S. Ramaswami alias CHO and Another vs Sri. Charan Singh and Another

Ismail Ramanujam, J.—These are two petitions under Article 226 of the Constitution of India one praying for the issue of a quo warranto (Writ Petition No. 3671 of 1979) and the other praying for the issue of a writ of declaration (Writ Petition No. 3742 of 1979). Though the Petitioners are different and the prayers are also different, they were heard together and they are disposed of by a common judgment, since the events that gave rise to these writ petitions are common and overlap to some extent.

The Petitioner in the former writ petition is a citizen of India and the Editor of Thuglak a Tamil fortnightly and also the Editor of Pickwick an English fortnightly, both being published in Madras. He prays for the issue of a writ of quo warranto or any other appropriate writ calling upon the first Respondent, namely, Shri Charan Singh, Tuglak Road, New Delhi, to show cause as to under what legal and constitutional authority he purports to hold the office of the Prime Minister as head of the care-taker Council of Minister in the Union Government. The second Respondent in the writ petition is the Union Government, represented by the Secretary, Union Cabinet, Cabinet Secretariat, New Delhi.

The undisputed facts are:-The monsoon session of the Union Parliament began on 9th July, 1979. During the said session, the leader of the Opposition in the Lok Sabha, Shri Y.B. Chavan gave notice of a motion of no confidence against the Government in power headed by Shri Morarji Desai. After the of motion of no confidence, some of the Cabinet Ministers tendered their resignations. On 16th July, 1979 Shri Morarji Desai, the then Prime Minister himself without facing the motion of confidence tendered the resignation of himself and his Council of Ministers and the same was accepted by the President. There after the President invited the leader of the Opposition Shri Y.B. Chavan to explore the possibility of forming a stable Government. After making an attempt he informed the President of his inability to do so, Thereafter Shri Morarji Desai, the leader of the Janata Parliamentary Party and the first Respondent, who was the leader of Janata (S) Party staked their respective claims for the office of Prime Minister, each of them claiming that he had the support of the majority of the members of the Lok Sabha. The President asked both of them to submit a list containing the names of the members of the Lok Sabha, who supported them. After scrutinizing the said list, the President on 26th July, 1979 invited the first Respondent herein to form a new Government. The Petitioner in the former writ petition states in his affidavit that the reason for such invitation as found in the newspapers was that he enjoyed the support of more members of the Lok Sabha than the other contender Shri Morarji Desai. But the President however, impressed on the first Respondent herein that he should seek a vote of confidence at the earliest say by third week of August, 1979. The first Respondent herein was sworn in as Prime Minister on 28th July 1979. The Lok Sabha had been adjourned by the Speaker on the fall of the government headed by Shri Morarji Desai. After the formation of the Government by the first Respondent hei c in. the Lck Sabha was summoned to meet on 20th August, 1979 for a session of six days and the first item in the agenda was a motion of vote of confidence in favor of the Government headed by the first Respondent herein. However, the first Respondent herein without facing a debate on the vote of confidence and seeking a verdict of the Lok Sabha tendered his resignation as Prime Minister as well as that of his Cabinet on 20th August, 1979. The President accepted the said resignation and requested the first Respondent and his colleagues to continue in office till other arrangements were made. On 22nd. August, 1979 the President announced the dissolution of the House of the people and according to the Petitioner in the former writ petition, as stated in the affidavit filed by him, the President appointed the first Respondent herein to be a-care-taker Prime Minister. It is with reference to the above facts that the two writ petitions have been filed.

As we have pointed out already, the prayer in the former writ petition is for the issue of a writ of quo-warranto. The prayer in the latter writ petition is for the issue of a writ of declaration declaring that the House of the People now exists and will- continue to exist in the eye of law till a notification is issued after the midterm poll u/s 73 of the Representation of the People Act, 1951.

The case of the Petitioner in the former Writ petition as set out in his affidavit and as elaborated by his Counsel Mr. K. Parasaran at the time of hearing of the said writ petition, is that since the first Respondent, that is, Shri Charan Singh did not command the confidence and enjoy the support of the majority of the members of the Lok Sabba, he was not fit to be appointed and continued as Prime Minister of the country. In paragraph 8 of the affidavit filed by him. It is stated as follows:

I submit that the matters which have taken place from the time the Cabinet Ministers of the Government headed by Mr. Desai started tendering resignation followed by the resignation of Shri Desai himself, as Prime Minister, the invitation by the President for showing their strength in Parliament to the two contenders, Shri Desai and Shri Charan Sigh, the nomination of Shri Charan Singh as Prime Minister with the super imposition of a confidence or advice that he should seek a vote of confidence in the Lok Sabha, his tendering resignation without facing the motion of vote of confidence on 20th August, 1979, followed by the dissolution of Parliament by President and the appointment of Shri Charan Singh as Prime Minister to heed to care-taker Government are in flagrant violation of the Constitution of India and therefore unconstitutional.

The Petitioner in the former writ petition contends that Shri Charan Singh could not and should not have been asked to form the Government unless it was manifest that he had the requisite majority strength in the Lok Sabhs that that strength should have been tested only on the floor of the Lok Sabha and not outside the House and that the said strength could not be validly decided outside. His further case is that in any event the Council of Ministers headed by Shri Charan Singh as the Prime Minister has no legal authority to claim to be care-taker Council of Ministers, that even assuming without conceding that in an unprecedented situation like the present there could be a care-taker Council of Ministers it could be only by those who previously held such office in compliance with the democratic principles inherent in the Constitution, that in the present case to appoint the first Respondent to hold the care-taker Ministry does not satisfy the Constitutor al requirement, that in the 24 days when he purported to be the Prime Minister, he did not have the support of the requisite number in the House, that his strength was never demonstrated on the floor of the Parliament, that the strengthen the House could be ascertained only on the floor of the House and not outside the House and that was the reason wry even when he was invited to form the Government heading the Council of Ministers as Prime Minister, he was also called upon as early as possible to obtain the mandate of the majority of the members of the Lok Sabha by seeking a vote of confidence. The Petitioner also contorts that the essential criterion for a person to be a Prime Minister is that he should be able to head the Ministry which commands the confidence of the House of the people, that in the present case the first Respondent Shri Charan Singh did not fulfill this essential qualification at any time during the 24 days when he purported to functions as Prime Minister, that at the inception the only reason for his being invited to head the Council of Ministers as Prime Minister was the hope of the President that the first Respondent would make the necessary grade in due course, that is was clearly proved beyond doubt that at no time from the time of his appointment till his resignation as Prime Minister did he have the constitutional requirement of the support of majority in the House and that such a person cannot be called upon to perform the functions of a care-taker Prime Minister.

A counter affidavit has been filed by the first Respondent Shri Charan Singh and similarly a counter-affidavit on behalf of the second Respondent, has been filed by the Secretary to the Government of India in the Ministry of Home Affairs. In the counter-affidavit filed by the second Respondent, it is contended that the appointment of a Prime Minister by the President lies in the area of convention, that the whole subject of the duty of forming a Government is non-justifiable and beyond the scope of judicial determination, that the relationships involved are in their very nature outside the filed of judicial enquiry and that the issue gives rise to a political question and is non-justifiable because:

(1) the question was committed to the President''s judgment, in the exercise of which delicate policy considerations are necessarily involved.

(2) the Court should not intervene in the political thicket.

(3) there is a lack of judicial criteria by which the exercise of the Presidents duty could be judged, and

(4) there is also an absence of an effective judicial remedy.

It is further contended that in regard to the appointment of a Prime Minister, the President acting in the area of conventions does not act on the aid and advice of the Council of Ministers and that Article 36 of the Constitution is a bar to the President being called upon to answer to any Court for the exercise and performance of the power and duties of his office or for any act done or purported to be done by him in the exercise and performance of those powers and duties. The counter-affidavit annexed to it a copy of the notification, dated 28th July, 1979 relating to the appointment of Shri Charan Singh as Prime Minister and the Press Communiqu� relating to his continuance in the said office after acceptance of his resignation.

In a short counter-affidavit filed by the first Respondent, Shri Charan Singh, he states that he has perused the counter-affidavit filed by the Secretary to the Government of India in the Ministry of Home Affairs and adopts the same and in answer to the rule nisi he states that he is producing the Gazette Notification appointing him as Prime Minister and the letter of the President, dated 20th August, 1979 requesting him to continue as Prime Minister.

An elaborate reply affidavit has been filed by the Petitioner in the former writ petition reiterating the contentions put forward by him in the original affidavit and traversing those put forward in the counter-affidavits filed by the Respondents therein.

Before proceeding further, we shall extract the notification, dated 28th July, 1979 published in the Gazette of India of the same date appointing the first Respondent Shri Charan Singh as Prime Minister and the Press Communiqu� of Rashtrapathi Bhavan, New Delhi, dated 20th August, 1979.

The notification, dated 28th July, 1979 reads as follows:

The President has been pleased to appoint Ch. Charan Singh to be the Prime Minister with effect from 1-30 p.m. of 28th July, 1979 and on the advice of the Prime Minister, the following persons to be the other members of the Council of Ministers with effect from the same date:

Cabinet Ministers:

Shri Y.B. Chavan, Deputy Prime Minister,

Shri S.N. Mishra,

Shri Biju Patnaik,

Shri H.N. Bahuguna,

Shri Zulfiquarullah,

Shri Ravi Ray,

Shri Ram Kinkar,

Shri Purushottam Kaushik.

The press Communiqu� of Rashtrapathi Bhavan, dated 20th August, 1979 reads as follows:

The Prime Minister Shri Charan Singh has submitted his resignation and that of his colleagues in the Council of Ministers. The President has accepted the resignation and has asked Shri Charan Singh and his colleagues to continue in office till other arrangements are made.

As soon as Mr. K. Parasaran, learned Counsel for the Petitioner, opened his arguments, the learned Additional Solicitor-General raised two preliminary objections. According to him, the writ petition (Writ Petition No. 3671 of 1979) is not maintainable in the first place because the appointment of Prime Minister is in the region of constitutional conventions which cannot be enforced in a Court of law secondly the said appointments rise to political questions with which the Courts have no concern Mr. K. Parasaran, however, did not dispute the proposition that the conventions cannot be enforced in a Court of law and equally political questions cannot be grappled by Courts of law, but argued that his case is that there had been violation of Constitution and law in the appointment of Prime Minister in the present case and that even if the matter is governed by conventions, as known to English Constitutional Law, once such convention is put in a statute, then what governs is not the conversion, but only the statute which on embodies the convention and the contra vent on of any such statutory provision can be enquired into by Courts. In view of the agreement between the two Counsel so far, we shall consider the question from the angle from which the case was presented before us by Mr. K. Parasaran learned Counsel for the Petitioner. Before doing so, we shall refer to the decision of the Supreme Court on which strong reliance was placed by both sides.

In Samsher Singh Vs. State of Punjab and Another, Krishna Iyer, J. himself and on behalf of Bhagwati, J., stated:

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 dismissa1 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 responsibly 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.

The learned Additional Solicitor-General relied oh this passage in support of his contention that the appointment of Prime Minister is a matter entrusted to the judgment of the President and the President will have to take into account several factors each one of which may not be susceptible of judicial investigation and that therefore the Courts cannot go into the same. On the other hand, Mr. K. Parasaran, relied on this identical passage for the purpose of contending that the very opening of the paragraph clearly showed that the matter was not in the region of convention, but in the region of law and that is why the paragraph opened up by stating we declare the law on this branch of our Constitution to be.

The second decision on which strong reliance was placed by M.K. Parasaran is the decision of the Supreme Court in State of Rajasthan and Others Vs. Union of India and Others, Mr. K. Parasaran relied on various paragraphs in the judgments of the different learned Judges to contend that there is no taboo of political question involved and that once the constitutional functionary purports to exercise its powers, then the exercise of that power is amenable to judicial scrutiny and control. In particular, strong reliance was placed on paragraph 143 of the judgment of Bhagwati, J., deliver on his own behalf and on behalf of A. C. Guptta, J., and is enough for our purpose if we extract the following passage from that paragraph:

of course, it is true that is a question brought before the Court is purely a political question not involving deter nation of any legal or constitutional right or obligation, the Court would not entertain it, since the Court is concernd only with a adjudication of legal rights and lialtited. But merely because a question has a political complexion, that by itself is no ground why the Court should shrink from performing its duty under the Constitution if it raises an issue of constitutional determination. 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, a structure of power and as pointed out by Charles Blac kin ''Perspective in Constitutional law'';

''Constitutional law'' symbolizes an intersection of law and polities where in issues of a political power are acted on by persons trained in the legal tradition, working in judicial institutions, following the procedures of law, thinking as lawyers think.

Bhut Nath Mete Vs. The State of West Bengal, was a case concerning the detention of the Petitioner under the Maintenance of Internal Security Act, 1971. One of the contentions put forward on behalf of the Petitioner...challenging the order of detention was that the detention had been arbitrary and may continue indefinitely, if the Proclamation of Emergency becomes a constant fact of constitutional life and must therefore be regarded as unconstitutional. Dealing with this contention, the Supreme Court observed:

We have to reject summarily the last submission as falling outside the orbit of judicial control and wandering into the para-political sector. It was argued that there was no real emergency and yet the Proclamation remained unrestricted with consequential peril to fundamental rights. In our view, this is a political, not justifiable issue and the appeal should be to the polls and not to the courts. The traditional view sanctified largely by some American decisions, that political questions fall outside the area of judicial review is not a constitutional taboo but a pragmatic response of the court to the reality of its inadequacy to decide such issues and to the scheme of the Constitution which has assigned to each branch of government in the larger sense a certain jurisdiction. of course, when a problem-which is essentially and basically constitutional-although dressed up as a political question, is appropriately raised before court, it is within the power of the judges to adjudicate. The rules is one of self-restraint and of subject-matter, practical sense and respect for other branches of government like the legislature and the Executive.

In H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior and Others Vs. Union of India and Another, it was stated by Shah, J., in the judgment delivered on his behalf and on behalf of Sikri, Shflat, Bhargava, Vaidialingam Grover and Dua, JJ.

We further held that the President is not invested with any political power transcending the Constitution, which he may exercise to the prejudice of citizens. The powers of the President arise from and are defined by the Constitution. Validity of the exercise of those powers is always amenable to the jurisdiction of the Courts unless the jurisdiction is by precise enactment excluded. Power of this Court under Article 32 or of the High Courts under Article 226, cannot be by-passed under a claim that the president has exercised political power.

Another decision on which strong reliance was placed by Mr. K. Parasaran, is the decision of the Judicial Committee of the Privy Council in Adegbenro v. Akintoia (1963) 3 All. E.R. 544. That dealt with the interpretation of Nigeria (Constitution) Order in Council, 1960 and the matter concerned the Western Nigeria. The relevant statutory provisions in Section 33 of the Constitution of Western Nigeria ran as follows:

33(1) There shall be a premier of the Region, who shall be appointed by the Governor.

(2) Whenever the Governor has occasion to appoint a Prime Minister he shall appoint a member of House of Assembly, who appears to him likely to command the support of the majority of the members of the House.

(3) There shall be, in addition to the office of Premier, such other offices of Minister of the Government of the Region as may be established by the Legislature of the Region or, subject to the provisions of any Regional law, by the Governor, acting in accordance with the advice of the Premier.

(4) Appointments to the office of Minister of the Government of the Region other than the office of Premier shall be made by the Governor, acting in accordance with the advice of the Premier: Provided that at least two Ministers shall be appointed from among the members of the House of Chiefs.

(8) The office of the Premier shall become vacant-(a) when, after any dissolution of the Legislative Houses of the Region, the Premier is informed by the Governor that the Governor is about to re-appoint him as Premier or to appoint another person as Premier; or (b) if be ceases to be a member of the House of Assembly otherwise than by reason of a dissolution of the Legislative Houses.

(9) The office of a Minister of the Government of the Region other than the Premier shall become vacant, if the office of Premier becomes vacant.

(10) Subject to the provisions of Sub-sections (8) and (9) of this section, the Ministers of the Government of the Region shall hold office during the Governor''s pleasure: Provided that-(a) the Governor shall not remove the Premier from office unless it appears to him that the Premier no longer commands the support of a majority of the members of the House of Assembly; and (b) the Governor shall not remove a Minister other than the Premier from office except in accordance with the advice of the Premier.

The House of Assembly in that case was composed of 124 members and 66 members m the Assembly wrote a letter to the Governor on May 1962 stating that they no longer supported the Premier, and the Governor on receipt of that letter dismissed the Premier. The dismissed Premier commenced proceedings by a writ of summons against the Governor of Western Nigeria claiming declaration that the Governor had no right to relieve the Premier from office in the absence of a prior resolution of the Hose of Assembly reached on the floor of the House to the effect that the Premier no longer commands the support of the House. When the case came before the Chief justice of the Western Region, it was agreed by counsel for all parties that the following issues be referred to the Federal Supreme Court pursuant to Section 108 of the Constitution of the Federation of Nigeria ;

(1) Can the Governor validly exercise power to remove the Premier from office u/s 33(10) of the Constitution of Western Nigeria without prior decision or resolution on the floor of the House of Assembly showing that the premier no longer commands the support of a majority of the House ?

(2) Can the Governor validly exercise power to remove the Premier from office u/s 33(10) of the Constitution of Western Nigeria on the basis of any materials or information extraneous to the proceedings of the House of Assembly ?

The Federal Supreme Court by a majority answered the question in the following terms:

The Answer to the first question therefore is that the Governor cannot validly exercise power to remove the Premier from office u/s 33(10) of the Constitution of Western Nigeria except in consequence of proceedings on the floor of the House whether in the shape of a vote of no-confidences or of a defeat on a major measure or of a series of defeats on measures of some importance showing that the Premier no longer commands the support of a majority of the member of the House of Assembly.

The Federal Supreme Court four d it unnecessary to answer the second question. The matter was taken up in appeal to the Privy Council. The Judicial Committee advised her Majesty that the appeal should be allowed; that the answer of the Supreme Court should be reversed; and that in lieu thereof it should be declared that the answer to the first question was yes and that the answer to the second question was yes also. The reasoning given by the Judicial Committee through Viscount Radcliff for coming to the said conclusion is instructive and since it covers the arguments advanced on behalf of both sides, we have found it expedient to extract in extensor the said reasoning:

The question to which an answer has to be found is of obvious importance''s, but it lies nevertheless, within a very small compass. The decision turns on the meaning to be attached to the wording of Section 33(10) of the Constitution of Western Nigeria read, as it should be in the context of any other provisions of the constitution that may legitimately influence its meaning. It is clear, to begin with, that the Governor is invested with some power to dismiss the Premier. Logically that power is a consequence of the enactment, that ministers shall hold office during the Governor''s pleasure, for subject to the saying conditions of provisions (a) and (b) that follow the Governor has only to withdraw his pleasure for a minister''s tenure of office to be brought to an end. Where the Premier''s office is concerned it is proviso (a) that limits (he Governor''s powet to withdraw his pleasure constitutionally for by that proviso he is precluded from removing the Primer from office unless it appears to him that the Premier no longer commands support of a majority of the members of the House of Assembly. By these words, therefore, the powet of removal is at once recognised and conditioned: and since the condition of condition of constitute has been reduced to the formula of these words for the purpose of the written constitution, it is their construction and nothing else that must determine the issue.

What then is the meaning of the words ''the Premier no longer commands the support of a majority of the members. It has been said, and said truly, that the phrase is derived from the constitutional understandings that support the unwritten or rather partly written, constitution of the United-Kingdom. It recognises the basis assumption of that constitution, as it has been developed that so long as the elected House of representatives is in being a majority of its members who are prepared to act together with some cohesion is entitled to determine the effective leadership of the Government of the day. It recognises also one other principle that has come to be accepted in the United Kingdom that subject to questions as to the right of dissolution and appeal to the electorate a Prime Minister ought not to remain in office as such once if has been established that he has ceased to command the support of a majority of the House. But, when that is said, the practical application of these principles to a given situation, if it arose in the United Kingdom would depend less on any simple statement of principles than on the actual facts of that situation and the good sense and political sensitivity of the main sectors called on to take part.

It is said that the ''support'' that is to be considered is nothing else than support in the proceedings of the House itself aid with this proposition also their Lordships are in agreement. They do not think, however, that this is in itself a very pregnant observation. No doubt everything comes back in the end to the question what action the members to the party or a group or a combination are resolved to take in proceedings on the floor of the House; but in democratic politics speeches or writings outside the House, party meetings speeches or activities inside the House short of actual voting are all capable of contributing evidence to indicate what action this or that member has decided to take when and it he is called on to vote in the House and it appeals to their lordships somewhat unreal to try to draw a firm dividing line between votes and other demonstrations where the issue of ''support'' is concerned. This indeed is the crux of the question that has now been raised. The Respondent maintains and it is implied in the decision that be has obtained from the Federal Supreme Court, that the Governor cannot constitutionally take account of anything in the matter of ''support'' except the records of votes actually given on the floor of the House. Consequently it is said his action in removing the first Respondent from the Premiership on the strength it appears of the letter addressed to him by the sixty-six members of the House referred to and without waiting until there had been an adverse vote in the House itself was not within the powers conferred on him by the Constitution of Western Nigeria.

The difficulty of limiting the statutory power of the Governor in this way is that the limitation is not to be found in the words in which the makers of the constitution have decided to record their description of his powers. By the words they have employed in their formula ''it appears to him, the judgment as to the support enjoyed by a Premier is left to the Governor''s own assessment, and there is no limitation as to the material on which he is to base his judgment or the Contacts to which he may resort for the purpose. There would have been no difficulty at all in so limiting him, if it had been intended to do so. For instance he might have been given power to act only after the passing of a resolution of the House ''that it has no confidence in the Government of the Region, the very phrase employed in an adjoining Section of the constitution (See Section 31(4), proviso (b) to delimit the Governor s power of dissolving the House even without the Premiers advice. According to any ordinary rule of construction weight must be given to the fact that the Governor power of removal is not limited in such precise terms as would confine his judgment to the actual proceedings of the House, unless there are compulsive reasons, to be found in the context of the constitution or to be deduced from obvious general principles, that would impose the more limited meriting for which the Respondent contends.

Their lordships have not discovered any such reasons. It is one thing to point out the dangers of a Governor arriving at any conclusions as to his Premier''s support in the House except on the incontrovertible evidence of votes recorded there on some crucial issue. There are indeed such dangers. Expression of opinion attitude or intention on such a delicate matter may well prove to be delusive. He may judge the situation wrongly and so find himself to have taken a critical step in a direction which is proved to be contrary to the wishes of the majority of the House or of the electorate. Again, if he is not to reply on his Premier for advice as to the balance of support in the House, he is likely to find that he is in effect consulting indirectly the views of opposition leader who may turn out in the event to be no more than m opposition or he will find himself backing the political judgments conveyed to him by his private advisers against the political judgment of the Premier himself.

All these are real dangers which any Governor proposing to act under his power or removal would need to bear in mind since, if he ignore them, he would run the risk of placing the constitutional sovereign power, whose representative he is, in conflict with the will of the elected House of representatives whose majority is for the time being expressed in the person of the Premier. Anyone familiar with the constitutional history and development of the United Kingdom would naturally dwell on these aspects of the sovereign''s position, if he was invited to advise a Governor as to the circumstances and occasions on which he could wisely exercise his power-of removal. But, while there may be formidable arguments in favor of the Governor confining his conclusion on such a point to the recorded voting in the House, if the impartiality of the constitutional sovereign is not to be in danger of compromise the arguments are considerations of policy and propriety which it is for him to weigh on each particular occasion: they are not legal restrictions which a court of law, interpreting the relevant provisions of the Constitution of western Nigeria can import into the written document and make it his legal duty to observe. To sum up, there are many good arguments to discourage a Governor from exerting his power of removal except on indisputable evidence of actual voting in the House, but it is none the less impossible to say that situations cannot arise in which these arguments are outweighed by considerations which afford to the Governor the evidence he is to look or, even without the testimony of recorded votes.

Another arguments has been advanced to the effect that the Nigerian constitutions are modeled on the current constitutional doctrines of the United Kingdom, and, since the British sovereign would not be regarded as acting with constitutional propriety in dismissing a Prime Minister from office without the foundation of an adverse vote on a major issue in the House of Commons, so the Governor in western Nigeria must similarly be treated as precluded from exercising his power of removal in the a sense of a vote of the same kind. This approach to the matter appears to their Lordships to have had some influence on the view taken by the majority of the Federal Supreme Court in this case and since it seems capable of conveying an implication that could be misleading in other situations apart from the present one their Lordships wish to make two observations on it.

The first is that British constitutional history does not offer any but a general negative guide as to the circumstances in which a Sovereign can dismiss a Prime Minister. Since the principles which are accepted today began to take shape with the passing of the Reform Bill of 1832, no British Sovereign has in fact dismissed or removed a Prime Minister, even allowing for the ambiguous exchanges which took place between William IV and Lord Melbourne in 1834. Discussion of constitutional doctrine bearing on a Prime Minister''s loss of support in the House of common concentrators therefore on a Prime Minister''s duty to ask for liberty to resign or for a dissolution, rather than on the Sovereign''s right of removal, an exercise of which is not treated as being within the scope of practical politics. In this state of affairs it is vain to look to British precedent for guidance on the circumstances in which on the evidential material on which a Prime Minister can be dismissed, where dismissal is an actual possibility, and the right of removal which is explicitly recognised in the Nigerian constitutions must be interpreted according, to the wording of its own limitations and not to limitations which that wording does not import.

The second observation is perhaps only another way of making the same point, It is true that the constitution of Western Nigeria, allowance made for the federal structure, does embody much of the constitutional practice and principle of the United Kingdom. That appears from a study of its terms. There are identifiable differences of scheme to be found in certain sections, but no one it seems questions the general similarity or the origin of many of its provisions. But, accepting that it must be remembered that as Lord Bryce once said, the British constitution works by a body of understandings which no writer can formulate whereas the Constitution of Western Ntgeria is now contained in a written instrument in which it has been sought to formulae with precision the powers and duties of the various agencies that it holds in balance. That instrument now stands in its own right and while it may well be useful on occasions to draw on British practice or doctrine in interpreting a doubtful phrase whose origin can be traced or to study decisions on the constitutions. Australia or the United States where federal issues are involved, it is in the end the wording of the constitution itself that is to be interpreted and applied, and this wording can never be overridden by the extraneous principles of other constitutions which are not expcity incorporated in the formula that have been choosen as the frame of this constitution.

Their Lordships have not been able to find any indications either in the general scheme or in other specific provisions which would enable them to say that the Governor is legally precluded from forming his opinion on the basis of anything, but votes formally given on the floor of the House. It is plain that in any event he is invested with responsibilities that on occasions will require of him delicate political judgment ; the proviso attached to Section 31(4) dealing with the power to refuse a Premier a dissolution or to dissolve the House without his advice make that clear. When one turns to Section 33 itself, the same kind of phrase appears to him likely to command he support of the majority of the members of the. House, (see Sub-section (2)) is employed with regard to the Governor''s selection of a Premieres is employed in Sub-section (10), appears to him that the Premier no longer commands the support of a majority of the member''s with regard to the Governor''s power of removal; and yet no one has suggested in the course of argument that a Governor, exercising the power of selection is under any legal restriction as to the persons whom he may consult on the material to which he may turn in aid of his decision.

Thus, this judgment itself supports the contention of Mr. K. Parasaran that once the constitutional convention is embodied in the form of a statute, wha thas to be looked to is only the statute and its terms. However, the same judgment is aganist the contention of Mr. K. Parsaran inasmuch as it has been held by the Judicial Committee that the Governor need not wait till the Premier is voted out of office as a result of proceedings on the floor of the House and he can form his own opinion as to whether the Premier no longer commands the support of a majority of the members of the House on the basis of what was said by the members of the House outside the proceedings in the House.

It is against the background of the guidelines laid down an the above decisions we propose to consider the arguments advanced on behalf of the Petitioner in the former writ Petition Mr. K. Parasaran principally relied on Article 75, of the Constitution and the democratic character of the Government established by the Constitution. Article 75(1) of the Constitutions states that the Prime Minister shall be appointed by the President and the Ministers shall be appointed by the President or the advice of the Prime Minister. According to Clause (2) of that Article the Ministers shall hold office during the pleasure of the President, Article 75(3) states:

The Council of Ministers shall be collectively responsible to the House of the People.

Under Article 75(5), a Minister who for any period of six consecutive months is not a member of either House of Parliament shall at the expiration of that period cease to be a Minister. The contention urged on behalf of the Petitioner is that the fundamental postulate of the executive wing of the Government, as contemplated in the Constitution is a responsible Government namely a Government enjoying, the confidence and support of the Lok Sabha and that is sought to be assured by Article 75(3) of the Constitution and that in this case the appointment of Shri Charan Singh as Prime Minister and his continuance as Prime Minister of the care-taker Government are in violation of the said Article 75(3) of the Constitution. Strict from a legal point of view, Article 75(1) which states that the Prime Minister shall be appointed by the President does not state as to who can be appointed as Prime Minister.

It is in this context the question of convention arises. According to Mr. K. Parasaran, if Article 75(1) is read with Article 75(3) it becomes clear that the person who could be appointed as Prime Minister must be one who is enjoying the confidence of the majority of the members of the House of the people, that is, Lok Sabha and that is the basic postulate of the responsible and democrat Government. Consequently, according to the learned Counsel Shri Charan Singh should have been called upon to establish his majority support in the Lok Sabha before he was appointed as Prime Minister, that in this case even when he was so called upon to establish his majority support without facing the house and winning its support and confidence Shri Charan Singh resigned from his Prime Minister ship thereby showing that he did not have the support of the majority of the members of the Lok Sabha and that therefore his appointment and continuance are in violation of not only the specific provision in the Constitution, but also the basic postulate underlying the democratic Government enshrined in the Constitution.

It is in this context that our attention was drawn to the different passages contained in the various text books darling with the power of the Sovereign to appoint the Prime Minister of the country.

In Constitutional Law by J.D.B. Mitchell, second edition, 1968, it is stated as follows:

At the heart of the Cabinet is the Prime Minister. Again the office is recognised by law, but all the important rules which regulate it are conventional. As has already been seen there may exceptionally, be an element of personal discretion in the selection by the Sovereign of a Prime Minister. The person chosen must be one who is capable of forming a Government acceptable to the House of Commons, and hence acceptable to the dominant party or combination of parties in that House.

In Constitutional Law by E.C.S. Wade and G. Godfrey Phillips-Sixth Editor-at pag 82 it is stated as follows:

The Queen acts upon the advice of her Ministers in each of her realms in the Common wealth. At home she receives advice from United Kingdom Ministries else where her Governors-General to whom are entrusted most of her powers act on the advice of the Ministers who form the Cabinet of each State. But there are some matters which fall to be determined by the exercise of her independent judgment and in particular the appointment of a Prime Minister and in some circumstances the dissolution of Parliament. There are conventional rules which limit her range of choice of anew Prime Minister. 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.

At page 83 of the same book, it is stated as follows:

The practice of the Sovereign first consulting the leader of the Opposition when a Government tenders its resignation on defeat in the Commons is well-established and ensure the impartial position in politics which a constitutional monarchy should occupy. Yet the ultimate decision is the person1 responsibility of the Sovereign, and in the task of selection precedent is not conclusive, and therefore the conventions lack the binding for which they posses in other fields. This does not mean that they can normally be disregarded, but that unforeseen circumstances may deprive them of their force on a particular occasion.

Our attention was drawn to the following observation of Hood Philips in Constitutional and Administrative Law fourth edition:

The Conventions are rules of political practice which are regarded as binding by those to whom they apply, but which are not laws as they are not enforced by the court or by the Houses of Parliament (page 77)

The fact that the courts do not enforce constitutional conventions does not necessarily mean that the courts do not recognise their existence. (Page 79) and

The Queen must invite the most influential leader of the party or group commanding a majority of the House of Commons to form a Ministry. The person so called on is the Prime Minister (Page 86).

as supporting the contention of the learned Additional Solicitor-General that the choice of a Prime Minister by the Sovereign in England and by the President in India is in the realm of constitutional conventions.

Prof. E.C.S. Wade in his introduction to Introduction to the Study of the Law of the Constitution by A.V. Dicey, tenth edition, expressed the same view as follows:

It is the prerogative of the Sovereign to appoint the Prime Minister Convention Limits the range of choice to that of a party leader who can command a majority in the House of Commons. This convention to some extent lacks the binding force which conventions in other fields possess. This does not mean that the rules can normally be disregarded but that unforeseen circumstances may deprive them of their force on a particular occasion; any departure from the normal would have to conform to recognising the supremacy of the electorate and not to serve autocratic ends. (Pagecliv)

In the text of Dicey himself as examples of constitutional understandings, certain precepts to which Mr. Freeman in has book, Growth of the English Constitution had referred have been given and two of them are:

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 and

The most influential of these leaders ought (generally speaking) to be the Premier or head of the Cabinet (Page 421).

In Halsbury''s Laws of England, fourth edition, volume Vlll it is slated as follows:

The nature of conventions. In general it may be said that conventions differ from rules of law in that they are not enforceable by judicial process but are sanctioned by settled practice and political convenience. The existence of some conventions is certain and they can be defined accurately. The nature and even the existence of others are subject to varying degrees of doubt. Although the existence and contents of some, such as the standing orders of the Houses of Parliament, are quite certain, whether they are mere conventions or genuine rules of law is entirely a matter of definition Corrections may or may not be more flexible than rules of law.

To be a genuine convention, a rule or principle must be regarded as binding; but here again there may be doubt, not only whether it is not amere convenient practice, but also when a rule of practice turns into a binding convention.

There can therefore be no authoritative source to which reference can be made to ascertain whether a convention exists or what it is. One can only refer to works on Constitutional law or on constitutional or political history or the biographies of public figures, more especially where they deal with crises of one kind or another.

Principal conventions. The paramount convention is that the Sovereign must act on the advice tendered to the by her ministers in particular the Prime Minister. She must appoint as Prime Minister that member of the House of Commons who can acquire the confidence of the House and must appoint such persons to be members of the ministry and Cabinet as he recommends. She must, in ordinary circumstances, accept any recommendation he may submit that Parliament be dissolved. The Sovereign must assent to any bill that has passed both Houses of parliament (or the House of Common alone under the Parliament Acts, 1911 and 1949). If the ministry has not or loses the confidence of the House of Commons the Prime Minister must either recommend a dissolution of Parliament or tender the resignation of himself and the ministry.

Thus it will be seen that even in the unwritten constitution of England the Sovereign is given a certain, amount of discretion in the choice of the Prime Minister, because at the time when the previous Government had resigned, there will be no cabinet to really advice the Sovereign whose advice will be binding on the Sovereign.

In this particular case, after Shri Morarji Desai resigned from the office of Prime Minister ship naturally the President had to choose another person for appointment as Prime Minister. All that could be said with reference to Articles 75(1) and 75(3) of the Constitution is that the President must appoint a person who, in his opinion, will be able to command or acquire the majority support of the members of the Lok Sabha, as the Prime Minister. In the present case all that the Petitioner in Writ Petition No. 3671 of 1979 has alleged in the affidavit filed in support of his writ petition is that:

the reason for such invitation as found in the newspapers is that he enjoyed the support of more members of the Lok Sabha than the other contender Shri Morarji Desai.

Nowhere the Petitioner has stated that on 28th July, 1979 when Shri Charan Singh was appointed as Prime Minister, it was established that he did not enjoy the majority support of the members of the Lok Sabha. The position as explained in that text books referred to above will show that if no person enjoying the majority support of the House is available, the Sovereign and in our country the President can call upon the person who happens to be the leader of the largest party in the House to form a Cabinet. Therefore from the pleadings themselves there is no case by the Petitioner that on 28th July, 1979 when Shri Charan Singh was appointed as Prime Minister, it was established that he did not have the majority support on that he was not the leader of the largest single party or combination of patties in the House of the People.

As a matter of fact from the point of view of the prayer in the writ petition, it would appear that the Petitioner is merely questioning Shri Charan Singh, holding the office of Prime Minister as the head of the care-taker Council of Minister in the Union Government. Though the Constitution itself does not refer to a care-taker Government or define as to what a care-taker Government is, yet it is possible to understand the expression, care-taker Government as the Government in. power after dissolution of the Lok Sabha and before its reconstitution. If that was really the prayer of the Petitioner, the appointment of Shri Charar Singh as Prime Minister on, 28th July, 1979 is not really challenged. We mention this for the simple reason that the duration of Prime Minister ship of Shri Charan Singh falls into three periods:

(1) From 28th July, 1979 when he was appointed as Prime Minister by the President till 20th August 1979 when be resigned from his office of Prime Minister ship.

(2) From 20th August, 1979 when he was asked to continue as Prime Minister till other arrangements are made till 22nd August, 1979 when the Lok Sabba was dissolved ; and

(3) On and from 22nd August, 1979.

As far as the first period is concerned to a specific question put by us, Mr. K Parasaran represented that his only contention was that since the President himself was not satisfied that Shri Charan Singh enjoyed the majority support in the Lok Sabha, it became necessary for the President to impose a condition that he should seek a vote of confidence at the earliest by the third week of August 1979 and therefore the appointment of Shri Charan Singh under those circumstances was not constitutionally valid. We are unable to accept this contention. In the first place, as pointed out already, it was not the case of the Petitioner that on 28th July, 1979 when Shri Charan Singh was appointed as Prime Minister by the President, it was established that he did not enjoy the confidence of the majority of the members of the Lok Sabha. Secondly, the Constitution itself does not contemplate any-conditional appointment of Prime Minister. Aiticle 75(1) of the Constitution does not refer to or contemplate any such appointment. Thirdly we have extracted the Gazette notification issued on 28th July, 1979 appointing Shri Charan Singh as Prime Minister and the said notification does not refer to any condition. Fourthly the Petitioner himself in his affidavit referred to it as a condition imposed by the President or advice given by him. Even assuming that the President, outside the notification, dated 28th July, 1979 appointing Shri Charan Singh as Prime Minister, had advised him to seek a vote of confidence in the Lok Sabha at the earliest, say, by the third week of August 1979 from that alone no inference can be drawn that the President was not satisfied that Shri Charan Singh was enjoying the confidence of the majority of the members of the Lok Sabha or was not capable of acquiring the confidence of the majority of the members of the Lok Sabha. It may be that the President was satisfied that Shri Chaian Singh was enjoying the majority support or was eatable of acquiring the majority up port of the Lok Sabha and yet he wanted that position to be publicity demonstrated and that was the reason why he advised Shri Charan Singh to seek a vote of confidence at the earliest say by the third week of August 1979. Under these circumstances we are unable to hold that the appointment of Shri Charan Srgh as Prime Minister on 28th July, 1979 is un-constructional as being opposed to Article 75(1) read with Arlicle 75(3) of the Constitution. As we have pointed out already strictly from the point of view of the prayer in the writ petition in Writ Petition No. 3671 of 1979, that question may not even arise.

We shall now take the second period namely, from 20th August, 1979 to 22nd August, 1979. On 20th August, 1979 Shri Charan Singh had resigned his office of Prime Minister ship and the President, while accepting the resignation requested Shri Charan Singh and his colleagues to continue in office till other arrangements were made, when that was the position, the question of Shri Charan Singh enjoying the majority support of the House of the People on or after 20th August, 1979 did not arise because the very fact of resignation of Shri Charan Singh was on the basis that he was not able to command the majority support of the members of the House of the People. As a matter of fact, we can go a step further and say that even, if shri Charan Singh had lost the vote of confidence in the Lok Sabha and as a result thereof had resigned and still the President had requested him and his colleagues to continue in office till other arrangements were made, the position will not be different. In either view the fact remains that the Cabinet had resigned and the Prime Minister and his colleagues were asked to continue in office till other arrangements were made and to contend in that context that the Prime Minister and his Cabinet should enjoy the confidence to the majority of the House of the People will be a contradiction interims. Therefore, the unconstitutionality of Shri Charan Singh continuing as Prime Minister on and from 20th August, 1979 to 22nd August, 1979 does not and cannot arise.

As far as the third period is concerned, on 22nd August, 1979 the Lok Sabha was dissolved by the President. Once the Lok Sabha has been dissolved by the President, the question of Prime Minister or the Cabinet being responsible to the Lok Sabha does not arise because the Lok Sabha itself is rot in existence. Shri Charan Singh continued in office only by virtue of the request made by the President on 20th August, 1979 after accepting the resignation of Shri Charan Singh and that of his colleagues in the Council of Ministers..........and no subsequent appointment of Shri Charan Singh as Prime Minister of any care-taker Government was brought to our notice. Consequent by the position is that from 20th August 1979 Shri Charan Singh continue in office as Prime Minister of care-taker Government only on the basis of the request made by the President on that date, that is, 20th August, 1979 and with reference to that request and the subsequent dissolution of the Lok Sabha on 22nd August, 1979, the question of Shri Charan Singh being responsible to the majority of the members of the House of the People does not and cannot arise. In fact, we put it to Mr. K. Parasaran that if on 20th August, 1979or 22nd August, 1979 the President had requested anybody lse to continue to function as Prime Minister of this country till other arrangements were made, would not the same objection which has now been taken by the Petitioner be available and the learned Counsel had to say, yes. When Shri Charan Singh resigned on 20th August, 1979 and the President accepted his resignation and asked him and his colleagues to continue in office till alternative arrangements were made, obviously the intention of the President was to explore the possibility of anybody else forming a stable Government and during that period there will be no question of the continuance of Shri Charan Singh being unconstitutional. Once the President came to the conclusion that nobody else was able to form a stable Government, since none enjoyed the majority support of the House of the People, which is the only inference that can be drawn from the dissolution of the House of the People by the President on 22nd August, 1979, he could have allowed Shri Charan Singh to continue as Prime Minister or could have appointed somebody else as Prime Minister. Whether he allows Shri Charan Singh to continue as Prime Minister or appoints somebody else as Prime Minister the position will be the same namely, neither would be commanding the majority support of the House of the People or could have established the same, since the Lok Sabha had been dissolved on 22nd August, 1979.

The decision of the Supreme Court in U.N.A. Rao Vs. Smt. Indira Gandhi, in a way supports the conclusion we have reached In that case, on the advice of the then Prime Minister, Mrs. Indira Gandhi, the House of the People was dissolved by the President on 27th December, 1970. The continuance of the Government headed by Mrs. Indira Gandhi was challenged in a writ petition before this High Court. On the dismissal of the writ petition, the matter was taken up in appeal to the Supreme Court. The case of the Petitioner-Appellant was that as soon as the House of the People was dissolved under Article 85(2) of the Constitution the Council of Ministers that is the Prime Minister and other Ministers ceased to hold office and that the said position followed plainly from the wording of Article 75(3) which provided that the Council of Ministers shall be collectively responsible to the House of the People. Dealing with this question in paragraph 10 of its judgment the Supreme Court observed as follows:

Now comes the crucial clause three of Article 75. The Appellant urges that the House of People having been dissolved this clause cannot be complied with. According to him it follow from the provisions of this clause that it was contemplated that on the dissolution of the House of People the Prime Minister and the other Ministers must resign or be dismissed by the President and the president must carry on the Government as best as he can with the aid of the Services. As we have shown above, Article74(l) is mandatory and therefore the President cannot exercise the executive power without the aid and advice of the Council of Ministers. We must then harmonies the provisions of Article 75(3) with Article 74(1) and Article 75(2). Article 75(3) brings into existence what is usually called ''Responsible Government''. In other words the Council of Ministers must enjoy the confidence of the House of People. While the House of People is not dissolved under Article 85(2)(b). Article 75(3) has full operation. But when it is dissolved the Council of Ministers cannot naturally enjoy the confidence of the House of People. Nobody has said that the council of Ministers does not enjoy the confidence of the House of people when it is prorogued . In the context therefore, this clause must be read as meaning that Article. 75(3) only applies when the House of People does not stand dissolved or prorogued. We are not concerned with the case where dissolution of the House of People takes place made Article 83(2) on the expiration of the period of five years prescribed therein or Parliament has provided for that contingency in Section 14 of the Representation of People Act, 1951.

Thus it will be seen that in the opinion of the Supreme Court Article 75(3) applies only when the House of the people does not stand dissolved or prorogued in other words that Article 75(3) does not apply when the House of the People stands dissolved.

As we have pointed out already the very House of the People namely the Lok Sabha was dissolved on 22nd August, 1979 and therefore Article 75(3) can have no practical application with the consequence that the continuance of Shri. Charan Singh as Prime Minister of the care-taker Government from 22nd August, 1979 cannot be characterized as illegal or unconstitutional offending Article 75(3) of the Constitution.

For these reason we hold that the Petitioner in Writ Petition No. 3671 of 1979 is not entitled to the relief he has prayed for therein and accordingly we dismiss the same.

We shall now take up the latter writ petition namely Writ Petition No. 3742 of 1979. The Petitioner was a Member of the dissolved Lok Subha representing the Arkonam constituency in Tamil Nadu. The Respondent to this writ petition is the Union of India represented by the Secretary Union, Cabinet, Cabinet Secretariat, New Delhi. We have already referred to the prayer in the writ petition, namely, the issue of a writ of declaration declaring that the House of the People now exist and will continue to exist in the eye of law till a notification is issued after the mid-term poll u/s 73 of the Representation of the People Act, 1951. In the affidavit filed in support of the writ petition, after referring to the event which led to the dissolution of the Lok Sabha by the President on 22nd August, 1979, the Petitioner contend that the existence of the executive legislature and the Judiciary i a Sine Qua Non for a democratic Constitution and the said three are the three live limbs of any democratic constitution and none of them can be mutilated or eclipsed for the duration of any period however short it may be, and the said position flows from a proper construction of Articles 52, 53, 62, 63, 65, 68, 74, 75, 79, 80, 81, 83 and 124 of the Constitution of India. In the affidavit the Petitioner concedes he right of the President under Article 85 of the Constitution of India, from time to time, to prorogue the House or either House and dissolve the House of the People; but contend that the said Artie e has to be understood and interpreted in the context of and in harmony with the other Article of the Constitution referred to earlier, and a reading of Article 85 read with Section 14 of the Representation of the People Act, 1951 shows that in case of the life of the House of the People expiring by efflux of time, general ejection shall be held for the purpose of constituting a new House of the people on the expiration of the duration of the existing House or on its dissolution and therefore just as in the case of expiry term of the House of the People by efflux of time a new House has to be constituted on its expiration, similarly in the case of the dissolution of the existing House, new House should be constituted on its dissolution. As a matter of fact in paragraph 10 of the affidavit the Petitioner states as to what procedure should be followed for dissolving the House of the People. To quote from the affidavit:

In a situation where the President passes at order of dissolution, the order should be so passed by adopting the following procedure which will maintain the continuity of the existence of the House of the People. If the House is in session, it should prorogued and then a proclamation of dissolution should be issued. If the House is net in Session it should be summoned and then prorogued and thereafter a proclamation of dissolution shoved be issued. In fact, such practice has been followed on some occasions in the United Kingdom when the House is dissolved. By adopting this practice, a notification of proclamation could be so issued as to maintain the continuity of the existence of the House of the People. The President will have to prorogue the House and thereafter a proclamation of dissolution of the House should be issued dissolving the House as and from a future date. Elections to the House should be so arranged and held in consultation with the Election Commission so that the results of the election of the House are published the next day after the date fixed for the dissolution of the House. If this procedure is followed, the existing House of the People will continue to subsist till future date fixed for its dissolution. But it will not be factually functioning because of its prorogation. The publication of the results of the election on a date which will be next to the date fixed for dissolution would have the effect of deeming the House to have come into existence, in view of Section 73 of the Representation of the People Act. This procedure ensures the existence of the House of the People till the election and bringing into existence of the new House by the deeming provision on the date of the publication of the results of the elections. The President will therefore be in a position to summon the House in an unexpected situation which demands a decision to be taken by the House of the People. Such a procedure wil1 enable the President to summon the existing House which is under prorogation till the date of the dissolution. Even if the new House has not started functioning by the members having taken oath of office since the publication of the results of the election has the effect bringing into existence of anew House by the deeming provision, the President will be entitled to summon the said House even before it has factually started functioning. If the above procedure is followed it will be seen that the Parliament or the House of the People will always exist perennially without a break. There should always be a President. There should always be the Rajya Sabha. There should always be the House of the People All the three together constitutes the Parliament. This will also ensure the fulfillment of the object sought to be achieved by Article 79 of the Constitution that there shall be a Parliament for the Union.

In paragraph 13 of the affidavit the Petitioner further contends that both on the authoritative pronouncement of the Supreme Court in U.N.A. Rao Vs. Smt. Indira Gandhi, , In re Presidential Election AIR 1974 S.C. 1682, the word shall in Articles 52 and 74 is mandatory and there shall be a President and there shall be a Council of Ministers and it is also authoritatively ruled by the Supreme Court in U.N.R. Rao v. Indira Gandhi (1) that

Cabinet enjoying as it does majority in the Legislature concentrates in itself the virtual control of both Legislative and executive functions.

and it is also re-affirmed in Samsher Singh Vs. State of Punjab and Another, where the Supreme Court has ruled that

The power of the sovereign is conditioned by the practical rule that the Crown must find advisers to bear responsibility for his action. Those advisers must have the confidence of the House of Commons. This rule of English Constitution is incorporated in our Constitution.

and in the judgment of V.R. Krishna Iyer, J., agreeing with the majority, it is observed that

The cabinet enjoys as it does the majority in the Legislature concentrates in itself the virtual control of both legislative and executive functions.

and therefore the enjoyment of the majority in the Legislature is the essential sine qua non for the Council of Ministers to function In the course of the argument before us also, the learned Counsel for the Petitioner elaborated the submissions made in the affidavit. He however made it clear that he is not challenging the dissolution of the House of the People ordered by the President on 22nd August,1979 and the Petitioner is only contending that the effect of the said dissolution is not to put an end to the life of the House of the People immediately, but to keep it alive till a new House is elected and comes into existence. In substance the argument advanced on behalf of the Petitioner is one regarding the legal consequence that flows from an order of the President dissolving the House of the People rather than the validity of the action of the President in dissolving the House of the People. We may paint out that the above contention was urged on the analogy of the practice in England. The learned Counsel for the Petitioner sought to sustain this argument with reference to two consideration namely, (1) on the basis of the language of the Constitution itself providing for the re-existence of a Parliament and (2) on general considerations, namely, that the Constitution has adopted a democrat form of responsible Government for the country and for such a Government to function, there must be a continued ex-tence of the House of the People to which the executive will be responsible and there should be no hiatus between one House and the successor House and such an object can be achieved by giving effect to the dissolution of the House from the date on which the elections to the new House are completed and the results announced thus bringing into existence the successor House.

We shall now consider this argument of the learned Counsel from both the angles. The Articles of the Constitution relied on for this purpose are Article 52 stating that there shall be a President of India, Article 74(1) stating that there shall be a Council of Ministers with the prime Minister at the head to aid and advise the President in the exercise of his functions, Article 79 stating that there shall be a Parliament for the Union which shall consist of the President and two houses to be known respectively as the Council of States and the House of the People, and Article 124(1) stating that there shall be a Supreme Court of India consisting of a Chief Justice of India and until Parliament by law prescribes a larger number, or not more than seven other fudges. The contention, of he learned Counsel or the Petitioner is that in every one these Articles there are the words there shall be thereby indicating that the continued existence of the respective institutions contemplated, by the Articles is mandatory and that is the view the Supreme Court has taken with regard to Articles 52 and 74 and therefore the same view should be taken with regard to Article 79 also. In support of this contention, reliance was placed on the decision of the Supreme Court in In re presidential Election AIR 1974 S.C. 1682 and U.N.A. Rao Vs. Smt. Indira Gandhi, . The former decision was concerned with the presidential election and in that context the Supreme Court had to construe Aiticles 62(1), 54, 55, 56(1) to proviso (c) and 71 of the Constitution and also the provisions of the Presidential and Vice-Presidential Election Act, 1952. We have already extracted Article 52. Article 54 deals with the electoral college for electing the President. Article 55 deals with the manner of election of President. Article 56(1) states that the President shall hold office for a term of five years from the date on which he enters upon his office. There is a proviso to this Article which (a) enables the President to resign his office (b) enables the remova1 of the President from office by impeachment and (c) further provides that the President shall, notwithstanding the expiration of his term continue to hold office until his successor enters upon his office. Article 62(1) provides that an election to file a vacancy caused by the expiration of the term of office or President shall be completed before the expiration of the term and Article 71 deals with the resolution of all doubts and dispute arising out of or in connection with the election of a President or Vice-President As ? result of the construction of these statutory provisions, the Supreme Court held in that decision as follows:

The election to the office of the President must be held before the expiration of the term of the President notwithstanding the fact that at the time of such election the Legislative Assembly of a State is dissolved. The election to file the vacancy in. the office of the President is to be held and completed having regard to Articles 62(1), 54, 55 and the Presidential and Vice-Presidential Elections Act, 1952. Article 56(1) Proviso (c) applies to a case where a successor as explained in the foregoing reasons has not entered on his office and only in such circumstances can a President whose term has expired continue.

Thus it will be seen that apart from any other consideration, the Supreme Court reached the conclusion regarding the indispensability of the continued existence of a President with reference to the language contained in Article 52 62(1), 56(1) proviso (c). The other consideration is the provision in the constitution in Article 53(1) that the executive power of the Union shall be vested in the President and, since there cannot be any vacuum in the existence and exercise of the executive power, there cannot be any vacancy in the office of the President as well Regarding the Council of Minister, the Supreme Court in U.N.A. Rao Vs. Smt. Indira Gandhi, observed a follows:

It will be noticed that Article 74(1) i mandatory in form. We are unable to agree with the Appellant that in the context the word "shall" should be read as "may". Article 52 is mandatory. In other word '' there shall be a President of India''. So in Article 74 (1). The Constituent Assembly did not choose the Presidential system of Government. If we were to give effect to this contention o the Appellant we would be changing the who concept of the Executive. It would mean that the President need not have a Prime Minister and Minister to aid and advice in the exercise of his functions. As there would be no Council of Ministers, nobody would be responsible to the House of the People With the aid of the advisers he would be able to rule the country at least till he is impeached under Article 61.

It seem to us that we must read the word "shall '' meaning "shall" and not may". If Article 74(1) is read in this manner, the rest of the provision dealing with the Executive must be read in harmony with it. Indeed, they fall into place, Under Article 75(1) the President appoints the Prime Minister and appoints the other Ministers on the advice of the Prime Minister, and under Article 75(2) they hold office during the pleasure of the President. The President has not aid that it is his pleasure that the Respondent shall not hold office.

Thus it will be seen that there shall always be a President. Logically it follows that there shall be a Council of Ministers also because a President can function only on the advice and with the aid of the Council of Ministers and therefore so long as the President exists, the Council of Ministers also should exist and consequently the construction of Articles 52 and 74(1) in the manner in which it was done by the Supreme Court is a harmonious one.

The contention of the learned Counsel for the Petitioner is that, just as Articles 52 and 74(1) have been construed to be mandatory, Article 79(1) also must be construed to be mandatory because the same language, namely, there shall be is used in all the three Articles. We shall now consider this submission.

We have already extracted Article 79. That Article refers to the Constitution of Parliament and Parliament consists of (1) the President (2) the Council of States and (3) the House of the People. The contention is that just as with reference to Parliament, the Constitution uses the words there shall be a Parliament for the Union, so also with regard to the three limbs, the Constitution uses the expression which shall consist of and consequently just as the existence of a Parliament is mandatory, so also the continued existence of each limb of the Parliament is mandatory and the continued existence of the President, one limb of the Parliament having been secured by Article 52 and the continued existence of the other limb of the Parliament, namely, the Council of States having been secured by Article 83(1), Article 79 read with Article 85 should be so construed as to secure a continued Existence of the House of the people also. Before dealing with this contention, we shall immediately refer to Articles 83 and 85 of the Constitution. Article 83(1) states:

The Council of States shall not be subject to dissolution but as nearly as possible one-third of the members thereof shall retire as soon as may be on the expiration of every second year in accordance with the provisions made in that behalf by Parliament by law.

Article 83(2) reads:

The House of the People unless sooner dissolved, shall continue for five years from the date appointed for its first meeting and no longer and the expiration of the said period of five years shall operate as a dissolution of the House.

Provided that the said period may, while a Proclamation of Emergency is in operation, be extended by Parliament by law for a period not exceeding one year at a time, not extending in any case beyond a period of six months after the proclamation has ceased to operate.

Article 85 reads as follows:

(1) the President shall from time to time summon each House of Parliament to meet at such time and place as 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 President may from lime to time (a) prorogue the House or either House; (b) dissolve the House of the People

The contention the learned Counsel for the Petitioner is that no doubt Article 83(1) states that the Council of States shall not be subject to dissolution and Article 85(2) enables the President to dissolve toe House of the People yet it is possible to construe the right of the President to dissolve the House of the People in such a manner as to have the continued existence of the House of the People so that just like the President and the Council of States there shall always be a House of the People with the result all the three limbs of the Parliament will have a continued find perennial existence. By way of supporting this contention, the learned Counsel drew our attention to Sections 14 and 73 of the Representation of the People Act, 1951 for the purpose of contending that, when the term of the House of the People comes to an end by the expiration of its normal period, there is provision for completing the elections before the date of such expiration so that the new house comes into existence immediately on the expiry of the period of the former House and in the same manner, the power of dissolution of the House of the People can be so exercised as to make the dissolution effective from the date when the elections for a new House bad been conducted and completed and the results announced therefore. Section 14 of the Representation of the People Act, 1951 reads as follows:

Section 14(1): A General election shall be held for the purpose of constituting a new House of the People on the expiration of the duration of the existing House or on its dissolution.

(2) For the said purpose, the President shall, by one or more notifications published in the Gazette of India on such date or dates as may be recommended by the Election Commission call upon all Parliamentary constituencies to elect members in accordance with the provisions of this Act and of the rules and orders made there under.

Provided that Where a general election is held otherwise than on the dissolution of the existing House of the People no such notification shall be issued at any time earlier than six months prior to the date on which the duration on that House would expire under the provisions of Clause (2) of Article 38.

Section 73 of this Act reads:

Where a general election is held for the purpose of constituting a new House of the People or a new State Legislative Assembly, there shall be notified by the Election Commission in the Official Gazette, as soon as may be after the results of the election in all the constituencies (other than those in which the poll could not be taken for any reason on the date originally fixed under Clause (d) of Section 30 or for which the time for completion of the election has been extended under the provisions of Section 153) have been declared by the Returning Officer under the provisions of Section 53 or, as the case may be Section 66, the nemes of the members elected for those .constituencies and upon the issue of such notification that House or Assembly shall be deemed to be duly constituted.

Provided that the issue of such notification shall not be deemed:

(a) to preclude

(i) the taking of the poll and the completion of the election in any Parliamentary or Assembly Constituency or constituencies in which the poll could not be taken for any reason on the date originally fixed under Clause (d) of Section 30; or

(ii) the completion of the election in any Parliamentary or Assembly Constituency or Constituencies for which time has been extended under the provisions of Section 153; or .

(b) to affect the duration of the House of the People or the State Legislative Assembly, if any functioning immediately before the issue of the said notification.

Mr. K. Parasaran, linked this submission with his alternative submission by taking that the from of executive contemplated by the Constitution is what is known as the responsible Government and for the purpose of securing a responsible Government there must be continued existence of the House of the People to which the Council of Ministers is collectively responsible and therefore if the provisions of the Constitution are capable of two interpretations, the Courts must adopt that interpretation which well secure this object, namely, the continued existence of the House of the People to which the Council of Ministers is Collectively responsible.

We have carefully considered this submission of the learned Council for the Petitioner as well as the Articles of the Constitution on which reliance has been placed and also the rationale behind the contention put forward by the learned Counsel for the Petitioner. It is admitted by the learned Counsel himself that there is absolutely nothing in the Constitution requiring that even in case of the normal time of the House of the People coining to an end, elections to constitute a successor or a new House should be held in advance so that the new House comes to existence on the same date when the period of the old House expires. If that be the position it cannot be contended that which regard to premature dissolution of the House the dissolution mast be so brought about as to bring into existence a new House simultaneously with the existing House coming to an end so as to avoid a hiatus between one House and the next House. It is indisputable that the provisions of the Constitution cannot be construed in the light of any enactment passed by Parliament in exercise of the powers conferred on it by the Constitution. Therefore we cannot derive any assistance from the provisions contained in the Representation of the People Act, 1951 for construing the scope of the relevant Articles of the Constitution. As we shall show later in the course of the judgment, even the provisions of the Representation of the People Act do not compel the Court to come to such a conclusion. At the same time, we shall mention that if there is nothing in the Constitution which is inconsistent with the contentions put forward by the Petitioner herein there will be no difficulty in construing the relevant provisions of the Constitution in the manner the Petitioner wants us to do so as to sub serve the interest of securing a responsible Government functioning in the country.

However, we are of the view that there ere provisions in the Constitution which contemplated the nonexistence of the House of the People between the date of its dissolution and the convening of a new House thereby showing that the Constitution does not compel the Court to come to the conclusion that there must be the continued existence of the House of the People and the President should exercise his power of dissolution under Article 85(2)(b) in such a manner as the date of the dissolution of the existing. House coincides with the date of the coming into existence of the new House. We have already referred to the argument based on the use of the words there shall be a Parliament for the Union which shall consist of the President and two houses to be known respectively a the Council of States and the house of the People, occurring in Article 79 of the Constitution. The corresponding Article dealing with the State Legislature is Article 168 Article 168(1) states:

For every State there shall be a Legislature which shall consist of the Governor, and (a) in the States of Andhra Pradesh. Bihar, Madhya Pradesh. Tamil Nadu, Maharashtra, Karnataka and Utter Pradesh two Houses; (b)in other States, one House.

Thus it will be seen that Articles 79 and 168(l)use the same language namely, there shall be and therefore if Article 79 is to be interpreted in one manner Article 168(1) also should be interpreted in the same manner. However Article 356 of he Constitution contemplates a situation where there need not be a Legislative Assembly in existence. Article 356 provides for the case of failure of the constitutional machinery in States Article 356 states:

356(1) If the President on receipt of a report from the Governor of a State or otherwise; s 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 be 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 or exercisable by the Governor or anybody 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.

Thus under this Article it is open to the President either to dissolve the Legislative Assembly or keep the Assembly in suspended animation. If the interpretation which the learned Counsel for the Petitioner wants to put on Article 79 is to be put on Article 168 also that will be inconsistent with the powers conferred on the President under Article 356(1) enabling the President to declare that the powers of the Legislative Assembly of a State shall be exercisable by or under the authority of Parliament. Thus it is clear that neither Article 79 nor Article 168 should be construed In such a manner as to hold that they do not contemplate the non-existence of the House of the People or the Legislative Assembly for any period whatever-As soon as this was pointed out Mr. Parasaran while conceding that Article 356 does contemplate the non-existence of a Legislative Assembly for the period of Proclamation made by the President, contended that there is another authority namely the Parliament to exercise the powers of the State Legislature. However, that does not answer the point since the continued existence of the Legislature Assembly cannot be the same thing as the Legislative Assembly not being in existence, but another body exercising the powers of the said legislative Assembly.

This is not the only provision which gives an indication that the Constitution does not contemplate the continued existence of either the Legislative Assembly or the House of the People Clause (3) of Article 356 provides:

Every Proclamation under this Articles 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 not resolution with respect to such Proclamation has been passed by the Houses 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.

The main part of this clause having provided that every Proclamation made under Article 356 shall cease no operate at the expiry of two months unless before the expiry of that period it had been approved by resolutions of both Houses of Parliament the proviso contemplates a situation where the House of the People stands dissolved. The proviso takes into account two situations namely a Proclamation being issued at the time when the House of the people has already been dissolved and situation where the dissolution of the House takes place after the issuance of the Proclamation.

In both the cases the proviso contemplates the possibility of both the Houses of Parliament not being in a position to approve the Proclamation issued by the President within the said period of two months and therefore makes provision in this behalf. Since the Council of States is a appermanent body there could be no difficulty in that House expressing its view by way of approval or disapproval of the Proclamation already issued within the period of two months on the other hand the House of the people being subject to dissolution depending upon when the dissolution had taken place before the issuance of Proclamation or subsequent to issue of the Proclamation, but before the expiry of two months from the date of the issue of the Proclamation, it may not be possible for the House of the People to express its opinion on the Proclameither by way of approval or dis-approval and that is the reason why the proviso states that in such an event:

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.

Clause (4) of this Article gives rise to the same inference which we have drawn from the proviso to Clause (3) of Article 356- Clauses (4) after the forty fourth amendment of the Constitution, reads as follows:

(4) A Proclamation so approved shall unless revoked cease to operate OH 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 A y 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 the 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 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 continuance in force of the Proclamation has been also passed by the House of the People.

We may also point out that, if the contention of the Petitioner is to be accepted, there will be no need for the provisos at all, because the main clauses themselves will cover the case. For instance we shall take Clause (3) of Article 356 and we have extracted its language already. If the House of the People is to have a continued and perennial existence like the Council of States, if the Council of Slates can be summoned so as to enable it to give its approval or disapproval of the Proclamation issued by the President within a period of two months, the House of the People can also be summoned notwithstanding the dissolution because according to the Petitioner the dissolution should become effective only on the coming into existence of the New House. The provisions contained in Article 352 will also support this inference of ours. The said Article before the forty-second and forty-fourth amendment of the Constitution read as follows:- the forty-second and forty-fourth amendments have no bearing on the question under discussion)

352(1) If the President is satisfied that a grave emergency exists whereby the scrutiny of India or of any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance, he may, by Proclamation make a declaration to that effect.

(2) A Proclamation issued under Clause (1):

(a) may be revoked by a subsequent Proclamation ;

(b) shall be laid before each House of Parliament;

(c) shall cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolution of both Houses of Parliament.

Provided that if any such Proclamation is issued at a time when the House of the People has been dissolved or the dissolution of the House of the People takes place during the period of two months referred to in Sub-clause (C) 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.

What we said with regard to the proviso to Article 356(3) and the other clause therein will apply to the proviso to Article 352(2) and the provisos to Article 352(4) and (5). In other words they do contemplate the non-existence of the House of the People as a result of the same being dissolved by the President. Article 360(2) dealing with the financial emergency originally stated that the provisions of Clause (2) of Article 352 shall apply in relation to a Proclamation, issued under this Article as they apply in relation to a Proclamation of Emergency is issued under Article 352. After the forty-fourth amendment, Clause (2) of Article 360 reads as follows:

360(2); A Proclamation issued under Clause(1)

(a) may be revoked or varied by a subsequent Proclamation;

(b) shall be laid before each House of Parliament;

(c) shall 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 is issued at a time when the House of the People has been dissolved or the dissolution of the House of the People takes place during the period of two months referred to in Sub-clause (c) 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.

And what we observed with regard to the proviso to Article 356(3) will apply to this proviso also.

Thus, on a consideration of Articles 352, 356 and 360 we come to the conclusion that the Constitution itself contemplates the non-existence of the House of the People when the President in exercise of his powers under Article 85(2)(b) dissolves the House of the People. In view of it is not possible for us to construe Article 79 of the constitution read with Article 85(2)(b) of the Constitution in such a manner as to hold that the Constitution Contemplates the continued existence of the House of the People always and even in the case of the President exercising his power to dissolve the House of the People he has to follow a procedure which will secure that the succeeding House of the People comes into existence simultaneously with the dissolved House of the People ceasing to exist, in other words, that there is no hiatus or interregnum between the two Houses.

We shall now deal with the contention of the learned Counsel for the Petitioner linking the necessity to secure a responsible Government with the necessity to construe Article 79 and 85(2)(b) as contemplating the continued existence of the House of the People. In other words, according to the learned Counsel for the Petitioner, the only method of securing a responsible Government is that there must be a continued existence of the House of the People so that the accountability of the Council of Ministers to the said House of the People can be tested whenever required or necessitated. We are of opinion that this argument also does not lend support to the object which the Petitioner seeks to achieve. We have already extracted Article 5(1) of the Constitution which provision deals with the summoning of each House of Parliament by the President. The Article contemplates the existence of an interval of less than six months between the last sitting of a House of Parliament is one session end the date appointed for its sitting in the next session. It is not in dispute that the summoning of Parliament by the President has to be done on the advice of fie Council of Ministers. Consequently, Article 85(1) contemplates a House of the People not being in session for a period which does not amount to six months. This provision will apply to interval between two sessions of a House of the People during its normal term of five years as well as the interval between the last sitting in a session of a dissolved House and the date appointed for the first sitting of the succeeding House. The consequence of this will be that even when the House of the People is not dissolved there is the possibility of its not being summoned to meet for a period not amounting to six months and therefore there is no need to construe the constitutional provision so as to avoid that possibility only with regard to dissolute on of the House of the People. As a matter of fact, if the distinction between the adjournment and the prorogation of the House of Parliament is to be the taken into account, it will follow that when the House is prorogued it is not in session at all and the House can meet for another Session only if the President summons, and such summoning by the President can only be on the advice of the Council of Ministers. That is the reason why the Supreme Court in U.N.A. Rao Vs. Smt. Indira Gandhi, already referred to has observed as follows (at page 1005):

Article 75(3) brings into existence what is usually called ''Responsible Government''. In other words, the Council of Ministers must enjoy the confidence of the House of People. While the House of People is not dissolved under Article 85(2) both Article 75(3) has full operation. But when it is dissolved the Counsel of Ministers cannot naturally enjoy the confidence of the House of the People. Nobody has said that the Council of Ministers does not enjoy the confidence of the House of People when it is prorogued, in the context, therefore, this clause must be read as meaning that Articles 75(3) Only applies when the House of People does not stand dissolved or prorogued.

The above observation of the Supreme Court proceeds only on the basis that as a result of the dissolution of the House of the People the House of the People ceases to exist and a new House can come into existence only latter.

The same inference with regard to the Legislative Assembly of a State can be drawn from an observation of the Supreme, Court in In re Presidential Election AIR 1974 S.C. 1682 referred to already. There also the Supreme Court observed as fellows (at page 1658):

The words an electoral college consisting of in Article 54 mean that the electoral college shall consist of persons mentioned therein. The words consisting of refer to the strength of electoral colleges. The Houses of Parliament and the Legislative Assemblies are mentioned in Article 54 only for the purpose of showing the qualifications of members of electoral college. The dissolution of the Assembly means that there are no elected members of that dissolved Assembly. The electoral college is always ready to meet the situation at the expiry of the term of office or any vacancy caused by death, resignation or removal or otherwise. The elected members of a dissolved Legislative Assembly of a State are no longer members of the electoral college consisting of the elected members of both Houses of Parliament and elected members of the Legislative Assemblies of the States and are therefore, not entitled to cast votes at the Presidential election...a result of dissolution of a Legislative Assembly of a State, there are no elected members of the Legislative Assembly of a State will not have any elected members of State Legislative Assembly to qualify for the electoral college.

As we pointed out already the argument of Mr. K. Parasaran is based to a great extent on the language of Article 52 to the effect that there shall be a President of India and Article 74 to the effect that there shall be a Council of Ministers with the Prime Minister as the head to aid and advise the President in the exercise of has functions. However, we are of the opinion that the decision of the Supreme Court in In re Presidential Ejection, 1974 is not based exclusively on the language of Article 52. The Supreme Court drew the inference of the continued existence of the President in office as a result of the combined interpretation of Articles 52, 56(1) provisos(c) and 62(1) as we printed out already. Article 56(1)(c) says that the President shall hold office for a term of five years from the date on which he enters upon his office I Provided that the President shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office, and Article 62(1) states that an election to fill a vacancy caused by the expiration of the term of Office of President shall be competed before the expiration of the term. It is all these three provisions that secures the continue existence of the President in office. If Article 52 itself is capable of producing this result, Article 62(1) would be unnecessary and otiose. Similarly, with regard to Article 74(1) once the President''s confide existence is secured by means of Articles 52, 56(1) proviso (c) and 62, as the President himself cannot exercise his executive functions without the aid and advice of the Council of Ministers, the Council of Ministers also has to be continuously in existence in other words, so long as the President continue to exist, the Council of Ministers also must continue to exist. Under these circumstances, we are unable to hold that it is only Articles 52(1) and 74(1) that secures the continued existence of the President in office and the Council of Ministers. Hence the argument of Mr. K. Parasaran based on the words used in Articles 52 and 74(1), namely there shall be cannot lead to the conclusion that when the same words are used in Article 79 they secures and assure the continued existence of the House of the People without any interregnum.

In this context, attention may be drawn to the provisions contained in the second proviso to Article 94 of the Constitution. That article states:

A member holding office as Speaker or Deputy Speaker of the House of the People.

(a) shall vacates his office if he ceases to be a member of the House of the People;

(b) may at any time by writing under his hand addressed if such member is the Speaker, to the Deputy Speaker, and if such member is the Deputy Speaker to the Speaker, resign his office, and

(c) may be removed from his office by a resolution of the House of the people passed by a majority of all the then members of the House;

Provided that no resolution for the purpose of Clause (c) shall be moved unless at least fourteen days, notice has been given of the intention to move the resolution:

Provided further that, whenever the House of the People is dissolved, the Speaker shall not vacate his office until immediately before the first meeting of the House of the People after the dissolution.

The argument of the learned Additional Solicitor General is that the very express provision for the continuance in office of the Speaker notwithstanding the dissolution of Parliament until immediately before the first meeting of the House of the People after the dissolution proceeds on the basis and postulate that all the Members vacate their office and it is only the Speaker who continues in office for the period referred to in the proviso, and but for this express provision, even, the Speaker would have vacated his office and consequently an inference can be drawn that the Constitution contemplates the House of the People coming to an end immediately on dissolution and does not postulate the continued existence till the fresh elections are held. As against this, the learned Counsel for the Petitioner Mr. K. Parasaran with reference to the same article contended that the Speaker is required to continue in office only for the purpose of convening the first meeting of the House of the People after the dissolution and therefore from that alone no inference can be drawn that the Constitution did not contemplate the continued existence of the House of the People even when the said House is dissolved. We are unable to agree with Mr. K. Parasaran. The very proviso clearly proceeds on the basis that but for this, proviso, the Speaker also would have vacated his office and it is this proviso which enables him to continue his office until immediately before the first meeting of the House of the People after the dissolution. Therefore from this proviso also, an ''inference can be legitimately drawn that the Constitution did not contemplate the continued existence of the House of the People even when the President in exercise of the powers under Article 85(2)(b) of the Constitution dissolved the House of the People.

In this context, Mr. K. Parasaran drew our attention to the practice in England as stated in Haisbury''s Laws of England as well as in other recognized text books. In Haisbury''s Laws of England volume XXVIII (third edition) page 753 paragraph 653, it is stated as follows:

Manner of Dissolving Parliament: Just as Parliament can be prorogued, so it can be dissolved, by the sovereign in person, but this method of dissolution has not been adopted since the reign of George III. When it has been decided to dissolve Parliament, the usual practice is for the sovereign to prorogue it to a definite date, and then with the advice of the Privy Council to issue a Proclamation under the Great Seal dissolving Parliament and announcing at the same time that she has ordered the Lord Chancellor to issue out Writs in due form for summoning a new Parliament.

The position in this behalf has been stated in Mays Parliamentary Practice, nineteenth, edition at page 259 as follows.

"A Parliament" in the sense of a Parliamentary period, is a period not exceeding five years which may be regarded as a cycle beginning and ending with a proclamation. Such a proclamation (which is made by the Queen on the advice of her Privy Council) on the one hand, dissolves an existing Parliament, and, on the other, orders the issue of writs for the election of a new Parliament and appoints the day and place for its meeting. This period, of course, contains an interregnum between the dissolution of a Parliament and the meeting of its successor during which there is no Parliament in existence; but the principle of the unbroken continuity of Parliament is for all practical purposes secured by the fact that the same proclamation which dissolves a Parliament provides for the election and meeting of a new Parliament...Parliament is dissolved either by efflux of time or by proclamation Under the Septennial Act, 1715 it ceased to exist after seven years from the day on which, by writ of summons, it was appointed to meet, this period was reduced to five years by the Parliament Act 1911, (Section 7) The Parliament which assembled in 1911 and 1935 were, by annual statutes, prolonged beyond this limit (to 1919 and l945 respectively) in the exceptional circumstances of world war. Parliament is no longer dissolved by the demise of the Crown.

Parliament is usually dissolved by proclamation under, the great seal, after having been prorogued to a certain day but such a ''proclamation is sometimes issued at a time when both Houses stand adjourned. More frequently, however when it has been proposed to dissolve Parliament while it stands adjourned,'' Parliament has first been recalled i under S.O. No 122 for formal prorogation, before the issue of the proclamation of dissolution, In 1950, when Parliament stood prorogued to 24, January, a proclamation (signed three days earlier) continued the prorogation until 14 February the proclamation dissolvent Parliament was signed on 3rd February, When Parliament is prorogued with a view to its dissolution, it is the usual but not the invariable practice to issue the proclamation the same day and dispatch the writs by that evening''s post.

Mr. K. Parsaran also handed over to us an extract from the publication in the London Gazette dated Tuesday, 10th May 1955 containing the proclamation of the Queen for dissolving the Parliament and declaring the calling of another, which so far as it is relevant, reads as follows:

Whereas we have thought fit, by and with the advice of our Privy Council, to dissolve this present Parliament which stands prorogued to Tuesday, the Tenth day of May instant We do, for that and, publish this Our Royal proclamation and do hereby dissolve the said Parliament accordingly; And the Lords Spiritual and Temporal and the Knights, Citizens and Burgesses and the Commissioners for Shires and Burghs, of the House of Commons, and discharged from their Meeting and Attendance on the said Tuesday, the tenth day of May instant; And we being desirous and resolved; as soon as may be, to meet our people, and to have their Advice in Parliament, do hereby make known to all our loving subjects our Royal will and Pleasure to call a New Parliament;

And do hereby further declare, that by and with the advice of our Privy Council, We have given Order that our Chancellor of Great Britain and oar Governor of Northern Ireland do respectively, upon notice thereof, forthwith issue out writs, in due form and according to Law, for calling a new Parliament; and we do hereby also by this Our Royal Proclamation under Our Great Seal of Our Realm, require Writs forthwith to be issued accordingly by Our aid Chancellor and Governor respectively for causing the lords Spiritual and Temporal and Commons who are to serve in the said Parliament to be duly returned to and give their Attendance in, Our said Parliament on Tuesday the seventh day of June next, which Writs are to be returnable in due course of Law:

The submission of Mr. K. Parasaran based on this practice is that by the same proclamation under which the Parliament is dissolved, a new Parliament is directed to be elected and summoned, thereby ensuring the continued existence of the Parliament. We are unable to draw from this English practice as well as the actual term of the Proclamation to which we have been referred any inference that our Constitution contemplate the continued existence of the House of the People. As a matter of fact, except for the Proclamation dissolving the existing Parliament and the Proclamation summoning the Parliament to be elected are issued on the same day in combination, there is nothing in the Proclamation issued by the Queen to show that the Parliament is not dissolved immediately when the Proclamation is issued and it is dissolved only on Tuesday, the 7th June when the new Parliament meets. As a matter of fact, the passage extracted from May''s Parliamentary Practice itself clearly shows that there is an interregnum between the dissolution of a Parliament and the meeting of the successor Parliament, and according to Erskine May, during this Period, there is no Parliament in existence But the statement that the principle of the unbroken continuity of Parliament is for all practical purposes secured by the fact chat the same Proclamation which dissolves a Parliament provides for the election and meeting of a new Parliament does not have the effect of continuing the life of the dissolved Parliament till the election and reconstitution of a successor Parliament. Under these circumstances we are unable to accept the submission of the learned Counsel that there is no interregnum whatever in the English Practice between the dissolution of one House and the constitution of another House. Apart from this, we are governed by the terms of our own Constitution which are we pointed out already did not expressly provide for the continued existence of the House of the People even after dissolution till the successor House is elected and constituted. On the other hand, there are provision in the Constitution which contemplate the non-existence of the House of the People after its dissolution and before the election and reconstruction of the successor House. In view of this, we are unable to see any justification to accept the argument of the learned Counsel in this behalf.

Even on general principal, we are not persuaded to hold that the dissolved House of the People must be deemed to continue to exist till the successor House of the People is elected. A House of the People may be dissolved for several reasons. Some of the reasons may be gauged from the following passage appearing in E.C.S. Wade and Godlrey Philips, Constitutional, Law, eighth edition at pages 84 and 85;

The other important personal prerogative of the Sovereign is the power to grant to a Prime Minister a dissolution of Parliament In this, as in other matters, the Sovereign will normally accept the advice of the Prime Minister since to refuse would be tantamount to dismissal and involve the Sovereign in the Political controversy which inevitable follows the resignation of a Ministry. There can never be any justification for the dismissal against the advice of the prime Minister of a Ministry which commands majority in the House of Commons. A Prime Ministers entitled to chooses his own time within the statutory five years limit prescribed by the Parliament Act, 1911 for testing whither his majority in the House of Commons still reflects the will of the electorate. No Sovereign could constitutionally refuse to grant him a dissolution of Parliament at the time of his choice. Indeed, it is doubtful if the Sovereign is free to seek advice on such an issue from anybody other than the Prime Minister. Admittedly, when a minority Government holds office, the position is more complicated, but here again it is for the Prime Minister rather than for the Sovereign to choose the occasion for appealing to the electorate. Only if a break up of the main political parties took place could the personal discretion of the Sovereign become the paramount consideration. There are, however, circumstances when a Sovereign may be free to seek informal advice against that of the Prime Minister. If the Sovereign can be satisfied that (1) an existing Parliament is still vital and capable of doing its job, (2) a general election would be detrimental to the national economy more particularly if it followed closely in the last election,, and (3) he could rely on finding another Prime Minister who was wiling to carry on his Government for a reasonable period with a working majority, the Sovereign could constitutionally refuse to grant a dissolution to the Prime Minister in office. It will be seldom that all these conditions can be satisfied. Particularly dangerous to a constitutional Sovereign is the situation which would arise if having refused a dissolution to the out going Prime Minister, he was faced by an early request from his successor for a general election. Refusal might be justified if there was general agreement inside and outside the House of Common that a general election should be delayed and clearly it would be improper for a Prime Minister to rely on defeat on a snap vote to justify an election. This prerogative is one which in commonweal''s States is delegated to the Governor-General (except, of course, in the republican States). It is perhaps more difficult for such an officer to maintain a position to political impartiality. Moreover, it is in the Commonwealth where in most cases the numbers in Parliament are much smaller than in West minister that there is more likely to be doubt about reliance on an incoming Prime Minister carrying on his Government without a general election. In 1939 all the three conditions were satisfied when the Governor-General of South Africa refused a dissolution to his Prime Minister. But in Canada in 1926, when all the conditions appeared to be satisfied, the third quickly proved not to be so.

Thus it will be seen that a House of the People may be dissolved on grounds such as (1) that the Government in Power lost its majority in the House of the People and there is nobody else who could constitute a stable Government enjoying the support of the House of the People, (2) that the existing House of the People ceased to reflect the ambitions and aspirations of the electorate and (3) that the President is not able to find another person, who was willing to carry on the Government for a reasonable period with a working majority. In all these cases, the decisions to dissolve the House of the People is not a pre-planned one and it is a decision taken suddenly on the emergence and development of certain situations and therefore there is no question, of keeping such a House of the People alive till elections to the successor House have been completed and a House comes into existence.

In this context, we shall also consider the reliance of Mr. K. Parasaran on the provisions contained in the Representation of People Act, 1951. As we pointed out already, reliance has been placed only on two sections, namely, Sections 14 and 73 of that Act. We have already referred to the fact in that Mr. K. Parasaran had to concede that there is no provision in the Constitution compelling the holding of elections to constitute a new House of the People in advance of the expiration of the normal term of the current House of the People as has been prescribed in Article 62(1) of the Constitution with reference to the President. Therefore taking the Constitution alone into account, we have to hold that the holding of election to constitute a new House to succeed an existing House need not take place before the expiry of the term of the Present House and the there could be an interval or interregnum between the expiration of the term of present House and the election for the constitution of a new House. It is only the provision contained in the Representation of the People Act, 1951 that provides for the election of a new House in advance of the expiration of the term of the present House. It is only in this context, Sections 14 and 73 of the Representation of the People Act which have already been extracted become relevant. The contention of Mr. K. Parasaran based on Section l4(1) is that section treats the coming to an end of the House of the People on the expiry of the duration and its dissolution alike and provides for the conduct of elections for the purpose of constituting a new House of the People in the same manner. Reliance was placed on the words on occurring in Section 14(1), namely, a general election shall be held for the purpose of constituting a new House of the People on the expiration of the duration of the existing House or on its dissolution. (under lining supplied) and contended that just as the election shall be held for the purpose of constituting a new House of the People on the expiry of the duration of the existing house, an election, shall be held for the purpose of constituting anew House of he people on its dissolution thereby meaning that in both the cases the constitution of the new House must be simultaneous with the expiration of the duration of the existing House in one case and with its dissolution on the other. Only in this context Mr. K. Parasaran contended that the word on means in proximity in, close to beside, near, at, of time, or section implying time, indicating the day of an occurrence, treated as a unit of time, as found in Shorter Oxford English Dictionary, third edition. The contention was that the elections must be so held as to constitute a new House on the expiration of the duration of the existing House or on the dissolution of the existing House and in both the cases the word on qualifies the expression constituting a new house of the People. We are of the opinion that the provisions contains in Section 14(1) of the Representation of People Act cannot be read in isolation and they have to be read in the context of the other provisions of the Act. Sub-section (2) of this section itself refers to the notification to be published in the Gazette of India by the President calling upon 11 parliamentary constituencies to elect members in according with the provisions of the Act and the rules and order made there under. The proviso to Sub-section (2) of Section 14 of the Act states:

Provided that where a general election is held otherwise than on the dissolution of the existing House of the People, no such notification shall be issued at any time earlier than six months prior to the date on which the duration of that House would expire under the provisions of Clause (2) of Article 83.

Thus, this proviso itself makes it clear that even this Act makes a clear distinction between the election conducted to a new House of the People after the expiration of the duration of the existing House and the election to a new House of the People on the dissolution of the existing House of the People. In fact, Section 30 of the Act has to be read along with Section 14(2). Section 30 gives a time table for the various steps to be taken for the conduct of election. That section reads as follows:

Section 30.-As soon as the notification calling upon a constituency to elect a member or members is issued, the Election Commission shall, by notification in the official Gazette, appoint

(a) the last date for making nominations, which shall be the seventh day after the date of publication of the first mentioned notification, if that day is a public holiday, the next succeeding day which is not a public holiday;

(b) the date for the scrutiny of nomination; which shall be the day immediately following the last date for making nomination, or if that day is a public holiday, the next succeeding day which is not a public holiday;

(c) the lost date for the withdrawal of candidates which shall be the second day after the date for the scrutiny of nominations or, if that day is a public holiday, the next succeeding day which is not a public holiday;

(d) the date or dates on which a poll shall, if necessary, be taken, which or the first of which shall be a date not earlier then the twentieth day after the last date for he withdrawal of candidatures; and

(e) the date before which the election shall be completed.

Thus it will be seen that after the President had issued the notification u/s 14(a) of the Act calling upon the parliamentary constituencies to elect members, considerable time has to elapse before the actual election is conducted Further, there is the additional time that will be taken for the preparation and revision of the electoral rules as contemplated by the Representation of the People Act, 1950 Section 19 of that Act deals with the conditions of registration of voers and it states that every person who is not ess then twenty-one years of age on the qualifying date, and is ordinarily resident in a constituency shall, be entitled to be registered in the electoral roll for that constituency Qualifying date has been defined, in relation to the preparation or revision of any electoral roll, as meaning the first day of January of the year in which it is so prepared or revised u/s 14(b) of the 1950 Act. Section 21 of the 1950 Act in Sub-section (1) thereof states that:

the electoral roll for each constituency shall be prepared in the prescribed mannerly reference to the qualifying date and shall come into force immediately upon its final publication in accordance with the rules made under this Act, and Sub-section (2)(a)(i) of that Act states that:

the said electoral roll shall, unless otherwise directed shall by the Election Commission for reasons to be recorded in writing, be revised in the prescribed manner by reference to the qualifying date before each general election to the House of the People or to the Legislative Assembly of a State.

Consequently, before a general election can take place, there must be the preparation and revision of electoral rolls as contemplated by Section 21 of the Representation of the People Act, 1950 which itself has a time table of its own, and thereafter u/s 14(2) read with Section 30 of the Representation of the People Act, 1951, the process of election has to be gone through. The result is that the electoral process will take a fairly long time. In the case of a general election to constitute anew House of the People on the expiry of the term of the present House of the People, the date when the present House of the People will come to an end is known in advance and therefore preparation for the conduct of an election to being into existence anew House can be made early as so as to conduct the elections before the actual date of the expiry of the duration of the present House in accordance with the provisions of the Representation of the People Acts, 1950 and 1951. Obviously with reference to a dissolution of the House of the People which is a decision taken suddenly, there could not have been a preparation in advance for the conduct of a fresh electon. Realing this only, even the Petitioner contends that the President must be so dissolve the House of the People as to make the dissolution effective from a future date on which an election to the successor House can be conducted From what we have noted above there necessarily has to be a fairly long interval between the date of the order of the President dissolving the House of the People under Article 85(2)(b) of the constitution of the new House and from the very object of the dissolution, it cannot reasonably be expected that the dissolved House itself must be deemed to continue in existence during that interval so that the dissolved House may be summoned by the President on the advice of the Council of Ministers. Consequently, we are unable to draw any inference even from Section 14 of the Representation of People Act, 195l the House of the People should have continued existence and there should not be a hiatus or interregnum between one dissolution of House and the election of the next House.

The last submission of Mr. K. Parasaran is that there may be an Emergency when the House of the People is required to act and if there is an interregnum between the dissolution of one House and the election of a successor House, there will be no House of the People to act during the Emergency. We asked the learned Counsel for the Petitioner to point out the provision of the Constitution which contemplates the House of the People necessarily functioning in an Emergency Mr. K. Parasaran just draw our attention to the opinion of the Supreme Court In Ref. by President of India Under Article 143(1) of the Constitution of India on the implementation of the Indo-Pakistan Agreement relating to Berubari Union and Exchange of Enclaves. In that case, the Indo-Pakistan Agreement was entered into on 10th September, 1958 between the Prime Ministers of India and Pakistan with a view to remove the border area disputes and problem and one of the items related to the division of Berubari Union No. 12 and another related to the exchange of old Cooch Bihar enclaves. A doubt having arisen whether the implementation of the Agreement relating to the Berubari union No. 12 and the exchange enclaves required any legislative action either by way of a suitable law of Parliament relatable to Article 3 of then Constitution or by way of suitable amendment of the Constitution in accordance with provisions of Article 368 of the Constitution or both, the President referred certain questions for the opinion of the Supreme Court under Article 143(1) of the Constitution-Dealing with this question, the Supreme Court observed as follows:

We have already held that the Agreement amounts to a cession of a part of the territory of India in favor of Pakistan; and so its implementation would naturally involve the alteration of the content of and the consequent amendment of Article 1 and of the relevant part of the First Schedule to the Constitution, because such implementation would necessarily lead to the diminution of the territory of the Union of India such an amendment can be made under Article 368. This position is not in dispute and has not been challenged before us: so it follows that acting under Article 368 Parliament may make a law to give effect to, and implement the Agreement in question covering the cession of a part of Berubari Union No. 12 as well as some of the Cooch-Bihar Enclaves which by exchange are given to Pakistan. Parliament, may however, if it so chooses, pass a law amending Article 3 of the constitution so as to cover cases of cession of the territory of India in favor of a foreign State. If such a law is passed then Parliament may be competent to make a law under the amended Article 3 to implement the Agreement in question. On the other hand, if the necessarily law is passed under Article 368 itself that alone would be sufficient to implement the Agreement.

We are of the opinion that the said decision is not sufficient to compel us to come to the conclusion that the Constitution contemplates the exercise of functions by the House of the People which necessarily involves the continued existence of the House of the People. Normally speaking the functions of the Parliament including the House of the People are (1) to make law as provided for in Article 245 to 248, Part II, Chapter I(2) to ratify or approve of the Proclamation issued under Articles 352, 356 and 360 and (3) to amend the Constitution under Article 369. As for as the first function is concerned, there is specific provision made in the Constitution in Article 123 thereof for the President to promulgate ordinances when both the Houses of Parliament are not in session. As for as the second function is concerned we have already dealt with in extenso the proviso to those Articles and the different clauses in the Articles which expressly contemplate the non-existence of the House of the People on dissolution and make necessary provision in this behalf. As for as the third function is concerned, it is not one of day to day occurrence and in particular, the amendment of the Constitution cannot be said to be an urgent one as to warrant an inference that the House of the People must have a continued existence to exercise that function. Even in cases of treaties entered into by the country with a foreign Government, provision is made for a subsequent notification of theses treaties by the House of the People if such ratification is necessary and consequently there is no question of drawing the inference that for the exercise of such a power, the House of the People must be continuously in existence.

Having regard to the above said circumstance we are clearly of the opinion that there is nothing in, the Constitution which compels us to come to the conclusion that notwithstanding the order passed by the President of India on 22 August, 1979 in the present case dissolving the House of the People, the House of the People continued to exist till a notification is issued after the mid-term poll u/s 73 of the Representation of the People Act, 1961. Hence in our opinion the Petitioner is not entitled to the relief he has prayed for and consequently Writ Petition No. 3742 of 1979 will stand dismissed. There will be no order as to costs in both the petitions.

With reference to Article 132 read with Article 134A of the Constitution of India, we certify that the case involves a substantial question of law as to the interpretation of the Constitution so as to enable the Petitioners in these writ petitions to prefer for an appeal to the Supreme Court of India against this judgment of oars.