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TMI Blog1977 (6) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... Government of India, and Shri Zail Singh, Chief Minister of Punjab. The six suits and the, three Writ Petitions raise certain common questions of law and fact. They were, therefore, permitted to be argued together. We have already dismissed the suits and petitions after hearing them at length and now propose to state our reasons for doing so as stated in our order of 29th April 1977. Before dealing with, the. questions of fact and law I will indicate the nature of the reliefs, sought by each plaintiff under Article 131 and the grievance of each petitioner under Article 32 of the Constitution. The State of Rajasthan asked for a declaration that what it described as a "directive" contained in the letter dated 18th April, 1977, issued by Shri Charan Singh, the Union Home Minister, to the Chief Minister of the State' is "unconstitutional, illegal and ultra vires the Constitution and also a declaration that the plaintiff State is "not constitutionally or legally obliged to comply with or to give effect to the directive contained in the said letter. The State of Madhya Pradesh seeks the declaration that "the direction /order dated 18th April, 1977, of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitutional basis for dissolution of the Legislative Assembly of the plaintiff"; sixthly, that "reasons and circumstances stated in the letter addressed by the defendant to the plaintiff's Chief Minister and the,resultant threatened action under Article 356 of the Constitution are Wholly unconstitutional and mala fide and that a proclamation issued on. the facts and circumstances of the present case, would be utterly void"; seventhly that the "condition precedent and prescribed in Article 356(1) of the Constitution, is non-existent"; eighthly, that "the Legislature of the plaintiff cannot be dissolved until and unless any proclamation issued under Article 356(1) of the Constitution, is ratified by both Houses of Parliament as envisaged by Article 356 (3) of the Constitution The State of Orissa asked 'for a declaration that the "directive" contained in, the letter of 18th April, 1977, is "Unconstitutional, illegal and ultra vires the Constitution" and also that the plaintiff State is "not constitutionally or legally obliged to comply with or to give effect to the directive contained in the said letter". In additio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... another "permanent injunction restraining the defendants from taking recourse to Article 56 of the Constitution of India to dissolve the Legislative Assembly of the State of Orissa and, from taking any steps foe holding fresh elections to the State Assembly before March 1980". It may be mentioned that the elections to the Legislative Assembly of the State of Orissa took place in 1974. Each of the six States have also asked for interim injunctions so that the reliefs prayed foil in the suits may not become infructuous. The three petitioners in the Writ Petitions from Punjab are Members of the Legislative Assembly of the State of Punjab they assert that there is a threat to their, fundamental right to property in the shape of a right to receive their "salaries" as Member of the Legislative Assembly as a result of an impending dissolution. They submit that such an impending threat is enough, to enable them to invoke the jurisdiction of this Court under Article 32 of the constitution. It is obvious that the cause of action set up by the plaintiffs in each suit as well as by the petitioners under Article 32 of the Constitution is said to be furnished by the letter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Article 356 are, by their very nature, inherently non-jisticiable, and they have also been made nonjusticiable expressly by Article 356(5) of the Constitution so that, even if a State could, as such, be said to be legally and properly interested in the dispute between its Government and the Union Government about the desirability or need for any action by the Union Government under Article 356 of the Constitution, such, a dispute is outside the sphere of justiciable matters. If the final action or its grounds are non-justiciable, they could not be indirectly assailed, by challenging a process which may or may not actually produce the apprehended result or action. Thirdly, the letter of the Union Home Minister and the speech of the Union Law Minister do not indicate that anything falling outside the wide spectrum of Article 356 of the Constitutions being or will be taken into, account for taking action under Article 356. Hence, on matters stated there, no cause of action could be said to have arisen. Fourthly , mere intimation of some facts, fully within the purview of Article 356 of the Constitution, does not justify a prohibition to act in future when the situation may by ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do not any longer appreciate the propriety of continuance in power of a party which has been unmistakably rejected by the electorate. The climate of uncertainty, diffidence and disrespect has already given rise to serious threats, to law and order. 2. Eminent constitutional experts have long been of the opinion :that when a Legislature no longer reflects the wishes or views of the electorate and when there are reasons to believe 'that the Legislature and the electorate are at variance, dissolution, with a view to obtaining a fresh mandate from the electorate would be most appropriate. In the circumstances prevailing in your State, a fresh appeal to the political sovereign would not only be permissible, but also, necessary and ,obligatory, 3. I would, therefore, earnestly commend for your consideration that you may advise pour Governor to, dissolve the State Assembly in exercise of powers under Article 174(2)(b) and seek a fresh mandate from the electorate. This alone would, in our considered view, be consistent with constitutional precedents and democratic practices. 4. I would be grateful if you would kindly let me know by the 23rd what you propose to do. With regards, Y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment. He-replied that after all whenever the power was conferred by the Constitution. it was not done simply for the sake of conferring it. Obviously the Constitution contemplated the circumstances under which that power should be exercised. When those circumstances arose it was obligatory on the part of the Centre to exercise that power. Mr. Shanti Bhushan said he failed to see why the State Governments objected to going to the people to seek their mandate. "If we recognise the real sovereignty and supremacy of the people, there cannot be any possible objection". If someone claimed a divine right to rule whether the people wanted him or not, the in of course, there could be an objection to go to the people. PREMATURE END Explaining the Constitutional provisions relating to premature dissolution of State. Assemblies, Mr. Shanti Bhushan said two articles deal with this matter. Article 172 provided for the normal term which was earlier five years. But this had been extended to six years by the Constitution 42nd Amendment Act. Then Article 174 gave the Governor the power to dissolve the Legislative Assembly from time to time even during the normal period of five o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l. But there were, serious objections to that Act on the ground of ethics. When this amendment was rushed through Parliament, the five years term of the members was over. Their term had really expired and they did not have the continued mandate to enact such an important Act as the 42nd Amendment. The results of the Lok Sabha elections had also shown that the people had not really given them the mandate to enact the amendment. The other objection to the 42nd Amendment was that during the Emergency important leaders of the opposition parties were in jail. They could not express their views. Mr. Shanti Bhushan said that the 42nd Amendment had been enacted. As the Ministers had taken an oath to abide by the Constitution, they could not ignore the provisions of the 42nd Amendment so long as it remained. With the result it was not possible to, have elections, in those States where the State Governments had not lost the mandate of the people as was, reflected in the Lok Sabha elections". I have set out the two basic sources of complaint in the plaints and the petitions in order to consider whether, assuming such statements had 'been made by the two very responsible and impor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "detournement de Pouvoir" or a fraud upon the Constitution" or "malice in face' or "malice in law" (terms denoting different shades, of culpability and types of excess, of power), can arise on. the allegations of threatened action in the cases before us, which really amount only to this; The Union Government proposes to act under Article 356 of the Constitution to give electors in the various States a fresh chance of showing whether they continue to have confidence in the State Governments concerned and their policies despite the evidence to the contrary provided by the very recent Lok Sabha elections. One purpose of our Constitution and laws is certainly to give electors a periodic opportunity of choosing their State's legislature and, thereby, of determining the character of their State's Government also. It is the object of every democratic constitution to give such opportunities. Hence, a policy devised to serve that and could not be contrary to the basic structure or scheme of the Constitution. The question whether they should have that opportunity now or later may be a question of political expediency or executive policy. Can it be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of socioeconomic or political policy on complexion. Rights were asserted, on behalf of State legislators, as though they were legal rights to continue. as legislators until the expiry of the; constitutionally fixed spans of lives of their legislatures, barring cases of earlier dissolution. We are only concerned here with legal rights to dissolve and legal obstacles to such dissolution. It could be argued, with considerable force, on political and moral grounds, that electors should be given a fresh opportunity of pronouncing their verdict upon the policies and programmes of the Governments in the States when very convincing proof of wide ,divergence between their views and those of their Governments has become available. The Law Minister's view is that, where there is an overwhelmingly large electoral verdict in a State against the party to which its Government belongs, the situation not only justifies but makes resort to a fresh election or an appeal to the political sovereign imperative. This I think, is largely a political and moral issue. We are only concerned with its relationship to constitutional provisions. If its impact on the minds and feelings of electors or those o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... meant to enable us to sit as a Court of appeal on such a dispute between the Union Government and a State Government. And, our Constitution is not an inflexible instrument incapable of meeting the needs of such a situation. It may be that, under our Constitution, there is too great a scope for struggle merely for seats of power so that the grand purposes, enshrined in the Preamble to our Constitution and the correct governmental policies needed by the mass of our people to give reality to their dreams tend to be neglected in scrambles for political power. The issue before us, however, is not whether one party or another has failed in the very objectives and purposes for which people give unto themselves Constitutions such as ours. It is not for us to decide whether a party which has had its opportunities in the past has adequately met the objects of lodging political and legal power in its hands, or, whether those who now wield power at the Centre will do so more wisely, more honestly, or more, effectively, from the point of view of the interests of the masses of our people or public good. These are questions for the people themselves to answer. I think that the two Union Ministe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... policy must also be subordinated to constitutionally sanctioned purposes. It has its sphere and limitations. But, so long as it operates within that sphere, its operations are immune from judicial interference. This is also a part of the doctrine of a rough separation of powers under the Supremacy of the Constitution repeatedly.propounded by this Court and to which the Court unswervingly adheres even when its views differ or change on the correct interpretation of a particular constitutional provision. Assuming, therefore, that the letter of Shri Charan Singh in the context of the reported speech of the Law Minister formed the basis of an absolutely correct inference that action under Article 356 of, the Constitution would be taken by the President if the "advice" to the Chief Ministers of States contained in it is not accepted, the only question we need determine here is whether such a use of Article 356 of the Constitution was, in any way, unconstitutional or legally malafide. Another way of putting the same issue would be to ask whether the- purposes-stated by the Union Law Minister for the proposed action under Article 356 of the Constitution, assuming that such a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... letter of the Constitution tends to be relegated to the background. As I am, strictly speaking, only concerned with the law, as I find it in the Constitution, I will now proceed to interpret Article 356 as I find it. It reads : "356(1) If the President on receipt of a report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution, the President may by Proclamation- (a) assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or anybody or authority in the State other than the Legis lature of the State; (b) declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament; (c) make such incidental and consequential provisions as appear to the President to be necessary or desirable or giving effect to the objects of the Proclamation, including provision for suspending in whole or in part the operation of any provisions of this Constitution relating to any body or authority in the State : Prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f such Proclamation has been passed by the House of the People during the said period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution unless before the expiration of the said period of thirty days a resolution approving the continuance in force of the Proclamation has been also passed by the House of the People. (5) Notwithstanding anything in this Constitution, the satisfaction of the President mentioned in clause (1) shall be final and conclusive and shall not be questioned in any Court on any ground". It is true that article 356 occurs in part XVIII, dealing with "emergency provisions". But there are emergencies and emergencies. An emergency covered by article 352 can only be declared if the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance", Article 352(3) shows that what is known as "the present and imminent danger rule;' is applicable to such emergencies. It is not necessary that the grave e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te, or to what extent they cannot be observed are matters on which great differences of opinion are possible. If a broad purpose, such as that of a democratic Government, contained in the Preamble to our Constitution which was used by this Court, as was done in H. H. Kesavananda Bharti's case (supra), to infer what has been called the "basic structure", was meant also to be served by article 356, the scope of a "situation" in which proclamation under it can be made would seem wide. If the "basic structure" embraces basic democratic norms, the Constitutional Machinery of article 356 could conceivably be used by the Union Government for securing compliance with its view of such norms, when, in its opinion' the State Government has failed to observe them. The Union Government could say : "If, what we think is basic to, a democratic system is not done by you, we will conclude that the Government of your State cannot be carried on by you in accordance with the provisions of the Constitution. In that case we will take over your power, under article 356, and do that for the people of your State, which you should yourself have done." Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rinciple of Supremacy of the Constitution". (gee : Smt. Indira Nehru Gandhi v. Rai Narain) [1976] 2 S.C.R. 347 at 539. Even if we were to narrow down the concept of a basic structure to bring it in accordance with the concept found in the passage cited above, we could only strike down that executive policy which could fairly appear to be a clear deviation from what the basic structure requires. What would be, as the report of the speech of the Law Minister shows, fairly and reasonably viewed as a policy intended to strengthen or secure what is included in that basic structure could not be struck down or controlled at all by this Court as that would be an attempt to control executive policy within a sphere which is its own and where its supremacy must be and has been consistently upheld by this Court. The basic assumption underlying the views expressed above, is that each of the three organs of the State-The Executive, the Legislature and the Judiciary has its own orbit of authority and operation. It must be left free by the other organs. to operate within that sphere even if it commits errors there. It is not for one of the three organs of State either to correct or to point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which could affect only the moral rights of a State Government to continue in power. It was submitted that such an allegedly moral ground does not give the Union Government the legal right of action under article 256 of the Constitution. This, it is urged by Mr. Niren De, raises a constitutional issue of grave import. In some of the plaints, it is asserted that the moral plea sought to be given the colour of a legal right of action under article 356(1), on behalf of the people of the State, is an attempt to give a legal and constitutional garb to what is only a matter of political strategy. it is suggested, that the Union Government wants to take an undue advantage of the temporary gust of feeling which is believed to be sweeping the country as a result of the recent overwhelming victory of the Janata party and its political allies. In other words, both the question of the, extent of State autonomy in a federal structure, and an alleged misuse of constitutional power under article 356 of the Constitutional, on grounds said to be extraneous to it, have been raised on behalf of the States. These considerations are placed before us as aids to a proper construction of article 356(1) as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the desire to unite there could be no basis for federalism. But, if the desire to unite goes to the extent of forming an integrated whole in all substantial matters of Government, it produces a unitary rather than a federal constitution. Hence, he said, a federal State "Is a political contrivance intended to reconcile national unity with the maintenance of State rights." The degree to which the State rights are separately preserved and safeguarded gives the extent to which expression is given to one of the two contradictory urges so that there is a union without a unity in matters of government. In a sense, therefore, the Indian union is federal. But, the extent of federalism in it is largely watered down by the needs of progress and development of a country which has to be nationally integrated, politically and economically coordinated, and socially, intellectually and spiritually up-lifted. In such a system, the States cannot stand in the way of legitimate and comprehensively planned development of the country in the manner directed by the Central Government. The question of legitimacy of particular actions of the Central Government taking us in particular directions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes and placed at the disposal of the Central Government for the benefits of the States without even the "conditional grants" mentioned above. Hence, the manner in which State Governments function and deal with sums placed at their disposal by the Union Government or how they carry on the general administration may also be matters of considerable concern to the Union Government. Although Dr. Ambedkar thought that our Constitution is federal "inasmuch as it establishes what may be called a Dual Polity," he also said, in the Constituent Assembly, that our Constitution makers bad avoided the 'tight mould of federalism' in which the American Constitution was forged. Dr. Ambedkar, one of the principal architects of our Constitution, considered our Constitution to be both unitary as well as federal according to the requirements of time and circumstances'. If then our Constitution creates a Central Government which is amphibian", in the sense that it can move either on the federal or unitary plane, according to the needs of the situation and circumstances of a case, the question which we are driven back to consider is whether an assessment of the &qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers in the State, yet if a direction on that matter was properly given bythe Union Government to a State Government, there is a duty to carry it out. The time for the dissolution of a State Assembly is not covered by any specific provision of the Constitution or any law made on the subject. It is possible, however, for the Union Government, in exercise of its residuary executive power to consider it a fit subject for the issue of an appropriate direction when it considers that the political situation in the country is such that a fresh election is necessary in the interest of political stability or to establish the confidence of the people in the Govt. of a State. Undoubtedly, the subject is one on which appropriate and healthy conventions should develop so that the power under article 356(1) is neither exercised capriciously or arbitrarily nor fails to be exercised when a political situation really calls for it. If the views of the Union Government and the State Government differ on the subject, there is no reason why the Union Government should not aid the development of what it considers to be a healthy practice or convention by appropriate advice or direction, and, even to exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the advice of the Council of Ministers in the State, but the power to give such advice would automatically, be taken over by the Union Government for the purposes of dissolution of the State Assembly when the President assumes governmental powers by a proclamation under Article 356(1) of the Constitution. A dissolution by the President after the proclamation would be as good as a dissolution by the Governor of a State whose powers; are taken 'over. The position of the Governor as the Constitutional head of State as a unit of the Indian Union as well) as the formal channel of communication between the Union and the State Government, who is appointed under article 155 of the Constitution "by the President by Warrant under his hand and seal," was also touched in the course of arguments before us. On the one hand, as the Constitutional head of the State. he is ordinarily bound, by reason of a constitutional convention, by the advice of his Council of Ministers conveyed to him through the Chief Minister barring very exceptional circumstances among which' may be as pointed out by my learned brothers Bhagwati and Iyer, JJ., in Shamsher Singh's case, supra (p. 875) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, the party having a majority in the Assembly declines to form a Ministry and the Governor's attempts to find a coalition Ministry able to command a majority have failed. The Government of a State can also be regarded as not being carried on in accordance with the Constitution in cases where a Ministry, although properly constituted, acts contrary to the provisions of the Constitution or seeks to use its powers for purposes not authorized by the Constitution and the Governor's attempts to call the Ministry to order have failed. There could also be a failure of the constitutional machinery where the Ministry fails to carry out the directives issued to it validly by the Union Executive in the exercise of its powers under the Constitution. The very statement of some of the situations, which may bring about the use of the machinery provided by Article 356 shows the pivotal position which the Governor occupies in respect of these situations and the grave responsibility of his duties in the matter of reporting to the President under Articles 355: and 356 of the Constitution." The question was then mooted whether that was being done under article 356 of the Constitution did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erved "The prerogative, in short, of dissolution may constitutionally be so employed as to override the will of the representative body, or as it is popularly called. "The People's House of Parliament." This looks at first sight like saying that in certain cases the prerogative can be so used as to set at nought the will of the nation. But in reality it is far other wise. The discretionary power of the Crown occasionally may be, and according to constitutional precedents sometimes ought to be, used to strip an existing House of Commons of its authority. But the reason why the House can in accordance with the Constitution be deprived of power and of existence is that an occasion has arisen on which there is fair reason to suppose that the opinion of the House is not the opinion of the electors. A dissolution is in its essence an appeal from the legal to the political sovereign. A disso lution is allowable, or necessary, henever the wishes of the legislature are, or may fairly be presumed to be different from the wishes of the nation". It was pointed out by Diecy that the conventional use of the 'Prerogative" of the Crown to dissolve Parliament in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the last 130 years, one occasion only on which the King has dismissed the Ministry which still possessed the confidence of the House of Commons, (be continues :) Nothing can be more important, in the best interest of the Crown and the Country, than that a practice, so long established and so well justified by experience, should remain unimpaired. it frees the occupant of the throne from all personal responsibility for the acts of the executive and the legislature." The King expressed his gratitude to the Prime Minister for advising him against being "dragged into arena of party politics" whether the King "wished it or not" and acted on the Prime Minister's advice. In so far as growth of healthy conventions on such a subject are essential for the satisfactory operations of the machinery of democratic Government, this is a matter on which there could and should be a broad agreement or consensus between all parties interested in a satisfactory working of the democratic system in this country. It is not a matter on which the Court can give its opinion as to what the proper precedent or view to follow or course of action to pursue in a particular situatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nation so that the people in the States must be given an opportunity of showing whether the party in power in the States should or should not pursue policies which may be at variance with those of the Union Government. No fact is alleged showing any personal animus of any member of the Union Government against a State Government or a State Assembly. As the question of the proper time for a dissolution of the State Assembly is riot a matter extraneous to article 356(1) of the Constitution, the most ',.hat can be said is that questions raised do not go beyond sufficiency of grounds for resorting to article 356(1) of the Constitution. In our country, the power of dissolving the State Legislature has been exercised by the Union Government or by the Governor carrying out the directions of the Union Government after a proclamation under article 356(1) of the Constitution on more than two dozen occasions since the commencement of the Constitution. On several of these occasions, Presidential Proclamations under article 356(1) were assailed on various grounds before High Courts. On each occasion the attack failed. The cases cited before us were : K. K. Aboo v. Union of India & Ors. A.I. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prohibited means for a legally prohibited purpose. All that is suggested is that it is morally represensible to try to obtain an electoral victory in the States by dissolving the Assemblies so as to get rid of the Congress Governments in power there. On such a question of moral worth of either the ends or the means adopted, this Court cannot possibly sit in judgment. It is enough for our purposes that the plaints and the petitions do not disclose anything extraneous to the purpose of Article 356 (1) of the Constitution in the eyes of law. The sufficiency or adequacy of the grounds for action under article 356(1) of the Constitution is quite another matter. We do not think that we can go into that at all here. We find that in the plaint of the State of Himachal Pradesh the term "prerogative' has been used for the power of the State Governor to dissolve a Legislative Assembly, under Article 174, as though there was a violation of that "prerogative" by some paramount "prerogative" asserted by the Union Government. I do not think that the term "prerogative" can be correctly used, in its technical sense, with reference to any power exercised under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... down that the exercise of power to issue proclamations is not justiciable at all under any circumstances. This Court has not gone so far us that. If it is actually stated on behalf of the Union Government that an action was taken on a particular ground which really falls completely outside the purview of Article 356(1), the proclamation will be vitiated, not because the satisfaction was challenged or called in question on any ground but because it was admitted to be on matters outside Article 356(1). A challenge to the exercise of power to issue a proclamation under-, Article 352 of the Constitution would be even more difficult to entertain than to one under Article 356(1) as all these considerations would then arise which Courts take into account when the Executive, which alone can have all the necessary information and means to judge such an issue, tells Courts that the nation is faced with a grave national Emergency during which its very existence or stability may be at stake. That was the principle which governed the decision of the House of Lords in Liversidge v. Anderson [1942] AC 206. The principle is summed up in the salutary maxim : Salus Populi Supreme Lex. And, it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Singh's case (supra) was commented upon. It was observed (at p. 62) "The definition of emergency in Bhagat Singh's case does not purport to be exhaustive, but it does say that it connotes a state of matters calling for drastic action, and that it demands immediate action. Emergency does not mean emergency at large. Under s. 72 of the Government of India Act the emergency with which the Governor-General is dealing should be an existing emergency and should call for the particular kind of immediate action which be proposes to take. If the particular kind of emergency which a the Governor-General's opinion justifies a particular kind of action. is in itself wholly in prospect and not present, then although there may be present an emergency of some other kind, that would not justify, under S. 72, the ordinance being made. The existence of the emergency requiring immediate action is, under that section, the basis to a condition precedent which must be fulfilled by himself alone". This shows that the Court could inquire into the existence of a condition precedent to the use of emergency powers. A reference was also made to the following passage from Padfield & Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Ministers to the President cannot be inquired into. It is also clear beyond doubt that the amended article 74(1) of the Constitution, whose validity has not been challenged before us by any party, makes it obligatory on the President to act in accordance with the advice tendered by the Union Council of Ministers, to him through the Prime Minister. Nevertheless, if all the grounds of action taken under article 356(1) of the Constitution are disclosed to the public by the Union Government and its own disclosure of grounds reveals that a constitutionally or legally prohibited or extraneous or collateral purpose is sought to be achieved by a proclamation under article 356 of the Constitution, this Court will not shirk its duty to act in the manner in which the law may then oblige it to act. But, when we find that allegations made in the plaints and in the petitions before us relate, in substance, only to the sufficiency of the grounds of action under article 356(1) of the Constitution, and go no further, we cannot proceed further with the consideration of the plaints under Article 131 or the petitions under Article 32 of the Constitution. I would not like to leave certain other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. After making such an assumption, we were asked to import an implied prohibition against a dissolution of a State Legislative Assembly unless and until both Houses of Parliament bad discussed and approved of it. Article 357 is beaded "Exercise of legislative powers under Proclamation issued under Article 356". It lays down : "357(1). Whereby a Proclamation issued under clause (1) of article 356, it has been declared that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament, it shall be competent- (a) for Parliament to confer on the President the power of the Legislature of the State to make laws, and to authorise the President to delegate, subject to such conditions as he may think fit to impose, the power so conferred to any other authority to be specified by him in that behalf; (b) for Parliament, or for the President or other authority in whom such power to make laws is vested under sub-clause (a), to make laws conferring powers and imposing duties, or authorising the conferring of powers and the imposition of duties, upon the Union or officers and authorities thereof; (c)for the President to authorise wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contingency which could only arise when there is a prolonged presidential rule requiring the vesting of the functions of the State legislature in Parliament so that the President may be able to authorise expense in anticipation of Parliamentary sanction when the House of the People is not in session. When the Presidential proclamation does not contain any declaration under Art. 356(1) (b) of the Constitution. at all because the Presidential rule is of short duration and for a specific purpose, there is nothing which will disable the President from incurring expenditure under some law already made by the Legislature of the State. Incurring of expenditure in accordance with that law will be covered by the provisions of Art. 356(1) (a) of the Constitution. In other words, although Art: 356(1) (a) of the Constitution imposes a bar against the assumption, by the President of the, legislative 'powers of the State Legislature, which could only be transferred to Parliament, yet, its provisions, read with Art. 357 of the Constitution, ,do not operate as an absolute bar on any expenditure which could be legally incurred by the President or under the Presidential authority in accordance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the jurisdiction under Article 131 is a peculiar one meant for special kinds of disputes in which States, as such, ought to be interested and not merely Governments of States which may come and go. It was pointed out that, if the Union Government sought to deprive a State of any constitutional right it would be a different matter which could be taken up by a State Government on behalf of the State or its people. But, it was submitted, there is no right given to any State by the Constitution that its Government or Legislative Assembly would continue undissolved for any period. The dispute before us relates to the time at which and the authority by which the power of dissolution could be exercised in the situation which confronted the people in the nine States concerned. Reference was made to passages from State of Bihar v. Union of India & Anr. [1970] 2 S.C.R. 522 and the United Provinces v. The Governor-General in Council. [1939] F.C.R. 124 It seems to me that the decision of this Court in State of Bihar and Union of India and Anr. (supra) was largely based upon the assumption that Article 131 was meant to cover the same area as s. 204 of the Government of India Act. Moreover, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... full arguments on these preliminary objections, we did not even frame any issues which is done, under the provisions of Part III of the Rules of this Court, applicable to the exercise of the Original Jurisdiction of this Court, before we generally formally dismiss a suit. However, as the form in which we have already passed our orders, dismissing the suit and petitions, which was approved by us on 29th April, 1977, has substantially the same effect as the rejection of plaints for failure to disclose a triable cause of action, I concur in the orders already recorded. The parties will bear their own costs. CHANDRACHUD, J.-The Lok Sabha in which the Congress (R) had an overwhelming majority was dissolved on January 18, 1977 though under the Constitution (42nd Amendment) Act, it had another year to run out its extended term. Fresh elections were held to the Lok Sabha in March 1977 in which the ruling party lost its majority and went out of power which it had exercised since Independence. On March 24, 1977 the Janata party which secured the verdict of the electorate formed the new government at the Centre. This is an unprecedented event since, for the first time in the history of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the directive cannot be made a, basis for the issuance of a proclamation under art. 356 and that the said article cannot be invoked for the sole purpose of. dissolving the State Assemblies and holding fresh elections. The Writ Petitioners complain of the deprivation of their right of property :since, if the Legislative Assemblies are dissolved, they will be denied the right to receive salary as members of these Assemblies. An injunction is sought by the plaintiffs and the petitioners to restrain the Union of India, amongst others, from giving effect to the Home Minister's directive. The learned Additional Solicitor-General has raised a preliminary objection to the maintainability of the suits which may first be disposed of. Article 131(a) of the Constitution confers on the Supreme Court, subject to the other provisions of the Constitution, exclusive original jurisdiction in any dispute between the Government of India and one or more States, if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends. It is urged by the Additional Solicitor General that the dispute involved in the suits filed by the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Court are included in the 1st Schedule. And though there is a point that turns on the non-use of the expression "State Government" in art. 131, a point which I will consider presently, the fact remains that there is no occasion for applying the dictionary of the, General Clauses Act, section 3(60), to the interpretation of art. 13 1. The absence of the expression "State Government" and the use in its place of the expression "State" in art. 131, is said to furnish intrinsic evidence that for a suit to fall under that Article, the dispute must arise between the Government of India and a State, not between the Government of India and the Government of a State. The intrinsic evidence, it is argued, assumes greater credibility in the context that the article does employ the expression "Government of India" when what was meant was the government, as contradistinguisbed from the State. The presence of the particular expressions in art. 131 does not, in my opinion, support the inference, suggested on behalf of the Union of India. The use of the phrase "Government of India" in art. 131 (a) and (b) does not mean that one party to the disp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to me impossible to hold that the suits filed by the six States do not raise a dispute involving a question depending upon the existence or extent of a legal right. The plaintiffs, by their suits, directly and specifically question the constitutional right and authority of the Union Government to issue a directive to the State Governments commending that the Chief Ministers should tender a certain advice to their Governors. The plaintiffs also question the constitutional right of the Union Government to dissolve the State Assemblies on the grounds mentioned in the Home Minister's letter to the Chief Ministers. Thus a legal, not a political, issue arising out of the existence and extent of a legal right squarely arises and the suits cannot be thrown out as falling outside the purview of art. 131. The error of the preliminary objection lies in the assumption that it is necessary for attracting art. 131 that the plaintiff must assert a legal right in itself. That article contains no such restriction and it is sufficient in order that its provisions may apply that the plaintiff questions the legal or constitutional right asserted by the defendant, be it the Government of India or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are entitled, under art. 131, to assert that right either by contending in the absolute that the Centre has no power to dissolve the Legislative Assemblies or with the qualification that such a power cannot be exercised on the ground stated. It is true that the State, like the British Monarch, never dies. A Legislative Assembly may be dissolved, a Council of Ministers may go out of power, the President's rule may be introduced or imposed, or an emergency may be declared which can conceivably affect the States' power in matters legislative and executive. The State survives these upheavals. But it is constitutionally unsound to say that the State, as a political entity, has no legal interest in such cataclysmic events and no legal rights to assert in relation thereto. Were it so, which then are, the legal rights which the State, as distinguished from its Government, can agitate under Art. 131 ? Whatever be the nature of the claim, the argument can always be put forward that the Government, not the State, is interested in making that claim. Such a rigid interpretation of the scope of art. 131 will virtually reduce it to a dead-letter and destroy a precious safeguard against th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to them, is an infringement of art. 19(1) (f) of the Constitution which guarantees to all citizens the right to acquire, hold and dispose of property. The grievance made by the petitioners is contingent on the issuance of a proclamation dissolving the Assembly, which was not issued till the conclusion of arguments in these matters. Petitions complaining of the invasion of fundamental rights on hypothetical considerations are to entertained by this Court under art. 32. But the proclamation having since been issued, it would be hypertechnical to dismiss the writ petitions on the ground that there was no invasion of the petitioners' rights on the date when the petitions were filed in this Court. But the violation of the fundamental right to property complained of by the petitioners is indirect and remote, not direct or proximate. By the proclamation issued by the President under art. 356(1) of the Constitution, the Legislative Assemblies of nine States were dissolved and what is commonly known as the President's rule was imposed on those States. As a result, the writ petitioners ceased to, be members of the. Legislative Assembles. And as a result of their ceasing to be suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t not the Lok Sabha, approves of the proclamation within two months, it ceases to operate at the expiration of thirty days from the date on which the reconstituted Lok Sabha first sits. If before the expiry of the aforesaid period of thirty days, the Lok Sabha too approves it, its life will be extended for the period mentioned in clause (4). In other words', the prior approval of the Parliament or ally of its two Houses is not necessary to give validity to the proclamation. What would happen if the proclamation is disapproved by either or both Houses of Parliament within two months does not arise for decision in these proceedings, and though, it would appear as a matter of constitutionality that the proclamation can nevertheless remain in operation for a period of two months, it is reasonable to suppose that faced with such disapproval, a mature political judgment would lean in favour of the revocation of the proclamation. Such constitutional crises cannot furnish a safe clue to the interpretation of the Constitution. The contrast between the provisions of arts. 356 and 123 is illuminating. Article 123 which empowers the President to promulgate ordinances provides by clause ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to impair both the democratic foundation and the federal structure of our Constitution. The executive power of the Union then extends to giving of directions to any State as to the manner in which the executive power thereof is to be exercised; the power of Parliament to make laws extends to matters not enumerated in the Union List; the restraints of Art. 19 on the power of the State to make any law or to take any executive action are removed; and it is a well-known fact of recent history that the right to move tiny Court for the enforcement of fundamental rights can be suspended. If the power to apply such drastic remedies and to pass such draconian laws is a part of the democratic functioning of the Constitution, it is small wonder that not only does the Presidential proclamation under art. 356 not require the prior approval of the Parliament but it has full force and effect for a minimum period of two months, approvals or no approval. The reason of this rule is that there may be situations in which it is imperative to act expeditiously and recourse to the parliamentary process may, by reason of the delay involved, impair rather than strengthen the functioning of democracy. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assembly" from time to time. It seems to me incapable of any serious controversy that by reason of the provisions contained in art. 356(1) (a), the President can exercise the power vested in and exercisable by theGovernor under art. 174(2) (b) to dissolve the Legislative Assembly ofthe State. That leaves for consideration an argument advanced on behalf of the State Governments by Shri Niren De, Shri Gokhale and the learned Advocate of Himachal Pradesh. Shri Ram Panjwani, supporting Shri Gokhale, cited texts to support that argument. The core of the argument is that the Constitutional power to dissolve a legislative assembly is being utilised by the President for an indirect and oblique purpose, that there is no justification whatsoever for dissolving the nine State Assemblies and that the reasons contained in the Home Minister's letter to the Chief Ministers are wholly inadequate and irrelevant for taking the proposed action. Several other alternatives, it is urged, are open to the Government of India to adopt for meeting the situation complained of by the Home Minister but instead of doing so, they have decided to act drastically by threatening the dissolution of ,the ni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disclosed, given for the action proposed or taken, bear a reasonable nexus with the exercise of the particular power, the satisfaction of the President must be treated as conclusive. It will then not be open to judicial scrutiny. It, however, the reasons given are wholly extraneous to the formation of the satisfaction, the proclamation would be open to the attack that it is vitiated by legal mala fides. Such is not the case here. The Home Minister's letter shows that (i) an unprecedented political situation had arisen by the virtual rejection, in the recent Lok Sabha elections, of candidates belonging to the ruling party in various states; (ii) the resultant climate of uncertainty was such as to cause grave concern; (iii) the situation had created a sense of diffidence at different levels of administration; (iv) people at large did not appreciate the propriety of continuance in power of a party which was unmistakably rejected by the electorate; and (v) the climate of uncertainty, diffidence and disrespect had given rise to serious threats to law and order. It is on the basis of these reasons that the Home Minister concluded that a fresh appeal to the political sovereign was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the limited power of finding whether the reasons bear the necessary nexus or are wholly extraneous to the proposed action. The argument that "if the Minister need not give reasons, what does it matter if he gives bad ones" over- looks that bad reasons can destroy a possible nexus and may vitiate the order on the ground of mala fides. The argument, be it stated, was not made by the learned Additional Solicitor-General but it is interesting to know how it was repelled by Lord Denning M.R. in Padfield v. Minister of Agriculture, Fisheries and Food L.R. [1968] A.C. 997, 1006. It is also unnecessary to consider the implications of clause (5) of art. 356 which was introduced by the 38th-Amendment, making the satisfaction of the President final and conclusive, not open to be questioned in any court, on any ground. I have upheld the validity of the proclamation on the view that the reasons that are cited in its support bear a nexus with it. A large number of decisions were cited on either side on the question whether the Presidents satisfaction on such issues is justiciable. The learned Additional Solicitor- General relied upon the decisions of this Court, the Federal Court, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise on our part to reiterate them. Hence we proceed straight to consider the questions that arise for determination. These questions are of great constitutional significance. We will first examine the question of maintainability of the suits and the writ petitions. The writ petitions have been filed by three legislators from the State of Punjab seeking enforcement of the fundamental right to property guaranteed to them under Articles 19(1) (f) and 31. They complain that if the Legislative Assembly of the State of Punjab is dissolved by the President acting under Article 356, clause (1), as threatened by the Government of India, they would be deprived of their right to receive salary as members of the Legislative Assembly and the fight to receive salary being property, there would be unconstitutional infraction of their right to property under Articles 19 (1) (f) and 31 and hence they are entitled to move this Court under Article 32 for preventing such threatened infraction. This contention is clearly unsustainable. Of course, there can be no doubt, and indeed it must be said in fairness to the learned Additional Solicitor General who argued the case with great ability, that he did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Articles 19 (1) (f) and 31 and since no other fundamental right has been relied upon by the petitioners, it must be held that they are not entitled to maintain the writ petitions under Article 32. That takes us to the question of maintainability of the suits. There are six suits before us filed by the States of Rajasthan, Madhya Pradesh, Punjab, Bihar, Himachal Pradesh and Orissa. Each of these suits has been filed under Article 131 of the Constitution. This Article confers original jurisdiction on the Supreme Court, to the exclusion of all other courts, in respect of certain categories of suits and is in the following terms "131. Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute- (a) between the Government of India and or more States; or (b) between the Government of India and any State or States on one side and one or more other States on the other, or (c) between two or more States, if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends. Provided that the said jurisdiction shall not e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia or a State. It is not necessary that the right must be a constitutional right. All that is necessary is that it must be a legal right. It is true that in the State of Bihar v. Union of India & Anr. (supra) this Court, while discussing the scope of the dispute which may be determined by the Supreme Court under Article 131, happened to make an observation that "this much is certain that the legal right which is the subject of dispute must arise in the context of the Constitution and the federalism it sets up." But this observation, in so far as it suggests that the legal right must be one which arises under the Constitution, goes much further than what the language of Article 131 warrants. The Article speaks only of 'legal right' and does not qualify it by any other words. It may be noted that the provision in the corresponding section 204 of the Government of India Act, 1935 was significantly different. It contained a proviso that the dispute must inter alia concern the interpretation of the Government of India Act, 1935 "or of an Order in Council made thereunder or the extent of the legislative or executive authority vested in the Federation by virtue of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court can only give a declaratory judgment in a suit under Article 131. The Supreme Court would have power to give whatever reliefs are necessary for enforcement of the legal right claimed in the suit if such legal right is established. Turning now to the question whether the present suits seek to enforce any legal right of the State, it. is necessary to have a look at a few provisions of the Constitution. Save for the purpose of Part III 'State' is not defined in the Constitution, but by reason of Article 367, clause (1), it must be given the same meaning which it has under the General Clauses Act, 1897. Section 3, clause (56) of the General Clauses Act, 1897 defines 'State', inter alia, to mean "a State specified in the first Schedule to the Constitution". The States of Rajasthan, Madhya Pradesh, Punjab, Bihar, Himachal Pradesh and Orissa are States specified in the First Schedule and hence they are States within the meaning of the Constitution. Article 1, clause (1) declares that India, that is Bharat, shall be a Union of States and a State is consequently a constituent part of the Union of India. Part VI of the Constitution contains provisions regar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernor. Now, in order to determine whose legal right would be violated by the threatened action under Article 356, clause (1), we must proceed on the assumption that such action, when taken, would be constitutionally invalid, because if it were valid, there would be no cause for complaint. The question is : who would have cause of action if unconstitutional action were taken under Article 356, clause (1) ? If the executive power of the State vested in the Governor were taken away by the President or the legislative power of the State were exercisable not by the Legislature of the State or the Governor, but by or under the authority of Parliament or the Legislature of the State were &solved-all these being actions which can be taken under Article 356, clause (1)-who would be aggrieved ? Can the State say that its legal right is infringed ? We believe it can. Is it not the right of the State under the Constitution that its executive power shall be exercisable by the Governor except when any functions of the State Government or any powers of the Governor are assumed by the President by valid exercise of power under Article 356, clause (1) ? Is it not competent to the State to insist t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w, undoubtedly, a State has no legal right to insist that it shall have a particular Council of Ministers or particular persons as members of the Legislative Assembly. But a State has certainly a right under the Constitution to say that its executive and legislative powers shall be exercisable in the manner provided in the Constitution. If a legal right of a State can be said to have been infringed when its Legislative Assembly is abolished, it is difficult to see how any other conclusion can follow when the Legislative Assembly is not abolished but suspended or dissolved. In the former case, the State is unconstitutionally deprived of its legislative organ and its legislative power is given over to another authority : in the letter, the constitutionally appointed organ remains but it is made ineffectual for a period during which the legislative power is unconstitutionally vested in another authority. 'We fail to see any difference in the two situations so far as the State is concerned. The position is the same whether the constitutionally appointed organ for exercise of legislative power is amputated or paralysed. If one affects the legal right of the State, equally the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y are dealt with in Article 352, while the third type is dealt with in Article 360. Article 352, clause (1) provides that if the President is satisfied that a grave emergency exists whereby the security of India or of any part of its territory is threatened, whether by war or external aggression or internal disturbance, be may, by proclamation, make a declaration to that effect and clause (2) of that Article requires that such Proclamation shall be laid before each House of Parliament and "it shall cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament". The constitutional implications of a declaration of emergency under Article 352, clause (1) are vast and they are provided in Articles 250, 353, 354, 358 and 359. The emergency being an exceptional situation, arising out of a, national crisis, certain wide and sweeping power-, have been conferred on the Central Government and Parliament with a view to combat the situation and restore normal conditions. One such power is that given by Article 250 which provides that while a Proclamation of Emergency is in operation, Parli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me to himself any of the powers vested in or exercisable by a High Court, or to suspend in whole or in part the operation of any provision of this Constitution relating to High Courts. (2)Any such Proclamation may be revoked or varied by a subsequent Proclamation. (3)Every Proclamation under this article shall be laid before each House of Parliament and shall, except where it is a Proclamation revoking a previous Proclamation, cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament: (5)Notwithstanding anything in this Constitution, the satisfaction of the President mentioned in clause (1) shall be final and conclusive and shall not be questioned in any court on any ground." Since some reliance was placed on behalf of the petitioners in the writ petitions on Article 357, clause (1), we shall reproduce the relevant part of that clause in these terms : 357. (1) Where by a Proclamation issued under clause (1) of article 356, it has been declared that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament, it shall be competent- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich the government of the State cannot be carried on in accordance with the provisions of the Constitution. It is the duty of the Union under Article 355 to ensure that the government of the State is carried on in accordance with the provisions of the Constitution, and, therefore, when the President finds that a situation has arisen in which the Government of the State cannot be carried on, he can act under Art. 356 Cl. (1) indeed it would be his constitutional obligation to do so and put the federal mechanism out of action so far as that State is concerned. This is indeed a very drastic power which, if misused or abused, can destroy the Constitutional equilibrium between the Union and the States and its potential for harm was recognised even by the constitution-makers. Dr. Ambedkar pointed out in his speech while winding up the debate on this Article : "I may say that I do not altogether deny that there is a possibility of these articles being abused or employed for political purposes. But the objection applies to every part of the Constitutionwhich gives power to the Centre to over-ride the Provinces. In fact I share the sentiments expressed by my honourable friend Mr. Gup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Government to present a fait accompli to the two Houses of Parliament and neither House would be able to remedy the mischief done, even if it disapproved the Proclamation' Moreover, either House of Parliament may disapprove the Proclamation even before the expiry of two months and where that happens, the President would be bound to revoke the Proclamation immediately, because the proclamation cannot continue in defiance of, the will of either House of Parliament "without destroying the collective responsibility of the Council of Ministers to the House. ". It was also urged that during the period of two months, no power can be exercised in virtue of the Proclamation which would-bring about a final and irrevocable consequence, if the President has reason to believe that either House of Parliament may not approve it, or also the control of both Houses of Parliament would be completely set at naught and the executive would be able to take irreversible action like dissolution of the Legislative Assembly by passing both Houses of Parliament and ignoring their wishes altogether. That would be plainly contrary to the basic principles of democratic Government. Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed out above, the President means the Central Government, he can issue a proclamation even when either or both Houses of Parliament are in session. The President is given this power because immediate action may have to be taken when an exceptional situation has arisen on account of breakdown of constitutional machinery in the State. It is an emergency power and it has necessarily to be vested in the Central Government because quick and immediate action may be necessary to avert or combat constitutional break down in the State and moreover a constitutional obligation is laid on the Union to ensure, that the, Government of every State is carried on in accordance with the provisions of the Constitution. Any delay in taking action may in conceiveable cases frustrate the very object and purpose of conferment of this power on the President. Promptness may be the essence of effectiveness in such cases and public interest may suffer on account of tardiness in action. Hence the power conferred on the President under Article 356, clause (1) is not limited by the condition that it cannot be exercised when either or both 1-louses of Parliament are in session. Then again, clause (3) of Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional relevance to the life of the Proclamation and the proclamation would continue in force for a period of two months ,despite such disapproval. It would be clear from this discussion that when a proclamation is validly issued by the President under Article 356, clause (1), it has immediate force and effect, the moment it is issued and where, by the proclamation, the President has assumed to himself the powers of the Governor under sub-clause (a), he is entitled to exercise those powers as fully and effectually as the Governor, during the period of two months when the Proclamation is in operation. There is no limitation imposed by any Article of the Constitution that these powers ,of the Governor can be exercised by the President only when they have no irreversible consequence and where they have such consequence, they cannot be exercised until the proclamation is approved by both Houses of Parliament. Whilst the proclamation is in force during the period of two months, the, President can exercise all the powers of the Governor assumed by him and the Court cannot read any limitation which would have the effect of cutting down the width and amplitude of such powers by confining t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basic object and purpose of a proclamation.......... under Article 356, clause (1). It is, therefore, not possible to accede to the argument of the petitioners, in the writ petitions that during the period of two months before approval of the proclamation by the two Houses of Parliament, no irreversible action, such as dissolution of the Legislative assembly of the State, can be taken by the President. The power to dissolve the Legislative Assembly of the State cannot also be denied to the President on the ground that the proclamation may not be approved by one or the other House of Parliament. In the first place, the existence of a constitutional power or the validity of its exercise cannot be determined by reference to a possible contingency. The Court cannot enter the realm of conjecture and surmise and speculate as to what would be the position at the expiration of two months whether the proclamation will be approved by both Houses of Parliament or not. Secondly, it is entirely immaterial whether or not the proclamation is approved by both Houses of Parliament, because even if it is not so approved, it would continue to be in full force, and effect for a period of two months, u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... end on the wisdom and honesty, integrity and character of those who are in charge of administration and the existence of enlightened and alert public opinion. Moreover, it is apparent that a piquant situation of considerable complexity and extra-ordinary consequences may arise if either House of Parliament disapproves of the proclamation and, therefore, political and pragmatic wisdom of the highest order and circumspection of utmost anxiety would necessarily inform the Central Government before exercising the weighty power conferred by Article 356, clause (1). Further more, it must be remembered that the principle of cabinet responsibility to Parliament lies at the core of our democratic structure of Government and the Central Government is accountable for all its actions to Parliament which consists of elected representatives of the people and if any action is taken by the Central Government which is improper or unjustified by moral, ethical or political norms, Parliament would certainly be there to bring them to book. The Political control exercised by Parliament would always be a salutary check against improper exercise of power or its misuse or abuse by the executive. And lastl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on can, therefore, be granted restraining its implementation. The 'directive', if not accepted and carried but would certainly be a precursor to action under Art. 356, cl. (1) and, therefore, may be regarded as indicative of a threat, but standing- by itself, it does not give rise to any cause of action in the State for declaration or injunction. Turning to the relief sought against the threatened exercise of power under Art. 356, cl. (1) we find that what is prayed for in this relief is 'permanent injunction restraining the defendent from taking recourse under Art. 356 of the Constitution of India to dissolve the Legislative Assembly of the State and from taking any steps from holding fresh elections to the State Assembly before March, 1978." It is indeed difficult to appreciate, how such a wide and sweeping injunction can be granted by this Court restraining the Union of India from exercising altogether its powers under Art. 356, cl. (1). How can the Union of India be prevented by this Court from discharging its constitutional obligations to the State. We have already pointed out that there is a constitutional duty enjoined on the Union of India to ensure that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not correct to say that the points of view expressed by Shri Charan Singh and Shri Shanti Bhushan constituted the only material or ground for the possible action under Art. 356, cl. (1). He urged that the points of view of these two ministers could not be equated with the advice which the Council of Ministers might give to the President under Art. 74, cl. (1) in regard to the dissolution of the Legislative Assemblies of the Plaintiff-States. The exercise of power under Art. 356, cl. (1), it was said, depends on a wide range, of situations depending upon varied and diverse considerations and it is not possible to say what grounds might ultimately weigh with the Council of Ministers in giving their advice to the President under Art. 74, cl. (1). Secondly he urged that in any event the ground that the, Legislative Assemblies of the Plaintiff-States had ceased to reflect the will of the electorate and, therefore, in order to ascertain the will of the people, and give effect to it, it was appropriate that the Legislative Assemblies should be dissolved and election should be held, was a ground which had reasonable nexus with the basic condition for invoking the exercise of power und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can constitutional history, that "the mere fact that the suit seeks protection, of a political right does not mean that it presents a political question." This was put in more emphatic terms in Nixon v. Herndon 273 U.S. 536 by saying that such an objection "is little more than a play upon words". The, decision in Baker v. Carr, (Supra) was indeed a striking advance in the field of constitutional law in the United States. Even before Baker v. Carr., the courts in the United States were dealing with a host of questions 'political' in ordinary comprehension. Even the desegregation decision of the Supreme Court in Brown v. Board of Education 347 U.S. 483 had a clearly political complexion. The Supreme Court also entertained questions in regard to the political right of voting and felt no hesitation about relieving against racial discrimination in voting and in Gomillion v. Lightfoot 364 U.S. 339, it did this even when the racial discrimination was covert, being achieved by so redrawing a municipal boundary as to exclude virtually all Negroes, and no whites, from the city franchise. It is true that in Colegrove v. Green 328 U.S. 549 the Supreme Court refused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t;Deciding whether a matter has in any measure been committed by the Constitution to another branch of government or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation and is a responsibility of this Court as ultimate interpreter of the Constitution". Where there is manifestly unauthorized exercise of power under the Constitution, it is the duty of the Court to intervene. Let it not be forgotten, that to this Court as much as to other branches of government, is committed the conservation and furtherance of democratic values. The Court's task is to identify those values in the constitutional plan and to work them into life in the cases that reach the Court. "Tact and wise restraint ought to tamper any power but courage and the acceptance of responsibility have their place too". The Court cannot and should not shirk this responsibility, because it has sworn the oath of alligance to the Constitution and is also accountable to the people of this Country. There are indeed numerous decisions of this Court where constitutional issues have been adjudicated upon though enmeshed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , therefore, by its very nature be a fit subject matter for judicial determination and hence it is left to the subjective satisfaction of the Central Government which is best in a position to decide it. The Court cannot in the circumstances, go into the question of correctness or adequacy of the facts and circumstances on which the satisfaction of the Central Government is based. That would be a dangerous exercise for the Court, both because it is not a fit instrument for determining a question of this kind and also because the Court would thereby usurp the function of the Central Government and in doing so, enter the 'Political thicket', which it must avoid if it is to retain its legitimacy with the people. In fact it would not be possible for the Court to undertake this exercise, apart from total lack of jurisdiction to do so, since by reason of Art. 74 cl. (2), the question whether any and if so what advice was tendered by the Ministers to the President cannot be enquired into by the Court, and moreover, "the steps taken by the responsible Government may be founded on information and apprehensions which are not known to and cannot always be made, known to, those who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in accordance with his statutory powers. This is the narrow minimal area in which the exercise of power under Art. 356, cl. (1) is subject to judicial review and apart from it, it cannot rest with the Court to challenge the satisfaction of the President that the situation contemplated in that clause exists. Let us now turn to the facts and examine them in the light of the principle discussed. It would seem from the above discussion that if it can be established affirmatively (1) that the proposed action of the President under Art. 356, Cl. (1) would be based only on the (,round that the Legislative Assemblies of the Plaintiff-States have ceased to reflect the will of the electorate and they should, therefore, be dissolved with a view to giving an opportunity to the people to elect their true representatives and (2) that this ground is wholly extraneous and irrelevant to the question which the President has to consider for the purpose of arriving at the requisite satisfaction, the Plaintiff States might have a case for injunction against the Union of India. But we are afraid that neither of these two propositions can be said to be established in the present suits. Re : Proposition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in regard to the first proposition, but since the question was argued before us in some detail, we think it proper to express our opinion upon it. The question is : can the ground that the Legislative Assembly of a State has ceased to reflect the will of the electorate and that the Legislative Assembly and the electorate are at variance with each other be said to be wholly extraneous and irrelevant for the purpose of Art. 356. Cl. (1) ? Has it any nexus with the matter in regard to which the President is required to be satisfied under Art. 356, Cl. (1) ? Does it bear at all on the carrying of the Government of the State in accordance with the provisions of the Constitution ? Now, we have no doubt at all that merely because the ruling party in a State suffers defeat in the elections to the Lok Sabha or for the matter of that, in the panchayat elections, that by itself can be no ground for saying that the Government of the State cannot be carried on in accordance with the provisions of the Constitution. The Federal structure under our constitution clearly postulates that there may be one party in power in the State and another at the Centre. It is also not an unusual phenomenon that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng party and the people have expressed themselves categorically against its policies, it is symptomatic of complete alienation between the Government and the people. It is axiomatic that no Government can function efficiently and effectively in accordance with the Constitution in a democratic set up unless it enjoys the goodwill and support of the people. Where there is a wall of estrangement which divides the Government from the people, and there is resentment and antipathy in the hearts of the people against the Government, it is not at all unlikely that it may lead to instability and even the administration may be paralysed. The consent of the people is the basis of democratic form of Government and when that is withdrawn so entirely and unequivocally as to leave no room for doubt about the intensity of public feeling against the ruling party, the moral authority of the Government would be seriously undermined and a situation may arise where the people may cease to give respect and obedience to governmental authority and even conflict and confrontation may develop between the Government and the people leading to collapse of administration. These are all consequences which canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction in any dispute- (a) between the Government of India and one or more States or (b) between the Government of India and any State or States, on one side and one or more other States on the other : or (c) between two or more States. Although the expression used in Article 131 is any dispute, the width of the expression is limited by the words that follow in respect of the nature of dispute that can be entertained by this Court in its original jurisdiction. It is only a dispute which involves any question of law or fact on which the, existence or extent of a legal right of the contending party depends that can be the subject matter of a suit under Article 131. The dispute should be in respect of legal rights and not disputes of political character. The Article, thus, refers to the parties that may be arrayed in the litigation as well as to the subject matter of the dispute. (See State of Bihar v. Union of India & Anr.).[1970] 2 S.C.R. 522. The suits are, in form, being filed by the States of Rajasthan, Madhya Pradesh, Punjab, Bihar, Himachal Pradesh and Orissa. But is the dispute sought for adjudication within the scope or ambit of Article 131? That is the first question. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht. That legal right must he that ,of the State. The dispute about a legal right, its existence or extent, must be capable of agitation between the Government of India and the States. The character of the dispute within the scope of Article 131 that emerges is with regard to, a legal right which the States may be able to claim against the Government. For example, the State as a party must affirm a legal right of its own which the Government of India has denied or is interested in denying giving rise to a cause of action. For the purpose of deciding whether Article 131 is attracted the subject matter of the dispute, therefore, assumes great importance. Part VI deals with the States. The word "State" is not defined for the purpose of Article 131 in Part V. The "State" is, however, defined under Article 12 for the purpose Part III (Fundamental Rights). This is the definition also for Part IV (Directive principles of State, Policy). Under Article 367(1), the provisions of the General Clauses Act, 1897, are a applicable for interpretation of the constitution. Section 3(58) of the General Clauses Act defines State, after the commencement of the Constitution (Seventh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnors to dissolve the Legislative Assemblies. The Chief Ministers declined to accept the advice and filed the suits. What is the, nature of this dispute ? On the one hand there is the claim of a right to continue the present Government of the State and necessarily to continue the Legislative Assembly and on the other the right to take action under Article 356 by the President to assume functions of the State Government. ' This dispute involves a major issue of great constitutional importance and the aggrieved party may have other appropriate. forum to complain against any substantial injury Even so, it is not a dispute between the State on the one hand and the Government of India on the other. It is a real dispute between the Government of the State and the Government of India. It is, no doubt a question of life and death for the State Government but not so for the State as a legal entity. Even after the dissolution of the Assembly the State will continue to have a Government for the time being as provided for in the Constitution in such a (contingency. A Legislature of the State under Article 168 consists of the Governor and the Legislative Assembly or where there is a Le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen the latter shows itself inadequate to its responsibilities."( The State in Theory and practice by Harold J. Laski, page 25) I am clearly of opinion that the, subject matter of the dispute in these suits does not appertain to legal rights of the States concerned to satisfy the requirement of Article 131 of the Constitution. These suits are, therefore, not maintainable in law and on this ground they are liable to be dismissed. With regard to the Writ Petitions I had the opportunity to go through the judgments of my brothers Bhagwati and Gupta and I entirely agree with their reasoning and conclusion. I am clearly of opinion that there is no violation of the fundamental rights guaranteed to the petitioners under Articles 19(1)(f) and 31 of the Constitution as a consequence of the threatened dissolution of the Legislative Assembly. 'the Writ Petitions are, therefore, not maintainable and are liable for rejection. Since, however, the question of mala fides of the proposed action of the Home Minister was argued at length with a pointed focus on the ensuing Presidential, election, I should touch on the point. It is submitted that these grounds, ex facie, are completely irr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Council of Ministers. Because certain reasons ate given in the letter of the Home Minister, it cannot be said that those will, be the only grounds which will weigh with the Council of Ministers when they finally take a decision when the advise has been rejected by the Chief Ministers. There are so many imponderables that may intervene between the time of the letter and the actual advice of the Council of Ministers to the President. There may be further developments or apprehension of developments which the Government may have to take not of and finally when the Council of Ministers decides and advises the President to issue a proclamation under Article 356, the Court will be barred from enquiring into the advice that was tendered by the Cabinet to the President (Article 74(2). Then again under Article 356(5), the satisfaction of the President in issuing the proclamation under Article 356(1) shall be final and conclusive and shall not be questioned in any court on, any ground. In the view I have taken, I am not required to consider in the matters before us whether Article 356(5) of the Constitution is ultra vires the Constitution or not. Even the Additional Solicitor General ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... some of the points I would like to add a few words and make some observations of my own. As to the maintainability of the writ applications filed by some of the members of the Punjab Legislature under Article 32 of the Constitution of India, I would, as at present advised, not like to express any opinion one way or the other. I will assume in their favour that at the threshold the applications are maintainable. Yet they do not make out a case for issuance of any kind of writ, direction, or order. But as to the maintainability of the suits filed under Article 131 by the various States I would like to say that, although the point is highly debatable and not free from difficulty, the dispute of the kind raised in the suits does not involve any question whether of law or fact on which the existence or extent of any legal right of the States concerned depends. To my mind the dispute raised is between the Government of India and the Government or the Legislative Assembly of the States concerned. One or more limbs, namely, and the Government, the Legislature or the Judiciary of a State cannot be equated with the State. Although the expression "legal right" occurring in Articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he State but not of the State itself. That the distinction, though subtle, is significant and appreciable, is clear from the language of the various clauses of Article 131 itself as also from the definitions of State Governments given in section 3 (5 8) and 3 (60) of the General Clauses Act. In my considered judgment, therefore, the suits as instituted under Article 131 are not maintainable. But I would not rest content to maintain the dismissal of the suits only on this technical ground. Putting the matter briefly in some words of my own as to the merits of the suits I would like to emphasize, in the first instance, that it is difficult to presume, assume or conclude that the only basis of the proposed action by the President is the facts mentioned in the letter of the Home Minister to the Chief Ministers of the States concerned or the speech of the Law Minister of the Government of India. There is no warrant nor any adequate material disclosed in any of the plaints in support of any assertion to the contrary. Secondly, even if one were to assume such a fact in favour of the plaintiffs or the petitioners the facts disclosed, undoubtedly, lie in the field or an area purely of a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mala fides the Courts have always resisted and shall continue to resist the inducement to enter the Prohibited field; for example, Bhagat Singh and others v. The King-Emperor, (58, Indian Appeals, 169) King-Emperor v. Benoari Lal Sarma and others; (72 Indian Appeals, 57) Lakhi Naryana Das v. The Province of Bihar etc. etc.( [1949] F.C.R.693) and M/s S.K. G. Sugar Ltd. v. State of Bihar and Ors. ([1975] 1 S.C.R., 312). To put it graphically clause (5)has merely put a seal on such closed doors to check more emphatically the temptation or the urge to make the Courts enter the prohibited field. Attempts have always been made by the party who is out of the field of power, if I can equate it with the prohibited field aforesaid, to induce the Court to enter that field in order to give relief against the taking of the extra-ordinary steps by the President on the advice of the Government in power. On the other hand, the party in power has always resisted such move. In a democracy the current of public opinion and franchise may push a particular ship on one side of the shore or the other. But this Court, like the Pole Star, has to guide and has guided the path of all mariners in an even man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce which, on the present state of the authorities, remains unsettled and debatable." In the application of the principle enunciated by me, and.in the demarcation of the prohibited area, opinions may sometimes differ, mistakes may sometimes be committed either by unduly enlarging the area of the prohibited field or by unduly limiting. But such differences are inherent in the very nature of administration of justice through human agency. No way out has yet been involved nor can one conceive of a better methodology. Nonetheless the Courts and the Judges manning them are the best arbiters of judging, their own limits of jurisdiction as the custodian of the functions to watch and see every Limb of the State acting under the constitution in accordance with it. It is intrinsic and not uncommon to find that a party in control of the field which I have described as a prohibited area would be trying to view and make that area as large as possible and the party outside that field will endeavour to narrow it down as far as feasible. But the Courts do keep and have got to keep that area the same as far as it is humanly and legally possible to do so either for the one or the other party. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Article 1740) (b), or such an action taken pursuant to the proclamation under Article 356(1) (a). There may be justifiable and genuine differences of opinion between the politicians, political thinkers, jurists and others whether the grounds of the proposed action disclosed so far in the letter of the Home Minister or the speech of the Law Minister of the Government of India can necessarily lead to the conclusion whether a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the constitution. Firstly, the possibility of other grounds being there for the proposed action under Article 356 cannot be ruled out. Even if ruled out, the conclusion drawn on the facts disclosed cannot be said to be so perverse, erroneous and palpably unsustainable so as to enable this Court to say that standing on the, fence the Court can, declare that the proposed action of proclamation on these facts falls in the category of the cases where the Court will be justified to prevent the threatened action by injuncting the President either to issue the proclamation or to dissolve the Assembly of a particular State. 1, for one, would meticulously ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... my own reasons high-lighting some of the important aspects that arise in the case. By virtue of the President's order dated the 18th January 1977 published in the Gazette of India-Extraordinary, Part 1-section 1-by a notification dated the 19th January 1977 the President in exercise of the powers conferred upon him by sub-clause (b) of clause (2) of Art. 85 of the Constitution dissolved the Lok Sabha. Thus notification was soon followed by another notification dated the 10th February 1977 issued by the Ministry of Law, Justice and Company Affairs calling upon all the parliamentary constituencies to elect members in accordance with S. 14(2) of the Representation of the, People Act, 1951. In pursuance of this Notification the Election Commission on the same day appointed the dates when elections were to be held in various constituencies. This order was passed under s. 30 of the Representation of the People Act, 1951. Further details are not necessary for the purpose of deciding the issues arising in this case. Suffice it to mention that in consequence of the elections which were held in March 1977, the Congress Party was almost routed in Bihar, U.P., Himachal Pradesh, Haryana, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government of India and one or more States, and the present dispute is, on the very face of the allegations made by the plaintiffs, not between the Government of India and one or more States, but it is between the Government of India and the States Governments which is not contemplated by Art. 131 of the Constitution. Mr. Niren De, appearing for some of the plaintiffs, however, submitted that the language of Art. 131 is wide enough to include not only the States but also the State Governments which alone can represent the states and context any legal right on behalf of the States. It was next contended by the Additional Solicitor-General that even if the first condition of Art. 131 is satisfied, there was no dispute, as contemplated by Art. 131. Mr. Niren De rebutted this argument by contending that the letter of the Home Minister disclosing the grounds on which the Central Government proposed to take action (or dissolution of the Assemblies was a sufficient dispute which entitled the plaintiffs to approach this Court under Art. 131. Lastly, it was submitted by the Additional Solicitor-General that while the plaintiffs have prayed for the relief of both temporary and permanent i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessary to run through the contents of the letter of the Home Minister as also the Press interviews given by him and by the, Law Minister which according to the plaintiffs form an integral part of the communication received by them from the Home Minister. My Lord the Chief Justice has extracted in extenso the press statements as also the contents of the letter of the Home Minister written to the various Chief Ministers of the States and I would like, however, to indicate the main points contained therein for the purpose of deciding whether or not a real dispute arose in the case. The statement of. the Home Minister to the Press is extracted at p. 25 in Original Suit No. 2 of 1977 and the relevant part of the same runs thus : "We have given our most earnest consideration to the unprecedented political situation arising out of the virtual rejection, in the recent Lok Sabha Elections of the Congress candidates in several States. I have in mind Punjab, Haryana, Himachal Pradesh, Rajasthan, Madhya Pradesh, Bihar, Orissa, Uttar Pradesh and West Bengal. propriety of the Congress Governments in these States, continuing in power without seeking a 'fresh mandate from the electorat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urpose of maintaining that the Assemblies should be dissolved and the Chief Ministers themselves should advise the Governors accordingly (1) that an unprecedented political situation had arisen by the virtual rejection, in the recent Lok Sabha elections, of the Congress candidates in the States concerned, namely the plaintiffs in the six suits including Uttar Pradesh, Haryana and West Bengal); (2) that the people at large did not consider it expedient for the Congress Governments to continue without seeking a fresh mandate, when the Congress party was completely routed in the Lok Sabha elections from the States concerned; (3) that the constitutional experts have also advised the Home Minister that the State Governments have impliedly forfeited the confidence of the people; (4) that there is a climate of uncertainty which has created a sense of diffidence at different levels of administration; (5) that such a climate of uncertainty has given rise to serious threats to law and order; (6) that the most important basic feature of the Constitution being democracy, a Government had to function with the broad consent of the people so long as it enjoyed its confidence. If the State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... report of the Governor but through other modes, one of which may be the advice tendered by the Council of Ministers. Under Art. 74 as amended by the Constitution (Forty-second Amendment) Act, 1976, the relevant part of which may be extracted below : "There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice." the Council of Ministers has to aid and advise the President and once the advice is given, the President has got to accept it, there being no discretion left in him. Thus if the Central Government chooses to advise the President to issue a proclamation dissolving an Assembly, the President has got no option but to issue the proclamation. This manifestly shows that the Central Government has a legal right to approach the President to issue a Proclamation for dissolution of an Assembly as a part of the essential duties which the Council of Ministers have to perform while aiding and advising the President. The State Governments, however, do not possess any such right at all. There is no provision in the Constitution which enjoins that the St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inisters refused to accept the advice of the Home Minister shows that a dispute arose. In my opinion, however, the contention does not appear to be well founded. Assuming that the Home Minister's letter to the Chief Ministers raised some sort of a dispute, the moment the Chief Ministers answered that letter and spurned the advice given by the Home Minister, the dispute came to an end and ceased to exist. Unless there is on existing dispute involving a legal right between the parties, the forum provided by Art. 131 cannot be availed of by any party. I am fortified in my view by a decision of the Federal Court in The United Provinces v. The Governor-General in Council, [1939] F.C.R. 124,136 where Gwyer, C.J., speaking for the Court observed thus : "The Federal Court has by s. 204(1) of the Constitution Act an exclusive original jurisdiction in any dispute between the Governor-General in Council (or, after federation, the Federation) and any Province, if and in so far as the dispute involves any question, whether of law or fact, on which the existence or extent of a legal right depends. It is admitted that the legal right of the Province to have the fines now under discussi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time to time. Article 12 of the Constitution, the scope of which is restricted only to the fundamental rights, does provide that the "State" includes the Government and Parliament of India and the Government and the Legislature of each of the States. Here the term "State" has been given a very broad spectrum because the definition is dealing with the exposition of fundamental rights and its various incidents which have to be interpreted in the broadest possible sense so as to protect the citizen from any institution included in the term "State" which even includes not only the Government of the State but also Government of India. Article 12, however, does not apply to Chapter IV where Art. 131 occurs and which deals with the Union Judiciary. In fact the word "State" as mentioned in Art. 131 has not been defined anywhere in the Constitution. Under Art. 367 if any term is not defined in the Constitution recourse can be had to the General Causes Act, 1897, for the purpose of understanding the meaning of such a term. Section 3(58) of the General Clauses Act defines "State" thus : "State"-.lm15 (a)as respects any period bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (a) & (b) of Art. 131 deliberately and advisedly use the word "Government of India and one or more States". If the intention was to bring even, a Stale Government as run by the Council of Ministers within the purview of this provision, then the words "one or more State Governments" should have been used instead of using the word "State". This is, therefore, an intrinsic circumstance which shows that the founding fathers of the Constitution intended that the dispute should be contained only to the Government of India and the States as a polity or a constituent unit of the republic instead of bringing in dispute raised by the Government run by a particular Council of Ministers which does not pertain to the State as such. Thus, summarising my conclusions on this point, the position is that the import & purport of Art. 131 is to decide disputes between one State and another or between the Government of India and one or more States. The founding fathers of the Constitution have used the word "State" in Art. 131 both deliberately and advisedly so as to contemplate the State as a constituent unit of the Union along with its territory and permanen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a direct threat to the fundamental right to property which the petitioners had both under Art. 19 (1 ) (f) and Art. 31 of the Constitution. Very attractive though they are, we are, however, unable to accept the arguments put forward by Mr. Garg. This Court in the Privy Purses Case was considering a legal right in quite a different context, namely, Art. 291 of the Constitution which has since been repealed by the Constitution (Twenty-sixth Amendment) Act, 1971. Article 291 as it stood then may be extracted thus "291. Privy purse sums of Rulers:- Where under any covenant or agreement entered into by the Ruler of any Indian State before the commencement of this Constitution, the payment of any sums, free of tax, has been guaranteed or assured by the Government of the Dominion of India to any Ruler or such State as privy purse- (a) such sums shall be charged on, and paid out of, the Consolidated Fund of India, and (b) the sums so paid to any Ruler shall be exempt from all taxes on income." A perusal of this provision would clearly indicate that the founding fathers of the Constitution sought to guarantee certain legal rights conferred on the Rulers by making the sums ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any fundamental right contained in Part III of the Constitution. For these reasons, therefore, I am of the opinion that the preliminary objection raised by the Additional Solicitor- General is well founded and must prevail. Since we have heard the suits and the petitions on merits at great length also, even if we assume that the writ petitions are maintainable, we shall deal with the merits of both the suits and the writ petitions. We now proceed to deal with the merits of the suits and the writ petitions, although we think that the suits of the plaintiffs as also the petitions are liable to be rejected on the preliminary objections raised by the Additional Solicitor-General. Coming to the merits, three contentions were put forward before us by counsel for the plaintiffs and the petitioners : (1) that the letter sent by the Home Minister to the Chief Ministers amounted to a directive by the Central Government to the Chief Ministers to advice the respective Governors for dissolving the Assemblies resulting in interference in the federal set up of the States contemplated by the Constitution; (2) that even if the letter of the Home Minister was not a directive, it clearly amounted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ministers as to what they should do in the facts an circumstances of the situation. The words "may advise" further indicate that the Home Minister did not intend to give any mandator)directions to the Chief Ministers in the matter. In of the words, the aforesaid letter if properly construed is no more than an act of political courtesy containing a suggestion or an advice or a fervent appeal to the Chief Ministers lo consider the desirability of advising the Governors to dissolve the Assemblies in view of the facts and circumstances disclosed in the said document. It is in no measure binding on the Chief Ministers and it is open to them to refuse to act on the gratuitous advice tendered by the Home Minister which the Chief Ministers have already done. Reading the letter as a whole, as I do, I am unable to regard the letter as a directive issued by the Central Government and as contemplated by Arts. 256 and 257 of the Constitution of India. In fact Art. 256 which runs thus "Obligation of States and the Union ; The executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the undoubted discretion to advise the Governor to dissolve the Assembly if a particular situation demands such a step. The Chief Minister is the best judge to assess the circumstances under which such an advice should be given to the Governor. The Central Government cannot interfere with this executive power of the State Government by giving directions under Art. 256 or Art. 257 of the Constitution, because the dissolution of the Assembly by the Governor is purely a matter concerning the State and does not fall within the four comers of either Art. 256 or Art. 257 of the Constitution. It was also contended that the direction contained in the letter of the Home Minister amounts to a serious interference with the federal set-up contemplated by the Constitution and is likely to bring the autonomy enjoyed by the States into jeopardy. My Lord the Chief Justice has dealt with the federal aspect of the Constitution in great length and has pointed out that while our Constitution is based on a federal pattern it is, to quote Dr. Ambedkar "a tight mold of Federalism" so that it can move from a federal to unitary plane, according as the situation requires. The federal nature of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. Assuming that they had the right the threat was not so imminent and the prayer made by the petitioners was premature as no action appears to have been taken by the Central Government at the time when the petitions were filed. Finally, if the Central Government had a constitutional power to advise the President to dissolve the Assemblies under Art. 356, the Courts could not interfere with the exercise of that power, because the fundamental right of the Petitioners itself existed so long as the Assembly was not dissolved. Article 172 of the Constitution itself provides that the Assembly of every State shall continue for six years, unless dissolved earlier. The petitioners therefore could not have a better right than what was conferred by Art. 172. If the Assembly was dissolved earlier than six years, i.e. before its full duration expired, under the provisions of the Constitution itself no complaint could be made by the petitioners that there had been an infringement of their fundamental right. It was not a case where the petitioners had indefeasible right to property which itself was threatened. The right of the petitioners, if any, was merely a temporary and inchoate right. Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken by the federal Court in Lakhi Naravan Das v. Province of Bihar [1949] F.C.R. 693. 699, where describing the nature and incidents of art Ordinance, the Court observed as follows : "The language of the section shows clearly that it is the Governor and the Governor alone who has got to satisfy himself as to the existence of circumstances necessitating the promulgation of an Ordinance. The existence of such necessity is not a justiciable matter which the Courts could be called upon to determine by applying an objective test.'-' The same view was taken by this Court in M/s S. K. G. Sugar Ltd. v. state of Bihar and others [1975] 1 S.C.R. 312, 317 where it was observed thus : "It is however well-settled that the necessity of immediate action and of "Promulgating an Ordinance is a matter purely for the subjective satisfaction of the Governor. He is the sole Judge as to the existence of the circumstances necessitating the making of an Ordinance. His satisfaction is not a justiciable matter. It cannot be questioned on ground of error of judgment or otherwise in court-see State of Punjab v. Sat Pal Dang (1969) 1 S.C.R. 633." The Andhra Pradesh High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis of which this Court, from time to time, has refused to intervene in controversies. It is hostile to a democratic system to involve the judiciary in the politics of the people. And it is not less pernicious if such judicial intervention in an essentially political contest be dressed up in the abstract phrases of the law." It is manifestly clear that the Court does not possess theresources which are in the hands of the Government to findout the political needs that they seek to subserve and thefeelings or the aspirations of the nation that require aparticular action to be taken at a particular time. It isdifficult for the Court to embark on an inquiry of thattype. Thus what the Constitution (Forty-second Amendment) Act, 1976 has done by adding clause (5) to Art. 356 is to give statutory recognition to the law laid down by the Courts long before. Mr. Niren De submitted in reply to the argument of the learned Additional Solicitor-General that in two cases the Privy Council had taken a contrary view. Reliance was placed on a decision of the, Privy Council in King Emperor v. Benoari Lal Sarma (L.R. 72 I.A. 57, 64) where Viscount Simon, L. C. observed thus : "Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Government to take a decision to advise the President to dissolve the State Assemblies. We have already extracted the important portions of the statements made in the letter of the Home Minister and in the radio interview of the Law Minister and the Press interview of the Home Minister. These assertions made by the Ministers of the Central Government have, however, to be read and understood in the light of the prevailing circumstances which are established from the notifications issued by the Government of India from time to time which we shall deal with hereafter. By virtue of Ministry of Home Affairs, Notification No. G.S.R. 353 (E) dated June 26, 1975 the President of India issued a proclamation declaring that a grave emergency exists whereby the, security of India was threatened by internal disturbance. This notification was followed by another Ministry of Home Affairs Notification No. G.S.R. 361 (E) dated June 27, 1975 issued by the President under clause (1) of Art. 359 of the Constitution by which the right of any person to move any Court for the enforcement of the rights conferred by article 14, article 21 and article 22 of the Constitution were suspended for the perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... According to this Notification there were 54 constituencies in Bihar, 10 constituencies in Haryana, 4 in Himachal Pradesh, 40 in Madhya Pradesh, 25 in Rajasthan, 85 in Uttar Pradesh, 42 in West Bengal, 21 in Orissa and 13 in Punjab. All these constituencies elected their representatives and from the results of the Lok Sabha as published in the Indian Express of March 25, 1977 it would appear that out of 85 constituencies in Uttar Pradesh not a single candidate belonging to the Congress party was returned. Similarly in Bihar out of 54 constituencies not a single candidate of the Congress party was elected. Similarly out of 13 constituencies in Punjab and 10 constituencies in Haryana not a single candidate of the Congress party was returned. The same position obtained in Himachal Pradesh where out of 4 constituencies not a Single Congress candidate was elected. In the States of Madhya Pradesh, Rajasthan, West Bengal and Orissa, the Congress party appears to have fared very badly also. In Madhya Pradesh out of 40 seats, the Congress party could bag only one seat, whereas in Rajasthan also the Congress met with a similar fate where it got only I seat out of 25 seats. In Orissa, also t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ple in the States where they were in overwhelming majority so as to call for dissolution of the Assemblies and fresh elections. Mr. H. R. Gokhale, appearing for the State of Punjab, argued that even in the past it had often happened that the people had voted candidates of one party for the Lok Sabha and another party for the States and a similar distinction seems to have been made by the voters this time also. The instance cited by Mr. Gokhale was of 1967 elections. This solitary circumstance in my opinion does not appear to be of much avail, because having regard to the circumstances prevailing before the last elections what inference should be drawn is a matter to be considered by the Central Government and not by the Courts. The Central Government, on a complete and overall assessment of the election results and the circumstances prevailing during the emergency as detailed above, in that the fundamental rights of the people were suspended, the right of the detenus to move the Courts was almost crippled, strict censorship was placed on the press, and this state of affairs having prevailed for about 20 months when elections were held after which the people gave their clear verdict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... econdly, if the Congress Governments in the States Concerned Were so sure of their position, I do not see any reason why they should not be able to face the challenge and after taking fresh mandate from the people vindicate their stand. Furthermore, we have to look at the circumstances catalogued above in order to find out whether an inference drawn by the Central Government from those circumstances can be said to be a reasonable one. Even assuming that from the circumstances mentioned above, the other inference that the electorate might choose different candidates for the States and the Lok Sabha is equally possible that by itself does not make the action of the Central Government mala fide or ultra vires. If two inferences are reasonably possible, the very foundation of mala fide disappears. On the other hand, the important question to ask oneself is, could under the circumstances mentioned above and the manner in which the people have acted and reacted to the emergency and the post emergency era by returning a massive verdict against the Congress, it be said that the Central Government was guided by purely irrelevant or inept considerations or external or extraneous motives in w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able case may amount to a fraud on the Constitution and destroy the very roots of the power exercised. In fact the Additional Solicitor-General candidly conceded that if the action under Art. 356 is absolutely and demonstrably absurd or perverse or self-evidently mala fide and there is total absence of any nexus whatsoever between the action taken and the scope and object of Art. 356, judicial intervention may be available in such a case. For the reasons that I have already given, this is, in my opinion, not the position here. We, however, think that this is the least expected of such a high and mature authority as the Council of Ministers of the Central Government. We might also like to stress the fact that as the reasons given by the Council of Ministers in tendering their advice to the President cannot be inquired into by the Courts, we expect the Central Government in taking momentous decisions having far reaching consequences on the working of the. Constitution, to act with great care and circumspection and with some amount of objectivity so as to consider the pros and cons and the various shades and features of the problems before them in a cool and collected manner. The guid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action of the President mentioned in Clause (1) shall be final and conclusive and shall not be ques tioned in any court on any ground". The first part of Art. 356(1) gives power to the President to issue a proclamation if he is satisfied on a report of the Governor of the State or otherwise to make a proclamation. In the instant case as there is no report of the Governor of any of the States, the President can act on other methods which includes the advice given to him by the Council of Ministers. Another condition that- is necessary for the application of Art. 356 is that the President must be satisfied that the Government of the State cannot be carried on in accordance with the provisions of the Constitution. Great stress was laid on this part of the ingredient of Art. 356(1) by counsel for the plaintiffs and the Petitioners who contended that there is not an iota of material to show that there was any apprehension that the Government of the State could not be carried on in accordance With the provisions of the Constitution or there was any break-down of the Constitutional machinery. This is, however, a matter which depends on the subjective satisfaction of the President ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e President implicitly, and once this power is conferred by the application of Art. 356(1) (a) the President has the undoubted jurisdiction to dissolve the Legislative Assembly by assuming the same power which the Governor has under Art. 174(2). A Division Bench of the Kerala High Court in K. K. Aboo v. Union of India and others, A.I.R. 1965 Ker. 229, 231 while interpreting this particular aspect of Art. 356 observed as follows : "Art. 356(1) (b) empowers the President, whenever he is satisfied of a Constitutional breakdown in the State, to issue a Proclamation declaring inter alia, "that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament." That necessarily implies a power to dissolve the State Legislature. No resort therefore need be had by the President to the provisions of Art. 356 (1) (a) read with Art. 172 or Art. 174 to dissolve the State Legislative Assembly. The power to dissolve the State Legislature is implicit in Cl. _(1) (b) of Art. 356 itself". I full endorse the aforesaid observations which lay down the correct law on the subject on this particular aspect of the matter. As Art. 356 occurs in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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