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In the Matter Of: A. Sreeramulu - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 1481 of 1973
Judge
Reported inAIR1974AP106
ActsConstitution of India - Articles 74(1), 226, 355, 356 and 363(1)
AppellantIn the Matter Of: A. Sreeramulu
Appellant AdvocateP.A. Choudary, Adv.
Respondent AdvocateK. Subrahmanya Reddy, Central Govt. Standing Counsel and Principal Govt. Pleader
Excerpt:
constitution - maintainability - articles 74 (1), 226, 355, 356 and 363 (1) of constitution of india - petitioner challenged declaration of president's rule in state - maintenance of petition challenged - petitioner cannot invoke jurisdiction of this court to question president's declaration either on ground of malafide or on any other ground - held, petition not maintainable. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the.....order1. the petitioner is a member of the legislative assembly of andhra pradesh. in this application for the issue of a writ under article 226 of the constitution, he questions the validity of the proclamation of the president of india under article 356 of the constitution imposing what is familiarly called 'president's rule' in the state of andhra pradesh and the order of the president directing the governor of the state of andhra pradesh to perform all the functions of the government. the proclamation and the order were both made on 18-1-1973. the writ petition was filed on 9-3-1973.2. in his petition, the petitioner alleges that there was no circumstances whatever which could have led the president to be satisfied that a situation had arisen in which the government of the state could.....
Judgment:
ORDER

1. The petitioner is a member of the Legislative Assembly of Andhra Pradesh. In this application for the issue of a writ under Article 226 of the Constitution, he questions the validity of the proclamation of the President of India under Article 356 of the Constitution imposing what is familiarly called 'President's rule' in the State of Andhra Pradesh and the Order of the President directing the Governor of the State of Andhra Pradesh to perform all the functions of the Government. The proclamation and the order were both made on 18-1-1973. The Writ Petition was filed on 9-3-1973.

2. In his petition, the petitioner alleges that there was no circumstances whatever which could have led the President to be satisfied that a situation had arisen in which the Government of the State could not be carried on in accordance with the provisions of the Constitution. According to the petitioner the Proclamation was mala fide and obliquely motivated. The truth, according to him, was that there was a crisis in the leadership of the State Congress Legislature Party : the leader Sri P. V. Narasimha Rao had lost the confidence of the majority of members because of the partisan attitude on the Mulki Rules issue: the proclamation had been issued not because there was a constitutional crisis in the State, but with a vied to set the house of the Congress Legislature Party in order and to resolve the crisis within the Party. The petitioner urges that if Sri, P. V. Narasimha Rao had lost the confidence of the Congress Legislature Party and had tendered the resignation, it was the duty of the Governor to explore the possibility of forming another Ministry. Instead, the petitioner says, the Governor submitted a report inviting President's rule. The petitioner further claims that the President's Proclamation had been issued to stifle any democratic expression of opinion by the Legislature of Andhra Pradesh on the burning question of bifurcation of the State of Andhra Pradesh into two States.

3. When the Writ Petition came up before me on 13-3-1973 for admission I felt a doubt whether the issues raised by the petitioner were justifiable issues and whether the validity of the Proclamation could be the subject-matter of an enquiry under Article 226 of the Constitution. I also felt that the nature of the issues raised were such that a Rule Nisi should not be issued by applying the ordinary rule of a 'triable issue' or an 'arguable point' but that a Rule Nisi should be issued only if the petitioner made out a substantial prima facie case. Therefore, I heard elaborate arguments from Mr. P. A. Choudary first on 12th and again on 13th to which date I adjourned the Writ Petition at the instance of Mr. Choudary who wanted more time. On 14th I also heard the learned Principal Government Pleader and the Standing Counsel for the Central Government who were kind enough to assist me though no Rule Nisi had been issued. Having heard elaborate arguments , I am convinced that the Writ Petition must be dismissed for a variety of reasons.

4. Before considering the submissions of the petitioner it is just as well that I refer to the events that have taken place in this State in the last few months. In the wake of the judgment of the Supreme Court in what is now well known as the 'Multi Rules Case' came the demand of the employees of the Government of Andhra Pradesh belonging to the Andhra area that the Mulki Rules should be scrapped on one side and the demand of the employees belonging to the Telangana area that the Mulki Rules should be strictly enforced on the other side. A controversy which involved none but the Government employees in the beginning spread step and came to involve large sections of the people in the whole of the Andra area of the State of Andhra Pradesh. Several demands sprung up . A demand that the Mulki Rules should be scrapped snowballed into other demands that Andhras living in the twin cities of Hyderabad and Secunderabad should have equal treatment not only in the matter of employment but also in the matter of admission into educational institutions etc., and other demands such as the scrapping of the Telengana Regional Committee etc., into a demand for a separate Andhra State. Large sections of the people belonging to different walks of life jumped into the fray. An agitation was started for a separate Andhra State. The Prime Minister in a bid to solve the problem announced a Five Point Formula pursuant to which the Parliament passed the Mulki Rules Act. Apparently sections of people were not satisfied with the solution afforded by the Mulki Rules Act. The agitation continued. The Deputy Chief Minister and ten other ministers resigned from the Cabinet. The agitation in the Andhra area took a violent turn . Central Reserve Police and the Army were called in. On one side there was arson and loot and on the other there was firing by the police. The law and order situation deteriorated very badly. Meanwhile, all the non-gazetted employees belonging to the Andhra Area went on an indefinite strike from 7-12-1972 onwards. Several Gazetted Officers including doctors and engineers also went on strike. Lawyers too went on strike. The result was an almost breakdown of the machinery of the Government in the Andhra districts of the State. Taxes were not paid and there was pandemonium everywhere. Even in some of the Secretariat Departments members of the staff belonging to the Andhra area went on strike. The Secretariat Administration is even now running with great difficulty. That was the stage when the Chief Minister tendered the resignation of the Cabinet having made six days earlier , a vain bid to save the situation by adding a few more ministers to the Cabinet. It was then that the Governor submitted a report to the President made the impugned Proclamation and order.

5. Article 356 occurs in Part XVIII of the Constitution which deals with 'Emergency Provisions'. I will first refer to Article 355. Article 355 enjoins a duty on the Union Government to protect every State against external aggression and internal disturbances and to ensure that the Government of every State is carried on in accordance with the provisions of the Constitution. Article 356 enables the President, if he is satisfied on a receipt of a report from the Government of a State or otherwise , that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution, to make a proclamation assuming to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor , declaring that the power of the legislature of the State shall be exercisable by or under the authority of Parliament and such incidental and consequential provisions as may be necessary. Article 356(3) provides that every proclamation under the Article shall be laid before each House of Parliament and shall cease to operate at the expiration of two months , unless it has been approved by resolutions of both Houses of Parliament before the expiration of two months. It is worthy of note that the Proclamation of the President may be made even if the Parliament is in session, unlike the Ordinance - making power of the President under Art. 213 of the Constitution.

6. At this stage , it is necessary to know the character of the power exercised by the President under Article 356 of the Constitution. It has been pointed out by the Supreme Court in Javantilal Amratlal v. F. N. Rana, : [1964]5SCR294 and Sardari Lal v. Union of India , : (1971)ILLJ315SC that the power , under Article 356 is not a power of the Union Government but that it is a power specifically vested in the President by the Constitution and in regard to which the satisfaction is the personal satisfaction of the President. In Sardari Lal's case the Supreme Court said :

'There are several Articles under which the President is required to be satisfied before an action is taken .............. Article 356 says that if the President on receipt of a report from the Governor of the State or otherwise , is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution he may make a proclamation as provided in the Article .............. In such cases , it is the President who has to be personally satisfied on the material placed before him about the various matters on which action has to be taken. Such functions may pertain to the executive power of the Union which is vested in him under Article 53(1). But this cannot fall within Article 77(1) which is confined to executive action of the Government of India.'

In Jayanti Lal Amrit Lal Shodhan's case, : [1964]5SCR294 the Supreme Court observed :

'The power .............. to declare failure of the constitutional machinery in States under Article 356 ............ to enumerate a few out of the various powers - are not powers of the Union Government: these are powers vested in the President by the Constitution and are incapable of being delegated or entrusted to any other body or authority under Article 258(1).'

It is thus clear that the power of the President under Article 356 is not 'Executive Action' of the Government of India under Article 77(1) of the Constitution . But that does not mean that the President acts wholly independently of the Cabinet. Under Article 74(1) of the Constitution 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. There is no reason why Article 74 should be confined in its application to the functions mentioned in Part V of the Constitution and not to other functions of the President found elsewhere in the Constitution as thought by some lawyers. The only reason advanced by such lawyers is that Article 74 is found in Part V of the Constitution and therefore it must be considered to apply to the functions of the President occurring in that Chapter only. The language of Article 74 is very wide and there is no reason to imprison it in that fashion. It is the duty of the Council of Ministers to aid and advise the President on every matter relating to the discharge of his functions.

7. The primary question for the consideration is whether the satisfaction of the President leading to his making a Proclamation under Article 356 is justifiable. Sri Choudary argued that the existence of a situation in which the Government of the State could not be carried on in accordance with the provisions of the Constitution was a jurisdictional condition for the exercise of the President's power and the Court was entitled to exercise its power of judicial review to discover whether the power had been exercised bona fide and whether there were any relevant circumstances at all justifying the expression of satisfaction, though he would concede that the Court could not go into the sufficiency of the reasons. He relied on the well-known principles of Administrative Law expounded by the Supreme Court in Barium Chemical Ltd v. Company Law Board, : [1967]1SCR898 and Rohtas Industries Ltd. v. S. T. Agarwal, : [1969]3SCR108 by the House of Lords in Padfield v. Minister of Agriculture , 1968 (1) All ER 694 and by the Privy Council in Rossclunis v. Papadopoullos , 1958 (2) All ER 23. He particularly relied on the observations of Lord Morton in the last case where he said .

'There Lordships ....................... think that if it could be shown that there were no grounds on which the appellant could be satisfied, a Court might infer either that he did not honestly form that view or that, in forming it, he could not have applied his mind to the relevant facts.'

8. I do not think that the shackles of Judicial review which the Courts have so rightly put upon the arbitrary exercise of discretion by administrative agencies can be permitted to be put on the expression of satisfaction by the President in a matter specially confided to him by the Constitution. The satisfaction of the President in a matter entrusted to him by the Constitution cannot be equated to the discretion conferred upon an administrative agency by some legislation or subordinate legislation. There is indeed a great ocean of difference between the Head of the State expressing his satisfaction on a Constitutional issue, aided and advised by a council of Ministers responsible to the Parliament and the monors of the State exercising their discretion on administrative issues. Sri Choudary argued that the word 'satisfaction' must be construed to mean the same thing wherever it occurred. He said it could not mean one thing when it was the Constitution that was interpreted and another thing when it was other legislation that was interpreted. That is not true. Without doubt, an expression must take colour from its context. The old rule of interpretation that the text must prevail over the context is no longer valid when interpreting modern Constitutions and modern Statutes. Nor is it correct to treat the question as one turning entirely on the meaning of the word 'satisfaction'. The question is whether the satisfaction of the President under Article 356 of the Constitution is a matter which can ever by the subject-matter of an enquiry in a proceeding under Article 226 of the Constitution. The context in which Art. 356 occurs in the Constitution is a leading pointer to its non-justifiability. Art. 356 occurs in the Chapter relating to 'Emergency Provisions' and contemplates an emergency occasioned by a situation in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution. The existence of such a situation or the factors which may be considered as validly leading to the conclusion that the situation exists are hardly matters, as I shall presently point out, on which the Courts are competent to pronounce. The further context is that the power is entrusted to the Head of the State, himself elected by the Parliament and all the Legislatures of the States, and he assisted and advised by a Council of Ministers, themselves elected and responsible to the Parliament. Nor has the President the last word on the subject. The Parliament is the final arbiter in the matter. The proclamation has to be placed before both Houses of Parliament and shall lapse on the expiry of two months if not approved by both houses. Therefore, it is to the Parliament and not to the Courts that the Constitution has entrusted the task of reviewing the President's action. Where the Constitution has committed to another agency of Government other than Courts the 'autonomous determination of the issue', the Courts have no right to usurp a function which is not theirs.

9. Perhaps one may not rightly describe the function of the President under Article 356 as a political function since the Constitution broadly classifies the several functions dealt with by it as legislative, judicial and executive, the executive function being the residue of what does not fall within the other two functions. But it does not require any mental ability or legal ingenuity to identify the issue of the President's satisfaction under Article 356 as a basically political issue. I ask, as Justice Frankfurter asked in the case of Coleman v. Miller, (1938) 307 US 433. 'Is it for Courts to meddle with matters that required no subtlety to the identified as political questions ?' Even the rights which the petitioner claims are infringed are not rights of a person or property but political rights and rights of Government. And what are the considerations which may lead the President to conclude that the Government of the state cannot be carried on in accordance with the provisions of the Constitution The petitioner seems to labour under the impression that if a party has an undisputed majority in the Legislature to enable its leader to form a Ministry, it can never be said that a situation has arisen where the Government of the State cannot be carried on in accordance with the provisions of the Constitution. That is not correct. There may be many diverse and varied considerations. An outbreak of unprecedented violence which the Government of a State is unable to curb may be a consideration. A great natural calamity like a severe earthquake or a flood creating a situation which the Government of a State is unable to meet may be a consideration. A large epidemic leading to mass deaths and exodus may be another. In all these cases there may be such a failure of the Government of the State as to amount to an abdication of its Governmental power. Any other cause which may paralyse the Government of a State may be a consideration. The Government of a State may enter into alliances with Foreign Governments and that may be consideration. Sri Choudary urged that internal disturbance could never be a ground for action under Article 356 since it was provided for by Article 356 of the Constitution. There is no substance in this submission. True, Art. 355 casts a duty on the Union Government to Protect every State against internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of the Constitution. But, in given situation, the President may come to the view that that is not enough to save the situation but action under Article 356 is necessary. There is nothing to prohibit the President from proceeding to act under Art. 356 in cases of internal disturbance.

10. We have seen that there is a wide range of situations when the President may act under Article 356. The important thing to notice is that the Constitution thing to notice is that the situations and there is no 'satisfactory criteria for a judicial determination' of what are relevant considerations. The very absence of satisfactory criteria makes the question one which is intrinsically political and beyond the reach of the Courts. The considerations which are relevant for action under Article 356 and the weighing of those considerations appear to be clearly matters of political wisdom, not for judicial scrutiny. Again it must be obvious that any attempt to settle a controversy raised by a proclamation under Art. 356 will necessarily be followed by tremendous consequences. The very vastness of those consequences makes it 'impolitic or inexpedic' for a Court to assume jurisdiction. I cannot do better than to quote the observations of Justice Frankfurter in another connection in Colegrove v. Green, (1945 328 US 549).

'We are of opinion that the petitioners ask of this Court what is beyond its competence to grant. This is one of those demands of judicial power which cannot be met by verbal fencing about 'jurisdiction'. It must be resolved by considerations on the basis of which this Court, from time to time, has refused to intervene in controversies. It has refused to do so because due regard for the effective working of our Government revealed this issue to be of a peculiarly political nature and therefore not meet for judicial determination ................. The basis for the suit is not a private wrong, but a wrong suffered by Illinois as a polity ..............

Nothing is clearer than that the controversy concerns matters that brings the Court into immediate and active relations with party contest. From the determination of such issues this Court has traditionally held all of. It is hostile to a democratic system to involve the judiciary in the politics of the people. And it is not less pernicious if such judicial intervention in an essentially political contest be dressed up in the abstract action of the law ............. To sustain this action would cut very deep into the very being of Congress. Courts ought not to enter this political thicket.'

11. I have already said that the issues raised will immediately provoke questions which are of a peculiarly political character which cannot be resolved judicially even if constitutional interpretation is evolved. Thus the very nature of the questions involved, the circumstances that it is the Head of the State that is entrusted with the discharge of the duty and the fact that it is the Parliament that is the final arbiter lead to the inevitable conclusion that the Court can never go behind the proclamation issued by the President. The learned counsel argued that there is no express provision prohibiting judicial review such as the one found in Article 363(1) of the Constitution. The provision in Article 363(1) barring the jurisdiction of Courts was obviously designed to meet a special situation where erstwhile rulers of native States had become citizens of India entitled to rights like other citizens and who might, therefore, invoke the jurisdiction of Courts to interpret instruments entered into by them with the Government of the Domination of India. The contrast with Article 363(1) is therefore irrelevant. The ouster of the jurisdiction of Courts is intrinsic to the very nature of the power exercised by the President under Article 356 of the Constitution. I have given my reasons earlier. It is immaterial that the jurisdiction is not expressly ousted.

12. Sri Choudary lamented that such an interpretation would cut at the very principle of a federal democracy and make the President a despot. There is no basis for apprehension of Sri Choudary. As already mentioned by me the power is entrusted to the President who is entrusted to the President who is elected not only by Parliament but by all the Legislatures of the States. The President is not only the 'highest dignity of the realm but the embodiment of the unity of the Country'. The power is subject to review by an elected Parliament which includes representatives from all States. And, after everything is said and done, it is the people of the country that should resist despotic tendencies on the part of the President or the Majority party in the Parliament and it is scarcely a matter for the Courts. To quote justice Frankfurter again 'holding democracy in judicial tutelage is not the most promising way to foster disciplined responsibilities in a people.'

13. I may now refer to some decisions of Privy Council and the Supreme Court which support this view. In Bhagat Singh v. The King Emporor. 58 Ind App 169 = (AIR 1931 PC 111) the question arose whether the Court could go into the question whether a state of emergency existed justifying the Proclamation of the Governor General of India under Section 72 of the Government of India Act, 1919. The Privy Council said.

'That raises directly the question who is to be the Judge of whether a state of emergency exists. A state of emergency is something that does not permit of any exact definition: it connotes a state of matters calling for drastic action. Which is so be judged as such by some one. It is more than obvious that that someone must be the Governor General, and he alone. Any other view would render utterly inept whole provision. Emergency demands immediate action and that action is prescribed to be taken by the Governor-General ................. In fact the contention is so completely without foundation on the face of it that it would be idle to allow an appeal to argue about it.'

In Emperor v. Benori Lal Sharma, AIR 1945 PC 48 also the Privy Council asserted the proposition once again that the Governor General was the sole Judge of the question whether and emergency existed.

14. In R. C. Cooper v. Union of India, : [1970]3SCR530 : : [1971]1SCR512 the question of the justifiability of the satisfaction of the President in Promulgating an Ordinance was raised but was not answered by the Supreme Court. In Madhava Rao Scindia v. Union of India, : [1971]3SCR9 . Hidayatullah, C. J., who wrote a separate but concurring judgment held that a charge of mala fide made against the President in the discharge of his duties cannot be injured into by any Court. Nor could there be any probe into the reasons for the action of the President. The learned Chief Justice relied on Articles 74(2) and 361(1) of the Constitution. He observed.

'Further it is not open to me to probe the reasons for decision by the President. To begin with under Article 74(2) the question, whether any if so. What advice was tendered by the ministers to the President cannot be inquired into by any Court. Again by Article 361(1) the President is not answerable to any Court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise of those powers and duties except in an investigation of a charge under Article 361. All that is saved is that appropriate proceedings against Government of India can be taken. Therefore, whether the President acted rightly or wrongly in the matter may be decided against the Government of India without questioning the conduct of the President. Therefore, the only question open is whether the act of the President open is whether the act of the Constitution'.

Thus according to the learned Chief Justice the Court was incompetent to go into the question of mala fide or probe into the reasons for the action of the President though it could go into question of ultra vires. Applying the views of the learned Chief Justice to the facts of the present case, it is clear that the petitioner cannot invoke this Court's jurisdiction to question the President's proclamation either on the ground of mala fide or on the ground that there were no grounds, any probe into the mind of the President or the reasons for the action being prohibited. I have arrived at the same conclusion without reference to Article 361(1) or Article 74(2) of the Constitution on which Hidavatullah, C. J., relied in : [1971]3SCR9 . The conclusion that the satisfaction of the President is not a justifiable issue is supported by the decisions in K. K. Aboo v. Union of India : AIR1965Ker229 , Rao Birender Singh v. Union of India, and G. Roy v. Tarpura Mukherji. (1972) 76 Cal WN 411 = (AIR 1973 Cal 223).

15. Even assuming that the Court possesses some limited power of judicial review, there is no force in the submission of the learned counsel for the petitioner that there were no circumstances justifying the Presidential proclamation. I have already narrated the events that took place before the Proclamation was made. I am entitled to take judicial notice of these events of contemporary history. The events narrated by me would show that there was a complete break down of law and order in a large area of the State and strike by a great section of Government employees practically paralysing the Government. I have also explained earlier, that those considerations are, without doubt, relevant considerations which may be taken into account to conclude that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution. There was thus sufficient jurisdiction for the President's Proclamation, if proof of such justification was necessary.

16. Lastly there is the question of delay which, in my opinion disentitles the petitioner from obtaining any relief from this Court. The petitioner is a Member of the Legislature Assembly and he complains of the loss of the civil and political rights. If the application was meant seriously one would have expected him to rush to Court as soon as the Proclamation was made. But, instead, he waited and tarried. He filed the writ petition on 9-3-1973 though the Proclamation was made on 18-1-1973. Meanwhile pursuant to the Proclamation and the Order of the President. Advisers to the Governor were appointed and for the last two months the entire administration has proceeded on the basis of the Proclamation and the order. If the proclamation and order of the President are void, then in the last two months there have been many illegal transactions, taxes have been wrongfully collected, payments have been illegally made, public accounts improperly settled, orders have been wrongly issued, licences and permits unauthorisedly granted etc. Yet, the petitioner, claiming to be interested in Constitutional Government chose to lie by, Sri Choudary urged that the petitioner had a right to complain at any time so long as the Proclamation and the order were in force and at any rate, according to the practice of this Court, within a period of six months. The question is not one of limitation or whether the petitioner has a right to approach this Court whether this Court ought to issue a Rule in the present circumstances. I am firmly of the view that it will no be right for this Court to issue a Rule on this belated application, after so much has happened. Sri Choudary brought to my notice the circumstance that the petitioner was in preventive custody for a few days. But admittedly he was free from the first week of February onwards. The question is not whether a particular individual was or was not in a position to bring to the notice of the Court to issue to Rule. I have already indicated my reasons for holding that it would be highly improper for the Court to issue a Rule at this stage. Though I have a suspicion that application lacks seriousness. I do not want to venture so far as to say that the application is not bona fide. It is unnecessary. But I am quite satisfies that it is belated.

17. Thus, viewed from any angle, the writ petition must, of necessity, be dismissed. It is accordingly dismissed.

18. Petition dismissed.


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