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TMI Blog1991 (3) TMI 407X X X X Extracts X X X X X X X X Extracts X X X X ..... ct was enacted in the year 1983, but it was enforced in the year 1985. Various local governments were constituted under the Act such as Mandal Panchayats (for the villages), Taluk Panchayat Santithis at the Taluk level and Zilla Parishads for the District level, excepting the areas covered by the Town Municipalities and City Corporations. The members of the Zilla Parishad are substantially elected by the voters directly. However, members of the State Legislature are also treated as members. The members of the Zilla Parishad elect the Adhyaksha and Upadhyakshas. The election is based on the highest polled amongst the candidates, who contest for the office of Adhyaksha and Upadhyaksha. They are to be the members of the concerned Zilla Parishad. Section 168 of the Act states that Adhyaksha shall be the executive head of the Zilla Parishad and shall perform all the duties imposed and exercise the powers conferred on the Adhyakasha under the Act and the Rules made thereunder. Sec. 169 enumerates the powers of Upadhyaksha. As per S. 170 the Zilla Parishad shall hold a meeting at least once in every month. The Zilla Parishad has considerable powers in the matter of administering welfare l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in several aspects and the said Bill No. 25 of 1990 was introduced on 27th November, 1990. The legislature is seized of the matter. The amendment proposed includes amendment of the provisions to enable the removal of Mandal Pradhans also under similar circumstances. The Assembly adjourned on 27th December, 1990. When the Bill was still pending. On 8th January 1991 the Governor prorogued the Assembly under Art. 174 of the Constitution and within a few days the impugned Ordinance was promulgated on 1st February, 1991. 5. The contentions of the petitioners may be summarised as follows :-- (1) The impugned Ordinance is invalid because the condition precedent for the exercise of the power under Art. 213 did not exist; in other words, there were no circumstances, existence of which were necessary for the Governor to be satisfied that it is necessary for him to take immediate action by promulgating the Ordinance. (2) The exercise of the power in promulgating the ordinance is a colourable exercise of the power. (3) The action in promulgating the Ordinance is vitiated by mala fides. (4) The Bill having already been in introduced in the State legislature and again the Assembly has been sum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... privilege which cannot be waived. Consequently the Supreme Court observed at p. 798 : It is well to remember that it is duty of this Court to prevent disclosure where Article 74(2) is applicable. We are convinced that the notings of the officials which lead to the cabinet note leading to the cabinet decision formed part of the advice tendered to the President as the Act was preceded by an Ordinance promulgated by the President. 8. Except the political colour attributed to the advice tendered, no other personal motivation has been alleged against any other members of the cabinet and similarly no other motivation is attributed to the cabinet also. It is now well established that the promulgation of an ordinance by the Governor is according to the advice tendered by the Council of Ministers and if so, it is the collective decision of the cabinet and it cannot be said that the motive, if any, of one individual member of the cabinet can be attributed to the collective decision of the cabinet. Consequently this aspect of the petitioner's contention is rejected at the outset. 9. In the statement of objection filed by the State, it has raised a preliminary objection against the proprie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioners also have referred to a few decisions of the Supreme Court wherein observations are found regarding the availability of judicial power to probe into the satisfaction of the Governor under Art. 213. Before considering these various decisions, it is necessary to refer to the decision of the Supreme Court, which according to us is directly on the point and which has been referred in the statement of objection filed by the State. 11. In T. Venkata Reddy v. State of Andhra Pradesh posts of part-time village officers were abolished by an Ordinance. This Ordinance was challenged and one of the contentions was that the said Ordinance was void and ineffective due to lack of application of mind by the Governor to the subject-matter of the Ordinance. Justice E. S. Venkataramiah, J. (as he then was) speaking for the Constitution Bench traced the history of the relevant Article from the days of the Government of India Act 1915 as well as the Government of India Act 1935 and notice that the provisions of S. 88 of the Government of India Act 1935 was more or less in similar terms as in Art. 213 of the Constitution and then quoted the decision of the Federal Court in Lakhi Narayan Das v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to the ultimate conclusion on the question raised before the court is necessarily binding on us just as the ultimate conclusion. In fact in Lakhi Narayan Das's case AIR 1950 FC 59 the question directly arose before the Federal Court in connection with the Ordinance issued under S. 88 of the Government of India Act. The language of S. 88 is similar to Art. 213 of the Constitution. The contention urged before the Federal Court was that no circumstances existed as is contemplated by S. 88 which could justify the Governor in promulgating the ordinance (see at p. 61). The Federal Court said that this matter was not within the competence of courts to investigate. The observations of the Federal Court are : It is admitted that the Bihar Legislature was not in session when this Ordinance was passed. It was urged, however, in the court below, and the argument was repeated before us, that no circumstance existed as is contemplated by S. 88(1) which could justify the Governor in promulgating this Ordinance. This obviously is a matter which is not within the competence of Courts to investigate. The language of the section shows clearly that it is the Governor and the Governor alone who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 14. We are bound by the decision of the Supreme Court. If there is a direct decision of the Supreme Court on any question, it is impermissible for the High Court to follow the opinion of any learned author, whatever his eminence be, ignoring the said decision. Further, if the Ordinance unconstitutionally encroaches on the fundamental rights of a subject, irrespective of the justiciability of the satisfaction of the executive leading to the Ordinance, said Ordinance is liable to be struck down. The question really would be, whether the Ordinance adversely and unconstitutionally affects the rights of a subject. 15. Any person in this country (citizen Or non-citizen) has his or its guaranteed rights, guaranteed under Part III of the Constitution. An Ordinance issued by due deliberation and in full bona fide exercise of the power (i.e., considering all relevant circumstances and eschewing irrelevant considerations), would still be liable to be struck down if the Ordinance offends any of the fundamental rights. However, if no fundamental right is affected and the subject matter of the Ordinance is within the legislative competence of the State (when the Ordinance is of the Governor), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was justified in enacting the law at a particular point of time; in other words, the legislature is the sole judge to be satisfied of the circumstances for enacting the law. This exclusiveness in arriving at its own satisfaction, by the legislature has been recognised as available to the Governor also, while promulgating the Ordinance. 19. It is true, Art. 245 does not say that the legislature or Parliament may enact a law if it is satisfied that circumstances exist for enacting a particular law. But existence of such a circumstance is presumed to exist always. Constitution has thought it fit that the Governor should have an overall power to make a law by promulgating an Ordinance and while promulgating an Ordinance, the Governor acts as the legislature itself; the phraseology of Art. 213(2) is to declare an Ordinance to have the same force and effect as an Act of the legislature. If circumstances leading to the satisfaction while promulgating an ordinance is justiciable, the efficacy of the ordinance would not be of the same character and quality as of an Act of the legislature. The justiciability of the satisfaction would dilute the force and effect when compared to the Act of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned counsel developed their contention, that the promulgation of the Ordinance on the alleged satisfaction as to the existence of circumstances, in the instant case, cannot stand the judicial scrutiny and the circumstances relied upon in the statement of objections are extraneous and the Governor ignored relevant circumstances. 21. Under Article 356(1), if the President..... is satisfied that a situation has arisen in which the government of the State cannot be carried..... the President may issue the requisite proclamation. The language is compared with Art. 213, wherein it says that if the.....Governor is satisfied that circumstances exist which render it necessary for him to take immediate action.....he may promulgate an ordinance . The key word is the 'satisfaction' of the President or the Governor; if the satisfaction under Art. 356 could be the subject matter of judicial scrutiny the ' satisfaction ' under Art. 213 also could be scrutinised for the relevancy of the circumstances leading to such a satisfaction -- this was the line of arguments. A vast number of decisions arising under Administrative law were cited to persuade the court to examine the vali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnor's satisfaction based on his appreciation of the circumstances warranting the promulgation of an ordinance, is the setting in which the relevant words are used in Art. 213. No doubt, the Governor acts on the advice of his council of Ministers, who in turn are responsible to the legislature. This is a constitutional provision providing for a situation when the legislature is not in session; the promulgated ordinance has limited period of life. During the period when the legislature is not session, for the purposes of law making, the Constitution, in effect, has treated the Governor as the legislature. Though the Government is normally, understood as wielding an executive power, jurisprudentially, he is not a mere executive . He is the 'head' of the 'State'; the term 'State' comprising within itself the three departments, legislature, judicial and the executive. Therefore, at least in this area covered by Art. 213 while exercising the power to make the law, it cannot be said that he bears attributes of an executive only. It is this principle that seems to have been applied by the Federal Court and the Supreme Court AIR 1950 FC 59 and These decisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest.... 26. For a temporary period, the executive (i.e., the council of ministers) may have the power to promulgate an ordinance; but the executive cannot be unmindful to its answerability to the legislature; the very existence of the said executive depends upon the pleasure of the legislature. In practice, may be, the legislature functions depending upon the party affiliations of its members. But the real question is, so long as the laws, enforced (or made) by the executive has the backing of the legislature, can it be stigmatised as governance by the executive undemocratically ? Is it entirely unreasonable ? The classical statement of Patanjali Sastri, C.J. in State of Madras V. V. G. Row requires to be remembered while considering the petitioners' submission that neither the executive nor the legislature can be expected to act reasonably having regard to the political realities; the learned Chief Justice stated : It is important in this context to bear in mind that the test of reasonableness wherever prescribed, should be applied to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Supreme Court in Venkata Reddy's case The observation of the Supreme Court in R. C. Cooper's case, was cited to say that the determination by the President of the existence of circumstances and the necessity to take immediate action on which the satisfaction depends is not declared final and that it is a conditional power; but this observation is of no avail to the petitioners in view of the subsequent observation of the Supreme Court in the very decision at para 27 wherein the Supreme Court stated that there was no need to express any opinion in the said case on the extent of the jurisdiction of the court to examine whether the condition relating to satisfaction of the President was fulfilled. 29. Since A. K. Roy's case and R. C. Cooper's case have been considered in Venkata Reddy's case we need not refer to the said citations here again. However, in both the aforesaid decisions (AIR 1981 SC 2138 the Supreme Court did not lay down any proposition to the effect that the judicial power is available to scrutinise the satisfaction of the Governor under Art. 213 of the Constitution or that of the President under Art. 74 of the Constitution. 30. The State of Raja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mstances did not exist for issuance of the ordinances repeatedly. 32. The ratio of the aforesaid decision of the Supreme Court cannot be understood in the manner propounded by the learned counsel for the petitioners. The Supreme Court was considering as to whether Art. 213 empower the making of an ordinance and promulgating it repeatedly resulting in circumventing the very provision of Art. 213. Under Art. 213 the life of an ordinance cannot go beyond six weeks from the reassembly of the legislature. Art. 213 has fixed the maximum duration of the life of an ordinance. If so, that life cannot be extended beyond that period by repeating the promulgation. Here the Supreme Court was concerned with the power of the Governor to make the ordinance. It is on par with the question as to the legislative competence of the legislature to enact a law. The question related to the initial jurisdiction of which the Governor is not the sole judge. But whether the circumstances justify an immediate action is to be decided by the Governor alone under Art. 213. Said question is within his competence. Said question is not comparable with the question that was posed before the Supreme Court in Wadhwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uirement governs and pervades every facet of the power created not only by law, but also by the Constitution. It was contended that if an amendment to the Constitution can be nullified by the courts as violative of the basic structure of the Constitution which includes the concept of Rule of law, why not the satisfaction of the Government under Art. 213 be questioned similarly. The short answer is the setting in which the power has been created under Art. 213. It is not as if the people are without any remedy against an unconstitutional or improper exercise of the power. The Constitution has created a machinery to make the law under a situation when the legislature is not in session and confine the life of the said law to a limited period. The law is promulgated by the Governor on the advice of the council of Ministers who are fully answerable to the legislature. We have already referred to this aspect of the question while referring to the decision of the Supreme Court in the State of Rajasthan v. Union of India. We however, make it clear that if on merits the ordinance offends any of the guaranteed rights under the Constitution, without any hesitation this court will strike down ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, in any manner, arbitrary, unreasonable and thereby violate Arts. 14 and 16 of the Constitution. 38. The attack against the ordinance that, it offends Art. 14 in view of its target being confined only to the two elected offices of Adhyaksha and Upadhyaksha, is not acceptable; these two offices are of different category from other elected offices in the administration of local governments. When the ordinance does not offend any of the fundamental rights, question of its violating the basic structure of the Constitution does not arise. The procedural aspect of the ordinance, in the sense, that, it has been issued when the Bill on the subject has been introduced in the Assembly, cannot be held as opposed to any basic structure of the Constitution because, the Constitution itself envisages promulgation of an ordinance, if the Governor is satisfied that the circumstances warrant the promulgation. The contention of the petitioners is an indirect method to circumvent ratio of the Supreme Court's decision in Venkata Reddy's case wherein, existence of circumstances for the satisfaction of the Governor under Art. 213, was held as non-justiciable. Since we are precluded from going ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion whether the circumstances when disclosed could be examined by the Court as justifying the satisfaction arrived at by the Governor under Art. 213 is not covered by the decision of the Supreme Court in Venkata Reddy's case there are a few observations in earlier decision such as in Co-oper's case and A. K. Roy's case, AIR 710 which to some extent justify the contention put forth by the learned counsel for the petitioners. Similarly, observations of the Supreme Court in State of Rajasthan v. Union of India also, to some extent support the petitioners' contentions. In these circumstances, we are of the view that this is a matter, in which the Supreme Court will have to finally decide the question posed by the learned counsel for the petitioners. Accordingly we certify that these cases involve a substantial question of law as to the interpretation of Art. 213 of the Constitution and the power of the High Court under Article 226 of the Constitution to examine the disclosed circumstances leading to the satisfaction of the Governor under Art. 213. The oral application under Art. 134-A of the Constitution is allowed and the certificate is granted thereunder. 43. There wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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