RAMESHWAR PRASAD v.

UNION OF INDIA

BACKGROUND OF THE CASE

In the instant case, notification dissolving the state assembly has been challenged.The dissolution
has been done before even the first meeting of the Legislative Assembly, its dissolution has been
ordered on the ground that attempts are being made to cobble a majority by illegal means and lay
claim to form the Government in the State and if these attempts continue, it would amount to tam-
pering with constitutional provisions. The Governor of Bihar in his report stated that, No political
party or coalition of parties or groups is able to substantiate a claim of majority in the Legislative
Assembly, and having explored the alternatives with all the political parties and groups and Inde-
pendents MLAs, a situation has emerged in which no political party or groups appears to be able to
form a Government commanding a majority in the House. Thus, it is a case of complete inability of
any political party to form a stable Government commanding the confidence of the majority mem-
bers. This is a case of failure of constitutional machinery.

ISSUES OF CASE
(1) Is it permissible to dissolve the Legislative Assembly under Article 174(2)(b) of the Constitution
without its first meeting taking place?
(2) Whether the proclamation dated 23rd May, 2005 dissolving the Assembly of Bihar is illegal and
unconstitutional?
(3) If the answer to the aforesaid question is in affirmative, is it necessary to direct status quo ante
as on 7th March, 2005 or 4th March, 2005?
(4) What is the scope of Article 361 granting immunity to the Governor?

BASIS ON WHICH GOVERNOR IMPOSED THE EMERGENCY U/A 356

The recommendation of the Sarkaria Commission do merit serious consideration at the hands of all
concerned. Sarkaria Commission in its report has said that Governor while going through the
process of selection should select a leader who in his judgment is most likely to command a major-
ity in the Assembly. The Book "Constitution of India"1 while dealing with Article 75 and Article
164 of the Constitution of India has dealt with this subject wherein it has quoted the manner of se-
lection by the Governor in the following words :

1 Shukla V.N., Constitution of India (10th edition 2001)

"In normal circumstances the Governor need have no doubt as to who is the proper person to be ap-
pointed; it is leader of majority party in the Legislative Assembly, but circumstances can arise when
it may be doubtful who that leader is and the Governor may have to exercise his personal judgment
in selecting the C.M. Under the Constitutional scheme which envisages that a person who enjoys
the confidence of the Legislature should alone be appointed as C.M."
In Bommai’s2 . has stated with regard to the position where, I quote :
"After the General Elections held, no political party or coalition of parties or group is able to secure
absolute majority in the Legislative Assembly and despite the Governor's exploring the alternatives,
the situation has arisen in which no political party is able to form stable Government, it would be
case of completely demonstrable inability of any political party to form a stable Government com-
manding the confidence of the majority members of the Legislature. It would be a case of failure of
constitutional machinery."

PETITIONER ARGUMENTS
1) That condition precedent for dissolving the assembly is that there must be satisfaction of the
President that a situation has arisen in which the Government of a State cannot be carried on in ac-
cordance with the provisions of the Constitution.
2) That this satisfaction has to be based on cogent material. Power of dissolution cannot be used to
prevent the staking of claim for the formation of a Government by a political party with support of
others. That the assembly was placed under suspended animation with the intention of providing
time and space to political parties to explore the possibility of providing a majority Government in
the State.
3) That there was no material available or in existence to indicate that any political defection was
being attempted through the use of money or muscle power. In the absence of any such material the
exercise of power under Article 356 was a clear fraud on the exercise of power.
4) That allegations in the Governor's report of horse trading was factually incorrect and fictional. It
was incumbent upon the Governor to verify the facts personally from the MLAs. That under the
scheme of the Constitution the decision with regard to mergers and disqualifications on the ground
of defection or horse trading is vested in the Speaker.
5) That The Governor failed to fulfill these constitutional obligations. Neither the executive Gov-
ernment nor the Legislative Assembly has been constituted by the Governor.
6)That it is not legally permissible to order the dissolution of Assembly before its meeting even
once and the MLAs being administered the oath as contemplated by the Constitution.

2 S.R. Bommai v. Union of India [1994] 3 SCC 1: AIR [1994] SC 1918

7)That under Indian Constitution, the Legislative Assembly is duly constituted only upon the House
being summoned and from the date appointed for its first meeting.
8)The statutory deemed constitution of the Assembly under Section 73 of the R.P. Act, 1951, ac-
cording to the petitioners, has no relevance for determining due constitution of Legislative Assem-
bly for the purpose of Constitution of India.

RESPONDENTS ARGUMENTS

1) It is submitted by learned Attorney General and Additional Solicitor General that in view of Arti-
cle 361(1), this Court may not issue notice to the Governor.
2)That where action under challenge is taken by statutory or administrative authorities, is not appli-
cable when testing the validity of the constitutional action like the present one.
3) There is no quarrel about the scope of judicial review of this Court in matters relating to Procla-
mation 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.

IMMUNITY TO GOVERNOR
It is also necessary to note that the immunity granted to the Governor does not affect the power of
the Court to judicially scrutinise the attack made to the proclamation issued under Article 356(1) of
the Constitution of India on the ground of mala fides or it being ultra vires. It would be for the Gov-
ernment to satisfy the court and adequately meet such ground of challenge. A mala fide act is
wholly outside the scope of the power and has no existence in the eyes of law. Even, the expression
"purporting to be done" in Article 361 does not cover acts which are mala fide or ultra vires and,
thus, the Government supporting the proclamation under Article 356(1) shall have to meet the chal-
lenge. The immunity granted under Article 361 does not mean that in the absence of Governor, the
ground of mala fides or proclamation being ultra vires would not be examined by the Court
CONSTITUENT ASSEMBLY DEBATES &
SARKARIA COMMITTEE REPORT (ROLE OF GOVERNOR)

Shri Jawaharlal Nehru had also observed in the debate on the appointment of Governor in the Con-
stituent Assembly that a Governor "must be acceptable to the Province, he must be acceptable to the
Government of the Province and yet he must not be known to be a part of the party machine of that
province." He was of the opinion that a nominated Governor shall have "far fewer common links
with the Centre."
Article 163 of the Constitution3 generated considerable discussion, and Dr. Ambedkar is stated to
have "maintained that vesting the Governor with certain discretionary powers was not contrary to
responsible Government."4
The expression "required" found in Article 163(1) is stated to signify that the Governor can exercise
his discretionary powers only if there is a compelling necessity to do so. It has been reasoned that
the expression "by or under the Constitution" means that the necessity to exercise such powers may
arise from any express provision of the Constitution or by necessary implication. The Sarkaria
Commission Report further adds that such necessity may arise even from rules and orders made
"under" the Constitution. Observing that the Governor needs to discharge "dual responsibility" to
the Union and the State the Sarkaria Commission has sought to evaluate the role of the Governors
in certain controversial circumstances, such as, in appointing the Chief Minister, in ascertaining the
majority, in dismissal of the Chief Minister, in dissolving the Legislative Assembly, in recommend-
ing President's Rule and in reserving Bills for President's consideration.

The Constituent Assembly, pursuant to the Report of the Provincial Constitution Committee, had
decided to insert an Instrument of Instructions to the Governors in the form of a Schedule to the
Constitution. Such an instrument was found to be necessary, "because of the mode of appointment
and the injunction to act upon the advice of Ministers were not contained in the Constitution itself." 5

The Constituent Assembly discussed at length the various provisions relating to the Governor. Two
important issues were considered. The first issue was whether there should be an elected Governor.
It was recognized that the co-existence of an elected Governor and a Chief Minister responsible to
the Legislature might lead to friction and consequent weakness in administration. The concept of an
elected Governor was therefore given up in favour of a nominated Governor. Explaining in the Con-
stituent Assembly why a Governor should be nominated by the President and not elected Jawaharlal
Nehru observed that "an elected Governor would to some extent encourage that separatist provincial
tendency more than otherwise. There will be far fewer common links with the Centre."

The second issue related to the extent of discretionary powers to be allowed to the Governor. Fol-
lowing the decision to have a nominated Governor, references in the various Articles of the Draft
Constitution relating to the exercise of specified functioned by the Governor 'in his discretion' were
deleted. The only explicit provisions retained were those relating to Tribal Areas in Assam where
3 Indian Constitution Bill, Draft Article 143
4 Constituent Assembly Debates ,(Vol VIII, 500-502)
5 Rao Shiva, The framing of India India's Constitution Select Documents ,vol IV , (Universal Law Publishing
Co,2004) 86
the administration was made a Central responsibility. The Governor as agent of the Central Govern-
ment during the transitional period could act independently of his Council of Ministers. Nonethe-
less, no change was made in Draft Article 143, which referred to the discretionary powers of the
Governor. This provision in Draft Article 143 (now Article 163) generated considerable discussion.
Replying to it, Dr. Ambedkar maintained that vesting the Governor with certain discretionary pow-
ers was not contrary to responsible Government.

SCOPE OF JUDICIAL REVIEW

Scope of Judicial Review under Article 356 State of Rajasthan v. Union of India 6, there was a
broad consensus among five of the seven Judges that the Court can interfere if it is satisfied that the
power has been exercised mala fide or on "wholly extraneous or irrelevant grounds". Some learned
Judges have stated the rule in narrow terms and some others in a little less narrow terms but not a
single learned Judge held that the proclamation is immune from judicial scrutiny. It must be remem-
bered that at that time clause (5) was there barring judicial review of the proclamation and yet they
said that Court can interfere on the ground of mala fides. Surely, the deletion of clause (5) has not
restricted the scope of judicial review but has widened it. Justice Reddy in Bommai's case has no-
ticed, in so far as it was relevant, the ratio underlying each of the six opinions delivered by Seven
Judge Bench in the case of State of Rajasthan (supra) as under :
"Beg, C. J. The opinion of Beg, C. J.
contains several strands of thought. They may be stated briefly thus:
(i) The language of Article 356 and the practice since 1950 shows that the Central Government can
enforce its will against the State Governments with respect to the question how the State Govern-
ments should function and who should hold reins of power.
(ii) By virtue of Article 365(5) and Article 74(2), it is impossible for the Court to question the satis-
faction of the President. It has to decide the case on the basis of only those facts as may have been
admitted by or placed by the President before the Court.
(iii) The language of Article 356(1) is very wide. It is desirable that conventions are developed
channelising the exercise of this power. The Court can interfere only when the power is used in a
grossly perverse and unreasonable manner so as to constitute patent misuse of the provisions or to
an abuse of power. The same idea is expressed at another place saying that if "a constitutionally or
legally prohibited or extraneous or collateral purpose is sought to be achieved" by the proclamation,
it would be liable to be struck down. The question whether the majority party in the Legislative As-

6 (1977) 3 SCC 592: AIR 1977 SC 1361

sembly of a State has become totally estranged from the electorate is not a matter for the Court to
determine.
(iv) The assessment of the Central Government that a fresh chance should be given to the electorate
in certain States as well as the question when to dissolve the Legislative Assemblies are not matters
alien to Article 356. It cannot be said that the reasons assigned by the Central Government for the
steps taken by them are not relevant to the purposes underlying Article 356.

DISSOLUTION OF ASSEMBLY

In K.K. Abu v. Union of India and Ors.7, a learned Single Judge of the High Court rightly came to
the conclusion that neither Article 172 nor Article 174 prescribe that dissolution of a State Legisla-
ture can only be after commencement of its term or after the date fixed for its first meeting. Once
the Assembly is constituted, it becomes capable of dissolution

No provision of the Constitution stipulates that the dissolution can only be after the first meeting of
the State Legislature. The Constitution does not postulate a live Assembly without the Executive
Government.

DOCTRINE OF PROPORTIONALITY
Lord Greene said in 1948 in the famous Wednesbury case8 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 Service9 (called the CCSU case)
summarised 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".

ORIGIN
In Om Kumar and Ors. v. Union of India10 , the Apex Court observed, inter alia, as follows: "The
principle originated in Prussia in the nineteenth century and has since been adopted in Germany,
7 AIR 1965 Ker 229
8 1948 (1) KB 223
9 (1983) 1 AC 768
10 2001 (2) SCC 386
France and other European countries. The European Court of Justice at Luxembourg and the Euro-
pean Court of Human Rights at Strasbourg have applied the principle while judging the validity of
administrative action. But even long before that, the Indian Supreme Court has applied the principle
of "proportionality" to legislative action since 1950.

DOCTRINE OF PROPORTIONALITY IN ENGLAND

The development of the principle of "strict scrutiny" or "proportionality" in administrative law in
England is, however, recent.
Administrative action was traditionally being tested on Wednesbury grounds. But in the last few
years, administrative action affecting the freedom of expression or liberty has been declared invalid
in several cases applying the principle of "strict scrutiny". In the case of these freedoms, Wednes-
bury principles are no longer applied. The courts in England could not expressly apply proportional-
ity in the absence of the convention but tried to safeguard the rights zealously by treating the said
rights as basic to the common law and the courts then applied the strict scrutiny test. In the Spy-
catcher case Attorney General v. Guardian Newspapers Ltd.11, Lord Goff stated that there was
no inconsistency between the convention and the common law. In Derbyshire County Council v.
Times Newspapers Ltd.12 Lord Keith treated freedom of expression as part of common law. Re-
cently, in R. v. Secy. Of State for Home Deptt.,13 the right of a prisoner to grant an interview to a
journalist was upheld treating the right as part of the common law. Lord Hobhouse held that the pol-
icy of the administrator was disproportionate. The need for a more intense and anxious judicial
scrutiny in administrative decisions which engage fundamental human rights was re- emphasised in
in R. v. Lord Saville14 In all these cases, the English Courts applied the "strict scrutiny" test rather
than describe the test as one of "proportionality". But, in any event, in respect of these rights
"Wednesbury" rule has ceased to apply.

CURRENT POSITION
In Union of India and Anr. vs. G. Ganayutham15, the Apex Court observed as follows:
”31. The current position of proportionality in administrative law in England and India can be sum-
marized as follows:
(1) To judge the validity of any administrative order or statutory discretion, normally the Wednes-
bury test is to be applied to find out if the decision was illegal or suffered from procedural impropri-
11 (1990) 1 AC 109 [283] [284]
12 (1993) AC 534
13 (1999) 3 All ER 400 (HL)
14 (1999) 4 All ER 860 (CA) [870] [872]
15 1997 [7] SCC 463
eties or was one which no sensible decision-maker could, on the material before him and within the
framework of the law, have arrived at. The court would consider whether relevant matters had not
been taken into account or whether irrelevant matters had been taken into account or whether the
action was not bona fide. The court would also consider whether the decision was absurd or per-
verse. The court would not however go into the correctness of the choice made by the administrator
amongst the various alternatives open to him. Nor could the court substitute its decision to that of
the administrator. This is the Wednesbury test16.
(2) The court would not interfere with the administrator's decision unless it was illegal or suffered
from procedural impropriety or was irrational in the sense that it was in outrageous defiance of
logic or moral standards. The possibility of other tests, including proportionality being brought into
English administrative law in future is not ruled out. These are the CCSU 17 principles.
(3)(a) As per Bugdaycay18, Brind19 and Smith 20 as long as the Convention is not incorporated into
English law, the English courts merely exercise a secondary judgment to find out if the decision-
maker could have, on the material before him, arrived at the primary judgment in the manner he has
done.
(3)(b) If the Convention is incorporated in England making available the principle of proportional-
ity, then the English courts will render primary judgment on the validity of the administrative action
and find out if the restriction is disproportionate or excessive or is not based upon a fair balancing
of the fundamental freedom and the need for the restriction thereupon.
(4)(a) The position in our country, in administrative law, where no fundamental freedoms as afore-
said are involved, is that the courts/tribunals will only play a secondary role while the primary judg-
ment as to reasonableness will remain with the executive or administrative authority. The secondary
judgment of the court is to be based on Wednesbury and CCSU principles as stated by Lord Greene
and Lord Diplock respectively to find if the executive or administrative authority has reasonably ar-
rived at his decision as the primary authority".

WEDNESBURY PRINICIPLE
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

16 1948 1 KB 223
17 1985 AC 374
18 1987 AC 514
19 1991 (1) AC 696
20 1996 (1) All ER 257
sensible person could ever have reached to it. As observed by Lord Diplock in CCSU's case21 a de-
cision will be said to suffer from Wednesbury unreasonableness if it is "so outrageous in its defi-
ance 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"

DEMOCRATIC THEORY
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 people's
freely choosing representatives, those representatives' debating and enacting policy and later stand-
ing 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 mak-
ers' credentials but also on substantive criteria. Even with the enthusiastic urging of a massive ma-
jority 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……"22.

SECTION 73 OF THE RPA, 1951

Division Bench of Allahabad High Court in the case of Udai Narain Sinha v. State of U.P. & Ors.
23
it was held that in the absence of the appointment of a date for the first meeting of the Assembly
in accordance with Article 172(1), its life did not commence for the purposes of that article, even
though it might have been constituted by virtue of notification under Section 73 of the RP Act, 1951

21 1985 AC 374
22 Murphy F. Walter, Constitutions, Constitutionalism, and Democracy, (American Council of Learned Societies,
1988)
23 AIR 1987 All.203
so as to entitle the Governor to dissolve it by exercising power under Article 174(2). It was held by
the Division Bench that Section 73 of the RP Act, 1951 only created a fiction for limited purpose
for paving the way for the Governor to appoint a date for first meeting of either House or the As-
sembly so as to enable them to function after being summoned to meet under Article 174 of the
Constitution.
ARTICLE 356 OF THE INDIAN CONSTITUTION
Under Article 356 of the Constitution, the dissolution of an Assembly can be ordered on the satis-
faction that a situation has arisen in which the Government of the State cannot be carried on in ac-
cordance with the Constitution. Such a satisfaction can be reached by the President on receipt of re-
port from the Governor of a State or otherwise. It is permissible to arrive at the satisfaction on re-
ceipt of the report from Governor and on other material. Such a satisfaction can also be reached
only on the report of the Governor. It is also permissible to reach such a conclusion even without
the report of the Governor in case the President has other relevant material for reaching the satisfac-
tion contemplated by Article 356. The expression 'or otherwise' is of wide amplitude.

POSITION OF GOVERNOR
In Hargovind Pant v. Dr. Raghukul Tilak & Ors.24, observing on the issue as to whether a Gov-
ernor could be considered as an "employee" of the Government of India, this Court said "it is no
doubt true that the Governor is appointed by the President which means in effect and substance the
Government of India, but that is only a mode of appointment and it does not make the Governor an
employee or servant of the Government of India

JUDGEMENT
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 immunity under Section 361 does not take away power of the Court to examine validity of
the action including on the ground of mala fides.
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.

OVERVIEW OF JUDGEMENT
24 (1979) 3 SCC 458
Though the dissolution was invalidated by the court but the assembly wasn't revived as the process
of fresh elections had started and it would be wholly irrational for a constitutional authority to deny
claim made by a majority to form government only on the ground that the majority has been ob-
tained by offering allurements and the bribes, which deals with have taken place in the cover of the
darkness, but his undisclosed sources have confirmed such deals.

SUGGESTIONS
To prevent the flagrant misuse of power that has been given to the executives under
Article 356 of the constitution. However there cannot be any straightjacketed for-
mula, but a separate provision laying down the some specific criteria on which the
discretion is to be exercised by the executive.

REFERENCES
• Shukla V.N., Constitution of India (10th edition)
• Constituent Assembly Debates (Volume VIII, Revised Edition )
• Rao Shiva, The framing of India India's Constitution Select Documents
• S.R. Bommai v. Union of India(1994) 3 SCC 1
• Hargovind Pant v. Dr. Raghukul Tilak & Ors (1979) 3 SCC 458
• Udai Narain Sinha v. State of U.P. & Ors. AIR 1987 All.203
• Murphy F. Walter, Constitutions, Constitutionalism, and Democracy
• R. v. Lord Saville (1999) 4 All ER 860 (CA) [870] [872]
• State of Rajasthan v. Union of India (1977) 3 SCC 592
• K.K. Abu v. Union of India and Ors AIR 1965 Ker 229
• Council for Civil Services Union v. Minister of Civil Service (1983) 1 AC 768
• Om Kumar and Ors. v. Union of India 2001 (2) SCC 386
• Spycatcher case Attorney General v. Guardian Newspapers Ltd (1990) 1 AC 109 [283] [284]
• Derbyshire County Council v. Times Newspapers Ltd (1993) AC 534
• R. v. Secy. Of State for Home Deptt., (1999) 3 All ER 400 (HL)
• Anr. vs. G. Ganayutham 1997 [7] SCC 463

BRIEF ABOUT AUTHOR

Harsh vasu gupta is currently in 2nd year pursuing B.A.LLB from University Institute of Legal
Studies. He is associated with his mooting society and legal aid society of his college. His areas of
interest are constitution, criminal and international law.