This Article is written by Palak Nigam (Currently pursuing a B.A, LLB degree from KIIT School of Law, Odisha)
Table of Contents
PETITIONER: RAMESHWAR PRASAD & ORS.
RESPONDENT: UNION OF INDIA & ANR.
DATE OF JUDGMENT: 24/01/2006
BENCH: Y.K. Sabharwal CJI & K.G. Balakrishnan & B.N. Agrawal & Ashok Bhan & Arijit Pasayat
CITATION: (2006) 2 SCC 1
(BIHAR ASSEMBLY DISSOLUTION CASE)
This case is notably called the ‘BIHAR ASSEMBLY DISSOLUTION CASE’. It is a case is based on the subject matter of Election law in India which has shown to be a fairer and crystal clear procedure of elections in India. The main matter highlighted in the present case was the ‘LEGITIMACY OF THE POST-ELECTION READJUSTMENT’. This is a case of the Bihar Legislative Assembly Election of 2005 and decided by the apex court of India and presided by the 5-Judge constitutional bench headed by then CJI Y.K. Sabharwal dominates advancement in connection to the process of election in India.
FACTS OF THE CASE:
The Election Commission of India in the year 2005 conducted an election in the state of Bihar whose results were declared on 4th March 2005. There were a total of 243 seats in the state legislative assembly of Bihar and to form a majority in the assembly, the party needs to win 122 seats. The seats won by the parties were divided in the following way:
National Democratic Alliance Party (NDA) – 92 seats
Rashtriya Janta Dal Party (RJD) – 75 seats
Others- 9 seats
Hence, no party individually won the election and could not cross the majority marks. As a consequence, no government could be formed in Bihar so President’s rule was imposed in the respective state.
After obtruding the order by the President, the coalition’s major parties (NDA-BJP & RJD-JDU) were involved in the wrongful practices encompassing those where the members of these parties apparently pledged the LJP MLA’s money and political position to win them over. On the basis of religion, caste, and creed, etc, these MLA’s were undulated. This situation was brought before the president of India Abdul Kalam by the governor of the state, which was not paid attention at the governor’s first letter, but on giving the second letter some actions were taken. As a result, an emergency cabinet meeting was called by the president to look into the matter. The cabinet decided to dissolve the Legislative Assembly on 23rd May 2005, even though the convocation had its initial forum. This order raised an increase in the governmental clique which contended on the ground that without being a single meeting and Assembly not being formally met once, how it could be considered as operative and functional and if not functional then how it could be dissolved? In relation to the same, a PIL was filed before the Apex Court to challenge the constitutionality of the President’s order of dissolution, and the judgment to the same was delivered on 24 January 2006.
LEGAL ISSUES OF THE CASE:
Whether the termination of the meeting under Article 356(1) of the constitution could be adjured on the given ground?
Whether the announcement to dissolve the convocation of is unlawful and prohibited by law?
IDENTIFICATION OF PARTIES:
Name of Petitioner – Rameshwar Prasad & Ors.
Name of Respondent – Union of India & Anr.
SUMMARY OF ARGUMENTS ADVANCED:
According to the petitioner, Governor need not behave as per the direction of the Council of Ministers he must act at his own discretion. The court in this regard said that the Constitution of India incorporates the parliamentary or cabinet form of government like in the UK and hence the President or the Governor is constitutionally an official head in India. Further, petitioners argue in favour of the interpretation that tries to prevent the political scenario where the governor in spite of his bonafide intentions might be not able to give effect to the policy of ruling and governance enshrined in the constitution. The court favours an interpretation that tries to restrict a governmental scenario where the government chose not to discharge its political and constitutional role of summoning the assembly. Hence, Petitioner arguments indicate that the governor should be restricted from performing his duties and obligations while the court indicates his failure to perform the duties.
The petitioner also argues that the president’s rule imposed in Bihar is unconstitutional and illegal as the coalition government was formed in the Bihar legislative assembly and its first official meeting was also commenced and then declaring the President’s rule was against and constitution and therefore they file the case in the Apex Court of India.
The respondent contended that the decree order by the President was valid as there was no clear majority and a government in the legislative assembly of Bihar and the president was satisfied under article 356 of the constitution that the state administration was not carried as per the constitution and hence President’s order was imposed according to the report submitted by the Governor of Bihar.
INTERPRETATION OF LAWS:
Judicial Review under Article 356: Article 356 talks about the regional emergency to proclaim on the advice of the union government by the president if a matter has come where the state government cannot be carried as per the provisions of the constitution. Article 356(1) talks about if the president is complacent that the account given by the governor or the evidence exists then he has the capacity to purvey a command and work in these ways: 1. To exercise the executive capacity of the government of the state directly, 2. Shift legislative power of the state legislature of the parliament, 3. To make effective any provisions to give effect to the above ways. In the case of Rao Birender Singh v. Union of India, it was contended that the Punjab and Haryana court has no jurisdiction to review the evidence on which the president was satisfied. Further, it was contended that article 356 has its broad scope and such a command can be preventive or curative in nature, and the contentment of the president under article 356 is intuitive in nature and cannot be calculated by any experiment.
The extent and purview of judicial review under Article 356 were evolved by the apex court in S.R. Bommai v. Union of India. The power under article 356(1) was reviewable under various grounds held by the court. The whole range of executive law for the review of the political action under proclamation was applied by the court and was no longer considered as a privileged action. Further, these proclamations were subjected to judicial review in order to safeguard the basic structure of the constitution. The court on the basis of these tests disapproved of the three ways given under article 356(1).
Bommai case was extended by the court in the Rameshwar Prasad case where he arose as a consequence of the elections in Bihar in 2005 which conveyed a fragmented decision. As a result, the president’s rule was recommended by the governor under article 356. Political conflicts started between the parties and the NDA wanted to have a requisite majority to form a government. On the account of the governor, the forum was terminated and this was challenged in the Supreme Court.
Role of Governor
The governor has an important role in centre-state relations. In this system, it is required to concede the character of the governor rest in a democratic system. In 2005 the Governor’s conference was held where the president of India focused on the suggestions of the Sarkaria Council and said that the constitution provided various checks and balances whole the governor’s office has been granted with the independence to increase above the daily politics.
In the case of Hargovind Pant v. Dr. Raghukul Tilak & Ors., it was observed that whether a Governor could be contemplated as a worker of the administration? It was contended that the Governor is chosen by the head of state in the attainment of the administration but that is the sole way of choosing and it does not mean that the governor is worker of the administration.
Instrument of Instructions
The constituent assembly manifested to put instructions based on the report of the territorial constitution in the shape of scheme mentioned under the Constitution. This was considered to be important as the procedure of choosing and the instruction to work on the direction of cleric was not enshrined in the bill of rights. These instructions include merit build levels that are required from a governor while performing his obligation and choosing chief of state of the respective states after acquiring a stable majority. These were given as a plan or scheme as it is preferable as per the Assembly not to keep them into the main frame of the constitution, as they are protocols rather than legal statutes. But, the same was not considered to the constitution.
The Remedy in Rameshwar Prasad Case
In this case, the proclamation ordered under Article 356(1) was declared unconstitutional by the court. The main question comes before the court that what remedy is provided to society in this respect. Basically, the legislature is contemplated to be a self-governing organization with sovereignty, the court, and the executive. The doctrine of self-regulation is incorporated in the constitution under Article 194 which provides that the court may not impede legislative proceedings. The court emphasized his views where the exercise of parliamentary privileges with fundamental rights in the Raja Ram Pal case. Rameshwar Prasad withdraws from this doctrine of self-regulation in so far as the court declared the power to rescue a legislature that has been dissolved. Although the court, in this case, has recognized its power to maintain the status quo as prevailing before dissolution. In this way, it pointed the difference between the liability and remedies provided by the court. An election was declared in the state of Bihar and as this process was going on, the court was of the view that it is best not to rescue the legislative assembly and give permission to continue the election process to be held.
JUDGMENT/ DECISION OF THE CASE:
The decision was given with a 3:2 majority supporting the argumentation that the President’s order in the Bihar clearly meets test of unconstitutionality and was thus declared as UNCONSTITUTIONAL. The opinions of the minority were based on the following grounds which upheld the constitutional validity of the President’s rule. Firstly and foremost, the ineffectiveness of the Bommai’s case as there was no assembly in extant in Bihar as in the case of other state assemblies was dissolved. But it is established that the several factual situations can neither distract nor detract or dilute the principle laid down in the Bommai case nor distract its necessary reasoning. Secondly, it was contended that there was no material available to indicate that the governor really restrained the bracing of a claim by Janata Dal and no steps were taken by the party to upright its claim prevented by the Governor. On this argument was given with due respect to the court that the minority completely overlooked the whole purpose and aim of advocating the dissolution of the Assembly with coarse haste in order to restrict Nitish Kumar from bracing the claim to form the government. Thirdly, noted that if the governor felt that what was done was ethically incorrect, it couldn’t be considered administratively right. This is his viewpoint which may be erroneous. It might not be enshrined in the constitution as regards his powers is considered. The majority judgment that came with the reasoning by changing the course of Elections in India was that by constitutional the most responsible authority was the President who in hurry signed the order of dissolution. The President could ask the Council of ministers, he could take his own time, could make required consultations before signing such an order of dissolving the Bihar assembly, and should take a decision after watchful consideration. And he might also send the matter back to the Cabinet for reconsidering it. These rights and powers of the President are within the constitutional structure. In the present case what was declared unconstitutional by the court was the proclamation of the President and one cannot exonerate the President’s office of dispensing its constitutional duties and obligations. But the court passed a provincial order for conducting the second election as a result of which constitutional incongruity was created. This order make the petition unproductive because when the decision was given, the second government was already in power and for this reason, the President’s rule was declared unconstitutional, but restoration of the status quo cabinet was not ordered. This created irregularity between whether the case was actually a triumph of constitutionality over political evil or display its strength?
The constitutional validity to dissolve the Assembly was challenged in the petition. This is considered the unique case as before this case all cases were based on the dissolution of the Assemblies based on the ground where the parties lost confidence in the House. This case emphasis where before the initial meeting of the forum, was directed to dissolve on the grounds that a try are being moulded to devise seniority by unethical ways and put forward an assertion to form the majority government and if such tries have been continued then it would meddle with the constitutional provisions.
The termination of the forum under article 356 of the constitution can be allowed on the contentment that an issue has come where the government of the state cannot work as per the constitutional provisions. Such satisfaction can be sent to the president in the form of a report by the governor. It is also advisable to conclusion even without the governor’s report in a situation where there is some other corroborating evidence available to the president enshrined under article 356.
In this scenario, it is not in a conflict that the contentment that an issue has evolved in which the government of a state cannot proceed in accordance as per the constitution has been proceeded only on the grounds of the governor’s reports. It is not an issue of the Union of India that it has dependent on any other material other than the governor’s reports which have earlier been produced. In this case, the dissolution of the Bihar Assembly is only dependent on the governor’s reports and the main contention is also the role played by the governor as per the constitution which needed to be examined.
CRITIQUE OF THE DECISION:
The main critique pointed out is that the President used his discretionary power to declare the president’s ruled unconstitutional based on immorality and morality can be valid for one and cannot be for another means what a morality for one person it cannot be for another person and therefore the court declared the rule unconstitutional on an irrelevant grounds i.e. immorality and was declared to conduct the election.
Sarkaria Commission and this court both have noticed the criticism with respect to both the prevalence and the use of manner of the power under Article 356. Further, it has also been observed by the commission that the basis of the censure is that these provisions have been exploited in order to advance the interests of the party in power at the center or at the state level. There are some instances in which the power under Article 356 was used inadequately. It was envisaged by the makers of the constitution that these power should not be used for gaining proper management. It was also considered that this power cannot be cited, based on serious allegations of bribery against the Ministry.
The role of the governor also came under various critics on the basis that some governors have failed to exhibit the standard of equitability anticipated of them. According to the Sarkaria Commission report, this situation and failure occur as the governor is chosen by the president and also remain in office during his pleasure i.e. in the effect of the Union council of ministers. It was also added that the fact that it is not possible to formulate a rules of guidelines and standards for the working of the Governor will make it arduous for a Parliamentary Committee or the Apex court to examine a particular charge against a Governor.
 INDIA CONST. art.356, cl.1.
 Y.K. SABHARWAL, Rameshwar Prasad & Ors Versus Union of India & Anr, outlook (24 Jan 2006), https://www.outlookindia.com/website/story/13-rameshwar-prasad-ors-versus-union-of-india-anr/229945.
 INDIA CONST. art.356.
 Rao Birender Singh v. Union of India, AIR 1968 Punj 441.
 S.R. Bommai v. Union of India, 1994 AIR 1918, 1994 SCC (3) 1.
 Rameshwar Prasad v. Union of India, AIR 2006 SC 980.
 Hargovind Pant v. Dr. Raghukul Tilak & Ors., 1979 AIR 1109, 1979 SCR (3) 972.
 Supra note 1.
 Rameshwar Prasad & Ors. v/s. Union of India & ANR., LAWYERSCLUBINDIA (17 June 2019), https://www.lawyersclubindia.com/judiciary/rameshwar-prasad-ors-v-s-union-of-india-anr–4131.asp.