Judges: Y.K. Sabharwal C.J., B.N. Agrawal, Ashok Bhan, Dr. Arijit Pasayat, K.G. Balakrishnan

Facts:

The challenge in these petitions is to the constitutional validity of notification, ordering dissolution of the Legislative Assembly of the State of Bihar. It is a unique case, as earlier cases 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.

Since no political party was in a position to form a Government, a notification was issued 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.

Fresh Elections were notified in the State by the Election Commission, and the pronouncement of judgment with detailed reasons was likely to take time, hence,a brief order was passed by the Court as follows:

1. The Proclamation dated 23rd May, 2005 dissolving the Legislative Assembly of the State of Bihar is unconstitutional.

2. Despite unconstitutionality of the impugned Proclamation, but having regard to the facts and circumstances of the case, the present is not a case where in exercise of discretionary jurisdiction the status quo ante deserves to be ordered to restore the Legislative Assembly as it stood on the date of Proclamation, whereunder it was kept under suspended animation.

Issues:

(i) Is it permissible to dissolve the Legislative Assembly under Article 174(2)(b) of the Constitution without its first meeting taking place?

(ii) Whether the proclamation dissolving the Assembly of Bihar is illegal and unconstitutional?

(iii) If the answer to the aforesaid question is in affirmative, is it necessary to direct status quo ante, as to restore the legislative assembly as existed in suspended status and to cancel fresh elections conducted by the Election Commission?

(iv) What is the scope of Article 361 granting immunity to the Governor?

Law:

Constitution of India- Article174(2)(b) - The Governor may from time to time dissolve the Legislative Assembly.

Constitution of India- Article 172 - Every Legislative Assembly of every State, unless sooner dissolved, shall continue for five years from the date appointed for its first meeting and no longer and the expiration of the said period of five years shall operate as a dissolution of the Assembly.

Constitution of India- Article 188 - Every member of the Legislative Assembly of the State shall, before taking his seat, make and subscribe before the Governor, an oath or affirmation, as provided in of the Constitution.

Constitution of India- Article 361(1) - 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.

Constitution of India- Article 356 (1) - Provisions in case of failure of constitutional machinery in State.

If the President, on receipt of report from the Governor of the State or otherwise, is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution, the President may by Proclamation-

(a) assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or anybody or authority in the State other than the Legislature of the State

(b) declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament

(c) make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of this Constitution relating to anybody or authority in the State

Provided that nothing in this clause shall authorise the President to assume to himself any of the powers vested in or exercisable by a High Court, or to suspend in whole or in part the operation of any provision of this Constitution relating to High Courts.

Contentions

Petitioners

(i) The condition precedent for dissolving the assembly is that there must be satisfaction of the President that a situation has arisen in which the Government of a State cannot be carried on in accordance with the provisions of the Constitution. This satisfaction has to be based on cogent material.

(ii) 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.

(iii) It was incumbent upon the Governor to make a meaningful and real effort for securing the possibility of a majority Government in the State. the intention of the Governor was to prevent the formation of a government led by Shri Nitish Kumar. That there was no material available or in existence to indicate that any political defection was being attempted through the use of money or muscle power. In the absence of any such material the exercise of power under Article 356 was a clear fraud on the exercise of power.

(iv) Allegations of horse trading in the Governor's report were factually incorrect and fictional. 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 and Ors., it was contended that action of the Governor is mala fide in law, irrational, without any cogent material to support the conclusion arrived at and is based on mere ipse dixit and, thus, was not sustainable in law. It was contended that in exercise of judicial review this Court should quash the impugned notification and as a consequence restore the legislative assembly.

(v) It is not legally permissible to order the dissolution of Assembly before its meeting even once and the MLAs being administered the oath as contemplated by the Constitution. Legislative Assembly can be dissolved under Article 174(2)(b) only after its first meeting is held as postulated by Article 172 of the Constitution. there cannot be any dissolution without even members taking oath and the Legislative Assembly coming into existence.

(vi) Election Commission of India not to hold fresh elections for the constitution of 14th State Legislative Assembly.

Respondent

(i) The Constitution of India grants immunity to the Governor as provided in Article 361. Article 361(1), inter alia, provides that the Governor shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in exercise and performance of those powers and duties. In view of Article 361(1), notice cannot be issued totheGovernor.

(ii) The Governor has many sources of information which led him to conclude that the process that was going on in the State of Bihar was destroying the very fabric of democracy and, therefore, such approach cannot be described as outrageous or in defiance of logic, particularly, when proof in such cases is difficult if not impossible as bribery takes place in the cover of darkness and deals are made in secrecy. It is, thus, contended that Governor's view is permissible and legitimate view.

(iii) Apart from Governor's role to ensure that the Government is stable, the case may not be covered by the Tenth Schedule and it cannot be said that by avoiding the Tenth Schedule by illegitimate or tainted means a majority if gathered leaves the Governor helpless, and a silent onlooker to the tampering of mandate by dishonest means. It is not and cannot be said that by preventing a claim to be staked the Governor does not act irrationally or on extraneous premises.

Analysis

(i) Article 174 of the Constitution deals with the power of the Governor to summon the House, prorogue the House and dissolve the Legislative Assembly. Legislative Assembly can be dissolved under Article 174(2)(b) only after its first meeting is held as postulated by Article 172 of the Constitution. The argument is that there cannot be any dissolution without even members taking oath and the Legislative Assembly coming into existence. In this regard, the question to be considered also is whether the date for first meeting of the Legislative Assembly can be fixed without anyone being in a position to form the Government.

(ii) In K.K. Abu v. Union of India and Ors. a learned Single Judge of the High Court rightly came to the conclusion that neither Article 172 nor Article 174 prescribe that dissolution of a State Legislature can only be after commencement of its term or after the date fixed for its first meeting. Once the Assembly is constituted, it becomes capable of dissolution. No provision of the Constitution stipulates that the dissolution can only be after the first meeting of the State Legislature.

(iii) Under Article 356 of the Constitution, the dissolution of an Assembly can be ordered on the satisfaction that a situation has arisen in which the Government of the State cannot be carried on in accordance with the Constitution. Such a satisfaction can be reached by the President on receipt of report from the Governor of a State or otherwise. It is permissible to arrive at the satisfaction on receipt of the report from Governor and on other material. Such a satisfaction can also be reached only on the report of the Governor. It is also permissible to reach such a conclusion even without the report of the Governor in case the President has other relevant material for reaching the satisfaction contemplated by Article 356. The expression 'or otherwise' is of wide amplitude.

(iv) In the present case, it is not in dispute that the satisfaction that a situation has arisen in which the Government of State cannot be carried on in accordance with the provisions of the Constitution has been arrived at only on the basis of the reports of the Governor. It is not the case of the Union of India that it has relied upon any material other than the reports of the Governor which have been earlier reproduced in extenso.

(v) One highly significant role which he (Governor) has to play under the Constitution is of making a report where he finds that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution" and further added that the Governor "is not amenable to the directions of the Government of India, nor is he accountable to them for the manner in which he carries out his functions and duties. He is an independent constitutional office which is not subject to the control of the Government of India.

(vi) The position of the Governor is indispensable for the successful working of the Constitutional scheme of governance, the Sarkaria Commission has noted that "most of the safeguards will be such as cannot be reduced to a set of precise rules of procedure or practice. This is so because of the very nature of the office and the role of the Governor. The safeguards have mostly to be in the nature of conventions and practices, to be understood in their proper perspective and faithfully adhered to, not only by the Union and the State Governments but also by the political parties. the fact that it will be impossible to lay down a concrete set of standards and norms for the functioning of a Governor will make it difficult for a Parliamentary Committee or the Supreme Court to inquire into a specific charge against a Governor.

(vii) There has been persistent criticism in ever-mounting intensity, both in regard to the frequency and the manner of the use of the power under Article 356. The Sarkaria Commission has noticed that gravemen of the criticism is that, more often than not, these provisions have been misused, to promote the political interests of the party in power at the center.

(viii) Whether it is a case of existing Government losing the majority support or of installation of new Government after fresh elections, the act of the Governor in recommending dissolution of Assembly should be only with sole object of preservation of the Constitution and not promotion of political interest of one or the other party.

(ix) 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. It cannot be accepted that the Governor by reports, sought to achieve the aforesaid objective. There was no material, let alone relevant, with the Governor to assume that there were no legitimate realignment of political parties and there was blatant distortion of democracy by induced defections through unfair, illegal, unethical and unconstitutional means.

(x) The proclamation under Article 356(I) is not immune from judicial review. The Supreme Court or the High Court can strike down the proclamation if it is found to be mala fide or based on wholly irrelevant or extraneous grounds.When called upon, the Union of India has to produce the material on the basis of which action was taken. It cannot refuse to do so. if it seeks to defend the action. The court will not go into the correctness of the material or its adequacy. Its enquiry is limited to see whether the material was relevant to the action. Even if part of the material is irrelevant, the court cannot interfere so long as, there is some material which is relevant to the action taken.

(xi) If the court strikes down the proclamation, it has the power to restore the dismissed Government to office and revive and reactivate the Legislative Assembly wherever it may have been dissolved or kept under suspension. In such a case, the court has the power to declare that acts done, orders passed and laws made during the period the proclamation was in force shall remain unaffected and be treated as valid. Such declaration, however, shall not preclude the Government/ Legislative Assembly or other competent authority to review, repeal or modify such act orders and laws.

(xii) In this connection, it is necessary to stress that in all cases where the support to the Ministry is claimed to have been withdrawn by some Legislators, the proper course for testing the strength of the Ministry is holding the test on the floor of the House. That alone is the constitutionally ordained forum for seeking openly and objectively the claims and counter-claims in that behalf. The assessment of the strength of the Ministry is not a matter of private opinion of any individual, be he the Governor or the President. It is capable of being demonstrated and ascertained publicly in the House. Hence when such demonstration is possible, it is not open to bypass it and instead depend upon the subjective satisfaction of the Governor or the President.

(xiii) It is to be ascertained is whether the Governor had proceeded legally and explored all possibilities of ensuring a constitutional Government in the State before reporting that the constitutional machinery had broken down.

(xiv) Further conclusion reached was that the Governor had thrown all cannons of propriety to the winds and showed undue haste in inviting the President to issue Proclamation under Article 356(1) which clearly smacked of mala fides. It was noticed that the facts stated by the Governor in his report were his own opinion based on unascertained material and in the circumstances, they could hardly be said to form the objective material on which the President could have acted.

(xv) 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, would 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. In the latter case, the matter may have to be left to the 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.

(xvi) Without highly cogent material, it would be wholly irrational for constitutional 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 extra-ordinary 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.

(xvii) 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 attempt 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 unconstitutional.

(xviii) 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. 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.

(xix) 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.

Arijit Pasayat, J. (Dissenting as to Issue no. 2)

(i) The Governor had not in reality prevented anybody from staking a claim. It is nobody's case that somebody had staked a claim. What the Governor had indicated in his report,was that effort was to get the majority by tainted means by allurements like money, caste, posts and such unfair and other objectionable means. When the foundation for the claim was tainted the obvious inference is that it would not lead to a stable government.

(ii) It has been submitted that the parameters of judicial review are extremely limited so far as the Governor's report is concerned and consequential actions taken by the President. The Governor cannot be a mute spectator when democratic process is tampered with by unfair means. The effort is to grab power by presenting a majority, the foundation of which is based on factors which are clearly anti-democratic in their conception. Parliamentary democracy is a part of the basic structure of the Constitution and when the majority itself is the outcome of foul means it is clearly against the mandate given by the electorate. It can never be said that the electorate wanted that their legislators after getting their mandate would become the object of corrupt means. When the sole object is to grab power at any cost even by apparent unfair and tainted means, the Governor cannot allow such a government to be installed.

(iii) It would be too hollow to contend that the floor test would cure all impurity in gathering support of the legislators. Floor test cannot always be a measure to restrain the corrupt means adopted and in cobbling the majority. It is also too much to expect that by exposure of the corrupt means so far as a particular legislature is concerned, by the people or by the media the situation would improve. Since there is no material to show that any party staked a claim and on the contrary as is evident from the initial report of the Governor that nobody was in a position to stake a claim and the fact that passage of about three months did not improve the situation, the Governor was not expected to wait indefinitely and, in the process, encourage defections or adoption of other objectionable activities.

(iv) There is no place for hypocrisy in democracy. The Governor's perception about his power may be erroneous, but it is certainly not extraneous or irrational. apart of Governor's role to ensure that the Government is stable, the case may not be covered by the Tenth Schedule and it cannot be said that by avoiding the Tenth Schedule by illegitimate or tainted means a majority if gathered leaves the Governor helpless, and a silent onlooker to the tampering of mandate by dishonest means. It is not and cannot be said that by preventing a claim to be staked the Governor does not act irrationally or on extraneous premises. Had the Governor acted with the object of preventing anyone from staking a claim his action would have been vulnerable. The conduct of the Governor may be suspicious and may be so in the present case, but if his opinion about the adoption of tainted means is supportable by tested materials, certainly it cannot be extraneous or irrational. If the Governor in a particular case without tested or unimpeachable material merely makes an observation that tainted means are being adopted, the same would attract judicial review. But in the instant case there is some material on which the Governor has acted. This ultimately is a case of subjective satisfaction based on objective materials. On the factual background one thing is very clear i.e. no claim was staked and on the contrary the materials on record show what was being projected.

K.G. Balakrishnan, J (Dissenting as to Issue no. 2)

(i) In all these three cases where the Presidential Proclamations issued under Article 356 were quashed by this Court, were States wherein the Government was functioning on the strength of the majority, whereas in the instant case the decision of dissolution of the Assembly was evidently passed on the report of the Governor when the Assembly was in suspended animation and there was no democratically elected Government in the State and, therefore, there was no question of testing the majority of the Government on the floor of the Assembly.

(ii) It was clear that not a single political party or alliance was in a position to form the Government and when the Assembly was dissolved after waiting for a reasonable period, the same cannot be challenged on the ground that the Governor in his report had stated that some horse-trading is going on and some MLAs are being won over by allurements. These are certainly facts to be taken into consideration by the Governor. If by any foul means the Government is formed, it cannot be said to be a democraticallyelected Government. If Governor has got a reasonable apprehension and reliable information such unethical means are being adopted by the political parties to get majority, they are certainly matters to be brought to the notice of the President and at least they are not irrelevant matters. Governor is not the decision-making authority. His report would be scrutinized by the Council of Ministers and a final decision is taken by the President under Article 174 of the Constitution. therefore, it cannot be said that the decision to dissolve the Bihar State Legislative Assembly, is mala fide exercise of power based on totally irrelevant grounds.

(iii) 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.

(iv) Article 361(1), inter alia, provides that the Governor shall not be answerable to any Court for the exercise and performance of the powers and duties of his office or for any act done or purported to be done by him in the exercise and performance of those powers and duties. Due to this, notice could not be issued to the Governor, at the same time, the immunity granted does not affect the power of this Court to judicial scrutinise attack made on the Proclamation issued under Article 356(1) of the Constitution of India on the ground of malafides or it being ultra vires and that it would be for the Government to satisfy the Court and adequately meet such ground of challenge.

(v) A mala fide act is wholly outside the scope of the power and has no existence in the eyes of the law. The expression 'purported to be done' in Article 361 does not cover acts which are mala fide or ultra vires and thus, the Government supporting the Proclamation under Article 356(1) shall have to meet the challenge. The immunity granted under Article 361 does not mean that in the absence of Governor, the grounds of mala fide or being ultra vires would not be examined by the Court.

(vi) 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 malafides.

(vii) The position in law, therefore, 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) does not, however, take away the power of the Court to examine the validity of the action including on the ground of malafides.

Conclusion:

(i) No provision of the Constitution stipulates that the dissolution can only be after the first meeting of the State Legislature, hence same can be dissolved even without the first meeting.

(ii) The Proclamation issued under Article 356 is declared to be unconstitutional.

(iii) However, status quo ante to restore the Legislative Assembly, whereunder it was kept under suspended animation, cannot be granted, and consequentially the fresh elections were to be continued.

(iv) In terms of Article 361 Governor enjoys complete immunity.However, such immunity does not take away power of the Court to examine validity of the action including on the ground of mala fides.

All petitions are disposed of accordingly.

Important Precedents:

(i) KihotoHollohan v. Zachillhu and Others.

(ii) S.R. Bommai and Others. v. Union of India and Others.

(iii) State of Rajasthan and Others. v. Union of India and Others.

(iv) K.K. Abu v. Union of India and Others.