Gopal Sisodia vs Union of India and Others

V.S. Deshpande, C.J.

(1) Caveat has been entered by the respondents represented by Mr. B. N. Lokur with Mr. M. Chandrasekharan.

(2) This petition under Article 226 of the Constitution seeks the issue of a writ or direction restraining the Union of India and the Lieutenant Governor of Delhi from dissolving the Metropolitan Council, which has been constituted under the Delhi Administration Act,1966. Section 11 of the said Act, which gives this power, is as follows :

"(1)The Administrator shall, from time to time, summon, the Metropolitan Council to meet at such time and places he thinks fit, but six months shall not intervene between. its last sitting in one session and the date appointed for its first sitting in the next session.

(2)The Administration may, from lime to time, (a) prorogue the Metropolitan Council ;(b) with the approval of the President, dissolve the Metropolitan Council."

(3) The main grounds stated in the petition and also orally byMr. Kapur for obtaining the relief prayed for are as follows :(1) That respondent No. 2, Mr. Jagmohan, was not properly appointed as the Administrator of the Union Territory of Delhi and, Therefore, he could not exercise the power u/s 11 of the Delhi Administration Act ; and(2) That respondent No. 2 with the approval of the President of India is intending to dissolve the Metropolitan Council u/s 11 of the Act bona fide.The facts Constituting the alleged bona fides are given in paragraphs22, 23 and 25, which are as below :"22. That the Rajya Sabha Member has to be elected by the Members of Metropolitan Council, the Congress (1) Government cannot in any case win this Rajya Sabha seating ,the present circumstances, as the non-Congress (1) i.e.Janata Government is ruling in Delhi.23. That the Congress (1) Government expected that there will be crossing over and defection in large scale in Delhi as has been in the case of Haryana, Goa, etc. and there wouldn''t arise any need of dissolution, but when it has failed to get defection, it has decided to dissolve the Metropolitan Council otherwise, it would have dissolved with the other 9 State Assemblies.25. It is not out of place to mention here that Shri Jigmohan,Lt. Governor was removed from the post by the JantaGovernment and with the coming in power of the Congress(1) Government, he has been reappointed. The submission of the report for approval of the President is the revengeful action and bona fide intention."

(4) After hearing Mr. Kapur, we did not feel it necessary to call upon the counsel for the respondents to reply. We, however, requested the counsel for the respondents to show us the order of appointment of respondent No. 2 and they have produced before us a copy of the warrant of appointment signed by the President of India Contention (1) :

(5) The warrant of appointment produced by the respondents shows that Mr. Jagmohan was appointed Lt. Governor of Delhi under Article 239(1) of the Constitution by the President of India. Mr. Kapursays that Article 239(1) empowers the President to appoint an Administrator and not a Lt. Governor. This argument is not sustainable because Article 239(1) itself says that the President may govern the Union Territory either himself or through an Administrator to be appointed by him "with such designation as ho may specie". The words in quotation marks show that the President is not bound to call the person who is to administer the Union Territory only by one name ,that is to say, Administrator. It is in pursuance of this power that the President has designated the Administrator of Delhi as the Lt. Governor. Since the appointment of Mr. Jagmohan is precisely according to Article 239(1) the contention that it was bad for any reason is not sustainable.

(6) The word "Administrator", as used in the Delhi Administration Act, is defined in section 2(a) of the said Act. Tins definition" makes it clear that the word is used in the same sense in, which it issued in Article 239, inasmuch as the definition says that the administrator means the Administrator of Delhi appointed by the President under Article 239 of the Constitution. If Article 239(1) itself enables the President to appoint the Administrator with the designation of Lt. Governor, no objection can be taken and the Lt. Governor can ,Therefore, function as an'' Administrator not only under Article 239 but also under the Delhi Administration Act, 1966. The first contention ,Therefore, fails Contention (2) :

(7) It is true that in D.D. Suri Vs. A.K. Barren and Others, , and certain other decisions the Supreme Court has observed that when serious allegations of bona fides are made which need to be answered by the respondents the writ petition should not be dismissed in liming, but the respondents should be called upon to file an affidavit regarding these allegations. In our view, mala fides can be of two distinct kinds. The facts Constituting the mala fides may either be admitted or well known or may be disputed. If the facts are well known and admitted, the question of the respondents traversing these facts cannot arise because no averment of fact by the respondents is necessary at all. We, Therefore, understand the decision of the Supreme Court to apply when facts which are within, the personal knowledge of the petitioner and which are not admitted by the respondents and which also relate to something personal alleged against the respondents which need a reply from the respondents. In the present case, the allegations of bona fides are based on two facts. Firstly ,the Congress (1) party has won the January, 1980 election''s to Parliament from the Union Territory of Delhi. Secondly, Mr.Jagmohan, who was the Vice-Chairman of the Delhi Development Authority was suspended by the Janata Government which came to power after the March, 1977 elections, but was never removed, thought is the removal which has been alleged in the writ petition. Both these allegations are of facts which are well known and undisputed. Mala fides are sought to be inferred from these facts. So far as the intention of the new party in power is concerned, it has happened not only now, but several times in the past that a new political party coming in power has at times set aside certain acts of the previous Government or has instituted enquiries as to the actions of the previous Government. For instance, some of the State Assemblies were dissolved by the President as advised by the Janata Government after the result of March, 1977 elections. The intention expressed bythe Janata Government to dissolve the State Assemblies was challenged in the Supreme Court by way of suits under Article 131 of the Constitution and also by way of writ petitions. They were dismissed by the Supreme Court in State of Rajasthan and Others Vs. Union of India and Others, . Reading the judgments of all the learned Judges together, the ratio of that decision appears to be that barring exceptions like mala fides, the court will not interfere with a political decision which is to be taken by the Government.

(8) Fundamentally, the exercise of political power is not only unreviewable but also unjustifiable .The distinction between these two may be suitable, but it exists and has been spelt out by Mr. JusticeBrennan of the United States Supreme Court in demon Barlow v.B. L. Collins, (1970) 397 U.S. 159(3), and Association of Processing Service Organisations v. Camp (1970) 397 U.S. 150(4). Justiciability has to be seen first. The criteria of justifiability are laid down in Bakerv. Carr 369 Us 186(5), in the following words :

"IT is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question, although each has one or more elements which identifies it as essentially a function of the separation of powers. Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for judicial discretion ;or the impossibility of a court''s undertaking independent resolution without pressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question."

Reviewability comes next. It is only if an issue is justiciable that the court has to consider whether the action should be judicially reviewed or not. Last come the merits of the case. So far as the present writ petition is concerned, in'' our view, it raises an issue about the exercise of the power of the Administrator u/s 11 of the Delhi Administration Act with the approval of the President. The President would ordinarily be advised by the Council of Ministers,( Samsher Singh Vs. State of Punjab and Another, . The relief which is sought by the petitioner virtually means that this court should tell the Cabinet (Union of India, respondent No. 1) to advise the President not to give approval to the Lt. Governor in dissolving the Metropolitan Council u/s 11 or rather if the approval of the President is sought by the Lt. Governor u/s 11, then the Central Government should be restrained from advising the President from giving the approval. Whatever way we look at it, the question ,is entirely governed by section 11 of the Delhi Administration Act and the Constitution under which the powers of the Central Government and the President are to be exercised. Whatever may be the extension, which the scope of judicial review has received under the pressure of circumstances and with a view to do justice, no judicial review can ever extend to completely wipe out the most fundamental feature of the Constitution, namely, the separation of powers. The judicial review of administrative action cannot extend to action of the Government which is taken entirely in discretion, and which is governed by policy and political considerations. The petitioner may think that the Government is dissolving the Metropolitan Council of Delhi because the present Council has a majority of the opposition, parties .The party in power may think, on the other hand, that the verdict given by the January, 1980 election is such that the Metropolitan Council of Delhi has ceased to represent the people of Delhi. These rival contentions of the rival political parties are matters ofpolitics and not justiciable issues. Almost all the criteria of justifiability laid down by the United States Supreme Court in Baker v. Carr, referred to above, could be applied to the present case to show that the exercise of the power by the Lt. Governor u/s 11 is not justiciable.

(9) So far as the allegation against Mr. Jagmohan is concerned thathe intends to dissolve the Metropolitan Council because he had been suspended by the Janata Government, the petitioner has failed to note that the power of the Administrator cannot be exercised except with the approval of the President. Mr. Jagmohan cannot, Therefore, act out of any personal motive. "Even if he were to do so, the Central Government does not have any such personal motive. The intention of the Central Government in advising the president would be only political .Further, Mr. Jagmohan was only suspended by the JanataGovernment an,d he is to exercise the power u/s 11 of the Delhi Administration Act according to his judgment of the circumstances. We are not at all convinced, Therefore, that any personal motive of the Lt. Governor can be said to have been involved in the intention to dissolve the Metropolitan Council. We may further point out that even where any such personal motive could be said to have been involved but the dominent motive was political or the exercise of the power given by the statute, the Supreme Court in several decisions held that the dominent motive was not personal and, Therefore, no question of mala fides could come. We need only refer to three decisions of the Supreme Court in State of Jammu and Kashmir Vs. Bakshi Ghulam Mohammad, , P.V. Jagannath Rao and Others Vs. State of Orissa and Others, , and Krishna Ballabh Sahay and Others Vs. Commission of Inquiry and Others, .

(10) The learned counsel for the petitioner argued that the petitioner''s at present a member of the Metropolitan Council of Delhi and he hasa legal right to continue as such. He refers to the Preamble of the Constitution and says that the petitioner wants political justice to be done to him. While we have not denied the petitioner standing to present this writ petition to us, we are of the view that political justice has to be done to the petitioner according to the Constitution and according to the Delhi Administration, Act, 1966. If section 11 of the said Act gives the plenary powers to the Administrator to prorogue and dissolve the said Council (equating both the powers together without any distinction) it cannot be said that political justice is denied to the petitioner by the intention, of the Lt. Governor to dissolve the Council .Mr. Kapur says that political justice is denied to the petitioner because in the next elections he may not be able to be elected. If the very intention of giving the power of dissolution to the Administrator u/s 11 is that there should be fresh election, then it cannot be said that such an action is contrary to political justice.

(11) The right of the President, on the advice of the Cabinet, to dissolve a legislature is embodied in the Constitution and reproduced in section 11 of the Delhi Administration Act. This in its turn is based on the long standing constitutional convention in the United Kingdom, according to which "no Monarch has refused a dissolution when requested by the Prime Minister, or forced one against advice."[ Some Problems of the Constitution" by Geoffrey Marshall and Graeme C.Moodie, (1961) page 52]. A convention "may be described as the ''battleground ''between conflicting political forces and constitutional beliefs in society. But this is true not only of disputes about conventional rules. It applies also to a legal argument...... "attempts to persuade the Supreme Court Justice (of United States) of what the documentary constitution ought to mean''" is an instance oflegal argument stepping into the field of political morality (ibid pages 44and 45). It has been further said that "the standing of the court at any period will depend, in part, upon whether its interpretations conflict with the wishes and beliefs of the most powerful forces in society at the time." (ibid page 45). The rejection by the Supreme Court in the State of Rajasthan case (supra) in 1977 of the contention that the political decision to dissolve the Assemblies should be countermanded by judicial decision and the rejection by the Madras and Allahabad High Courts of the challenges to the dissolution of Assemblies in 1980 are illustrations of the force of this observation. The learned authors have further observed that "it is at least arguable that the high standing of the British Court owes something to the fact that many of the most important constitutional rules are, at present of a non-legal character." Evert though "the doctrine of parliamentary supremacy saves the British courts from having to give the last word on legal points .it is doubtful whether this would prevent the courts from a loss of prestige if they were constantly called upon to decide( even subject to parliamentary ''reversal'') a whole series of constitutional controversies "(ibid page 45).

(12) Happily, the doctrine of separation, of powers leaves the political decision of when to dissolve a legislature to the discretion of the President as advised by the Cabinet and relieves the courts from'' taking up judicial review of such a decision. It is the result of a fresh election after dissolution which is to vindicate the "political justice" of such a decision. This kind of political justice is not justiciable.

(13) The writ petition, is, Therefore, dismissed in liming with no order as to costs.