1.2 Rameshwar Prasad & Ors Versus Union of India & Anr

Article 174 of the Constitution deals with the power of the Governor to summon theHouse, prorogue the House and dissolve the Legislative Assembly. This Court never had theoccasion to consider the question of legality of dissolution of a Legislative Assemblyeven before its first meeting contemplated under Article 172 of the Constitution. It hasbeen contended on behalf of the petitioners by Mr. Narsimha and Mr. Viplav Sharma,appearing-in-person, that a Legislative Assembly can be dissolved under Article 174(2)(b)only after its first meeting is held as postulated by Article 172 of the Constitution. Theargument is that there cannot be any dissolution without even members taking oath and theLegislative Assembly coming into existence. What does not exist, cannot be dissolved, isthe submission. In this regard, the question to be considered also is whether the date forfirst meeting of the Legislative Assembly can be fixed without anyone being in a positionto form the Government.

Let us first examine the relevant constitutional and statutory provisions.

Part VI of the Constitution dealing with the States has six chapters but relevant forour purpose are Chapter II and Chapter III. Chapter II comprising Article 153 to Article167 relates to the executive, Chapter III comprising Article 168 to Article 212 relates tothe State Legislature.

The federal structure under our Constitution contemplates that there shall be aLegislature for every State which shall consist of a Governor and one or two Houses, asprovided in Article 168. Article 170 prescribes that the Legislative Assembly of eachState shall consist of members chosen by direct election from territorial constituenciesin the States. Article 170, therefore, brings in the democratic process of election.

Article 164 puts into place an executive Government. It enjoins upon the Governor toappoint the Chief Minister and other ministers on the advice of the Chief Minister. TheCouncil of Ministers (Article 163) exercises the executive power of the State as providedunder Article 154. Article 164(2) provides that the Council of ministers shall becollectively responsible to the Legislative Assembly of the State.

As provided in Article 172, every Legislative Assembly of every State, unless soonerdissolved, shall continue for five years from the date appointed for its first meeting andno longer and the expiration of the said period of five years shall operate as adissolution of the Assembly. Article 174(1) provides that the Governor shall from time totime summon the House to meet at such time and place as he thinks fit, but six monthsshall not intervene between its last sitting in one session and the date appointed for itsfirst sitting in the next session. Article 174(2) (b) provides that the Governor may fromtime to time dissolve the Legislative Assembly.

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

The contention urged is that the function of the Governor in summoning the House andadministering the oath or affirmation to the members of the Legislative Assembly are notthe matters of privilege, prerogative or discretion of the Governor but are his primaryand fundamental constitutional obligations on which the principles of parliamentarydemocracy, federalism and even ‘separation of power’ are dependent. Furthercontention is that another constitutional obligation of the Governor is to constitute theexecutive Government. According to Mr. Narasimha, the Governor failed to fulfill theseconstitutional obligations. Neither the executive Government nor the Legislative Assemblyhas been constituted by the Governor. On the other hand, the Governor has frustrated thevery object of exercise of his constitutional obligation by dissolving the LegislativeAssembly under Article 174(2)(b) without the Legislative Assembly being even constituted.When the Legislative Assembly is not even constituted, where is the question of itsdissolution, is the contention urged. The submission is that under the scheme of IndianConstitution, it is impermissible to dissolve a Legislative Assembly before its firstmeeting and members making oath or affirmation as required by Article 188. According tothe petitioners, under Indian Constitution, the Legislative Assembly is duly constitutedonly upon the House being summoned and from the date appointed for its first meeting. Article 172which provides for duration of State Legislatures reads as under:

(1) Every Legislative Assembly of every State, unless sooner dissolved shall continuefor (five years) from the date appointed for its first meeting and no longer and theexpiration of the said period of (five years) shall operate as a dissolution of theAssembly:

Provided that the said period, may while a proclamation of Emergency is in operation,be extended by Parliament by law for a period not exceeding one year at a time and notextending in any case beyond a period of six months after the Proclamation has ceased tooperate.

(2) The Legislative Council of a State shall not be subject to dissolution, but asnearly as possible one third of the members thereof shall retire as soon as may be on theexpiration of every second year in accordance with the provisions made in that behalf byParliament by law.

The aforesaid constitutional provision stipulates that five years term of a LegislativeAssembly shall be reckoned from the date appointed for its first meeting and on the expiryof five years commencing from the date of the first meeting, the Assembly automaticallystands dissolved by afflux of time. The duration of the Legislative Assembly beyond fiveyears is impermissible in view of the mandate of the aforesaid provision that theLegislative Assembly shall continue for five years and ‘no longer’. Relying uponthese provisions, it is contended that the due constitution of the Legislative Assemblycan only be after its first meeting when the members subscribe oath or affirmation underArticle 188. The statutory deemed constitution of the Assembly under Section 73 of theR.P. Act, 1951, according to the petitioners, has no relevance for determining dueconstitution of Legislative Assembly for the purpose of Constitution of India.

Reference on behalf of the petitioners has also been made to law existing prior to theenforcement of the Constitution of India contemplating the commencement of the Council ofState and Legislative Assembly from the date of its first meeting. It was pointed out thatSection 63(d) in the Government of India Act, 1915 which dealt with Indian Legislatureprovided that every Council of State shall continue for five years and every LegislativeAssembly for three years from the date of its first meeting. Likewise, Section 72(b)provided that every Governor’s Legislative Council shall continue for three yearsfrom its first meeting. The Government of India Act, 1919, repealing 1915 Act, provided inSection 8(1) that every Governor’s Legislative Council shall continue for three yearsfrom its first meeting and in Section 21 provided that every Council of State shallcontinue for five years and every Legislative Assembly for three years from its firstmeeting. Likewise, the Government of India Act, 1935 repealing 1919 Act, had provisionidentical to Article 172 of the Constitution.

Section 73 of the R.P. Act 1951, in so far as relevant for our purposes, is asunder: 

— Where a general election is held for the purpose of constituting a new House ofthe People or a new State Legislative Assembly, there shall be notified by [the ElectionCommission] in the Official Gazette, as soon as may be after [the results of the electionsin all the constituencies] [other than these in which the poll could not be taken for anyreason on the date originally fixed under clause (d) of section 30 or for which the timefor completion of the election has been extended under the provisions of section 153] havebeen declared by the returning officer under the provisions of section 53 or, as the casemay be section 66, the names of the members elected for those constituencies] and upon theissue of such notification that House or Assembly shall be deemed to be dulyconstituted."

In the present case, Notification under Section 73 of the RP Act, 1951 was issued on 4^thMarch, 2005. The deemed constitution of the Legislative Assembly took place underSection 73 on the issue of the said notification. The question is whether this deemedconstitution of Legislative Assembly is only for the purpose of the RP Act, 1951 and notfor the constitutional provisions so as to invoke power of dissolution under Article174(2)(b). The stand of the Government is that in view of aforesaid legal fiction, theconstitution of the Legislative Assembly takes place for all purposes and, thus, theLegislative Assembly is deemed to have been ‘duly constituted’ on 4^th March,2005 and, therefore, the Governor could exercise the power of dissolution under Article174(2)(b).

Section 73 of the RP Act, 1951 enjoins upon the Election Commission to issuenotification after declaration of results of the elections in all the constituencies. Thesuperintendence, direction and control of elections to Parliament and to the Legislatureof every State vests in Election Commission under Article 324 of the Constitution. Article327 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 othermatters necessary for securing the ‘due constitution’ of the House of theLegislature. Article 329 bars the interference by courts in electoral matters except by anelection petition presented to such authority and in such manner as may be provided for byor under any law made by the appropriate Legislature. Article 327 read with Section 73 ofthe RP Act, 1951 provide for as to when the House or Assembly shall be ‘dulyconstituted’. No provision, constitutional or statutory, stipulates that the‘due constitution’ is only for the purposes of Articles 324, 327 and 329 and notfor the purpose of enabling the Governor to exercise power under Article 174(2)(b) of theConstitution. In so far as the argument based on Article 172 is concerned, it seems clearthat the due constitution of the Legislative Assembly is different than its duration whichis five years – to be computed from the date appointed for its first meeting and nolonger. There is no restriction under Article 174(2)(b) stipulating that the power todissolve 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 deemedconstitution 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 notificationunder Section 73 shall not be deemed to affect the duration of the State LegislativeAssembly, if any, functioning immediately before the issue of the said notification. Infact, clause (b) further fortifies the conclusion that the duration of the LegislativeAssembly is different than the due constitution thereof. In the present case, we are notconcerned with the question of duration of the Assembly but with the question whether theAssembly had been duly constituted or not so as to enable the Governor to exercise thepower of dissolution under Article 174(2)(b). The Constitution of India does not postulateone ‘due constitution’ for the purposes of elections under Part XV and anotherfor the purposes of the executive and the State Legislature under Chapter II and III ofPart VI. The aforenoted provisions existing prior to the enforcement of Constitution ofIndia are also of no relevance for determining the effect of deemed constitution ofAssembly under Section 73 of the RP Act, 1951 to exercise power of dissolution underArticle 274 (2)(b).

In K.K. Abu v. Union of India and Ors. [(AIR 1965 Kerala 229], alearned Single Judge of the High Court rightly came to the conclusion that neither Article172 nor Article 174 prescribe that dissolution of a State Legislature can only be aftercommencement of its term or after the date fixed for its first meeting. Once the Assemblyis constituted, it becomes capable of dissolution. This decision has been referred to byone of us (Arijit Pasayat, J.) in Special Reference No.1 of 2002 (popularly knownas Gujarat Assembly Election matter) [(2002) 8 SCC 237]. No provision of theConstitution stipulates that the dissolution can only be after the first meeting of theState Legislature.

The acceptance of the contention of the petitioners can also lead to a breakdown of theConstitution. In a given case, none may come forth to stake claim to form the Government,for want of requisite strength to provide a stable Government. If petitioners’contention is accepted, in such an eventuality, the Governor will neither be able toappoint Executive Government nor would he be able to exercise power of dissolution underArticle 174(2)(b). The Constitution does not postulate a live Assembly without theExecutive Government.

On behalf of the petitioners, reliance has, however, been placed upon a decision of aDivision Bench of Allahabad High Court in the case of Udai Narain Sinha v. Stateof U.P. and Ors. [AIR 1987 All.203]. Disagreeing with the Kerala High Court, itwas held that in the absence of the appointment of a date for the first meeting of theAssembly in accordance with Article 172 (1), its life did not commence for the purposes ofthat article, even though it might have been constituted by virtue of notification underSection 73 of the RP Act, 1951 so as to entitle the Governor to dissolve it by exercisingpower under Article 174(2). It was held by the Division Bench that Section 73 of the RPAct, 1951 only created a fiction for limited purpose for paving the way for the Governorto appoint a date for first meeting of either House or the Assembly so as to enable themto function after being summoned to meet under Article 174 of the Constitution. We areunable to read any such limitation. In our view, the Assembly, for all intends andpurposes, is deemed to be duly constituted on issue of notification under Section 73 andthe duration thereof is distinct from its due constitution. The interpretation which maylead to a situation of constitutional breakdown deserves to be avoided, unless theprovisions are so clear as not to call for any other interpretation. This case does notfall in the later category.

In Gujarat Assembly Election Matter, the issue before the ConstitutionBench was whether six months’ period contemplated by Article 174(1) applies to adissolved Legislative Assembly. While dealing with that question and holding that the saidprovision applies only to subsisting Legislative Assembly and not to a dissolvedLegislative Assembly, it was held that the constitution of any Assembly can only beunder Section 73 of the RP Act, 1951 and the requirement of Article 188 of Constitutionsuggests that the Assembly comes into existence even before its first sitting commences.

In view of the above, the first point is answered against the petitioners.