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TMI Blog1974 (8) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of the High Court of Punjab and Haryana, the Governor of Punjab is pleased to dispense with the services of Shri Ishwar Chand Agarwal, P.C.S. (Judicial Branch), with immediate effect, under Rule 7(3) in Part D' of the Punjab Civil Services (Judicial Branch) Rules, 1951, as amended from time to time". The appellants contend that the Governor as the Constitutional or the formal head of the State can exercise powers and functions.of appointment and removal of members of the Subordinate Judicial Service only personally. The State contends that the Governor exercises powers of appointment and removal conferred on him by or under the Constitution like execute powers of the State Government only on the aid and advice of his Council of Ministers and not personally. The appellants rely on the decision of this Court in Sardari Lal v. union of India & Ors. (1971)3 S.C.R. 461 where it has been held that where the President or the Governor, as the case may be, if satisfied, makes an order under Article 311(2) proviso(c) that in the interest of the security of the State it is not expedient to hold an enquiry for dismissal or removal or reduction in rank of an officer, the satisfacti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inate Judge under Article 234 have not been allocated to the Ministers under the Rules of Business of the State of Punjab. Rule 18 of the Rules of Business States that except as otherwise provided by any other rule cases shall ordinarily be disposed of by or under the authority of the Minister-in-Charge who may, by means of Standing orders, give such directions as he thinks fit for the disposal of cases in his department. Rule 7(2) in Part D of the Punjab civil Rules which states that the, Governor of Punjab may on the, recommendation of the High Court remove from service without assigning any cause any subordinate Judge or revert him to his substantive post during the, period of probation is incapable of allocation to a Minister. Rule 18 of the, Rules of Business is subject to exceptions and rule 7(2) of the Service Rules is such an exception. Therefore, the appellants contend that the power of the Governor to remove Subordinate Judges under Article 234 read with the aforesaid Rule 7(2) of the Service Rules cannot be allocated to a Minister. The Attorney General for the Union, the Additional Solicitor General for the State of Punjab and Counsel for the State of Haryana contended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of the Governor under Article with respect to the appointment and dismissal of Ministers shall be exercised by him in his discretion. Draft Article 144(6) was totally omitted when Article 144 became Article 164 in the Constitution. Again Draft Article 153(3) said that the functions of the Governor under clauses (a) and (c) of clause (2) of the Article shall be exercised by him in his discretion. Draft Article 153(3) was totally omitted when it became Article 174 of our Constitution. Draft Article 175 (proviso) said that the Governor " may in his discretion return the Bill together with a message requesting that the House. will reconsider the Bill". Those words that "the Governor may in his discretion" were omitted when it became Article 200. The Governor under Article 200 may return the Bill with a message requesting that the House will reconsider the Bill. Draft Article 188 dealt with provisions in case of grave emer s. clauses (1) and (4) in Draft Article 188 used to words "in his discretion in relation to exercise of power by the Governor. Draft Article 188 was totally omitted Draft Article 285(1) and (2) dealing with composition and staff of Public ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticle 371A(2) (f) states that the final decision on all matters relating to the Tuensang District shall be made by the Governor in his discretion. The executive power of the Union is vested in the President under Article 53(1). The executive power of the State is vested in the Governor under Article 154 (1). The expression "Union" and "State," occur in Articles 53(1) and 154(1) respectively to bring about the federal principles embodied in the Constitution. Any action taken in the exercise of the executive power of the Union vested in the President under Article 53(1) is taken by the Government of India in the name of the President as will appear in Article 77(1). Similarly, any action taken in the exercise of the executive power of the State vested in the Governor under Article 154(1) is taken by the Government of the State in the name of the Governor as will appear in Article 166(1). There are two significant features in regard to the executive action taken in the name of the President or in the name of the Governor. Neither the President nor the Governor may sue or be sued for any executive action of the State. First, Article 300 States that the Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve powers of the State vested in the Governor under Article '54(1) in the other case. Clause (2) or Clause (3) of Article 77 is not limited in its operation to the executive action of the Government of India under clause (1) of Article 77. Similarly, clause (2) or clause (3) of Article 166 is not limited in its operation to the executive action of the Government of the State under clause (1) of Article 166. The expression "Business of the Government of India" in clause (3) of Article 77, and the expression "Business of the Government of the State" in clause (3) of Article 166 includes all executive business. In all cases in which the President or the Governor exercises his functions conferred on him by or under the Constitution with the aid and advice of his Council of Ministers he does so by making rule-. for convenient transaction of the business of the Government of India or the Government of the State respectively or by allocation among his Ministers of the saidbusiness, in accordance with Article 77 (3) and 166(3) respectively. Wherever the Constitution requires the satisfaction of Presidents the Governor for the exercise of any power or function by the Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 and Carleton Ltd. v. Works Commissioners (1943) 2 AU. (E.R. 560) It is a fundamental principle of English Constitutional law that Ministers must accept responsibility for every executive act. In England, the sovereign never acts on his own responsibility. The power of the sovereign is conditioned by the practical rule that the Crown must find advisers to bear responsibility for his action. Those advisers must have the confidence of the House of Commons. This rule of English constitutional law is incorporated in our Constitution. The Indian Constitution envisages a parliamentary and responsible form of Government at the Centre and in the States and not a Presidential form of Government. Tie powers of the Governor as the Constitutional head are not different. This Court has consistently taken the view that the powers of the President and the powers of the Governor are similar to the powers of the Crown under the British Parliamentary system. (See Ram Jawaya Kapur v. State of Punjab (1952) 2 S. C. R. 225 at 236237, A. Sanjeevi Naidu v. State of Madras (1970) 3 S. C. R. 505 at 511. U. N. Pao v. Indira Gandhi (1971) Supp. S. C. R. 46. In Ram Jawaya Kapur's case (supra) Mukherjea, C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by an official employed in the Ministry's department, there is in law no delegation because constitutionally the act or decision of the official is that of the Minister. In Rao's case (supra) this Court had to consider whether House of People being dissolved by the President on 27 December, 1970, the Prime Minister ceased to hold office thereafter. Our Constitution is modeled on the British Parliamentary system. The executive has the primary responsibility for the formation of Government policy. The executive is to act subject to control by the Legislature. The President acts on the aid and advice of the Council of Ministers with the Prime Minister at the head. The Cabinet enjoying as it does a majority in the Legislature concentrates in itself the virtual control of both legislative and executive functions. Article 74(1) Which states that there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the legislative functions is mandatory. The contention in that case that on the President dissolving the House, there will be no Prime Minister was not accepted because it would change the entire content of the executive Government. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of the Act of 1935 and in particular under Rules of Business. This Court in Bejoy Lakshmi Cotton Mills Ltd. v. State of west Bengal and ors. reported in (1967) 2 S.C.R. 406 considered the validity of a notification signed by the Assistant Secretary in the Land and Revenue Department of the State Government. It was contended that the executive power of the State is vested in the Governor under Article 154(1) of the Constitution, and, therefore. the satisfaction of the Governor was contemplated under Section-, 4 and 6 of the Land Development and Planning Act under which the notification would be made. Under the Rules of Business made by the Governor under Article 166(3), the Governor allocated to the Minister certain matters. The Minister-incharge issued a Standing Order specifying the matters which were required to.be referred to him. The Rules of Business in the Bejoy Lakshmi Cotton Mills case (supra) indicated that the business of the Government was to be transacted in various departments specified in the Schedules. Land and Land Revenue was allocated as the business of the Department of the Minister with that portfolio. The Minister-in-charge had power to make st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y that Article 258 does not authorize the President to entrust such power as are expressly vested in the President by the Constitution and do not fall within the ambit of Article 258(1). This Court illustrated that observation by stating that the power of the President to promulgate Ordinances under Articles 268 to 279 during an emergency, to declare failure of constitutional machinery in States under Article 356, to declare a financial emergency under Article 360; to make rules regulating the recruitment and conditions of service of persons appointed to posts and services in connection with the affairs of the Union under Article 309 are not powers of the Union Government but are vested in the President by the Constitution and are incapable of being delegated or entrusted to any other body or authority under Article 258 (1). The ratio in Jayantilal Amritlal Shodhan's case (supra) is confined to the powers of the President which can be conferred on States under Article 258. The effect of Article 258 is to make a blanket provision enabling the President to exercise the power which the Legislature could exercise by legislation, to entrust functions to the Officers to be specified in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itution and cannot be delegated by the President or the Governor to a subordinate officer and can be exercised only by the President or the Governor in the manner prescribed by the Constitution. Clause (c) of the proviso to Article 311(2) was held by this Court ii Sardari Lal's case (supra) to mean that the functions of the President under that provision cannot be delegated to anyone else in the case of a civil servant of the Union and the President has to be satisfied personally that in the interest of the security of the State it is not expedient to hold an inquiry prescribed by Article 311(2). In support of this view this Court relied on the observation in Jayantilal Amrit Lal Shodhan's case (supra) that the powers of the President under Article 311(2) cannot be delegated. This Court also stated in Sardari Lal's case (supra) that the general consensus of the decisions is that the executive functions of the nature entrusted by certain Articles in which the President has to be: satisfied himself about the existence of certain facts or state of affairs cannot be delegated by him to anyone else. The decision in Sardari Lal's case that the President has to be satisfied personally in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... servant at pleasure is outside the scope of Article 154 and cannot be delegated by the Governor to a subordinate officer. This Court in State of Uttar Pradesh & Ors. v. Babu Ram Upadhya [1961] 2 S.C.R. 679 held that the power of the Governor to dismiss at pleasure, subject to the provisions of Article 311, is not an executive power under Article 154 but a Constitutional power and is not capable of being delegated to officers subordinate to him. The effect of the judgment in Babu Ram Upadhya's case (supra) was that the Governor could not delegate his pleasure to any officer nor could any law provide for the exercise of that pleasure by an officer with the result that statutory rules governing dismissal are binding on every officer though they were subject to the overriding pleasure of the Governor. This would mean that the officer was bound by the Rules but the Governor was not. In Babu Ram Upadhya's case (supra) the majority view stated seven propositions at p. 701 of the report. Proposition No. 2 is that the power to dismiss a public servant at pleasure is outside the scope of Article 154 and therefore cannot be delegated by the Governor to a subordinate officer and can be exerc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be dismissed or removed by authority subordinate to that by which he was appointed. The words "dismissed or removed by an authority subordinate to that by which he was appointed" indicate that the pleasure of the President or the Governor is exercised by such officers on, whom the President or the Governor confers or delegates power. The provisions of the Constitution which expressly require the Governor to exercise, his powers in his discretion are contained in Articles to which reference has been made. To illustrate, Article 239(2) states that where a Governor is appointed an Administrator of an adjoining Union Territory he shall exercise his functions as such administrator independently of his Council of Ministers. The other Articles which speak of the discretion of the Governor are paragraphs 9(2) and 18(3) of the Sixth Schedule and Articles 371(1)(b), 371A(1)(d) and 371A(2)(b) and 371A(2)(f). The discretion conferred on the Governor means that as the constitutional or formal head of the State the power is vested in him. In this connection, reference may be, made to Article 356 which states that the Governor can send a report to the President that a situation h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution after consultation with the State Public Service Commission and the High Court. Appointment or dismissal or removal of persons belonging to the Judicial Service of the State is not a personal function but is an executive function of the Governor exercised in accordance with the rules in that behalf under the Constitution. In the present appeals the two rules which deal with termination of services of probationers in the Punjab Civil Service (Judicia Branch) are Rule 9 of the Punjab Civil Service (Punishment and Appeal) Rules, 1952 and Rule 7(3) in Part D of the Punjab Civil. Service (Judicial Branch) Rules 1951 hereinafter referred to as Rule 9 and Rule 7. The services of the appellant Samsher Singh were terminated under Rule 9. The services of Ishwar Chand Agarwal were terminated under Rule 7(3). Rule 9 provides that where it is proposed to terminate the employment of a probationer, whether during or at the end of the period of probation, for any specific fault or on account of the unsatisfactory record or unfavorable reports implying the unsuitability for the service, the probationer shall be apprised of the grounds of such proPosal, and given an opportunity to sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is objective and is canifest. No abstract proposition can be laid down that where the services of a probationer are terminated without saying anything more in the, order of termination than that the services are terminated it can never amount to a punishment in the facts and circumstances of the case. If a probationer is discharged on the ground of misconduct, or inefficiency or for similar reason without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge it may in a given case amount to removal from service within the meaning of Article 311(2) of the Constitution. Before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post. In the absence of any Rules governing a probationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other object not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged. No punishment is involved, in this. The authority may in some cases be of the view that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 64 S.C. 449). If the facts and circumstances of the case indicate that the substance of the order is that the termination is by way of punishment then a probationer is entitled to attract Article 311. The substance of the order and not the form would be decisive. (See K. H. Phadnis v. State of Maharashtra [1971] Supp. S.C.R. 118). An order terminating the services of a temporary servant or probationer under the Rules of Employment and without anything more will not attract Article 311. Where a departmental enquiry is contemplated and if an enquiry is not in fact proceeded with Article 311 will not be attracted unless it can be shown that the order though unexceptionable in form is made following a report based on misconduct. (See State of Bihar v. Shiva Bhikshik [1971] 2 S.C.R. 191). The appellant Ishwar Chand Agarwal contended that he completed his initial period of two years' probation on 11 November, 1967 and the maximum period of three years' probation on 11 November, 1968 and by reason of the fact that he continued in service after the expiry of the maximum period of probation he became confirmed. The appellant also contended that he had a right to be confirmed and there wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (supra). This explanation in the present case does not mean that the implied extension of the probationary period is only between two and three years. The explanation on the contrary means that the provision regarding the maximum period of probation for three years is I directly and not mandatory unlike in Dharam Singh's case (supra) and that a probationer is not in fact confirmed till an order of confirmation is made. In this context reference may be made to the proviso to Rule 7(3). The proviso to the Rule states that the completion of the maximum period of three years' probation would not confer on him the right to be confirmed till there is a permanent vacancy in the cadre. Rule 7 (3) states that an express order of confirmation is necessary. The proviso to Rule 7(3) is in the negative form that the completion of the maximum period of three years would not confer a right of confirmation till there is a permanent vacancy in the cadre. The period of probation is therefore extended by implication until the proceedings commenced against a probationer like the appellant are concluded to enable the Government to decide whether a probationer should be confirmed or his services should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of subordinate judiciary. The High Court according to the appellant failed to act in terms of the provisions of the Constitution and abdicated the control by not having an inquiry through Judicial Officers subordinate to the Control of the High Court but asking the Government to enquire through the Vigilance Department. It was submitted on behalf of the State that the enquiry suggested by the High Court through the Director of Vigilance was not to satisfy itself about the unsuitability of the appellant but to satisfy the Government that the recommendation which had already been made by, the High Court for the termination of the service of Ishwar Chand Agarwal should be accepted. The High Court for reasons which are not stated requested the Government to depute the Director of Vigilance to hold an enquiry. It is indeed strange that the High Court which had control over the subordinate judiciary asked the Government to hold an enquiry through the Vigilance Department. The members of the subordinate judiciary are not only under the control of the High Court but are also under the care and custody of the High Court. The High Court failed to discharge the duty of preserving its control ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by the Registrar on 15 December, 1966 and asked the appellant to show cause a to why his services should not be terminated as he was found unsuitable for the job. The appellant gave an answer. On 29 April, 1967 the services of the appellant were terminated. The appellant Shamsher Singh in the context of the Rules of Business contended that the removal of a Subordinate Judge from Service is a personal power of the Governor and is incapable of being delegated or dealt with under the Rules of Business. We have already held that the Governor can allocate the business of the Government to the Ministers and such allocation is no delegation and it is an exercise of executive power by the Governor through the Council or Officers under the Rules of Business. The contention of the appellant that the order was passed by the Chief Minister without the formal approval of the Governor is, therefore, untenable. The order is the order of the Governor. The appellant was asked to show cause as to why his services should not be terminated. There were four grounds. One was that the appellant's behavior towards the Bar and the litigant public was highly objectionable derogatory, noncooperative and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant Samsher Singh was, one of punishment. The authorities were to find out the suitability of the appellant. They however concerned themselves with matters which were really trifle. Theappellant rightly corrected the records in the case of Prem Sagar. The appellant did so with his own hand. The order of termination is in infraction of Rule 9. The order of termination is therefore set aside. The appellant Shamsher Singh is now employed in the Ministry of law. No useful purpose will be served by asking for reconsideration as to the suitability of the appellant Samsher Singh for confirmation. If the authorities had at the proper time been a little more careful and cautious perhaps the appellant might not have left the subordinate Judicial Service and sought employment elsewhere. For the foregoing reasons we hold that the President as well as the Governor acts on the aid and advice of the Council of Ministers in executive action and is not required by the Constitution to act personally without the aid and advice of the Council of Ministers or against the aid and advice of the Council of Ministers. Where the Governor has any discretion the Governor acts on his own judgment. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of and actually exercising power in its comprehensive constitutional signification? Phrased metaphorically, is the Rashtrapati Bhavan or Raj Bhavan-an Indian Buckingham Palace or a half way house between it and the White House? This issue lays bare the basics. This Court has a solemn duty, as a high sentinel authorized by Art. 141, to declare what our law of the Constitution is, how our suprema lex has designed a project of power. The major instrumentalities must work in comity and avoid a collision course, ensuring the ultimate authority and continuous control of We, the People of India' through the House of elected members. In essaying this task we must keep away from ideological slants and imaginary apprehensions and should not import personal predilections-but inform ourselves of the grand design of our Constitution and the great models inspiring it. May be, our founding fathers were not political prophets who could foresee glaring abuses or perverted developments. In a passage which is classic, Mill told the lovers of liberty "Of what avail is the most broadly popular representative system, if the electors do not care to choose the best member of parliament, but choose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fresher,,; in the State judiciary, the appellants, were undergoing their prescribed probation. Before the full term set by the rules had run out, the High Court discovered unsavory conduct in these officers and, as controlling authority, considered the need to terminate their services on grounds of unsuitability. The ups and downs of the follow-up action vary in the two cases. In one, during the President's rule, the Governor, instead of acting on the High Court's advice indicated that the charges were vague and a fresh enquiry be held.Thereupon, the High Court requested the Director of Vigilance, to make some investigations which were actually carried out by his subordinate, the Superintendent of Police. The Administrative Full Court, however held, on the materials available, but without a formal or full-blooded enquiry, that on the proved charges the officer's probation deserved to be terminated for unsuitability. By then the Council of Ministers had come into being and, on a consideration of the High Court's report, the Chief Minister acted on it and ended the probation of the officer, although the Governor's personal satisfaction about this step was neither sought nor secured. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the course of the submissions, some criticism was leveled at the High Court requesting the Director of Vigilance police officer-to investigate into the veracity of charges against judicial officers. Thirdly, has the High Court the last word regarding termination of service of judicial personnel, Government being a formal agency to implement it? This was challenged at the bar, although we do not finally deal with it, for the reasons to be mentioned later. Other lesser illegalities were relied on, but they have been dealt with in the judgment of the learned Chief justice, with which we wholly agree. We confine ourselves to the dual principal pleas whose impact will far exceed the nullification of orders by Ministers removing judicial probationers from service and deserve careful study. The first broad proposition of the appellants is that the presidentand the Governor-are not just constitutional cousins of the British Queen, but real wielders of power, bestowed on them expressly by the terms of the text, almost next of kin to their American counterparts with similar designations. The issue is so fundamental that its resolution is necessary to know not only who can declare a probat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an version of the Westminster model with quasi-federal adaptations, historical modifications, geopolitical mutations andhomespun traditions-basically a blended brew of the British parliamentary system, and the Government of India Act, 1935 and near-American, nomenclature-wise and in some other respects. Not the Potomac, but the Thames, fertilizes the flow of the Yamuna. if we may adopt a riverine imagery. In this thesis we are fortified by precedents of this Court, strengthened by Constituent Assembly proceedings and reinforced by the actual working of the organs involved for about a silver jubilee' span of time. Historically, the Indian constitutional aspirations flowed along the British pattern. Granville Austin refers, in his book, to the Motilal Nehru Report and the Tej Bahadur Sapru Report and K.M. Munshi's Draft Constitution, in support. Several pages from the many volumes of the Constituent Assembly debates were read at the Bar and the keynote thought in the lengthy deliberations has been given by Granville Austin in these words : "in the rapidly moving world of the midtwentieth century, a new India had to be built almost overnight. How was the leadership for this ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ower really resided in the Ministry and in the Legislature and not in the President as such. At the same time we did not want to make the President just a mere figurehead like the French President. We did not give him any real power but we have made his position one of great authority and dignity. You will notice from this Draft Constitution that he is also to be Commander-in-Chief of the Defence Forces just as the American President is. Now, therefore if we had an election by adult franchise and yet did not give him any real powers, it might become slightly anomalous and there might be just extraordinary expense of time and energy and money without any adequate result." His opposition to a fixed tenure for Ministers stemmed from the same ground : "That raises a very fundamental issue of what form you are going to give to your Constitution, the ministerial parliamentary type or the American type. So far we have been proceeding with the building up of the Constitution in the Ministerial sense and...we cannot go back upon it." Shri K.M. Muashi expressed the historical reason for the acceptance of the parliamentary system. we must not forget a very important fact tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding the dissolution of the lower chamber of Parliament, only on the advice of his Ministers." The deletion of the earlier proposal for an Instrument of Instructions, has been mentioned in this context by some writers, but the reason for dropping it was set out by Alladi Krishnaswamy Ayyar in the Assembly thus : "It was provided in the Constitution... that the Council of Ministers would be collectively responsible to the House of the People. If a President stood in the way of the Council of Ministers discharging that responsibility, he would be guilty of violation of the Constitution and would even be liable for impeachment. It was, therefore, merely a euphemistic way of saying that the President had to be guided by the advice of his Ministers. The Council of Ministers was collectively responsible to the House of the People, answerable to the House in regard to the budget, all legislation and indeed for every matter connected with the administration of the country. There was therefore no necessity for setting out in detail in an article of the Constitution what the functions and incidents of responsible government would be." On another occasion he reiterated &quo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of the executive is both daily and periodic. The daily assessment is done by members of Parliament, through questions, resolutions, noconfidence motions, adjournment motions, and debates on addresses. Periodic assessment is done by the electorate at the time of the election which may take place every five years or earlier. The daily assessment of responsibility which is not available under the American system is, it is felt, far more effective than the periodic assessment and far more necessary in a country like India. The Draft Constitution in recommending the Parliamentary system of executive has preferred more responsibility to more stability." He silenced Mr. Kamath, who asked in the Assembly if refusal to accept Ministerial advice would amount to violation of the Constitution, with the words : "There is not the slightest doubt about it." Austin, in his well known book, adds: "Ayyar concurred with Ambedkar that a President who did not heed the advice of his Ministers would in fact be thwarting the will of Parliament, for which he could be impeached." Sardar Patel clinched the issue at a joint-session of two crucial Committees, in these words : &qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y convention, will become a constitutional President in all matters." These solemn words were uttered by the President of the Constituent Assembly at the great moment when the motion or final adoption of the Constitution was put to the vote of the Chamber. The most powerful dramatization of the Constitutional issue is found in a debating episode in the Constituent Assembly when Dr. Rajendra Prasad had pointed exchanges with Dr. Ambedkar. We may reproduce those telling pages here : "Mr. President : There is another amendment which has been moved by Sardar Hukum Singh in which he says that the President may promulgate ordinances after consultation with his Council of Ministers. The Honourable Dr. B.R. Ambedkar : I am very grateful to you for reminding me about this. The point is that that amendment is unnecessary because the President could not act and will not act except on the advice of the Ministers. Mt-. President : Where is the provision in the Draft Constitution which binds the President to act in accordance with the advice of the Ministers? Dr. Ambedkar : I am sure that there is a provision and the provision is that there shall be a Council of Ministers to aid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the executive powers of the Union and not in its legislative power. Dr. Ambedkar : Article 61 follows almost literally various other constitutions and the Presidents have always understood that that language means that they must accept the advice. If there is any difficulty, it will certainly be remedied by suitable amendment. The Ambedkar approach, unequivocally accepted, was "It is the Prime Minister's business, with the support of the Ministers, to rule the country and the President may be permitted now and then to aid and advise the Council of Ministers. Therefore, we should look at the substance and not at the mere phraseology which is the result of conventions." If the inner voice' of the founding fathers may be any guide, it is proved beyond reasonable doubt that the President and, a fortiori, the Governor, enjoy nothing more and nothing less than the status. of a constitutional head in a Cabinet-type governments few exceptions and marginal reservations apart. We must however notice that a strong current of high-placcd scholarship has expressed itself in the opposite direction. For instance, Mr. K.M. Munshi, the author, has gone back on his thesis as framer. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power, when ideologies are given the go-by for the temporary advantage of gaining and gathering votes on the basis of catchy slogans, when self-interest and petty considerations prevail over national interest and when an object of immediate gain gets ascendancy over the permanent and paramount object of bringing into existence a healthy and contented society assured of the basic requirements of life, there can be no guarantee against perversion and subversion of any Constitution howsoever perfectly it might have been drawn up', the learned jurist-judge states his sequitur : "In view of all these aspects. my view is that the Constitution has not imposed on obligation either on the President or on the Governors to act in accordance with the advice of the Council of Ministers in ill matters and under all circumstances and they have got a certain amount of discretion in the matter of preserving, protecting and defending the Constitution and devoting themselves to the service and well-being of the people of India, overriding the temporary advantages sought to be gained by any particular party in power for the time being." Shri P.B. Mukherjea, in his Chimanlal Setalvad Lectu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... story of India has been characterized only by benevolent monarchical traditions and not by any completely popular democratic institutions. The temperament and emotions of the Indian people have been attuned only to such institutions and they will have to gradually acclimatize themselves to a total democratic tradition," This attitude may give insight into why the conclusion he has drawn has been reached. it is argued that the President's action is beyond the scrutiny of the Court to know if it is based on Ministerial advice. Even so, the fact that Courts cannot enquire into whether any and, if so, what advice has been given by his Ministers to the Constitutional head does not mean the latter can act as he fancies. A thing is lawfully done not because a Court can examine it but because it is sanctioned by the law. Many are the ways, e.g. impeachment, censure by Parliament, massive protest-in which law is recognised by social organs. Rights are enforced not by Courts alone and remedies are not the source of right. The argument about the oath of office of President to defend the Constitution is sometimes put forward by antiministerialist advocates. Yes, he defends the Constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... To what extent is the President under, the Indian Constitution required, in the discharge of his functions, to act upon the advice of his Ministers', he has dealt with the relevant Article and the usual considerations put forward to reject the theory of a symbolic presidency. We quote : It was well understood during the framing of the Indian Constitution that the President must act on Ministerial advice. (a) In justifying the provision relating to the mode of election of the President-indirect election by the elected members (1) [1968] S.C.R. 455, 465 (2) Constitutional Law of India-H. M. Seervai-1968 reprint Vol. II p. 774. of Parliament and of the State Assemblies all over India instead of direct election based on adult suffrage (now art. 54 of the Constitution)-the Prime Minister said : "If we had the President elected on-adult franchise and did not give him any real powers, it might become a little anomalous." In other words, the intention was to emphasize that real power was vested by the constitution in the Ministry and not in the President. (b) It will be remembered that the draft of the Indian Constitution originally contained a schedule of instructions to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent to co-operate with him; bordering a general election-the consequences of the election might be most serious. If the electorate should return the same government to power, the President might be accused of having sided with the Opposition and thrown the country into the turmoil and expense of a general election in a vain attempt to get rid of a ministry that had the support of Parliament and the People. This would gravely impair the position of the: President. III. If we hold that in a conflict between the Ministry and the President, the President's voice should prevail in the last, resort, either generally or even in a particular class of cases,, this would mean the elimination to that extent of the authority of a Ministry which is continuously subject to control or criticism by the House of the People, in favour of the authority of a President who is not so subject. It would thus result in a reduction of the sphere of responsible government'. So important a subtraction must be justified by some express provisions in our constitution. IV. -If the President, in a particular case where his own views differ from those of his Ministers, ultimately accepts their advice in defence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essentially a constitutional monarch. The machinery of government is essentially British and the whole collection of British constitutional conventions has apparently been incorporated as conventions.' The text, the author notes, vests vast powers in the President but past history must provide the modus vivendi. In an article entitled Crown and Commonwealth in Asia' he, however, wrote : "Dr. Rajendra Prasad seems to have been following British conventions with some fidelity; but there is nothing in the Constitution which requires him or his successors to do so, and one of them may well say that he is not bound by the constitutional practices followed in a foreign monarchy and that he proposes to carry out the law and law alone." We have extensively excerpted from various sources not for adopting quotational jurisprudence' but to establish that the only correct construction can be that in constitutional law the functions' of the President and Governor and the business' of Government belong to the Ministers and not to the head of State, that aid and advice' of ministers are terms of art which, in law mean, in the Cabinet context of our constitutional scheme, that the aid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same note thus : "In not stating in detail the incidents of responsible government, our Constitution has followed the example of most of Dominion Constitutions excepting that of Ireland. In the ease of Ireland, as is well known, having regard to the circumstances under which the Irish Constitution came into existence, an attempt has been made to state in detail the incident of the Cabinet Government." "The one point which the President misses in the note is that though the executive power is technically vested in the President, just as the same is vested in the Crown in England, under Article 74 of the Constitution a Council of Ministers with the Prime Minister as the head has to aid and advise the President in the exercise of his functions. Article 74 is all-pervasive in its character and does not make any distinction between one kind of function and another. It applies to every function and power vested in the President, whether it relates to addressing the House or returning a Bill for reconsideration or assenting or withholding assent to the Bill. it will be constitutionally improper for the President not to seek to be guided by the advice of his Ministers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. One-fourth of the members of a House of parliament, suddenly aware of the danger, give notice of a motion to impeach the President. Before the fourteen days with,in which it can be moved, the President dissolves Parliament, a new House must be elected but it need not meet for six months. He dismisses the Ministers and appoints others of his own choice, who for six months need not be Members of Parliament and during that period he can legislate by Ordinance. He can issue a proclamation of Emergency, legislate on any subject and deprive the States of their shares in the proceeds of distributable taxes. He can issue directions to States calculated to provoke disobedience and then suspend the States'Constitutions. He can use the armed forces in support of the civil power. He can promulgate preventive detention Ordinances and imprison his opponents." Again, that learned jurist has commented "The Constitution vests the executive power of the Union in the President and provides that all executive action shall be taken in his name. The President is also given many powers, shortly to be discussed, but the last fourteen years have shown the world that India is a parliamentary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution meant to govern and therefore to be within the ken of the common man. We will focus largely on the leading decisions, the rest of the skein of case-law wound round the principal constitutional propositions deserving but passing reference. The overwhelming weight of judicial authority is in favour of the Cabinet system of government as inscribed in the Constitution. Mukherjea, C. J., in Rai Sahib Ram Jawya Kapur v. State of Punjab([1955] 2 SCR 225) observed: "Our Constitution, though federal in its structure, is modelled on the British Parliamentary system where the executive is deemed to have the primary responsibility for the formulation of governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of the State. * * * * In India, as in England, the executive has to act subject to the control of the legislature; but in what way is this Control exercised by the legislature ? Under article 53 (1) of our Constitution, the executive power of the Union is vested in the President but under article 75 there is to be a Council of Ministers with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Governor is essentially a constitutional head; the administration of Slate is run by the Council of Ministers. But in the very nature of things, it is impossible for the Council of Ministers to deal with each and every matter that comes before the Government. In order to obviate that difficulty the Constitution has authorized the Governor under sub-Art. (3) of Art 166 to make rules for the more convenient transaction of business of the government of the State and for the allocation amongst its Ministers, the business of the Government. All matters excepting those in which Governor is required to act in his discretion have to be allocated to one or the other of the Ministers on the advice of the Chief Minister. Apart from allocating business among the Ministers, the Governor can also make rules on the advice of his Council of Ministers for more convenient transaction of business. He cannot only allocate the various subjects amongst the Ministers but may go further and designate a particular official to discharge any particular function But this again he can do only on the advice of' the Council of Ministers. The Cabinet is responsible to the legislature for every action take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ging the whole concept of the Executive. It would mean that the President need not have a Prime Minister and Ministers to aid and advise in the exercise of his functions. As there would be no council of Ministers' nobody would be responsible to the House of the People. With the aid of advisers he would be able to rule the country at least till he is impeached under Article 61." * * * * The appellant urges that the House of People having been dissolved this clause cannot be complied with. According to him it follows from the provisions of this Clause that it was contemplated that on the dissolution of the House of People the Prime Minister and the other ministers must resign or be dismissed by the President and the President must carry on the Government as best as he can with the aid of the Services. As we have shown above, Article 74(1) is mandatory and, therefore, the President cannot exercise power without the aid and advice of the Council of Ministers. We must then harmonize the provisions of Article 75 (3) with Article 74 (1) and Article 75(2). Article 75 (3) brings into existence what is usually called Responsible Government. In other words the Council of Ministers must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid Dicey, students might read that the Constitution concentrated all executive power in the hands of the King. The language of this passage', he remarked, is impressive...... It has but one fault : the statements it contains are the direct opposite of the truth".' The President in India is not at all a glorified cipher. He represents the majesty of the State, is at the apex, though only symbolically, and has rapport with the people and parties, being above politics. His vigilant presence makes for good government if only he uses, what Bagehot described as, the right to be consulted, to warn and encourage'. Indeed, Art. 78 wisely used, keeps the President in close touch with the Prime Minister on matters of national importance and policy significance, and there is no doubt that the imprint of his personality may chasten and correct the political government, although the actual exercise of the functions entrusted to him by law is in effect and in law carried on by his duly appointed mentors. i.e., the Prime Minister and his colleagues. In short, the President, like the King, has not merely been constitutionally romanticized but actually vested with a pervasive and persuasive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State, still wherever the Constitution has expressly vested powers in the President by Governor, they belong to him alone and cannot be handled on his behalf by Ministers under the relevant Rules of Business. He concedes that we cannot read the Articles literally in the context of a Parliamentary Executive but insists on an exception in the category just mentioned. Inspiration for this argument comes from Sardarilal (2) and a few other Cases which do lead countenance to this rather extravagant claim of personal power for President and Governor. How ambitious and subversive such an interpretation can be to Parliamentary (and popular) authority unfolds itself when we survey the wide range of vital powers so enunciated in the Constitution. The argument of the counsel for the appellant is that wherever the President is invested with power-and the same holds good for the Governor-he is sovereign in his own right and has to exercise the functions personally and the orders of a proxy, even a Minister, cannot do duty for the exercise of Presidential power. There is logic in arguing that if, under Art. 31 1, the President or Governor means President or Governor personally. under other simi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India is a power vested in the President. The extraordinary powers of legislation by Ordinances, dispensing with enquiries against public servants before dismissal, declaration of emergency and imposition of President's rule by proclamation upon States. are vast powers of profound significance. Indeed, even the power of summoning and proroguing and dissolving the House of the People and returning Bills passed by the Parliament belongs to him. If only we expand the ratio of Sardarilal (2) and Jayantilal (12) to every function which the various Articles of the Constitution confer on the President or the Governor, Parliamentary democracy will become a dope and national elections a numerical exercise in expensive futility. We will be compelled to hold that there are two parallel authorities exercising powers of governance of the country, as in the dyarchy days, except that Whitehall is substituted by Rashtrapati Bhavan and Raj Bhawan. The Cabinet will shrink at Union and State levels in political and administrative authority and,, having solemn regard to the gamut of his powers and responsibilities, the Head of State will be a reincarnation of Her Majesty's Secretary of State for India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be delegated by him to any one else. Secondly even with regard to clause(c) of the proviso, there is a specific observation in the passage extracted above from the case of Jayantilal Amrit Lal Shodhan that the powers of the President under that provision cannot be delegated. Thirdly, the dichotomy which has. been specifically introduced between the authority mentioned in clause (b) and the President mentioned in clause (c) of the proviso cannot be without significance, The Constitution makers apparently felt that a matter in which the interest of the security of the State has to be considered should receive the personal attention of the President or the head of the State and he should be himself satisfied that an inquiry under the substantive part of clause (2) of Art. 311 was not expedient for the reasons stated in clause (c) of the proviso in the case of particular servant". Some observations in the ruling relied upon, namely Jayantilal Amritlal Shodhan v. F N. Rama ([1964] 5 S.C.R. 294, 307 & 308.) apparently seem to support the conclusion reached in Sardarilal,(Supra) but it must be remembered that the actual case turned on the constitutionality of the President delegati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they can be exercised by a Minister or an officer on his behalf according to the allocation made under the Rules of Business. Before jettisoning wholesale the theory of absolute power of Presidency we must deal with two Articles of the Constitution, one relating to the determination of the age of High Court Judges [Art 217 (3)] and the other relating to the Election Commission (Art 361) which have come up for judicial consideration. Counsel for the appellant has relied on passages from these cases which hark back, in a way, to the, theory of individual judgment of the Head of State. In J. P. Mitter v. Chief Justice, Calcutta ([1965] 2 S.C.R. 53, 68) this Court had to consider the decision of the Government of India on the age of a Judge of the Calcutta High Court and, in that context, had to ascertain the true scope and effect of Art. 217 (3) which clothes the President with exclusive jurisdiction to determine the age of a Judge finally. In that case the Ministry of Home Affairs went through the exercise prescribed in Art. 217 (3). "The then Home Minister wrote to the Chief Minister, West Bengal, that he had consulted the Chief Justice of India, and he agreed with the advic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ligatory. In all conceivable cases consultation with that highest dignitary of Indian-. justice will and should be accepted by the Government of India and the Court will have an opportunity to examine if any other extraneous, circumstances have entered into the verdict of the Minister, if he departs from the counsel given by the Chief Justice of India. In practice the last word in such a sensitive subject must belong to the Chief Justice of India, the rejection of his advice being ordinarily regarded as, prompted by oblique considerations vitiating the order. In this view it is immaterial whether the President or the Prime Minister or the Minister for Justice formally decides the issue., In Brundaban Nayak V, Election Commission (1) another Sensitive situation relating to the functions of the President (Art. 103) and the Governor (Art. 192) arose. It is a sacred principle of our democracy, like the independence of the Judiciary, that decisions on the disqualifications of Members of Assemblies should be unbiased. While formally the power to decide a dispute in this behalf is vested in the President and the Governor under Arts 103 and 192 respectively, it would be a travesty of impa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection Commission. Similarly,all complaints in respect to disqualifications subsequently incurred by members who have been validly elected, have, in substance to be tried by the Election Commission, though the decision in form has to be pronounced by the Governor." All these add up to making a Sovereign who can scotch the Legislature, rubberize the judiciary and overrule the Cabinet. One has only to case a glance at similar powers relating to the Governor to reach the same conclusion at the State level,with the additional fact or that an 'area of discretionary Power is expressly left to him. What is of grave import is that the Court has no jurisdiction to inquire what advice has been given by the Ministers to the President or the Governor and thus the effective judicial check on exercise of power is also under eclipse. If we read these powers literally as personal' to the Head of State. the conclusion is rather disquieting in a country which has already had a long night of imperial subjection and monarchical tradition. Dr. Ambedkar expressed this warning in the Constituent Assembly in words Which have contemporary relevance: "This caution is far more necessary in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st exist with it, deciding in the peaceful forms of forensic proceeding, the delicate and dangerous controversies inter alia, between sub-sovereignties and citizens. And the pronouncements of this summit tribunal being law under Art. 141, it binds until reinterpreted differently and competently. But as Judges we have solemnly to remind ourselves of the words of the historian of the U. S. Supreme Court, Mr. Charles Warren(1): "However the Court interpret the provisions of the Constitution, it is still the Constitution which is the law and not the decision of the Court." Nor is Sardarilal(2)of such antiquity and moment that are versal would upset the sanctity of stare decision. Some rulings, even of the highest Court, when running against the current of case-and the clear stream of Constitutional thought, may have to fall into the same class as restricted railroad ticket, goods for the day and train only, to adopt the language of Justice Roberts ( Smith v. Alleright, 321 U. S. 649, 665). We declare the law of this branch of our Constitution to be that the President and Governor, custodians of all executive and other powers under various Articles, shall, by virtue of thes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e control has been accomplished in England. The framers of our Constitution, impressed by this example have fortified the cherished value of the rule of law by incorporating provisions to insulate the judicature. Justice becomes fair and free only if institutional immunity and autonomy are guaranteed (of course there are other dimensions to judicial independence which are important but irrelevant for the present discussion). The exclusion of executive interference with the Subordinate Judiciary, i.e., grassroots justice, can prove a teasing illusion if the control over them is vested in two masters viz., the High Court and the Government, the latter being otherwise stronger. Sometimes a transfer could be more harmful than punishment and discipline control by the High Court can also be stultified by an appellate jurisdiction being vested in Government over the High Court's administrative orders. This constitutional perspective informed the framer of our Constitution when they enacted the relevant Articles, 233 to 237. Any interpretation of administrative jurisdiction of the High Court over its subordinate limbs must be aglow with the thought that separation of the Executive from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Art. 309 and the pleaser' doctrine expressed in Art. 310. The two probationers, who are appellants, have contended that what purport to be simple terminations of probation on the ground of unsuitability' are really and in substance by way of punishment and falling short of the rigorous prescriptions of Art. 311 (2), they are bad. Their complaint is that penal consequences have been visited on them by the impugned orders and since even a probationer is protected by Art. 311 (2), in such situations the Court must void those orders. Naturally, the launching pad of the argument is Dhingra's Case (supra). In a sense, Dhingra is the Manga Carta of the Indian civil servant, although it has spawned diverse judicial trends, difficult to be disciplined into one single, simple, practical formula applicable to termination of probation of freshens and of the services of temporary employees. The Judicial search has turned the focus on the discovery of the element of punishment in the order passed by Government. If the proceedings are disciplinary, the rule in Dhingra's Case (A.I.R. 1958 S.C. 36.) is attracted. But if the termination is innocuous and does not stigmatize the probationer or tem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an enquiry and without giving him a reasonable chance of showing cause against his removal from service, the probationary civil servant can have no cause of action, even though the real motive behind the removal from service may have been that his employer thought him to be unsuitable for the post he was temporarily holding, on account of his misconduct, or inefficiency, or some such cause." The 5th proposition states that the real motive behind the removal is irrelevant and the holding of an enquiry leaving an indelible stain as a consequence alone attracts Art. 311 (2) Ram Narayan Das (1) dealt with a case where the rules under the proviso to Art. 309 provided some sort of an enquiry before termination of probation. in such (1) A.I.R. 1961 S.C. 177. a case, the enquiry test would necessarily break down and so the Court had to devise a different test. Mr. Justice Shah (as he then was) stated the rule thus : "The enquiry against the respondent was for ascertaining whether he was fit to be confirmed. The third proposition in (the Gopi Kishore) case refers to an enquiry into allegations of misconduct or inefficiency with a view, if they were found established, to impos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retation-1972-N. M. Tripathi Pvt. Ltd., Bombay. way in later cases. In some cases the rule of guidance has been stated to be the substance of the matter' and the foundation' of the order. When does motive' trespass into foundation'? When do we lift the veil of form to touch the substance'? When the Course says so. Those Freudian' frontiers obviously fail in the work-a-day world and Dr. Tripathi's observations in this context are not without force. He says "As already explained, in a situation where the order of termination purports to be a mere order of discharge without stating the stigmatizing results of the departmental enquiry a search for the substance of the matter' will be indistinguishable from a search for the motive (real, unrevealed object) of the order. Failure to appreciate this relationship between motive (the real, but unrevealed object) and from (the apparent, or officially revealed object in the present context has led to an unreal interplay of words and phrases wherein symbols like motive', substance' form or direct parade in different combinations without communicating precise situations or entities in the world of facts." The need, in this branch of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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