IN THE SUPREME COURT OF INDIA
Rameshwar Prasad and Ors. ... Petitioners
(With WP (C) Nos. 255, 258 and 353 of 2005)
J U D G M E N T
ARIJIT PASAYAT J.
In the last few years the attack on actions of Governors in the matter of installation/dissolution of ministries has increased, which itself is a disturbing feature. A Governor has been assigned the role of a Constitutional sentinel and a vital link between the Union and the State. A Governor has also been described as a useful player in the channel of communication between the Union and the State in matters of mutual interest and responsibility. His oath of office binds him to preserve, protect and defend the Constitution of India, 1950 (in short the Constitution) and the law, and also to devote himself to the service and the well being of the people of the State concerned. When allegations are made that he is partisan and/or is acting like an agent of a political party, un-mind of his Constitutional duties, it naturally is a serious matter.
The cases at hand relate to acts of the Governor of Bihar.
Challenge in these writ petitions is to the constitutionality, legality and validity of a Notification GSR 333(E) dated 23.5.2005 of the Union of India in ordering dissolution of the Bihar Legislative Assembly. Writ Petition (C) No.257 of 2005 has been filed by four persons who were elected to the dissolved Legislative Assembly. Petitioner No.1 Shri Rameshwar Prasad was elected as a candidate of the Bhartiya Janta Party (in short BJP). Petitioner No.2 Shri Kishore Kumar was elected as an independent candidate. Petitioner No.3 Shri Rampravesh Rai was elected as a candidate of the Janta Dal United (in short JDU) while petitioner NO.4 Dr. Anil Kumar was elected as a candidate of the Lok Janshakti Party (in short LJP).
Writ Petition (C) No.353 of 2005 has been filed by Smt. Purnima Yadav who was elected as an independent candidate. Writ Petition (C) No.258 of 2005 has been filed by Shri Viplav Sharma, an Advocate, styled as a Public Interest litigation.
All these writ petitions have been filed under Article 32 of the Constitution. In Viplav Sharmas Writ Petition in addition to the challenges made by the writ petitioners in other two writ petitions, prayer has been made for a direction to the Governor of Bihar to administer oath to all the elected members of the 13th Legislative Assembly of the State of Bihar and make such assembly functional, purportedly in terms of Articles 172 and 176 of the Constitution and appoint the Chief Minister and Council of Ministers in terms of Article 164(1) of the Constitution. Further, consequential prayers have been made for a direction to the Election Commission of India (in short the Election Commission) not to hold fresh elections for the constitution of 14th State Legislative Assembly. It has also been prayed to direct stay the effect and operation of the purported report dated 22.5.2005 of the Governor of Bihar to the Union Cabinet inter-alia recommending the dissolution of the Assembly and the Presidential Proclamation dated 7.3.2005 placing the 13th State Legislative Assembly under suspended animation and the Presidential Proclamation dated 23.5.2005. In essence, his stand was that since the State Legislative Assembly was yet to be functional there was no question of dissolving the same. Certain other prayers have been made for laying down the guidelines and directions with which we shall deal with in detail later on. It is to be noted that by order dated 25.7.2005 it was noted that Mr. Viplav Sharma had stated before the Bench hearing the matter that he does not press the prayers (i), (ii), (vii) and (viii) in the writ petition.
The challenges in essence, as culled out from the submissions made by the petitioners are essentially as follows:
The dissolution of the Legislative Assembly by the impugned Notification dated 23.5.2005 in exercise of the powers conferred by sub-clause (b) of Clause (2) of Article 174 of the Constitution read with clause (a) of the Proclamation number GSR 162(E) dated 7th March, 2005 issued under Article 356 of the Constitution in relation to the State of Bihar has been made on the basis of a tainted and clearly unsustainable report of the Governor of Bihar. It is stated by Mr. Sorabjee that the Governors report which led to imposition of Presidents Rule over the State of Bihar was not based on an objective assessment of the ground realities. The Home Minister in his speech made on 21.3.2005 when the Bihar Appropriation (Vote on Account) Bill, 2005 was being discussed in Rajya Sabha clearly indicated that it is not good for democracy to let the Presidents rule continue for a long time. It was unfortunate that no political party could get a majority and more parties could not come together to form the Government. The minority government also would not be proper to be installed where the difference between the requisite majority and the minority was not very small. The House was assured that the Government was not interested in continuation of Presidents Rule for a long time. It was categorically stated that sooner it disappears the better it would be for the State of Bihar, for democracy and for the system that has been followed in this country. The Governor was requested to explore the possibilities of formation of a Government. This could be achieved by talking to the elected representatives. Contrary to what was held out by the Home Minister, on totally untenable premises and with the sole objective of preventing Shri Nitish Kumar who was projected to be as the Chief Ministerial candidate by the National Democratic Alliance (in short the NDA) with support of a break away group of LJP and independents. In hot-haste, a report was given, which was attended to with unbelievable speed and the Presidents approval was obtained. The hot-haste and speed with which action was taken clearly indicates mala-fides. Though the Governor made reference to some horse trading or allurements the same was clearly on the basis of untested materials without details. Action of the Governor is of the nature which was condemned by this Court in S.R. Bommai and Ors. v. Union of India and Ors. (1994 (3) SCC 1). It was submitted that similar views expressed by respective Governors did not find acceptance in the cases of dissolution of Assemblies in Karnataka and Meghalaya in the said case. Though the Proclamations in respect of Madhya Pradesh, Rajasthan and Himachal Pradesh were held to be not unconstitutional, yet the parameters of the scope of judicial review were highlighted. Even if it is accepted that the Governors opinion is to be given respect and honour in view of the fact that he holds a high constitutional office, yet when the view is tainted with mala-fides the same has to be struck down. In the instant case according to learned counsel for petitioners, the background facts clearly established that the Governor was not acting bona fide and his objective was to prevent installation of a majority Government. Even if it is accepted for the sake of arguments that the majority was cobbled by unfair means that is a matter with which the Governor has no role to play. It is for the Speaker of the Assembly, when there is a floor test to consider whether there was any floor crossing. If any material existed to show that any Legislature was lured by unfair means that is for the electorate to take care of and the media to expose. That cannot be a ground for the Governor to prevent somebody from staking a claim when he has the support of majority number of legislatures. It is submitted that similar views regarding horse trading etc. were made in the report of the Governor so far as the dissolution of the Karnataka Assembly is concerned and this Court in S.R. Bommais case (supra) found that the same cannot be the foundation for directing dissolution.
For the last few years formation of government by a party having majority has become rare. Therefore, the coalition governments are in place in several States and in fact at the Centre. There is nothing wrong in post poll adjustments and when ideological similarity weighs with any political party to support another political party though there was no pre-poll alliance, there is nothing wrong in it. Majority of the legislatures of the LJP party had decided to support JDU in its efforts to form a Government. Clear decisions were taken in that regard. Some Independent M.L.As had also extended their support to Mr. Nitish Kumar. The Governor cannot refuse to allow formation of a Government once the majority is established. The only exception can be where the Governor is of the view that a stable Government may not be formed by the claimants. It is not the position in the case at hand. Mr. Nitish Kumar had support of legislators, more than the requisite number and in fact the number was far in excess of the requisite number. The Governors actions show that he was acting in a partisan manner to help some particular political parties.
The scope of judicial review was delineated by this Court in State of Rajasthan and Ors. v. Union of India and Ors. (1977 (3) SCC 592) and was further expanded in Bommais case (supra). Tested on the touchstone of the guidelines set out in Rajasthans case (supra) and Bommais case (supra) the Governors report is clearly unsustainable and consequential Presidential Proclamation is unconstitutional. It is to be noted that the Presidential Proclamation was based solely on the Governors report as has been accepted by the Union of India.
Mr. P.S. Narasimha and Mr. Viplav Sharma supported the stand. Additionally, with reference to their additional stands noted supra in the writ petitions, they submitted that the Presidents Notification is not sustainable and is unconstitutional.
In response, Mr. Milon K. Banerjee, learned Attorney General, Mr. Goolam E. Vahanvati, learned Solicitor General, Mr. Gopal Subramaniam, learned Additional Solicitor General, Mr. P.P. Rao, learned senior counsel and Mr. B.B. Singh, learned counsel submitted that there is no quarrel about the scope of judicial review of this Court in matters relating to Proclamation under Article 356(1) and consequentially Article 174(2) of the Constitution. But the factual scenario as projected by the petitioners is really not so.
In the instant case, the Governor had not in reality prevented anybody from staking a claim. It is nobodys case that somebody had staked a claim. What the Governor had indicated in his report dated 21.5.2005 (not dated 22.5.2005 as stated in the writ petitions by the writ petitioners) 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 and the same is clearly visible. It has been submitted that the parameters of judicial review are extremely limited so far as the Governors 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 legislatures 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. By doing so, the Governor would be acting contrary to very essence of democracy. The purity of electorate process would get polluted. The framers of the Constitution never intended that democracy or governance would be manipulated. Defections strike at the root of representative government. They are unconstitutional, illegal, illegitimate, unethical and improper. The Tenth Schedule cannot take care of all situations and certainly not in the case of independents. It would be too hollow to contend that the floor test would cure all impurity in gathering support of the legislatures. 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 dated 6.3.2005 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. It is submitted that ratio in State of Rajasthans case (supra) so far as the scope of judicial review is concerned has not been expanded in Bommais case (supra), and the parameters remain the same.
With reference to Tenth Schedule more particularly sub-paragraphs 2 and 4 it is submitted that disqualification had been clearly incurred by the members of LJP break away group. There was in fact no merger of the so-called break away group with JDU. The documents filed by the petitioners amply show that there was only a proposal and in fact not any merger. Documents on the other hand show that the so called resolution was also manipulated. One person had signed for several persons and even the signatures differ. If really the persons were present in the so called meeting, adopted the resolution purported to have been taken, there was no reason as to why concerned participants did not sign the resolution and somebody else signed it in their favour. This clearly shows that on the basis of manipulated documents it was attempted to be projected as if Shri Nitish Kumar had a majority. Interestingly, Shri Nitish Kumar has not filed any petition and only four members have filed the petitions though claim was that more than 122 had extended support. Though that by itself may not be a ground to throw out the petitions, yet the petitions certainly suffer from legal infirmity. As amply proved, the petitioners have not approached this Court with clean hands and therefore are not entitled to any relief. It is submitted that the petitioners in WP (C) No.257 and 353 have not questioned the correctness of the Presidents Notification dated 7.3.2005, and interestingly in the so called Public Interest Litigation, it has been challenged. After having given up challenge to the major portion of the challenges it has not been explained by the petitioner in person as to how and in which way any of his rights has been affected. If the persons affected have not questioned the correctness of the Notification dated 7.3.2005 the petitioner in person should not be permitted to raise that question. It is the basic requirement of a Public Interest Litigation that persons who are affected are unable to approach the Court. It is strange that learned counsel for the legislators-writ petitioners have accepted the Notification dated 7.3.2005 to be valid and in order. The plea taken in the so called Public Interest Litigation is to the contrary. The factual position in Bommais case (supra) was different. It related to cases where elected governments were in office and the Governors directed dissolution. The position is different here. Further it is submitted that the power exercised by the Governor is legislative in character and it can only be nullified on the ground of ultra-vires. The reports of the National Commission To Review the Working Of The Constitution and Sarkaria Commission have amply indicated the role to be played by the Governors and sanctity to be attached to their report. Even when the parameters of judicial review spelt out in the State of Rajasthan and Bommais cases (supra) are kept in view, the impugned report and consequential Presidents Notification do not suffer from any infirmity to warrant interference. It is further submitted that the Election Commission had notified fresh elections and even if for the sake of arguments if any defect is noticed in the Governors report or the consequential Presidents Notification, that cannot be a ground to stall the election already notified. People can give their mandate afresh and the plea that large sums of money would be spent if the fresh elections are held is really no answer to preventing installation of a government whose foundation is shaky. It is submitted that the report does not even show a trend of any partisan approach vis-a-vis any political party by the Governor who was acting independently. In fact before the report dated 21.5.2005 on which the final decision for the Presidential Proclamation was taken a report dated 27.4.2005 was given which clearly indicated that no party was in a position to form the Government. The Governor has clearly indicated the source from which he came to know about the efforts to form the Government by illegal means. It is pointed out that the decision relied upon by Mr. P.S. Narasimha and Mr. Viplav Sharma i.e. Udai Narain Sinha v. State of U.P. and Ors. (AIR 1987 Allahabad 293) does not really reflect the correct position in law and was rendered in the peculiar fact situation. On the contrary, the decision of the Kerala High Court in K.K. Aboo v. Union of India (AIR 1965 Kerala 229) lays the correct position. Stand that because of Articles 172 or 174 of the Constitution there is no scope of dissolving the Assembly before it was summoned to hold the meeting is not acceptable on the face of Section 73 of the Representation of People Act, 1951 (in short the RP Act). It is pointed out that the decision in K.K. Aboos case (supra) was approved to be laying down the correct law by a Constitution Bench of this Court in Special Reference No.1 of 2002 (2002 (8) SCC 237).
The reports of the Governor dated 6.3.2005, 27.4.2005 and 21.5.2005 need to be reproduced. They read as under:
We shall first deal with the question as to the essence of the judgment in Bommais case (supra).
Lot of arguments have been advanced as to the true essence of the conclusions arrived at in Bommais case (supra) and the view expressed as regards the scopeof judicial review. In A.K. Kaul and Anr. v. Union of India and Anr. (1995 (4) SCC 73), the position was summed up as follows:
If the State of Rajasthans case (supra) and Bommais case (supra) are read together it is crystal clear that in Bommais case, the scope of judicial review as set out in the State of Rajasthans case (supra) was elaborated as is clear from the summation in A.K. Kauls case (supra).
Lord Greene said in 1948 in the famous Wednesbury case (1948 (1) KB 223s) that when a statute gave discretion to an administrator to take a decision, the scope of judicial review would remain limited. He said that interference was not permissible unless one or the other of the following conditions was satisfied, namely the order was contrary to law, or relevant factors were not considered, or irrelevant factors were considered; or the decision was one which no reasonable person could have taken. Lord Diplock in Council for Civil Services Union v. Minister of Civil Service [(1983) 1 AC 768] (called the CCSU case) summarized the principles of judicial review of administrative action as based upon one or other of the following viz., illegality, procedural irregularity and irrationality. He, however, opined that "proportionality" was a "future possibility".
In Om Kumar and Ors. v. Union of India (2001 (2) SCC 386), this Court observed, inter alia, as follows:
In Union of India and Anr. vs. G. Ganayutham (1997  SCC 463), in paragraph 31 this Court observed as follows:
The common thread running through in all these decisions is that the Court should not interfere with the administrators decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in the Wednesburys case (supra) the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision.
According to Wade, Administrative Law (9th Edition) is the law relating to the control of powers of the executive authorities. To consider why such a law became necessary, we have to consider its historical background.
Up to the 19th century the functions of the State in England were confined to (i) defence of the country from foreign invasion, and (ii) maintenance of law and order within the country.
This vast expansion in the State functions resulted in large number of legislations and also for wide delegation of State functions by Parliament to executive authorities, so also was there a need to create a body of legal principles to control and to check misuse of these new powers conferred on the State authorities in this new situation in the public interest. Thus, emerged Administrative Law. Maitland pointed out in his Constitutional History:
But in the early 20th century following the tradition of Dicey's classic exposition in his: The Law of the Constitution, there was a spate of attacks on parliamentary delegation culminating in the book New Despotism by the then Chief Justice of England, Lord Hewart published in 1929. In response, the British Government in 1932 set up a committee called the Committee on Ministerial Powers headed by Lord Donoughmore, to examine these complaints and criticisms. However, the Donoughmore Committee rejected the argument of Lord Hewart and accepted the reality that a modern State cannot function without delegation of vast powers to the executive authorities, though there must be some control on them.
The detenu Liversidge challenged the detention order passed against him by the Secretary of State. The majority of the House of Lords, except Lord Atkin, held that the Court could not interfere because the Secretary of State had mentioned in his order that he had reasonable cause to believe that Liversidge was a person of hostile origin or association. Liversidge was delivered during the Second World War when the executive authority had unbridled powers to detain a person without even disclosing to the Court on what basis the Secretary had reached to his belief. However, subsequently, the British courts accepted Lord Atkin's dissenting view that there must be some relevant material on the basis of which the satisfaction of the Secretary of State could be formed. Also, the discretion must be exercised keeping in view the purpose for which it was conferred and the object sought to be achieved, and must be exercised within the four corners of the statute (See: Clariant International Ltd. and Another v. Securities and Exchange Board of India (2004(8) SCC 524)
Sometimes a power is coupled with a duty. Thus, a limited judicial review against administrative action is always available to the Courts. Even after elaboration in Bommais case (supra) the scope for judicial review in respect of Governors action cannot be put on the same pedestal as that of other administrative orders. As observed in Para 376 of judgment in Bommais case (supra) the scope of judicial review would depend upon facts of the given case. There may be cases which do not admit of judicial prognosis. The principles which are applicable when an administrative action is challenged cannot be applied stricto sensu to challenges made in respect of proclamation under Article 356. However, in view of what is observed explicitly in Bommais case (supra), the proclamation under Article 356(1) is not legislative in character.
A person entrusted with discretion must, so to speak, direct himself properly in law. He must call his attention to matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules he may truly be said to be acting unreasonably. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority.
It is an unwritten rule of the law, constitutional and administrative, that whenever a decision-making function is entrusted to the subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote. (See: Smt. Shalini Soni and Ors. v. Union of India and others 1980 (4) SCC 544).
The Wednesbury principle is often misunderstood to mean that any administrative decision which is regarded by the Court to be unreasonable must be struck down. The correct understanding of the Wednesbury principle is that a decision will be said to be unreasonable in the Wednesbury sense if (i) it is based on wholly irrelevant material or wholly irrelevant consideration, (ii) it has ignored a very relevant material which it should have taken into consideration, or (iii) it is so absurd that no sensible person could ever have reached to it.
As observed by Lord Diplock in CCSUs case (supra) a decision will be said to suffer from Wednesbury unreasonableness if it is "so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it".
A Constitution is a unique legal document. It enshrines a special kind of norm and stands at the top of normative pyramid. Difficult to amend, it is designed to direct human behavior for years to come. It shapes the appearance of the State and its aspirations throughout history. It determines the States fundamental political views. It lays the foundation for its social values. It determines its commitments and orientations. It reflects the events of the past. It lays the foundation for the present. It determines how the future will look. It is philosophy, politics, society, and law all in one. Performance of all these tasks by a Constitution requires a balance of its subjective and objective elements, because "it is a constitution we are expounding." As Chief Justice Dickson of the Supreme Court of Canada noted:
The political question doctrine, in particular, remits entire areas of public life to Congress and the President, on the grounds that the Constitution assigns responsibility for these areas to the other branches, or that their resolution will involve discretionary, polycentric decisions that lack discrete criteria for adjudication and thus are better handled by the more democratic branches. By foreclosing judicial review, even regarding the minimal rationality of the political branches discretionary choices, the doctrine denies federal judges a role in "giving proper meaning to our public value" in important substantive fields. (Quoted from an Article in Harvard Law Review).
Democratic Theory is based on a notion of human dignity: as beings worthy of respect because of their very nature, adults must enjoy a large degree of autonomy, a status principally attainable in the modern world by being able to share in the Governance of their community. Because direct rule is not feasible for the mass of citizens, most people can share in self government only by delegating authority to freely chosen representatives. Thus Justice Hugo L. Black expressed a critical tenet of democratic theory when he wrote: "No right is more precious in a free country than that of having a voice in the election of those who make the laws under which we...must live."
For democratic theory, what makes governmental decisions morally binding is process: the peoples freely choosing representatives, those representatives debating and enacting policy and later standing for re-election, and administrators enforcing that policy. Democratic theory, therefore, tends to embrace both positivism and moral relativism.
Whereas democratic theory turns to moral relativism, constitutionalism turns to moral realism. It presumes that "out there" lurk discoverable standards to judge whether public policies infringe on human dignity. The legitimacy of a policy depends not simply on the authenticity of decision makers credentials but also on substantive criteria. Even with the enthusiastic urging of a massive majority whose representatives have meticulously observed proper processes, government may not trample on fundamental rights. For constitutionalists, political morality cannot be weighed on a scale in which "opinion is an omnipotence," only against the moral criterion of sacred, individual rights. They agree with Jafferson: "An elective despotism was not the government we fought for......" (From Constitutions, Constitutionalism, and Democracy by Walter F. Murphy).
Allegation of mala-fides without any supportable basis is the last feeble attempt of a losing litigant, otherwise it will create a smokescreen on the scope of judicial review. This is a pivotal issue around which the fate of this case revolves. As was noted in A.K. Kauls case (supra) the satisfaction of the President is justiciable. It would be open to challenge on the ground of mala fides or being based wholly on extraneous or irrelevant grounds. The sufficiency or the correctness of the factual position indicated in the report is not open to judicial review. The truth or correctness of the materials cannot be questioned by the Court nor would it go into the adequacy of the material and it would also not substitute its opinion for that of the President. Interference is called for only when there is clear case of abuse of power or what is some times called fraud on power. The Court will not lightly presume abuse or misuse of power and will make allowance for the fact that the decision making authority is the best judge of the situation. If the Governor would have formed his opinion for dissolution with the sole objective of preventing somebody from staking a claim it would clearly be extraneous and irrational. The question whether such person would be in a position to form a stable government is essentially the subjective opinion of the Governor; of course to be based on objective materials. The basic issue therefore is did the Governor act on extraneous and irrelevant materials for coming to the conclusion that there was no possibility of stable government.
According to the petitioners, the question whether there was any allurement or horse trading (an expression frequently used in such cases) or allurement of any kind is not a matter which can be considered by the Governor. The scope of judicial review of Governors decision does not and cannot stand on the same footing as that of any other administrative decision. In almost all legal inquiries intention as distinguished from motive is the all important factor and in common parlance a malicious act stands equated with an intentional act without just cause or excuse. Whereas fairness is synonymous with reasonableness bias stand included within the attributes and broader purview of the word "malice" which in common acceptation implies "spite" or "ill will". Mere general statements will not be sufficient for the purpose of indication of ill will. There must be cogent evidence available on record to come to a conclusion as to whether in fact there was bias or mala fide involved which resulted in the miscarriage of justice. The tests of real likelihood and reasonable suspicion are really inconsistent with each other. (See S. Parthasarthi v. State of A.P. (1974 (3) SCC 459). The word bias is to denote a departure from the standing of even handed justice. (See: Franklin vs. Minister of Town and Country Planning (1947 2 All ER 289 (HL).
In State of Punjab v. V.K. Khanna and Ors. (2001 (2) SCC 330), it was observed as follows:
Lord Hutton also in Pinochet case ((2000) 1 AC 119) observed :
In Bommais case (supra) though all the learned Judges held that exercise of power under Article 356(1) of the Constitution is subject to judicial review but in the matter of justiciability of the satisfaction of the President, the majority view was to the effect that the principles evolved in Barium Chemicals Ltd. and Anr. v. Company Law Board and Ors. (AIR 1967 SC 295) for adjudging the validity of an action based on the subjective satisfaction of the authority created by the Statute do not in their entirety apply to the exercise of constitutional power under Article 356 of the Constitution. Mala fide intent or biased attitude cannot to be put on a strait-jacket formula but depend upon facts and circumstances of each case and in that perspective judicial precedent would not be of much assistance. It is important to note that in Bommais case (supra) this Court was concerned with cases of dissolution of Assemblies when cabinets were in office. Though at first flush, it appears that the factual background in Karnatakas case (supra) dealt with in Bommais case (supra) has lot of similarity with the factual position in hand, yet on a deeper analysis the position does not appear to be so. The factual position was peculiar. In the instant case, the Governors report reveals that the source of his opinion was intelligence reports, media reports and discussions with functionaries of various parties. A plea was raised by the petitioners that it has not been indicated as to functionaries of which party the Governor had discussed with. That cannot be a ground to hold the report to be vulnerable. As was noted in Bommais case (supra) the sufficiency or correctness of factual aspects cannot be dealt with. Therefore, as noted above, the only question which needs to be decided is whether the conclusions of the Governor that if foul means are adopted to cobble the majority it would be against the spirit of democracy. Again the question would be if means are foul can the Governor ignore it and can it be said that his view is extraneous or irrational.
In the report dated 27.4.2005 to which reference has been made in the report dated 21.5.2005 reference is made to allurements like money, caste, posts etc. and this has been termed as a disturbing feature. In both the reports, the opinion of the Governor is that if these attempts are allowed to continue, it would amount to tampering with constitutional provisions. Stand of the petitioners is that even if it is accepted to be correct, there is no constitutional provision empowering the Governor to make the same basis for not allowing a claim to be staked. This argument does not appear to be totally sound.
In Kihoto Hollohan v. Zachillhu and Ors. (1992 Supp (2) SCC 651) the menace of defection was noted with concern and the validity of the Tenth Schedule was upheld. While upholding the validity of the provision this Court in no uncertain terms deprecated the change of loyalties to parties and the craze for power. The Statement of Objects and Reasons appended to the Constitution (52nd Amendment) Act, 1985 refer to the evil of political defection which has been the matter of national concern. It was noted that if it is not combated it is likely to undermine the very foundation of our democracy and the principles which sustain it. It was noted as follows:
Again, in paragraph 41, the position was illuminatingly stated by Mr. Justice M.N. Venkatachaliah (as His Lordship then was). A right to elect, fundamental though it is to democracy is anomalously enough neither a fundamental right nor a common law right. It is pure and simple, a statutory right. So it is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are and therefore subject to statutory limitation.(See Jyoti Basu and Ors. v. Debi Ghosal and Ors. (1982 (1) SCC 691).
Democracy as noted above is the basic feature of the Constitution. In paragraphs 44 and 49 of Kihotos case (supra) it was noted as follows:
Therefore, the well recognised position in law is that purity in the electorate process and the conduct of the elected representative cannot be isolated from the constitutional requirements. "Democracy" and "Free and Fair Election" are inseparable twins. There is almost an inseverable umbilical cord joining them. In a democracy the little man-voter has overwhelming importance and cannot be hijacked from the course of free and fair elections. His freedom to elect a candidate of his choice is the foundation of a free and fair election. But after getting elected, if the elected candidate deviates from the course of fairness and purity and becomes a "Purchasable commodity" he not only betrays the electorate, but also pollutes the pure stream of democracy.
Can the governor whose constitutional duty is to safeguard the purity throw up his hands in abject helplessness in such situations?
As noted by this Court in Peoples Union for Civil Liberties (PUCL) and Anr. v. Union of India and Anr. (2003 (4) SCC 399) a well informed voter is the foundation of democratic structure. If that be so, can it be said that the Governor will remain mute and silent spectator when the elected representatives act in a manner contrary to the expectations of the voters who had voted for them. In paragraph 94 of it was noted as follows:
There is no place for hypocrisy in democracy. The Governors perception about his power may be erroneous, but it is certainly not extraneous or irrational. It has been rightly contended by learned counsel for the Union of India that apart of Governors 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. It would all depend upon the facts of each case. 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. It is also clear from a bare perusal of the documents which the petitioners have themselves enclosed to the writ petitions that authenticity of the documents is suspect.
Judicial response to human rights cannot be blunted by legal jugglery. (See: Bhupinder Sharma v. State of Himachal Pradesh 2003(8) SCC 551). Justice has no favourite other than the truth. Reasonableness, rationality, legality as well as philosophically provide colour to the meaning of fundamental rights. What is morally wrong cannot be politically right. The petitioners themselves have founded their claims on documents which do not have even shadow of genuineness so far as claim of majority is concerned. If the Governor felt that what was being done was morally wrong, it cannot be treated as politically right. This is his perception. It may be erroneous. It may not be specifically spelt out by the Constitution so far as his powers are concerned. But it ultimately is a perception. Though erroneous it cannot be termed as extraneous or irrational. Therefore however suspicious conduct of the Governor may be, and even if it is accepted that he had acted in hot haste it cannot be a ground to term his action as extraneous. A shadow of doubt about bona fides does not lead to an inevitable conclusion about mala fides.
We may hasten to add that similar perceptions by Governors may lead to chaotic conditions. There may be human errors. Therefore, the concerned Governor has to act carefully with care and caution and can draw his inference from tested and unimpeachable material; otherwise not.
In B.R. Kapur v. State of Tamil Nadu and Anr. (AIR 2001 SC 3435) this Court considered the role of the Governor in appointing the Chief Minister. It was held that the Governor can exercise his discretion and can decline to make the appointment when the person chosen by the majority party is not qualified to be member of Legislature. It was observed that in such a case the Constitution prevails over the will of the people. It was further observed that accepting submissions as were made in that case that the Governor exercising powers under Article 164(1) read with (4) was obliged to appoint as Chief Minister whosoever the majority party in the Legislature nominated, regardless of whether or not the person nominated was qualified to be a member of the legislature under Article 173 or was disqualified in that behalf under Article 191,and the only manner in which a Chief Minister who was not qualified or who was disqualified could be removed was by a vote of no-confidence in the legislature or by the electorate at the next elections and that the Governor was so obliged even when the person recommended was, to the Governors knowledge, a non-citizen, under age, a lunatic or an undischarged insolvent, and the only way in which a non-citizen, or under age or lunatic or insolvent Chief Minister could be removed was by a vote of no-confidence in the legislature or at the next election, is to invite disaster.
The situation cannot be different when the Chief Minister nominated was to head a Ministry which had its foundation on taint and the majority is cobbled by unethical means or corrupt means. As was observed in B.R. Kapurs case (supra) in such an event the constitutional purity has to be maintained and the Constitution has to prevail over the will of the people.
With these conclusions the writ applications could have been disposed of. But, taking note of some of the disturbing features highlighted by learned counsel about the suspicious and apparently indefensible roles of some Governors, it is necessary to deal with some of the relevant aspects.
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