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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 ..... dia, 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 defendant through its Home Minister is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 addition, each of the 'plaintiffs in the six suits asks for a permanent as well as an interim injunction in slightly differing terms but the object of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate 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 of Shri Charan Singh, the Home Minister in the Union Government, and a statement said to have been made by Shri Shanti Bhushan, the Law Minister in the Union Government. These, according to the Plaintiffs under Article 131 as well as petitioners under Articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 serious enough, on the strength of facts indicated and possibly, other facts also, for action under Article.356 of the Constitution. In other words, the submission was that it could not possibly be predicated now whether there were or not other facts or what other possible facts, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitutional 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, Yours sincerely, Sd/- (Charan Singh) Shri Harideo Joshi, Chief Minister of Rajasthan, Jaipur . To substantiate the allegation that the letter, constituted a threat of action under Article 356 of the Constitution to dismiss the Government, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed. 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 or six years. Normally this power was to be exercised with the aid and advice of the Council of Ministers. He was asked whether it was permissible for the President to resort to Article 356 if the Council of Ministers failed to aid and, advis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 42 nd 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 important Ministers of the Union Government, they could sustain suits for injunctions under Article 131 of the Constitution or writ petitions by Members, of a Legislative Assembly to be dissolved. So far as the letter of Shri Char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 question of legal right also unless there is a prohibition against the dissolution of a legislative assembly before a certain period has expired ? If there had been a constitutional prohibition, so that the proposed action of the Union Government could have contravened t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses 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 officers who have to carry on the day to, day administration is such that it will frustrate the very objects of a Government under the Constitution or make it impossible for the Government in a State to function as it ought to under the Constitution, it may come ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 Ministers have stated certain grounds for inferring that the time has come to give the people the political sovereign a chance to pronounce its verdict on the fates of State Governments and legislatures in the nine States also in a manner which is constitutionally not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 proposal or threat could be found there, could be said to be extraneous to the purposes of Article 356 of the Constitution. Mr. R. K. Garg arguing for the petitioners from Punjab, has put forward what appears to us to be, according to the very authority cited by the learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 : Provided that nothing in this clause shall authorise that, President to assume to himself any of the powers vested in or exercisable by a High Court, or to suspend in whole or in part the operation of any provision of this Constitution relating to High Courts. (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore 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 emergency contemplated by article 352 must be preceded by actual occurrence of war or internal disturbance. The imminence of its danger is enough. But, article 356, in contrast, does not contain such restrictions. The effects of a proclamation of emergency under article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 356 (1) of the Constitution, at any rate, does not seem to us to stand in the way of such a view. Again, if the directive principles of State, Policy, which embrace a vast field of legislation for the welfare of the masses of. our people, are also parts of the basic structure, which has to be ensured or maintained by the use of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear 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 an accusing finger at the other merely because it thinks that some error has been committed by the other when acting within the limits of its own powers. But, if either the Executive or the Legislature exceeds the scope of its powers, it places itself in the region where the effects of that excess should be capable of removal by the Judiciary wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 well as matters which deserve careful scrutiny and adjudication after ascertainment of correct facts. We are reluctant to embark on a discussion of the abstract principles of federalism in the face of express provisions of our Constitution. Nevertheless, as the principles have been mentioned as aids to the construction of the Constitution whos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 can often be tested and determined only by the verdicts of the people at appropriate times rater than by decisions of Courts. For this reasons, they become, properly speaking, matters for political debates rather than for legal discussion. If the special needs of our country, to have political coherence, national integration, and planned economic development of all pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitution 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 situation in which the Union Government should move either on the federal or unitary plane are matters for the Union Government itself or for this Court to consider and determine. Each organ of the Republic, is expected to know the limits of its own powers. The judiciary comes in generally only when any question of ultra vires action is involved, because questions relating to vires appertain to its domain. I may point out that there are vari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 exercise its powers under article 356(1) for this purpose when it considers the observance of such a directive to be so essential that the Constitutional machinery cannot function as it was meant to do unless it interferes. This Court cannot, at any rate, interdict such use of powers under article 356(1) unless and until resort to the provision, in a particular situation, is shown to be so grossly perverse and unreasonable as to constitute patent misuse of this provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitutional 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) a situation in which an appeal to the electorate by a dissolution is called for. On the other hand, as the defender of the Constitution and the law and the watch-dog of the interests of the whole country and well-being of the people of his State in particular, the, Governor is vested with certain discretionary powers in the exercise of which he can act independently. One of his independent functions is the making of the report to the Union Government on the strength of which Presidential power under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled. 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 not amount to taking over by the President, acting on the advice of the Union Council of Ministers, of powers for dissolving the State Assemblies upon facts and circumstances which, in the judgment of the Union Council of Ministers, constituted sufficient grounds for a dissolution of the State Assembly, whereas the Constitution provides that this had to be done by the State Government on the advice of the Council of Ministers in a State. Such an argument is really an argument in a circle. It assumes that the taking over by the Presid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 an exceptional situation, even when the Government in power had the support of a majority behind it, was established. He gave two instances; one of a dissolution of Parliament in 1784 and another in 1834. Presumably, two instances, with a gap of fifty years between them, were considered enough by Dicey to establish a convention governing exceptional situations. A perusal of other authorities, such as Anson on The Law Custom of the Constitution or Erskine May's Parliamentary Practice , leads us to no different- result. Dicey's statement rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 situation is. All that this Court can do is to consider whether an action proposed on such a matter on certain grounds, would fall under article 356(1) of the Constitution if the Union Government and the State Governments differ on the question whether, in a particular situation, the dissolution of the State Assembly should take place or not. The most that one could say is that a dissolution against the wishes of the majority in a State Assembly is a grave and serious matter. Perhaps it could be observed by us that it should be resorted to under Article 356(1) of the Constitution only when a critical situation has arisen. As the study of Dr. Aarkesinis shows it is not al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gislature 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.R. 1965 Ker. 229. Rao Birinder Singh v. The Union of India Ors., In Re A. Sreeamulu A.I.R. 1974 AP 106 and Bijayananda Patnaik Ors. v. President of India Ors. A.I.R. 1974 Orissa 52. . In no case brought to our notice was the power of the President to dissolve a State Assembly, either by means of a Proclamation under article 356(1) itself or after it, challenged on the ground that it falls outside article 356(1). It was urged before us that the sole purpose of 'the intended Proclamations being procurement of dissolutions of the State Legislatures with the object of gaining political victories was both extraneous and mala fide. It seems to us that the assertions that the exerc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 our Constitution. In English law the term prerogative is used for the residue of discretionary power left at any moment in the hands of the Crown whether such power be in fact exercised by the King himself or by his Ministers . (See : Keir Lawson's cases in Constitution Law, 5th Edn. p. 151). Dicey said : Every act which the executive Government can lawfully do without the authority of the Act of Parliament is done in virtue of ibis prerogative . (Dicey : Law of the Constitution, 10th Edn., p. 425). It is, however, an established principle of British Constitutional law that no claim to prerogative could survive the passing of a statute covering that very subject because the so-called prerogative merges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 that principle which this Court, deprived of the power to examine or question- any materials on which such declarations may be based, acted in Additional District Magistrate, Jabalpur v. Shivakant, Shukla 1976] Suppl. S.C.R. 172 . We need not go so far as that when we have before us only a proclamation under Article 356(1). A reference was made by both sides to Bhagat Singh and Ors. v.The King-Emperor, 50 I.A. 169, , where the Privy Council interpreted the provisions of section 72 of the Government of India Act, which authorised the Governor-General in cases of Emergency to promulgate ordinances for the peace and good Government of British India or any put thereof which was not to last beyond six months . In that case, an, attempt was made to question the existence of a State of Emergency., Viscou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 Ors. v. Minister of Agriculture, Fisheries Food and Ors. [1968] A.C. 997 p. 1006 at p. 1006) It is said that the decision of the Minister is administrative and not judicial. But that does not mean that he can do as, he likes, regardless of right or wrong. Nor does it mean that the courts are powerless to correct him. Good administration requires that complaints should be investigated and that grievances should be remedied. When Parliament has set up machinery for that very purpose, it is not for the Minister to brush it on one side. He should not refuse to have a complaint investigated without good reason . Cases before us are not those of a grave national emergency of the kind. covered by article 352 of the Constitution. Nevertheless, analogous principles seem to govern the exercise of extraordinary powers conferred by Artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts 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 matters also argued before us untouched in this fairly comprehensive expression of our views. It was urged that the power of dissolution of a State Legislative Assembly, even if it could be assumed by the President under Article 356(1) of the Constitution, after a failure of the State Government to carry out a direction of the Union Government on the subject, could not be exercised unless and until the matter bad been placed before both the Houses of Parliament so that it bad been subjected to such control as either of the two Houses of Parliament may chose to exercise over it. Proclamations under article 356(1) are bound to be placed under article 356(3) of the Constitution before each house of Parliament. Unfortunately, however, for this line of argument, there is not only nothing in article 356 to make a consideration by either House of Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 when the House of the People is not in session expenditure from the Consolidated Fund of the State pending the sanction of such expenditure by Parliament. (2)Any law made in exercise of the power of the Legislature of the Slate by Parliament or the President or other authority referred to in sub-clause (a) of clause (1) which Parliament or the President or such other authority would not but for the issued of a Proclamation under article 356, have been competent to make shall, to the extent of The incompetency, cease to have effect on the expiration of a period of one year after the Proclamation has ceased to operate except as respects things done or omitted to be done before the expiration of the said period, unless the provisions which shall so cease to have effect are sooner repealed or reenacted with or without modification by Act of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, 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 with pre-existing State laws authorising expenditure by other authorities or bodies whose powers can be taken over by the President under Art. 356(1) (a). In any case, the provisions of Art. 357 could not possibly be, used as a bar against a dissolution of the State Assembly by a Presidential Proclamation. Nor can they be used to import and read, as a condition precedent to the Presidential proclamation under Art. 356(1) (a) involving, as it usually does, the dissolution of the State Assembly, an approval of both or either of the two, Houses of Parliament. To spell out some conditions precedent or bars from the provisions of Art 357 of the Constitution against the exercise of powers of the President to, issue Proclamations under Art. 356(1) of the Constitution would be utterly unsound. Constitutional provisions meant for different purposes cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 learned Additional Solicitor General, appearing on behalf of the Union, did not press the argument that article 131 is confined to declaratory decrees in view of the fact that (as Mr. Seervai pointed out in the Constitutional Law of India, 2nd Edn. Vol. 11 at p. 1385) article 142 (1) of the Constitution provides for enforcement of decrees of this Court. The view expressed in the Bihar case (supra) seemed to have been affected considerably by the fact that there was no provision in the Government of India Act of 1935 for the enforcement of the decrees of the Federal Court, but Article 142(1) seems to have been overlooked in that case. Article 300 of the Constitution provides, inter alia, that the Government of a State may sue or be sued by the name of the State . From this, Mr. Niren De wanted us to infer that there was no distinction between a St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 country, the ruling party at the Centre is not in power in any of the federating States. On the date that the Janata party took office, the Congress (R) was in power in various States including Bihar. Haryana, Himachal Pradesh, Madhya Pradesh, Orissa, Punjab. Rajasthan, Uttar Pradesh and West Bengal. On April 18, 1977 Shri Charan Singh, Union Home Minister, addressed a letter to the Chief Ministers of these States earnestly commending for their consideration that they may advise the Governors of their respective States to dissolve the State Assembly in exercise of the power under Article 174(2)(b) and seek a fresh mandate from the electorate. This alone , according to the Home Minister's letter, would be consistent with constitutional precedents and democratic practices. In an interview on April 22nd in the Spot-light ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ween 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 State, Governments is outside the scope of art. 131 since the dispute is not between the Government of India and State as such, but the dispute is between the Government of India on the one hand and each of the nine State Governments on the other. The dispute relates to the question whether the State Assemblies should be dissolved, and that, according to the counsel, does not involve any question, on which the existence or extent of a legal right depends. Whether the. State Assemblies should be dissolved or not is a matter of political expediency and though the Government for the time being in power in a State may be interested in the continuance of the Legislative Assembly 'for the full term, the State has no legal right to ensure such continuance. Indeed, it is urged, the State, apart from the State Government, is not even interested in the question whether a particular Legislative Assembly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot, 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 dispute has to, be the Government of the day at the Centre. Government of India means Union of India because if there be merit in the logic that art. 131 does not comprehend disputes in which the Government of a. State as contrasted with the State itself is interested, it must follow that correspondingly, the Government of India too cannot mean the Government for the time being in power at the centre. The true construction of art. 131(a), true in substance and true pragmatically, is that dispute must arise between the Union of India and a State. This may sound paradoxical because if the preliminary objection is unsustainable, it would be easier to. say that the expression Government of India means Government in office and the expression State' means the State as a polity and not the Government in Office'. But convenient interpretations are apt to blur the significance of issues involved for interpretations. Therefore, the effort has to be to accept what the words trul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts provisions may apply that the plaintiff questions the legal or constitutional right asserted by the defendant, be it the Government of India or any other State. Such a challenge brings the suit within the terms of art. 131 for, the question for the decision of the Court is not whether this or that particular legislative Assembly is entitled to continue in office but whether the Government of India, which asserts the constitutional right to dissolve the Assembly on the grounds alleged, possesses any such right. I find it difficult to accept that the State as a polity is not entitled to raise a dispute of this nature. In a federation, whether classical or quasi-classical, the States are vitally interested in the definition of the powers of the Federal Government on one hand and their own on the other. A dispute bearing upon the delineation of those powers is precisely the one in which the federating States, no less than the Federal Government itself, are interested. The States, therefore, have the locus and the interest to contest and seek an adjudication of the claim set up by the Union Government. The bond of constitutional obligation between the Government of India and the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 131 will virtually reduce it to a dead-letter and destroy a precious safeguard against the use of arbitrary power. The interpretation canvassed by the learned Additional Solicitor-General must therefore, be avoided, in so far as the language of the article permits it, which in my opinion it does. The debates of the Constituent Assembly (Vol. 8, pp. 588-590) do not throw any fight on the question in issue. The judgment of this Court in State of Bihar v. Union of India [1970] 2 S.C.R. 522 affords no real assistance on the question arising before us. In that case, the Court raised three issues in the suits filed under art. 131. The first issue which related to the question whether the suits were within the scope of art. 131 was not answered by the Court because it held on the second issue that the suits were not maintainable, since, a private party was impleaded thereto, The only assistance which may be derived from the judgment in that case is that it said that the disputes under art. 131 should be; in respect of legal rights and not disputes of a political character and that though it was unnecessary to define the scope of art. 131, this much is certain that the legal right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e members of the. Legislative Assembles. And as a result of their ceasing to be such members, their right to draw salary, which they could only draw if they were members of the Assemblies, came to an end. Though the petitioner cannot be denied relief on the ground that it was not intended by issuing the proclamation to deprive them of their salary, Yet the writ Petitions are liable to be dismissed on the ground that the injury to the alleged fundamental right of the petitioners is too indirect and remote. Nevertheless, I would like to deal with 'lie contention raised by Mr. R. K. Garg on behalf of the writ petitioners that the proclamation issued by the President under Art. 356(1) of the Constitution cannot have any force and cannot be acted upon without the approval of both Houses of the Parliament. This contention is wholly misconceived. Article 356(1) empowers the President to issue a proclamation if, on receipt of a report from the, Governor of a State or otherwise, he is, satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of the Constitution. Article 356(3) enjoins that every such proclama ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing. Article 123 which empowers the President to promulgate ordinances provides by clause (2) that every such ordinance shall cease to operate at the expiration of six weeks from the reassembly of Parliament; if, however, before the expiry of the six week's period, resolutions disapproving the proclamation are passed by both Houses, it ceases to operate upon the passing of the second of those resolutions. Thus, whereas a proclamation issued by the President under Art. 356 continues in operation for a period of two months in any event, an. ordinance issued by the same dignitary ceases to operate no sooner than the second of the two resolutions disapproving is passed by a House of Parliament. The reason for this distinction is evident from the language and context of the respective provisions. Article 356 which occurs in the Chapter called Emergency Provisions is intended to be resorted to in that exceptional class of situations, which though have been occurring too often, where the government of the State cannot be carried on in accordance with the provisions of the Constitution. The breakdown of the Constitution in the affairs and administration of the State is the occasio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delay involved, impair rather than strengthen the functioning of democracy. The Constitution ha-, therefore provided safety-valves to meet extra ordinary situations. They have an imperious garb and a repressive content but they are designed to save, not destroy, democracy. The fault, if any, is not in the making of the Constitution but in the working of it. It is undoubtedly true that within this impregnable duration of two months 'the President, acting of course on the advice of the Council of Ministers, may take various steps under clauses (a) to (c) of art. 356(1) which, though taken without the approval of the Parliament, may be irrevocable and cannot be retraced. One such step can be the dissolution of a State Assembly and the holding of fresh elections thereto. But here too, as on the last point which I have just discussed, the answer is that the Constitution expressly confers vast and varied powers on the President if he arrives at a certain satisfaction. The declaration of a financial emergency under art. 360(1) carries with it the power to issue directions for reducing the salaries of persons serving in connection with the affairs of the Union, including-the Judges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to act drastically by threatening the dissolution of ,the nine Legislative Assemblies in which the Congress (R) has a majority. Such naked abuse of power, which is being exercised for liquidating the Congress (R) governments which are in power in the nine states must, it is stressed, be struck down as unconstitutional. Mr. Gokhale even argued that clause (5) of Article 356 which was introduced by the 38th Amendment, giving finality to the satisfaction of the President and putting it beyond the reach of Courts, is no bar to striking down a mala fide exercise of power. An order which lacks bona fides has no existence in the eye of law, says the counsel, and courts ought not to perpetuate injustice by refusing to interfere with such orders. These arguments have a familiar, though strange, echo but that is beside the point. There is no gain saying that the various points of view presented by the learned counsel require a close attention. I would like to begin with the assumption, though that is controverted by the Additional Solicitor-General, that the proposed proclamation is likely to be founded solely on the reasons contained in the Home Minister's letter. Even then, I find i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r concluded that a fresh appeal to the political sovereign was not only permissible but had become obligatory. These grounds, cannot with any show of reason, be dismissed as bearing no rational nexus with the necessity for issuing a proclamation with a view to dissolving the Legislative Assemblies of the nine States. Probing at any greater depth into the reasons given by the Home Minister is to enter a field from which Judges must scrupulously keep away. That field is reserved for the Politician and the courts must avoid trespassing into it. That is not always an easy task because the line of demarcation that separates 'he functions of this Court from those of the Government tend to become blurred, when constitutional problems raise issues concerning the high policies of the executive. In the United States, De Toqueville noted as early as in 1832 that sooner or later every political question becomes a judicial question. Leo Preffer therefore thought that though when the Supreme Court decided Constitutional questions it had the trappings of a Court of Law, it is supreme, but it is not really a Court (1). This is a wanting well worth remembering but it must not deter the cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon the decisions of this Court, the Federal Court, the Privy Council and of various High Courts to show that apart from clause (5) of art. 356, the President's satisfaction is conclusive and the Courts have no power to go behind it. These decisions have been discussed fully in his judgment by my Lord the Chief Justice. In the view I have taken, I prefer to express no opinion on this question except to state that though the question is treated as well-settled , the Privy Council in Stephen Kalong Ninskan v. Government of Malaysia L.R. L.R. [1970] A.C. 379, 392 said : Whether a proclamation under, statutory powers by the Supreme Head of the Federation can be challenged before the courts on some or any grounds is a constitutional question of far-reaching importance which, on the present state of the authorities, remains unsettled and debatable. It would appear that in this branch of constitutional law, which cannot be entirely divorced from considerations of political policies, only one proposition may be said to be. well-settled : No question in this branch of law is well-settled . The 'political question' is an open sesame expression that can become a pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case with great ability, that he did not contend to the contrary, that if there is a threatened violation of a fundamental right, the person concerned is entitled to approach this Court under Article 32 and claim relief by way of injunction as in a quia timet action. But the difficulty here in the way of the petitioners is that it is not possible to say that by the threatened dissolution of the Legislative Assembly, any fundamental right of the petitioners would be infringed. It is only where there is direct invasion of a fundamental right or imminent danger of such invasion that a petitioner can seek relief under Article 32. The impact on the fundamental right must be direct and immediate and not indirect or remote. Merely because, by the dissolution of the Legislative Assembly, the petitioners would cease to be members and that would incidentally result in their losing their salary, it cannot be said that the dissolution would infringe their right to property. That would be the indirect effect of the dissolution but that is not sufficient to constitute infraction of the fundamental right to property. If the argument of the petitioners were correct, even a civil servant dismis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant, engagement, sanad or other similar instrument which, having been entered into or executed before the commencement of the Constitution, continues in operation after such commencement, or which provides that the said jurisdiction shall not extend to such a dispute. There are two limitations in regard to the nature of thesuit which can be entertained by the Supreme Court under this Article. One is in regard to parties and the other is in regard to the subject matter. The Article provides in so many terms in clauses (a), (b) and (c) that the dispute must be between the Government of India and one or more States, or between the Government of India and any other State or States on one side and one or more other States on the other, or between two or more States. It does not contemplate any private,, party being arrayed as a disputant on one side or the other. The par-, ties to the dispute must fall within one or the other category specified in clauses (a), (b) and (c). That was established by a decision of this Court in State of Bihar v. Union of India Anr. [1970]2 S.C.R. 522 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Instrument of Accession of that State. This provision has been deliberately and designedly omitted in Article 131 and now any legal right can be enforced by a suit in the Supreme Court provided the parties fill the character specified in clauses (a), (b) and (c). The question which therefore requires to be considered in determining the maintainability of the suits is whether any legal right of the States is sought to be vindicated in the suits. We shall presently consider this question, but before we do so, we must point out one other error in which, with the greatest respect, the learned Judges who decided the case of State of Bihar v. Union of India Anr. (supra) seem to have fallen. They held that in a suit under Article 131 one only order which the Supreme Court. could make was a declaration adjudicating on the legal right claimed in the suit and once such a declaration was given., the function of the Supreme Court under Article 131 was at an end. If this conclusion were correct, then obviously the present suits seeking permanent injunction restraining the Government of India from issuing a proclamation under Article 356, clause (1) could not lie and equally no interim inj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 153 says that there shall be a Governor for each State and under Article 154 the executive power of the State is vested in the Governor and has to be, exercised by him either directly or through officers subordinate to him in accordance with the Constitution. Article 163 provides for a Council of Ministers with a Chief Minister at the head to aid and advise the Governor in the exercise of his functions except in respect of. a limited area where he is by or under the Constitution required to exercise his functions or any of them in his discretion. There is no express provision in the Constitution requiring the Governor to act in accordance with the advice of the Council of Ministers as there is in the newly amended Article 74, clause (1) in regard to the President, but it is now well settled as a result of the decision of this Court in Shamsher Singh Anr. v. State of Punjab [1975] S.C.R. 814 that except in the narrow minimal area covered by Articles 163 (2), 371A(1) (b) and (d), 371A(2) (b) and (f) and sixth Schedule, Para 9(2), the Governor also is bound to act according to the advice of the Council of Ministers. This is broadly the scheme of the provisions in regard to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nue to have its legislature for making its laws, until its term expires or it is validly dissolved? Is it not a constitutional right of the State that its laws shall be made by its legislature, unless the President declares, in exercise of the power under Article 356, clause (1), that the powers of the legislature of the State shall be exercisable by or under the authority of Parliament ? These rights of the State under the Constitution. would certainly be affected by invalid exercise of power under Article 356, clause (1). The learned Additional Solicitor General or behalf of the Government of India contended that the expression 'State' in Article 131 is not synonymous with 'State Government' and there is intrinsic evidence in the Article that the two are distinct. When the functions of the State Government are unconstitutionally assumed by the President, it is the State Government which would be aggrieved and not the State. There is no legal right in a State to be governed by a particular Council of Ministers. So also when a Legislative Assembly is dissolved, it is the individual right of the members which may be affected and not the right of the State. Disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be thatif a Legislative Assembly is suspended or dissolved and the legislative power of the State become,,, exercisable by or under the authority of Parliament by reason of Presidential action under Article 356, clause (1), the individual rights (A the members of the Legislative Assembly may be affected, but that does not mean that the legal right of the State would also not thereby be infringed. Unconstitutional exercise of power by the President under Article 356, clause (1) may injuriously affect rights of several persons. It may infringe not only the individual rights of the members of the Legislative Assembly, but also the constitutional right of the State to insist that the federal basis of the political structure set up by the constitution shall not be violated by an unconstitutional assault under Article 356, clause (1), we are, therefore, of the view, that: the present suits seek to enforce a legal right of the States arising under the Constitution and the suits cannot be thrown out in limine as being outside the scope and ambit of Article 131. We must proceed, to consider the suits on merits. The important and serious question which arises for consideration on merits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power to make laws for the whole or any part of the territory of India with respect to any of the matters enumerated in the State List. The effect of this provision is that the federal structure based on separation of powers is put out of action for the time being. Another power of a similar kind is that conferred by Article 353 which says that during the time that Proclamation of Emergency is in force. the executive power of the Union shall extend to the giving of direction to any State as to the manner in which the executive power thereof is to be exercised. This provision also derogates from the federal principle which forms the basis of the Constitution. This departure from the constitutional principle of federalism is permitted by the Constitution because of the extraordinary situation arising out of threat to the continued existence of constitutional democratic Government. Then we come to Article, 355 which enjoins a duty on the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of the Constitution. Article 356 contains provisions for dealing wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the President to authorise the House of the People is not in session expenditure from the Consolidated Fund of the State pending the sanction of such expenditure by Parliament. Now it is obvious on a plain natural construction of the language. of Article 356, clause (1) that the President can take action under this clause only if, on receipt of a report made by the Governor of a State or otherwise he is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution. The satisfaction of the President that a situation has arisen in which the government of a State. cannot be carried on in accordance with the provision of the- Constitution is a condition precedent which must be fulfilled before the President can take action under Article 356, clause (1). When this condition precedent is satisfied, the President may take action under Article 356, clause (1) and exercise all or any of the powers specified in sub-clauses (a), (b) and (c) of that clause. The exercise of these powers plainly and unmistakably strikes at the root of the federal principle because it vests the executive power of the sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... day that the proper thing we ought to expect is that such articles will never be called into operation and that they would remain a dead letter. If at all they are brought into operation, I hope the President, who is endowed with these powers, will take proper precautions before actually suspending the administration of the provinces. But despite the lurking danger in article, the constitution-makers thought that there was no alternative in case of breakdown of constitutional machinery in the States and hence they adopted this article, even though it was analogous to the hated section 93 which disfigured the Government of India Act, 1935 symbolising British dominance over nationalist aspirations. The constitution-makers, conscious as they were of the serious consequences flowing from the exercise of this power, limited it by hedging its exercise with the condition that the President should be satisfied that the Government of the State cannot be carried on in accordance with the provisions of the Constitution Now, when On the satisfaction of the condition limiting the exercise of the power, a proclamation is issued by the President under Article 356, clause (1), it can be revoke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on Article 357, Clause (1), sub-clause (c) and it was pointed out that whereby a Proclamation issued under clause (1) it has been declared that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament, no expenditure out of the Consolidated Fund of the State can be incurred without appropriation made by Parliament, but when the House of the People is not in session, the President can incur such expenditure pending sanction by Parliament. This means that if the House of the People is in session at the time of issue of the Proclamation or as soon as it assembles after the issue of the Proclamation, the President would immediately have to go to Parliament for sanction of expenditure and if Parliament does not sanction, the expenditure would be unauthorised and the President would not be able to exercise his functions. There is thus effective Parliamentary control over the President, that is, the Central Government, through the purse and hence during the period of two months, the President cannot take any action involving expenditure out of the Consolidated Fund of the State unless he is assured that such expenditure would be sanctioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that a proclamation issued under clause (1) 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. This means that it shall continue to operate for a period of two months, unless sooner revoked. It is only for the purpose of its extension beyond two months that the approval of both Houses of Parliament is required by clause (3) of Article 356. If no such approval is forthcoming the proclamation cannot continue after the expiration of two months, but until then it certainly continues and has full force and effect. It may be noted that clause (3) of Article 356 does not say that the proclamation shall be operative only on approval by both Houses of Parliament, nor does it provide that it shall cease to operate even before the expiry of two months, if disapproved by either House of Parliament, it is interesting to compare the language of Clause (3) of Article 356 with that of Article, 123. clause (2) in this connection, Article 123, clause (1) confers power on the President to promulgate an ordinance during recess of Parliament when be is satisfied that circumstances exist wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... those cases where no irretrievable consequence would ensure which would be beyond repair. When any power of the Governor is assumed by the President under the Proclamation, the President can, during the two months when the proclamation is in force, do, whatever the Governor could in exercise of such power, and it would be immaterial whether the consequence of exercise of such power is final and irrevocable or not. To hold otherwise would be, to refuse to give full effect to the proclamation which as pointed out above, continues to operate with full force and vigour during the period of two months. It would be rewriting Article 356 and making approval of both Houses of Parliament a condition precedent to the coming into force of the proclamation so far as the particular power is concerned. Now one of the powers of the Governor which can be assumed by the President under the proclamation is the power to dissolve the Legislative Assembly ,of the State under Art. 174(2) (b) and, therefore, the President also can dissolve the Legislative Assembly during the time that the proclamation is in force. It is difficult to see bow the exercise of this power by the President can be made co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. It is also difficult to appreciate how Article 357, clause (1), subclause (c) can possibly assist the argument of the petitioners. That sub-clause provides that when the House of the People is not in session, the President can authorize expenditure out of the Consolidated Fund of the State pending receipt of sanction of such expenditure by the Parliament and consequently, it is possible that if Parliament does not sanction such expenditure, serious difficulty might arise. But that is merely a theoretical possibility which in practical reality of politics would hardly arise and it need not deflect us from placing on the language of Article 356 the only correct interpretation which its language bears. When the President issues a proclamation on the advice of the Central Government, it stands to reason that the House of the People in which the Central Government enjoys majority would sanction expenditure out of the Consolidated Fund of the State. We are, therefore, of the view that even during the period of two months, without the approval of the proclamation by, both Houses of Parliament, the President can dissolve the Legislative Assembly of the State in exercise of the power of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred on the President, that is, the Central Government, being a limited power, its exercise would, within the narrow minimal area, which we shall indicate later, be subject to judicial review ability. These are the safeguards which must alley the apprehension that the Central Government may act want only or capriciously in issuing a proclamation under Article 356, clause (1) by passing and ignoring the two Houses of Parliament. That takes us to the next question whether any injunction can be granted against the Union of India restraining it from issuing a proclamation and dissolving the Legislative Assemblies of the States under Art. 356, cl. (1), for that is the primary relief claimed by the States in the suits. This question has been argued on a demurrer as if the averments made in the plaints were correct. We shall presently consider this question, but before that, we may dispose of a short point in regard to what has been described as a 'directive' by Shri Charan Singh Home Minister to the Central Government, to the Chief Ministers of the States concerned in the, suits (hereinafter referred to as the Plaintiff States). Each of the plaintiff states has sought a decl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate is carried on in accordance with the provisions of the Constitution and there is equally a constitutional obligation on the President that is, the Central Government, to, take action under Art. 356, Cl. (1), if he finds that a situation has arisen where the Government of the State cannot be carried on in accordance with the provisions of the Constitution. Can this Court issue a blanket order against the Union of India that whatever be the situation which may develop in the State and howsoever necessary it may become to exercise the power under Art. 356 cl. (1), the Union of India shall not take recourse, to that power to dissolve the Legislative Assembly of the State and hold fresh elections, to the State Legislative Assembly before March, 1978. That would clearly obstruct its discharge of the constitutional obligations by the Central Government and no such injunction can be issued by this Court. Realising this difficulty in their way, the plaintiff-States sought to limit the relief of injunction by confining it only to the ground set out in the 'directive' of Shri Charan Singh and in the statement made by Shri Shanti Bhushan, Law Minister, at a talk on the All India Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was a legitimate and relevant ground which could be taken into account in arriving at the satisfaction that the Government of the State cannot be carried on in accordance with the provisions of the Constitution. These were the rival contentions of the parties which we must now proceed to consider. But before we do so, we must at the threshold refer to one other argument of the learned Additional Solicitor General which sought to exclude the jurisdiction of the Court in relation to a question of this kind. He contended that the question whether in. a particular State a situation has arisen where the Government of the State cannot be carried on in accordance with the provisions of the Constitution and, therefore. acion should be taken under Art. 356, cl. (1) is essentially a political question entrusted by the Constitution to the Union executive and on that account it is not justiciable before the Court. He urged that having regard to the political nature of the problem, it is not amenable to judicial determination and hence the Court must abstain from inquiring into, it. We do not think we can accept this argument. Of course, it is true that if a question brought before the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in illinois, but only three out of seven Justices who sat in that case based their decision on the ground that the question presented before them was political and non-justiciable and this view was in effect and substance reversed by the Supreme Court in Baker v. Carr. The Supreme Court in Baker v. Carr, held that it was within the competence of the federal Courts to entertain an action challenging a statute apportioning legislative districts as contrary to the equal protection clause. This case clearly decided a controversy which was political in character, namely, apportioning of legislative districts but it did so because a constitutional question-of violation of the equal protection clause was directly involved and that question was plainly and indubitably within the jurisdiction of the Court to decide. It will, therefore, be seen that merely because a question has a political colour, the Court cannot fold its hands in despair and declare as a question arises whether an authority under the constitution has acted within the limits of its power or exceeded it, it can certainly be decided by the Court. Indeed it would be its constitutional obligation to do so. It is necessary to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s or educational policies. The Court has in these cases adjudicated not upon the social, religious, economic ,or other issues, but solely on the constitutional questions brought before it and in doing so, the Court has not been deterred by the fact that these constitutional questions may have such other overtones or facets. We cannot, therefore, decline to examine whether there is any constitutional violation involved in the President doing what he threatens to do, merely on the facile ground that the question is political in tone, colour or complexion. But when we say this, we must make it clear that the constitutional jurisdiction of this Court is confined only to saying whether the limits on the power conferred by the Constitution have been observed or there is transgression of such limits. Here the only limit on the Power of the President under Art. 356, cl. (1) is that the President should be satisfied that a situation has arisen where the Government of the State cannot be carried on in accordance with the provisions of the Constitution. The satisfaction of the President is a subjective one and ,cannot be tested by reference to any objective tests. It is deliberately and ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sica 1970] A.C. 379 . But one thing is certain that if the satisfaction is mala fide or is based on wholly extraneous and irrelevant grounds, the Court would have jurisdiction to examine it, because in that case there would be no satisfaction of the President in regard to the matter which he is required to be satisfied. The satisfaction of the President is a condition precedent to the exercise of power under Art. 356, cl. (1) and if it can be shown that there is no satisfaction of the President at all, the exercise of the power would be constitutionally invalid. Of course by reason of cl. (5) of Art. 356, the satisfaction of the President is final and conclusive and cannot be assailed on any ground but this immunity from attack cannot apply where the challenge is not that the satisfaction is improper or unjustified, but that there is, no satisfaction at all. In such a case it is not the satisfaction arrived at by the President which is challenged, but the existence of the satisfaction itself. Take, for example, a case where the President gives the reason for taking action under Art. 356, cl. (1) and says that he is doing so, because the Chief Minister of the State is below five fee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ground that the Legislative Assemblies of the Plaintiff-States have lost the mandate of the people and no longer reflect the will of the electorate is the only ground on which the President would act, in case he decides to exercise the power under Art. 356, Cl. (1), which, subsequent to, the making of our order on 29th April, 1977, he has in fact done. It is true that this ground is mentioned in the 'directive' of Shri Charan Singh and the statement of Shri Shanti Bhushan, but it would be hazardous in the extreme to proceed on the assumption that this would be the only ground before the Council of Ministers when it considers whether or not to take action under Art. 356, Cl. (1). There may be other grounds before the Council of Ministers which may not have been articulated by Shri Charan Singh and Shri Shanti Bhushan. It is also possible that in a rapidly changing situation, new grounds may emerge by the time the Council of Ministers considers the question and these grounds may persuade the Council of Ministers to decide to take action under Art. 356, Cl. (1). The Court cannot equate the points of view expressed by Shri Charan Singh and Shri Shanti Bhushan with the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egislative Assembly, while at the same time electing a majority of members of another party to the Lok Sabha. Moreover, the Legislative Assembly, once elected, is to continue for a specific term and mere defeat at the elections to the Lok Sabha prior to the expiration of the term without anything more would be no ground for its dissolution. The defeat would not necessarily in all cases indicate that the electorate is no longer supporting the ruling party because the issues may be different. But even if it were indicative of a definite shift in the opinion of the electorate, that by itself would be no ground for dissolution, because the Constitution contemplates that ordinarily the will of the electorate shall be expressed at the end of the term of the Legislative Assembly and a change in the electorate's will in between would not be relevant. It may be noted that the Constitution does not provide for a right of recall, individual or collective. If such a provision were there it might have perhaps justified the argument that the ruling party in the State having lost in the elections to the Lok Sabha, the continuance of the Legislative Assembly would not be in accordance With ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and they may make it impossible for the Government of the State to be carried on in accordance with the provisions of the Constitution, Whether the situation is fraught with such consequences or not is entirely a matter of political judgment for the executive branch of Government. But it cannot be said that ,such consequences can never ensue and that the ground that on account of total and massive defeat of the ruling party in the Lok Sabha elections, the Legislative Assembly of the State has ceased to reflect the will of the people and there is complete alienation between the Legislative Assembly and the people is wholly extraneous or irrelevant to the purpose of Art. 356, Cl. (1). We hold that on the facts and circumstances of the present case this ground is clearly a relevant ground having reasonable nexus with the matter in regard to which the President is required to be satisfied before taking action under Art. 356. Cl. (1). These are the reasons which have prevailed with us in making our order dated 29th April, 1977 dismissing the Suits and Writ Petitions and rejecting the prayer for interim injunction. GOSWAMI, J.- We already dismissed the suits and the writ peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n one Government is replaced by another, the State's continuity is not snapped. There may come a moment in the life of a Government when it may cease to be truly representative of the people and, therefore, the. interest of the State as a polity or legal entity and that of the Government established on party system may cease to be identical. In such a situation, factual or imminent, a suit by a State Government in the name of the State against the Union Government's action in defence, of the former's legitimate existence and right of continuance will not relate to the legal right of the State. The judgment, whether in truth and reality a particular situation exists or is portentously imminent, may be correct or incorrect, but it is a political issue. The Court's jurisdiction is not political but entirely judicial. The right of a particular State to sue is not always equivalent to the right of the Council of Ministers in all matters. Even if a Government goes the State lives. Whether a particular Council of Ministers can survive threats to their existence depends no doubt immediately on its ability to enjoy the confidence of the majority in the Legislature, but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the First Schedule to the Constitution and shall include a Union Territory. The First Schedule to the Constitution describes 22 States and 9 Union Territories. The State Government is separately defined under section 3(60) of the General Clauses Act-thus keeping the distinction. Article 131 of the Constitution relates to legal rights of the State or of the Government of India. Any violation of the provisions of the Constitution impinging on the rights of the States or of the Government of India will be justiciable under Article 131. Similarly, boundary disputes or disputes relating to rival claims to receipts from taxes and other duties between two States are cognizable by this Court, to refer only to a few instances. Now in these above mentioned cases the rights of the State as a legal entity distinguished from the Government, being the executive agent, will be involved. Even if one Government is replaced by another Government, such a dispute will not abate or disappear since the State endures and the cause of action survives. Keeping in view the, above concept, we will undertake to examine the nature of the dispute which is involved in these suits. Shortly stated the Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also has its significance in comprehending the nature of the dispute. The members constituting the State Legislature of which the Council of Ministers is the executive body, alone, do not even constitute the State Legislature. The Governor is an integral part of the State Legislature under the Constitution. The rights of the Council of Ministers or of the members of the State Legislature cannot, therefore, be equated with the rights of the State even though those rights may be those of the State Government, pro tempore. The distinction between the, State and the Government is brought out with conspicuous clarity in the following passages :- The distinction between the State and its Government is analogous to that between a given human individual, as a moral and intellectual person, and his material physical body : By the term State is understood the political person or entity which possesses the law making right. By the term Government is understood the agency through which the will of the State is formulated, expressed and executed. The Government thus acts as the machinery of the State, and those who operate this machinery............. act as the agents of the State. ( ) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to the decision of the Privy Council in King- Emperor v. Benoari Lal Sarma and Others 72 I.A. 57, 64 and read to us the following passage : It is to be observed that the section (72 of Government of India Act, 1935) does not require the Governor-General to state that there is an emergency, or what the emergency is either in the text of the ordinance or at all, and assuming that he acts bona fide and in accordance with his statutory powers, it cannot rest with the courts to challenge his review that the emergency exists. Relying on the above passage, Mr. De submits that this Court is entitled to examine whether the direction is mala fide or not. The Additional Solicitor General has drawn our attention to Bhagat Singh and Others v. The King-Emperor (58 I.A. 169, 172) which is a decision of the Privy Council followed in Benoari Lai Sarma's case (supra) He read to us the following passage A state of emergency is something that does not permit of any exact definition. If connotes a state of matters calling for drastic action, which is to be judged as such by some one. It is more than obvious that some one must be the Governor-General, and he alone. Any other vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6(5) relying upon Bhagat Singh's case (supra) that the subjective satisfaction of the President is not justiciable. It is in view of this stand of the Union that Mr. De drew our attention to Benoari Lai Sarma's case (supra) where the Privy Council seems to have indicated that the question of mala fides could be gone in to by the court. Mr. De submits that a mala fide order under Article 356 will be no order in the eye of law. I am not prepared to say that this Court, which is the last recourse for the oppressed and the bewildered, will, for good, refuse to consider when there may be sufficient materials to establish that a proclamation under Article 356(1) is tainted with mala fides. I would, however, hasten to add that the grounds given in the Home Minister's letter cannot be any strength of imagination be held to be mala fide or extraneous or irrelevant. These ground will have reasonable nexus with the subject of a proclamation under Article 356(1) of the Constitution. The matter would have been entirely different if there were no proposal, pari passu, for an appeal to the electorate by holding elections to these Assemblies. In view of my conclusion that the sui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the States but also other kinds of legal rights, the dispute must relate to the territory, property or some other kind of legal right of the State. Broadly speaking, the nature of the dispute in these cases is that the President on the advice of the Council of Ministers, in other words, the Government of India proposes to exercise his powers under Article 356 for making a proclamation in order to dissolve the Legislative Assembly of the State concerned and to dislodge the Council of Ministers, the particular Government in power in that State. Such a dispute, in my opinion, is not a dispute vis-a-vis the legal right of the State a unit of the Union of India. It falls short of that. What is alleged is that pursuant to the impugned proclamation the President will 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 including the power to dissolve the Assembly under Article 174(2) (b). Such a proposed or threatened action does affect the legal right of the Government in power and the Legislative Assembly a part of the State Legislature, but not of the State itself. The State undoubtedly is en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such a field as prohibited area in which it is neither permissible for the Courts to enter nor should they ever take upon themselves the hazardous task of entering into such an area. In the very nature of things the President must be left to be the sole Judge, of course, on the advice of his Council of Ministers, for his satisfaction as to whether there exists or not a situation in which the Government of a State cannot be carried on in accordance with the provisions of the Constitution. Such a satisfaction may be based on receipt of a report from the Governor of a State or otherwise. Neither can the President be compelled to disclose all the facts and materials leading to his satisfaction for an action under Article 356 nor is his conclusion as to the arising of a situation of the kind envisaged in Article 356(1), generally speaking, open to challenge even on the disclosed facts. I, however, must hasten to add that I cannot persuade myself to subscribe to the view that under no circumstances an order of proclamation made by the President under Article 356 can be challenged in a Court of Law. And, I am saying so notwithstanding the provision contained in clause (5) of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ip is on this shore or that. But then, what did I mean by saying that a situation may arise in a given case where the jurisdiction of the Court is not completely ousted ? I mean this. If, without entering into the prohibited area, remaining on the fence, almost on the face of the impugned order or the threatened action of the President it is reasonably possible to say that in the eye of law it is no order or action as it is in flagrant violation of the very words of a particular Article, justifying the conclusion that the order is ultra vires, wholly illegal or passed mala fide, in such a situation it will be tantamount in law to be, no order at all. Then this Court is not powerless to interfere with such an order and may, rather, must strike it down. But it is incompetent and hazardous for the Court to draw such conclusions by investigation of facts by entering into the prohibited area.. It would be equally untenable to say that the Court would be powerless to strike down the order, if on its face, or, if I may put it, by going round the circumference of the prohibited area, the Court finds the order as a mere pretense or a colourable exercise of the extra-ordinary powers given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng examples one way or the other to illustrate as to when the Court would be able to say that : I am striking out a particular order of the President without entering the prohibited area or vice versa . In these cases I would rest content by saying that, as I view the facts placed before us, they are exclusively within the prohibited area. The main theme of contention has been that the President cannot make the proclamation because when laid before each House of the Parliament in accordance with clause (3) of Article 356 it is sure Or very likely that it will not be approved by the Rajya Sabha where the party in power in the concerned States is in clear majority; in any event, the President cannot and should not be permitted to take any action pursuant to the proclamation of dissolving the Assembly without the approval of both the Houses of Parliament, as the act of dissolution will be irretrievable and in flagrant violation of the federal structure of the constitution. I find no words of such limitation on the power of the President either in the original Article as framed and passed by the Constituent Assembly or in any of the amendments brought therein from time to time. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed so far, in my considered judgment, are definitely and exclusively within the prohibited area and the conclusions drawn therefrom are reasonably possible, especially in the background of Article 355. On the facts, as they are, it is difficult, rather, impossible to say that the proposed proclamation is going to be made mala fide with an ulterior motive. Apart from the other technical and insurmountable difficulties which are therein the way of the plaintiffs or the petitioners in getting any of the reliefs sought I have thought it advisable to pin-point in my own humble way the main grounds in support of the order we have already declared. FAZAL ALI, J. In a big democracy like ours the popularly elected executive Government has sometimes to face a difficult and delicate situation and in. the exercise of its functions it has to perform onerous duties and discharge heavy responsibilities which are none too easy or pleasant a task. Circumstances may arise where problems facing the Government are political, moral, legal or ethical calling for a careful and cautious exercise of discretion of powers conferred on the Government by the Constitution of the country. Even though the Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... States not a single candidate set up by the Congress Party was returned. The Congress also lost its majority in the Lok Sabha as a result of. which the Government at the centre was formed by the Janata Party in coalition with the Congress for Democracy. Mr. Morarji Desai the present Prime Minister was sworn in after being elected as the party leader on March 24, 1977 and he selected his Council of Ministers on March 25, 1977. Soon thereafter the Union Home Minister addressed a letter to the aforesaid nine states, namely, Bihar, U.P., Himachal Pradesh, Haryana, Madhya Pradesh, Orissa, Punjab, Rajasthan and West Bengal, asking them to advise their respective Governors to dissolve the Assemblies and seek a fresh mandate from the people. The six plaintiffs, namely, the States of Rajasthan, Madhya Pradesh, Punjab, Bihar, Himachal Pradesh and Orissa have filed suits in this Court praying for a declaration that the matter of the Home Minister was illegal and ultra vires of the Constitution and not binding on the plaintiffs and prayed for an interim injunction restraining the Central Government from resorting to Art. 356 of the Constitution. A permanent injunction was also sought for by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot grant the relief for injunction and the only relief which this Court can give would be purely of a declaratory character. This point, however, was later on given up by the Additional Solicitor-General, and in our opinion rightly, because s. 204 of the Government of India Act, 1935, which preceded the Constitution contained an express provision, viz. sub-s. (2) which expressly barred the right of the Court to grant any relief excepting a declaratory one, whereas in Art. 131 of the Constitution that particular clause has been deliberately omitted and the restriction imposed under that clause by the Government of India Act has been removed, as a result of which this Court can grant any relief which it thinks suitable and which is justified by the necessities of a particular case. In order to examine the validity of the contentions put forward by counsel for the parties, it may be necessary to extract the provisions of Art. 131 of the Constitution, the relevant part of which runs thus: 131. Original jurisdiction of the Supreme Court.-Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other Court, have original jurisdiction in any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r's letter to the Chief Ministers may be extracted thus We have given our earnest and serious consideration to the most unprecedented political situation arising out of the virtual rejection, in the recent Lok Sabha elections, of candidates belonging to the ruling party in various States. We have reasons to believe that this has created a sense of diffidence at different levels of administration. People at large do not any longer appreciate the propriety of continuance in power of a party which has been unmistakably rejected by the electorate. (Emphasis supplied) Relevant portions of the extracts from the interview given by Mr. Shanti Bhushan in a spotlight programme of the All India Radio-may also be quoted from Annexure 'B' of the Paper Book in Original Suit No. 1 of 1977 filed by the State of Rajasthan which run thus : In an interview in the spot-light programme of All India Radio he said that the most important basic feature of the Constitution was democracy, which meant that a Government should function with the broad consent of the people and only solong as it enjoyed their confidence. If State Governmentschose to govern the people after having lost ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be undemocratic for them to continue; (7) that if a situation arises in which a serious doubt was cast upon the Government enjoying the continued confidence of the people, then the provision for premature dissolution of the Assembly would at once be attracted. Where such a situation arises, the power contained in the Constitution is coupled with a duty to dissolve the Assembly and direct the Government to go to the people in order to see whether it has the continued confidence of the people to govern them. The correctness of the extracts quoted above from the documents filed by the plaintiffs has not been disputed by the Additional Solicitor-General. Mr. Niren De contends that in view of the stand taken by the Law Minister and the Home Minister there arose a clear dispute between the Government of India and the State Governments so as to call for an adjudication by this Court. In my opinion, the crucial question to be considered is whether or not there is a dispute. Statements by Ministers or even by the Government or made by one party and denied by the other may not amount to a dispute, unless such a dispute is based on a legal right. A dispute?' has been defined in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be obtained before the Council of Ministers submit their advice to the President regarding a matter pertaining to the State so far as the dissolution of an Assembly is concerned. Article 356 also which confers a power on the President to issue a Proclamation dissolving all Assembly does not contain any provision which requires either prior or subsequent consultation or concurrence of the State Government before the President exercises this power. In these circumstances, can it be said that the State Governments have a right to assert that an order under Art. 356 shall not be passed by the President or to file a suit for a declaration that the President may be injuncted from passing such an order ? The right of the State Governments to exist depends on the provisions of the Constitution which is subject to Art. 356. If the President decides to accept the advice of the Council of Ministers of the Central Government and issues a proclamation dissolving the Assemblies, the State Governments have no right to object to the constitutional mandate contained in Art. 356. It is conceded by Mr. Niren De that if the President, on the advice of the Council of Ministers, would have passed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unds depends upon the validity or otherwise of s. 106 of the Act of 1924. The plaintiffs deny the validity of the section, the defendant asserts it; and it seems to me that this is clearly a dispute involving a question on which the existence of a legal right depends. This case effords a clear illustration of a real dispute involving a legal; right. In that case the main dispute was regarding the question whether the fines credited to Provincial revenues and not to the Cantonment Funds belonged to the Province or the Central Government through the Cantonment. It will be noticed that the Federal Court clearly held that such a dispute clearly fell within the purview of S. 204(1) of the Government of India Act which was in pari materia to Art. 131 of the Constitution. That case is purely illustrative and decides that it is only such type of disputes as are contemplated by Art. 131. For these reasons, therefore, I am clearly of the view that having regard to the facts and circumstances of the present case, it has not been established that there was any dispute involving a legal right between the Government of India and the State Governments, and therefore one of the essential ingre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r a Part C State; and 106 (b)as respects any period after such commencement, shall mean a State specified in the First Schedule to the Constitution and shall include a Union territory : On the other hand S. 3(23) defines the word Government or the Government as including both the Central Government and any State Government. Thus it will be clear from the definition of State' given in s. 3(58) of the General Clauses Act that the State does not include the State Government. The relevant parts of Arts. 1 and 3 of the Constitution run thus 1. Name and territory of the Union :- (1) India, that is Bharat, shall be a Union of States. (2) The States and the territories thereof shall be as specified in the first schedule. (3) The territory of India shall comprise- (a) the territories of the States; (b) the Union territories specified in the First Schedule; and (c) such other territories as may be acquired. 3. Formation of new States and alteration of areas, boundaries or names of existing States Parliament may by law- (a) form a new State by separation of territory from any State or by uniting two or more States or parts of States or by un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abolition of any of the permanent institutions of a State that a real dispute may arise. A mere temporary dissolution of an Assembly under Art. 356 does not amount to an abolition of a State Assembly, because after such dissolution under the provisions of the Constitution elections are bound to follow and a new Legislature would evidently come into existence after the voters have elected the candidates. Unfortunately, there is no clear decision of this Court directly on this point, but on a true and proper construction of Art. 131, 1 am of the view that a dispute like the present is totally outside the scope of Art. 131 of the Constitution. For these reasons, therefore. I hold that the State Governments who have raised the dispute in this case are not covered by the word State appearing in Art. 131 and therefore the suits are not maintainable on this ground also. 1, therefore, record my respectful dissent from the view taken by my lord the Chief Justice and brother Judges on this particular point. Similarly in the case of writ petitions, the Additional Solicitor-General raised a preliminary objection as to the maintainability of the petitions. It was contended that the right of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Rulers to receive payments free of tax was not only a legal right flowing from the Constitution but also a right to property, because a charge was created on the Consolidated Fund of India for the payments to be received by the Rulers. In other words, the right to property arose directly from the status occupied by the Rulers under the Constitutional provision itself and it was not consequent upon the Rulers obtaining a particular status as members of the Assembly or otherwise which may be consequential to the acquisition of their 'subsequent status. In the instant case, the right of the petitioners is only a limited right inasmuch as it subsists only so long as the Assembly runs its usual course of six years. The right may also cease to exist if the Assembly is dissolved by the President by issuing a proclamation under Art. 356. The right, therefore, subsists only so long as these two contingencies do not occur. Further more, the Constitution does not guarantee any right or allowances to the Members of the Assembly which are given to them by local Acts or Rules. In these circumstances, therefore, the ratio decidendi of the Privy Purses Case cannot apply to the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not constitute sufficient reason for dissolution of the Assemblies under Art. 356 and the action of the Central Government in writing the letter to the Chief Ministers and giving interviews at the Press and the All India Radio amounted to a mala fide and colourable action which was sufficient to vitiate the advice which the Council of Ministers might give to the President for resorting to Art. 356 of the Constitution. Lastly, Mr. Niren De as also Mr. Garg submitted that Art. 356 would have no application to the facts of the present case. We shall now deal separately with the contentions raised by counsel for the parties. As, regards the first contention that the letter of the Home Minister to the Chief Ministers of the plaintiff-States amounted to a directive issued by the Central Government, it was clarified by counsel for the plaintiffs that the Central Government had no authority under any provision of the Constitution to give a directive to the Chief Ministers in the matter concerning purely the States. In the first place, a careful perusal and an adroit analysis of the contents of the letter does not at all show that it amounts to a directive given by the Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... powerof Parliament may exist and the directions contemplated byArt. 256 can be given to the States only within the limited sphere as prescribed by Art. 256 i.e., in relation to existing laws made by Parliament and those laws which apply in the States. Article 257 contains a note of warning and caution to both the Union and the States against functioning in such a way so as to impede or prejudice exercise of the executive power of the Union. Article 257 contains a further restriction on the Government of India in that the power has to be exercised only for the purposes mentioned in Arts. 256 and 257. With due respects of my Lord the Chief Justice, I am unable to subscribe to his view that the directive contained in the letter must be carried out, as I am clearly of the opinion that the letter does not amount to a directive as contemplated by Arts. 256 and 257 of the Constitution and cannot be binding on the Chief Ministers as it pertains purely to the States concerned, namely, giving of the advice to the Governors for dissolution of the Assemblies. Our Constitution contains a well distributed system of checks and balances on the various constituents, namely, the Union, the Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Home Minister does not amount to a directive at all and therefore the question of interference with the autonomous rights of the State Government does not arise. As to what would have happened if a directive was given by the Central Government in a matter like this is a purely hypothetical question which does not call for any answer in the facts and circumstances of the present case as the same does not arise. In this view of the matter it- is obvious that the plaintiffs cannot get a relief for a declaration that the letter amounted to a directive and being against the authority of law was ultra vires and hence not binding on the plaintiffs. In fact it seems to me that the plaintiffs themselves did not take the letter as a directive at all and had, therefore, written back to the Home Minister refusing to accept the advice given to them. The next question that arises for consideration is whether the letter of the Home Minister amounts to a threat to dissolve the Assembly. Although there are no clear words in the letter or in the interviews to show that any kind of threat or force was used against the Chief Ministers concerned, but even assuming that the letter contained a veiled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er did not constitute sufficient reason for dissolution of the Assemblies under Art. 356, the same was repelled by the Additional Solicitor-General mainly on the ground that the Courts could not go into the sufficiency or adequacy of the materials on the basis of which the Council of Ministers of the Central Government could give any advice to the President. It was also argued that this matter was not a justiciable issue. In order to answer this contention we have to consider two different facets. Firstly, whether or not the issue was justiciable. Apart from Cl. (5) of Art. 356 which gives the order passed by the President under this Article complete immunity from judicial scrutiny it was pointed out by the Additional Solicitor- General that even before Cl. (5) which was added by the Constitution (Forty second Amendment) Act, 1976 the law laid down by this Court, Privy Council and the High Courts was the same. Reliance was placed on a decision of the Privy Council in Bhagat Singh and others v. The King-Emperor,( ) where the Privy Council, dwelling on the question whether the existence of an emergency was justiciable or not observed thus : A state of emergency is something t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 356. The important thing to notice is that the Constitution does not enumerate the situations and there is no 'satisfactory criteria for a judicial determination' of what are relevant considerations. The very absence of satisfactory criteria makes the question one which is intrinsically political and beyond the reach of the Courts. The considerations which are relevant for action under Article 356 and the weighing of those considerations appear to be clearly matters of political wisdom, not for judicial scrutiny. I find myself in complete agreement with the observations made by the learned Judge. The same view was taken by another Division Bench of the Andhra Pradesh High Court in S. R. K. Hanumantha Rao v. State of Andhra Pradesh. (1975) 2 A.W.R. 277 It is obvious that exercise of discretion under Art. 356 by the President is purely a political matter and depends on the advice that the President gets from the Council of Ministers. The Council of Ministers are the best judge to assess the needs of the situation, the surrounding circumstances, the feelings and aspirations of the people and the temper of the times. If on an overall assessment of these factors t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and, as had already been emphasized in the High Court, the question whether an emergency existed at the time when an ordi nance is made and promulgated is a matter of which the Governor-General is the sole judge. This proposition was laid down by the Board in Bhagat Singh v. The King Emperor-L.R. 58 I.A. 169 . Although the first part of the observations of their Lordships supports the argument of Mr. Niren De to some extent, the second part of the observations clearly shows that their Lordships had fully endorsed the proposition laid down by the Court in Bhagat Singh's case (supra). In these circumstances, therefore, this authority does not appear to be of any assistance to Mr. Niren De. Reliance was also placed on Padfield v. Minister of Agricultural, Fisheries and Food(L.R. [1968] A.C. 997,1007) where Lord Denning, M. R., observed as follows : If it appears to the court that the Minister has been, or must have been, influenced by extraneous considerations which ought not to have influenced him-or, conversely, has failed, or must have failed, to take into account considerations which ought to have influenced him-the court has power to interfere. These observat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of India Gazette, Extra-ordinary, Part 11, Section I dated June, 1975. pp. 213-15. Section 5 of the Ordinance added s. 16A and sub-s. (6) of s. 16A provided that it shall not be necessary to disclose to any person detained under a detention order the grounds on which the order had been made during the period the declaration made in respect of such a person was in force. This was followed by the Maintenance of Internal Security (Amendment) Act, 1976 passed on January 25, 1976 which added sub-s. (9) to s. 16A of the principal Act which provided that the grounds on which an order of detention was made or purported to be made under s. 3 against any person in respect of whom a declaration was made under sub-s. (2) or sub-s. (3) and any information or materials on which such grounds or a declaration under sub-s. (2) or a declaration or confirmation under sub-s. (3) etc. was made was to be treated as confidential and shall be deemed to refer to matters of State and it would be against the public interest to disclose the same. Thus the effect of this provision was that no Court could call for the materials on the basis of which the order of detention was passed. In other words, any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the voters who voted for the candidates standing for the Lok Sabha in the States were more or less the same who had voted the Congress party in the State Assemblies during the previous elections. Thus, summarising the position in short, it is clear (1) that a grave emergency was clamped in the whole country; (2) that civil liberties were withdrawn to a great extent; (3) that important fundamental rights of the people were suspended; (4) that strict censorship on the press was placed; and (5) that the judicial powers were crippled to a large extent. In the new elections the Congress party suffered a major reverse in the nine states and the people displayed complete lack of confidence in the Congress party. The cumulative effect of the circumstances mentioned above may lead to a reasonable inference that the people had given a massive verdict not only against the Congress candidates who fought the elections to the Lok Sabha but also to the policies and ideologies followed by the Congress Governments as a whole whether at the Centre or in the States during the twenty months preceding the elections. In these circumstances it cannot be said that the inference dra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. It is true that if the opinion of the Central Government was based on extraneous or irrelevant materials or it was guided by purely personal considerations or ulterior motives, the Court could have held such an action to be mala fide and struck it down. In Dr. Akshabar Lal Ors. v. Vice Chancellor, Banaras Hindu University ([1961] 3 S.C.R. 386) this Court explained as to what was the true nature and character of a mala fide action, and quoted the following observations of Warrington, L. J., where it observed thus : The appellants characterised the whole action as lacking in bona fide. The action can only be questioned if it is ultra vires, and proof of alien or irrelevant motive is only an example of the ultra vires character of the action, as observed by Warrington, L. J., in the following passage : My view then is that only case in which the Court can interfere with an act of a public body which is, on the face of it, regular and within its powers, is when it is proved to be in fact ultra vires, and that the references in the judgments in the several cases cited in argument to bad faith, corruption, alien and irrelevant motives, collateral and indirect objects, and so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er cannot be said to be either extraneous or irrelevant or mala fide. The contention of the counsel for the plaintiffs and the petitioners on this score is, therefore, overruled. There is yet another facet of this problem. Assuming that the reasons and the grounds disclosed by the Home Minister in his letter are extraneous or irrelevant this is only the first stage of the matter. The second stage-which is the most vital stage-is the one which comes into existence when the Council of Ministers deliberate and finally decide to advise the President. As to what further grounds may be considered by them at that time is anybody's guess. It is quite possible that the Council of Ministers may base the advice on grounds other than those mentioned in the letter of the Home Minister. Article 74(2) which runs thus : (2) The question whether any, and if so what advice was tendered by Ministers to the President shall not be inquired into in any court. completely bars any inquiry by any Court into the matters which form the subject-matter of the advice given by the Council of Ministers to the President. This Court, therefore, cannot probe into that matter. In these circumstances, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment. The stamp of finality given by Cl. (5) of Art. 356 of the Constitution does not imply a free licence to the Central Government to give any advice to the President and get an order passed on reasons which are wholly irrelevant or extraneous or which have absolutely no nexus with the passing of the Order. To this extent the judicial review remains. In the instant case, however, considering the circumstances indicated above, I feel that the grounds taken by the Home Minister have got a clear nexus with the issue in question, namely, the passing of an order by the President under Art. 356 in order to dissolve the State Assemblies. The argument of mala fide put forward by the plaintiffs and the petitioners is, therefore, rejected. I now come to the last contention raised by counsel for the plaintiffs and the petitioners. Mr. Garg, appearing for the petitioners vehemently contended that Art. 356 has absolutely no application to the facts of the present case, as it does not give any power to the President to dissolve the Assembly. In order to examine this argument closely, it may be, necessary to extract the relevant part of Art. 356 thus: 356. (1) If the Preside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubt that having regard to the circumstances in which the Congress was completely routed in the nine States during the Lok Sabha Elections, the possibility of the State Governments having lost the confidence of the people cannot be ruled out. If so, to continue in office even after this would be purely undemocratic in character. As our Constitution is wedded to a democratic pattern of Government, if a particular State Government ceases to be democratic or acts in an undemocratic fashion, it cannot be said that the Government of the State is carried on in accordance with the provisions of the Constitution. Such a course of action is opposed to the very tenor and spirit of the Constitution. In these circumstances, therefore, on the facts and materials placed before us, the second part mentioned in Art. 356 appears to have been prima facie satisfied and the argument of the learned counsel for the plaintiffs and the petitioners on this ground is not tenable. It was then contended by Mr. Garg that a perusal of clause (3) of Art. 356 and the proviso thereof clearly shows that the proclamation can operate only for the period of two months and automatically expires at the expiration of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inisters of the State. In these circumstances, therefore, I am clearly of the opinion that Art. 356(1) (a) confers the powers of the Governor under Art. 174(2) on the President in clear and categorical terms and I cannot infer exclusion of the power merely from the fact that the proclamation is to expire after two months. Even if the order dissolving the Assembly cannot be ratified by the Parliament under Cl. (3) of Art. 356 that makes no difference, because Cl. (3) does not touch actions taken, proceedings completed, consequences ensued and orders executed. At the time when Parliament exercises the control, all these actions have already taken place and it is not possible to put the clock back or to reverse actions which have already been taken and completed, nor was such a contingency contemplated by the founding fathers of the Constitution. I am, therefore, unable to accent the argument of Mr. Garg on this point. It was further argued by Mr. Garg as also by Mr. Bhatia appearing for the State of Himachal Pradesh that even assuming that Art. 356() (a) confers the power given to the Governor by Art. 174(2) it would be a proper exercise of the discretion of the President to proro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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