3.4 Rameshwar Prasad & Ors Versus Union of India & Anr
In the Adoption of the Constitution the speech of Dr. B.R. Ambedkar on 25.11.1949 contained the following significant observations:
As noted above, the Governor occupies a very important and significant post in the democratic set up. When his credibility is at stake on the basis of allegations that he was not performing his constitutional obligations or functions in the correct way, it is a sad reflection 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 a symbolic figure oblivious of the duties and functions which he has is expected to carry out. It is interesting to note that allegations of favouratism and mala fides are hurled by other parties at Governors who belonged or belong to the ruling party at the Centre, and if the Governor at any point of time was a functionary of the ruling party. The position does not change when another party comes to rule at the Centre. It appears to be a matter of convenience for different political parties to allege mala fides. This unfortunate situation could have been and can be avoided by acting on the recommendations of the Sarkaria Commission and the Committee of the National Commission To Review The Working Of The Constitution in the matter of appointment of Governors. This does not appear to be convenient for the parties because they want to take advantage of the situation at a particular time and cry foul when the situation does not seem favourable to them. This is a sad reflection on the morals of the political parties who do not loose the opportunity of politicizing the post of the Governor. Sooner remedial measures are taken would be better for the democracy.
It is not deficiency in the Constitution which is responsible for the situation. It is clearly attributable to the people who elect the Governors on considerations other than merit. It is a disturbing feature, and if media reports are to be believed, Raj Bhawans are increasingly turning into extensions of party offices and the Governors are behaving like party functionaries of a particular party. This is not healthy for the democracy.
The key actor in the Centre-State relations is the Governor who is a bridge between the Union and the State. The founding fathers deliberately avoided election to the office of the Governor, as is in vogue in the U.S.A. to insulate the office from the linguistic chauvinism. The President has been empowered to appoint him as executive head of the State under Article 155 in Part VI, Chapter II. The executive power of the State is vested in him by Article 154 and exercised by him with the aid and advice of the Council of Ministers, the Chief Minister as its head. Under Article 159 the Governor shall discharge his functions in accordance with the oath to protect and defend the Constitution and the law. The office of the Governor, therefore, is intended to ensure protection and sustenance of the constitutional process of the working of the Constitution by the elected executive and given him an umpire’s role. When a Gandhian economist Member of the Constituent Assembly wrote a letter to Gandhiji of his plea for abolition of the office of the Governor, Gandhiji wrote to him for its retention, thus; the Governor had been given a very useful and necessary place in the scheme of the team. He would be an arbiter when there was a constitutional dead lock in the State and he would be able to play an impartial role. There would be administrative mechanism through which the constitutional crisis would be resolved in the State. The Governor thus should play an important role. In his dual undivided capacity as a head of the State he should impartially assist the President. As a constitutional head of the State Government in times of constitutional crisis he should bring about sobriety. The link is apparent when we find that Article 356 would be put into operation normally based on Governor’s report. He should truthfully and with high degree of constitutional responsibility, in terms of oath, inform the President that a situation has arisen in which the constitutional machinery in the State has failed and the Government of State cannot be carried on in accordance with the provisions of the Constitution, with necessary detailed factual foundation.
It is incumbent on each occupant of every high office to be constantly aware of the power in the High Office he holds that is meant to be exercised in public interest and only for public good, and that it is not meant to be used for any personal benefit or merely to elevate the personal status of the current holder of that office.
In Sarkaria Commission’s report it was lamented that some Governors were not displaying the qualities of impartiality and sagacity expected of them. The situation does not seem to have improved since then.
Reference to Report of the Committee of Governors (1971) would also be relevant. Some relevant extracts read as follows:
The observations of Hood Phillips in his latest book, Reform of the Constitution (1970), are relevant:
We may first examine the precise import of Article 356 which sanctions President’s rule in a State in the event of a break-down of the constitutional machinery. For our present purpose, it is enough to read the language of clause (1) of the Article:
‘The salient features of this provision’, in the words of Shri Alladi Krishnaswami Ayyar (speaking in the Constituent Assembly), "are that immediately the proclamation is made, the executive functions (of the State) are assumed by the President. What exactly does this mean? As members need not be repeatedly reminded on this point, ‘the President’ means the Central Cabinet responsible to the whole Parliament in which are represented representatives from the various units which form the component parts of the Federal Government. Therefore, the State machinery having failed, the Central Government assumes the responsibility instead of the State Cabinet. Then, so far as the executive government is concerned, it will be responsible to the Union Parliament for the proper working of the Government in the State. If responsible government in a State functioned properly, the Centre would not and could not interfere.
While the Proclamation is in operation, Parliament becomes the Legislature for the State, and the Council of Ministers at the Centre is answerable to Parliament in all matters concerning the administration of the State. Any law made pursuant to the powers delegated by Parliament by virtue of the Proclamation is required to be laid before Parliament and is liable to modification by Parliament. Thus, a state under President’s rule under Article 356 virtually comes under the executive responsibility and control of the Union Government. Responsible government in the State, during the period of the Proclamation, is replaced by responsible government at the Centre in respect of matters normally in the State’s sphere.
In discussing Article 356, attention is inevitably drawn to Section 93 of the Government of India Act, 1935. This section had attained a certain notoriety in view of the enormous power that it vested in the Governor and the possibility of its misuse, the Governor being the agent of the British Government. Many of the leading members of the Constituent Assembly had occupied important positions as Ministers in the Provinces following the inauguration of Provincial autonomy and had thus first-hand experience of the working of this particular section and the possible effect of having 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 the Constitution. Pandit H.N. Kunzru, who had serious apprehensions regarding this provision, suggested the limiting of the Governor’s functions to merely making a report to the President, it being left to the President to take such action as he considered appropriate on the report. Pandit Govind Ballabh Pant agreed with Pandit Kunzru in principle. The former referred in particular to the administrative difficulties that would be created by giving powers to the Governor to act on his own initiative over the head of his Ministers.
The whole question was examined at a meeting of the Drafting Committee with Premiers of Provinces on July 23, 1949. Pandit Pant again expressed the view that the Governor should not come into the picture as an authority exercising powers in his discretion. Armed with such powers, he would be an autocrat and that might lead to friction between him and his Ministers. Shri Alladi Krishnaswami Ayyar tried to allay apprehensions in the minds of the members of the Constituent Assembly about the similarity between Section 93 of the Government of India Act and the provision made in Article 356 of the Constitution. He said in the Constituent Assembly:
In winding up the debate on the emergency provisions, Dr. Abmedkar observed:
Dr. Ambedkar’s hope that this provision would be used sparingly, it must be admitted, has not been fulfilled. During the twenty-one years of the functioning of the Constitution, President’s rule has been imposed twenty-four times-the imposition of President’s rule in Kerala on November 1, 1956, was a continuation of President’s rule in Travancore-Cochin imposed earlier on March 23, 1956-the State of Kerala having been under President’s rule five times and for the longest period. Out of seventeen States (not taking into account PEPSU which later merged into Punjab, and excluding Himachal Pradesh which became a State only recently), eleven have had spells of President’s rule. The kind of political instability in some of the states that we have witnessed and the politics of defection which has so much tarnished the political life of this country were not perhaps envisaged in any measure at the time the Constituent Assembly considered the draft Constitution. No Governor would, it can be safely asserted, want the State to be brought under President’s rule except in circumstances which leave him with no alternative.
The article, as finally adopted, limits the functions of the Governor to making a report to the President that a situation has arisen in which there has been failure of the constitutional machinery. The decision whether a Proclamation may be issued under Article 356 rests with the President, that is to say, the Union Government. Significantly, the President can exercise the power "on receipt of a report from the Governor or otherwise" if he is satisfied that the situation requires the issue of such a Proclamation.
Some of the circumstances in which President’s rule may have to be imposed have already been discussed. What is important to remember is that recourse to Article 356 should be the last resort for a Governor to seek. A frequent criticism of the Governor in this connection is that he sometimes acts at the behest of the Union Government. This criticism emanates largely from a lack of appreciation of the situations which confront the Governors. Imposition of President’s rule normally results in the President vesting the Governor with executive functions which belong to his Council of Ministers This is a responsibility which no Governor would lightly accept. Under President’s rule he functions in relation to the administration of the State under the superintendence, direction and control of the President and concurrently with him by virtue of an order of the President.
As Head of the State, the Governor has a duty to see that the administration of the State does not break down due to political instability. He has equally to take care that responsible Government in the State is not lightly disturbed or superseded. In ensuring these, it is not the Governor 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 owe primary responsibility to the Legislature. The norms of parliamentary government are best maintained by them.
Before leaving this issue, we would like to state that it is not in the event of political instability alone that a Governor may report to the President under Article 356. Reference has been made elsewhere in this report to occasions where a Governor may have to report to the President about any serious internal disturbances in the State, or more especially of the existence or possibility of a danger of external aggression. In such situations also it may become necessary for the Governor to report to the President for action pursuant to Article 356.
It is difficult to lay down any precise guidelines in regard to the imposition of President’s rule. The Governor has to act on each occasion according to his best judgment, the guiding principle being, as already stated, that the constitutional machinery in the State should, as far as possible, be maintained.
Conventions of the Constitution, according to Dicey’s classic definition, consist of "customs, practices, maxims, or precepts which are not enforced or recognized by the Courts", but "make up a body not of laws, but of constitutional or political ethics". The broad basis of the operation of conventions has been set out in 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:
These influences secure that the conventions of Cabinet Government, which are based on binding precedent and convenient usage, are observed by successive generations of Ministers. The exact content of a convention may change or even be reversed, but each departure from the previous practice is defended by those responsible as not violating the older precedents. Objections are only silenced when time has proved that the departure from precedent has created a new convention, or has shown itself to be a bad precedent and, therefore, constituted in itself a breach of convention.
This exposition of the nature of conventions will show that, if they have to be observed and followed, the primary responsibility therefor will rest on those charged with the responsibility of government. In a parliamentary system, this responsibility unquestionably belongs to the elected representatives of the people who function in the Legislatures. They are mostly members of political parties who seek the suffrage of the electorate on the basis of promises made and programmes announced. The political parties, therefore, are concerned in the evolution of healthy conventions so that they "retain the confidence of the public, and, with it, office and power".
These words were uttered by Dr. Ambedkar in the Constituent Assembly in moving consideration of the draft Constitution. It has become the fashion, when situations arise which may not be the liking of a particular political party, to blame the Constitution. The Governors also inevitably get their share of the blame either because, it is alleged they take a distorted view of the Constitution, or, as is also alleged, because the Constitution permits them to resort to "unconstitutional" acts. The essential structure of our Constitution relating to the functioning of the different branches of government is sound and capable of meeting all requirements. The conventions, or the guidelines, that we are called upon to consider should be viewed in this background.
Conventions evolve from experience and from trial and error. The working of our Constitution during the past twenty-one years has exposed not so much any weaknesses in our political life. Some of the weaknesses will be evident from the discussions in the earlier part of this Report. The Governors, under our Constitution, do not govern; government is the primary concern of the Council of Ministers which is responsible to the Legislature and the people. Therefore, for a purposeful evolution of conventions, the willing co-operation of the political parties and their readiness to adhere to such conventions are of paramount importance. In recent years, it has been a regrettable feature of political life in some of the States, with the growing number of splinter parties, some of them formed on the basis of individual or group alignments and not of well-defined programmes or policies, that governments are formed with a leader-a Chief Minister -who comes to that office not as of a right, with the previous acquiescence of followers and the deference of his colleagues, but as being the most "acceptable" candidate for the time. Much of his time and efforts are, therefore, inevitably spent in finding expedients to keep himself in power and the Cabinet alive".
In Special Reference NO.1 of 2002 case (supra) in paragraphs 55 and 56 it was observed as follows:
Article 172 provides for duration of the State Legislatures. The Superintendence, direction and control of the elections to Parliament and to the Legislatures of every State vest in the Election Commission under Article 324. Article 327 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 other matters necessary for securing the due constitution of the House of the Legislature. Conjoint reading of Article 327 of the Constitution and Section 73 of the R.P. Act makes the position clear that the Legislative Assembly had been constituted. No provision of the Constitution stipulates that the dissolution can only be after the 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 its dissolution.
Coming to the plea that there was no Legislative Assembly in existence as contended by Mr. Viplav Sharma, appearing in person the same clearly overlooks Section 73 of the R.P. Act. There is no provision providing differently in the Constitution. There is no challenge to the validity of the Section 73 of the R.P. Act, which is in no way repugnant by any provision to the Constitution. That being so, by operation of Section 73 of the R.P. Act the Assembly was duly constituted. The stand that the Governor was obliged to convene the Session for administering oath to the members and for formation of a Cabinet thereafter has no relevance and is also not backed by any constitutional mandate. There was no compulsion on the Governor to convene a session or to install a Cabinet unless the pre-requisites in that regard were fulfilled. The reports of the Governor clearly indicated that it was not possible to convene a session for choosing a Chief Minister or for formation of a Cabinet.
Even if hypothetically it is held that the dissolution notifications are unsustainable, yet restoration of status quo ante is not in the present case the proper relief. As noted supra, no stake was claimed by any person before the Governor. The documents relied upon to show that a majority existed lack authenticity and some of them even have the stamp of manipulation. The elections as scheduled had reached on an advanced stage. Undisputedly, the Election Commission had made elaborate arrangements. It would be inequitable to put the clock back and direct restoration of stats quo ante.
In Public Law 2005, some interesting write-ups are there which have relevance. They read as follows:
In Association AC, a case that lent itself to such a move, the Conseil d’Etat decided to innovate and to give administrative courts new powers. The new principles affirmed may be summed up as follows:
To Sum up:
So far as scope of Article 361 granting immunity to the Governor is concerned, I am in respectful agreement with the view expressed by Hon’ble the Chief Justice of India.
(1) 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, the power of judicial review can be exercised. Principles of judicial review which are applicable when an administrative action is challenged, cannot be applied stricto sensu.
(2) The impugned Notifications do not suffer from any constitutional invalidity. Had the Governor tried to stall staking of claim regarding majority that would have fallen foul of the Constitution and the notifications of dissolution would have been invalid. But, the Governor recommended dissolution on the ground that the majority projected had its foundation on unethical and corrupt means which had been and were being adopted to cobble a majority, and such action is not constitutional. It may be a wrong perception of the Governor. But it is his duty to prevent installation of a Cabinet where the majority has been cobbled in the aforesaid manner. It may in a given case be an erroneous approach, it may be a wrong perception, but it is certainly not irrational or irrelevant or extraneous.
(3) A Public Interest Litigation cannot be entertained where the stand taken was contrary to the stand taken by those who are affected by any action. In such a case the Public Interest Litigation is not to be entertained. That is the case here.
(4) Hypothetically even if it is said that the dissolution notifications were unconstitutional, the natural consequence is not restoration of status quo ante. The Court declaring the dissolution notifications to be invalid can assess the ground realities and the relevant factors and can mould the reliefs as the circumstances warrant. In the present case restoration of the status quo ante would not have been the proper relief even if the notifications were declared invalid.
(5) The Assembly is constituted in terms of Section 73 of the R.P. Act on the conditions indicated therein being fulfilled and there is no provision in the Constitution which is in any manner contrary or repugnant to the said provision. On the contrary, Article 327 of the Constitution is the source of power for enactment of Section 73.
(6) In terms of Article 361 Governor enjoys complete immunity. Governor is not answerable to any Court for exercise and performance of powers and duties of his office or for any act done or purporting to be done by him in the exercise of those powers and duties. However, such immunity does not take away power of the Court to examine validity of the action including on the ground of mala fides.
(7) It has become imperative and necessary that right persons are chosen as Governors if the sanctity of the post as the Head of the Executive of a State is to be maintained.
The writ applications are accordingly dismissed but without any order as to costs.
January 24, 2006
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