Sustainable Federal Institution - a write up.;
F T.K. Thope: Dr. Ambedkar and Article 356 of the 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
G 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
H preparations for the four phase election to be conducted in the State of
f
RAMESHWAR PRASAD v.U.0.1.
577
Bihar but had also issued Notification in regard to first two phases before A
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 B
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. C
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
D
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 E
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 G
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 H
578
SUPREME COURT REPORTS
[2006] I S.C.R.
A volition is one thing than issue of direction by the Court to file an affidavit.
B
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,
C 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., <;/c. v. Union of India, etc. etc., 11991 I
4 SCC 584; Shri Pratapsing Raojirao Rane & Ors. v. 7hc Governor o/ Uoa
& Ors. AIR (1999) Bombay 53; K.A. Mathialagan and Ors. v.