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3.4 Rameshwar Prasad & Ors Versus Union of India & Anr

Part IV of the minority judgment by Justice Arijit Pasayat: 'Proclamation under Article 356 is open to judicial review, but to a very limited extent. Only when the power is exercised mala fide or is based on wholly extraneous or irrelevant grounds, t

Arijit Pasayat

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3.4
Rameshwar Prasad & Ors Versus Union of India & Anr 

Part IV of the minority judgment by Justice Arijit Pasayat: 'Proclamationunder Article 356 is open to judicial review, but to a very limited extent. Onlywhen the power is exercised mala fide or is based on wholly extraneous orirrelevant grounds, the power of judicial review can be exercised.' 

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In the Adoption of the Constitution the speech ofDr. B.R. Ambedkar on 25.11.1949 contained the following significantobservations:

"As much defence as could be offered to the Constitution has been offered by my friends Sir Alladi Krishnaswami Ayyar and Mr. T.T. Krishnamachari. I shall not therefore enter into the merits of the Constitution. Because I feel, however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot. The working of a Constitution does not depend wholly upon the nature of the Constitution. The Constitution can provide only the organs of State such as the legislature, the executive and the judiciary. The factors on which the working of those organs of State depends are the people and the political parties they will set up as their instrument to carry out their wishes and their politics. Who can say how the people of India and their parties will behave? Will they uphold constitutional methods of achieving their purposes or will they prefer revolutionary methods of achieving them? If they adopt the revolutionary methods, however good the Constitution may be, it requires no prophet to say that it will fail. It is, therefore, futile to pass any judgment upon the Constitution without reference to the part which the people and their parties are likely to play................ Jefferson, the great American statesman who played so great a part in the making of the American Constitution, has expressed some very weighty views which makers of Constitutions can never afford to ignore. In one place, he has said:

"We may consider each generation as a distinct nation, with a right, by the will of the majority, to bind themselves, but none to bind the succeeding generation, more than the inhabitants of another country."

In another place, he has said:

"The idea that institutions established for the use of the nation cannot be touched or modified, even to make them answer their end, because of rights gratuitously supposed in those employed to manage them in the trust for the public, may perhaps be a salutary provision against the abuses of a monarch, but is mot absurd against the nation itself. Yet our lawyers and priests generally inculcate this doctrine, and suppose that preceding generations held the earth more freely than we do; had a right to impose laws on us, unalterable by ourselves, and that we, in the like manner, can make laws and impose burdens on future generations, which they will have no right to alter; in fine, that the earth belongs to the dead and not the living."

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I admit that what Jefferson has said is not merely true, but is absolutely true. There can be no question about it. Had the Constituent Assembly departed from this principle laid down by Jefferson it would certainly be liable to blame even to condemnation. But I ask, has it? Quite the contrary. One has only to examine the provisions relating to the amendment of the Constitution. The Assembly has not only refrained from putting a seal of finality and infallibility upon this Constitution by denying to the people the right to amend the Constitution as in Canada or by making the amendment of the Constitution subject to the fulfillment of extraordinary terms and conditions as in America or Australia, but has provided a most facile procedure for amending the Constitution. I challenge any of the critics of the Constitution to prove that any Constituent Assembly anywhere in the world has, in the circumstances in which this country finds itself, provided such a facile procedure for the amendment of the Constitution. If those who are dissatisfied with the Constitution have only to obtain a two-thirds majority and if they cannot obtain even a two-thirds majority in the Parliament elected on adult franchise in their favour, their dissatisfaction with the Constitution cannot be deemed to be shared by the general public.

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There is only one point of constitutional import to which I propose to make a reference. A serious complaint is made on the ground that there is too much of centralization and that the States have been reduced to municipalities. It is clear that this view is not only an exaggeration, but is also founded on a mis-understanding of what exactly the Constitution contrives to do. As to the relation between the Centre and the State, it is necessary to bear in mind the fundamental principle on which it rests. The basic principle of federalism is that the legislative and executive authority is partitioned between the Centre and the States not by any law to be made by the Centre but by the Constitution itself. That is what the Constitution does. The States under our Constitution are in no way dependent upon the Centre for their legislative or executive authority. The Centre and the States are co-equal in this matter. It is difficult to see how such a Constitution can be called centralism. It may be that the Constitution assigns to the Centre a larger field for the operation of its legislative and executive authority than is to be found in any other federal Constitution. It may be that the residuary powers are given to the Centre and not to the States. But these features do not form the essence of federalism. The chief mark of federalism, as I said, lies in the partition of the legislative and executive authority between the Centre and the units by the Constitution. This is the principle embodied in our Constitution. There can be no mistake about it. It is, therefore, wrong to say that the States have been placed under the Centre. The Centre cannot by its own will alter the boundary of that partition. Nor can the judiciary. For as has been well said:

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"Courts may modify, they cannot replace. They can revise earlier interpretations as new arguments, new points of view are presented, they can shift the dividing line in marginal cases, but there are barriers they cannot pass, definite assignments of power they cannot reallocate. They can give a broadening construction of existing powers, but they cannot assign to one authority powers explicitly granted to another."

The first charge of centralization defeating federalism must therefore fall.

As noted above, the Governor occupies a veryimportant and significant post in the democratic set up. When his credibility isat stake on the basis of allegations that he was not performing hisconstitutional obligations or functions in the correct way, it is a sadreflection on the person chosen to be the executive Head of a particular State.A person appointed as a Governor should add glory to the post and not be asymbolic figure oblivious of the duties and functions which he has is expectedto carry out. It is interesting to note that allegations of favouratism and malafides are hurled by other parties at Governors who belonged or belong to theruling party at the Centre, and if the Governor at any point of time was afunctionary of the ruling party. The position does not change when another partycomes to rule at the Centre. It appears to be a matter of convenience fordifferent political parties to allege mala fides. This unfortunate situationcould have been and can be avoided by acting on the recommendations of theSarkaria Commission and the Committee of the National Commission To Review TheWorking Of The Constitution in the matter of appointment of Governors. This doesnot appear to be convenient for the parties because they want to take advantageof the situation at a particular time and cry foul when the situation does notseem favourable to them. This is a sad reflection on the morals of the politicalparties who do not loose the opportunity of politicizing the post of theGovernor. Sooner remedial measures are taken would be better for the democracy.

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It is not deficiency in the Constitution which isresponsible for the situation. It is clearly attributable to the people whoelect the Governors on considerations other than merit. It is a disturbingfeature, and if media reports are to be believed, Raj Bhawans are increasinglyturning into extensions of party offices and the Governors are behaving likeparty functionaries of a particular party. This is not healthy for thedemocracy.

The key actor in the Centre-State relations isthe Governor who is a bridge between the Union and the State. The foundingfathers deliberately avoided election to the office of the Governor, as is invogue in the U.S.A. to insulate the office from the linguistic chauvinism. ThePresident has been empowered to appoint him as executive head of the State underArticle 155 in Part VI, Chapter II. The executive power of the State is vestedin him by Article 154 and exercised by him with the aid and advice of theCouncil of Ministers, the Chief Minister as its head. Under Article 159 theGovernor shall discharge his functions in accordance with the oath to protectand defend the Constitution and the law. The office of the Governor, therefore,is intended to ensure protection and sustenance of the constitutional process ofthe working of the Constitution by the elected executive and given him anumpire’s role. When a Gandhian economist Member of the Constituent Assemblywrote a letter to Gandhiji of his plea for abolition of the office of theGovernor, Gandhiji wrote to him for its retention, thus; the Governor had beengiven a very useful and necessary place in the scheme of the team. He would bean arbiter when there was a constitutional dead lock in the State and he wouldbe able to play an impartial role. There would be administrative mechanismthrough which the constitutional crisis would be resolved in the State. TheGovernor thus should play an important role. In his dual undivided capacity as ahead of the State he should impartially assist the President. As aconstitutional head of the State Government in times of constitutional crisis heshould bring about sobriety. The link is apparent when we find that Article 356would be put into operation normally based on Governor’s report. He shouldtruthfully and with high degree of constitutional responsibility, in terms ofoath, inform the President that a situation has arisen in which theconstitutional machinery in the State has failed and the Government of Statecannot be carried on in accordance with the provisions of the Constitution, withnecessary detailed factual foundation.

It is incumbent on each occupant of every highoffice to be constantly aware of the power in the High Office he holds that ismeant to be exercised in public interest and only for public good, and that itis not meant to be used for any personal benefit or merely to elevate thepersonal status of the current holder of that office.

In Sarkaria Commission’s report it waslamented that some Governors were not displaying the qualities of impartialityand sagacity expected of them. The situation does not seem to have improvedsince then.

Reference to Report of the Committee of Governors(1971) would also be relevant. Some relevant extracts read as follows:

"According to British constitutional conventions, though the power to grant to a Prime Minister a dissolution of Parliament is one of the personal prerogatives of the Sovereign, it is now recognized that the Sovereign will normally accept the advice of the Prime Minister since to refuse would be tantamount to dismissal and involve the Sovereign in the political controversy which inevitably follows the resignation of a Ministry. A Prime Minister is entitled to choose his own time within the statutory five year limit for testing whether his majority in the House of Commons still reflects the will of the electorate. Only if a break up of the main political parties takes place can the personal discretion of the Sovereign become the paramount consideration. There are, however, circumstances when a Sovereign may be free to seek informal advice against that of the Prime Minister. Professor Wade, in Constitutional Law (Wade and Phillips, Eighth Edn. 1970), states these circumstances thus:

"If the Sovereign can be satisfied that

(1) an existing Parliament is still vital and capable of doing its job, (2) a general election would be detrimental to the national economy, more particularly if it followed closely on the last election, and (3) he could rely on finding another Prime Minister who was willing to carry on his Government for a reasonable period with a working majority, the Sovereign could constitutionally refuse to grant a dissolution to the Prime Minister in office".

Prof. Wade further observes:

"It will be seldom that all these conditions can be satisfied. Particularly dangerous to a constitutional Sovereign is the situation which would arise if having refused a dissolution to the outgoing Prime Minister he was faced by an early request from his successor for a general election. Refusal might be justified if there was general agreement inside and outside the House of Commons that a general election should be delayed and clearly it would be improper for a Prime Minister to rely on defeat on a snap vote to justify an election".

The observations of Hood Phillips in his latestbook, Reform of the Constitution (1970), are relevant:

"There is no precedent in this country of a Prime Minister, whose party has a majority in the Commons, asking for a dissolution in order to strengthen his weakening hold over his own party. If he did ask for a dissolution the better opinion is that the Queen would be entitled, perhaps would have a duty, to refuse. In the normal case when the Sovereign grants a dissolution this is on assumption that the Prime Minister is acting as leader on behalf of his party. Otherwise the electorate could not be expected to decide the question of leadership. So if the Sovereign could find another Prime Minister who was able to carry on the government for a reasonable period, she would be justified in refusing a dissolution. Something like this happened in South Africa in 1939 when the question was whether South Africa should enter the war: the Governor-General refused a dissolution to Hertzog, who resigned and was replaced by Smuts who succeeded in forming a Government.

Xxx xxx xxx

We may first examine the precise import ofArticle 356 which sanctions President’s rule in a State in the event of abreak-down of the constitutional machinery. For our present purpose, it isenough to read the language of clause (1) of the Article:

Article 356(1):

356. Provisions in case of failure of constitutional machinery in State.--(1) 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 any body 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 any body 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.

‘The salient features of this provision’, inthe words of Shri Alladi Krishnaswami Ayyar (speaking in the ConstituentAssembly), "are that immediately the proclamation is made, the executivefunctions (of the State) are assumed by the President. What exactly does thismean? As members need not be repeatedly reminded on this point, ‘thePresident’ means the Central Cabinet responsible to the whole Parliament inwhich are represented representatives from the various units which form thecomponent parts of the Federal Government. Therefore, the State machinery havingfailed, the Central Government assumes the responsibility instead of the StateCabinet. Then, so far as the executive government is concerned, it will beresponsible to the Union Parliament for the proper working of the Government inthe State. If responsible government in a State functioned properly, the Centrewould not and could not interfere.

While the Proclamation is in operation,Parliament becomes the Legislature for the State, and the Council of Ministersat the Centre is answerable to Parliament in all matters concerning theadministration of the State. Any law made pursuant to the powers delegated byParliament by virtue of the Proclamation is required to be laid beforeParliament and is liable to modification by Parliament. Thus, a state underPresident’s rule under Article 356 virtually comes under the executiveresponsibility and control of the Union Government. Responsible government inthe State, during the period of the Proclamation, is replaced by responsiblegovernment at the Centre in respect of matters normally in the State’s sphere.

In discussing Article 356, attention isinevitably drawn to Section 93 of the Government of India Act, 1935. Thissection had attained a certain notoriety in view of the enormous power that itvested in the Governor and the possibility of its misuse, the Governor being theagent of the British Government. Many of the leading members of the ConstituentAssembly had occupied important positions as Ministers in the Provincesfollowing the inauguration of Provincial autonomy and had thus first-handexperience of the working of this particular section and the possible effect ofhaving in the Constitution a provision like Section 93. There was, therefore,considerable discussion, both in the Constituent Assembly and in the Committees,on the advisability, or necessity, of incorporating the provision in theConstitution. Pandit H.N. Kunzru, who had serious apprehensions regarding thisprovision, suggested the limiting of the Governor’s functions to merely makinga report to the President, it being left to the President to take such action ashe considered appropriate on the report. Pandit Govind Ballabh Pant agreed withPandit Kunzru in principle. The former referred in particular to theadministrative difficulties that would be created by giving powers to theGovernor to act on his own initiative over the head of his Ministers.

The whole question was examined at a meeting ofthe Drafting Committee with Premiers of Provinces on July 23, 1949. Pandit Pantagain expressed the view that the Governor should not come into the picture asan authority exercising powers in his discretion. Armed with such powers, hewould be an autocrat and that might lead to friction between him and hisMinisters. Shri Alladi Krishnaswami Ayyar tried to allay apprehensions in theminds of the members of the Constituent Assembly about the similarity betweenSection 93 of the Government of India Act and the provision made in Article 356of the Constitution. He said in the Constituent Assembly:

"There is no correspondence whatever between the old section 93 (of the Government of India Act, 1935) and this except in regard to the language in some parts. Under Section 93, the ultimate responsibility for the working of Section 93 was the Parliament of great Britain which was certainly representative of the people of India, whereas under the present article the responsibility is that of the Parliament of India which is elected on the basis of universal franchise, and I have no doubt that not merely the conscience of the representatives of the State concerned but also the conscience of the representatives of the other units will be quickened and they will see to it that the provision is properly worked. Under those circumstances, except on the sentimental objection that it is just a repetition of the old Section 93, there is no necessity for taking exception to the main principle underlying this article".

In winding up the debate on the emergencyprovisions, Dr. Abmedkar observed:

"In regard to the general debate which has taken place in which it has been suggested that these articles are liable to be abused, I may say that I do not altogether deny that there is a possibility of these articles being abused or employed for political purposes. But that objection applies to every part of the Constitution which gives power to the Centre to override the Provinces. In fact I share the sentiments expressed by my honourable friend Mr. Gupte yesterday that the proper thing we ought to expect is that such articles will never be called into operation and that they would remain a dead letter. If at all they are brought into operation, I hope the President, who is endowed with these powers, will take proper precautions before actually suspending the administration of the provinces".

Dr. Ambedkar’s hope that this provision wouldbe used sparingly, it must be admitted, has not been fulfilled. During thetwenty-one years of the functioning of the Constitution, President’s rule hasbeen imposed twenty-four times-the imposition of President’s rule in Kerala onNovember 1, 1956, was a continuation of President’s rule in Travancore-Cochinimposed earlier on March 23, 1956-the State of Kerala having been underPresident’s rule five times and for the longest period. Out of seventeenStates (not taking into account PEPSU which later merged into Punjab, andexcluding Himachal Pradesh which became a State only recently), eleven have hadspells of President’s rule. The kind of political instability in some of thestates that we have witnessed and the politics of defection which has so muchtarnished the political life of this country were not perhaps envisaged in anymeasure at the time the Constituent Assembly considered the draft Constitution.No Governor would, it can be safely asserted, want the State to be brought underPresident’s rule except in circumstances which leave him with no alternative.

The article, as finally adopted, limits thefunctions of the Governor to making a report to the President that a situationhas arisen in which there has been failure of the constitutional machinery. Thedecision whether a Proclamation may be issued under Article 356 rests with thePresident, that is to say, the Union Government. Significantly, the Presidentcan exercise the power "on receipt of a report from the Governor orotherwise" if he is satisfied that the situation requires the issue of sucha Proclamation.

Some of the circumstances in which President’srule may have to be imposed have already been discussed. What is important toremember is that recourse to Article 356 should be the last resort for aGovernor to seek. A frequent criticism of the Governor in this connection isthat he sometimes acts at the behest of the Union Government. This criticismemanates largely from a lack of appreciation of the situations which confrontthe Governors. Imposition of President’s rule normally results in thePresident vesting the Governor with executive functions which belong to hisCouncil of Ministers This is a responsibility which no Governor would lightlyaccept. Under President’s rule he functions in relation to the administrationof the State under the superintendence, direction and control of the Presidentand concurrently with him by virtue of an order of the President.

As Head of the State, the Governor has a duty tosee that the administration of the State does not break down due to politicalinstability. He has equally to take care that responsible Government in theState is not lightly disturbed or superseded. In ensuring these, it is not theGovernor 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 oweprimary responsibility to the Legislature. The norms of parliamentary governmentare best maintained by them.

Before leaving this issue, we would like to statethat it is not in the event of political instability alone that a Governor mayreport to the President under Article 356. Reference has been made elsewhere inthis report to occasions where a Governor may have to report to the Presidentabout any serious internal disturbances in the State, or more especially of theexistence or possibility of a danger of external aggression. In such situationsalso it may become necessary for the Governor to report to the President foraction pursuant to Article 356.

It is difficult to lay down any preciseguidelines in regard to the imposition of President’s rule. The Governor hasto act on each occasion according to his best judgment, the guiding principlebeing, as already stated, that the constitutional machinery in the State should,as far as possible, be maintained.

CONVENTIONS:

Conventions of the Constitution, according toDicey’s classic definition, consist of "customs, practices, maxims, orprecepts which are not enforced or recognized by the Courts", but"make up a body not of laws, but of constitutional or politicalethics". The broad basis of the operation of conventions has been set outin Prof. Wade’s Introduction of Dicey’s Law of the Constitution (1962 edn.).The dominant motives which secure obedience to conventions are stated to be:

"(1) the desire to carry on the traditions of constitutional government;

(2) the wish to keep the intricate machinery of the ship of State in working order;

(3) the anxiety to retain the confidence of the public, and with it office and power".

These influences secure that the conventions ofCabinet Government, which are based on binding precedent and convenient usage,are observed by successive generations of Ministers. The exact content of aconvention may change or even be reversed, but each departure from the previouspractice is defended by those responsible as not violating the older precedents.Objections are only silenced when time has proved that the departure fromprecedent has created a new convention, or has shown itself to be a badprecedent and, therefore, constituted in itself a breach of convention.

This exposition of the nature of conventions willshow that, if they have to be observed and followed, the primary responsibilitytherefor will rest on those charged with the responsibility of government. In a parliamentary system, this responsibilityunquestionably belongs to the elected representatives of the people who functionin the Legislatures. They are mostly members of political parties who seek thesuffrage of the electorate on the basis of promises made and programmesannounced. The political parties, therefore, are concerned in the evolution ofhealthy conventions so that they "retain the confidence of the public, and,with it, office and power".

"I feel that it (the Constitution) is workable, it is flexible and it is strong enough to hold the country together both in peace time and in war time. Indeed if I may say so, if things go wrong under the new Constitution, the reason will not be that we had a bad Constitution. What we will have to say is, that Man was vile."

These words were uttered by Dr. Ambedkar in theConstituent Assembly in moving considerationof the draft Constitution. It has become the fashion, when situations arisewhich may not be the liking of a particular political party, to blame theConstitution. The Governors also inevitably get their share of the blame eitherbecause, it is alleged they take a distorted view of the Constitution, or, as isalso alleged, because the Constitution permits them to resort to"unconstitutional" acts. The essential structure of our Constitutionrelating to the functioning of the different branches of government is sound andcapable of meeting all requirements. The conventions, or the guidelines, that weare called upon to consider should be viewed in this background.

Conventions evolve from experience and from trialand error. The working of our Constitution during the past twenty-one years hasexposed not so much any weaknesses in ourpolitical life. Some of the weaknesses will be evident from the discussions inthe earlier part of this Report. The Governors, under our Constitution, do notgovern; government is the primary concern of the Council of Ministers which isresponsible to the Legislature and the people. Therefore, for a purposefulevolution of conventions, the willing co-operation of the political parties andtheir readiness to adhere to such conventions are of paramount importance. Inrecent years, it has been a regrettable feature of political life in some of theStates, with the growing number of splinter parties, some of them formed on thebasis of individual or group alignments and not of well-defined programmes orpolicies, that governments are formed with a leader-a Chief Minister -who comesto that office not as of a right, with the previous acquiescence of followersand the deference of his colleagues, but as being the most"acceptable" candidate for the time. Much of his timeand efforts are, therefore, inevitably spent infinding expedients to keep himself in power andthe Cabinet alive".

In Special Reference NO.1 of 2002 case (supra) in paragraphs 55 and 56 it was observed as follows:

"55. It was then urged on behalf of the Union that under Article 174 what is dissolved is an Assembly while what is prorogued is a House. Even when an Assembly is dissolved, the House continues to be in existence. The Speaker continues under Article 94 in the case of the House of the People or under Article 179 in the case of the State Legislative Assembly till the new House of the People or the Assembly is constituted. On that premise, it was further urged that the fresh elections for constituting a new Legislative Assembly have to be held within six months from the last session of the dissolved Assembly.

56. At first glance, the argument appeared to be very attractive, but after going deeper into the matter we do not find any substance for the reasons stated hereinafter"

Article 172 provides for duration of the StateLegislatures. The Superintendence, direction and control of the elections toParliament and to the Legislatures of every State vest in the ElectionCommission under Article 324. Article 327 provides that Parliament may makeprovision with respect to all matters relating to, or in connection with,elections to the Legislative Assembly of a State and all other matters necessaryfor securing the due constitution of the House of the Legislature. Conjointreading of Article 327 of the Constitution and Section 73 of the R.P. Act makesthe position clear that the Legislative Assembly had been constituted. Noprovision of the Constitution stipulates that the dissolution can only be afterthe first meeting of the Legislature. Once by operation of Section 73 of the R.P.Act the House or Assembly is deemed to be constituted, there is no bar on itsdissolution.

Coming to the plea that there was no LegislativeAssembly in existence as contended by Mr. Viplav Sharma,appearing in person the same clearly overlooks Section 73 of the R.P. Act. Thereis no provision providing differently in the Constitution. There is no challengeto the validity of the Section 73 of the R.P. Act, which is in no way repugnantby any provision to the Constitution. That being so, by operation of Section 73of the R.P. Act the Assembly was duly constituted. The stand that the Governorwas obliged to convene the Session for administering oath to the members and forformation of a Cabinet thereafter has no relevance and is also not backed by anyconstitutional mandate. There was no compulsion on the Governor to convene asession or to install a Cabinet unless the pre-requisites in that regard werefulfilled. The reports of the Governor clearly indicated that it was notpossible to convene a session for choosing a Chief Minister or for formation ofa Cabinet.

Even if hypothetically it is held that thedissolution notifications are unsustainable, yet restoration of status quo anteis not in the present case the proper relief. As notedsupra, no stake was claimed by any person before theGovernor. The documents relied upon to show that a majorityexisted lack authenticity and some of them even havethe stamp of manipulation. The elections as scheduledhad reached on an advanced stage. Undisputedly,the Election Commission had made elaboratearrangements. It would be inequitable to put theclock back and direct restoration of stats quo ante.

In Public Law 2005, some interesting write-upsare there which have relevance. They read asfollows:

"Judicial review-Power of the court to limit the temporal effect of the annulment of an administrative decision, postpone the date at which it will produce effects and qualify the extent of the nullity.

Under French welfare law, agreements relating to unemployment allowances are private agreements signed by unions and employers’ associations-but they enter into force only if approved by the Minister for Social Affairs. They then become compulsory for all. Several associations defending the rights of the unemployed brought an action against ministerial decisions approving such agreements.

Standing was granted. The decisions were quashed on procedural grounds, i.e. the composition of the committee which had to be consulted and the way the consultation took place. The issues at stake related to the date at which this annulment would enter into force and to its effects. The matter was an extremely sensitive one, socially and politically; the scope and amount of unemployment allowances. To say nothing would have led to the application of the principle according to which nullity is retroactive. An annulled decision is supposed never to have existed. It is therefore impossible to maintain its effects for a certain time. Such are the strict requirements of the principle of legality. On the other hand, the court cannot disregard the practical consequences of its decision, not only for the parties, but for a larger public, especially in such an area. These consequences may affect not only the functioning of a public service but also the rights of individuals. They may create a legal void, and social havoc.

Hence the idea of allowing the court, when it annuls an administrative decision, to include in its judgment specific orders as to whether and when the annulment will produce effects and, if so, which persons might be in a special position. Such a discretion has been used for a long time by both European courts. The European Court of Human Right’ judgment in Marckx v. Belgium (1979-80) 2 E.H.R.R. 330, is an apt illustration. As for the ECJ, it construed broadly the second paragraph of Art. 231 EC (formerly Art.174) according to which: "In the case of a regulation, however, the Court of Justice shall, if it considers this necessary, state which of the effects of the regulation which it has declared void shall be considered as definitive". This derogation to the ex tunc effect has been applied in cases relating not only to regulations, but also to preliminary rulings concerning interpretation (Case C-43/75 Defrenne v. Sabena (1976 E.C.R. 455; Case C-61/79 Denkjavit Italiana (1980 E.C.R. 1205; Case C-4/79 Societe Cooperative Providence agricole de la Champagne (1980 ECR 2823; Case C-109/79 Maiseies de Beauce (1980 E.C.R. 2882; Case-145/79 Societe Roquette Freres (1980 E.C.R. 2917), directives (Case C-295/90 European Parliament v. Council (1992 E.C.R. I4193) and decisions (Case C-22/96) European Parliament v Council (1998 E.C.R. I-3231). The ECJ held that the use of such a power was justified in order to take into account "imperious considerations of legal certainty relating to all interests at stake, public and private". In doing so, however, the Court’s decisions could harm the rights of the very petitioners who wanted the Court to arrive at the decision it took. Hence the dissenting decisions of several national higher courts, such as the Italian Constitutional Court (April 21, 1989, Fragd) and the Conseil d’Etat (June 28, 1985, Office national interprofessionnel des cereales o Societe Maiseries de Beauce, concl. Genevois, RTDE, 1986, 145; July 26, 1985; Office national interprofessionnel des cereales, p.233, concl. Genevois AJDA, 1985; June 13, 1986, Office national interprofessionnel des cereales, concl. Bonichot, RTDE 1986, 533). This is why the ECJ took some precautions to protect the rights of persons who had previously brought an action or an equivalent claim. Some ECJ judgments led to the inclusion of special clauses into the EC Treaty, as shown by the Maastricht Treaty Protocol 2 (the "Barber Declaration") following the ECJ’s judgment in Case C-262/88 Barber v. Guardian Royal Exchange Assurance Group (1991 (1) Q.B. 344). This Protocol limits the effects ratione temporis (before May 17, 1990) of Article 141 EC. The ECJ has been explicit on the considerations it takes into account to use such powers. They relate, on the whole, to legal certainty lato sensu, i.e. to the concrete effects of its decision on existing legal situations, and the desirability of avoiding the creation of a legal void. Many European constitutional courts have a similar power.

The Conseil d’Etat had never affirmed that it had such a faculty. It was not, however, entirely unaware of the issue; in Vassilikiotis, June 26, 2001, p. 303 it annulled a ministerial decision in so far as it did not state how the permit necessary for guides in museums and historical monuments would be granted to persons with diplomas of other EU Member States. The judgment added precise and compulsory prescriptions telling the Administration exactly what it should do, even before revising the regulation. Otherwise an unlawful domestic regulation would have remained in force, perpetuating discrimination contrary to EC law. It thus held that the Administration was under an obligation to enact, after a reasonable delay, the rules applying to the persons mentioned above. Meanwhile the decision forbade the Administration to prevent EU nationals from guiding visits on the ground that they did not possess French diplomas. It belonged to the competent authorities to take, on a case-by-case basis, the appropriate decisions and to appreciate the value of the foreign diplomas (see also July 27, 2001, Titran, P.411)

In Association AC, a case that lent itself tosuch a move, the Conseil d’Etat decided to innovate and to give administrativecourts new powers. The new principles affirmed may be summed up as follows:

1. The principle is that an annulled administrative decision is supposed never to have existed.

2. However, such a retroactive effect may have manifestly excessive consequences in view of (a) the previous effects of the annulled decision and of the situations thus created and (b) the general interest which could make it desirable to maintain its effects temporarily.

3. If so, administrative courts are empowered to take specific decisions as to the limitation of the effects, in time, of the annulment.

4. They may do so after having examined all grounds relating to the legality of the decision and after asking the parties their opinion on such a limitation.

5. They must take into account (a) the consequences of the retroactivity of the annulment for the public and private interests at stake and (b) the effects of such a limitation on the principle of legality and on the right to an effective remedy.

6. Such a limitation should be exceptional.

7. The rights of the persons who brought an action, before the court’s judgment, against the annulled decision must be preserved.

8. The court may decide that all or part of the effects of the decision prior to its annulment will be regarded as definitive, or that the annulment will come into force at a later time as determined by the judgment.

In the present case the Conseil d’Etat annulled a number of ministerial decisions. It also annulled other ones, but only from July 1 onwards, thus giving seven weeks to the Minister. The rights of persons who had earlier brought an action were explicitly preserved. The effects of a third group of annulled decisions were declared to be definitive, with the same reservation.

Several comments are in order on this important judgment. The influence of the ECJ’s case law and of its use of the ex nunc/ex tunc effect is evident. The judgment is also an apt illustration of a renewal of the conception of the role of administrative courts. It no longer stops when judgment is given. More and more attention is given to its effects, its practical consequences for all, the way it must be implemented by the Administration and its repercussions on the rights of individuals. Hence the attention given to the ways and means to conciliate the two basic principles of legality and of legal certainty (securite juridique). The latter is more and more seen as a pressing social need, to borrow the vocabulary of the European Court of Human Rights. A strong illustration is the recent case law of the Cour de cassation restricting the scope not only of lois de validation but also of retroactive "interpretative statutes", on the basis of Articles 6

(1) and 13 ECHIR: see Cass.plen. Janaury 24, 2003, Mme X o Association Promotion des handicape’s dans le Loiret, and Cass. Civ. April 7, 2004, in Bulletin d’information de la Cour de cassation, March 15, 2004, with the report of Mme Favre. The discretion of the courts is a twofold one; on whether to use such a faculty and on how to use it. One last-prospective-remark: might the next step be the limitation, by the courts, of the effects in time of a change in the case law?" 

To Sum up:

So far as scope of Article 361 granting immunityto the Governor is concerned, I am in respectful agreement with the viewexpressed by Hon’ble the Chief Justice of India.

(1) Proclamationunder Article 356 is open to judicial review, but to a very limited extent. Onlywhen the power is exercised mala fide or is based on wholly extraneous orirrelevant grounds, the power of judicial review can be exercised. Principles ofjudicial review which are applicable when an administrative action ischallenged, cannot be applied stricto sensu.

(2) Theimpugned Notifications do not suffer from any constitutional invalidity. Had theGovernor tried to stall staking of claim regarding majority that would havefallen foul of the Constitution and the notifications of dissolution would havebeen invalid. But, the Governor recommended dissolution on the ground that themajority projected had its foundation on unethical and corrupt means which hadbeen and were being adopted to cobble a majority, and such action is notconstitutional. It may be a wrong perception of the Governor. But it is his dutyto prevent installation of a Cabinet where the majority has been cobbled in theaforesaid manner. It may in a given case be an erroneous approach, it may be awrong perception, but it is certainly not irrational or irrelevant orextraneous.

(3) A PublicInterest Litigation cannot be entertained where the stand taken was contrary tothe stand taken by those who are affected by any action. In such a case thePublic Interest Litigation is not to be entertained. That is the case here.

(4) Hypotheticallyeven if it is said that the dissolution notifications were unconstitutional, thenatural consequence is not restoration of status quo ante. The Court declaringthe dissolution notifications to be invalid canassess the ground realities and the relevant factors and can mould the reliefsas the circumstances warrant. In the present case restoration of the status quoante would not have been the proper relief even if the notifications weredeclared invalid.

(5) TheAssembly is constituted in terms of Section 73 of the R.P. Act on the conditionsindicated therein being fulfilled and there is no provision in the Constitutionwhich is in any manner contrary or repugnant to the said provision. On thecontrary, Article 327 of the Constitution is the source of power for enactmentof Section 73.

(6) In termsof Article 361 Governor enjoys complete immunity. Governor is not answerable toany Court for exercise and performance of powers and duties of his office or forany act done or purporting to be done by him in the exercise of those powers andduties. However, such immunity does not take away power of the Court to examinevalidity of the action including on the ground of mala fides.

(7) It hasbecome imperative and necessary that right persons are chosen as Governors ifthe sanctity of the post as the Head of theExecutive of a State is to be maintained.

The writ applications are accordingly dismissedbut without any order as to costs. 

…….......................J.
(ARIJIT PASAYAT)

New Delhi,
January 24, 2006

1.1:Majority Judgment: Chief Justice of India, Y.K. Sabharwal, Justice B.N. Agrawaland Justice Ashok Bhan

2.1:Dissenting Judgment: Justice K.G. Balakrishnan

 

 

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