B.M. Lal, B. Kumar and M. Katju, JJ.—For the reasons recorded separately this court unanimously holds that the impugned Presidential Proclamation dated 17-10-1996 reimposing Presidential Rule under Article 356 of the Constitution of India in the State of Utter Pradesh subsequently approved by the Parliament is unconstitutional, issued in colourable exercise of powers and is based on wholly irrelevant and extraneous grounds and therefore, cannot be allowed to stand, consequently the same is hereby quashed.

2. However, to avoid any constitutional dead-lock or crisis resultant to the quashing of aforesaid Proclamation, we direct, by applying the doctrine of prospective overruling, that this judgment shall come into operation with effect from 26-12-1996.

B.M. Lal, J.—The judgment delivered in Writ Petition Mo. 3129 (MB) of 1996, shall govern disposal of all the six writ petitions filed in the shape of Public Interest Litigation challenging the constitutional validity of the Proclamation dated 17-10-1996 issued by His Excellency Honble the President of India in exercise of His powers conferred by Article 356 of the Constitution of India.

2. Thirteenth Legislative Assembly of Uttar Pradesh returned with fractured/hung verdict of the electorate resulting into Presidential Rule and the germane questions surfaced for judicial determination by this Court are as under :

(1) Whether or not, in the given situation of instant case, continuation of Presidential Rule beyond one year is constitutionally permissible in Uttar Pradesh on the face of existing Sub-clause (6) of Article 356 of the Constitution of India.

(2) Whether or not, in the given situation of instant case the impugned Presidential Proclamation dated 17-10-1996 is issued in colourable exercise of powers and is based on extraneous, malafide and wholly irrelevant grounds and as a result of it a judicially discoverable and manageable issue has arisen.

(3) Whether or not, in the given situation of instant case. Honble the Governor of Uttar Pradesh was constitutionally obliged or bound to invite the largest single party of thirteenth Legislative Assembly of Uttar Pradesh to form the Government.

3. The main relief amongst other sought by means of all the six writ petitions is to issue an order, direction or writ in the nature of Certiorari quashing the impugned Proclamation dated 17-10-1996 and any other order, direction or writ commanding the respondents to install an elected Government in Uttar Pradesh.

4. Before endeavouring to deal with the constitutional validity of impugned Proclamation issued under Article 356 of the Constitution of India, it appears necessary to state as to how this Full Bench came to be constituted by Honble the Chief Justice of High Court of Judicature at Allahabad.

5. It so happened that soon after imposition of impugned Presidential Rule petitions after petitions in the shape of Public Interest Litigation have been filed by the citizens of Uttar Pradesh as well as newly elected Members of Legislative Assembly of Uttar Pradesh and the political party before the Lucknow Bench of High Court of Judicature at Allahabad challenging the constitutional validity of impugned Presidential Proclamation and all those petitions have been heard and decided by the Division Bench of High Court of Judicature at Lucknow, consisting of Honble Mr. Justice S. H. A. Raza and Honble Mr. Justice A. N Gupta on 19-11-1996. Honble Mr. Justice S.H.A. Raza has dismissed the writ petitions whereas Honble Mr. Justice A. N. Gupta has allowed the writ petitions and has quashed the impugned Proclamation dated 17-10-19.96 and has further commanded to invite the largest single party within 3 days to form democratic Government in Uttar Pradesh. The Divsion Bench therefore, referred the matter to Honble Chief Justice to nominate a larger Bench or an Honble III Judge under Chapter VIII Rules 3 and 7 of the Rules of the Court to hear and decide the matter.

6. In this regard it is relevant to mention that in Sri Ram Industries Enterpries Ltd. v. Union of India 1996 (28) ALR 5 :1996 ALJ 468, this Court has ruled that where a Division Bench expresses difference of opinion formulating the points of difference, the Full Bench can hear and give its opinion only on the points which have been referred to it and beyond that it is not open to the Full Bench to de-novo hear the case and give its opinion on the questions which have not been referred to it.

7. But in the instant case both Honble Judges forming the Division Bench have delivered their respective judgments separately without formulating the points on which they have differed and as such the points of difference have not been formulated and referred to this Full Bench Therefore, Honble the Chief Justice of High Court of Judicature at Allahabad by his order dated 29-11-1996 has rightly constituted this Full Bench for hearing and deciding the cases.

8. Thus, when the cases came to be heard before the Full Bench no preliminary objection was raised by either party in de-novo hearing of the cases. However, when the hearing of the case was likely to be closed Sri Shanti Swarup Bhatnagar, learned Advocate General of Uttar Pradesh pointed out that this Full Bench can give its opinion only on the points of difference and the matter has to be remitted to the Division Bench for disposal of the writ petitions. But this submission of Sri Bhatnagar was overruled in the open Court for the reason that the points of difference have not been formulated and referred to this Full Bench and therefore, the Full Bench has to rehear and decide the whole matter de-novo and Honble the Chief Justice has rightly constituted this Full Bench for the purpose.

9. Now coming to the genesis of these cases it is necessary to have brief facts relevant for determination of the questions involved which may be summarised as under:

10. In the twelfth Legislative Assembly of Uttar Pradesh for which the elections were held in the year 1993, the combined alliance of Samaj-wadi Party headed by Sri Mulayam Singh Yadav (for short the S. P.) and Bahujan Samaj Party headed by Sri Kanshi Ram (for short the B. S. P.) formed Government in Uttar Pradesh under the Chief Ministership of Sri Mulayam Singh Yadav. This coalition Government did to last long and continued only till 2-6-1995 when the B.S.P. group withdrew its support with the result Sri Mulayam Singh Yadav Government came in minority in the Legislative Assembly and was consequently dismissed by the Governor. Then Km. Mayawati, leader of B.S.P., staked her claim to form the Government with the support of Bhartiya Janta Party and other political parties except the Samajwadi Party and on 3-6-1995 Governor of Uttar Pradesh in exercise of his powers, authority and jurisdiction conferred by Article 164(1) of the Constitution of India appointed Km. Mayawati as Chief Minister of Uttar Pradesh and administered the oath. Km. Mayawati succeeded in winning the vote of confidence in the Assembly and continued as Chief Minister till 18-10-1995 How were, on 18th October, 1995 Bhartiya Janta Patty withdrew its support with the result Km. Mayawati Government came in minority and in the absence of any alternative she had to tender resignation which was accepted by the Governor and she was allowed to carry on as care-taker till alternative arrangement was made.

11. Thereafter no political group came forward to form the Government, therefore, there was no option with the Governor but to submit report to Honble the President of India that the Government of Uttar Pradesh cannot be carried on in accordance with the Constitution of India and as such Governor of Uttar Pradesh recommended for action under Article 356 of the Constitution of India.

12. Thus, on 18th October, 1995 His Excellency Honble the President of India imposed Presidential Rule in Uttar Pradesh under Sub-clause (1) of Article 366 of the Constitution of India and directed that all the functions of the Government of Uttar Pradesh and all the powers vested in or exercisable by the Governor of Uttar Pradesh under the Constitution or under any law in force in Uttar Pradesh which have been assumed by the President by virtue of Clause (a) of the said Proclamation, shall subject to the superintendence, direction and control of the President, be exercisable also by the Governor of Uttar Pradesh. The President of India also declared that the powers of the Legislature of U. P. shall be exercisable by or under the authority of Parliament. Thereafter, the President of India by an other Notification dated 23-10-1995 dissolved the Legislative Assembly of Uttar Pradesh.

13. The aforesaid Notification dated 18-10-1995 was approved by both the Houses of Parliament within two months and therefore, it was to continue for a period of 6 months from the date of Notification. Thereafter as required by the Sub-clause (3) of Article 356, aforesaid Proclamation was again approved by Rajya Sabha on 11-3-1996 and by the Lok Sabha on 12-2-1996 and as such it was to continue up to 17th October, 1996 unless revoked earlier.

14. However, finding the situation conducive for general elections, necessary Notifications were issued by the Election Commission of India and entire process of poll was completed between 29-9-1996 to 9-10-1996. The election results of all constituencies were announced by the respective Returning Officers of the Districts by 10-10-1996. Accordingly Bhartiya Janta Party and its ally secured 176 seats, the United Front secured 134 seats, the B.S.P. and Congress combine secured 100 seats and independents and others secured 14 seats out of total 424 seats. Thus, the thirteenth Legislative Assembly of Uttar Pradesh came into existence in the shape of fractured/hung Assembly making the appointment of Chief Minister and Council of Ministers a Herculean t3sk for the Governor of Uttar Pradesh as the Council of Ministers has to be collectively responsible to the Legislative Assembly of Uttar Pradesh in view of Sub-clause (2) of Article 164 of the Constitution of India.

15. Thus, from the above mentioned party position in the thirteenth Legislative Assembly it is clear that the largest single party (Bhartiya Janta Party) having 176 members was short of majority by 37 members, the United Front including S P. having 134 members was short of majority by 79 members and the B.S.P. Congress alliance having 100 members was short of majority by 113 members in the House of 425 members. For the reasons best known to the political parties, may be for political rivalries amongst the political groups, no political understanding could arrive at to give or take support among themselves with the result the Governor is said to be not satisfied about any political party or group having confidence of the House. Mo political party or group staked its claim to form the Government except the largest single party i. e. Bhartiya Janta Party which too as mentioned above was short of majority by 37 members.

16. Besides hectic efforts of political parties or groups, His Excellency Honble the Governor of Uttar Pradesh is also said to have explored all possibilities for the formation of elected Government within the framework of constitutional mandate. However, on 15th October, 1996, Honble Governor wrote a letter to His Excellency Honble the President of India apprising His Excellency of the political situation in Uttar Pradesh, and that there was no political party or group in a position to form the stable Government or to garner support without unscrupulous horse trading or use of money power etc. By another letter dated 16-10-1996, reiterating the views expressed in preceding letter, Honble the Governor of Uttar Pradesh sent a second report, relevant portion of which reads as under:

"As such there appears to be no alternative but to again re-impose President Rule under Article 356 of the Constitution and for the present newly elected State Assembly can be kept in suspended animation."

17. It it only thereafter that vide Notification dated 17-10-1996 in exercise of powers conferred by Clause (2) of Article 356 of the Constitution, His Excellency Honble the President of India revoked the earlier Proclamation dated 18-10-1995, and on the same day i e. on 17-10-1996 itself His Excellency Honble the President of India by another Notification No. 1/2/2/96-C. X. (1) dated 17-10-1996 re-imposed the President Rule in Uttar Pradesh. However, on 17-10-1996 itself the Election Commission of India also issued Notification dated 17-10-1996 u/s 73 of Representation of the People Act, 1951 as a result of which the newly elected. Thirteenth Legislative Assembly of Uttar Pradesh is deemed to have been constituted.

18. It is this Notification, which is sought to be quashed by means of aforesaid writ petitions, being Notification No. 1/2/2/96-C.X. (1) dated 17th October, 1996, issued by His Excellency Honble the President of India in exercise of his powers conferred by Article 356 of the Constitution and all other powers enabling him in that behalf and whereby ell functions of the Government of Uttar Pradesh and all powers vested in or exercisable by the Governor of Uttar Pradesh have been assumed by the President of India and it has been declared that the power of the Legislature of Uttar Pradesh shall be exercisable by or under the authority of Parliament and also whereby other incidental and consequential provisions provided therein have been made and the operation of following and other provisions of the Constitution have been suspended in relation to State of Uttar Pradesh :

Sub-clause (2) of Article 151.

Articles 163 and 164.

Clause (3) of Article 166.

Article 167.

Clause (1) of Article 169.

Clause (1) of Article 174.

Articles 175, 176 and 177.

Clause (c) of Article 179 and the first proviso to that Article.

Article 181.

Clause (c) of Article 133 and the proviso thereto.

Articles 185, 188, 189, 193, 194 and 196 to 198 (both inclusive).

Clauses (3) and (4) of Article 199.

Articles 208 to 211 {both inclusive).

The proviso to Clause (1) and the proviso to Clause (3), of Article 213; and

Clause (2) of Article 323.

19. It is important to mention that the hearing of the cases commenced before this Full Bench in the morning on 4-12-1996 a concluded on 9-12-1996. In between both Houses of Parliament accorded approval to the impugned Notification dated 17-10-1996. Thereto; by means of amendment application, petitioners prayed for amendment in the writ petitions by incorporating the facts, grounds and relief challenging the approval accorded by both Houses of Parliament. During the course of hearing by order dated 9-12-96 passed by the Full Bench the petitioners were allowed to incorporate the amendments during to course of the day.

20. Now coming to the cases as set out by respective parties, appears that according to the petitioners it was not constitutional permissible for the respondents to continue the Presidential Rule in Uttar Pradesh beyond the period of one year, in view of Clause (5) of Article 356 of the Constitution. Further according to the petitioners only one situation continuance of Presidential Rule beyond one year is constitutionally permissible, if there is a Proclamation of Emergency and to Election Commission certifies that the continuance of Presidential Rule necessary on account of difficulties in holding general elections of the Legislative Assembly but in Uttar Pradesh since this situation was not existence on 17-10-1996, hence continuance of President Rule was not permissible in Uttar Pradesh. Even the fresh Proclamation was not permissible as on 17-10-1996 the Government of Uttar Pradesh was being carried on by the President of India through the Governor and about that Government it was meaningless to presume, that the same cannot be carried on in accordance with the provisions of the Constitution.

21. According to the petitioners Governor of Uttar Pradesh was constitutionally bound and the constitutional obligation was on the Governor to appoint Chief Minister under Article 164 of the Constitution by inviting the largest single party or any other political party or group which, in the judgment of Governor, preponderated the probabilities having majority in the House.

22. Further the case of petitioners in that by Article 355 of the Constitution the duty cast on the Union of India in this regard i.e. to ensure that the State of Uttar Pradesh is carrying on its Government in accordance with the provisions of the Constitution, but the Union of India also failed to discharge this constitutional duty to ensure that the Presidential Rule is not continued in Uttar Pradesh beyond the period of one year, as its continuance beyond one year is constitutionally impermissible in the absence of the situation given in Clauses (a) and (b) of Clause (5) of Article 353 of the Constitution.

23. Though the ground is not pleaded in the writ petitions, yet during the course of arguments it is advanced on behalf of petitioners that before making recommendations for re-imposition of Presidential Rule, the constitutional duty cast upon the Governor was to explore all available possibilities in its perspective and real sense but the bleeding reality in the instant case is, that the Govornor of Uttar Pradesh admittedly did not explore the possibilities of formation of elected Government by taking aid of Articles 175, 176 and other relevant Articles of the Constitution of India, whereas the members of Thirteenth Legislative Assembly of Uttar Pradesh are being paid their salary and allowances from the State Exchequer.

24. The case as set out by the respondents in their counter affidavit and other material brought before this Court appears to be that according to the respondents though the Presidential Rule was continuance in force in Uttar Pradesh w.e.f. 18-10-1995 yet in the new situation i.e. Notification u/s 73 of the Representation of the People Act dated 17-10-1996, a fresh Proclamation is constitutionally permissible and the Clause (5) of Article 356 is not attracted if a fresh Proclamation is issued by the President of India after revoking the earlier Proclamation.

25. According to the respondents under Clause (1) of Article 164, the appointment of Chief Minister is exclusively within the domain of Governor and the Governor alone, but since under Clause (2) of that Article the Council of Ministers has to be collectively responsible to the Legislative Assembly hence the Governor has to be satisfied that the incumbent of Chief Ministership must be commanding the confidence of the House and as Sri Kalyan Singh, leader of Bhartiya Janta Party or any other leader of any political party or group could not prima facie satisfy the Governor about his majority in the House, therefore, the Governor did not make appointment of the Chief Minister. It is the prerogative of His Excellency Honble the Governor to appoint the Chief Minister and not for the Legislative Assembly to elect the Chief Minister.

26. Further according to the respondents under Article 355 of the Constitution the Union of India is duty bound to ensure that the State of U. P. is carrying on its Government in accordance with the Constitution and since in the given situation of Uttar Pradesh His Excellency Honble the President of India was satisfied that the Government of Uttar Pradesh cannot be carried on in accordance with the Constitution, hence imposition of President Rule is perfectly justified.

27. Now coming to the arguments advanced by the learned counsel for respective parties, it may be stated that although learned counsel for respective parties advanced arguments on all points available to them on their respective turns but for the sake of convenience and clarity, all points urged shall be discussed and dealt with separately in reference 10 the main questions mentioned above in the beginning.

28. In reference to the first question whether or not, in the given situation of instant case, continuance of Presidential Rule beyond one year, is constitutionally permissible in Uttar Pradesh, it was contended for petitioners that the Constitution of India does not permit continuance of Presidential Rule beyond the period of one year. It can be continued beyond one year in only one situation which is given in Sub-clauses (a) and (b) of Article 356(5), but in no other situation, may be a new situation of old situation. Presidential Rule can be continued beyond one year. It was also contended for petitioners that neither in the form of a new Proclamation nor in the form of extension of old Proctamation, it is permissible to continue the Presidential Rule in Uttar Pradesh.

29. In reference to this question, learned Solicitor General of India contended for respondents that initially Proclamation under Article 356(1) has to be issued by the President of India and in order that the same is valid for six months it must receive approval of the Parliament within two months. Every Proclamation has to be issued necessarily with reference to a situation. A situation is there or is not there exists or does not exist, has arisen or has not arisen, is the subjective satisfaction of the President under the constitutional Scheme. If the President is satisfied that a situation has arisen, the Proclamation can be issued. If the Proclamation issued is approved by both Houses of Parliament within two months, it can be continued up to six months. Then it can be continued for next six months i.e. for a period of one year from the date of its issuance with further approval of Parliament, but the same cannot be continued beyond one year. What Clause (5) of Article 356 prohibits is continuance of the same Proclamation beyond one year but it does not prohibit, issuance of new Proclamation or fresh Proclamation if a new situation has arisen.

30. Learned Solicitor General further contended that the situation is with reference to the Government of State and not with reference to elected Government or a cere-taker Government or Presidential Government and therefore, the existence of elected Government is not a must. "She emphasis is not upon the Government but upon the situation. There ran be a situation in which formation of elected Government may not be possible and in that event there may not be elected Government or caretaker Government but in that situation also. President of India may impose President Rule if he is satisfied that the Government of State cannot be carried on in accordance with the Constitution.

31. For determination of this question we will have to examine the whole Scheme of Articles 356 of the Constitution of India. In this context we will have to have a look to the Debates of the Constituent Assembly. A member of the Drafting Committee, Sir Alladi Krishnaswami Ayyar, suffering the provisions of Article 356 maintained that if the Constitution of a State was working efficiently ensuring the proper functioning of a responsible Government, the Union would not and could not interfere. He stated, "Far from being an impediment to State autonomy, they were a bulwark in favour of State autonomy because the primary obligation was cast upon the Union to see that the Constitution was maintained".

32. Pandit Hirdaya Nath Kunzru opposed Article 356 on the ground that if real responsible Government was to be established in the States. "The electors must be made to feel that the power to apply proper remedy, if any mismanagement occurred, rested with them. It depended upon them to choose their representatives who would be capable of working in accordance with their best interest. If the Central Government or Parliament were given power to interfere, there was a danger that whenever (here was dissatisfaction in a State, appears would be made to the Central Government to come to their rescue. The State electors would throw their responsibility on the shoulders of the Central Government. It has no right to encourage this tendency."

33. The framers of our Constitution were conscious of the situation when Central Government may misuse its powers if some States are governed by political parties which are different from the political party which is governing at the Centre. Therefore, Dr. Ambedkar stated in the Constituent Assembly, "I do not altogether deny that there is a possibility of these Articles being abused or employed for political purposes. But that objection applies to every part of the Constitution which gives power to the Centre to override the Provinces......The proper thing we ought to expect is that such Articles will never be called in operation and they would remain a dead letter.

34. Despite this expectation of our Founding Fathers of the Constitution, the provisions of Article 356 have been exercised for 103 times in India and for 9 times in the State of Uttar Pradesh itself. The first Proclamation in Uttar Pradesh was issued on 25-2-1968, the second Proclamation on 1-10-1970, third Proclamation on 13-6-1973, fourth Proclamation on 30-11-1975, fifth on 30-4-1977, sixth on 17-2-1980, seventh on 6-12-1992, eighth on 18-10-1995 and ninth Proclamation was issued on 18-10-1996.

35. In this regard, we may point out that while debating in the Constituent Assembly various relevant provisions of the Constitutions of different countries have been taken into consideration and this Chapter XVIII of our Constitution relating to Emergency in which Articles 355 and 356 appear, is borrowed from Section 48 of the Werner Constitution of Germany and the provisions of Government of India Act. Similarly, Article 355 is borrowed from Article IV (4) of the Constitution of United States of America.

36. In a forward to Dr. Rajeev lhavans Book Lord Denning wrote on the role of the Judges in developing the Law :

"Many of the Judges of England have said that they do not make law. They only interpret it. This is an illusion which they have fostered. But it is a notion which is now being discarded everywhere. Every new decision on every new situation is a development of the law. Law does not stand still. It moves continually. Once this is recognised, then the task of the Judge is put on a higher plane."

37. Justice Kirby, in a recent book on The Judges, stated that there are creative Judges who can interpret the law with reforming skills. We want judicial architects, not legal masons. We are also conscious of the position that every major instrumentality of the Constitution must strive to read into the law that meaning which comports with Constitutional values rather than conflicts with them.

38. In this background for brevity of the case it is not necessary to reproduce the entire provision of Article 356 of the Constitution which is a complete Code in itself and is of an exceptional nature. The total scheme of Article 356 is to deal with the case of failure of constitutional machinery in States. It is a Proclamation intended either to safeguard against the failure of the constitutional machinery in a State or to repair the effects of a break down. It may be either a preventive or a curative action. Clause (1) of Article 356 provides that if the President of India is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution, he may issue Proclamation. The satisfaction of the President under Clause (1) has to be based on a report of the Governor or otherwise. The words or otherwise indicate that the President may act under Clause (1) on information received from sources other than the Governors report. This would include Union agencies. The word shall in Article 74(1) suggests that whether the President has or has not received a report from the Governor, if Union Council of Ministers so advise, the President has to issue a Proclamation under Clause (1) of Article 356.

39. By means of Proclamation issued under Clause (1) President of India may assume to himself all or any of the functions of the Government of the States and all or any of the powers vested in or exercisable by the Governor or any body or authority in the State other than the Legislature of the State. President may declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament President may make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation. Thus, under Sub-clause (c) of Clause (1) President may suspend only those provisions of the Constitution which appears to the President necessary or desirable for giving effect to the objects of the Proclamation. However, nothing in Article 356(1) shall authorise the President to assume to himself any of the powers vested in or exercisable by a High Court or to suspend in whole or in part the operation of any provision of the Constitution relating to High Courts.

40. Under Clause (2) of Article 356, the Proclamation issued under Clause (1) may be revoked or varied by a subsequent Proclamation. Thus, under Clause (2) the Proclamation issued under Clause (1) can be varied in a changed situation by a subsequent Proclamation. Under Clause (3) every Proclamation is required to be laid before each House of Parliament and is required to be approved by both Houses of Parliament within two months. However, the Proclamation revoking previous Proclamation is not required to be approved by the Parliament within two moths. The proviso to Clause (3) is not relevant for the instant case.

41. Under Clause (4) a Proclamation so approved under Clause (3) by both the Houses of Parliament shall, unless revoked, cease to operate on the expiration of a period of six months from the date of its issuance Under the first proviso to Clause (4) Proclamation can be continued in force for further period of six months with the approval of Parliament and thus at the rate of six months at a time it can be continued for the maximum period of 3 years from the date of its issuance. Here it may be made clear that the revocation of the Proclamation is open at any time but its continuance is subjected to two conditions. Firstly it cannot be continued for a period more than six months at a time even with the approval of Parliament meaning thereby after every six months it has to be approved by the Parliament and secondly it cannot be continued beyond 3 years in any case even with the approval by the Parliament and secondly it cannot be continued beyond 3 years in any case even with the approval of Parliament. Thus, first proviso to Clause (4) puts a dead line of three years in all cases. The second proviso is not relevant for the present case. The third proviso puts the dead line of five years in place of three years for the State of Punjab.

42. The Clause (5) is Most Important for the instant case. It starts with Non-obstante clause. It has overriding effect over the previous Clauses (3) and (4). The President of India gives life to the Proclamation for a period of two months. Then the Parliament by resolutions approving the Proclamation (under Clause (3)) extends the life up to six months from the date of its issuance. The Parliament can further extend the life of Proclamation for the next six months by again approving it by resolutions under Clause (4). Thereafter Clause (5) comes into play in case the life of Proclamation needs extension beyond the period of one year. The scheme of Article 356 is, that the birth to Proclamation cannot be given by any authority other than His Excellency Honble the President of India but its life is limited to two months alone. Thereafter the continuance of Proclamation beyond two months is exclusively within the domain of the august Houses of Parliament, Therefore, no Constitutional Authority except the Parliament can allow continuance of Proclamation beyond two months. Consequently Clause (5) restricts even the Parliament from passing the resolutions with respect to the continuance in force of a Preclamation even for a day beyond the expiration of one year unless the two situations provided under Sub-clauses (a) and (b) of Clause (5) are present, The two situations are (a) a Proclamation of Emergency is in operation, in the whole of India or, as the case may be in the whole or any part of the State, at the time of the passing of such resolution, and (b) the Election Commission certifies that the continuance in force of the Proclamation approved under Clause (3) during the period specified in such resolution is necessary on account of difficulties in holding general elections to the Legislative Assembly of the State concerned.

43. The admitted position in the instant case is that the two contingencies provided under Sub-clauses (a) and (b) of Clause (5) are not present. Learned Solicitor General of India also very fairly conceded that the Presidential Proclamation issued in a situation (giving emphasis on the words a situation) cannot be continued beyond one year if the contingencies given in Sub-clauses (a) and (b) of Clause (5) are not present. However, he argued that Clause (5) prohibits continuance of the same Proclamation beyond one year and it does not prohibit issuance of fresh Proclamation if a new situation has arisen.

44. We are afraid, if this interpretation is given that fresh Proclamation is permissible if new situation has arisen, then there shall be no constitutional check on the continuance of the Presidential Rule. Our Constitution is based on the checks and balances and this is how despite legitimate expectations of our Founding Fathers of the Constitution that Article 356 shall remain dead letter, it has been exercised for 103 times In India.

45. The provisions of Clause (5) in its present form were inserted by the Constitution (44th Amendment) Act, 1978 with effect from 20-6-1979 with a view to prohibit continuance of Presidential Rule beyond one year. Under the Scheme of our Constitution the Governments of States are to be run by the elected Representatives of people but in case a situation arises in which Government of State cannot be carried on in accordance with the Constitution, only to meet that exceptional situation, provisions of Article 356 are engraphed, and not to destroy the federal structure of governance, therefore the object of Article 356 is to restore the elected Government as early as possible and only for the period during which it is impossible to carry on the governance with the Constitution through the elected representatives of people the President Rule may be continued.

46. The aforesaid 44th Amendment was brought by those, who faced and suffered the evil consequences of emergency proclaimed in the year 1975 which continued upto the year 1977, and it appears that realising the terrible consequences of such rules with a view to get rid of the same, the 44th Amendment was made, curtailing the period of even Presidential Rules. It is not the irony of fate, if the Presidential Rules are continued beyond a year in the hands of sufferers of emergency

47. In the situation of instant case, we fail to understand the logic behind revocation of the Proclamation which was going to die its natural death on 17-10-1996 itself. Was it not for the sake of re-imposition of President Rule If not, then what The report of Governor dated 16-10-1996 for re-imposition, was already there on the record. The situation reported by the Governor, that no political party or group was in a position to form a stable Government was already on the record and considering all those materials His Excellency Honble the President of India was satisfied to revoke the Proclamation. Further, without any interregnum gap, between revocation of previous Proclamation and issuance of fresh Proclamation, the position becomes that although in form it was a fresh Preclamation vet in substance and in fact, the President Rule is continuously in force in Uttar Pradesh with effect from 18-10-1995. Therefore, it cannot be said, that a new circumstance or ground emerged whereby Clause (5) could have been bye-passed, giving it legal colour of new Proclamation under Clause (1) of Article 356, and thus the impugned Proclamation dated 17-10-1996 is subterfuge suffering from malice in law and has the effect of achieving indirectly what cannot be achieved directly.

48. The Apex Court in K.C. Gajapati Narayan Deo and Others Vs. The State of Orissa, , and Dr D.C. Wadhwa and Others Vs. State of Bihar and Others, , ruled as under :

K.C. Gajapati Narayan Deo and Others Vs. The State of Orissa, , and Dr D.C. Wadhwa and Others Vs. State of Bihar and Others, , ruled as under :

K.C. Gajapati Narayan Deo and Others Vs. The State of Orissa,

, and Dr D.C. Wadhwa and Others Vs. State of Bihar and Others, , ruled as under :

, and Dr D.C. Wadhwa and Others Vs. State of Bihar and Others, , ruled as under :

Dr D.C. Wadhwa and Others Vs. State of Bihar and Others, , ruled as under :

Dr D.C. Wadhwa and Others Vs. State of Bihar and Others,

, ruled as under :

, ruled as under :

"It is settled law that a constitutional authority cannot do indirectly what is not permitted to do, directly. If there is constitutional provision inhibiting constitutional authority from doing an act, such provision cannot be allowed to be defended by adoption of any subterfuge that would be clearly a fraud on the constitutional provision."

49. While interpreting the Clause (5) of Article 356 the rule of interpretation laid down in Heydons case (1584) 3 Co. Rep. 7a, p. 7b : 76 ER 637, which is also known as "purposive construction or mischief rule, appears to be relevant, which directs that the Court must bear in mind as to what was the mischief or defect, to avoid which the new provision was inserted or substituted and must adopt that construction which shall suppress the mischief and advance the remedy. Before insertion of Clause (5) there was no dead line of one year under Article 356 and therefore, the object of Clause (5) was to fix the dead line of one year for continuance of Presidential Rule unless the two contengencies given in Sub-clauses (a) and (b) of Clause (5) are present. Therefore, only that construction is to be adopted which prohibits continuance of Presidential Rule beyond one year.

50. Further, revocation of Presidential Rule for re-imposition of the same by successive Notification issued on the same day, is constitutionally impermissible. Their lordships of Apex Court in Dr. D. C Wadhwas case (supra) ruled that successive Notifications in a routine manner are not permissible. The revocation of previous Proclamation on the date when it was to expire or die its natural death, death, clearly amounts to circumvent the provisions of Clause (5) of Article 356 Their lordships of Apex Court in H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior and Others Vs. Union of India and Another, , ruled that the provisions of Constitution cannot be circumvented.

H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior and Others Vs. Union of India and Another, , ruled that the provisions of Constitution cannot be circumvented.

H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior and Others Vs. Union of India and Another,

, ruled that the provisions of Constitution cannot be circumvented.

, ruled that the provisions of Constitution cannot be circumvented.

51. Placing reliance on K.K. Aboo Vs. Union of India (UOI) and Others, , learned Solicitor General of India argued that if a new situation has arisen and the President of India is satisfied, then fresh Proclamation can be issued and there is no constitutional prohibition for the same. With respect, we may say that at the time when K. K. Aboos case was decided there was no constitutional provision as presently it is in the form of Clause (5) of Article 356. As stated above, this provision of Clause (5) in its present from was brought in the Constitution by the 44th Amendment with effect from 20-6-1979 and therefore, in the opinion of this Court Aboos has no application in the present case.

K.K. Aboo Vs. Union of India (UOI) and Others, , learned Solicitor General of India argued that if a new situation has arisen and the President of India is satisfied, then fresh Proclamation can be issued and there is no constitutional prohibition for the same. With respect, we may say that at the time when K. K. Aboos case was decided there was no constitutional provision as presently it is in the form of Clause (5) of Article 356. As stated above, this provision of Clause (5) in its present from was brought in the Constitution by the 44th Amendment with effect from 20-6-1979 and therefore, in the opinion of this Court Aboos has no application in the present case.

K.K. Aboo Vs. Union of India (UOI) and Others,

, learned Solicitor General of India argued that if a new situation has arisen and the President of India is satisfied, then fresh Proclamation can be issued and there is no constitutional prohibition for the same. With respect, we may say that at the time when K. K. Aboos case was decided there was no constitutional provision as presently it is in the form of Clause (5) of Article 356. As stated above, this provision of Clause (5) in its present from was brought in the Constitution by the 44th Amendment with effect from 20-6-1979 and therefore, in the opinion of this Court Aboos has no application in the present case.

, learned Solicitor General of India argued that if a new situation has arisen and the President of India is satisfied, then fresh Proclamation can be issued and there is no constitutional prohibition for the same. With respect, we may say that at the time when K. K. Aboos case was decided there was no constitutional provision as presently it is in the form of Clause (5) of Article 356. As stated above, this provision of Clause (5) in its present from was brought in the Constitution by the 44th Amendment with effect from 20-6-1979 and therefore, in the opinion of this Court Aboos has no application in the present case.

52. As stated above when State of U. P. is continuously under the Presidential Rule w. e. f. 18-10-1995, then the Proclamation dated 17-10-1996 imposing the Presidential Rule, may be a fresh Proclamation in a new situation by its form, but in substance and in effect it is continuation of Presidential Rule without interregnum gap and thus what cannot be done even by the Parliament (continuance beyond one year) has in effect been done by His Excellency Honble the President of India in the form of a fresh Proclamation. It will not be out of place to mention that under the constitutional hierarchy, the power, authority and jurisdiction of President of India is controlled by the Parliament through the Council of Ministers, and therefore, in the considered opinion of this Court if continuance in force of Presidential Rule beyond one year is not permissible under the resolutions of the Parliament, the same cannot be held permissible for the President of India, neither in the form of fresh Proclamation nor in any other form if its effect in substance is continuance without interregnum gap beyond one year unless the two contingencies provided under Sub-clauses (a) and (b) of Clause (5) are present. In this regard one should not be confused with the fresh Proclamation and continuance of Presidential Rule. No doubt, the impugned Proclamation dated 17-10-1996 is a fresh Proclamation in its technical form but its substance and its actual effect cannot be lost sight of. The substance and effect of impugned Proclamation is continuance of Presidential Rule beyond one year as there is no interregnum gap between the revocation of previous Proclamation and issuance of fresh Proclamation.

53. Justifying the revocation, learned Solicitor General of India contended that the act of revocation is the exhilarated act of the expiry which was to take place within few hours. No prudent President would wait till the midnight and then on the expiry he will issue fresh Proclamation, With respect, we may agree to this extent but at the same time the prudent President would not loose sight of the effect of the fresh Proclamation which he was going to issue without any interregnum gap, and would not ignore the constitutional provisions of Clause (5) of Article 356, as discussed above.

54. Much emphasis was given by learned Solicitor General contending that by issuance of the Notification u/s 73 of the Representation of the People Act, 1951, on 17-10-1996, a new situation has arisen and under the constitutional scheme a situation has arisen or not, is the subjective satisfaction of the President. No doubt, it is. But the subjective satisfaction has to operate within the field allocated for it by Article 356 itself. Clause (5) of Article 356 itself limits the continuance of Presidential Rule up to one year and therefore, even if the subjective satisfaction of President of India is there but also if it results into continuation beyond the constitutionally fixed limit, it would certainly be unconstitutional. As regards the aforesaid Notification u/s 73, its effect is that the Legislative Assembly is deemed to have been constituted but by virtue of this Notification, the Legislative Assembly does not become functional nor its duration commences with effect from the date of Notification u/s 73. The duration of the Legislative Assembly commences w.e.f. the date of first meeting enumerated in Sub-Clause (1) of Article 172 of the Constitution, which in the instant care did not take place as yet. Here it will not be out of point to state that in the absence of making or subscribing oath in accordance with Article 188 and summoning first meeting under Article 172 are the conditions precedent for making the Assembly functional and for commencement of duration of the House. Therefore, the Natification u/s 73 of the Representation of People Act was not the new situation rather the political dead-lock in formation of Government was the new situation which came into existence on 10-10-1996 with the declaration of the results for which Governor of Uttar Pradesh reported to His Excellency Honble the President of India on 1610-1996 and after which the President of India decided to revoke the previous Proclamation. Therefore, in actual sense the new situation if any, it arose before the revocation of the Proclamation and not thereafter.

55. Much has been argued by both the sides for and against in respect of impugned Proclamation dated 17-10-1996 imposing President rule. On behalf of the petitioner, giving much emphasis on the words "cannot be carried on" occurring in Article 356, it is contended that "cannot" means impossible to run the Government, whereas where the situation which can be remedied or had not created impasse or does not disable or interfere with the governance of the State, according to the Constitution would not merit issuance of the Proclamation under Article 356.

56. This argument has already been taken into consideration in S.R. Bommai and others Vs. Union of India and others etc. etc., , wherein Honble Mr. Justice Sawant for himself and on behalf of Honble Mr. Justice Kuldip Singh, has held that the word "can" is construed to be "able".

S.R. Bommai and others Vs. Union of India and others etc. etc., , wherein Honble Mr. Justice Sawant for himself and on behalf of Honble Mr. Justice Kuldip Singh, has held that the word "can" is construed to be "able".

S.R. Bommai and others Vs. Union of India and others etc. etc.,

, wherein Honble Mr. Justice Sawant for himself and on behalf of Honble Mr. Justice Kuldip Singh, has held that the word "can" is construed to be "able".

, wherein Honble Mr. Justice Sawant for himself and on behalf of Honble Mr. Justice Kuldip Singh, has held that the word "can" is construed to be "able".

57. From the above discussion, the Proclamation dated 17-10-1996 issued under Aiticle 356(1) of the Constitution is unconstitutional in as much as constitutionally a Notification under Sub-clause (1) of Article 355 can be issued only when the President is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the instant case on 17-10-1996 the situation in Uttar Pradesh was not such in which the Government of State could not be carried on in accordance with the provisions of the Constitution, as on that date i.e. 17-10-1996, the State of Uttar Pradesh was under the President Rule and therefore, the Government was being carried on by the Governor about which by no stretch of imagination it can be said that the Government of the U. P. State (Government of Governor) cannot be carried on in accordance with the provisions of the Constitution.

58. On 17-10-1996 itself the new Assembly of Uttar Pradesh was constituted about which on the same day itself without exploring all possibilities for the formation of a popular Government, it cannot be said that on that day a situation has arisen in which the Government of Uttar Pradesh cannot be carried on in accordance with the Constitution.

59. Here it will not be out of place to state that Parliamentary Federal and Democractic forms of Government is the basic structure of the Constitution which cannot be changed even by the constitutional amendments by the Parliament.

60. By Article 355 of the Constitution of India one of the constitutional duties cast on the Union is to ensure that the Government of every State is carried on in accordance with the provisions of the Constitution and therefore, on 17-10-1996 Union of India was duty bound to see that all possibilities of formation of popular Government in Uttar Pradesh after constitution of new U. P. Assembly are explored but no such endeavour was made by the Governor of Uttar Pradesh.

61. The satisfaction of the President referred in Clause (1) of Article 356 has to be based on some material available before him and his satisfaction cannot be arrived at in vacuum and on 17-10-1996 itself he arrived at two conflicting conclusions, firstly he came to be satisfied that the situation in Uttar Pradesh was such that the Government of Uttar Pradesh can be carried on in accordance with the Constitution and therefore, the Proclamation should be revoked and thereafter on the same day he again came to be satisfied that a situation has arisen in which the Government of Uttar Pradesh cannot be carried on in accordance with the Constitution, and hence the two conflicting satisfactions cannot be based on one and the same report of Governor. The Proclamation can neither be extended nor substituted by another. Therefore, the impugned Proclamation in these circumstances is to be examined whether it is mala fide and based on extraneous considerations and therefore is fraud on power, consequently deserves to be quashed

62. After the constitution of new U. P. Assembly and before the issuance of impugned Proclamation, a constitutional responsibility is conferred on the Governor of Uttar Pradesh to explore all possibilities for formation of a popular Government having confidence of the House and Proclamation under Article 356 of the Constitution, would have been the last resort, which the Governor did not do in the instant case.

63. Since the Governor is required to appoint a Chief Minister who holds majority in the House, therefore, before appointing Chief Minister, the Governor has to be prima facie satisfied that the person whom he is going to appoint Chief Minister holds majority in the House and for his prima facie satisfaction, in the situation of Uttar Pradesh he should have resorted to all possible permissive constitutional methods in appointing Chief Minister and information of Government of Uttar Pradesh.

64. Under Clause (1) of Article 356, "Government cannot be carried on" is genus and the "situations" are species. The genus cannot be changed and the species must be relatable to the genus. The provisions of Article 356 are exceptional provisions and therefore, no liberal construction can be given to it rather a narrow and strict construction has to be given. The purpose of Article 356 is to install a popular Government and not the else. The continuance in force of Proclamation is not permissible at all beyond the expiration of one year There has to be continuance unless there is a break For no fraction of time there was a break. The State of Uttar Pradesh continues to be under Presidents rule with effect from 18-10-1995 till date without any break. Earlier Proclamation was revoked for re-imposition of President Rule, There must be reasonable time gap. The break has to be or reasonable character. In substance and effect, it is continuation of earlier Proclamation. The qualitative character of the Proclamation has to be such which is capable of being considered and approved by the Parliament because Article 356 speaks of approval and not disapproval. Impugned Proclamation was not capable of being considered by the Parliament because even the Parliament could not have passed a resolution in the absence of two conditions enumerated in Clause (5) of Article 356. In our opinion, the Article 356 of the Constitution is a complete Code of exceptional nature. Nothing more is to be read into it particularly in respect of period. This Proclamation cannot be upheld short of constitutional amendment.

65. The requirement of Clause (1) of Article 356 is that if a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution, then the Proclamation is to be issued by the President but the true intent of the founding fathers of our Constitution is that the situation that has arisen has to be remedied by election and in the instant case when the situation was already remedied by the elections, then for imposition of fresh Proclamation the situation appears to have been created as it had never arisen after fresh elections. It also appears from the argument of Mr. T. R. Andhyarujina, learned Solicitor-General that only one Cabinet meeting was held at Delhi and in one and the same meeting two conflicting decisions have been taken, one for revoking the President Rule and the other for reimposing the President Rule. Even nothing is brought on record to suggest that more than one Cabinet meeting was held for the purpose.

66. In paragraph 36 of the counter-affidavit at page 12 of the counter-affidavit sworn by Sri Tripathi, it is stated that "the Government continued to be suspended in Uttar Pradesh", and, therefore, in form there may be two separate Proclamations but in substance it was continuation of the President Rule beyond one year which is expressly barred and prohibited under Clause (5) of Article 356 itself.

67. This cannot be lost sight of that under Article 355 of the Constitution, there was an obligation on the Central Government to see that an elected Government is formed in Uttar Pradesh. But is it that the Central Government made it difficult to form an elected Government by suspending the relevant provisions of the Constitution In this regard one thing is that the existence of power is the pre-requisite for doing anything. When the power itself was suspended, how the Governor was capable of doing anything for formation of elected Government, therefore, what possibilities the Governor could explore for formation of Government when the provisions itself were suspended and were not in operation in State of the Uttar Pradesh. Thus, in Uttar Pradesh the situation has not arisen rather the same has been created so as to being it within the ambit of Article 356 of the Constitution. The term Government used under Clause (1) of Article 356 refers to elected Government and not the President rule. During the President rule. President assumes the executive powers of the State in himself. Between the revocation and reimposition of the President Rule, even if there was a time gap, it was in fact the Governor who was running and functioning the Government and even after the revocation and Proclamation it would on the executive powers of the State being exercised by the Governor and he would not be acting on the advice of Council of Ministers. The President has already assumed the executive functions of the State and it was being discharged through the Governor, and therefore, what had already been assumed, cannot be re-assumed again. The President was carrying on the Government. The gap was a technical type of gap but the function of the Government was being carried on by the President. Therefore it is a very strange situation making the impugned Proclamation ultra-vires to Article 356 of the Constitution itself.

68. The Legislature have been conferred with two functions i.e. (1) Legislative functions, and (ii) Non-legislative functions. See State of Karnataka v. Union of India and another AIR 197 SSC 68. Under Article 174 of the Constitution Assembly is summoned. The effect of the dissolution is to bring to an end the term of the House. The term of the House commences after notification u/s 178 of the Representation of the People Act is issued and not on the issuance of the Notification u/s 73 of the Representation of the People Act The effect of the Notification u/s 73 of the Representation of the People Act is that the Assembly is deemed to have been constituted. Therefore, the dissolution of Assembly immediately after the issuance of Notification u/s 73 of the and before issuance of Notification u/s 178 of the means to undone what has been done upto the stage of Section 73, and therefore what has been done is "deemed constitution" and thus what will be undone is "deemed constitution", and therefore its effect would be that "deemed to have not been constituted". Thus, the Assembly cannot be dissolved before issuance of Notification u/s 178 of the and thus it cannot be suspended before that stage.

69. In these situations of the instant case discussed above, the continuance of Presidential Rule beyond one year appears to he constitutionally impermissible.

70. Learned Solicitor General also vehemently contended that assuming, at the stage of expiration of one year of Presidential Rule a natural calamity or riot in the shape of serious enterual disturbance intervenes, in that situation President of India shall have ample powers under Article 356 to issue fresh Proclamation even without interregnum gap and it may result into continuance in force of Presidential Rule beyond one year. We are afraid, in our opinion if the situations narrated by the learned Solicitor General arise then indeed the Election Commission considering those situations may certify and according to its report action will be taken, as such contingencies, the Election Commission has to face. Thus, the Presidential Rule beyond one year would constitutionally permissible only if it will (ome within the purview of Sub-clause (a) be and (b) of Clause (5) of Article 356 of the Constitution. But in the instant case since admittedly Sub-clauses (a) and (b) of Clause (5) are not attracted hence the examples given have no bearing.

71. In view of the discussions made above this Court is of the considered opinion that the first question has to be decided in negative and accordingly we hold that in the given situation of instant case, continuance of Presidential Rule beyond one year is constitutionally not permissible in Uttar Pradesh.

72. Now coming to the germane question whether in the given situation of instant case the impugned Proclamation dated 17-10-1996 is issued in colourable exercise of powers and is based on extraneous, mala fide and wholly irrelevant grounds and as a result of it a judicially discoverable and manageable issue has arisen, we will have to again refer to the submissions of respective learned counsel from that angle.

73. It was contended for petitioners that though the President of India is provided immunity in respect of his acts performed in discharge of his constitutional functions, yet the judicial review being a basic feature of the Constitution, the Presidential Proclamation under Article 356 can be challenged on the grounds of constitutionality, the satisfaction of the President being mala fide, based on extraneous, irrelevant considerations or non-existent facts, preserve or irrational or without rational nexus.

74. Learned Solicitor General of India contended that the satisfaction of President under Clause (1) Article 256 of the Constitution is subjective and therefore, it is not open for the Courts to examine as to whether in the given situation the President should have done that or should not have done this, as, such level of enquiry is not open under judicial review and amounts to entering into political thicket.

75. For examining the impugned Proclamation from this angle we will have to look the Governors report. By letter dated 15-10-1996, Honble the Governor reported to His Excellency Honble the President of India that it has been clear since 10th October, 1996, that Uttar Pradesh will have an hung Assembly. Honble Governor by that letter also reported to the President of India that till 15-10-1996 he did not go into the exercise of taking the initiative to have formal discussions with party leaders. However, Governor found no possibility of any party or group in a position to form a stable Government and since the Presidential Rule was to expire on 17-10-1996 hence he submitted his report for suitable action or suitable direction, but not the dissolution of the newly elected Assembly.

76. By another letter dated 16-10-1996 in continuation of aforesaid letter dated 15-10-1996, Honble Governor reported to His Excellency Honble the President of India that he told to the delegation of Bhartiya Janta Party which came to stake the claim that he was awaiting a notification constituting the new Assembly nevertheless the position was clear to him and he would consider what should be done. Thereafter consulting other parties he came to convinced that there was no possibility of any party or combination of parties providing a Government which could assure a stable Government to the State and ultimately he recommended that the newly elected State Assembly can be kept in suspended animation.

77. Thus, the documents which were subject matter of discussion by the Central Government in respect of re-imposition of Presidential Rule in U. P. has been placed before this Court. This Court is conscious of its authority and jurisdiction in view of Clause (2) of Article 74 of the Constitution that disclosure of those materials be prevented. However, in a recent case in R.K. Jain Vs. Union of India and Others, , and in earlier case of State of Rajasthan and Others Vs. Union of India and Others, . it is ruled that the Court can look into the materials upon which the advice is based and where such materials are insufficient and had not disclosed compliance minimum constitutional requirements, indeed mala fide can be adjudged on its basis.

R.K. Jain Vs. Union of India and Others, , and in earlier case of State of Rajasthan and Others Vs. Union of India and Others, . it is ruled that the Court can look into the materials upon which the advice is based and where such materials are insufficient and had not disclosed compliance minimum constitutional requirements, indeed mala fide can be adjudged on its basis.

R.K. Jain Vs. Union of India and Others,

, and in earlier case of State of Rajasthan and Others Vs. Union of India and Others, . it is ruled that the Court can look into the materials upon which the advice is based and where such materials are insufficient and had not disclosed compliance minimum constitutional requirements, indeed mala fide can be adjudged on its basis.

, and in earlier case of State of Rajasthan and Others Vs. Union of India and Others, . it is ruled that the Court can look into the materials upon which the advice is based and where such materials are insufficient and had not disclosed compliance minimum constitutional requirements, indeed mala fide can be adjudged on its basis.

State of Rajasthan and Others Vs. Union of India and Others, . it is ruled that the Court can look into the materials upon which the advice is based and where such materials are insufficient and had not disclosed compliance minimum constitutional requirements, indeed mala fide can be adjudged on its basis.

State of Rajasthan and Others Vs. Union of India and Others,

. it is ruled that the Court can look into the materials upon which the advice is based and where such materials are insufficient and had not disclosed compliance minimum constitutional requirements, indeed mala fide can be adjudged on its basis.

. it is ruled that the Court can look into the materials upon which the advice is based and where such materials are insufficient and had not disclosed compliance minimum constitutional requirements, indeed mala fide can be adjudged on its basis.

78. In Bommais case (supra) their lordships of Apex Court have ruled that the Court can require the Union of India to disclose the materials upon which the satisfaction of President is based and from such disclosure the Court can enquire whether any material existed for the advice Whether disclosed material is relevant for the advice Whether reasonable man could, on the disclosed material act and conclude regarding satisfaction under Article 356.

79. However, while taking into consideration such privileged documents one thing is to be kept in mind that public interest immunity is claimed to its right, and therefore, the duty of the Court is to weigh the balance in the scales and that harm shall not be done to the Nation or public service and equally to the administration of justice and therefore each case must be considered on its own back-drop. The modern trend is of more transparency than was prevalent in the past. Therefore, we have seen the entire file and we do not find any material much less substantial material warranting issuance of the impugned Notification,

80. The foundation of the doctrine of Judicial Review is in the Constitution. The Constitution is the supreme law of the land and all orders passed by the Authorities either under the provisions of the Constitution or under the provisions of Statutory Laws, must be in conformity with the constitutional mandates. In His Holiness Kesavananda Bharati Sripadagalvaru Vs. State of Kerala, . it is ruled that the supremacy of the Constitution is to be maintained and by judicial review it has to be seen and viewed whether the authority while passing orders acted in accordance with the law or not. The Courts cannot by applying if and but substitute its own reasonings. That is what has also been held in Indira Gandhi v. Raj Narain, 1975 1 (Suppl) SC 251. Similarly in State of Rajasthan and Others Vs. Union of India and Others, , it is said that every constitutional question concern the allocation and exercise of Governmental power and no constitutional question can therefore fail to be political. A Constitution is a matter of purest politics. That merely because a question has a political colourl court cannot fold its hands and despire and declare judicial hands off. In S. R. Bhaumiks case (supra) it is held that judicial review is the basic structure of the Constitution, though the scope is limited Therefore, the submission made by learned Solicitor General that since the scope is limited hence there is no room for judicial scrutiny for declaring the impugned Notification unconstitutional or for declaring that it is based on extraneous considerations or wholly irrelevant grounds or that it has been in colourable exercise of powers, has no force.

His Holiness Kesavananda Bharati Sripadagalvaru Vs. State of Kerala, . it is ruled that the supremacy of the Constitution is to be maintained and by judicial review it has to be seen and viewed whether the authority while passing orders acted in accordance with the law or not. The Courts cannot by applying if and but substitute its own reasonings. That is what has also been held in Indira Gandhi v. Raj Narain, 1975 1 (Suppl) SC 251. Similarly in State of Rajasthan and Others Vs. Union of India and Others, , it is said that every constitutional question concern the allocation and exercise of Governmental power and no constitutional question can therefore fail to be political. A Constitution is a matter of purest politics. That merely because a question has a political colourl court cannot fold its hands and despire and declare judicial hands off. In S. R. Bhaumiks case (supra) it is held that judicial review is the basic structure of the Constitution, though the scope is limited Therefore, the submission made by learned Solicitor General that since the scope is limited hence there is no room for judicial scrutiny for declaring the impugned Notification unconstitutional or for declaring that it is based on extraneous considerations or wholly irrelevant grounds or that it has been in colourable exercise of powers, has no force.

His Holiness Kesavananda Bharati Sripadagalvaru Vs. State of Kerala,

. it is ruled that the supremacy of the Constitution is to be maintained and by judicial review it has to be seen and viewed whether the authority while passing orders acted in accordance with the law or not. The Courts cannot by applying if and but substitute its own reasonings. That is what has also been held in Indira Gandhi v. Raj Narain, 1975 1 (Suppl) SC 251. Similarly in State of Rajasthan and Others Vs. Union of India and Others, , it is said that every constitutional question concern the allocation and exercise of Governmental power and no constitutional question can therefore fail to be political. A Constitution is a matter of purest politics. That merely because a question has a political colourl court cannot fold its hands and despire and declare judicial hands off. In S. R. Bhaumiks case (supra) it is held that judicial review is the basic structure of the Constitution, though the scope is limited Therefore, the submission made by learned Solicitor General that since the scope is limited hence there is no room for judicial scrutiny for declaring the impugned Notification unconstitutional or for declaring that it is based on extraneous considerations or wholly irrelevant grounds or that it has been in colourable exercise of powers, has no force.

. it is ruled that the supremacy of the Constitution is to be maintained and by judicial review it has to be seen and viewed whether the authority while passing orders acted in accordance with the law or not. The Courts cannot by applying if and but substitute its own reasonings. That is what has also been held in Indira Gandhi v. Raj Narain, 1975 1 (Suppl) SC 251. Similarly in State of Rajasthan and Others Vs. Union of India and Others, , it is said that every constitutional question concern the allocation and exercise of Governmental power and no constitutional question can therefore fail to be political. A Constitution is a matter of purest politics. That merely because a question has a political colourl court cannot fold its hands and despire and declare judicial hands off. In S. R. Bhaumiks case (supra) it is held that judicial review is the basic structure of the Constitution, though the scope is limited Therefore, the submission made by learned Solicitor General that since the scope is limited hence there is no room for judicial scrutiny for declaring the impugned Notification unconstitutional or for declaring that it is based on extraneous considerations or wholly irrelevant grounds or that it has been in colourable exercise of powers, has no force.

State of Rajasthan and Others Vs. Union of India and Others, , it is said that every constitutional question concern the allocation and exercise of Governmental power and no constitutional question can therefore fail to be political. A Constitution is a matter of purest politics. That merely because a question has a political colourl court cannot fold its hands and despire and declare judicial hands off. In S. R. Bhaumiks case (supra) it is held that judicial review is the basic structure of the Constitution, though the scope is limited Therefore, the submission made by learned Solicitor General that since the scope is limited hence there is no room for judicial scrutiny for declaring the impugned Notification unconstitutional or for declaring that it is based on extraneous considerations or wholly irrelevant grounds or that it has been in colourable exercise of powers, has no force.

State of Rajasthan and Others Vs. Union of India and Others,

, it is said that every constitutional question concern the allocation and exercise of Governmental power and no constitutional question can therefore fail to be political. A Constitution is a matter of purest politics. That merely because a question has a political colourl court cannot fold its hands and despire and declare judicial hands off. In S. R. Bhaumiks case (supra) it is held that judicial review is the basic structure of the Constitution, though the scope is limited Therefore, the submission made by learned Solicitor General that since the scope is limited hence there is no room for judicial scrutiny for declaring the impugned Notification unconstitutional or for declaring that it is based on extraneous considerations or wholly irrelevant grounds or that it has been in colourable exercise of powers, has no force.

, it is said that every constitutional question concern the allocation and exercise of Governmental power and no constitutional question can therefore fail to be political. A Constitution is a matter of purest politics. That merely because a question has a political colourl court cannot fold its hands and despire and declare judicial hands off. In S. R. Bhaumiks case (supra) it is held that judicial review is the basic structure of the Constitution, though the scope is limited Therefore, the submission made by learned Solicitor General that since the scope is limited hence there is no room for judicial scrutiny for declaring the impugned Notification unconstitutional or for declaring that it is based on extraneous considerations or wholly irrelevant grounds or that it has been in colourable exercise of powers, has no force.

81. In this respect it may be mentioned that for the first time in 1803, the Supreme Court of United States in Marbury v. Medicine. 1 Cranch 137. 22 Ed. 60, ruled that every action of the executive or constitutional authority can be tested with the touch stone of non-arbitrariness, indiscriminatory, not in colourable exercise of powers or not mala fide etc. and therefore, it is not that the Courts of law are lagging behind in examining these aspects of the matters,

82. Always it must be kept in mind that those who hold offices under the Constitution cannot assume powers beyond those envisaged in the constitutional scheme itself. If there travel beyond that, the same is to be tested by applying parameters of judicial review developed in the filed of administrative law by our apex body in various decisions. Relevantly to deal with the subject-matter, two land mark judgments i.e. 5. R. Bommai case and Rajasthans case (supra) which apply with full force to the facts of the present case are necessary to be mentioned repeatedly whereby in a judicial review the Presidential Proclamation can be considered and the said consideration cannot be said to be an antithesis to the field of the constitutional law.

83. Here, we may again reiterate that the jurisdiction of the Court in judicial review of issuance of the Presidential Proclamation is available to the extent of examining whether the conditions precedent for the issuance of Proclamation are satisfied or not and in examining the same we have to take into account as to whether there existed material for satisfaction of the President that a situation had so arisen in which the Government could not be carried on in accordance with the provisions of the Constitution. This is what we are examining.

84 It is not that every failure ipso facto gives rise to the imposition of Presidential Rule. It is also not that in the report simply it is to be stated that the circumstances so exist warranting Presidental Proclamation without disclosing the same in the recommendation, Therefore, in the absence of such materials or clues to show that in fact a prudent person could reach to that satisfaction, the Presidential Proclamation can indeed be held to have been based on wholly extraneous and irrelevant grounds. With this touch stone, if the two letters sent by Honble Governor to His Excellency Honble the President of India on 15th and 16th of October. 1996 are meticulously examined, the conclusion comes that there was no relevant material at all to arrive at all to arrive at that satisfaction. The two letters itself speak that the recommendation was made without exploring all possibilities and no caution or warning was issued by the Governor to the members of Legislative Assembly and no constitutionally permissible steps were taken by the Governor to ascertain the wishes of the members as to in whom they have confidence and thus the recommendation was premature as Article 356 is open only as the last resort.

85. During the course of hearing, no doubt the Proclamation dated 17-10-1996 was approved by the Parliament under Clause (3) of Article 356 of the Constitution yet its constitutional validity is still open to judicial review from two angles. Firstly, if the original Proclamation itself is held to be unconstitutional then its subsequent approval would be of no avail and secondly, if the Parliament has been constitutionally prohibited from approving a Proclamation which has the effect of continuance in force of Presidential Rule beyond one year, then also the approval would be of no avail in S. R. Bommais case (supra) their Lordships of Apex Court have ruled that invoking Clause (3) of Article 356 if Proclamation is approved, it will not take the shape of legislation for which different yardstick is required. Therefore, the constitutional position of impugned Proclamation remains the same before and after the approval, so far as judicial review of the same is concerned.

86. As stated above, there was no interregnum gap between the revocation of previous Proclamation and issuance of impugned Proclamation, therefore, the substance and effect of impugned Proclamation is continuance of Presidential Rule in Uttar Pradesh w.e.f. 18-10-1995. Both the above mentioned letters of Honble the Governor which have been made basis of the (fresh Proclamation) impugned Proclamation, were already before His Excellency Honble the President of India on 16-10-1996, therefore, all these materials are to be presumed to have been taken into consideration by Honble the President of India before arriving at the satisfaction for revocation of President Rule. Thus, in the given situation of instant case, all these materials in the shape of Governors reports were the basis of satisfaction for revocation and therefore, there was no fresh material or ground in the eye of law before the President of India to arrive at the satisfaction for re-imposition of President Rule. Accordingly in the considered opinion of this Court the impugned Proclamation cannot be said to be based on relevant material and therefore, has to be said to be based on extraneous considerations or wholly irrelevant materials and thus the malice in law can also be inferred and as such a judicially discoverable and manageable issue has arisen in the instant case The only new material which can be said to be technically available before the President is the Notification u/s 73 of the Representation of the People Act but that too looses it is substance and significance in view of the Governors report which says that all the results were declared on 10-10-1996 itself and the position was clear to the Governor on 10-10-1996 itself that there was no possibility of any Party or group to form a stable Government although he was awaiting the Notification of Election Comission, thus even the consequence of the said Notification was also taken care of by the Governor in his report and as such the Notification of Election Commission was also not a fresh material in substance for re-imposition of the Presidential Rule. Thus, if two conflicting satisfactions are arrived at on the same material then naturally one of them has to be held as based on wholly irrelevant material and if the revocation was for re-imposition then the re-imposition has to be held that it has been issued in colourable exercise of powers and is based on wholly irrelevant and extraneous considerations.

87. At this juncture, we may say that, it is irony of fate that though independence is achieved on account of sacrifices by patriots of all over the nation headed by many eminent leaders like Mahatma Gandhi and others but their ideas and philosophy in respect of implementation of most of the provisions of the Constitution so as to uplift the masses downtrodden, have not been effectively implemented, with the result wealth and power of the country are in the hands of few who do not work but manipulate the work of millions of human beings and by this power practice they rule and stand supreme and that is why the rule of caste started playing vital role in all spheres of life making it pernicious and influence of caste system has started dominating in power struggle and this concept of case rule in effect is sullying, tarnishing, the social values, and because of this rule of caste there is a steep fall in moral and ethical standards of the people as self sacrifices and sufferings have become valueless. In our country, our Constitution is the mother of all laws and Supreme and sovereign and that is why the concept of legalities is the concept of enforceability and this task has been assigned to the judiciary, and thus present time is acid test for the judiciary as judiciary is under obligation to prevent subversion of the Constitution, and therefore each and every authority in the State must act in a bona fide manner and if it is found that there is abuse or misuse of power, it becomes bounded constitutional obligation of judiciary to intervene and ensure rule of law.

88. In this regard, it will not be out of place to mention that democracy is not known or recognised simply because Government is elected by the majority of the people and or formed by coalition Government, but real test is whether it behaves in a democratic form extending freedom of thought not only to partisan but also to its opponents elected members in the same manner. If this test is applied in the present situation, would it lead to an irresistible conclusion that by imposing impugned Proclamation dated 17-10-1996 the Central Government is discharging the function in democratic way in endorsing report of the Honble Governor dated 15th and 16th October, 1996 recommending to the President for re-imposing Presidential Proclamation under Article 356 of the Constitution Under this situation, is it not a matter of thought provoking that the people of Uttar Pradesh, who are known to have enlighten the torch of freedom struggle through their great leaders, who have given successive Prime Ministers to India and who are known to have laid foundation stone of democracy in India alongwith other patriots of different States of this Country, for which India is known as basis of democracy in the whole world, have been unconstitutionally deprived of their right of forming a democratic Government in Uttar Pradesh

89. It is argued by learned Solicitor-General that doctrine of Proportionalityis applicable in some of the European countries and not in India- This submission has no force. Even S. R. Bommais case (supra) their Lordships in paragraph Nos. 109, 120, 121 and 393, have stated that:

"Whether Governor had proceeded legally and explored all possibilities of ensuring a constitutional Government in the State before reporting that the constitutional machinery has broken down."

Thus, the Apex Court expressed the opinion that all possibilities available within the ambit of provisions of the Constitution, the Governor has to explore and as a last resort recommendation for invoking Article 356 in imposing President Rule shall be made. Thus, this doctrine of proportionality has been given effect in our country as well, is abundantly clear from the findings and observations in S. R. Bommais case (supra).

90. In view of the discussions made above this Court is of the considered opinion that in the given situation of instant case, the impugned Proclamation dated 17-10-1996 is issued in colourable exercise of powers and is based on wholly irrelevant and extraneous grounds and is malicious in law and as a result of it a judicially discoverable and manageable issue has arisen.

91. Now coming to the third question we have to examine whether the Governor of Uttar Pradesh in the given situation of instant case was constitutionally bound or obliged to invite the largest single party to form the Government.

92. The concept of hung-Parliament as known in common parlance is when no political party returns in majority after general elections as electors do not choose to send a single party with absolute majority. The political scenario at the time of independence in 1947 and even thereafter in first general elections in 1951 was quite different than the present one as at that time the only goal before the political parties was to get rid of British Empire but after the general elections of 1967 the scene of Indian Polity stood drastically changed on account of regionalism, casteism and many other considerations with the result small groups of political parties emerged and therefore, since 1967 the concept of coalition Government came into existence and since then the responsibility of the Governor, who is also a constituent part of the Legislature of the State and is the Executive Head of the State and as such is eye and ear of the Central Government and plays vital role in formation of the Governments under Article 164 of the Constitution of India and reports on all aspects of State affairs to the Central Government and thus makes functional the federal system of governance; has become greater in exercise of his prerogative conferred by Article 164 of the constitution in choosing the Chief Minister having majority in the House with the support of other political parties or groups so as to provide a stable Government for 5 years. At such junctures the Governor has to exercise his political wisdom acquired from experience.

93. Normally and not invariably, the largest party has to be invited But the largest party has not to be necessarily invited. Governor can refuse to invite the largest party in case in his discretionary judgment, it has no majority in the House and therefore B.J.P. is not invited to form the Government, Pointing out that possibility of a stable Government under the present situation was not possible, therefore, he has not invited single largest party to form the Government, appears to be, in consonance with the provisions of Clause (2) of Article 164 of the Constitution, which speaks that the Council of Ministers shall be collectively responsible to the Legislative Assembly of the State meaning thereby prima facie, it must be convinced to the Governor that in whom he is reposing confidence of appointing Chief Minister and Council of Ministers must be have a majority in the Assembly. This is the ground of not inviting the single largest party to form the Government. Except total strength of the single largest party, not only before the Governor but even during the course of arguments, nothing has been brought on record to suggest that if the leader of the single largest party is invited to form the Government, he will establish his majority on the floor of the Assemly. In this regard, the Governor has also expressed his opinion and apprehended that under the present situation if single largest party is invited to form the Government, the possibility of horse-trading in complying with the provisions of Clause (2) of Article 164 cannot be ruled out. Besides this, Schedule X which has been introduced a decade before on 1 -3-1985 in our Constitution, to get over from the gamete of horse-trading in such situation also creates legal impediment upon the Governor to appoint Chief Minister from single largest party which prima facie is in minority and unable to convince by disclosing figures to the Governor that |f chance is given they will be able to establish majority on the floor of the Assembly. This being so, in our option, rightly the Governor has not invited the leader of single largest party B.J.P. to form the Government.

94. In this regard, it is needless to say that before introducing Schedule X in the Constitution and even after introducing Schedule X, within permissible limits under Schedule X crossing the floor for fulfilling political ambitions has become a routine of the day, but in view of Schedule X some check is imposed, for which the House is the competent authority to take appropriate action against such members of the Legislative Assembly. This chock is also necessary considering the needs of the day when corruption is hydro-headed monster that is eating into the vitals of our society and corroding the fabrics of our democratic polity, if any member of the Legislative Assembly succumbs to temptation and falls in prey to cross the floor, this amounts to betraying confidence of the electorate in combating with the evil of corruption, could not be over-ruled, and therefore all those who hold such office should not think that it is their wisdom to cross the floor because if they do so they will be harming credibility of such high positions which they hold by virtue of confidence reposed by the electorate.

95. Therefore, the oath subscribed by a candidate for election to the Legislative Assembly of the State, where he solemnly affirms before the Returning Officer according to Schedule III of the Constitution is also of significant meaning.

96. It is next contended by the learned counsel appearing for the petitioner that on the basis of convention, precedent etc., the single largest party should have been invited to form the Government for which instances of inviting single largest party to form Government have been given and it is submitted that conventions precedents, usages and traditions are to be taken into consideration. Learned counsel for the petitioners gave reference of Supreme Court Advocates on Supreme Court Advocates-on-Record Association and another Vs. Union of India, wherein these factors have been taken into consideration while considering appointments of Honble Judges of the High Court and Supreme Court.

Supreme Court Advocates-on-Record Association and another Vs. Union of India, wherein these factors have been taken into consideration while considering appointments of Honble Judges of the High Court and Supreme Court.

Supreme Court Advocates-on-Record Association and another Vs. Union of India,

wherein these factors have been taken into consideration while considering appointments of Honble Judges of the High Court and Supreme Court.

wherein these factors have been taken into consideration while considering appointments of Honble Judges of the High Court and Supreme Court.

97. Sir W. Ivor Jennings, in his book Law and the Constitution (Fifth Edition) refers to the constitutional conventions :

Thus, within the framework of the law there is room for the developments of rules of practice, rules which may be followed as consistently as the rules of law and which determine the procedure which the men concerned with Government follow."

98. These rules Mr. Mill referred to as "the unwritten maxims of the Constitution". Twenty years later Dicey called them the Conventions of the Constitution while Anson referred to them as the Custom of the Constitution. The short explanation of the constitutional conventions is that they provide the flesh which clothes the dry bones of the law ; they make the legal constitutional work ; they keep in touch with the growth of ideas. A Constitution does not work by itself. It has to be worked by men. It is an instrument of national co-operation and the spirit of co-operation is as necessary as the instrument. The constitutional conventions are the rules elaborated for effecting that co-operation. Men have to work the old law in order to satisfy the new needs. Constitutional conventions are the rules which they elaborate.

99. Giving reference of principles of common law, Professor J. D. Mitchell in his work Constitutional Law, Second Edn. 1968, contended that conventions cannot be regarded as less important than rules of law. Often the legal rule is the less important. In relation to subject-matter the two types of rule overlap ; in form they are often not clearly distinguishable.

100. K. C. Wheare in Modern Constitution (1966 Edn ) stated that it is no doubt correct that the existence of a particular convention is to be established by evidence on the basis of historical events and expert factual submissions.

101. In S. C. Advocates On Records Association case (supra), the Apex Court ruled that:

"We are of the view that there is no distinction between the constitutional law and an established "constitutional convention" and both are binding in the field of their operation. Once it is established to the satisfaction of the Court that a particular convention exists and is operating then the convention becomes a part of the constitutional law of the land and and can be enforced in the like manner"

102. No doubt Constitution of India has borrowed the British form of Government making the Cabinet collectively responsible to the House of People. The machinery of Government is essentially on the British pattern and the whole collection of British constitutional conventions has either been incorporated in the Constitution or are being followed as unwritten constitutional conventions.

103. Therefore, where provisions of the Constitution are silent, conventions, precedents, usages and traditions have to be adhered to but where specific provisions are made, conventions, precedents, usages and traditions have no role to play. Thus, it is necessary that conventions, precedents, usages and traditions must be of obligatory nature only then it becomes binding force and certainly can be followed.

104. However, in a recent decision of the Apex Court in S.P. Anand Vs. H.D. Deve Gowda and others, precedents of England were cited that in 1922 in England no outsiders can be appointed as Prime minister and this practice, convention, usage and tradition, are being followed in England since 1922, but our Apex Court did not agree to it holding that this issue was not debated in the Constituent Assembly. Thus, all conventions followed in England are not necessary to be followed in India on the face of specific provisions appearing in the Constitution. Here, Clause (2) of Article 164 and Schedule X forbids the Governor to invite the leader of single largest party unless prima facie established that he can prove his majority in the House. When cabinet collectively becomes responsible to the House attracting the provisions of Clause (2) of Article 164, therefore, prima facie it has to be satisfied to the Governor that even if leader of the single largest party is called to form the Government, they will establish their majority on the floor of the Assembly. Here, in the instant case, not only on record but during the course of the arguments as well, nothing has been pointed out that leader of the single largest party Sri Kalyan Singh ever convinced that he will be able to secure confidence of the House by proving his majority except contending that he be appointed Chief Minister and then he will prove the majority, which indeed if accepted, would be violative of the provisions of Schedule X of the Constitution where horse-trading is prohibited.

S.P. Anand Vs. H.D. Deve Gowda and others, precedents of England were cited that in 1922 in England no outsiders can be appointed as Prime minister and this practice, convention, usage and tradition, are being followed in England since 1922, but our Apex Court did not agree to it holding that this issue was not debated in the Constituent Assembly. Thus, all conventions followed in England are not necessary to be followed in India on the face of specific provisions appearing in the Constitution. Here, Clause (2) of Article 164 and Schedule X forbids the Governor to invite the leader of single largest party unless prima facie established that he can prove his majority in the House. When cabinet collectively becomes responsible to the House attracting the provisions of Clause (2) of Article 164, therefore, prima facie it has to be satisfied to the Governor that even if leader of the single largest party is called to form the Government, they will establish their majority on the floor of the Assembly. Here, in the instant case, not only on record but during the course of the arguments as well, nothing has been pointed out that leader of the single largest party Sri Kalyan Singh ever convinced that he will be able to secure confidence of the House by proving his majority except contending that he be appointed Chief Minister and then he will prove the majority, which indeed if accepted, would be violative of the provisions of Schedule X of the Constitution where horse-trading is prohibited.

S.P. Anand Vs. H.D. Deve Gowda and others,

precedents of England were cited that in 1922 in England no outsiders can be appointed as Prime minister and this practice, convention, usage and tradition, are being followed in England since 1922, but our Apex Court did not agree to it holding that this issue was not debated in the Constituent Assembly. Thus, all conventions followed in England are not necessary to be followed in India on the face of specific provisions appearing in the Constitution. Here, Clause (2) of Article 164 and Schedule X forbids the Governor to invite the leader of single largest party unless prima facie established that he can prove his majority in the House. When cabinet collectively becomes responsible to the House attracting the provisions of Clause (2) of Article 164, therefore, prima facie it has to be satisfied to the Governor that even if leader of the single largest party is called to form the Government, they will establish their majority on the floor of the Assembly. Here, in the instant case, not only on record but during the course of the arguments as well, nothing has been pointed out that leader of the single largest party Sri Kalyan Singh ever convinced that he will be able to secure confidence of the House by proving his majority except contending that he be appointed Chief Minister and then he will prove the majority, which indeed if accepted, would be violative of the provisions of Schedule X of the Constitution where horse-trading is prohibited.

precedents of England were cited that in 1922 in England no outsiders can be appointed as Prime minister and this practice, convention, usage and tradition, are being followed in England since 1922, but our Apex Court did not agree to it holding that this issue was not debated in the Constituent Assembly. Thus, all conventions followed in England are not necessary to be followed in India on the face of specific provisions appearing in the Constitution. Here, Clause (2) of Article 164 and Schedule X forbids the Governor to invite the leader of single largest party unless prima facie established that he can prove his majority in the House. When cabinet collectively becomes responsible to the House attracting the provisions of Clause (2) of Article 164, therefore, prima facie it has to be satisfied to the Governor that even if leader of the single largest party is called to form the Government, they will establish their majority on the floor of the Assembly. Here, in the instant case, not only on record but during the course of the arguments as well, nothing has been pointed out that leader of the single largest party Sri Kalyan Singh ever convinced that he will be able to secure confidence of the House by proving his majority except contending that he be appointed Chief Minister and then he will prove the majority, which indeed if accepted, would be violative of the provisions of Schedule X of the Constitution where horse-trading is prohibited.

105. Adhering to the provisions of Articles 174 and 175 of the Constitution for the purpose of ascertaining the wishes of the House, is not a legislative function according to "the Rules of Procedure and Conduct of Business of U. P. Legislative Assembly, 1958" which have been framed under Article 208 of the Constitution were legislative and non-legislative functions have been defined.

106. Rule 13 deals about non-legislative functions. Article 80 of the Constitution provides for composition of the Council of States. By virtue of Sub-Article (4) of Article 80, the representatives of each Stale are to be elected by the elected members of the Legislative Assembly of the State. In view of Article 171(3)(d) which provides for the composition of the Legislative Council, 1/3rd of the Members in the Legislative Council are to be elected by the Members of the Legislative Assembly of the State. Similarly, by virtue of Articles 324 and 327, the Election Commission controls, directs and superintends all elections of Parliament and to the Legislature of every State in accordance with the law made by the Parliament for securing the due constitution of such House or Houses.

107. In view of the aforesaid, the elections to the Council of the States and the Legislative Council are not part of the proceedings of the House. The elected Members of the Legislative Assembly constitute an electoral college under the law. Neither the Constitution nor the law requires that for the purpose of these elections the elected members should sit in the House and vote. Hence these elections are outside the proceedings that take place at a meeting of the House. This proposition is fortified by the Apex Court in Pashupati Nath Sukul and Others Vs. Nem Chandra Jain and Others, .

Pashupati Nath Sukul and Others Vs. Nem Chandra Jain and Others, .

Pashupati Nath Sukul and Others Vs. Nem Chandra Jain and Others,

.

.

108. Therefore, invoking the provisions of Arts. 174 and 175 the Governor indeed could have asked the Members of the Legislative Assembly to indicate a person in whom they have confidence so as to exercise his prerogative rights under Article 164(1) to appoint Chief Minister as this process in view of P. N. Sukuls case (supra), would not be a process of legislative functions. Therefore, in our opinion, the Governor failed to explore all possibilities within the framework of the Constitution and even without giving any caution or warning as expressed in S. R. Bommais case (supra) wrote two letters addressed to the President which in our opinion was not sufficient to take action under Article 356 which indeed could be taken as a last resort in the facts and circumstances of the case.

109. It is not that for the first time the problem of hung Assembly is being faced, but the problem of a hung Parliament also arose in U. K. thrice in the 20th Century in the year 1923, 1929 and February, 1974 and all the times the situation was faced by forming a coalition Government in Constitutional Practice, IInd Edition, Rondey Brazier in Chapter III of the Government Formation from the Hung Parliament, it is stated that:

"It seems all this that there are no rules about Government formation from the hung Parliament. Such uncertainties in an area of major importance in the constitution may cry out for regulation but only rule in such circumstances is open ended in unhelpful, namely that in choosing a Prime Minister, the Queen should commission that person who appears the best able to command support of stable majority in the house of the Commons, or failing such a person with politician who seems able to form Government with reasonable prospects of administration in the office.

Details have been given in S. A. De. Smith and Rondey Brazier Constitutional and Administrative Law (7th Edition 1994 page 174 and E. S. Wade & A. W. Brandly Constitutional and Administrative Law IInd Edition, 1993."

110. Emphasis supplied by us indicates that while handing over command of the Assembly or Parliament, as the case may be, as leader of the House the only care is to be seen that the person must command confidence of the House and this prima facie he has to convince to the Governor of the State which is in consonance with provisions of Sub-Clause (2) of Article 164 of the Constitution, as the emphasis supplied also the principle apply in England in the cases of hung Parliament.

111. In "Constitutional Conventions, the Rules and Forms of Political Accountability" by Geoffrey Marshal 1384 Edition at page 33, dealing with the situation of huge Parliament, the author has said that;

"There might in such circumstances be difficult choice to make between inviting that person to from a Government and inviting the leader of the single largest party to form minority Government giving uncertainties of coalition Government. Minority Government in the past has been preferred expedient but if three party politics were to become normal sitting of functional Government specially without proportional representatives were to be adopted, coalition might become a strong competing alternative. One suggestion recently made is that in such circumstances The Queens choice may be guided by ballot of all members of the Parliament under the superintendence of the Speaker.

See Rondey Brazier Choosinga Prime Minister-1932."

112. Thus, the author has also expressed his opinion to face with this situation, in England also suggestion has been thrown recently that in such circumstances the Queens choice may be guided by ballot of all members of Parliament under the superintendence of the Speaker, meaning thereby applying the same principle here in India as we have also adopted and guided by Parliamentary System of the Government, if it is not possible for His Excellency Governor to choose and appoint Chief Minister in consonance with the provisions of Article 164 of the Constitution of India, indeed in such circumstances relevant provisions of Articles 174 and 175 may be adhered to in summoning the House and sending message to the respective Members of Legislative Assembly to choose a person of their choice. By adopting this process, the Governor may come to some decision about unanimity of the Members of Legislative Assembly and on that basis by exercising his prerogative powers under Article 164 of the Constitution, may appoint a Chief Minister. This is what Geoffrey Marshal has stated in his book that "Queens choice may be guided by ballot of all members of Parliament under the superintendence of the Speaker".

113. No doubt, an argument was advanced by the learned Solicitor General that the party leaders are at loggerheads, but all the same in party politics the political history of lest 50 years has shown that their friendship and enmity depends upon their political conveniences. This is well known that individually no member of the Legislative Assembly wants that the House be dissolved and against they should be asked to go for free poll. Therefore, possibility of unanimity amongst them in indicating a person in whom the House has confidence, cannot be ruled out. Further, if new elections are held, it will unnecessarily burden public exchequer incurring huge expenses in corers.

114. Here it will not be out of place to state that Japan is the first country is Asia to have a Parliamentary Government where Prime Minister is elected by the Diet and he can hold his office only so long as he enjoys the confidence of the House of the Representatives. Parliament in Japan is called the Diet. It has two Chambers- the House of Councillors and the House of Representetives. The Diet is the central legislature.

115. Therefore, it is not if that the provisions of Article 174 and 175 of our Constitution, are adhered to for the limited non-legislative purpose of ascertaining wishes of the House as to in whom it has confidence so as to enable His Excellency the Governor in appointing Chief Minister by exercising his prerogative powers conferred by Clause (1) of Article 164, it will be unprecedented or unconstitutional.

116. Similarly, quoting Sarkaria Commission Report in. S. R. Bommais case (supra) it is pointed out that in such circumstances by adopting one of the method in appointing Chief Minister, the Chief Minister should be chosen or elected by Legislative Assembly, which is reproduced below :

"4.11.01. The leader of the party, which has an absolute majority in the legislative assembly should invariably be called upon by the Governor to form a Government. This is a time honoured convention of a cabinet form of Government. There is no controversy in this regard. However, where no party has a clear majority, there are two views as to the procedure to be adopted for identifying the person who can form a Government. According to some State Governments, the leader of the single largest party should be given the opportunity. According to some others, the Governor, acting on his own, should summon the Assembly for electing a person to be the Chief Minister. Certain other State Governments have suggested that the person to be appointed as Chief Minister should be chosen or elected by the Legislative Assembly, even if he is the leader of the party which has secured absolute majority. Some of the State Governments consider the Governor should try to ensure that the Government to be formed will be stable.

4.11.02. It is important to note that in appointing the Chief Minister, the Governor is required to ensure that the Council of Ministers is collectively responsible to the Legislative Assembly vide Article 164(2)".

117. The argument advanced by the Solicitor General giving reference of Rai Sahib Ram Jawaya Kapur and Others Vs. The State of Punjab, particularly its paragraphs 13 and 14 is, that it is the cabinet which initiates legislation, without which legislature cannot function. No doubt, this proposition has no two opinions, but in the circumstances and situation like this where in exercise of Clause (b) of Article 356 where legislative powers have been taken away and vested with the Parliament, even then for non-legislative function the Legislature could meet and elect the person of their choice (See Pashupati Nath Sukul and Others Vs. Nem Chandra Jain and Others, so as to arrive at a decision in making the provisions of Articles 174 and 175 viable.

Rai Sahib Ram Jawaya Kapur and Others Vs. The State of Punjab, particularly its paragraphs 13 and 14 is, that it is the cabinet which initiates legislation, without which legislature cannot function. No doubt, this proposition has no two opinions, but in the circumstances and situation like this where in exercise of Clause (b) of Article 356 where legislative powers have been taken away and vested with the Parliament, even then for non-legislative function the Legislature could meet and elect the person of their choice (See Pashupati Nath Sukul and Others Vs. Nem Chandra Jain and Others, so as to arrive at a decision in making the provisions of Articles 174 and 175 viable.

Rai Sahib Ram Jawaya Kapur and Others Vs. The State of Punjab,

particularly its paragraphs 13 and 14 is, that it is the cabinet which initiates legislation, without which legislature cannot function. No doubt, this proposition has no two opinions, but in the circumstances and situation like this where in exercise of Clause (b) of Article 356 where legislative powers have been taken away and vested with the Parliament, even then for non-legislative function the Legislature could meet and elect the person of their choice (See Pashupati Nath Sukul and Others Vs. Nem Chandra Jain and Others, so as to arrive at a decision in making the provisions of Articles 174 and 175 viable.

particularly its paragraphs 13 and 14 is, that it is the cabinet which initiates legislation, without which legislature cannot function. No doubt, this proposition has no two opinions, but in the circumstances and situation like this where in exercise of Clause (b) of Article 356 where legislative powers have been taken away and vested with the Parliament, even then for non-legislative function the Legislature could meet and elect the person of their choice (See Pashupati Nath Sukul and Others Vs. Nem Chandra Jain and Others, so as to arrive at a decision in making the provisions of Articles 174 and 175 viable.

Pashupati Nath Sukul and Others Vs. Nem Chandra Jain and Others, so as to arrive at a decision in making the provisions of Articles 174 and 175 viable.

Pashupati Nath Sukul and Others Vs. Nem Chandra Jain and Others,

so as to arrive at a decision in making the provisions of Articles 174 and 175 viable.

so as to arrive at a decision in making the provisions of Articles 174 and 175 viable.

118. On the point of responsible Government which commands majority it would not be inappropriate to refer the book Governors Role in Indian Constitution by Sri Anirban Kashyap wherein on page 310 it says that the Constitution does not prescribe any qualification for the person to be selected by the Governor as Chief Minister or a Minister. The choice of the Governor is not therefore limited by anything in the Constitution. In Law of the Constitution by Sri A. V. Dicey on page 421 it is stated while discussing nature of conventions that in England the party who for the time being command a majority in the House of Commons, have (in general) a right to have their leaders placed in office. In Constitutional Law by E. C. S. Wade, while describing the conventions it is stated on page 63 that the support of the party or coalition which may be expected to command a majority in the House of Commons is a condition precedent to acceptance of the office. Further in the same book on page 65 discussing development of Collective Responsibility it is stated, "Accordingly there has been evolved since 1688 the rule of collective responsibility which rests upon convention alone." In Constitutional Laws of Great Britain sixth Edition by 0. Hood Phillips on page 34 it is stated, "The King must invite the most influential leader of the party or group commanding a majority of the House of Commons to form a Ministry." In Cabinet Government third edition by Sir Ivor Jennings it is stated on page 20. "The Government is a body of party politicians selected from among the members of that party or group of parties which has a majority or can secure a majority in the House of Commons." In Reflections on the Constitution by Herold J. Laski on page 97 it is stated, "The Cabinet remains, in essence, a committee of the party or parties with a majority in the House of Commons." In Parliament Functions, Practice and Procedures by J. A. G. Griffith, on page 20 it is stated, The Prime Minister is the leader of the political party which can command a majority in the House of Common." In Constitutional and Administrative Law by Hilaire Barnett in Constitutional Law, by Ian Loveland and in Modern Democracies by James Bryce there is nothing to indicate that the largest party without having majority must be invited to form the Government.

119. As stated above, learned Solicitor General contended that under our constitutional scheme it is not open for the Governor to convenience the House even for non-legislative functions without the aid and advice of the Council of Ministers and therefore, there was no option for the Governor but to invoke Article 356 of the Constitution and this Court under its powers of judicial review cannot enquire as to what the Governor could or should have done in such situation of the instant case.

120. In this connection we have to again advert to the constitutional provisions. Clause (1) of Article 163 provides that there shall be a Council of Ministers to aid and advise the Governor in the exercise of his functions. This clause classifies the functions of Governor in two parts. In first part there are the functions which the Governor has to exercise with the aid and advise of the Council of Ministers and in the second part there are functions or any of them, which the Governor shall exercise in his discretion. Thus, there are certain functions which cannot possibly be exercised by the Governor on Ministerial advice such as reporting to the President under Article 356(1), reserving a Bill for consideration of President under Article 200(1), choosing a person to be appointed as a Chief Minister if no party is having clear majority and fixing a date for floor test.

121. The Clause (1) of Article 163 uses the word shall There shall be a Council of Ministers. The word shall indicates mandatory sense. Therefore, it is not the discretion of the Governor to appoint a Chief Minister or not to appoint. Constitutionally he is bound to appoint a Chief Minister. Here his discretion is limited to choose the Chief Minister if no party has clear majority. But it is not open for the Governor to say that he will not appoint a Chief Minister.

122. Now in the given situation of instant case where the President Rule was to expire on 17-10-1996. under Article 356 it was constitutionally not permissible to extend Presidential Rule beyond 17-10 1996 no political party or group was having clear majority, the confidence of the House was a must for the person to be appointed as Chief Minister under this unprecedented peculiar situation whether the aid of Clause (1) of Article 174 and Clause (1) of Article 175 was open for the Governor for the very limited non-legislative purpose of ascertaining the wishes of the members of Legislative Assembly as to in whom they are having the confidences so as to make the appointment of Chief Minister possible is to be examined from the constitutional scheme.

123. In this context we have to look in the Rules of Procedure and Conduct of Business of the U. P. Legislative Assembly framed under Article 208 of the Constitution of India. Chapter II. Rule 4 (1) of the aforesaid Rules provides that the Assembly shall be summoned by the Governor from time to time to meet at such time and place as he may appoint. Rule 5 of said Rules provides that every member of the House, in pursuance of Article 188 of the Constitution, shall, before taking his seat make and subscribe before the Governor or some person appointed in that by him an oath or affirmation. The provides that the making the prescribed oath or affirmation by a member and, the election of the Speaker, if necessary, may precede the Governors address The proviso to Clause (3) of Rule 19 provides that notwithstanding the fact that a day has been allotted for the discussion the Governors address other business of a formal nature may be transacted on such a day before the House commences or continues the discussion on the address

124. Therefore, in the peculiar situation of instant case it was also an option constitutionally open for the Governor to ascertain the wishes of the members of thirteenth Legislative Assembly within the precincts of the House taking the aid of his constitutional powers conferred by Articles 174(1) and 175(1) as it was purely a non-legislative function before resorting to Article 356 of the Constitution which was available for the Governor only as a last resort.

125. In this context we have also to examine whether even in such exceptional situation the aid of Articles 174(1) and 175(1) was open for the Governor without having Council of Ministers. In our opinion, in normal, situation it is not available for the Governor to summon the House without the aid of Council of Ministers. But here one has to always bear in mind the exceptional situation of instant case. There may be extreme situation where the Governor appoints a Chief Minister and the Council of Ministers and the Council of Ministers advises the Governor to fix a date for floor test alter six months (normally no Council of Ministers shall do so) in that even whether fixation of date for proving majority would be finalised by the Governor or the Council of Ministers. Naturally it is the Governor who has to finalise the dale for proving the majority and not the Council of Ministers. Therefore, in exceptional and in extreme situations like the present one, bearing in mind the checks and balances it has to be held that the aid of Articles 174(1) and 175(1) is available to the Governor only for non-legislative functions for ascertaining the wishes of the members of Legislative Assembly in exceptional and extreme situations like present one.

126. Now again reverting to the appointment of Chief Minister in this very context, it may be stated that the Chief Minister has to be appointed by the Governor alone. It is neither for the people nor for the Legislative Assembly i. e. representatives of the people to elect the Chief Minister, Of course, it is that the Chief Minister will have to prove his majority at the floor of the Assembly, It is also not. that the person has to first prove his majority then he has to be appointed as Chief Minister. The appointment is first and the proving of majority is subsequent. The appointment may be made in the Governor House but the majority has to be proved in the floor of the House. But it is not, that the appointment is first and satisfaction of the Governor is subsequent. First the Governor has to be satisfied and then he has to appoint. Now it has to be seen as to what should be the extent of satisfaction. It has to be less than the floor test because the floor test is the stage subsequent to appointment. Therefore, the Governor may ascertain the wishes of the members of the House in the precincts of the House if majority is absolutely not clear.

127. Here one aspect is very important that formation of elected Government is primary responsibility of the political superiors therefore, first they are expected to stake the claim. Thereupon the Governor has to arrive at his satisfaction about majority. The satisfaction of the Governor has to be less that the floor test. The constitutional obligation to appoint a Chief Minister in the process of formation of popular or elected Government is upon the Governor. He is bound to appoint the Chief Minister and therefore, it is for the Governor to explore all possibilities for the formation of the Government. Only after exploring all possibilities, the resort of Article 356 can be available and not before that.

128. Our Constitution is a federal structure and not unilateral structure and therefore under the circumstances, without cabinet the State Legislature can exist but only for limited purpose and only by this rationale and democratic approach, the problem can be sorted out to avoid dissolution so that the Legislature may meet and by socratic debate they may reach on certain decision by general consciousness and it is only possible if there is meeting of mind. Learned Solicitor-General though contended that leaders of the parties are at logger-heads and possibility of their reaching to some conclusion in this regard is not possible, but this apprehension only could be sorted out when all legislators are given a chance to meet, assemble, discuss and reach to some conclusion.

129. It is vehemently contended that it is the prerogative of the Governor to appoint Chief Minister. No doubt, it is constitutional mandate, but keeping in view Clause (2) of Article 164, the Governor has to exercise this power very cautiously in appointing Chief Minister and his associate Ministers so that they may enjoy confidence of the House, meaning thereby a legislator or an outside person who is agreeable the majority of the House only that person can be appointed. Selection of such person is to be made normally by the Governor by his wide experience and wisdom, but he fails to select such person to be appointed, then in that circumstance it is not that the provisions of the Constitution have not taken care or to meet such eventualities. Article 356 contemplates failure of constitutional machinery. But if the Governor fails to exercise his powers under Article 164(1), under such circumstances Article 356 cannot be invoked and that is haw Articles 174, 175 can be adhered to in implementing the rule of law.

130. If decision is taken without any principle or ignoring the principle or without any rule, it is not predictable and such decision is antithesis of a decision taken in accordance with rule of law. If we just turn over to the preamble of our Constitution, we find that political justice is also a part of the basic structure and this political justice can only be extended at this juncture to the electorate though their representatives only by adhering to the provisions of Article 174 and 175 of the Constitution. We need not repeat that democracy is a basic structure of the Constitution and rule of law is also a basic structure of the Constitution apart from democracy, and therefore persuasiveness of the spirit of law throughout the whole range of the Government in the sense of excluding arbitrarily official action in any sphere is to be avoided in all possible ways to maintain democracy. No attempt much less serious attempt was taken by the Governor in this regard to preserve democracy, though we talk much about sovereign powers and sovereignty. Primarily, it is the bounden duty of the Governor to preserve the sovereignty and to see that it is preserved in a constitutional way. B;>t, simultaneously, if the Governor fails to do so, the Courts are not lagging behind by virtue of their oath to ensure that it is preserved by way of exercising legal sovereignty, as the same is covered by way of judicial review. At this stage, we are reminded what has been said in "Rajasthan case". "Every constitutional question concerns the allocation and exercise of Governmental power and no constitutional question can, therefore, fail to be political. A constitution is a matter of purest politics and merely because a question has a political colour Court cannot fold its hands and despair and declare judicial hands off"

131. Learned Advocate General of U. P. Sriyut Shanti Swarup Bhatnagar, pointing out from the judgment of Honble Mr. Justice Gupta, submitted that his Excellency the Governor cannot be commanded by writ of mandamus for inviting the single largest party to form the Government in view of provisions of Article 361 of the Constitution.

132. No doubt, this immunity is provided to the constitutional Heads like the President of India and Governors of State, against whom no writ can be issued in view of mandatory provisions of Article 361 of the Constitution. This immunity appears to have been based on the doctrine "King can do no wrong" and therefore he cannot be commanded by courts orders. However, since this doctrine in the shape of Article 361 is adopted by or in our Constitution, the Head of the States and the President of India cannot be commanded by issuing a writ of mandamus. But one thing is certain that from where this immunity Clause emanates and adopted in our Constitution, has been unrooted from the land of its birth by Crown Proceedings Act, 1948 in England and thus there is no base to continue this immunity clause in its present form in our Constitution because of the changing concept in modern jurisprudence where State immunity is being diluted. All the same since this immunity is guaranteed to the Heads of the States in our Constitution, therefore, we hold that His Excellency the Governor cannot be commanded by writs,

133. In this regard it will not be out of place to state that the view derived from Black-Stone that Judges do not make the law but only declare what always been the law and often declare the defects in legislation which can only be cured by the Legislature. However, this concept has been accepted in our country While examining vires of law, as it is within the competence of the Court to declare it intra or ultra vires; In this respect we are of the opinion that in our country which is a developing country and for its upliftment and development most of progressive welfare laws have been legislated extending benefits to large section of the society, if that law or part of it suffers from legislative competence and is declared ultra vires, in our humble opinion, adhering to the "doctrine of prospective overruling (propounded by Cartodoz, J., in 1935 in America) a reasonable opportunity deserves to be afforded to the Legislature (State or Centre as the case may be) so as to reconsider particular provision of law or total enactment which is subject matter of declaring ultra-vires in the light of findings given by the Court and rectify that error within a reasonable time, failing which the judgment will become operative. This is necessary so as to amplify speedy action in executing progressive welfare laws and in achieving the real goal of independence and democracy and also to avoid the unjust enrichment and constitutional dead-lock in the nature of constitutional crisis which may arise as a result of the order or judgment passed by the Court and its immediate execution, Under such circumstances care is to be taken by the Courts by applying the doctrine of prospective overruling to make the order operative from a future date.

134. In view of the discussions made above, this Court is of the considered opinion that in the given situation of instant case Honble the Governor of Uttar Pradesh was constitutionally not bound or obliged, to invite the largest single party (Bhartiya Janta Party) to form the Government in case in his judgment it was not having confidence of the House, in view of Article 164 of the Constitution of India but at the same time he was constitutionally bound and obliged to explore all possibilities for formation of elected Government of the people which in the opinion of this Court Governor did not do as stated above.

135. Before parting with the case we feel it our bounden duty to appreciate Sarvashri Andhyarijune, learned Solicitor General of India, Sriyut Shanti Swarup Bhatnagar, learned Advocate General of Uttar Pradesh appearing for the respondents in all the writ petitions mentioned above and Sarvasri R. N. Trivedi, learned Senior Advocate, S. C. Misra, learned Senior Advocate and H.S. Jain, learned Advocate, appearing for petitioners, who by their legal acumen, polite and ingenious arguments enlightened this Court in adjudication of the unprecedented questions and constitutional interpretations involved in these petitions.

136 Thus, from the foregoing discussions this Court arrives at the final conclusion that the impugned Presidential Proclamation dated 17th October, 1996 reimposing the Presidential Rule under Article 356 of the Constitution of India, in Uttar Pradesh subsequently approved by the Parliament (copy of which is annexed as Annexure 1 to Writ Peitition No. 3150 (M/B) of 1996 to the Lalji Tandon v. Union of India is liable to be quashed, consequently it is hereby quashed and accordingly all the petitions are hereby allowed to this extent.

Brijesh Kumar, J.—The validity of Notification dated October 17, 1996 issued by the President of India in exercise of powers under Article 356 of the Constitution has been impugned by the petitioners. The President of India, while recording his satisfaction, on the basis of reports received from the Governor of Uttar Pradesh, that a situation has arisen in which the Government of the State cannot be carried on, in accordance with the provisions of the Constitution, by proclamation assumed all functions and powers vested in the State Government as well as powers of the State Legislature, exercisable by or under the authority of the Parliament. The proclamation also makes incidental and consequential provisions to give effect to the objects of the proclamation. Operation of certain provisions of the Constitution in relation to the State have also been suspended including Articles 163, 164 Clause (3) of Article 166, Clause (1) of Articles 174, 175, 176, 177 and 188 etc.

2. The facts may be briefly recounted. Initially a Notification, containing proclamation under Article 356 of the Constitution of India was issued by the Prisident on October 18, 1996. It was based on the report received from the Governor of Uttar Pradesh. The President had recorded his satisfaction that a situation had arisen in which the Government of the State could not be carried on in accordance with the provisions of the Constitution. While assuming all functions and powers of the State as well as powers of the State Legislature, certain provisions of the Constitution including Articles 163, 164 and 174 to 177 had also been suspended. On expiry of a period of six months of the operation of the proclamation dated October 18, 1995, another Notification was issued extending the period of earlier proclamation dated October 18,1995 for a further period of six months, as approved by Lok Sabha, with effect from 18-4-1996. The extended period was to expire on October 17, 1996. Before expiry of the above noted period, the Assembly elections in the State of Uttar Pradesh were held on 30-9-1996, 3-10-1996 and 7-10-1996, and results were declared on 10-10-1996. A notification No. GSR-481-E was issued on 17-10-1996 revoking the proclamation issued under Article 356 dated 18-10-1995. On the date, namely, 17-10-1996, the impugned Notification containing the proclamation, as indicated earlier was also issued.

3. Yet another Notification was issued on the same date, namely, 17-10-1996 by the Election Commission u/s 73 of the Representation of People Act, constituting Legislative Assembly in the State of Uttar Pradesh.

4. The impugned Notification containing the proclamation dated 17-10-1996 has been challenged on variety of grounds. It has been submitted that it violates Clause (5) of Article 356 of the Constitution, since it extends the period of President Rule, beyond a period of one year, without the conditions existing, as provided under Clause (5) of Article 356 of the Constitution. The proclamation is contended to have been issued mala fide in colourable exercise of powers vested under Article 356 of the Constitution. It has also been submitted that there existed no material on the basis of which the President could record his satisfaction that a situation had arisen in which it was not possible to run the Government of the State in accordance with the provisions of the Constitution, inasmuch as both the Notifications, revoking the President Rule and imposing the same, were issued on the same date, namely 17-10-1996. Yet another contention is that since the Bhartiya Janta Party with the Samta Party had won 176 seats in the Assembly, it should have been called to form the Government being largest party as all other parties had won much less number of seats-Samajwadi Party 110, Bahujan Samaj Party 67, Congress (I) 33, United Front 24, Janta Dal 7 and others 16. The Governor had also not explored all the possibilities of forming the Government in the State before recommending imposition of President Rule. It is submitted that after the House was constituted, after the elections, on 17-10-1996, there was no effort made to form the Government, nor any fresh report thereafter was given by the Governor. The report at the Governor was sent earlier, prior to constitution of Assembly. According to (he petitioners, issuance of the impugned Notification militates against the federal structure of our system which is a basic feature of our Constitution. It has also been submitted that the impugned Notification has been issued as a result of political vendetta entertained by the United Front Government against the Bhartiya Janta Party which has been unjustifiably of forming the Government. It is submitted that there have been instances earlier when minority parties had been called to form the Government. According to the petitioners, by keeping Articles 163 and 164 of the Constitution suspended throughout, the Governor was disabled to form the Government.

5. Some of the other submissions which have been made, are that no proclamation could be issued by the President of India to assume powers and functions of the State Government which were already vested in the President by virtue of earlier proclamation and its extension. The report sent by the Governor to the President has also been assailed on the ground that there is no basis for such report and it contains irrelevant facts, upon which the President could not have based his subjective satisfaction to impose the President Rule.

6. During the course of the arguments, while dealing with the submissions about exploration of all possibilities of Government formation, an important question cropped up as to whether the Governor could call the House of elected representatives, requiring them to indicate as to who may be invited to form a Government which may enjoy the confidence of the House, since the Governor himself was finding of difficult to invite any party to form the Government.

7. The case of the opposite parties is that it is a fresh proclamation issued in a new situation which had arisen after the general elections to the Assembly, hence it was not a case of extension of earlier proclamation. It has been submitted that all possibilities were explored by the Governor who rightly came to the conclusion that no party was in a position to form Government as all were in minority, and they did not agree to join or support each other in forming a Government. Samajwadi Party and Bahujan Samaj Party were opposed to Bhartiya Janta Party, the single largest party in forming the Government. In such a situation, there was no alternative left but to issue a fresh proclamation keeping the House in suspended animation, It is also submitted that legally and constitutionally, it was not possible for the Governor to call the elected Members on the floor of the House for indicating a leader of any party who could be appointed as Chief Minister, It is also contended that there is no colourable exercise of power in issuing the impugned proclamation Article 356(1), Clause (a) as well as Clause (b) have been rightly invoked by the President in the facts and circumstances prevailing in the State of Uttar Pradesh, It is also submitted that the satisfaction of the President on the point that a situation had arisen in which the Government of the State could not be carried on in accordance with the provisions of the Constitution, cannot be scrutinized or interfered with since the scope of judicial review is very narrow and to a very limited extent.

8. The main questions which fall for consideration are -

(1) What is the scope of judicial review of a proclamation issued under Article 356 of the Constitution by the President

(2) Whether it is incumbent upon the Governor to invite the leader of the largest party, though in minority, to form the Government

(3) Whether in a situation, where the Governor is not in a position to call leader of any party to form the Government, it would be open for him to summon the elected Members of different parties and independents in the House and seek their assistance in choosing a person who may be invited to form the Government

(3) (a) Whether in the present case, the Governor had explored all legally available possibilities for formation of Government in the State before recommending for President Rule as a last resort

(4) Whether the State can be put/continued under the President Rule for more than one year period, in the absence of conditions prevailing as prescribed under Clause (5) of Article 356 of the Constitution

(4) (a) Whether in the facts and circumstances of the present case, the impugned proclamation is a fresh proclamation of the President Rule or in substance, it is extension of the proclamation issued on 18-10-1995

9. Before embarking upon enquiry into the questions which arise for consideration, it is worth-while to mention that a recent decision of the Honble Supreme Court, in the case of S.R. Bommai and others Vs. Union of India and others etc. etc., , elaborately laid down the law on Article 356 and some of the aspects involved in the present case. The questions involved can better be appreciated in the background of the law laid down in the above noted case. About the exercise of powers under Article 356 of the Constitution, it has been observed by Honbie Sawant, J. in para 109 of the report"...the proclamation under Article 356(1) is admittedly a drastic step, there is a corresponding obligation on the President to resort to other measures before the step is taken under Article 356(1). This is all the more necessary considering the principles of federal and democratic polity embedded in our Constitution. In this connection, we may refer again to what Dr. Ambedkar himself had to say on the subject. We have quoted the relevant extract from his speech in paragraph 77 above. He has expressed the hope there that resort to Article 356(1) would be only as a last measure and before the article is brought into operation, the President would take proper proclamation-he hoped that the first thing the President would do would be to issue a mere warning." It is further observed in para 121. "What is important to remember is that recourse to Article 356 should be the last resort for a Governor to seek".

S.R. Bommai and others Vs. Union of India and others etc. etc., , elaborately laid down the law on Article 356 and some of the aspects involved in the present case. The questions involved can better be appreciated in the background of the law laid down in the above noted case. About the exercise of powers under Article 356 of the Constitution, it has been observed by Honbie Sawant, J. in para 109 of the report"...the proclamation under Article 356(1) is admittedly a drastic step, there is a corresponding obligation on the President to resort to other measures before the step is taken under Article 356(1). This is all the more necessary considering the principles of federal and democratic polity embedded in our Constitution. In this connection, we may refer again to what Dr. Ambedkar himself had to say on the subject. We have quoted the relevant extract from his speech in paragraph 77 above. He has expressed the hope there that resort to Article 356(1) would be only as a last measure and before the article is brought into operation, the President would take proper proclamation-he hoped that the first thing the President would do would be to issue a mere warning." It is further observed in para 121. "What is important to remember is that recourse to Article 356 should be the last resort for a Governor to seek".

S.R. Bommai and others Vs. Union of India and others etc. etc.,

, elaborately laid down the law on Article 356 and some of the aspects involved in the present case. The questions involved can better be appreciated in the background of the law laid down in the above noted case. About the exercise of powers under Article 356 of the Constitution, it has been observed by Honbie Sawant, J. in para 109 of the report"...the proclamation under Article 356(1) is admittedly a drastic step, there is a corresponding obligation on the President to resort to other measures before the step is taken under Article 356(1). This is all the more necessary considering the principles of federal and democratic polity embedded in our Constitution. In this connection, we may refer again to what Dr. Ambedkar himself had to say on the subject. We have quoted the relevant extract from his speech in paragraph 77 above. He has expressed the hope there that resort to Article 356(1) would be only as a last measure and before the article is brought into operation, the President would take proper proclamation-he hoped that the first thing the President would do would be to issue a mere warning." It is further observed in para 121. "What is important to remember is that recourse to Article 356 should be the last resort for a Governor to seek".

, elaborately laid down the law on Article 356 and some of the aspects involved in the present case. The questions involved can better be appreciated in the background of the law laid down in the above noted case. About the exercise of powers under Article 356 of the Constitution, it has been observed by Honbie Sawant, J. in para 109 of the report"...the proclamation under Article 356(1) is admittedly a drastic step, there is a corresponding obligation on the President to resort to other measures before the step is taken under Article 356(1). This is all the more necessary considering the principles of federal and democratic polity embedded in our Constitution. In this connection, we may refer again to what Dr. Ambedkar himself had to say on the subject. We have quoted the relevant extract from his speech in paragraph 77 above. He has expressed the hope there that resort to Article 356(1) would be only as a last measure and before the article is brought into operation, the President would take proper proclamation-he hoped that the first thing the President would do would be to issue a mere warning." It is further observed in para 121. "What is important to remember is that recourse to Article 356 should be the last resort for a Governor to seek".

10. Honble K. Ramaswarny, J. concluded in para 247 of the report, "Federalism envisaged in the Constitution of India is a basic feature in which the Union of India is permanent within the territorial limits set in Article 1 of the Constitution and the law made by Articles 2 to 4 with no territorial integrity, but a permanent entity with its boundaries alterable by a law made by Parliament- ..." In para 393, it has been observed by Honble Jeevan Reddy, J."what is important to remember is that recourse to Article 356 should be the last resort for a Governor to seek......the guiding principle being, as already stated, that the constitutional machinery in the State should, as far as possible, be maintained,"

11. About the scope of judicial review, it has been concluded in para 434 as Conclusion No. (7). "The proclamation under Article 356(1) is not immune from judicial review. The Supreme Court or the High Court can strike down the Praclamation if it is found to be mala fide of based on wholly irrelevant or extraneous grounds. The deletion of Clause (5) which was introduced by 38th Amendment Act by the 44th Amendment Act, removes the cloud on the reviewability of the action. When called upon, the Union of India has to produce the material on the basis of which action was taken. It cannot refuse to do so, if it seeks to defend the action. The court will not go into the correctness of the material or its adequacy. Its enquiry is limited to see whether the material was relevant to the action. Even if part of the material is irrelevant, the court cannot interfere so long as there is some material which is relevant to the action taken."

12. The conclusion No. (2) as indicated in para 434, reads : "The power confered by Article 356 upon the President is a conditioned power. It is not an absolute power. The existence of material-which may comprise of or include the report(s) of the Governor-is a precondition. The satisfaction must be formed on relevant material. The recommendations of the Sarkaria Commission with respect to the exercise of power under Article 356 do merit serious consideration at the hands of all concerned."

13. So far as the first question relating to judicial review of the proclamation issued under Article 358 of the Constitution is concerned undoubtedly the position is that it is not absolutely beyond the pale of judicial scrutiny. Judicial review itself is one of the basic features of our Constitution. But looking to the provisions as contained under Article 356 of the Constitution, law has been clearly propounded that the scope of judicial review is narrow and limited. Article 356 can be invoked in the event of failure of constitutional machinery in the State The phraseology used in the marginal note "Failure of constitutional machinery in the State" is elaborated by the contents of Clause (1) of Article 356 when it provides that the President on being satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution he would be empowered to issue a proclamation, assuming Executive and Legislative powers of the State to himself, subject to other provisions as contained under Article 356. It is the subjective satisfaction of the President, on the basis of the report of the Governor or otherwise that the Government of the State cannot be carried on in accordance with the provisions of the Constitution. The satisfaction of the President is no doubt to be based on some relevant material, may be in the shape of report of the Governor or otherwise. The adequacy and legal admissibility of the material cannot be looked into, nor the fact that alongwith the relevant material, some irrelevant material was also considered would vitiate the satisfaction, so long as there remains some material which would be relevant for the satisfaction of the President that the Government of the State cannot be carried on in accordance with the provisions of the Constitution. Merit of the decision is out of the bounds of judicial scrutiny, but the manner in which the decision has been reached can be scrutinized.

14. The satisfaction of the President under Article 353 is different from the satisfaction of other administrative authorities As observed by Honble J. S. Verma, J. in the case of S. R. Bommai (supra). "The expression-or otherwise in Article 356 indicates the wide range of the materials which may be taken into account for the formation of opinion by the President. Obviously, the materials could consist of several imponderables including some matter which is not strictly legal evidence the credibility and authenticity of which is incapable of being tested in law courts. The ultimate opinion formed in such cases, would be mostly a subjective political judgment. There are no judicially manageable standards for scrutinizing such materials and resolving such a controversy By its very nature such controversy cannot be justiciable It would appear that all such cases are, therefore, not justiciable."

15. The tests laid down in the case of State of Rajasthan and Others Vs. Union of India and Others, , have been held to be the valid tests. The conclusions as drawn in para 434 of the decision, have already been referred in above, concluding that existence of material is a pre-condition for exercise of power under Article 356 of the Constitution by the President. The satisfaction must be formed on some relevant material.

State of Rajasthan and Others Vs. Union of India and Others, , have been held to be the valid tests. The conclusions as drawn in para 434 of the decision, have already been referred in above, concluding that existence of material is a pre-condition for exercise of power under Article 356 of the Constitution by the President. The satisfaction must be formed on some relevant material.

State of Rajasthan and Others Vs. Union of India and Others,

, have been held to be the valid tests. The conclusions as drawn in para 434 of the decision, have already been referred in above, concluding that existence of material is a pre-condition for exercise of power under Article 356 of the Constitution by the President. The satisfaction must be formed on some relevant material.

, have been held to be the valid tests. The conclusions as drawn in para 434 of the decision, have already been referred in above, concluding that existence of material is a pre-condition for exercise of power under Article 356 of the Constitution by the President. The satisfaction must be formed on some relevant material.

16. In view of the legal position indicated above, it would not be permissible to examine the decision on merits, nor evaluation or appreciation of the material, placed before the President, in the shape of the reports of the Governor dated 15-10-1996 and 16-10-1996 is permissible Authenticity or adequacy of material can also not be examined. It has been vehemently urged on behalf of the petitioners that the reports were based on rumours, as the report itself says that rumours were afloat of huge sums of money being available. It is submitted that rumours floating around, can hardly be a material to bank upon, in reports of such a nature leading to very serious consequences. Our attention has been drawn to similar allegations under consideration in the case of S. R. Bommai (supra), in connection whereof it was observed in para 118, "......It is not known from where the Governor got the information that there was horse-trading going on between the legislators". In the present case, however, it is clear that the apprehension of horse-trading was based on the rumours of huge sums of money being available. Similarly in respect of the apprehension that there would be violation of Xth Schedule of the Constitution, it is submitted that, that aspect of the matter taken into consideration by the Governor is also based on surmises. It is further submitted that looking to the provisions of Xth Schedule, in every case of support to the Government by legislators, belonging to other parties or independent members it would not necessarily amount to violation of the provisions of Xth Schedule. It will, however, be futile to probe into these points since, even if the points raised are assumed to be correct, it will not make any difference as apart from the above factors, there was still some material for forming subjective satisfaction. The Governor had held talks with leaders of political parties. Adequacy of material cannot be gone into. It is beyond the scope of judicial review. The other part of the argument, as to whether the Governor had explored all the possibilities in connection with the formation of a Government or not, would be considered latter at the appropriate place.

17. The next point for consideration is as to whether it was or not, incumbent upon the Governor to invite the leader of Bhartiya Janata Party (for short, the B. J. P.) to form the Government being the largest single party. learned counsels for the petitioners have vehemently urged that the B. J. P. is the largest single party Having substantial number of seas in the House. Therefore, even though it was not in majority, the Governor should have invited it to form the Government as other parties having lesser number of seats had not been able to join or to support each other so as to be able to form a Government. It is further submitted that it is not a case where the single largest party may be having a small number of seats. For example, if in a House of 100 members, as chance may have it, the single largest party obtains only 15 or 20 seats, it is submitted, that would be a different situation which cannot be equated with the situation where a political party obtains substantial number of seats The total number of seats of B.J.P. alongwith Samta Party is 176. The contention is that it is a substantial number; hence B.J.P. should have been given a chance to make an effort to form the Government, In this connection, some instances have been given that on certain earlier occasions, leaders of minority parties had been invited to form Government. According to the petitioners, this practice/convention should have been followed this time as well.

18. In dealing with the above argument, the question that fails for considerations is as to whether there is any convention in parliamentary democracy, that a single largest party, though in minority must be invited to form Government or not, A few instances on some earlier occasions do not constitute any established practice nor mature into conventions. So as to be regarded as a binding convention, which can be equated with an unwritten rule the practice should have been followed consistently only in that manner and repeatedly for a sufficiently long time.

19. Sri S. C. Misra, learned counsel for one of the petitioners has referred to a decision of Honble Supreme Court in the case of Supreme Court Supreme Court Advocates-on-Record Association and another Vs. Union of India, , particularly paras 336 to 346, where the question of convention has been elaborately considered. The view is that conventions develop into unwritten rule of practice so as to make the Constitution workable and cover the filed where there are no specific details in the Constitution in that regard. Convention develops by passage of time when it is regarded as binding on all concerned. If is true, no time can been fixed for a practice to be developed into convention and as observed in the case of Supreme Court Advocates-On-Record Association (supra), the conventions are found in all established Constitutions and since they may develop into the newest. In the British Parliamentary history, with the passage of time many conventions have developed but no such convention developed into an unwritten rule that a single largest party, though in minority must in all cases be invited to form Government. There is though a fully developed convention, which is considered binding in England as well as in our country that leader of the majority party has to be called to form the Government ft has consistently been accepted and acted upon, but there is no such convention that the single largest party in the House must necessarily be called to form Government in such a situation, it is for the President or the Governor, as the case may be, to make assessment pin his discretion and take a decision in the matter. There may be situations, where instead of the single largest party, any minority party having lesser number of seats, may be called upon to form the Government if in the bona fide assessment of the President or the Governor, it is found that such a minority Government would find support from other parties and would enjoy the confidence of the House. The area is covered by the discretionary powers of the head of the State where assessment of political situation is to be made subjectively That is the reason perhaps that no convention could develop so far to act in a particular manner or that the largest party, though in minority, in all eventualities must be called to form the Government. No such convention could be pointed out on behalf of the petitioners from the British Parliamentary history or otherwise. Certain instances which have been given, in which the single largest party had been called to form the Government, it was generally done on the satisfaction of the head of the State that the minority Government will have the support from other parties and would enjoy the confidence of the House. In the absence of such satisfaction, it cannot be contended that the single largest party must in all the cases be called to form the Government. In certain circumstances, it may and in others it may not be possible to do so for justified reasons. It differs from situation to but situation the assessment and decision must be bona fide and fair. The single largest party must satisfy the Governor/President, as the case may be, atleast prima facie , that it would be in a position to win the confidence of the House.

Supreme Court Advocates-on-Record Association and another Vs. Union of India, , particularly paras 336 to 346, where the question of convention has been elaborately considered. The view is that conventions develop into unwritten rule of practice so as to make the Constitution workable and cover the filed where there are no specific details in the Constitution in that regard. Convention develops by passage of time when it is regarded as binding on all concerned. If is true, no time can been fixed for a practice to be developed into convention and as observed in the case of Supreme Court Advocates-On-Record Association (supra), the conventions are found in all established Constitutions and since they may develop into the newest. In the British Parliamentary history, with the passage of time many conventions have developed but no such convention developed into an unwritten rule that a single largest party, though in minority must in all cases be invited to form Government. There is though a fully developed convention, which is considered binding in England as well as in our country that leader of the majority party has to be called to form the Government ft has consistently been accepted and acted upon, but there is no such convention that the single largest party in the House must necessarily be called to form Government in such a situation, it is for the President or the Governor, as the case may be, to make assessment pin his discretion and take a decision in the matter. There may be situations, where instead of the single largest party, any minority party having lesser number of seats, may be called upon to form the Government if in the bona fide assessment of the President or the Governor, it is found that such a minority Government would find support from other parties and would enjoy the confidence of the House. The area is covered by the discretionary powers of the head of the State where assessment of political situation is to be made subjectively That is the reason perhaps that no convention could develop so far to act in a particular manner or that the largest party, though in minority, in all eventualities must be called to form the Government. No such convention could be pointed out on behalf of the petitioners from the British Parliamentary history or otherwise. Certain instances which have been given, in which the single largest party had been called to form the Government, it was generally done on the satisfaction of the head of the State that the minority Government will have the support from other parties and would enjoy the confidence of the House. In the absence of such satisfaction, it cannot be contended that the single largest party must in all the cases be called to form the Government. In certain circumstances, it may and in others it may not be possible to do so for justified reasons. It differs from situation to but situation the assessment and decision must be bona fide and fair. The single largest party must satisfy the Governor/President, as the case may be, atleast prima facie , that it would be in a position to win the confidence of the House.

Supreme Court Advocates-on-Record Association and another Vs. Union of India,

, particularly paras 336 to 346, where the question of convention has been elaborately considered. The view is that conventions develop into unwritten rule of practice so as to make the Constitution workable and cover the filed where there are no specific details in the Constitution in that regard. Convention develops by passage of time when it is regarded as binding on all concerned. If is true, no time can been fixed for a practice to be developed into convention and as observed in the case of Supreme Court Advocates-On-Record Association (supra), the conventions are found in all established Constitutions and since they may develop into the newest. In the British Parliamentary history, with the passage of time many conventions have developed but no such convention developed into an unwritten rule that a single largest party, though in minority must in all cases be invited to form Government. There is though a fully developed convention, which is considered binding in England as well as in our country that leader of the majority party has to be called to form the Government ft has consistently been accepted and acted upon, but there is no such convention that the single largest party in the House must necessarily be called to form Government in such a situation, it is for the President or the Governor, as the case may be, to make assessment pin his discretion and take a decision in the matter. There may be situations, where instead of the single largest party, any minority party having lesser number of seats, may be called upon to form the Government if in the bona fide assessment of the President or the Governor, it is found that such a minority Government would find support from other parties and would enjoy the confidence of the House. The area is covered by the discretionary powers of the head of the State where assessment of political situation is to be made subjectively That is the reason perhaps that no convention could develop so far to act in a particular manner or that the largest party, though in minority, in all eventualities must be called to form the Government. No such convention could be pointed out on behalf of the petitioners from the British Parliamentary history or otherwise. Certain instances which have been given, in which the single largest party had been called to form the Government, it was generally done on the satisfaction of the head of the State that the minority Government will have the support from other parties and would enjoy the confidence of the House. In the absence of such satisfaction, it cannot be contended that the single largest party must in all the cases be called to form the Government. In certain circumstances, it may and in others it may not be possible to do so for justified reasons. It differs from situation to but situation the assessment and decision must be bona fide and fair. The single largest party must satisfy the Governor/President, as the case may be, atleast prima facie , that it would be in a position to win the confidence of the House.

, particularly paras 336 to 346, where the question of convention has been elaborately considered. The view is that conventions develop into unwritten rule of practice so as to make the Constitution workable and cover the filed where there are no specific details in the Constitution in that regard. Convention develops by passage of time when it is regarded as binding on all concerned. If is true, no time can been fixed for a practice to be developed into convention and as observed in the case of Supreme Court Advocates-On-Record Association (supra), the conventions are found in all established Constitutions and since they may develop into the newest. In the British Parliamentary history, with the passage of time many conventions have developed but no such convention developed into an unwritten rule that a single largest party, though in minority must in all cases be invited to form Government. There is though a fully developed convention, which is considered binding in England as well as in our country that leader of the majority party has to be called to form the Government ft has consistently been accepted and acted upon, but there is no such convention that the single largest party in the House must necessarily be called to form Government in such a situation, it is for the President or the Governor, as the case may be, to make assessment pin his discretion and take a decision in the matter. There may be situations, where instead of the single largest party, any minority party having lesser number of seats, may be called upon to form the Government if in the bona fide assessment of the President or the Governor, it is found that such a minority Government would find support from other parties and would enjoy the confidence of the House. The area is covered by the discretionary powers of the head of the State where assessment of political situation is to be made subjectively That is the reason perhaps that no convention could develop so far to act in a particular manner or that the largest party, though in minority, in all eventualities must be called to form the Government. No such convention could be pointed out on behalf of the petitioners from the British Parliamentary history or otherwise. Certain instances which have been given, in which the single largest party had been called to form the Government, it was generally done on the satisfaction of the head of the State that the minority Government will have the support from other parties and would enjoy the confidence of the House. In the absence of such satisfaction, it cannot be contended that the single largest party must in all the cases be called to form the Government. In certain circumstances, it may and in others it may not be possible to do so for justified reasons. It differs from situation to but situation the assessment and decision must be bona fide and fair. The single largest party must satisfy the Governor/President, as the case may be, atleast prima facie , that it would be in a position to win the confidence of the House.

20. In the present case, according to the opposite parties, the position was otherwise. No assurance was coming forth from any side indicating that the B. J. P. may enjoy the confidence of the House. It is a matter relating to political assessment of the situation by the Governor. Therefore, in the absence of any established "convention and perhaps rightly so the petitioners cannot claim that they must have been called to form Government. It is to be found in one of the reports of the Governor that according to him, he would have called the single largest party, namely, the B. J. P. to form the Government had it been even near to clear majority. According to him, a gap of about 35 seats to gain the majority was not a small gap. Therefore, a few instances here and there, as stated, in different situations, where assurance of other parties or groups was available to support the Government, cannot be considered as having matured into convention so as to become unwritten binding rule of practice that in all cases, leader of the largest single party, though in minority, has to be called to form the Government.

21. Learned counsels for the petitioners have referred to the observation made in para 391 in S.R. Bommais case (supra) in the judgment of Honble Jeevan Reddy, J. as follows. "The Constitution does not create an obligation that the political party forming the Ministry should necessarily have a majority in the Legislature. Minority Governments are not unknown. What is necessary is that, that Government should enjoy the confidence of the House. This aspect does not appear to have been kept in mind by the Governor." This aspect of the matter has already been discussed in the earlier part of this judgment. It is not meant to hold that in no event can a minority party be allowed to form the Government. But such an occasion would arise when there is no party available having the majority in the House and support to the minority party is assured by other parties or members enabling it to enjoy the confidence of the House to the satisfaction of the Governor.

22. Since our system is skin to the parliamentary system of England, the conventions which have developed in England have some special significance. As a matter of fact, system of parliamentary democracy has developed in England and has matured by passage of time. There were only a few occasions when the British Parliament was faced with a situation of hung Parliament, e. g. in the years 1910, 1923, 1929 and 1974, as indicated in "Constitutional Practice" Second Edition, by Rodney Brazier in the Chapters dealing with Choosing a Prime Minister and Government formation from a hung Parliament. One of the British conventions, which though not developed nor followed in India, was that Prime Minister having failed to secure majority, at the general elections, may stay in office, if not resigned, to negotiate a coalition, as happened at the time when Mr. Heath was the Prime Minister, in February, 1974. Yet another alternative would be to meet Parliament to have its fate decided on the loyal address in reply to the Queens speech, which course was adopted by Baldwin in 1923. In most of the cases, the political parties themselves came forward to resolve the problem by extending support to the party forming the Government. In different situations, different solutions were resorted to, sometimes resulting in coalition Governments and sometimes in national coalition of all main parties which worked successfully twice in England, one the wartime coalition of Lloyd George in 1916 and the other, the national Government from 1940 to 1945 which was formed by Churchill out of a hung Parliament. It is true, the two national coalitions of all main parties which worked successfully with stability pertained to the period of war or period immediately following the war. This alternative is yet to be tried in our country. It will not be unknown in the history of Parliamentary Governments but this all is a matter of political maturity and understanding. Political solutions should, if possible, be always preferred. Brazier further observes that there seems to be no rules about Government formation from a hung Parliament. There is still uncertainty in that area of importance, in the Constitutional functioning. He further say,".....In choosing a Prime Minister, the Queen should commission that person who appears best able to command the support of a stable majority in the House of Commons. or, failing such a person, the politician who seems able to form a Government with a reasonable prospect of maintaining an administration in office. This does not take us very far. How, for example, could the Queen identify that person who might command a majority in the House of Common majority parties, and how would she resolve the possible and conflicting claim of the Leader of the largest minority party to form a minority Government " He further says -"Moreover, the precedents-especially those in which a minority administration was formed-have to be approached with caution, as they were (as will be explained later) political accommodation arrived at as the result both of political realities of the day and of the personal relationships between the party Leaders. Such relationships have varied and will very greatly from time to time, making inter-party co-operation more or less, likely. Accordingly, those precedents should not be considered as being rule-constitutive."

23. From what has been quoted above, it is clear that in such a situation where there is a hung Parliament, it is either a political decision or mutual accommodation of political parties which results into formation of a Government, else it is the assessment of the Queen, in England, to come to a conclusion who is the person who appears best able to command the support of a stable majority in the House of Commons, or a person with a reasonable prospect of maintaining an administration in office, even though in minority. Political solutions seem to be preferable in England, rather than the involvement of the Queen in political matters.

24. The position indicated above would apply in our country as well. A political solution arrived at by mutual understanding seems to be the most suitable answer to the problem. Alas, it could be possible.

25. No political solution is coming forth. The realisation must drawn upon those concerned that interest of the parties is not above the interest of the State and the people All that people aspire for, is some certainty in their governance so that they may live in peace with security, having the protection of Rule of Law. In a democratic system this heavy responsibility falls upon the shoulders of the political parties to provide a stable Government in the interest of the people. Well being of the people is the goal not a political party. Interest of a political party has to be subservient to the interest of the people. About two and a half months have passed since the declaration of the result of election and no political solution seems to be in the view. Such an uncertainty in the formation of a Government in the State presents a very unhappy and politically depressing situation.

26. The present position, as existing in this case, brings us to the question as to what other alternatives are available to resolve the dead lock as is persisting at the moment. As indicated earlier, during the course of arguments, one aspect of the matter was also considered as to why it may not be possible for the Governor to call upon the elected members to assist the Governor in coming to a conclusion as to who may be called to form the Government.

27. It will be important to mention here that the question which has cropped up as indicated above, is not just an idea which ha, struck at the spur of the moment, nor can it be said to be novel idea As a matter of fact, in the recent past, in the similar situations, Rodney Brazier had given the suggestion to summon the House under the superintendence of the Speaker for choosing a person who may be invited to form the Government. Besides that, a perusal of the report of the Committee of Governors appointed by the President also appeals to have considered this aspect as suggested by some of the State Assemblies but it was perhaps for choosing a Chief Minister in all situations. Serkaria Commission Report also deals with similar question. In the case of S. R. Bommai (supra) the Honble Supreme Court in para 396 observed that the floor test to ascertain the majority or confidence in a Government is the only test which can be applied since the question is such which can be objectively demonstrated at the floor of the House The Honble Supreme Court further observed that floor test was not relevant to a situation, arising after general elections, where the Governor has to invite the leader of majority party commanding majority in the House or the single largest party/group to form the Government. It has then been observed. "We need express no opinion regarding such a situation" In the present case, we are faced with such a situation where after general elections, all the parties are minority, none prepared to join or support each other. The Governor is thus unable to choose any person who may be called to form the Government. Since the idea of taking assistance from the Legislators is a float, it needs be crystallised and we feel it our impelling judicial duty to address ourselves to the question in the present case.

28. Learned counsel for the petitioners submitted that it would be an appropriate solution so that the elected members may assemble and consider the situation together, to bring about a political solution in the matter of choice as who may be invited to form the Government. In support of this submission, they have taken us through some of the passage of the decision in S. R. Bammais case (supra), where, as indicated above, it has been held that the floor of the only appropriate place where majority can be proved by any party ; it is not to be proved in the Raj Bhawan. It has been observed that the democracy is in action in the House, hence the floor of the House is the place for deciding the question of confidence in the Government. In para 393 of the judgment, report of the Committee of Governors has also been referred saying, ".....The test of confidence in the Ministry should normally be left to a vote in the Assembly." One may, however, be reminded that the observation made above, is about the cases where a Government may already be existing and it was to be ascertained whether it enjoyed the confidence of the House or not. It was not a case of hung Parliament after a fresh general election where the Governor has to choose a person in his discretion to form a Government. It has been observed in para 396 of Bommais case (supra) as follows-"We make it clear that what we have said above is confined to a situation where the incumbent Chief Minister is alleged to have lost the majority support or the confidence of the House. It is not relevant to a situation arising after a general election where the Governor has to invite the leader of the party commanding majority in the House or the single largest party/group to form the Government. We need express no opinion regarding such a situation."

29. What is significant to be taken note of, in para 396 of the judgment quoted above, is that the Honble Supreme Court has been pleased to indicate that floor test is not relevant where leader of majority party or largest party/group is to form Government after the general elections. Yet no opinion has been expressed regarding such situations. As a matter of fact, we are faced with a situation which is different from the other two mentioned in para 396 quoted above. Here, no party in minority is joining or supporting each other and the Governor is unable to decide as to whom he may call to form Government. The elected assembly is in suspended animation and the President Rule is continuing in an atmosphere of utter uncertainty. It has also not been held that House cannot be summoned in any situation to ascertain the best person to form a Government with some degree of stability.

30. In India, hung Parliament is some what a recent phenomenon. Such a situation with which the State is faced today, has not arisen ever before except once about three decades ago in Kerala. But looking to the present scenario, one may not be wrong in foreseeing such situations arising quite often, which would be an unhealthy political development, indeed. The constitutional provisions may have to be examined and considered in the light of the new situation, as to whether the solution under consideration would be in keeping with the constitutional scheme or opposed to it and violative of any provision. Mew situations call for new solutions. In the British Parliamentary history, as indicated earlier, no rule or established practice or convention could emerge or mature so far, to deal with a situation like one under consideration. Preponderance, however, is in favour of a political solution of such problems. Interventions of the Queen in such matters have been preferred to be avoided. If the elected Members assemble at one platform, namely, at the floor of the House, faced with the question of choosing a person whom the Governor may call to form the Government, chances of a political solution definitely brighten up. The Governor would get assistance in the matter, but before arriving at any such conclusion, it must be ascertained that it is not against the constitutional scheme or established constitutional practice or conventions. Therefore, it may all the more be appropriate to consider this aspect of the matter and to make an effort to find out, if some solution would be possible, within the framework of the constitutional scheme.

31. Learned Solicitor General Mr. T. R. Andhyarjuna submits that such a procedure cannot be adopted as it would not be in keeping with the parliamentary practice and the constitutional provisions. ft is submitted that the Indian Constitution has the same system of Parliamentary Democracy as in England. Reliance has been placed on the observations made by the Honble Supreme Court in the case of Rai Sahib Ram Jawaya Kapur and Others Vs. The State of Punjab, . "The Council of Ministers consisting as it does of the members of the Legislature, like the British Cabinet is "a hyphen which joins a buckle which fasten the Legislative part of the State to the Executive part The cabinet enjoying, as it does, the majority in the Legislature concentrates in itself the virtual control of both legislative and executive functions." In reply to a Court query, learned Solicitor General contended that it was not possible to call the House without a Chief Minister and Council of Ministers, since it is difficult to visualise, in a parliamentary form of Government, a Legislature functioning without a Council of Ministers i. e. the Government. Where the Government of the State is not available, the Legislature of the State becomes ipso facto unworkable. According to the opposite parties, it would be a very strange situation that the Legislature of the State would still be functioning whereas the executive powers have been assumed by the President of India. The Council of Ministers is collectively responsible to the State Legislature under Article 164(2) of the Constitution.

Rai Sahib Ram Jawaya Kapur and Others Vs. The State of Punjab, . "The Council of Ministers consisting as it does of the members of the Legislature, like the British Cabinet is "a hyphen which joins a buckle which fasten the Legislative part of the State to the Executive part The cabinet enjoying, as it does, the majority in the Legislature concentrates in itself the virtual control of both legislative and executive functions." In reply to a Court query, learned Solicitor General contended that it was not possible to call the House without a Chief Minister and Council of Ministers, since it is difficult to visualise, in a parliamentary form of Government, a Legislature functioning without a Council of Ministers i. e. the Government. Where the Government of the State is not available, the Legislature of the State becomes ipso facto unworkable. According to the opposite parties, it would be a very strange situation that the Legislature of the State would still be functioning whereas the executive powers have been assumed by the President of India. The Council of Ministers is collectively responsible to the State Legislature under Article 164(2) of the Constitution.

Rai Sahib Ram Jawaya Kapur and Others Vs. The State of Punjab,

. "The Council of Ministers consisting as it does of the members of the Legislature, like the British Cabinet is "a hyphen which joins a buckle which fasten the Legislative part of the State to the Executive part The cabinet enjoying, as it does, the majority in the Legislature concentrates in itself the virtual control of both legislative and executive functions." In reply to a Court query, learned Solicitor General contended that it was not possible to call the House without a Chief Minister and Council of Ministers, since it is difficult to visualise, in a parliamentary form of Government, a Legislature functioning without a Council of Ministers i. e. the Government. Where the Government of the State is not available, the Legislature of the State becomes ipso facto unworkable. According to the opposite parties, it would be a very strange situation that the Legislature of the State would still be functioning whereas the executive powers have been assumed by the President of India. The Council of Ministers is collectively responsible to the State Legislature under Article 164(2) of the Constitution.

. "The Council of Ministers consisting as it does of the members of the Legislature, like the British Cabinet is "a hyphen which joins a buckle which fasten the Legislative part of the State to the Executive part The cabinet enjoying, as it does, the majority in the Legislature concentrates in itself the virtual control of both legislative and executive functions." In reply to a Court query, learned Solicitor General contended that it was not possible to call the House without a Chief Minister and Council of Ministers, since it is difficult to visualise, in a parliamentary form of Government, a Legislature functioning without a Council of Ministers i. e. the Government. Where the Government of the State is not available, the Legislature of the State becomes ipso facto unworkable. According to the opposite parties, it would be a very strange situation that the Legislature of the State would still be functioning whereas the executive powers have been assumed by the President of India. The Council of Ministers is collectively responsible to the State Legislature under Article 164(2) of the Constitution.

32. It is further submitted on behalf of the opposite parties that on assumption of all powers of the Government by the President under Article 356(1)(a) and (b) of the Constitution, consequential and incidental provisions become necessary so as to give effect to Article 356(1)(c) of the Constitution, hence the provisions of several other Articles rotating to Executive and Legislative powers of the Government are suspended as in the present case, amongst others. Articles 163, 164, 174(1), 175, 177, 188, 189 and 208. Referring to compilation. "The Presidents Rule in the State and the Union Territories", published by Lok Sabha Secretariat, 1996, it is submitted that whenever a proclamation under Article 356 has been issued, the powers and functions of the State Legislature have been transferred to Parliament and the State Legislature is suspended or dissolved. This according to the learned counsel for the opposite parties attained the status of convention in constitutional law, vide Bommais case, paras 229 end 233 such conventions should not be upset, as they have been set for smooth working of the Constitution. In the end of para 233, it is observed, "We hold that upsetting the settled convention and the law and adopting value-oriented interpretation would generate uncertainty and create constitutional crisis in the administration and the Government and would lead to failing the constitution itself."

33. In context with the above argument, it will have to be examined as to whether by calling the elected members to meet on the floor of the House, to assist the Governor to choose a person to form a Government, would amount to upsetting the settled constitutional conventions when under Article 356(1), Legislative and Executive powers of the State are assumed by the President and incidental provisions are made for the smooth working of the President Rule. It would amount to Executive or Legislative function of the State or not, will have to be considered to appreciate the arguments advanced by the learned Solicitor General of India. According to him, if the Legislature meets, it would mean that the President shall have the executive powers whereas the State will have the Legislative powers, hence there would be two Governments working simultaneously in one sphere.

34. Yet another submission made on behalf of the opposite parties is that the Constitution does not contemplate that the Legislative Assembly may appoint a Chief Minister or even suggest to the Governor, for appointment of any particular person as Chief Minister. Under Article 164 of the Constitution, it is the function of the Governor. The Governor has to assess himself as to who is the person most appropriate to command the confidence of the Legislative Assembly and it is one of the few known exceptions in which the Governor acts in his discretion without the aid and advice of the Council of Ministers. It is also submitted that there cannot be expression of confidence, by the Assembly, in any person as Chief Minister, prior to his appointment as Chief Minister by the Governor. A reference has also been made to Sarkaria Commission Report, para 4.11.02, at pages 127 to 128, saying, we are, therefore, unable to agree with any suggestion which would require a Chief Minister to be elected or chosen by the Legislative Assembly", Lastly it has been submitted that the Governor acts with the aid and advice of Council of Ministers in the matter of summoning the Legislature ; therefore, the Governor cannot, without the aid and advice of the Council of Ministers, summon the Legislative Assembly.

35. To deal with the objections as raised by the opposite parties, it would he necessary to ascertain the nature of the functions which would be performed by the Legislators when they assemble, deliberate and make an effort to find out the political solution in choosing a person who may be invited to form the Government, It would fall in the category of Executive functions or in Legislative functions of the State. In my view, it falls in neither of the two. They do not have to assemble for performing any Legislative or Executive function. It is true the Chief Minister is appointed by the Governor and the other Ministers, on the advice of the Chief Minister by the Governor. It is one of the functions of the Governor to choose Chief Minister.

36. In case there is a clear majority, the leader of the majority party is to be appointed as Chief Minister by the Governor, there would be no element of discretion in such a situation. It is a well established convention recognised throughout. In an eventuality where minority party is called upon to form a Government, which is assured of support by other parties or groups, to the satisfaction of the Governor or there is a coalition of parties, then too, there arises no difficulty. The Governor has to exercise his discretionary power. The case in hand is different; here the Governor is unable to call any one, in such a situation would there be a constitutional bar for the Governor to take assistance of the Legislators. While making his own assessment in the matter of inviting a person to be appointed as Chief Minister, the Governor takes assistance from the leaders of different political parties or groups including elected members/leaders. His discretion is based on their information and assistance given in the matter. Therefore, it would not make much of a difference, nor something objectionable, if the elected members with the elected leaders, all collect together to find out a political solution on the floor of the House in choosing a person. If the House is to be called for such a purpose, it would neither be for discharging any Executive function nor Legislative function. Non-legislative functions have been discharged earlier by the Legislators in the State of Uttar Pradesh A Notification alone constituting the House, has been issued u/s 73 of the R. P. Act by the Election Commission ; no oath of office has so far been administered to the elected Members of the Legislature Nonetheless, they are entitled to perform any non-legislative function, as has been held in the case of Pashupati Nath Sukul and Others Vs. Nem Chandra Jain and Others, . In the ease in question that had cropped up, was as to whether the elected members as members of the Legislative Assembly could participate and vote in the election of Members of the Rajya Sabha. It was held to be non-legislative function which could well be discharged by them We take notice of the fact that in the recent Rajya Sabha elections the presently elected members of the U. P. State Legislature had participated and voted, obviously, it being a non-legislative function Therefore, the assembly of the elected members for the purposes of a non-legislative function cannot be said to be against the constitutional provisions or scheme of the Constitution. If the legislators can collect to vote in Rajya Sabha elections, why they cannot assemble to assist the Governor in the matter of choice of a person to be appointed as Chief Minister. In normal conditions, such an eventuality does not arise. Such a contingency arise only when there is no majority party available, nor the Governor is finding it possible, to invite any minority party to form the Government.

Pashupati Nath Sukul and Others Vs. Nem Chandra Jain and Others, . In the ease in question that had cropped up, was as to whether the elected members as members of the Legislative Assembly could participate and vote in the election of Members of the Rajya Sabha. It was held to be non-legislative function which could well be discharged by them We take notice of the fact that in the recent Rajya Sabha elections the presently elected members of the U. P. State Legislature had participated and voted, obviously, it being a non-legislative function Therefore, the assembly of the elected members for the purposes of a non-legislative function cannot be said to be against the constitutional provisions or scheme of the Constitution. If the legislators can collect to vote in Rajya Sabha elections, why they cannot assemble to assist the Governor in the matter of choice of a person to be appointed as Chief Minister. In normal conditions, such an eventuality does not arise. Such a contingency arise only when there is no majority party available, nor the Governor is finding it possible, to invite any minority party to form the Government.

Pashupati Nath Sukul and Others Vs. Nem Chandra Jain and Others,

. In the ease in question that had cropped up, was as to whether the elected members as members of the Legislative Assembly could participate and vote in the election of Members of the Rajya Sabha. It was held to be non-legislative function which could well be discharged by them We take notice of the fact that in the recent Rajya Sabha elections the presently elected members of the U. P. State Legislature had participated and voted, obviously, it being a non-legislative function Therefore, the assembly of the elected members for the purposes of a non-legislative function cannot be said to be against the constitutional provisions or scheme of the Constitution. If the legislators can collect to vote in Rajya Sabha elections, why they cannot assemble to assist the Governor in the matter of choice of a person to be appointed as Chief Minister. In normal conditions, such an eventuality does not arise. Such a contingency arise only when there is no majority party available, nor the Governor is finding it possible, to invite any minority party to form the Government.

. In the ease in question that had cropped up, was as to whether the elected members as members of the Legislative Assembly could participate and vote in the election of Members of the Rajya Sabha. It was held to be non-legislative function which could well be discharged by them We take notice of the fact that in the recent Rajya Sabha elections the presently elected members of the U. P. State Legislature had participated and voted, obviously, it being a non-legislative function Therefore, the assembly of the elected members for the purposes of a non-legislative function cannot be said to be against the constitutional provisions or scheme of the Constitution. If the legislators can collect to vote in Rajya Sabha elections, why they cannot assemble to assist the Governor in the matter of choice of a person to be appointed as Chief Minister. In normal conditions, such an eventuality does not arise. Such a contingency arise only when there is no majority party available, nor the Governor is finding it possible, to invite any minority party to form the Government.

37. The Governor is bound by the advice of the Council of Ministers in performing the Executive and Legislative functions of the State No such aid or advice is needed or required, nor envisaged in the Constitution in such matters where it relates to the functions of the Governor as such, in his discretion. This is amply clear from the provision of Article 163(1) of the Constitution itself where it makes an exception against the said advice of the Council of Ministers to the Governor in exercise of the functions in his discretion. Choosing a person to be appointed as Chief Minister is one of such functions which lies within the discretionary power of the Governor exercisable without the aid and advice of Council of Ministers. It has also been held in Samsher Singh Vs. State of Punjab and Another, , it has been held "We declare the law of this branch of our Constitution to be that the President end the Governor exercise their formal constitutional powers only upon in accordance with the advice of their Ministers save in well known exceptional situations. ..These situations relate to (a) choice of Prime Minister (Chief Minister) restricted though this choice is by the paramount consideration that he should command a majority in the House "

Samsher Singh Vs. State of Punjab and Another, , it has been held "We declare the law of this branch of our Constitution to be that the President end the Governor exercise their formal constitutional powers only upon in accordance with the advice of their Ministers save in well known exceptional situations. ..These situations relate to (a) choice of Prime Minister (Chief Minister) restricted though this choice is by the paramount consideration that he should command a majority in the House "

Samsher Singh Vs. State of Punjab and Another,

, it has been held "We declare the law of this branch of our Constitution to be that the President end the Governor exercise their formal constitutional powers only upon in accordance with the advice of their Ministers save in well known exceptional situations. ..These situations relate to (a) choice of Prime Minister (Chief Minister) restricted though this choice is by the paramount consideration that he should command a majority in the House "

, it has been held "We declare the law of this branch of our Constitution to be that the President end the Governor exercise their formal constitutional powers only upon in accordance with the advice of their Ministers save in well known exceptional situations. ..These situations relate to (a) choice of Prime Minister (Chief Minister) restricted though this choice is by the paramount consideration that he should command a majority in the House "

38. In exercise of his discretion under Article 164, the Governor acts on the basis of assessment made by him after consultation with the elected of other leaders of different political parties. In the situation like one in hand, if the Governor takes assistance of all legislators, it would only amount to extension of the area of consultation. Simply because the elected legislators have to assemble, deliberate and express their opinion in the matter, it would neither make it Executive, nor Legislative function, nor in any way run contrary to the constitutional scheme. If a few persons, namely, the leaders or elected members of political parties can be consulted outside the House, it is not reasonably understandable, which constitutional provisions or conventions would be violated if all elected members of different political parties assemble together to answer the problem. May be, it brings about a solution, the present constitutional stalemate may come to an end. May be that it may work as a warning to the Legislators that in case they dont arrive at any political solution, the House may be dissolved. Dr. Ambedkar had expressed hope, as quoted in para 109 of the judgment in Bommai s case that the first thing the President would do, would be to issue a warning before issuing a proclamation under Article 356(1) of the Constitution.

39. So far as the argument of learned Solicitor General about the established conventions in the working of Article 356 of the Constitution when all powers. Legislative and Executive of the State are assumed by the President and the Parliament, is concerned ft may be observed that it would not apply where it does net relate to Executive or Legislative function of the State nor can it be said that the two Govts. are working in one sphere, nor that the Legislature would be functioning in the State while the Executive Powers shall be exercised by the President, nor can it be said that it would in any manner militate against the provisions contained under Article 164(2) of the Constitution regarding collective responsibility of the Council of Ministers to the State Legislature. The reason is the same that the elected members would assemble for a non-legislative function only. This (solution would be better than to keep the matter in suspense or uncertainty for an indefinite period. This would be one of the legally permissible possibility to be explored in the matter of choosing a person to be invited to form the Government.

40 As a matter of fact, as indicated in "Constitutional Conventions, the Rules and Forms of Political Accountability by Geoffrey Marshall, such a suggestion was recently given by Brazier that the Queens choice might be guided by a ballot of members of Parliament under the superintendence of the Speaker. But the author Geoffrey Marshall was not in favour or this suggestion. No reason have, however, been indicated as to in what manner it would not be expedient to accept and work out the suggestion as made by Brazier. No doubt, the suggested procedure would be a novel one since in the British Parliamentary history so far no clear-cut convention could be developed to meet such a situation where no party would be in a position to form the Government, nor would be prepared for mutual support of coalition. In different circumstances on different occasions though not too many, they acted differently Most of the times, political parties themselves sorted out a political solution There is no established clear-cut convention so far. At any one point of time, there would be a starting point in the development of any convention. In India, our Constitution came into being about 45 years ago, This is perhaps the second occasion when such a situation has arisen where no party or group of parties is available to form the Government. The conventions may develop even in the newest constitutions, as observed by Honble Supreme Court in the case of S. C. Advocates on-Record Assn case (supra). As a matter of fact, now the occasion has arisen to advert to such a situation ; therefore, it is the right time when the constitutional provisions and the scheme were to be examined to find out whether it was opposed to any constitutional provisions or the spirit of the basic features of the Constitution. To my mind, such a method, if adopted, would not violate constitutional provisions or scheme, convention or the spirit of any of the basic features of the Constitution.

41. It shall not provide a normal rule that the Governor must in every case make the legislators assemble to seek assistance in the matter of the choice of a person to be called for forming the Government. In normal situations where there is a majority party in the House or where a political solution is found out by the parties, to support each other or to form a group or to work in a coalition, no such occasion will arise. It is only in a limited sphere, when such a knot has become incapable of being unfolded, that such a procedure, may be adopted. It would be within the frame-work of the Constitution, without militating against any of the provisions or the basic features of the Constitution. The power of appointment of Chief Minister by the Governor would not be affected in any manner. The appointment has to be made by the Governor, in any case. It is within the constitutional scheme that the Governor, for the purpose of arriving at a conclusion, as to who is to be called to form a Government, is entitled to seek assistance from the political leaders, may be the elected ones or otherwise. That being the position, as observed earlier, it would only be extension of the same exercise that the Governor con well seek assistance from the elected members at the floor of the House. It would rather be in keeping with the democratic spirit all pervading in our constitution provisions. It will very well fit in with the whole scheme of the Constitution.

42. So far as the recommendations of the Sarkaria Commission are concerned, regarding choice of Chief Minister as indicated para 4.11.01, referred to by the learned Solicitor General, it may be pointed out that a perusal of paras 4.11.01 to 4.11.04 will indicate that the Commission had not addressed itself to a situation where no part is prepared to support each other nor there was any chance of joining for a coalition. Para 411.01 says that such a suggestion had come from certain State Assemblies that it may choose a person who may be appointed as Chief Minister. As a general proposition applicable in all situations, it would rightly not be acceptable In this connection, it is worthwhile to quote certain paragraphs of the report of Sarkaria Commission-

"4.11.02. It is important to note that in appointing the Chief Minister, the Governor is required to ensure that the Council of Ministers is collectively responsible to the Legislative Assembly vide Article 164(2). Accordingly, in order to continue in office, the Council of Ministers, and not the Chief Minister alone, should continue to have majority support in the Assembly. Also, it is only against the Council of Ministers that a no confidence motion may be moved. We are, therefore, unable to agree with any suggestion which would require a Chief Minister to be elected or chosen by the Legislative Assembly. To ensure strict adherence to the principle laid down by Article 764(2), and fair-play to all the parties in the Legislative Assembly, we suggest as follows.

4.11.03. In choosing a Chief Minister, the Governor should be guided by the following principles, viz.-

(i) The party or combination of parties which commands the widest support in the Legislative Assembly should be called upon to form the Government.

(ii) The Governors task is to see that a Government is formed and not to try to form a Government which will pursue policies which he approves.

Thus, if there is a single patty having an absolute majority in the Assembly, the loader of the party should automatically be asked to become the Chief Minister.

4.11.04. If there is no such party, the Governor should select a Chief Minister from the following parties or group of parties by sounding them, in turn, in the order of preference indicated below :

1. An alliance of parties that was formed prior to the Elections.

2. The largest single party staking a claim to form the Government with the support of others, including "independents".

3. A post-electoral coalition of parties, with all the partners in the coalition joining the Government.

4. A post-electoral alliance of parties, with some of the parties in the alliance forming Government and the remaining parties, including "independents" supporting the Government from outside.

4.11.05. The Governor, while going through the process of selection described above, should select a leader who, in his (Governors) judgment is most likely to command a majority in the Assembly. The Governors subjective judgment will play an important role."

43. It may, at the very out-set, be indicated that the occasion to seek assistance from the elected legislators would not arise in normal situations indicated in the Sarkaria Commission Report. Such method may be adopted, only in one situation where no party in the opinion of the Governor is in a position to form a Government, viz., in a situation other than indicated in the Serkaria Commission Report In order to resolve such a stalemate this method would be quite in consonance with the provisions of the Constitution, to be adopted, and not otherwise.

44. The reason indicated by the Commission is that it would be against the provisions of Article 164(2) of the Constitution since it is not the Chief Minister who has to enjoy the confidence of the Assembly, but the Council of Ministers. Therefore, the suggested method will be confined only to the confidence in the Chief Minister and not the Council of Ministers. It may, however, be worthwhile to point out that the suggested exercise, would only be confined to choosing a person who may be invited to form the Government ; the Council of Ministers would be appointed on his advice. It may provide a Government atleast. It will, however, not dispense with the convention requiring the new Government to seek vote of confidence of the House. It is not a substitute of seeking Vote of Confidence in the House, after the Council of Ministers with a Chief Minister, is constituted on his advice. This would, therefore, not militate against the provisions contained under Article 164(2) of the Constitution, rather it would be in a way fulfill the object as enshrined under Article 164(2). The requirement of seeking confidence of the House, by the Council of Ministers, would not stand dispensed with, simply for the reason that the elected legislators had assisted the Governor in choosing a person who could be appointed as Chief Minister.

45. In the same context, the report of the Committee of Governors, 1971, on the rote of the Governors issued by the Presidents Secretariat, may also be considered as referred to by the learned Solicitor General. Under Chapter "The Choice of Chief Minister", it has been said that it is the Governor alone who has to take a decision as to which person is in a position to command the majority in the Legislative Assembly and to invite him to form the Government. A reference to a decision of Calcutta High Court in Madan Murari Verma Vs. Choudhuri Charan Singh and Another, , is also made. According to the report, it is the Governor who has to assess the situation, but in a case where a single party is in majority, he has no option but to call leader of that party to from the Government. But in a situation where no single party is in majority, he has to assess the situation and exercise his discretion in the matter of inviting a person to constitute Government and he may, in certain circumstances, call leader of the single largest party to form the Government or any other party in majority whom the Governor considers, may have the confidence of the House and may provide some stable Government. The support may be available from other parties to a party in minority to form the Government or there may be coalition and in all these matters, the Governor has to exercise his discretion assessing the situation as may be prevailing. There cannot be any doubt in regard to the correctness of the report so far as these aspects, as indicated above, are concerned. Powers and discretion of the Governor are not to be usurped by anyone so long as he is in a position to take a decision in his discretion about a person to be called, to form the Government. Like the report of the Sarkaria Commission, this report also does not mention anything about a situation where despite his efforts, the Governor finds himself unable to choose a person to be invited to form a Government. It is only in such a situation that the Governor may legally take assistance from the elected members of the Assembly. The report of the Committee of Governors says that the Governor may consult the leaders of various political parties as well as their elected members for the purpose, As observed earlier, in my opinion, such consultations can well be extended to all the elected members.

Madan Murari Verma Vs. Choudhuri Charan Singh and Another, , is also made. According to the report, it is the Governor who has to assess the situation, but in a case where a single party is in majority, he has no option but to call leader of that party to from the Government. But in a situation where no single party is in majority, he has to assess the situation and exercise his discretion in the matter of inviting a person to constitute Government and he may, in certain circumstances, call leader of the single largest party to form the Government or any other party in majority whom the Governor considers, may have the confidence of the House and may provide some stable Government. The support may be available from other parties to a party in minority to form the Government or there may be coalition and in all these matters, the Governor has to exercise his discretion assessing the situation as may be prevailing. There cannot be any doubt in regard to the correctness of the report so far as these aspects, as indicated above, are concerned. Powers and discretion of the Governor are not to be usurped by anyone so long as he is in a position to take a decision in his discretion about a person to be called, to form the Government. Like the report of the Sarkaria Commission, this report also does not mention anything about a situation where despite his efforts, the Governor finds himself unable to choose a person to be invited to form a Government. It is only in such a situation that the Governor may legally take assistance from the elected members of the Assembly. The report of the Committee of Governors says that the Governor may consult the leaders of various political parties as well as their elected members for the purpose, As observed earlier, in my opinion, such consultations can well be extended to all the elected members.

Madan Murari Verma Vs. Choudhuri Charan Singh and Another,

, is also made. According to the report, it is the Governor who has to assess the situation, but in a case where a single party is in majority, he has no option but to call leader of that party to from the Government. But in a situation where no single party is in majority, he has to assess the situation and exercise his discretion in the matter of inviting a person to constitute Government and he may, in certain circumstances, call leader of the single largest party to form the Government or any other party in majority whom the Governor considers, may have the confidence of the House and may provide some stable Government. The support may be available from other parties to a party in minority to form the Government or there may be coalition and in all these matters, the Governor has to exercise his discretion assessing the situation as may be prevailing. There cannot be any doubt in regard to the correctness of the report so far as these aspects, as indicated above, are concerned. Powers and discretion of the Governor are not to be usurped by anyone so long as he is in a position to take a decision in his discretion about a person to be called, to form the Government. Like the report of the Sarkaria Commission, this report also does not mention anything about a situation where despite his efforts, the Governor finds himself unable to choose a person to be invited to form a Government. It is only in such a situation that the Governor may legally take assistance from the elected members of the Assembly. The report of the Committee of Governors says that the Governor may consult the leaders of various political parties as well as their elected members for the purpose, As observed earlier, in my opinion, such consultations can well be extended to all the elected members.

, is also made. According to the report, it is the Governor who has to assess the situation, but in a case where a single party is in majority, he has no option but to call leader of that party to from the Government. But in a situation where no single party is in majority, he has to assess the situation and exercise his discretion in the matter of inviting a person to constitute Government and he may, in certain circumstances, call leader of the single largest party to form the Government or any other party in majority whom the Governor considers, may have the confidence of the House and may provide some stable Government. The support may be available from other parties to a party in minority to form the Government or there may be coalition and in all these matters, the Governor has to exercise his discretion assessing the situation as may be prevailing. There cannot be any doubt in regard to the correctness of the report so far as these aspects, as indicated above, are concerned. Powers and discretion of the Governor are not to be usurped by anyone so long as he is in a position to take a decision in his discretion about a person to be called, to form the Government. Like the report of the Sarkaria Commission, this report also does not mention anything about a situation where despite his efforts, the Governor finds himself unable to choose a person to be invited to form a Government. It is only in such a situation that the Governor may legally take assistance from the elected members of the Assembly. The report of the Committee of Governors says that the Governor may consult the leaders of various political parties as well as their elected members for the purpose, As observed earlier, in my opinion, such consultations can well be extended to all the elected members.

46. From the observations made in para 396 of Bammais case (supra), it is clear that no opinion had been expressed by the Honble Supreme Court regarding such a situation following a fresh general election. The matter of floor test was left open to be considered in such cases. It need be specifically emphasized that seeking assistance of legislators after a fresh general election, is confined only to a situation where even after exercise of all discretionary power, the Governor is unable to invite a person to form the Government. So long as he is in a position to do it, there is no question of interference, in exercise of his power and discretion in any manner.

47. Yet another objection raised by the learned Solicitor General is that even for the purposes of summoning the House, aid of Council of Ministers is necessary. According to his submissions, The Governor cannot fix a date summoning the House. It is difficult to appreciate the argument. Apart from the fact, as indicated above, that it does not relate to any Executive or Legislative function of the State, it may be noted that question of involvement of the Council of Ministers has not arisen so far. It is the function of the Governor to choose a person to form Government in performance of which, he ordinarily takes assistance from leaders elected or otherwise belonging to different political parties. It is only for this purpose that he has to take assistance from all the elected members of political parties and not otherwise. There is no involvement of Council of Ministers so far. We take note of the fact that even when the Governor calls upon a leader of a party to from the Government, he fixes time within which they have to prove their majority on the floor of the House. There have been cases where the appointed Chief Minister asked for more time, but the Governor did not agree and have given lesser time. Therefore, this would be a matter in which the Governor will have his discretion in fixing a date, since it is not for the purposes of any legislative or executive function of the State that the House is to be summoned, where alone the aid and advice of the Council of Ministers would be necessary and not otherwise.

48. In view of the discussion held above, it is held that in situation where no party is in majority and no coalition, alliance or support is available to any party, nor in the opinion of the Governor any party is available, which may be near to the majority, it will be well within the constitutional parameters and in keeping with the spirit of the Constitution that the Governor may legally seek assistance of the elected members in the matter of choosing a person to be invited to form the Government as that would be purely a non-legislative function, which can well be performed by them in view of the decision of the Honble Supreme Court in the case of P. N. Shukul (supra).

49. We then proceed to the next question as to whether the President Rule can last for more than one year. In that context, it may have to be examined if the impugned proclamation is a fresh proclamation or in substance, it is in continuation of the earlier proclamation. The case of the opposite parties is that the impugned proclamation issued on 17-10-1996 is a fresh proclamation, issued on arising of a "new situation" and not the extension of the earlier proclamation which, according to them, will also be evident from the language of the proclamation. A perusal of Article 356 of the Constitution would indicate that the President has power to issue a proclamation, if he is satisfied that a situation has arisen in which the State Government cannot be carried on in accordance with the provisions of the Constitution, assuming to himself the administrative functions of the Government of the State as well as that of the State Legislature. The proclamation has to be laid before each House of the Parliament before expiration of two months, otherwise it would cease to operate unless approved by the Parliament, in which event, it will cease to operate on the expiration of a period of six months. The duration of the proclamation can be continued under Clause (4), but no such proclamation shall, in any case, remain in force for more than three years. Clause (5) of Article 356, however, provides that notwithstanding anything contained in Clause (4), a resolution with respect to the continuance in force of a Proclamation approved under Clause (3), for any period beyond the expiration of one year from the dale of issue of such Proclamation, shall not be passed unless a proclamation of Emergency is in operation, and the Election Commission certifies that the continuance in force of the proclamation is necessary on account of difficulties in holding genera! elections. The position thus is clear that the life of a proclamation is two months unless approved by both Houses of Parliament within two months, in which event it extends to six months. With the approval of the Parliament it can be continued for a period of three years, but there will be no continuance or extension beyond a period of one year unless two conditions as prescribed under Clause (5) of Article 356 are existing.

50. In the present case, a proclamation was issued initially on 18-10-1995 which was extended in March, 1996 with effect from 18-4-1996. The period of six months extension was to expire on 17-10-1996. On the last date, namely, on 17-10-1996, the proclamation issued on 18-10-95 as extended with effect from 18-4-1996, was revoked and on the same date, namely, 17-10-1996 the impugned proclamation was issued for a fresh imposition of President Rule. On the same date, a notification u/s 73 of the R. P. Act was also issued constituting the House. The case as set up by the opposite parties in their counter affidavit is that a fresh notification has been issued in a "new situation" which emerged after election to the Legislative Assembly when no political group was able to give assurance to provide stable Government for the State or to show majority in the Assembly." This is what has been stated in para 20 of the counter affidavit. The new situation is indeed the same that in the opinion of the Governor, despite all efforts made it was not possible to invite anyone to form the Government, As the general election had intervened this was a new situation hence a fresh proclamation.

51. So for factual aspect of the matter is concerned there is no denial of the fact that all the three notifications, namely, revoking the proclamation issued in 1995, as well as constituting the House and imposing President Rule again, were issued on the same date, namely, 17-10-1996. It is not the case of the opposite parties that there was any interregnum between the issuance of the two notifications, during which new efforts may have been made, after the issuance of the notification of revocation of earlier proclamation. The submission was that this all was done in continuity. According to the opposite parties they had started the process of revocation of earlier proclamation quite early while elections were going on, in the hope that a stable Government may be available thereafter. But they waited and did not revoke the proclamation. On declaration of results of general elections on 10-10-1996. It was found that there was a hung Assembly and no party was in a position to form the Government. Learned Solicitor General submitted that the time available at the disposal of the Governor was too short and the things could not be left as they were. In these circumstances, there was no option left but to revoke the earlier proclamation and to issue a fresh proclamation, both on the same date. According to the petitioners, if at all it was a mere artificial break between revocation of earlier proclamation and simultaneously issuance of another proclamation. It is submitted that in fact and in substance it is continuation of the earlier proclamation of 1995 which could not be extended beyond a period of one year, hence the impugned proclamation is bad in law and in contravention of Clause (5) of Article 356 of the Constitution. It is further submitted that it was only a method adopted to circumvent the provisions of the Constitution, a thing which could not be done directly has been done indirectly.

52. Sri R.N. Trivedi, learned counsel for the petitioner in one of the petitions, submitted that the language of Article 356 of the Constitution is such that it has to be interpreted strictly, also for the reason that it is an extraordinary power to meet an extraordinary situation where there is failure of the constitutional machinery and the Government of the State cannot be run in accordance with the provisions of the Constitution. It affects the basic feature of federalism of our system and the people of the State are deprived of elected Government. Therefore, in no circumstances, any condition as laid down in Article 356 of the Constitution can be breached or violated. It is submitted that language used is that every proclamation would cease to operate on the expiration of the period fixed. Therefore, the expiry of a proclamation is a natural consequence on efflux of time, whereas extension is subjected to stringent conditions. A proclamation will cease to operate on the expiration of two months if not approved by both Houses of the Parliament before the said period, in which event it will cease to operate on the expiration of six months. But even after its continuation, no proclamation shall remain in force "in any case" for more than three years. Then continuation of the period of three years has further been subjected to the conditions as provided under Clause (5) of Article 356 of the Constitution., specifying that extension will not be for more than one year unless, there is a proclamation of emergency in operation and that the Election Commission certifies that there are difficulties in holding the general elections due to emergency. It is submitted with vehemence that in no other situation a proclamation can continue for more than a year on the ground that there was failure of constitutional machinery and it was not possible to run the Government in accordance with the provisions of the Constitution.

53. It is rightly submitted that issuance of every proclamation may be at the initial stage, by the President or its approval by the Houses of Parliament or its extension, all are prominently and strictly punctuated with outer time limits of their operation. Therefore, situations one or the other may keep on arising in continuation, but that would not be a valid reason to again extend the period of President Rule. The situation is only one, namely, "the Government of the State cannot be carried on in accordance with the provisions of the Constitution." It was for this reason that the President Rule was enforced in October, 1995 and on the same ground it was extended once and thereafter it was to expire on 17-10-1996. There was no time lag between the revocation and the imposition of President Rule afresh. There was no interregnum at all, nor at any time there was any scope for calling the House or to appoint a Council of Ministers. All provisions in this regard under the Constitution remained suspended throughout. It is submitted that right from the date the President Rule was initially imposed on 18th October, 1995 till date i.e. during this one year and about two and a half months period, there has not been a single day when the State was free from the President Rule, nor even for a few hours, atleast none indicated by the opposite parties. Learned Solicitor General has tried to explain this situation that the move was already there to revoke the proclamation issued in 1995 since general elections-were to be held. But in fact it was not revoked till the last date, rather the last moment. It is submitted that the time was short and there was no machinery available which could take over, on expiry of period of President Rule, hence there was no option but to issue a fresh notification. For shortage of time at the disposal of the Governor or the President, Article 356(1) of the Constitution will nor provide them the solution. The elections could have been held earlier. The President Rule was imposed on October 18, 1995 on the ground that it was not possible to run the Government in accordance with the provisions of the Constitution. It was continued once with effect from 18-4-1996 due to same situation prevailing and the third proclamation (impugned) was issued in the same situation that it was not possible to run the Government in accordance with the provisions of the Constitution. There may be different reasons but the situation remained the same. As observed earlier, care could have been taken to hold the elections earlier so that there could be sufficient time to explore every possibility, rather than to act in a hurry at the nick of the moment under compulsion of time.

54. What is pivotal to the provisions contained under Article 356 of the Constitution is the situation in which it is not possible to run the Government in accordance with the provisions of the Constitution. If the situation continues beyond one year or three years, Article 356, as it stands, would not come to rescue. It has been rightly pointed out that period of one year, as was provider) earlier under Clause (4) of Article 356, has been later reduced to six months and it has been made extendable by another six months and no move, except where two conditions as provided under Clause (5) of Article 356 are in existence. It has rightly been submitted that the use of the words "in any case" in the first proviso to Clause (A) of Article 356 is significant It was duo to said provision that an amendment was made in respect of the State of Punjab for saving the proclamation issued in 1987. It was thought not possible to extend the period of proclamation any more beyond the limit as provided under the provision itself.

55. Sri R. N. Trivedi made a reference to the prefatory note of the Constitution (59th Amendment) Act, 1988, where it has been indicated that since it was virtually impossible to form a popular Government, in the circumstances then prevailing in Punjab and the continuation of the President Rule could also not be extended beyond the period of one year, therefore, Clause (5) of Article 356 was amended so as to facilitate the extension of the said proclamation if necessary upto a period of three years. It is rightly submitted that in fact there was no new situation Which had arisen, as alleged, to issue the impugned, proclamation. The fact that elections were held, would not provide a situation. After elections, House was notified u/s 73 of the R. P. Act, nothing beyond that was done. The elected members have not even been given oath of the office, hence constituting the house is of no avail for the purposes of appointing a Council of Ministers. The House was constituted by notification u/s 73 of the R. P. Act the same day when the impugned proclamation was issued to impose the President Rule. One proclamation was invoked bringing the President Rule to an end in pursuance of notification issued on 18-10-1995, but at the same time the impugned proclamation was issued imposing President Rule This all is self-contradictory. One goes a step forward with an intention to come back at the same time In substance, therefore, it is nothing but continuation of the proclamation issued on 18-10-1995. It can well be said that time is essence under Article 356 of the Constitution. The conditions are stringent. The very nature of the provision does not permit any deviation, even the slightest. It is difficult to hold that the impugned notification is a fresh notification and not an extension of the earlier notification, as evidently, the revocation of the earlier proclamation was issued having this in mind that simultaneously a fresh proclamation had to be issued. It only indicates that it was continuation of the proclamation issued on October 18, 1995.

56. I refrain from probing into the submissions made on behalf of the petitioners about the efforts made by the Governor in choosing a person to appoint him as Chief Minister. However, to mention it, it has been submitted that the provisions of Article 164 of the Constitution remained under suspension as well as Article 174(1) throughout. The opposite parties admitted in the counter affidavit, filed on behalf of the State of U. P., that there was no occasion for the Governor to appoint the Council of Ministers due to suspension of Article 174(1). Thus the Governor was in fact under a disability to constitute the Council of Ministers. The proclamation issued on 17-10-1996, based on two reports of the Governor dated 15-10-1996 and 16-10-1996. There seemed to be no activity at all in that direction on 17-10-1996 as there is no report in respect of any efforts, if at all, made. Virtually there was no formal parley between the Government and the leaders of political parties upto 15-10-1S96, as is indicated in the report of the Governor itself. The election result was declared on 10-10-1996. Talks took place between the Governor and the leaders only on 16-10-1996. As observed earlier, it is not necessary to comment on what has been submitted on behalf of the petitioners in this context as it has already been found that all legally possible efforts had not been made to form Government. It appears, it was thought that the assistance of elected legislators could not be had in the matter, in the absence of which it cannot be said that all possibilities had been explored and thereafter the recommendation was made to the President to impose President Rule as last resort. As a matter of fact, the authorities concerned do not seem to be conscious that there was still a way available to explore the possibility to form a Government. They do not seem to have perceived this aspect of the matter. Honble Supreme Court has observed in the case of S. R. Bommai (supra) that it was expressing no opinion about floor test in such a situation arising after general elections. The Honble Supreme Court was not dealing with such a situation, therefore no opinion was expressed ; meaning thereby the matter was left to be considered when such an occasion arose. This possibility of floor test should atleast have been thought of and considered. Conciousness to this position was required to be there on the part of the Governor before sending the report to the President for issued of the proclamation under Article 356.

57. The conclusion arrived at in view of the discussion held above and answers to the questions involved are as follows-

(1) The scope of judicial review, in scrutinizing a proclamation issued, under Article 356(1) of the Constitution, is limited and narrow. Authenticity, legal admissibility or adequacy of the material and subjective satisfaction arrived at, by the President on relevant material, cannot be gone into. Consideration of irrelevant material alongwith relevant material, will not vitiate the order, so long there is some relevant material. It should, however, not be mala fide order or based on no material.

(2) It is neither a established practice or convention nor there is any provision in the Constitution, under which the leader of the largest single party, not in majority, must be invited to from the Government, except where the Governor is satisfied that it shall have support of any other party in minority and will enjoy the confidence of the House. It is a matter in the discretion of the Governor fairly exercised.

(3) It would be open to the Governor to summon end seek assistance from the elected legislators, in the matter of choice of a person to be invited to form the Government Such a procedure would not militate against any provision of the Constitution or any established practice or convention In doing so, aid and advice of the Council of Ministers is not required. But this method of exploring possibilities to form a Government will not be available whore there is a clear majority of any party or where any minority party is ready to form Government with the support or in coalition with any other minority party for parties to the satisfaction of the Governor acting fairly.

(3) (a) The Governor sent his recommendation for President Rule without exploring the above possibility, as indicated in conclusion (3), thus resorted to last step in recommending for President Rule, being unaware that it was also possible for him to take assistance of the legislators, in the matter of choosing a person to be invited to form the Government.

(4) The period of President Rule could not be extended beyond one year except in the situation prevailing under Sub-clause (a) and (b) of Clause (5) of Article 356 of the Constitution.

(4) (a) In the facts and circumstances of the present case it is a case of continuance of the President Rule beyond a period of one year without the conditions, as Provided under Sub-clauses (a) and (b) of Clause (5) of Article 356 of the Constitution being there in existence. New situation argument as pleaded has no force.

58. In view of the discussion held above and the conclusions No. (3), (3) (a), (4) and (4) (a), the writ petitions deserve to be allowed and the impugned proclamation dated 17-10-1996 is liable to be set aside.

M. Katju, J.—This writ petition and the connected writ petitions have been filed challenging the impugned proclamation of the President of India dated 17-10-1996 in purported exercise of power under Article 356(1) of the Constitution of India. The petitioners have also prayed for a writ of mandamus commending the U. P. Governor to invite the leader of the largest single party in the U. P. Assembly to form a Government.

2. These petitions were earlier heard by a Division Bench of this Court, and in view of the difference of opinion between the two Honble Judges the matter has been referred by Honble the Chief Justice to this Full Bench

3. The facts of the case are that on the fall of the Mayawati Government in U. P. due to withdrawal of support by the Bhartiya Janta Party Presidents Rule was imposed in the State on 18-10-1995 under Article 356(1) of the Constitution, and after expiration of six months the period of Presidents Rule was extended for another six months which was to expire on 17-10-1996.

4. The Presidential Proclamation dated 18-10-1995 was laid before both Houses of Parliament under Article 356(3) and was approved by both the Houses before the expiry of two months as required by Article 356(3). The Proclamation was again laid before the Lok Sabha and Rajya Sabha, and was approved by the Rajya Sabha on 1-3-1996 and the Lok Sabha on 12-3-1996.

5. In the meanwhile, the U. P. Assembly which had earlier been suspended was dissolved by notification dated 28-10-1995 and elections were held for the U. P. Vidhan Sabha on 30th September, 3rd October and 7th October, 1996 and the results were declared by 10th October, 1996. These results were notified by the Election Commission u/s 73 of the Representation of Peoples Act, 1951 on 17-10-1996.

6. The result of the election, as stated in paragraph 20 to the main counter affidavit of the State Government (filed by the Principal Secretary to the Governor) was as follows :-

(i) B. J. P,-Samta Party Alliance ...........176 seats(ii) S. P.-United Front ...........134 "(iii) B. S. P-Congress Alliance ...........100 "(iv) Independents ........... 14 " _________ Total. ......424 " _________

7. The above figures indicate that no political party or alliance had a majority in the House of 425 members. The largest single alliance, the B. J. P.-Samta Party alliance, was short of majority by 37 members.

8. Thereupon, a piquant situation arose in the State. As stated in paragraph 22 of the States main counter affidavit, the leaders of the S. P., the B. S. P., and the Congress announced that they will not seek any support from the B. J. P. nor will they support it. At the same time, as stated in paragraph 23 of the said counter affidavit, the leader of the Samajvadi Party, Sri Mulayam Singh Yadav, also finally declared that he will have no truck with the B. S. P.

9. In these circumstances as alleged in paragraph 24 of the counter affidavit, the Governor formed the opinion that it was not possible to find any political group or combination of political groups which could have the confidence of the House and give a stable Government in the State. Hence, he submitted two reports dated 15th and 16th October, 1996 to the President stating that the Government in the State cannot be run according to the Constitution.

10. It may be mentioned that the B. J. P., which had emerged as the single largest party, submitted a letter dated 16-10-1996 to the Governor of U. P., staking its claim to form the Government. As stated in paragraph 39 (b) of the States main counter affidavit, as well as in paragraph 15 of the States supplementary counter affidavit, the Governor gave an audience to Shri Kalraj Mishra, President of the State unit of the B. J. P. along with two others (including Shri K. N. Tripathi, a former Speaker) on 16-10-1996 who accepted that no clear verdict had been given by the electorate. Although these B. J. P. Leaders staked claim to form the Government they could not demonstrate to the Governor that the B. J. P. along with its allies had a majority in the House.

11. In paragraph 41 of the States main counter affidavit it is alleged that on the evening of 17th October, 1996, the B. J. P. leaders again came to Governor House and again staked their claim to form the Government. The Governor met these leaders and was in consultation with them for almost one hour, and even then these leaders could not give the number and name of members of the total strength which the B. J. P. was relying on to form the Government.

12. The President of India, on receiving the reports of the Governor, issued two notifications on 17-10-1996. By the first notification, being S. R- No. 48 (E) dated 17-10-1996 he revoked the Proclamation issued by him on 18-10-1995. By the second notification, issued on the night of 17-10-1996, being S. P. No. 482 (E) dated 17-10-1996 he issued a fresh Proclamation again imposing Presidents Rule in U. P. under Article 356(1) of the Constitution. It is this fresh Proclamation which is under challenge in these petitions.

13. Writ Petition No. 3129 of 1996 has been filed by Shri Hari Shankar Jain, an advocate of this Court, and 5 others. Shri Jain has appeared in person and has argued this petition himself with great ability.

14. Before dealing with his contentions it may be useful to quote Article 356 of the Constitution which reads as follows :

"356. Provisions in case of failure of constitutional machinery in States - (1) If the President, on receipt of a report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution the President may by Proclamation-

(a) assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or any body or authority in the State other than the Legislature of the State;

(b) declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament;

(c) make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of this Constitution relating to any body or authority in the State ;

Provided that nothing in this clause shall authorise the President to assume to himself any of the powers vested in or exercisable by a High Court, or to suspend in whole or in part the operation of any provision of this Constitution relating to High Courts.

(2) Any such Proclamation may be revoked or varied by a subsequent Proclamation.

(3) Every Proclamation under this Article shall be laid before each House of Parliament and shall, except where it is a Proclamation revoking a previous Proclamation, cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament ;

Provided that if any such Proclamation (not being a Proclamation revoking a previous proclamation) is issued at a time when the House of the People is dissolved or the dissolution of the House of the People takes place during the period of two months referred to in this clause, and if a resolution approving the Proclamation has been passed by the Council of States, but no resolution with respect to such Proclamation has been passed by the House of the People before the expiration of that period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution unless before the expiration of the said period of thirty days a resolution approving the Proclamation has been also passed by the House of the People.

(4) A Proclamation so approved shall, unless revoked, cease to operate on the expiration of a period of six months from the date of issue of the Proclamation :

Provided that if and so often as a resolution approving the continuance in force of such a Proclamation is passed by both Houses of Parliament, the Proclamation shall, unless revoked, continue in force for a further period of six months from the date on which under this clause it would otherwise have ceased to operate, but no such Proclamation shall in any case remain in force for more than three years :

Provided further that if the dissolution of the House of the People takes place during any such period of six months and a resolution approving the continuance in force of such Proclamation has been passed by Council of States, but no resolution with respect to the continuance in force of such Proclamation has been passed by the House of the People during the said period, the Proclamation shall cease operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution unless before the expiration of the said period of thirty days a resolution approving the continuance in force of the Proclamation has been also passed by the House of the People.

(5) Notwithstanding anything contained in Clause (4), a resolution with respect to the continuance in force of a Proclamation approved under Clause (3) for any period beyond the expiration of one year from the date of issue of such Proclamation shall not be passed by either House of Parliament unless-

(a) a Proclamation of Emergency is in operation, in the whole of India or, as the case may be, in whole or any part of the State, at the time of the passing of such resolution, and

(b) the Election Commission certifies that the continuance in force of the Proclamation approved under Clause (3) during the period specified in such resolution is necessary on account of difficulties in holding general election to the Legislative Assembly of the State concerned."

15. Shri Jain firstly submitted that the maximum period of Presidents Rule under Article 356 can be only one year in view of Clause (b) thereof, unless a Proclamation of Emergency is in operation or the Eelection Commission has certified that the continuance of the Proclamation is necessary on account of difficulties in holding general elections to the Legislative Assembly of the State. Admittedly there was neither a Proclamation of Emergency in operation nor was there any certification by the Election Commission when the impugned Proclamation dated 17-10-1996 was issued. Hence, Shri Jain submitted, the continuance of Presidents Rule in the State after 17-10-1996 was in violation of Article 356(5) of the Constitution.

16. Shri Jain contended that although the notification dated 17-10-1996 purports to be a fresh Proclamation under Article 356(1) it was in substance nothing but a continuation of the earlier Proclamation dated 18-10-1995. He submitted that the Proclamation dated 17-10-1996 was only a subterfuge to get over Article 356(5) and hence, should be struck down. Shri Jain relied on the decision of the Supreme Court in H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior and Others Vs. Union of India and Another, for his contention that the provisions of the Constitution cannot be circumvented by doing something indirectly which cannot be done directly. He also relied on the decision of the Supreme Court in Dr D.C. Wadhwa and Others Vs. State of Bihar and Others, in support of his contention that such successive Proclamations are invalid. Shri Jain relied heavily on the decision of the Supreme Court in S. R, Bammai v. Union of India AIR 1994 SC 1913 in support of his contention that the question of majority support should have been tested on the floor of the House. He urged that the Governor should have invited the leader of the largest single party in the House to form a Government.

H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior and Others Vs. Union of India and Another, for his contention that the provisions of the Constitution cannot be circumvented by doing something indirectly which cannot be done directly. He also relied on the decision of the Supreme Court in Dr D.C. Wadhwa and Others Vs. State of Bihar and Others, in support of his contention that such successive Proclamations are invalid. Shri Jain relied heavily on the decision of the Supreme Court in S. R, Bammai v. Union of India AIR 1994 SC 1913 in support of his contention that the question of majority support should have been tested on the floor of the House. He urged that the Governor should have invited the leader of the largest single party in the House to form a Government.

H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior and Others Vs. Union of India and Another,

for his contention that the provisions of the Constitution cannot be circumvented by doing something indirectly which cannot be done directly. He also relied on the decision of the Supreme Court in Dr D.C. Wadhwa and Others Vs. State of Bihar and Others, in support of his contention that such successive Proclamations are invalid. Shri Jain relied heavily on the decision of the Supreme Court in S. R, Bammai v. Union of India AIR 1994 SC 1913 in support of his contention that the question of majority support should have been tested on the floor of the House. He urged that the Governor should have invited the leader of the largest single party in the House to form a Government.

for his contention that the provisions of the Constitution cannot be circumvented by doing something indirectly which cannot be done directly. He also relied on the decision of the Supreme Court in Dr D.C. Wadhwa and Others Vs. State of Bihar and Others, in support of his contention that such successive Proclamations are invalid. Shri Jain relied heavily on the decision of the Supreme Court in S. R, Bammai v. Union of India AIR 1994 SC 1913 in support of his contention that the question of majority support should have been tested on the floor of the House. He urged that the Governor should have invited the leader of the largest single party in the House to form a Government.

Dr D.C. Wadhwa and Others Vs. State of Bihar and Others, in support of his contention that such successive Proclamations are invalid. Shri Jain relied heavily on the decision of the Supreme Court in S. R, Bammai v. Union of India AIR 1994 SC 1913 in support of his contention that the question of majority support should have been tested on the floor of the House. He urged that the Governor should have invited the leader of the largest single party in the House to form a Government.

Dr D.C. Wadhwa and Others Vs. State of Bihar and Others,

in support of his contention that such successive Proclamations are invalid. Shri Jain relied heavily on the decision of the Supreme Court in S. R, Bammai v. Union of India AIR 1994 SC 1913 in support of his contention that the question of majority support should have been tested on the floor of the House. He urged that the Governor should have invited the leader of the largest single party in the House to form a Government.

in support of his contention that such successive Proclamations are invalid. Shri Jain relied heavily on the decision of the Supreme Court in S. R, Bammai v. Union of India AIR 1994 SC 1913 in support of his contention that the question of majority support should have been tested on the floor of the House. He urged that the Governor should have invited the leader of the largest single party in the House to form a Government.

17. Shri Jain further submitted that the impugned Proclamation is violative of Democracy which is a basic feature of the Constitution and it is also violative of the federal structure which is also a basic feature of the Constitution as held in His Holiness Kesavananda Bharati Sripadagalvaru Vs. State of Kerala, . He also contended that the impugned Proclamation is a colourable exercise of the power conferred by Article 356. He invited our attention to the Supreme Court decision in K.C. Gajapati Narayan Deo and Others Vs. The State of Orissa, and State of Punjab and Another Vs. Gurdial Singh and Others, . He submitted that the impugned Proclamation is also violative of Article 356(1) as it could not be said when the Proclamation was issued that the Government could not have been carried on in accordance with the provisions of the Constitution. Shri Jain contended that there was no relevant material before the Governor on the basis of which he could have come to the conclusion that the constitutional machinery had broken down He also urged that there can be no Legislative Assembly without a Council of Ministers. Lastly, Shri Jain contended that it was incumbent on the Governor to invite someone to form a Ministry on the expiry of one year of Presidents Rule and the Council of Ministers thus formed need be responsible to the House.

His Holiness Kesavananda Bharati Sripadagalvaru Vs. State of Kerala, . He also contended that the impugned Proclamation is a colourable exercise of the power conferred by Article 356. He invited our attention to the Supreme Court decision in K.C. Gajapati Narayan Deo and Others Vs. The State of Orissa, and State of Punjab and Another Vs. Gurdial Singh and Others, . He submitted that the impugned Proclamation is also violative of Article 356(1) as it could not be said when the Proclamation was issued that the Government could not have been carried on in accordance with the provisions of the Constitution. Shri Jain contended that there was no relevant material before the Governor on the basis of which he could have come to the conclusion that the constitutional machinery had broken down He also urged that there can be no Legislative Assembly without a Council of Ministers. Lastly, Shri Jain contended that it was incumbent on the Governor to invite someone to form a Ministry on the expiry of one year of Presidents Rule and the Council of Ministers thus formed need be responsible to the House.

His Holiness Kesavananda Bharati Sripadagalvaru Vs. State of Kerala,

. He also contended that the impugned Proclamation is a colourable exercise of the power conferred by Article 356. He invited our attention to the Supreme Court decision in K.C. Gajapati Narayan Deo and Others Vs. The State of Orissa, and State of Punjab and Another Vs. Gurdial Singh and Others, . He submitted that the impugned Proclamation is also violative of Article 356(1) as it could not be said when the Proclamation was issued that the Government could not have been carried on in accordance with the provisions of the Constitution. Shri Jain contended that there was no relevant material before the Governor on the basis of which he could have come to the conclusion that the constitutional machinery had broken down He also urged that there can be no Legislative Assembly without a Council of Ministers. Lastly, Shri Jain contended that it was incumbent on the Governor to invite someone to form a Ministry on the expiry of one year of Presidents Rule and the Council of Ministers thus formed need be responsible to the House.

. He also contended that the impugned Proclamation is a colourable exercise of the power conferred by Article 356. He invited our attention to the Supreme Court decision in K.C. Gajapati Narayan Deo and Others Vs. The State of Orissa, and State of Punjab and Another Vs. Gurdial Singh and Others, . He submitted that the impugned Proclamation is also violative of Article 356(1) as it could not be said when the Proclamation was issued that the Government could not have been carried on in accordance with the provisions of the Constitution. Shri Jain contended that there was no relevant material before the Governor on the basis of which he could have come to the conclusion that the constitutional machinery had broken down He also urged that there can be no Legislative Assembly without a Council of Ministers. Lastly, Shri Jain contended that it was incumbent on the Governor to invite someone to form a Ministry on the expiry of one year of Presidents Rule and the Council of Ministers thus formed need be responsible to the House.

K.C. Gajapati Narayan Deo and Others Vs. The State of Orissa, and State of Punjab and Another Vs. Gurdial Singh and Others, . He submitted that the impugned Proclamation is also violative of Article 356(1) as it could not be said when the Proclamation was issued that the Government could not have been carried on in accordance with the provisions of the Constitution. Shri Jain contended that there was no relevant material before the Governor on the basis of which he could have come to the conclusion that the constitutional machinery had broken down He also urged that there can be no Legislative Assembly without a Council of Ministers. Lastly, Shri Jain contended that it was incumbent on the Governor to invite someone to form a Ministry on the expiry of one year of Presidents Rule and the Council of Ministers thus formed need be responsible to the House.

K.C. Gajapati Narayan Deo and Others Vs. The State of Orissa,

and State of Punjab and Another Vs. Gurdial Singh and Others, . He submitted that the impugned Proclamation is also violative of Article 356(1) as it could not be said when the Proclamation was issued that the Government could not have been carried on in accordance with the provisions of the Constitution. Shri Jain contended that there was no relevant material before the Governor on the basis of which he could have come to the conclusion that the constitutional machinery had broken down He also urged that there can be no Legislative Assembly without a Council of Ministers. Lastly, Shri Jain contended that it was incumbent on the Governor to invite someone to form a Ministry on the expiry of one year of Presidents Rule and the Council of Ministers thus formed need be responsible to the House.

and State of Punjab and Another Vs. Gurdial Singh and Others, . He submitted that the impugned Proclamation is also violative of Article 356(1) as it could not be said when the Proclamation was issued that the Government could not have been carried on in accordance with the provisions of the Constitution. Shri Jain contended that there was no relevant material before the Governor on the basis of which he could have come to the conclusion that the constitutional machinery had broken down He also urged that there can be no Legislative Assembly without a Council of Ministers. Lastly, Shri Jain contended that it was incumbent on the Governor to invite someone to form a Ministry on the expiry of one year of Presidents Rule and the Council of Ministers thus formed need be responsible to the House.

State of Punjab and Another Vs. Gurdial Singh and Others, . He submitted that the impugned Proclamation is also violative of Article 356(1) as it could not be said when the Proclamation was issued that the Government could not have been carried on in accordance with the provisions of the Constitution. Shri Jain contended that there was no relevant material before the Governor on the basis of which he could have come to the conclusion that the constitutional machinery had broken down He also urged that there can be no Legislative Assembly without a Council of Ministers. Lastly, Shri Jain contended that it was incumbent on the Governor to invite someone to form a Ministry on the expiry of one year of Presidents Rule and the Council of Ministers thus formed need be responsible to the House.

State of Punjab and Another Vs. Gurdial Singh and Others,

. He submitted that the impugned Proclamation is also violative of Article 356(1) as it could not be said when the Proclamation was issued that the Government could not have been carried on in accordance with the provisions of the Constitution. Shri Jain contended that there was no relevant material before the Governor on the basis of which he could have come to the conclusion that the constitutional machinery had broken down He also urged that there can be no Legislative Assembly without a Council of Ministers. Lastly, Shri Jain contended that it was incumbent on the Governor to invite someone to form a Ministry on the expiry of one year of Presidents Rule and the Council of Ministers thus formed need be responsible to the House.

. He submitted that the impugned Proclamation is also violative of Article 356(1) as it could not be said when the Proclamation was issued that the Government could not have been carried on in accordance with the provisions of the Constitution. Shri Jain contended that there was no relevant material before the Governor on the basis of which he could have come to the conclusion that the constitutional machinery had broken down He also urged that there can be no Legislative Assembly without a Council of Ministers. Lastly, Shri Jain contended that it was incumbent on the Governor to invite someone to form a Ministry on the expiry of one year of Presidents Rule and the Council of Ministers thus formed need be responsible to the House.

18. We also heard Sri Satish Chandra Mishra who has appeared in Writ Petition No. 3150 of 1996, Lalji Tandon v. Union of India, Sri Mishra who argued with great forensic ability invited our attention to Annexure-4 to the aforesaid writ petition which is a letter dated 13-10-1996 of Sri Kalraj Mishra, President of the U. P. Unit of the B. J. P. In this letter Sri Mishra informed the Governor that Sri Kalyan Singh has been elected leader of the State Legislature Party of the B. J. P. on 11-10-1996. Thereafter, by another letter, a Photostat copy of which is Annexure-5 to the writ petition, Sri Kalraj Mishra wrote to the Governor informing him that the U. P. Legislative Assembly had not been formally constituted nor has any Government been formed. In this very latter he also admitted that neither any single party nor any alliance has received majority in the recent election. However, he mentioned that the BJP got 175 seats and the BJP- Samta Party Alliance got 177. He claimed that four independent MLAs were supporting the BJP. Hence, on this basis he claimed that the BJP should be invited to form the Government and be given time to prove its majority on the Floor of the House. Thereafter by letter dated 17-10-1996 Sri Kalraj Mishra wrote to the Governor informing him that it was his duty to act in accordance with the Constitution but unfortunately no popular Government has yet been formed and instead the Governor has recommended Presidents Rule. He again claimed that the BJP would be entitled to form the Government but the Governor was acting unconstitutionally.

19. Sri S. C. Mishra contended that there was a convention that the largest single party should be invited to form the Government, and he invited our attention to paragraphs 30, 31, 32 and 34 of the writ petition where certain instances have been mentioned where the single largest patty which did not have majority in the House, was invited to form the Government. He gave the example of the Narsimha Rao Government and the Atal Bihari Bajpai Government and contended that the Governor has violated the convention of calling the single largest party.

20. According to Sri Misra, one of the grounds given by the Governor for recommending Presidents Rule was that in view of the fact that no party or alliance has absolute majority in the House there would be violation of 10th Schedule to the Constitution if the single largest party was invited to form the Government. According to Sri Mishra, the Governor has misconstrued the 10th Schedule to the Constitution inasmuch as the Governor was under a wrong impression that the 10th Schedule placed a total prohibition on defection or joining a party. Sri Misra contended that despite the 10th Schedule, there could be defection of M.L.As. or some independent M.L.As. could join a party. Hence as contended that the Governors opinion was based on a misinterpretation of the 10th Schedule.

21. Sri Mishra also contended that it had been held in S.R. Bommai and others Vs. Union of India and others etc. etc., and paragraph 391 that even a minority Government can be appointed.

S.R. Bommai and others Vs. Union of India and others etc. etc., and paragraph 391 that even a minority Government can be appointed.

S.R. Bommai and others Vs. Union of India and others etc. etc.,

and paragraph 391 that even a minority Government can be appointed.

and paragraph 391 that even a minority Government can be appointed.

22. We also heard Sri R. N. Trivedi, learned Senior Advocate who appeared in Writ Petition No. 3172 of 1996, R. K. Verma v. Union of India, and argued the case with his usual persuasive eloquence. Sri Trivedi contended that there was a total lack of power in the President to issue a fresh Proclamation after the expiry of one year of Presidents Rule in view of the express bar of Article 356(5). He contended that any Proclamation by the President under Article 356(1) after the expiry of one year of Presidents Rule is a subterfuge and in derogation of Article 356(5). He urged that after the expiry of one year of Presidents Rule, there has to be a reasonable time gap if a fresh Proclamation has to be imposed, but there existed no such time gap. He contended that the purpose of revoking the Proclamation dated 13-10-1995, by the notification dated 17-10-1996, was only to reimpose Presidents Rule by a fresh Proclamation. This amounted to malice in law. He relied on the decision K.C. Gajapati Narayan Deo and Others Vs. The State of Orissa, , Smt. S.R. Venkataraman Vs. Union of India (UOI) and Another, and Collector (District Magistrate) Allahabad and Another Vs. Raja Ram Jaiswal, . He contended that what cannot be done directly can also not be done indirectly, and for this contention he relied on the decision of the Supreme Court in Dr D.C. Wadhwa and Others Vs. State of Bihar and Others, where it has been observed :

K.C. Gajapati Narayan Deo and Others Vs. The State of Orissa, , Smt. S.R. Venkataraman Vs. Union of India (UOI) and Another, and Collector (District Magistrate) Allahabad and Another Vs. Raja Ram Jaiswal, . He contended that what cannot be done directly can also not be done indirectly, and for this contention he relied on the decision of the Supreme Court in Dr D.C. Wadhwa and Others Vs. State of Bihar and Others, where it has been observed :

K.C. Gajapati Narayan Deo and Others Vs. The State of Orissa,

, Smt. S.R. Venkataraman Vs. Union of India (UOI) and Another, and Collector (District Magistrate) Allahabad and Another Vs. Raja Ram Jaiswal, . He contended that what cannot be done directly can also not be done indirectly, and for this contention he relied on the decision of the Supreme Court in Dr D.C. Wadhwa and Others Vs. State of Bihar and Others, where it has been observed :

, Smt. S.R. Venkataraman Vs. Union of India (UOI) and Another, and Collector (District Magistrate) Allahabad and Another Vs. Raja Ram Jaiswal, . He contended that what cannot be done directly can also not be done indirectly, and for this contention he relied on the decision of the Supreme Court in Dr D.C. Wadhwa and Others Vs. State of Bihar and Others, where it has been observed :

Smt. S.R. Venkataraman Vs. Union of India (UOI) and Another, and Collector (District Magistrate) Allahabad and Another Vs. Raja Ram Jaiswal, . He contended that what cannot be done directly can also not be done indirectly, and for this contention he relied on the decision of the Supreme Court in Dr D.C. Wadhwa and Others Vs. State of Bihar and Others, where it has been observed :

Smt. S.R. Venkataraman Vs. Union of India (UOI) and Another,

and Collector (District Magistrate) Allahabad and Another Vs. Raja Ram Jaiswal, . He contended that what cannot be done directly can also not be done indirectly, and for this contention he relied on the decision of the Supreme Court in Dr D.C. Wadhwa and Others Vs. State of Bihar and Others, where it has been observed :

and Collector (District Magistrate) Allahabad and Another Vs. Raja Ram Jaiswal, . He contended that what cannot be done directly can also not be done indirectly, and for this contention he relied on the decision of the Supreme Court in Dr D.C. Wadhwa and Others Vs. State of Bihar and Others, where it has been observed :

Collector (District Magistrate) Allahabad and Another Vs. Raja Ram Jaiswal, . He contended that what cannot be done directly can also not be done indirectly, and for this contention he relied on the decision of the Supreme Court in Dr D.C. Wadhwa and Others Vs. State of Bihar and Others, where it has been observed :

Collector (District Magistrate) Allahabad and Another Vs. Raja Ram Jaiswal,

. He contended that what cannot be done directly can also not be done indirectly, and for this contention he relied on the decision of the Supreme Court in Dr D.C. Wadhwa and Others Vs. State of Bihar and Others, where it has been observed :

. He contended that what cannot be done directly can also not be done indirectly, and for this contention he relied on the decision of the Supreme Court in Dr D.C. Wadhwa and Others Vs. State of Bihar and Others, where it has been observed :

Dr D.C. Wadhwa and Others Vs. State of Bihar and Others, where it has been observed :

Dr D.C. Wadhwa and Others Vs. State of Bihar and Others,

where it has been observed :

where it has been observed :

"It is settled law that a Constitutional Authority cannot be indirectly what it is not permitted to do directly. If there is a Constitutional provision inhibiting the Constitutional Authority from doing an act, such provision cannot be allowed to be defeated by adoption of any subterfuge. That would be clearly a fraud on the Constitutional provision."

23. Relying on the Supreme Courts decision in Smt. S.R. Venkataraman Vs. Union of India (UOI) and Another, , Sri Trivedi contended that a person may be guilty of malice in law although so far as the state of his mind is concerned, he may act ignorantly and in that sense innocently. Hence, Sri Trivedi contended that the Governor even if he had acted bona fide, was guilty of malice in law Sri Trivedi contended that where power is exercised for extraneous or irrelevant considerations, it is unquestionably, a colourable exercise of power. For this contention, he relied on Collector (District Magistrate) Allahabad and Another Vs. Raja Ram Jaiswal, .

Smt. S.R. Venkataraman Vs. Union of India (UOI) and Another, , Sri Trivedi contended that a person may be guilty of malice in law although so far as the state of his mind is concerned, he may act ignorantly and in that sense innocently. Hence, Sri Trivedi contended that the Governor even if he had acted bona fide, was guilty of malice in law Sri Trivedi contended that where power is exercised for extraneous or irrelevant considerations, it is unquestionably, a colourable exercise of power. For this contention, he relied on Collector (District Magistrate) Allahabad and Another Vs. Raja Ram Jaiswal, .

Smt. S.R. Venkataraman Vs. Union of India (UOI) and Another,

, Sri Trivedi contended that a person may be guilty of malice in law although so far as the state of his mind is concerned, he may act ignorantly and in that sense innocently. Hence, Sri Trivedi contended that the Governor even if he had acted bona fide, was guilty of malice in law Sri Trivedi contended that where power is exercised for extraneous or irrelevant considerations, it is unquestionably, a colourable exercise of power. For this contention, he relied on Collector (District Magistrate) Allahabad and Another Vs. Raja Ram Jaiswal, .

, Sri Trivedi contended that a person may be guilty of malice in law although so far as the state of his mind is concerned, he may act ignorantly and in that sense innocently. Hence, Sri Trivedi contended that the Governor even if he had acted bona fide, was guilty of malice in law Sri Trivedi contended that where power is exercised for extraneous or irrelevant considerations, it is unquestionably, a colourable exercise of power. For this contention, he relied on Collector (District Magistrate) Allahabad and Another Vs. Raja Ram Jaiswal, .

Collector (District Magistrate) Allahabad and Another Vs. Raja Ram Jaiswal, .

Collector (District Magistrate) Allahabad and Another Vs. Raja Ram Jaiswal,

.

.

24. Sri Trivedi further urged that the qualitative nature of the Proclamation under Article 356(1) must be such as to be capable of approval under Article 356(3), and according to him, the impugned Proclamation did not have such a qualitative nature. Sri Trivedi contended that if such a Presidents Rule is upheld then there may be a dissolution of the House and the Electorate can again give similar factor verdict and the position will consequently remain the same. Sri Trivedi contended that the Clauses of Article 356 pertaining to Punjab which where added by certain amendments showed that even in Punjab where there was terrorism and militancy, the Presidents Rule had a limited period and could not exceed that period under any circumstances. Sri Trivedi urged that Democracy is a basic feature of the Constitution and it has been eroded by the impugned Proclamation.

25. Sri Trivedi referred to the word continuance in Article 356(5) and contended that the fresh Proclamation of 17-10-1996 was nothing but a continuance of the earlier Proclamation dated 18-10-1995.

26. Sri Trivedi further urged that Article 356 is a complete Code with regard to the power of the President to impose Presidents Rule. He invited our attention to certain relevant passages in Constituent Assembly debates, and in particular he referred to the following statement made by Dr. Ambedkar in the Constituent Assembly :

In regard to the general debate which has taken place in which it has been suggested that these articles are liable to be abused, I may say that I do not altogether deny that there is a possibility of these articles being abused or employed for political purposes. But that objection applies to every part of the Constitution which gives power to the Centre to override the provisions. In fact I share the sentiments expressed by my Honourable friend Mr. Gupta yesterday that the proper thing we ought to expect is that such articles will never be called into operation and that they would remain a dead letter. If at all they are brought into operation, I hope the President, who is endowed with these powers, will take proper precautions before actually suspending the administration of the provinces. I hope the first thing he will do would be to issue a mere warning to a province that has erred, that things were not happening in the way in which they were intended to happen in the Constitution. If that warning fails, the second thing for him to do will be to order an election allowing the people of the province to settle matters by themselves. It is only when these two remedies fail that he would resort to this Article. It is only in those circumstances he would resort to this Article. I do not think we could then say that these Articles were imported in vain or that the President had acted wantonly."

27. On the strength of the above statement of Dr. Arnbedkar Shri Trivedi contended that Article 356 could be resorted to only as the last resort, but the Governor had not explored all possibilities of forming a popular Government.

28. Shri Trivedi referred to the various amendments which took place in Article 356 of the Constitution and he pointed out that the 44th Constitutional amendment of 1978 was made specifically to prevent abuse of the power under Article 356. Shri Trivedi urged that Article 356 can be invoked only if an elected Government is functioning and not otherwise

29. Shri Trivedi contended that the power under Article 356 is subject to judicial review as held by the Supreme Court in State of Rajasthan and Others Vs. Union of India and Others, , as also in S.R. Bommai and others Vs. Union of India and others etc. etc., . He invited our attention to the decision of the Kerala High Court in K.K. Aboo Vs. Union of India (UOI) and Others, and the decision of Orissa High Court in AIR 1952 Orissa 234.

State of Rajasthan and Others Vs. Union of India and Others, , as also in S.R. Bommai and others Vs. Union of India and others etc. etc., . He invited our attention to the decision of the Kerala High Court in K.K. Aboo Vs. Union of India (UOI) and Others, and the decision of Orissa High Court in AIR 1952 Orissa 234.

State of Rajasthan and Others Vs. Union of India and Others,

, as also in S.R. Bommai and others Vs. Union of India and others etc. etc., . He invited our attention to the decision of the Kerala High Court in K.K. Aboo Vs. Union of India (UOI) and Others, and the decision of Orissa High Court in AIR 1952 Orissa 234.

, as also in S.R. Bommai and others Vs. Union of India and others etc. etc., . He invited our attention to the decision of the Kerala High Court in K.K. Aboo Vs. Union of India (UOI) and Others, and the decision of Orissa High Court in AIR 1952 Orissa 234.

S.R. Bommai and others Vs. Union of India and others etc. etc., . He invited our attention to the decision of the Kerala High Court in K.K. Aboo Vs. Union of India (UOI) and Others, and the decision of Orissa High Court in AIR 1952 Orissa 234.

S.R. Bommai and others Vs. Union of India and others etc. etc.,

. He invited our attention to the decision of the Kerala High Court in K.K. Aboo Vs. Union of India (UOI) and Others, and the decision of Orissa High Court in AIR 1952 Orissa 234.

. He invited our attention to the decision of the Kerala High Court in K.K. Aboo Vs. Union of India (UOI) and Others, and the decision of Orissa High Court in AIR 1952 Orissa 234.

K.K. Aboo Vs. Union of India (UOI) and Others, and the decision of Orissa High Court in AIR 1952 Orissa 234.

K.K. Aboo Vs. Union of India (UOI) and Others,

and the decision of Orissa High Court in AIR 1952 Orissa 234.

and the decision of Orissa High Court in AIR 1952 Orissa 234.

30. Shri Trivedi contended that under Article 163(1) of the Constitution it was incumbent upon the Governor to appoint a Council of Ministers but the Central Government by the impugned Proclamation disabled the Governor from performing these functions. To a specific question by the Court whether a Ministry which is not responsible to the House can be appointed, Shri Trivedi answered in the affirmative and stated that a Ministry has to be appointed in view of Article 163(1) even if it is a minority Government without any support from any group.

31. In reply to the contentions of the learned counsels for the petitioners, we heard learned solicitor General of India who has appeared on behalf of the Central Government, and delivered a very learned and educative address. Learned Solicitor General contended that the impugned Proclamation of 17-10-1996 was issued because the constitutional machinery had failed. He submitted that right from 4-10-1996 steps were being taken by the Central Government for revocation of the Proclamation issued on 18-10-1995 as it was expected that a popular Government would come into power in the State. He submitted that after all the results were declared on 10-10-1996, the Governor kept waiting for some party to come forward to stake a claim for forming the Ministry. He submitted that it is the duty of the Governor to watch the situation and find out who is likely to command confidence in the House. However, the Governor kept waiting till 16-10-1996 and it was only on 16-10-1996 that the B.J.P. gave a letter to the Governor claiming the right to form the Government. The Governor assessed the situation and found that although the B.J.P. was the largest party in the State but the other parties had openly expressed their opposition to it. He submitted that if the largest party can reasonably hope to command the confidence to the House, then a Ministry of that party can be appointed, but where the other parties openly expressed their opposition to the largest party, the Governor cannot appoint a Ministry of such party because it would not be likely to have the confidence of the House. He submitted that the Governor must find out which party can form a Government which is likely to be stable.

32. He further submitted that the Governor in the present case . waited till the last day, i.e. till 16-10-1996 for finding a person who can command the confidence of the House. The Proclamation of 18-10-1995 was coming to an end on 17-10-1996 and the Governor kept waiting till 16-10-1996, otherwise he would have been accused of partisanship. Hence he contended that the Governors action was fair. As regards the revocation of the Proclamation of 18-10-1995 by the notification dated 17-10-1995, learned Solicitor General contended that this act of revocation was only an accelerated act of expiry of the period of Presidents Rule imposed on 18-10-1995. He submitted that no prudent President would have waited till the mid-night of 17/18-10-1996 for this purpose. He further submitted that even now the Governor is prepared to appoint any person who can demonstrate that he can form a Government likely to have the confidence of the House.

33. Learned Solicitor General submitted that in England the King has the prerogative of assessing the situation and he can find out which party or group or coalition of parties is in the majority in the House. It is not necessary for the King to send the matter to the House of Commons and instead he himself can assess the situation. He submitted that the Assembly cannot appoint the Chief Minister and only the Governor can do that.

34. in reply to our query whether it was on the facts of the case necessary for the President to have suspended the Assembly, learned Solicitor General contended that when the President assumes to himself the executive function of the State Government under Clause (a) of Article 356(1) of the Constitution, he has also necessarily to exercise the power under Clause (b) and declare that the power of the legislature of the State shall be exercisable by of under the authority of Parliament. He submitted that under the very scheme of the Constitution it is not possible for the President only to take over the executive function of the State Government under Clause (a) without also taking over the legislative function under Clause (b). He contended that the power under Clause (a) and Clause (b) of Article 356(1) are so inter-linked under the scheme of the Constitution that it is not possible to exercise only the power under Clause (a) without also simultaneously exercising the power under Clause (b). He contended that it is inconceivable that the function of the State legislature can continue once there is a Proclamation under Article 356(1) and he submitted that once Presidents Rule is imposed the power of the State legislature has to be taken over by the Parliament. In other words, his contention was that the exercise of power under Clause (a) of Article 356(1) necessarily involves the exercise of power under Clause (b) and he submitted that it has always been done in the past whenever Proclamation under Article 356(1) was made. He contended that the Governor cannot summon the State legislature without appointing a council of Ministers. In support of this contention he urged that under our Constitutional scheme the Governor can only act on the advice of the Council of Ministers vide Article 163(1) which states :

"There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his function or any of them in his discretion,"

35. In support of this contention he relied on the decision in Rai Sahib Ram Jawaya Kapur and Others Vs. The State of Punjab, , wherein it was held :

Rai Sahib Ram Jawaya Kapur and Others Vs. The State of Punjab, , wherein it was held :

Rai Sahib Ram Jawaya Kapur and Others Vs. The State of Punjab,

, wherein it was held :

, wherein it was held :

"The President has thus been made a formal or constitutional head of the executive and the real executive powers are vested in the Ministers or the Cabinet."

In the same decision it was also observed :

"The cabinet enjoying, as it does, majority in the legislature concentrates in itself the virtual control of both legislative and executive functions, and as the Ministers constituting the Cabinet are presumably agreed on fundamentals and act on the principle of collective responsibility, the most important questions of policy are all formulated by them."

In the same decision it was also held that, "our Constitution, though federal in the structure, is modeled on the British Parliamentary system."

36. Learned Solicitor General then invited our attention to the decision of the Supreme Court in U.N.A. Rao Vs. Smt. Indira Gandhi, , and he laid emphasis on paragraph 10 of this decision where it has been observed that the President cannot exercise the executive power without aid and advice of the Council of Ministers. He then placed reliance on the decision of the Supreme Court in the case of Samsher Singh Vs. State of Punjab and Another, , where it was observed in paragraph 154 as follows :

U.N.A. Rao Vs. Smt. Indira Gandhi, , and he laid emphasis on paragraph 10 of this decision where it has been observed that the President cannot exercise the executive power without aid and advice of the Council of Ministers. He then placed reliance on the decision of the Supreme Court in the case of Samsher Singh Vs. State of Punjab and Another, , where it was observed in paragraph 154 as follows :

U.N.A. Rao Vs. Smt. Indira Gandhi,

, and he laid emphasis on paragraph 10 of this decision where it has been observed that the President cannot exercise the executive power without aid and advice of the Council of Ministers. He then placed reliance on the decision of the Supreme Court in the case of Samsher Singh Vs. State of Punjab and Another, , where it was observed in paragraph 154 as follows :

, and he laid emphasis on paragraph 10 of this decision where it has been observed that the President cannot exercise the executive power without aid and advice of the Council of Ministers. He then placed reliance on the decision of the Supreme Court in the case of Samsher Singh Vs. State of Punjab and Another, , where it was observed in paragraph 154 as follows :

Samsher Singh Vs. State of Punjab and Another, , where it was observed in paragraph 154 as follows :

Samsher Singh Vs. State of Punjab and Another,

, where it was observed in paragraph 154 as follows :

, where it was observed in paragraph 154 as follows :

"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 these provisions, exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well-known exceptional situations. Without being dogmatic or exhaustive, these situations relate to (a) the choice of Prime Minister (Chief Minister), restricted though this choice is by the paramount consideration that he should command a majority in the House ; (b) the dismissal of a Government which has lost, its majority in the House, but refuses to quit office ; (c) the dissolution of the House where an appeal to the country is necessitous, although in this area the head of State should avoid getting involved in politics and must be advised by his Prime Minister (Chief Minister) who will eventually take the responsibility for the step. We do not examine in detail the constitutional proprieties in these predicaments except to utter the caution that even here the action must be compelled by the peril to democracy and the appeal to the House or to the country must become blatantly obligatory."

37. Learned Solicitor General on the strength of the aforesaid decision contended that the Governor cannot summon the House except on the aid and advice of the Council of Ministers and since in the present case there was no Council of Ministers, the House had to be suspended Learned Solicitor General referred to the Sarkaria Commission Report where it was said ;

"4.11.01, The leader of the party which has an absolute majority in the Legislative Assembly should invariably be called upon by the Governor to form a Government That is a time-honoured convention of a cabinet form of Government. There is no controversy in this regard. However, where no party has a clear majority, there are two views as to the procedure to be adopted for identifying the person who can form a Government. According to some State Governments, the leader of the single largest party should be given the opportunity. According to some others, the Governor, acting on his own, should summon the Assembly for electing a person to be the Chief Minister. Certain other State Governments have suggested that the person to be appointed as Chief Minister should be chosen or elected by the Legislative Assembly, even if he is the leader of a party which has secured absolute majority. Some of the State Governments consider that the Governor should try to ensure that the Government to be formed will be stable.

4.11.02, it is important to note that, in appointing the Chief Minister, the Governor is required to ensure that the Council of Ministers is collectively responsible to the Legislative Assembly vide Article 164(2). Accordingly in order to continue in office, the Council of Ministers, and not the Chief Minister alone, should continue to have majority support in the Assembly. Also, it is only against the Council of Ministers that a no confidence motion may be moved. We are. therefore, unable to agree with any suggestion which would require a Chief Minister to be elected or chosen by the Legislative Assembly. To ensure strict adherence to the principle laid down by Article 164(2), and fair-play to all the parties in the Legislative Assembly, we suggest as follows :

4.11.03. In choosing a Chief Minister, the Governor should be guided by the following principles, viz.-

(i) The party or combination of parties which commands the widest support in the Legislative Assembly should be called upon to form the Government.

(ii) The Governors task is to see that a Government is formed and not to try to form a Government which will pursue policies which he approves.

Thus, if there is a single party having an absolute majority in the Assembly, the leader of the party should automatically be asked to become the Chief Minister.

4.11.04. If there is no such party, the Governor should select a Chief Minister from among the following parties or group of parties by sounding them, in turn, in the order of preference indicated below :

1. An alliance of parties that was formed prior to the Elections.

2. The largest single party staking a claim to form the Government with the support of others, including -independents".

3. A post-electoral coalition of parties, with all the partners in the coalition joining the Government.

4. A post-electoral alliance of parties, with some of the parties in the alliance forming a Government and the remaining parties, "independents" supporting the Government from outside.

4.11.05. The Governor, while going through the process of selection described above, should select a leader who, in his (Governors) judgment is most likely to command a majority in the Assembly. The Governors subjective judgment will play an important role.

4.11.06. A Chief Minister, unless he is the leader of a party which has absolute majority in the Assembly, should seek a vote of confidence in the Assembly within 30 days of taking over. This practice should be strictly adhered to with the sanctity of a rule of law.

4.11.07. We are firmly of the view that when a number of Members of the Legislative Assembly approach the Governor and contest and claim of the incumbent Chief Minister to continued majority support in the Assembly. The Governor should not risk a determination of this issue, on his own, outside the Assembly. The prudent course for him will be to cause the rival claims to be tested on the floor of the House. Such a procedure will be not only fair but also seen to be fair. It will also save the Governor from embarrassment consequent upon any error of judgment on his part"

38. Learned Solicitor General contended that even now Governor is prepared to appoint a Ministry from a party or group of parties which in combination can form a responsible. Government. He also invited our attention to the report of the Committee of Governors of 1971 where it has been mentioned that it is the Governor alone who has to take a decision as to which person is in a position to command a majority in the Legislative Assembly and to invite him to form the Government. Where a single party commands a majority, Governor is bound to call upon its leader to form the Government. The question of making a choice by the Governor arises when in a general election, no single party obtains a majority of seats in the Legislative Assembly.

39. In the same report the question whether the leader of the largest single party in the Legislative Assembly must be called upon to form the Government by the Governor even without satisfying himself that such leader will be able to command a majority in the Legislative Assembly has been discussed. The answer given therein is that the test for the choice of a Chief Minister is not based necessarily on the strength of a party except when it has a majority of seats in the Assembly. The leader of the largest single party in the House may be invited to head a Government if he is able to satisfy the Governor that in combination with other parties or with the support of other members in the Assembly, he is in a position to command a majority in the Legislature. He has, however, no absolute right as leader of the largest single party or group to claim that he should be entrusted with the task of forming a Government. The relevant test is not the size of a party but its ability to command the support of the majority in the Legislature. It may be that a party, even though leading in relative strength in the Legislature, may not be able to obtain the support of other members. On the other hand, a numerically smaller party may command majority in the House with the help of other parties or groups. The Governor has, therefore, first and essentially to satisfy himself that the person whom he invites to form the Government commands majority support in the Legislature His satisfaction must be based on the informed and objective appraisal of the prevailing situation in the Assembly. For that purpose he may consult the leaders of different parties or groups, in most circumstances it may be necessary for him to do so.

40. On the strength of the above, learned Solicitor General submitted that the Governor acted fairly and objectively and in a non-partisan manner and his action in recommending Presidents Rule cannot be faulted. At any event, learned Solicitor General submitted the Governors discretion cannot be interfered with by this Court merely because it takes a different view. As long as the Governor acted fairly it is not for this Court to say what he should have done and what he should not have done.

We also heard the learned Advocate General of U. P. who broadly endorsed the submissions of the learned Solicitor General, Since the questions arising in this case are of great constitutional importance it is necessary to give a short narration of the origin and development of Parliamentary democracy in Europe, particularly in England and in France because without understanding this historical background it will not be possible to properly appreciate and decide these questions.

SHORT NARRATION OF THE ORIGIN AND DEVELOPMENT OF PARLIAMENTARY DEMOCRACY IN ENGLAND AND FRANCE :

41. The great crisis in the struggle between personal monarchy and Parliamentary Government began with the advent of the House of Stuart to the throne of England in 1603. This was one of the turning points in history. In one of his speeches, James I, who was the author of the Theory of Divine Right of Kings said, "as it is atheism and blasphemy to dispute what God can do, so it is presumptuous, and a high contempt in a subject to dispute what a King can do, or to say that a King cannot do this or that."

42. As Englishmen were by nature tenacious of their rights and blunt in their assertion of them, as they were temperamentally little disposed to accept a role of passive obedience, there was here ample material for contention and contention raged over the whole field of British national life throughout the seventeenth century and was carried into the eighteenth century. It was the Glorious Revolution of 1688 which established that Parliament, not the King, was the supreme power of the State. By the Bill of Rights 1689 the King was forbidden to suspend or violate the laws, to levy taxes or raise troops without the consent of Parliament, or to deny his subjects the full exercise of their rights.

43. This principle of parliamentary supremacy established by the Glorious Revolution in 1688 was rudely shaken by George III who reigned from 1760 to 1820. The historical significance of George III lies in the fact that he was resolved to be the chief directing power in the State and that he challenged the system of Government which gave that position to Parliament and its Ministers. He sought to make the Cabinet a mere tool of his will, filling it with men who would take orders from him, and aiding them in controlling Parliament by the use of various improper means. He appointed Prime Ministers who were not responsible to Parliament but to him personally e.g. Lord Bute and Lord North. This irresponsible behaviour of George III in trying to set back the course of history by denying the principle of Parliamentary supremacy resulted in all sorts of problems in England.

The name of George III", writes an English historian, "cannot be penned without a pang, can hardly be penned without a curse, such mischief was he fated to do the country."

44. After the death of George III in 1820 the result of his disastrous end irresponsible conduct was so obvious to everyone that no one later ever challenged the principle of Parliamentary supremacy in England.

45. It was the greatness of Queen Victoria (who reigned from 1837 to 1801) that she subordinated her will to that of the people, as expressed in the House of Commons. Although she disliked Gladstone and preferred Disraeli, she never hesitated in appointing Gladstone as the Prime Minister whenever do had majority support in the House of Commons (Gladstone was appointed four times as the Prime Minister of England). This constitutional approach was in marked contrast to the irresponsible behaviour of George III, of which reference has already been made above.

46. In France the theory of divine right of Kings was challenged by the great revolutionary writer Rousseau, who propounded the theory of the General Will (Volonte Generale) in his book the Social Contract. According to Rousseau it is not the King but the people who are supreme (See Will Durants The Story of Civilization ; Rousseau and Revolution). The Will of the people was the general Will, and the law was only an expression of this general Will, The great French Revolution of 1789 did away with the feudal system in France and established Parliamentary supremacy in that country also.

47. In our country the Founding fathers while framing the Constitution adopted the Western system of Parliamentary democracy, particularly as practiced in England. Under our Constitution it is the people who are the supreme political authority, as is evident from preamble of the Constitution which reads :

"We, the people of India, having solemnly resolved to constitute India into a Sovereign Socialist Secular Democractic Republic and to secure to all its citizens :

Justice, social economic and political ; Liberty of thought, expression, belief, faith and worship

Equality of status and of opportunity ; and to promote among them all Fraternity assuring the dignity of the individual and the unity and integrity of the Nation......do hereby adopt, enact and give to ourselves this Constitution."

48. It is not necessary to go through all the provisions of the Constitution which show that we have adopted the system of Parliamentary democracy. This has been discussed and considered at great length in various decisions of the Supreme Court which have already been referred to above e.g. Samsher Singh Vs. State of Punjab and Another, . It has been clearly held therein that though the President or Governor is the formal constitutional head of the executive, the real executive powers are vested in the Council of Ministers headed by the Prime Minister, and the President or Governor, as the case may be, has to act in accordance with the advice of the Council of Ministers.

Samsher Singh Vs. State of Punjab and Another, . It has been clearly held therein that though the President or Governor is the formal constitutional head of the executive, the real executive powers are vested in the Council of Ministers headed by the Prime Minister, and the President or Governor, as the case may be, has to act in accordance with the advice of the Council of Ministers.

Samsher Singh Vs. State of Punjab and Another,

. It has been clearly held therein that though the President or Governor is the formal constitutional head of the executive, the real executive powers are vested in the Council of Ministers headed by the Prime Minister, and the President or Governor, as the case may be, has to act in accordance with the advice of the Council of Ministers.

. It has been clearly held therein that though the President or Governor is the formal constitutional head of the executive, the real executive powers are vested in the Council of Ministers headed by the Prime Minister, and the President or Governor, as the case may be, has to act in accordance with the advice of the Council of Ministers.

THE ORIGIN AND DEVELOPMENT OF THE CABINET SYSTEM ;

49. To understand the modern Cabinet system in Britain, and also in India, it is necessary to have brief historical understanding as to how this system arose.

50. In early political society the King was the law-giver, the executor of the law, and the judge. In other words, in his office he combined all three departments of the State ; legislative, executive and judicial, Under William in England, the Great Council was organised to assist the King in this triple duty. This body contained the seed of modern British institutions, for from it has sprung, by almost imperceptible stages of modification and growth, the whole effective organization of the present Govt. of Britain ; Parliament, Cabinet and Law Courts. This Great Council later on became too unwidely for the purpose of intimate relations with the King, and in the region of Henry VI (1422-61) it was virtually superseded by yet another inner circle of councillors, called the Privy Council, which then became the chief executive body of the realm. This special interior council, as Macaulay called it, met the King not in the usual council chamber, but in the "cabinet" or smaller room set apart for the purpose. At the time of the Great Rebellion which broke out in England in 1642 in the reign of Charles (1625-49) the members of the Cabinet were appointed by the King and were responsible to him alone and not to Parliament. However, in the Grand Remonstrance of the year 1641, which was one of the many attempts to stave off an armed convict, it was begged that "Your Majesty will vouchsafe to employ such persons in your great and public affairs, and to take such to be near you in places of trust, as your Parliament may have cause to confide in".

51. Though Parliament won and the King was executed, the Restoration of the Monarchy in 1660 was a reversion to some of the old abuses, and the second stage in the development of the existing executive system was reached in the Glorious Revolution of 1688. By the reigns of William III (1689-1702) and Anne (1702-14), the Cabinet though still unknown to law, had, in fact, become the sole supreme consultative council and executive authority in the State. However, the monarch still the Chairman of this body. It required but one more turn of the wheels of chance to place it beyond the Kings power altogether and to put at its head a Minister, the Prime Minister. This was affected by the accident of the Hanoverian succession on the death of Queen Anne. Sacrificing nationality to religion, the English people preferred a German Protestant to an English Catholic (the son of James II). George I and George II were unable to speak English, and therefore dropped altogether the practice of attending Cabinet Councils, whose Chairmanship then passed to the Chief Minister.

52. The long administration of Robert Walpole (1721-42) gave the Cabinet its basic character and after a period of vagueness fallowing its fall in 1742 and the consequent weakening of the whig power of which George III took advantage to attempt the restoration of royal prerogative, the Cabinet towards the close of the 18th century took permanent shape.

53. However, upto 1832 the Prime Minister was responsible to the King, not to the House of Commons. The modern Prime Minister is essentially a product of the 1832 Reform Act in England, which made the Cabinet responsible not to the King but to the House of Commons (See The British Constitution by Harvey and Bather).

54. The essence of this executive system is that, in the last analysis, the Cabinet is a Committee of Parliament, tending to be, with the advance of democracy a committee of the House of Commons vide Modern Political Constitutions by C. F. Strong.

55. I have narrated the short historical background of the origin and growth of the Cabinet system in connection with the argument of the learned Solicitor General that there cannot exist a legislature without a Cabinet. Learned Solicitor General has relied on the observations of the Supreme Court in Rai Sahib Ram Jawaya Kapur and Others Vs. The State of Punjab, , to the effect that "the Cabinet enjoying as it does a majority in the legislature concentrates in itself the virtual control of both legislative and executive functions, and as the Ministers constituting the Cabinet are presumably agreed on fundamentals and act on the principle of collective the Cabinet are presumably agreed on fundamentals and act on the principle of collective responsibility, the most important questions of policy are all formulated by them." Similarly he relied on the following observations of the Supreme Court in Samsher Singh Vs. State of Punjab and Another,

Rai Sahib Ram Jawaya Kapur and Others Vs. The State of Punjab, , to the effect that "the Cabinet enjoying as it does a majority in the legislature concentrates in itself the virtual control of both legislative and executive functions, and as the Ministers constituting the Cabinet are presumably agreed on fundamentals and act on the principle of collective the Cabinet are presumably agreed on fundamentals and act on the principle of collective responsibility, the most important questions of policy are all formulated by them." Similarly he relied on the following observations of the Supreme Court in Samsher Singh Vs. State of Punjab and Another,

Rai Sahib Ram Jawaya Kapur and Others Vs. The State of Punjab,

, to the effect that "the Cabinet enjoying as it does a majority in the legislature concentrates in itself the virtual control of both legislative and executive functions, and as the Ministers constituting the Cabinet are presumably agreed on fundamentals and act on the principle of collective the Cabinet are presumably agreed on fundamentals and act on the principle of collective responsibility, the most important questions of policy are all formulated by them." Similarly he relied on the following observations of the Supreme Court in Samsher Singh Vs. State of Punjab and Another,

, to the effect that "the Cabinet enjoying as it does a majority in the legislature concentrates in itself the virtual control of both legislative and executive functions, and as the Ministers constituting the Cabinet are presumably agreed on fundamentals and act on the principle of collective the Cabinet are presumably agreed on fundamentals and act on the principle of collective responsibility, the most important questions of policy are all formulated by them." Similarly he relied on the following observations of the Supreme Court in Samsher Singh Vs. State of Punjab and Another,

Samsher Singh Vs. State of Punjab and Another,

Samsher Singh Vs. State of Punjab and Another,

"The initiation of legislation, the maintenance of order, promotion of social and economic welfare, the direction of foreign policy, the carrying on of the general administration of the State are all executive functions."

56. His submission has almost sought to create the impression that the Cabinet controls the House, and it is the Master of the House, rather than its servant.

57. In my humble opinion, if this submission is accepted, it will subvert the entire basis of parliamentary democracy, which ultimately stands for sovereignty of the people. In my opinion, it is the House which is the Master and the Council of Ministers is the servant of the House. This is evident from Article 164(2). The entire basis of democracy is that the people are supreme, and since the people in an entity larger than the Greek city State cannot legislate directly, they legislate indirectly through the body of their elected representatives. In a democracy the people are supreme and all authorities whether legislative, executive or judicial are in the ultimate analysis the servants of the people. To hold otherwise really be putting the cart before the horse.

58. As observed by the Supreme Court in State of West Bengal Vs. Union of India, .

State of West Bengal Vs. Union of India, .

State of West Bengal Vs. Union of India,

.

.

"Legal sovereignty of the Indian nation is vested in the people of India who as stated by the preamble have solemnly resolved to constitute India into a Sovereign Democratic Republic for the objects specified therein."

This is also obvious from the preamble of the Indian Constitution which begins :

"We, the people of India, having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic and to secure to all its citizens........ do hereby adopt, enact and give to ourselves this Constitution."

60. The doctrine of sovereignty of the people is thus clearly enshrined in the preamble to the Constitution, and no manner of doubt can be expressed about it.

61. The observations of the Supreme Court referred to by the learned Solicitor General merely indicate that ordinarily initiation of legislation is done and the policy decisions taken by the Cabinet. However, it is always open to the House to defeat the Bili presented by the Government in the House, and this has very often happened, e.g., the defeat of the Irish Home Rule Bill presented by Prime Minister Gladstone in the House of Commons in 1986 on which issue Gladstone had indeed to resign. In the ultimate analysis the House of Commons is always the superior body and the Cabinet is subordinate to it. In fact the great Prime Minister Winston Churchill very often proudly said ;

"I am a servant of the House of Commons".

62. In this connection Harold Laski, in his Reflections on the Constitution has said The growth of Cabinet power has not meant the reduction of the House of Commons to what may be termed colonial status. If it is true to say that the general direction of the House is determined by the Cabinet, it is equally true to say that the authority of the Cabinet is always tempered by the knowledge that any grave error on its part in estimating what the House of Commons is prepared to accept, may lead to its defeat, or its need to give way. It was the House of Commons which put the seal of ignominious end upon the Balfour Cabinet of 1905, and it was the House of Commons which broke the Chamberlain Government in May 1940."

63. 1 will point out subsequently in this judgment that though normally the legislature cannot perform its ordinary functions without a Cabinet, there cannot be an absolute proposition that the legislature cannot exist at all and can never meet without a Cabinet.

64. Having briefly narrated the historical background of parliamentary democracy and the Cabinet we may now deal with the questions arising in the present case :

IS IT OBLIGATORY ON THE GOVERNOR TO INVITE THE LEADER OF THE LARGEST PARTY IN THE VIDHAN SABHA TO FORM THE GOVERNMENT EVEN IF THAT PARTY DOES NOT HAVE MAJORITY SUPPORT IN THE HOUSE

65. It has been argued by the learned counsels for the petitioners that it was incumbent on the Governor of Uttar Pradesh to have invited the leader of the B.J.P. which was the largest single party to form the Government. It has been urged that since no party had a majority in the House the alternative was to invite the leader of the party which had the largest number of members in the House.

66. I do not agree with this contention. In my opinion under the Constitution it is not incumbent upon the Governor to invite the leader of the largest party which has no majority in the House, unless the members of the House of some other party (or parties) or group either form an alliance with such party or give it outside support, so that in combination or with outside support, the Ministry will be able to survive. It may be immediately noticed that Article 164(2) of the Constitution reads : "The Council of Ministers shall be collectively responsible to the Legislative Assembly of State."

67. The above provision incorporates the principle of ministerial responsibility to the House which was established in England and France after a long, arduous, historical struggle which I have already narrated above. The principle laid down in Article 164(2) is a high constitutional principle which incorporates both the principle of supremacy of the House as well as the principle of ministerial responsibility to the House. Within the constitutional limits it is the House which is supreme. The House consists of members elected by the people and since in a democracy the people are supreme hence the House consisting of elected representatives of the people is supreme, subject to the provisions of the Constitution. The House (whether Parliament or Vidhan Sabha) represents the general will which in a democracy is supreme, subject to constitutional limits.

68. I have already referred above to the Sarkaria Commission report as well as the report of the Committee of Governors of 1971 which have both mentioned that the Governor while going through process of selection described above, should select the leader who, in his judgment is most likely to command a majority in the Assembly.

69. Shri Trivedi, learned senior Advocate submitted that in view of Article 163(1) the Governor has to appoint a Council of Ministers, and when no party has majority support in the House he must invite the leader of the largest single party otherwise it will be violative of Article 163(1). During the course of his argument, we asked him whether a Ministry must be appointed by the Governor even if it is not responsible to the House, and his answer was in the affirmative, on the reasoning that there must be a Council of Ministers as postulated by Article 163(1).

70. In my opinion the contention of Sri Trivedi, if accepted, would be reverting to the era of George III, it would be reversing the entire march of history and the human race towards democracy, and it would be in violation of Article 164(2) of the Constitution. In my opinion Article 163(1) cannot be read in isolation, it has to be read alongwith Article 164(2). If Shri Trivedis argument is accepted, it will lead to strange results. Take for example the case of a legislature having 100 members Suppose there are 20 parties, and the largest party has only 10 members! Then, according to Sri Trivedis argument, the leader of that largest party must be invited to form Government even if all the other 90 members openly express their opposition to that patty. Surely that cannot be called a Ministry responsible to the House.

71. Sri Trivedi urged that after the recent elections to the State Legislature a popular Government had to be established. In my opinion we should not use such an emotional and vague expression as Popular Government. The exact words of Article 164(2) are The Council of Ministers shall be collectively responsible to the Legislative Assembly. Hence instead of using the words. Popular Government we should have used the exact language of Article 164(2), i.e. Council of Ministers responsible to the House. The use of such exact language will obviate any misunderstanding which may arise in this connection. Since the Council of Ministers has to be responsible to the House, obviously the Governor will be violating Article 164(2) if he appoints a Council of Ministers which is not likely to be responsible to the House. A very recent example is the appointment of the B.J.P. Government in the Centre which collapsed in about 13 days.

72. Sri S. C. Misra invited our attention to the decision in S.R. Bommai and others Vs. Union of India and others etc. etc., . He particularly referred to paras 120 and 391 of the said decision. In paragraph 120 of the said decision it was observed by the Supreme Court what is to be ascertained is whether the Governor had proceeded legally and explored all possibilities of ensuring a constitutional Government in the State before reporting that the constitutional machinery had broken down. Even if this meant installing the Government belonging to a minority party, the Governor was duty-bound to opt for it so long as the Government could enjoy the confidence of the House."

S.R. Bommai and others Vs. Union of India and others etc. etc., . He particularly referred to paras 120 and 391 of the said decision. In paragraph 120 of the said decision it was observed by the Supreme Court what is to be ascertained is whether the Governor had proceeded legally and explored all possibilities of ensuring a constitutional Government in the State before reporting that the constitutional machinery had broken down. Even if this meant installing the Government belonging to a minority party, the Governor was duty-bound to opt for it so long as the Government could enjoy the confidence of the House."

S.R. Bommai and others Vs. Union of India and others etc. etc.,

. He particularly referred to paras 120 and 391 of the said decision. In paragraph 120 of the said decision it was observed by the Supreme Court what is to be ascertained is whether the Governor had proceeded legally and explored all possibilities of ensuring a constitutional Government in the State before reporting that the constitutional machinery had broken down. Even if this meant installing the Government belonging to a minority party, the Governor was duty-bound to opt for it so long as the Government could enjoy the confidence of the House."

. He particularly referred to paras 120 and 391 of the said decision. In paragraph 120 of the said decision it was observed by the Supreme Court what is to be ascertained is whether the Governor had proceeded legally and explored all possibilities of ensuring a constitutional Government in the State before reporting that the constitutional machinery had broken down. Even if this meant installing the Government belonging to a minority party, the Governor was duty-bound to opt for it so long as the Government could enjoy the confidence of the House."

73. Similarly in para 391 it was observed "The constitution does not create an obligation that the political party forming the ministry should necessarily have a majority in the Legislature. Minority Governments are not unknown. What is necessary is that the Government should enjoy the confidence of the House."

74. On the strength of the above observations in Bommais case (supra), Sri Misra urged that the B.J.P. should have been invited to form the Government even though it was in a minority. In my opinion Sri Misra has misunderstood the above observations of the Supreme Court. When the Suureme Court observed that even a minority Government can be appointed what was meant was that a minority Government which is supported by members of some other parties or group can be appointed provided that together they form a majority.

75. To illustrate, the Chandra Shekhar Government in the Centre had only about 65 members in the Lok Sabha which consists of 542 members. However, since the leader of Congress Party Sri Rajiv Gandhi announced support to Sri Chandrashekhar, the President validly appointed Sri Chandrashekhar as Prime Minister because he had outside support which enabled his Ministry to survive. Another example was the Mayawati Government which was given outside support by the B.J.P. in the State Legislature. This position becomes obvious if we notice that in both Paras 120 and 391 of Bommais case it was held by the Supreme Court that what is necessary is that the Government should enjoy the confidence of the House.

76. ft may be noticed that there is no specific provision in the Constitution that the leader of the largest party in the House must be invited to form the Government. The relevant provision is Article 164(2) which states that the Council of Ministers shall be collectively responsible to the House.

77. Sri S. C. Misra urged that even though there may not be a specific constitutional provision for appointing the leader of largest party it was a convention which had to be followed. In this connection two questions immediately arise :

(i) Whether in fact there is such a convention that the leader of the largest party, even if it is in minority, must be invited to form a Government :

(ii) Even if there is such a convention whether it will prevail in view of the specific provision in Article 164(2)

78. In my opinion no contention can override a specific provision of the Constitution. A convention can supplement a constitutional of an Article are clear not withstanding any relevant convent on effect will no doubt be given to the words" Since there is a in Article 164(2) which state that the Council of Ministers shall be collectively responsible to the House, in my opinion no convention can prevail over this clear and specific provision. Hence in my opinion even If factually there is such a convention it will be illegal in view of Article 164(2).

79. However, we may also deal with the contention of Sri S.C. Misra that there is in fact such a convention. Sri Misra submitted hat it was well settled that there was a convention for appointing he largest single party and in this connection he referred to paras 30, 31, 32 and 34 of the writ petition of Sri Lalji Tandon. In paragraph 32 it has been stated that the President of India had invited Sri Atal Behari Bajpai, the leader of the B J.P,, to form the Government at the Centre instate of the fact that no other political party had professed to support his Government. In para 34 it has been stated that when the Government run by Sri Morarji Desai fell the then President of India, Sri Neelam Saniiva Reddy first invited Sri Y. B. Chawan to form the Govenment and on his refusal the Present of India invited Sri Charan Singh to form the Government, He also referred to the Narasimha Rao Government which initially was a minority Government,

80. In order to decide this question it is necessary, in my opinion to first examine what exactly is a convention. opinion,

81. In British Constitutional Law it is accepted that example or procedure do not necessarily amount to a convention. According to Sir Ivor Jennings, in order to find out whether there is a convention :

"We have to ask ourselves three questions : first, what are the precedents : secondly did the actors in the precedents believe that they were bound by a rule, and thirdly, is there a reason for the rule A single precedent with a good reason may be enough to establish the rule. A whole string of precedents without such a reason will be of no avail unless it it is perfectly certain that the persons concerned regard them as bound by it."

82. The above statement has been quoted with approval by the Supreme Court in Supreme Court Supreme Court Advocates-on-Record Association and another Vs. Union of India, .

Supreme Court Advocates-on-Record Association and another Vs. Union of India, .

Supreme Court Advocates-on-Record Association and another Vs. Union of India,

.

.

83. Thus all examples and precedents do not automatically become conventions. The second test mentioned by Ivor Jennings is particularly important : the actors in the precedents must believe that they are bound by a rule.

84. We may consider two examples. The Queen of England regards as obligatory on her to appoint as Prime Minister the leader of the party in the House of Commons which has majority support. There is no written rule or law in England to this effect, but this principle is now so well established that the Queen, who is certainly one of the persons who operates the Constitution in England, regards it as binding on her. Hence it is a convention. Another example which may be given is about the convention that the person recommended by the Chief Justice of the High Court will ordinarily be appointed as Judge of the High Court, although there is no specific provision in the Constitution or Government of India Act 1935 to this effect. This convention was well established until it was rudely shaken in the 1970 when names started being sent from Delhi by political authorities for appointment as High Court Judges. In this connection reference may be made to the autobiography of Mr. Justice Hidayat Ullah, former Chief Justice of India My Own Boswell. Justice Hidayat Ullah wrote in this boot that when he was Chief Justice of Madhya Pradesh High Court the then Chief Minister of the State, Dr. Kailash Nath Katju met him and told him that any name recommended by the Chief Justice was acceptable to him. If however, he received a complaint about anyone recommended by the Chief Justice he would send the complaint to the Chief Justice and if after considering the complaint the Chief Justice still thought that the person should be appointed as a Judge the Chief Minister would have no objection. Here we see that both the Chief Justice as well as the Chief Minister, who were working the constitution, regarded the convention that the nominee of the Chief Justice should ordinarily be appointed as a Judge, as binding on them, although there was no specific provision anywhere to this effect in the Constitution. Hence it was a convention.

85. Thus in order to be a convention the persons who operate the Constitution must regard it as binding on them. Considering the matter from this angle, the question arises whether the persons who work the constitution regard it as obligatory to invite the largest single party to form the Government even if it is in the minority and has no support of any other party or group. The question has to be answered in the negative. The few examples by Sri Misra where minority Governments were appointed, would not in my opinion make it a convention because the precedents given by him have not hardened into a convention and in fact have been often breached. Hence I hold that there is no convention in this country that the leader of the largest party even if in minority must be invited to form the Government, even if he has no support from other parties.

86. In this connection it may be added that Loveland in his Constitutional Law observes "There is neither a legal nor a conventional basis for the claim that the leader of the largest single party has any immediate entitlement to a favourable exercise of the personal prerogatives." Similarly, Rodney Brazier in his article Choosing a Prime Minister" (Published in the book entitled Public Law) writes that a sitting Prime Minister should not be allowed to continue in office after an election even if his party has the largest number of seats, but not a majority in to House if there is antagonism towards him or his party or both from the other parties.

87. In the light of the above discussion I am of the opinion that the Governor did not act improperly or unconstitutionally in not inviting the Bhartiya Janta Party to form a Government in the State. The Governor was perfectly correct in insisting that he will only appoint a Govt. which is responsible to the House. In may opinion the Governor of the State was faced with a difficult situation when there was no party in majority in the house. No doubt the B.J.P. was the largest single party but the Governor found that the other parties were hostile and opposed to it and openly expressed their opinion to this effect. As correctly submitted by the learned Solicitor General, the largest party if not having majority support in the House cannot be appointed when other parties openly express their antagonism and opposition to it. It would be in violation of Article 164(2) of the Constitution to appoint such a Government. In the present case the non-B. J. P. parties had openly expressed their opposition to it and hence the Governor in my opinion acted rightly in not appointing the leader of the B.J. P. to form a Government. Even when the hearing of the case was going on. on 5-12-1996 the Governor gave statement that he is still prepared to invite any party which either alone or with support of other party or parties, groups or individuals can have majority support in the House to form the Government. In my opinion, This approach of the Governor in not inviting any one to form a Government who is not likely to have confidence of the House is proper, valid and correct and in accordance with Article 164(2) of the Constitution.

CAN THERE BE A LEGISLATURE WITHOUT A CABINET:

88. Learned Solicitor General has argued that there can be no legislature without a Cabinet. He submitted that it is the Cabinet which initiates legislation and decides policy matters, as held in Ram Jawayas case (supra) and Samsher Singhs case (supra). Learned Solicitor General further submitted that on the Proclamation of Presidents Rule under Article 356(1) the executive powers of the State are taken over by the President, and it is inconceivable that without executive power the State can exercise its legislative powers. He submitted that when the power under Clause (a) of Article 356(1) is exercised the power under Clause (b) has also necessarily to be exercised. He mentioned that in the past this has always been done except on three occasions. He contended that under the Proclamation of Presidents Rule, the President can either dissolve the State Assembly or suspend it, but there is no third option. The learned Solicitor General has also relied on the observation in paragraph 436 of Bommais case in summary of conclusion where it has been mentioned in conclusion (4) that:

"There is no room for holding that the President can take over some of the functions and powers of the State Government while keeping the State Government in office. There cannot be two Governments in one sphere."

He submitted that the observations to the contrary in the decision of Honble Sawant, J. and Honble Kuldip Singh, J. are the views of the minority and cannot prevail over the observation of Honble Jeevan Reddy, J. quoted above which is the majority view.

89. In my humble opinion, it is really not necessary to consider in this case whether the State legislature can perform its normal functions without a Cabinet or not. What we have to decide in this case is whether the Governor really exercised all his options before recommending Presidents Rule.

90. Even if the normal functioning of the State legislature may be impossible without a Cabinet, we have yet to consider whether the legislative assembly can meet for the limited purpose of deciding as to in which person it has confidence for the purpose of Article 164(2), in a situation like the present one where the Governor is unable to decide this matter. Thus in my humble opinion, the learned Solicitor General really misses the point which we have put to him repeatedly in this case. We are not here concerned with the normal functioning of the legislature, we are concerned with the meeting of the Assembly to decide in whom it has confidence.

91. In my humble opinion, the Legislative Assembly not only can meet but has to meet in such a situation like the present one where the Governor is unable to decide in whom the Assembly has confidence. For that limited purpose at least the Governor must summon the Legislative Assembly under Article 174(1) of the Constitution and send it a message under Article 175(2). I will deal with the matter in greater detail subsequently in this judgment.

THE ROLE OF THE GOVERNOR :

92. Under our Constitutional scheme, the Governor is like the British King. He is the formal and Constitutional head of the executive, though the real executive powers ere with the Cabinet on whose aid and advice he must ordinarily act, vide Samsher Singh Vs. State of Punjab and Another, .

Samsher Singh Vs. State of Punjab and Another, .

Samsher Singh Vs. State of Punjab and Another,

.

.

93. However, as observed by Krishna Iyer, J. (in paragraph 154) there are certain exceptional situations where the Governor may act on his own initiative. One of these exceptional situations is the choice of the Chief Minister, restricted though this choice is by the paramount consideration that he should command a majority in the House.

94. Thus while ordinarily the Governor has a passive role under our Constitution inasmuch as the real executive functions are performed by the Council of Ministers, in exceptional situations he has an active role. One of such exceptional situations is where there is hung Assembly after an election. In this situation he must interview leaders of different parties and individual members of the legislature in order to find whether a stable Government can be formed by a coalition or group. In this exercise he must act totally impartially. He must neither be, nor seen to be, partisan. If this effort fails the only alternative left for him short of dissolution, is to summon the Assembly and ask its opinion. We shall discuss this aspect later in this judgment,

95. Since the Governor has been compared to the British King, it would be of some interest to note that among our ancient thinkers the ideal of Kingship was that the King should be a Rajarshi (a royal sage) like Platos Philosopher-King vide History Dharamshastra, by P. V. Kane, Vol. 3 page 52. Kalidasa frequently speaks of this e.g., in Shakuntala II. 14 and Raguvansha 1.58. In the Arthashastra 1.19 Kautilya declares :

^^iztklq[ks lq[ka jkK% iztkuka p fgrs fgre~**

^^iztklq[ks lq[ka jkK% iztkuka p fgrs fgre~**

which means "In the happiness of the people ties the Kings happiness, in their welfare lies his welfare."

96. In the Ramayan 11.2. 28-47 and V. 35. 9-14 the virtues of Prince Rama are set out in great detail, where it is said that Rama behaved like a further to the people (II. 2. 39), that he sympathised with the people in their sorrows, and was pleased like a father when the subjects celebrated festivals :

^^fuf[kysukuwiwO;ka p firk iq=kfuoksjlku~ A

^^fuf[kysukuwiwO;ka p firk iq=kfuoksjlku~ A

kqJw"kUrs p o% fk";k% dfPpn~ oeZlq nafkrk% AA

kqJw"kUrs p o% fk";k% dfPpn~ oeZlq nafkrk% AA

bfr o% iq:"kO;kkz% lnk jkeksafHkHkk"krs A

bfr o% iq:"kO;kkz% lnk jkeksafHkHkk"krs A

O;lus"kq euq";k.kka Hk`ka Hkofr nq%f[kr% AA

O;lus"kq euq";k.kka Hk`ka Hkofr nq%f[kr% AA

mRlos"kq p losZ"kq firso ifjrq";fr A

mRlos"kq p losZ"kq firso ifjrq";fr A

97. Though no doubt these ideals are not directly applicable in describing the role of the Governor under our Constitution, they do go to indicate, particularly since we are Irving in a democracy, that while exercising his discretionary powers the Governor must always think of the interest of the people.

PRINCIPLES OF INTERPETING THE CONSTITUTION :

98. Before proceeding further it is necessary to consider the principles of interpretation of Constitutional provisions.

99. In this connection it may be mentioned that there are two methods of interpreting a Constitution. The first method is to treat the Constitution as an ordinary statute and to apply to it all the ordinary rules of statutory construction. Under such a process, legal positivism prevails over the juristic philosophy which underlies the Constitutional document. The second method is to recognise the Constitution as an organic instrument, apart from and superior to the ordinary statute enacted by the legislature, vide decision of the U. S. Supreme Court in McCulloch v. Maryland, (1819) 17 US 316.

100. It is now universally accepted that the second method is the correct method of interpreting a Constitution, because it is a living and organic document and "is intended to endure for ages to come, and consequently to be adopted to the various crises of human affairs", vide McCulloch v. Maryland (supra). As Chief Justice Marshall observed, the Constitution is not a tightly drawn legal document like a title deed to be technically construed ; it is rather a matter of "great outlines", broadly drawn for an unknown future.

101. Roscoe Pound in his book Law Finding Through Experience And Reason states:

"The Constitution is not a glorified police manual. Constitutional provisions lay down great principles to be applied as starting points for legal and political reasoning in the progress of society. A Constitution may lay down hard and fast rules such as, for example, those fixing the exact terms of office and apportioning duties among public functionaries. But the principles established by the Constitution are not to be interpreted and applied strictly according to the literal meaning of words used by the framers as if they laid down rules. Interpretation of Constitutional principles is a matter of reasoned application of rational precepts to conditions of time and place."

102. In Weems v. U.S. (1909 54 L Ed. 793 (801), the U.S. Supreme Court observed ;

"Legislation, both statutory end Constitutional, is enacted, it is true, from an experience of evils, but its general language should not, therefore, be necessarily confined to the form that evil had therefore taken. Time works changes, brings into existence new conditions and purposes. Therefore, a principle, to be vital, must be capable of wider application than mischief which gave it birth. This is peculiarly true of Constitutions. They are, to use the words of Chief Justice Marshall, designed to approach immortality as nearly as human institutions can approach it." The future is their care, and provisions for events of good and had tendencies of which no prophecy can can be made. In the application of a Constitution, therefore, our contemplation cannot be only of what has been, but of what may be. Under any other rule a Constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little value, and be converted by precedent into impotent and lifeless formulas. Rights declared in the words might be lost in reality. And this has been recognised. The meaning and vitality of the Constitution have developed, against narrow and restrictive construction."

103. Similarly in Missouri v. Holland (1919) 252 US 416, the U.S. Supreme Court observed :

"When we are dealing with words that also are constituent act, like the Constitution of the U.S., must realise that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters."

104. In this connection Justice Frankfurter while Professor at Harvard University said :

"The Constitution of the United States is not a printed finality but a dynamic process : its application to the actualities of Government is not a mechanical exercise but a function of statecraft. From generation fresh vindication is given to the prophetic wisdom of the framers of the Constitution in casting it in terms so broad that it has adoptable vitality for the drastic changes in our society which they knew to be inevitable, even though they could not foresee them. The Constitution cannot applied in disregard of the external circumstances in which men live and move and have there being."

105. Similarly Justice Cardozo in his book. The Nature of Judicial Process states :

"A Constitution states or ought to state not rules for the passing hour, but principles for an expanding future."

106. We must keep the above principles of interpretation in mind while examining the relevant constitutional provisions.

HAVE ARTICLES 356(1) AND 356(5) BEEN VIOLATED BY THE IMPUGNED PROCLAMATION:

107. It has been strongly contended by all the learned counsels for the petitioners that Article 356(5) has been violated because the impugned Proclamation in substance extends Presidents Rule beyond one year which is specially barred by Article 356(5). Learned counsels submitted that there was neither any emergency nor certification by the Election Commission and hence Presidents Rule could not be validly extended beyond one year. Learned counsels submitted that the impugned Proclamation was in colourable exercise of power of the President and was unconstitutional, and they relied upon the decisions in K.C. Gajapati Narayan Deo and Others Vs. The State of Orissa, P. Vajravelu Mudaliar Vs. Special Deputy Collector, Madras and Another, , State of Punjab v. Gurdial Singh 1980 (3) SCC 471 etc.

K.C. Gajapati Narayan Deo and Others Vs. The State of Orissa, P. Vajravelu Mudaliar Vs. Special Deputy Collector, Madras and Another, , State of Punjab v. Gurdial Singh 1980 (3) SCC 471 etc.

K.C. Gajapati Narayan Deo and Others Vs. The State of Orissa,

P. Vajravelu Mudaliar Vs. Special Deputy Collector, Madras and Another, , State of Punjab v. Gurdial Singh 1980 (3) SCC 471 etc.

P. Vajravelu Mudaliar Vs. Special Deputy Collector, Madras and Another, , State of Punjab v. Gurdial Singh 1980 (3) SCC 471 etc.

P. Vajravelu Mudaliar Vs. Special Deputy Collector, Madras and Another, , State of Punjab v. Gurdial Singh 1980 (3) SCC 471 etc.

P. Vajravelu Mudaliar Vs. Special Deputy Collector, Madras and Another,

, State of Punjab v. Gurdial Singh 1980 (3) SCC 471 etc.

, State of Punjab v. Gurdial Singh 1980 (3) SCC 471 etc.

108. In my opinion ordinarily a fresh Proclamation under Article 356(1) after the expiry of one year of Presidents Rule would amount to a subterfuge and hence it has to be declared unconstitutional because it is settled law that a constitutional authority cannot do indirectly what it is not permitted to do directly, vide Dr D.C. Wadhwa and Others Vs. State of Bihar and Others, . However, learned Solicitor General submitted that the impugned Proclamation dated 17-10-1996 was not a subterfuge and device because it was issued in view of an extraordinary situation. This situation was that in the recent Legislative Assembly elections no party had a majority in the House, nor could even a coalition of parties emerge so as to be responsible to the House. He submitted that we cannot consider Article 356(5) in isolation but we have to read it alongwith Article 164(2) which says that Council of Ministers shall be responsible to the House.

Dr D.C. Wadhwa and Others Vs. State of Bihar and Others, . However, learned Solicitor General submitted that the impugned Proclamation dated 17-10-1996 was not a subterfuge and device because it was issued in view of an extraordinary situation. This situation was that in the recent Legislative Assembly elections no party had a majority in the House, nor could even a coalition of parties emerge so as to be responsible to the House. He submitted that we cannot consider Article 356(5) in isolation but we have to read it alongwith Article 164(2) which says that Council of Ministers shall be responsible to the House.

Dr D.C. Wadhwa and Others Vs. State of Bihar and Others,

. However, learned Solicitor General submitted that the impugned Proclamation dated 17-10-1996 was not a subterfuge and device because it was issued in view of an extraordinary situation. This situation was that in the recent Legislative Assembly elections no party had a majority in the House, nor could even a coalition of parties emerge so as to be responsible to the House. He submitted that we cannot consider Article 356(5) in isolation but we have to read it alongwith Article 164(2) which says that Council of Ministers shall be responsible to the House.

. However, learned Solicitor General submitted that the impugned Proclamation dated 17-10-1996 was not a subterfuge and device because it was issued in view of an extraordinary situation. This situation was that in the recent Legislative Assembly elections no party had a majority in the House, nor could even a coalition of parties emerge so as to be responsible to the House. He submitted that we cannot consider Article 356(5) in isolation but we have to read it alongwith Article 164(2) which says that Council of Ministers shall be responsible to the House.

109. Learned Solicitor General asked what could the Governor have done in this situation. Could he have invited a leader of a party to form a ministry which would not have the confidence of the House That, according to him, would surely be violative of Article 164(2) of the Constitution. It has been observed in Bommais case (supra) that when after an election no party or group of parties could have the confidence of the House, it amounted to breakdown of the constitutional machinery (vide para 218).

110. Learned Solicitor General invited our attention to the Reports of the Governor dated 15-10-1896 and 16-10-1996. He pointed that in these reports the Governor clearly mentioned that no party had been able to show to him that it had majority support in the House, and it was only it a party was invited to form the Government that by horse trading and engineering defection it could have a majority. The Governor waited till the last day but no party or group could show that it, would have a majority in the House.

111. In my opinion to the extent that the Governor was against horse trading his action was correct and in consonance with the spirit of the 10th Schedule to the Constitution. As held by the Supreme Court in Shri Kihota Hollohon Vs. Mr. Zachilhu and others, , "Unprincipled defection is a political and social evil.-The anti-defection law seeks to recognize the practical need to place the proprieties of political and personal conduct-whose awkward erosion and grotesque manifestations have been the bone of the times- above certain theoretical assumptions which in reality have fallen into a morass of personal and political degradation."

Shri Kihota Hollohon Vs. Mr. Zachilhu and others, , "Unprincipled defection is a political and social evil.-The anti-defection law seeks to recognize the practical need to place the proprieties of political and personal conduct-whose awkward erosion and grotesque manifestations have been the bone of the times- above certain theoretical assumptions which in reality have fallen into a morass of personal and political degradation."

Shri Kihota Hollohon Vs. Mr. Zachilhu and others,

, "Unprincipled defection is a political and social evil.-The anti-defection law seeks to recognize the practical need to place the proprieties of political and personal conduct-whose awkward erosion and grotesque manifestations have been the bone of the times- above certain theoretical assumptions which in reality have fallen into a morass of personal and political degradation."

, "Unprincipled defection is a political and social evil.-The anti-defection law seeks to recognize the practical need to place the proprieties of political and personal conduct-whose awkward erosion and grotesque manifestations have been the bone of the times- above certain theoretical assumptions which in reality have fallen into a morass of personal and political degradation."

112. However, with due respect to the Governor, where he went wrong was in not realising that Presidents Rule is the last resort, as Bommais case points out, (vide paragraphs 109, 120 and 383). After refusal to call the B.J.P. or any other party on the ground that it could not establish that it had majority support in the House (whether singly or with support of any other party or parties), the Governor should have sent a message to the House under Article 175(2) after summoning it under Article 174(1). In this message he should have informed the House that despite his best efforts he was unable to find out as to who is the person who can command the confidence of the House, and hence the House itself should inform him about such person, The Governor in this message should have asked the House to assemble and decide within a reasonable period of time about this matter and then inform him, In this message the Governor could have also warned the House that if it did not make up its mind within a reasonable period of time the House may have to be dissolved. Such warning is permissible in view of Bommais case.

113. She Floor Test in Bommais case may not be directly applicable to the facts of this case because in Bommais case there was a duly constituted ministry which later lost the confidence of the House because of a split, whereas in the present case there was no duly constituted ministry at all. However the, Floor Test in Bommais case is still to my mind relevant to the extent that it indicates that where the Governor is unable to decide the matter the democratic form of decision to choose the Government must be in the Assembly itself. This view gets support from the following observation of the Supreme Court in S.P. Anand Vs. H.D. Deve Gowda and others, . "Therefore, even though the Prime Minister is appointed by the President after he is chosen by such number or members of the House of the People as would ensure that he has the confidence of the House and would be able to command the support of the majority-

S.P. Anand Vs. H.D. Deve Gowda and others, . "Therefore, even though the Prime Minister is appointed by the President after he is chosen by such number or members of the House of the People as would ensure that he has the confidence of the House and would be able to command the support of the majority-

S.P. Anand Vs. H.D. Deve Gowda and others,

. "Therefore, even though the Prime Minister is appointed by the President after he is chosen by such number or members of the House of the People as would ensure that he has the confidence of the House and would be able to command the support of the majority-

. "Therefore, even though the Prime Minister is appointed by the President after he is chosen by such number or members of the House of the People as would ensure that he has the confidence of the House and would be able to command the support of the majority-

114. Learned Solicitor General contended that it is not for this Court to sit in appeal over the decision of the Governor and to decide what he should not have done. In my opinion we are not acting as a Court of Appeal at all. We are examining a matter of high constitutional importance and are deciding whether the Governor should act on the wishes of the Assembly or not. This is not a case where an administrative order is being tested. As regards a purely administrative order, it is no doubt true that this Court does not sit in appeal over it but this is not a purely administrative matter, it is a matter of high constitutional importance, and we are not sitting in appeal over any decision taken by the Governor because the Governor has not in fact taken any decision at all.

115. If despite being given sufficient time to assemble and decide the matter the Assembly is still unable to make up its mind as who has its confidence then of course action could have been taken under Article 356. However, in the present case that stage was not even allowed to arrive. The Assembly was not even allowed to meat and discuss the matter even once, although elections were only recently held. I fail to understand how this could be regarded as democratic.

116. In view of the above discussion. I am of the view that both Articles 356(1) and 356(5) have been violated by the impugned-Proclamation.

THE POLITICAL SITUATION IN U. P. AT PRESENT :

117. The political situation in U. P. is that the results of the U. P. Legislative Assembly were declared as far back as on 10-10-1996 but as yet the M.L.As. have not been given oath nor have they been allowed to meet in view of the impugned Proclamation. Thus two months have expired from the election but the stalemate is continuing. A triangular configuration is existing consisting of three political groups, no two of which have as yet been able to come together.

118. The impasse is continuing and there is talk of dissolution of the Assembly in some quarters.

119. The Supreme Court has observed in Bommais case that frequent elections must be avoided in our country as it is too poor to afford them. Moreover, the experience of the Weimar Republic in Germany has shown that frequent elections was one of the causes of Hitlers coming into power. The Supreme Court in Bommais case observed (paragraph 223) :

"Frequent elections would belie the peoples belief and faith in the parliamentary form of Government, apart from the enormous election expenditure to the State and the candidates. It also generates disbelief in the efficacy of the democratic process which is a death-Knell for the parliamentary system itself."

The decision of the Kerala High Court in K.K. Aboo Vs. Union of India (UOI) and Others, , totally overlooks this aspect of the matter.

K.K. Aboo Vs. Union of India (UOI) and Others, , totally overlooks this aspect of the matter.

K.K. Aboo Vs. Union of India (UOI) and Others,

, totally overlooks this aspect of the matter.

, totally overlooks this aspect of the matter.

120. The situation in U. P. is fraught with danger. I can understand the Governor not inviting any party or group to form the Government because he could not find any one who could command the confidence of the House. But I simply cannot understand why the M.L.As. who were elected have not as yet been given oath under Article 188 of the Constitution, and why the Assembly was not permitted to meet even for the limited purpose of informing the Governor as to the person in whom it has confidence. In my opinion, the refusal to give oath to the elected representatives of the people and refusal to allow them to even meet at least for this limited purpose is wholly undemocratic and for the reason I shall give presently, in violation of Article 164(2) of the Constitution. One is reminded of the famous Tennis Court Oath taken on 20th June, 1789 by the deputies to the Estates General during the French Revolution when they were not allowed to meet in the Assembly Hall by Louis XVI. Surely we cannot allow such a situation to develop.

WHAT SHOULD THE GOVERNOR HAVE DONE IN THIS SITUATION :

121. Learned Solicitor General has rightly pointed out that it is the Governor who appoints the Council of Ministers and not the Assembly. This is evident from Article 164(1) of the Constitution. However, the question immediately arises whether the Governor can act in his absolute discretion and appoint whom ever he chooses, or is there some limitation on his power. This question can immediately be answered by referring to Article 164(2) which says that the Council of Ministers shall he collectively responsible to the Legislative Assembly of the State. Thus the Governor has really no discretion in the matter; he must appoint the Ministry which has or is likely to have, the confidence of the House and he cannot appoint otherwise. Thus the person to be appointed as the Chief Minister must be one having the confidence of the House, and not the confidence of the Governor. The formal appointment no doubt is done by the Governor but the person to be appointed as the Chief Minister must be the person who has or is likely to have the confidence of the House.

122. No doubt, in actual practice once general elections are held to the State Assembly, it is the Governor who initiates the process "of selecting the Chief Minister and for the purpose he can have consultations with leaders of political parties, etc. However, it must always be kept in mind that the person selected must be a person who has, or is likely to have, the confidence of the House, and not the confidence of the Governor, otherwise we will be reverting to the era of the George III.

123. We may consider three situations :

(a) Where a party has absolute majority in the House :

124. In this situation the Governor has no choice at all and ho must appoint the leader of the legislature party having a majority in the House as the Chief Minister.

(b) Where no party has absolute majority but a Coalition or alliance has a majority or a minority party hoi outside support so as to give it the. confidence of the House :

125. In this situation also the Governor has no choice. He must appoint the person who has been accepted as the leader of the legislature party or combination of parties having majority support and invite him to form the Ministry- There are several instances of these, e.g., the present Central Government which is a coalition of several parties which with outside support of the Congress Party enables it to service.

(c) A situation like the present one where the Governor is unable to find any one who can have the confidence of the legislative Assembly :

126. When the Governor is unable to find anyone who in his opinion is likely to enjoy the confidence of the House, in my opinion, the only rational and democratic alternative (short of dissolution of the House) is that the Governor should ask the House itself as to in whom does it has confidence. For this purpose, the Governor must summon the House under Article 174 and send a message to it under Article 175(2) informing the Legislative Assembly that he has not been able to find any one who in his opinion is likely to enjoy the confidence of the House, and hence the House itself should inform him as to in whom it has confidence so that the Governor could appoint such a person as the Chief Minister.

127. Learned Solicitor General urged that the Assembly cannot elect the Chief Minister. In my opinion, there is no provision in the Constitution prohibiting the Assembly from doing so. No doubt, the formal appointment of a Chief Minister can only be done by the Governor and not by the Assembly, but surely the Legislative Assembly can decide as to the person in whom it has confidence so that he could be appointed by the Governor as the Chief Minister. With profound respect to the learned Solicitor General I find it strange to say that the Assembly cannot even choose (whether by way of election, consensus or otherwise) a person who will enjoy its confidence. Nothing could be more repugnant to democracy.

128. As I have already stated above, the confidence must be of the Assembly and not of the Governor. If the Governor is unable to find a person in whom, according to him, the Assembly is likely to have confidence, the only legal alternative left for the Governor is to ask the Assembly to inform him as the person in whom it has confidence. Who can be in a better position than the House itself to inform the Governor about the person in whom the House has confidence.

129. Although I have not been able to find any precedent for such a course of action but in humble opinion it is the only rational and democratic alternative left to the Governor when faced with such a situation. I repeatedly asked the learned Solicitor General if he could suggest any other alternative short of dissolution but he could not give any clear and positive reply to this query. To my mind such an impasse cannot be allowed continue indefinitely.

130. Normally the sequence of events after general election will be that the Governor determines who is person likely to enjoy the confidence of the House, and appoints him as Chief Minister and asks him to seek a vote of confidence. However, where the Governor is unable to find someone who is likely to have confidence of the House then the sequence of events has necessarily to be reversed. He must then ask the House to tell him as to whom the House has confidence in, and then appoint such person as Chief Minister.

131. Although this course of action has not been expressly mentioned in the Constitution, in my humble opinion, it logically flows out of Article 164(2), and is the only democratic alternative short of dissolution. In todays era of fractured verdicts it is the only logical method to avoid dissolution.

132. In this connection it may be mentioned that Geoffrey Marshal in his book Constitutional Conventions has said at page 33 "One suggestion recently made is that in such circumstances the Queens choice might be guided by a ballot of all members of Parliament under the superintendence of the Speaker". He goes on to state "It seems safe to predict, however, that such a novel arid adventurous constitutional expedient will not in fact be adopted."

133. In my opinion, we may have to resort to a novel method to provide a solution to the problem with which we are faced. If new things never happened in the world, there would be no progress. The observation of Geoffrey Marshal in my humble opinion lends some authorities to the course of action suggested above. Of course, the Assembly may not decide by ballot but it may decide by consensus or any other method in choosing the person in whom it has confidence. The method is for the Assembly alone to decide.

134. In my opinion, if the elected members are permitted to come together and meet in the House then a Socratic debate (to utilize the expression used by the learned Solicitor General during the course of his arguments before us) will take place and it is possible that a solution may emerge. When two or more persons are sitting separately they may not be able to resolve their differences, but when they come together it is possible that by discussions and negotiations, some compromise may come about. This is the democratic method also. The elected representatives may put pressure on their leaders to give up their intransigent and uncompromising attitude and adopt a more flexible approach, It is also possible that the members may choose from amongst themselves an independent member not belonging to any party who has the confidence of the House because of his eminence and reputation. Alternately they may choose a member of the Legislative Council, or even a person who is not a member of any House (who may be later elected within 6 months). All these are options available to the members once they permitted to meet.

135. Learned Solicitor General stated that we are entering in to the realm of politics which is not permissible to this Court. In my humble opinion, the Constitution is not a purely legal document like the C. P. C. or Cr. P. C. It is a politico-legal document and politics is necessarily involved in operating it.

136. It may be pointed out that France and Italy have witnessed fractured verdicts over several decades in their Parliaments, unlike in British where except on three or four occasions a single party has commanded the majority in the House. Hence the experience of France and Italy in formation of their Governments could have thrown some light on the problem with which we are faced, but unfortunately I am handicapped as despite my best efforts I have not been able to get any literature from those countries. The precedents in England of the split verdicts of 1923, 1929 and 1974 are really not of much help to us, because here we are faced with a unique situation where the Governor is unable to find out anybody in whom the House is likely to have confidence.

137. It is interesting to note in this connection that Article 6 of the Japanese Constitution states. "The Emperor shall appoint the Mime Minister as designated by the Diet". Thus, it is the Diet (the Japanese Parliament) which chooses the Prime Minister. Article 54 of the Japanese Constitution states that when the House of Representatives is dissolved there must be a general election within 40 days of the dissolution, and the Diet must be convened within 30 days from the date of the election.

138. Although we do not have similar provisions in our Constitution, when judicially interpreting it we can borrow from the democratic spirit of the Japanese Constitution.

139. Brian Thompson, in his book "Textbook on Constitutional and Administrative Law", writes "A better solution to this problem would be to remove the power of appointment of the Prime Minister from the sovereign and instead stipulate that the Prime Minister is to be elected by the House of Commons. This is a provision in one think-tanks proposed Constitution for the U. K. Such a provision is more in keeping with the U.K.s form of democracy. The people elect their representative who in turn elect the head of Government" (See publication by Laxman India Pvt. Ltd. New Delhi, 1995 P. 73).

140. Learned Soclicitor General has relied on the following observations of Honble K. Ramaswamy, J. in paragraph 218 of Bommais case (supra),

"Suppose after general elections held, no political party or coalition of parties or groups is able to secure absolute majority in the Legislative Assembly and despite the Governors exploring the alternative, a situation has arisen in which no political party is able to form a stable Government, it would be a case of completely demonstrable inability of any political part to form a stable Government commanding the confidence of the majority members of the legislature. It would be a case of failure of constitutional machinery,"

141. On the strength of the above observation, learned Solicitor General contended that the Governors recommendation and the impugned Presidential Proclamation could not be held to be unconstitutional.

142. I am afraid, I am unable to agree. The very observation referred to by the learned Solicitor General has stated, "and despite the Governors exploring the alternatives." In my opinion this means that the Governor must explore alt the alternative possible and Presidents Rule could only be the last resort, This is clearly stated by several Judges in their judgments in Bommais case. For example, Sawant, J. in paragraph 109 of the aforesaid judgment has quoted with approval Dr. Ambedkars speech and has observed.

"In this connection, we may refer again to what Dr. Ambedkar himself had to say on the subject. We have quoted the relevant extract from his speech in paragraph 77 above. He has expressed the hope there that resort to Article 356(1) would be only as a last measure and before the article is brought into operation, the President would take proper precaution. He hoped that the first thing the President would be do would to issue a mere warning."

Similarly in paragraph 120, Sawant, J. observed :

"What is to be ascertained is whether the Governor had proceeded legally and explored all possibilities of ensuring a constitutional Government in the State before reporting that the constitutional machinery had broken down,

Similarly, Jeevan Reddy, J. in paragraph 393 observed :

"What is important to remember is that recourse to Article 356 should be the last resort for a Governor to seek. Bommais case permits a limited degree of judicial review of the Proclamation under Article 356, and in my opinion the Court can certainly examine whether the Proclamation was the last resort or whether some other option was available.

143. Considering the matter from this angle, could it be said that the Governor had no other resort except to recommend Presidents Rule I have already stated above that the Governor did have no option, that is to summon the House under Article 174 and to send a message to it under Article 175(2) informing the House that he why unable to find someone who, in his opinion, was likely to have the confidence of the House, and therefore the House itself should inform him about the person in whom it has confidence. On receiving information from the House, he should have appointed such a person. However, in the present case, the Governor did not resort to this course of action at all and instead straightaway recommended Presidents Rule. Thus in my opinion, the Governor acted if! en unconstitutional manner and hence the impugned Proclamation dated 17-10-1996 is invalid, and I hereby declare it so.

144. It may be noted that all the election results were out by 10-10-1996 as stated in paragraph 18 of the main counter affidavit of the State Government. The Governor should have realised that only one week was left for Presidents Rule to expire. He should, therefore, immediately have called the leaders of the main political parties and started consultations with them in a serious endeavour to form a stable Government, and if that endeavour failed he should have summoned the House under Article 174 sending a message to it to decide by the midnight of 17th October on a person in whom it had confidence. For this purpose he could have sent a request to the Election Commission to issue the notification u/s 73 of Representation of Peoples Act forthwith (instead of waiting till 17-10-1996), and he could have explained in this letter the urgency of the situation which required immediate convening of the Assembly, and there is no reason to believe that the Election Commission would not have acceded to this request. However, the Governor does not seen to have done any of these things, for reasons best known to himself.

145. What the Governor claims to have done can only be gathered from paragraphs 14 and 29 of the supplementary counter affidavit of the State Government. Paragraph 14 states. "That the Governor, who was authorised by the Presidential notification to discharge power and function under the direction of the President, met various members and political groups to explore possibility of forming a Government. But till 1540-1996 no political group made any claim to form the Government." Similarly paragraph 29 states, "that the statement made in paragraph 25-E of the petition that the Governor did not explore possibility of formation of elected Government is not correct. As has been stated earlier, right from the time the election results were announced all political groups had assembled in Lucknow and it was admitted that no political group had majority support in the House to be able to form the Government. There were dialogues with the leaders of different political parties by the Governor. The Governor throughout explored the possibility that some State Government may be formed, but the efforts did not succeed."

146. In my opinion both paragraph 14 and 29 are vague. It is not clear what exactly did the Governor do between 10-10-1996 and 16-10-1996. There is no mention in these paragraphs as to whom the Governor met between these dates, and what was discussed. The names of the leaders with whom the Governor allegedly had dialogues is not mentioned in paragraphs 14 and 29, and no details have been given therein. In the absence of these details therefore I am constrained to observe that the Governor did not act with the promptness and despatch that the situation required.

147. I would like to make it clear that I am not casting any doubts on the Governor; motives. Perhaps he did not understand the legal position correctly. All that I am saying is that in the situation he was in the Governor should have realised that speed was the the essence of the matter if he was really serious about installing a ministry responsible to the House by 17-10-1996.

148. In this connection it may be mentioned that in Wade and Phillips Constitutional and Administrative Law (9th Edition) it has been observed on p. 224 "Where an election does not produce a conclusive result, ..............the sovereign would have a responsibility to initiate discussions with and between the parties, for example, whether a Government could be formed by a politician who was not a party leader or whether a coalition Government could be formed". Thus, where the election result is inconclusive, the Governor must play an active role in helping install a responsible Government. The question therefore is did the Governor play such an active role in the present case I am afraid the answer has to be in the negative.

149. The Report of the Governor dated 15-10-1996 shows that till that date he did not even meet the Leaders of the major political parties, and he only met the representatives of the Samta Party which is a tiny group having only 2 M.L.As.

150. The Governor should have invited the leaders of the major political parties on the night of 10th October, 1996 or latest by 11th October, so that serious discussions about forming a Government could have begun immediately, and if these discussions failed the House could have been summoned under Article 174 with a request to decide upon the person in whom it had confidence. For this purpose the Governor should have written a letter to the Election Commission explaining the urgency of the situation and requesting for immediate issuance of the notification u/s 73 so that the Assembly could be convened forthwith. Had he made such a request there is no reason to believe that it would not have been accepted by the Election Commission. It seems, however, that the Governor adopted a purely passive role till 16-10-1998. Surely this attitude could not have enabled formation of a stable Government by the 17th October.

151. The Governor, in my opinion, should have reminded himself of the following words in the judgment of Jeevan Reddy J. in Bommais case (vide pare 295) "Since the commencement of the Constitution the President has invoked Article 356 on as many as ninety or more occasions Quite a performance for a provision which was supposed to remain a dead-letter. Instead of remaining a dead letter it has proved to be the death-letter of scores of State Governments and Legislative Assemblies "The anguish of the Learned Judge as expressed in the above statement is explicit enough. Invocation of Article 356 is an extremely serious step, and should not have been resorted to unless a it other avenues were explored. In fact I would go even further and say that even if all avenues had failed and Presidents Rule had to be imposed yet Article 174 should not have been suspended as the Assembly could have met even thereafter at least for the limited purpose of deciding the person in whom it had confidence. As held in Pashupati Nath Sukul and Others Vs. Nem Chandra Jain and Others, , an elected member, who has not taken oath but whose name appears in the notification published u/s 73 of the Representation of Peoples Act, can take part in all non-legislative activities of an elected member. Hence even in such a situation Article 174 should not have been suspended, and after President Rule was imposed the Governor should have summoned the Assembly under Article 174 with a message under Article 175(2) requesting the Assembly to inform him about the person in whom it had confidence. On receipt of this information form the Assembly the Governor should have immediately recommended revocation of Presidents Rule, and on such revocation he should have forthwith appointed such person as the Chief Minister.

Pashupati Nath Sukul and Others Vs. Nem Chandra Jain and Others, , an elected member, who has not taken oath but whose name appears in the notification published u/s 73 of the Representation of Peoples Act, can take part in all non-legislative activities of an elected member. Hence even in such a situation Article 174 should not have been suspended, and after President Rule was imposed the Governor should have summoned the Assembly under Article 174 with a message under Article 175(2) requesting the Assembly to inform him about the person in whom it had confidence. On receipt of this information form the Assembly the Governor should have immediately recommended revocation of Presidents Rule, and on such revocation he should have forthwith appointed such person as the Chief Minister.

Pashupati Nath Sukul and Others Vs. Nem Chandra Jain and Others,

, an elected member, who has not taken oath but whose name appears in the notification published u/s 73 of the Representation of Peoples Act, can take part in all non-legislative activities of an elected member. Hence even in such a situation Article 174 should not have been suspended, and after President Rule was imposed the Governor should have summoned the Assembly under Article 174 with a message under Article 175(2) requesting the Assembly to inform him about the person in whom it had confidence. On receipt of this information form the Assembly the Governor should have immediately recommended revocation of Presidents Rule, and on such revocation he should have forthwith appointed such person as the Chief Minister.

, an elected member, who has not taken oath but whose name appears in the notification published u/s 73 of the Representation of Peoples Act, can take part in all non-legislative activities of an elected member. Hence even in such a situation Article 174 should not have been suspended, and after President Rule was imposed the Governor should have summoned the Assembly under Article 174 with a message under Article 175(2) requesting the Assembly to inform him about the person in whom it had confidence. On receipt of this information form the Assembly the Governor should have immediately recommended revocation of Presidents Rule, and on such revocation he should have forthwith appointed such person as the Chief Minister.

152. Since in my opinion the Governor did not act constitutionally by initiating serious and prompt discussions with the leaders of the major political parties soon after the election results, and did not write to the Election Commission requesting immediate issuance of notification u/s 73, and did not summon the Assembly or the purpose mentioned above, the impugned Proclamation dated 1 /-10-1996, based on his reports, cannot be sustained and it is hereby quashed.

153. In view of the above this writ petition and the connected writ petitions are allowed The Legislative Assembly may now be summoned under Article 174 and the members sworn in as early as possible with a message under Article 175(2) requesting it to meet and deliberate and inform the Governor within a reasonable time as to the person in whom it has confidence, so that he could be appointed as the Chief Minister.

154. Before parting with this case I would like to mention that our Founding Fathers had great faith in democracy, and that is why they provided for a democratic form of Government under our Constitution.

155. In fact we had democratic Governments in India in very ancient times, even before Alexanders invasion. Thus, in the Buddhist text Maha Parinirvana Sutra it is mentioned that when King Ajatashatru of Magadha was planning to attack the Vajjian democracy he sent a messenger to the Buddha for his opinion. Instead of speaking to this messenger, the Buddha said to one of his disciples "have you heard Ananda, that the Vajjians foregather often and frequent the public meetings of their clan So long Ananda, as the Vajjians so foregather, and so frequent, the public meetings of their clan, so long they may be expected not to decline, but to prosper."

156. Similarly, in the Avadana Sataka, a Sanskrit Buddhist text of the second century A.D., it is mentioned that a group of merchants from North India went to the Deccan, and were asked by the King of the Deccan as to who was the King who ruled over North India. The merchants replied

^^nso] dsfpr~ nskk% x.kk/khuk%] ds fpr~ jktk/khuk% bfr%

^^nso] dsfpr~ nskk% x.kk/khuk%] ds fpr~ jktk/khuk% bfr%

which means : "Your Majesty, same areas have democratic Governments, while others are under Kings."

157. These texts show that democracy is nothing new to India.

158. In this transitional era many people have become pessimistic about the democrat: process. No doubt there are many defects in our polity-C3Steism, communalism and corruption being the major ones. But in my opinion with the passage of time these evils will gradually disappear as our citizens become more and more politically conscious and mature and start exerting pressure on their leaders. What the country requires today is more democracy, and not less, and that means educating the masses, raising their cultural level, and involving them actively in the task of national reconstruction.

159. In England, too, at one time there were many evils in politics, as a reading of Dickens Pickwick Papers discloses, Gradually most of these evils were overcome. I am confident that the same will happen in India too.