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Gopal Sisodia Vs. Union of India, Etc. - Court Judgment

LegalCrystal Citation
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 320 of 1980
Reported inILR1980Delhi299
ActsConstitution of India - Article 239; Delhi Administration Act, 1966 - Sections 11
AppellantGopal Sisodia
RespondentUnion of India, Etc.
Advocates: B.R. Kapur,; B.N. Lokur and; M.C. Sekharan, Advs
Cases ReferredK. B. Sahay v. Commission of Enquiry
.....allegations are of fats which are well known and undisputed.; 3. fundamently, the exercise of political power is not only unreviewable but also unjusticiable. the distinction between these two may be subtle, but it exists. justifiability has to be seen first. reviewability comes next. it is only if an issue is justiciable that the court has to consider whether the action should be judicially reviewed or not. last comes the merit of the case. whatever may be the extension, which the scope of judicial review has received under the pressure of circumstances and with a view to do justice, no judicial review can ever extend to completely wipe out the most fundamental feature of the constitution, namely, the separation of powers. the judicial review of administrative action cannot extend..........with a politicaldecision which is to be taken by the government.(8) fundamentally, the exercise of political power is not only unreviewable but also unjusticiable. the distinction between these twomay be suitable, but it exists and has been spelt out by mr. justicebrennan of the united states supreme court in demon barlow v.b. l. collins, (1970) 397 u.s. 159(3), and association of processingservice organisations v. camp (1970) 397 u.s. 150(4). justiciabilityhas to be seen first. the criteria of justifiability are laid down in bakerv. carr 369 us 186(5), in the following words : 'it is apparent that several formulations which vary slightlyaccording to the settings in which the questions arise maydescribe a political question, although each has one ormore elements which identifies it as.....

V.S. Deshpande, C.J.

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

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

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

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

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

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

(5) The warrant of appointment produced by the respondents showsthat Mr. Jagmohan was appointed Lt. Governor of Delhi under Article 239(1) of the Constitution by the President of India. Mr. Kapursays that Article 239(1) empowers the President to appoint an Administrator and not a Lt. Governor. This argument is not sustainable because Article 239(1) itself says that the President may govern theUnion Territory either himself or through an Administrator to beappointed by him 'with such designation as ho may specie'. The words in quotation marks show that the President is not bound to callthe person who is to administer the Union Territory only by onename, that is to say, Administrator. It is in pursuance of this powerthat the President has designated the Administrator of Delhi as theLt. Governor. Since the appointment of Mr. Jagmohan is preciselyaccording to Article 239(1) the contention that it was bad for anyreason is not sustainable.

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

(7) It is true that in D. D. Suri v. A. K. Barren : AIR1971SC175 , and certain other decisions the Supreme Court has observed that when serious allegations of bona fides are made which need to be answered by the respondents the writ petition should not be dismissed in liming, but the respondents should be called upon to file an affidavit regarding these allegations. In our view, mala fides can be of two distinct kinds. The facts constituting the mala fides may either be admitted or well known or may be disputed. If the facts are well known and admitted, the question of the respondents traversing these facts cannot arise because no averment of fact by the respondents is necessary at all. We, thereforee, understand the decisionof the Supreme Court to apply when facts which are within, the personal knowledge of the petitioner and which are not admitted by therespondents and which also relate to something personal alleged againstthe respondents which need a reply from the respondents. In thepresent case, the allegations of bona fides are based on two facts.Firstly, the Congress (1) party has won the January, 1980 election'sto Parliament from the Union Territory of Delhi. Secondly, Mr.Jagmohan, who was the Vice-Chairman of the Delhi DevelopmentAuthority was suspended by the Janata Government which came topower after the March, 1977 elections, but was never removed, thoughit is the removal which has been alleged in the writ petition. Boththese allegations are of facts which are well known and undisputed.Mala fides are sought to be inferred from these facts. So far as theintention of the new party in power is concerned, it has happenednot only now, but several times in the past that a new political partycoming in power has at times set aside certain acts of the previousGovernment or has instituted enquiries as to the actions of the previous Government. For instance, some of the State Assemblies weredissolved by the President as advised by the Janata Government afterthe result of March, 1977 elections. The intention expressed bythe Janata Government to dissolve the State Assemblies was challengedin the Supreme Court by way of suits under Article 131 of the Constitution and also by way of writ petitions. They were dismissed by theSupreme Court in State of Rajasthan and others v. Union of India, : [1978]1SCR1 . Reading the judgments of all the learnedJudges together, the ratio of that decision appears to be that barringexceptions like mala fides, the court will not interfere with a politicaldecision which is to be taken by the Government.

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

'IT is apparent that several formulations which vary slightlyaccording to the settings in which the questions arise maydescribe a political question, although each has one ormore elements which identifies it as essentially a functionof the separation of powers. Prominent on the surfaceof any case held to involve a political question is founda textually demonstrable constitutional commitment ofthe issue to a coordinate political department; or a lackof judicially discoverable and manageable standards forresolving it; or the impossibility of deciding without aninitial policy determination of a kind clearly for non-judicialdiscretion; or the impossibility of a court's undertakingindependent resolution without pressing lack of therespect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassmentfrom multifarious pronouncements by various departmentson one question.'

Reviewability comes next. It is only if an issue is justiciable thatthe court has to consider whether the action should be judicially reviewed or not. Last come the merits of the case. So far as thepresent writ petition is concerned, in' our view, it raises an issue aboutthe exercise of the power of the Administrator under section 11 ofthe Delhi Administration Act with the approval of the President.The President would ordinarily be advised by the Council of Ministers,(Samsher Singh v. State of Punjab, : (1974)IILLJ465SC . The relief which is sought by the petitioner virtually means that this courtshould tell the Cabinet (Union of India, respondent No. 1) to advisethe President not to give approval to the Lt. Governor in dissolvingthe Metropolitan Council under section 11 or rather if the approvalof the President is sought by the Lt. Governor under section 11, thenthe Central Government should be restrained from advising the President from giving the approval. Whatever way we look at it, thequestion, is entirely governed by section 11 of the Delhi AdministrationAct and the Constitution under which the powers of the Central Government and the President are to be exercised. Whatever may bethe extension, which the scope of judicial review has received underthe pressure of circumstances and with a view to do justice, no judicialreview can ever extend to completely wipe out the most fundamentalfeature of the Constitution, namely, the separation of powers. Thejudicial review of administrative action cannot extend to action ofthe Government which is taken entirely in discretion, and which isgoverned by policy and political considerations. The petitioner maythink that the Government is dissolving the Metropolitan Council ofDelhi because the present Council has a majority of the opposition,parties. The party in power may think, on the other hand, that theverdict given by the January, 1980 election is such that the Metropolitan Council of Delhi has ceased to represent the people of Delhi.These rival contentions of the rival political parties are matters ofpolitics and not justiciable issues. Almost all the criteria of justifiability laid down by the United States Supreme Court in Baker v. Carr,referred to above, could be applied to the present case to show that the exercise of the power by the Lt. Governor under section 11 isnot justiciable.

(9) So far as the allegation against Mr. Jagmohan is concerned thathe intends to dissolve the Metropolitan Council because he had beensuspended by the Janata Government, the petitioner has failed to notethat the power of the Administrator cannot be exercised except withthe approval of the President. Mr. Jagmohan cannot, thereforee, actout of any personal motive. 'Even if he were to do so, the CentralGovernment does not have any such personal motive. The in.tentionof the Central Government in advising the president would be onlypolitical. Further, Mr. Jagmohan was only suspended by the JanataGovernment an,d he is to exercise the power under section 11 of theDelhi Administration Act according to his judgment of the circumstances. We are not at all convinced, thereforee, that any personalmotive of the Lt. Governor can be said to have been involved in theintention to dissolve the Metropolitan Council. We may further pointout that even where any such personal motive could be said to havebeen involved but the dominent motive was political or the exerciseof the power given by the statute, the Supreme Court in several decisions held that the dominent motive was not personal and, thereforee,no question of mala fides could come. We need only refer to threedecisions of the Supreme Court in The State of Jammu and Kashmirv. Bakshi Gulam Mohammad and another, : AIR1967SC122 , P.V. Jagannath Rao v. State of Orissa, : [1968]3SCR789 , andK. B. Sahay v. Commission of Enquiry, : 1969CriLJ520 .

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

(11) The right of the President, on the advice of the Cabinet, todissolve a legislature is embodied in the Constitution and reproducedin section 11 of the Delhi Administration Act. This in its turn isbased on the long standing constitutional convention in the United Kingdom, according to which 'no Monarch has refused a dissolution whenrequested by the Prime Minister, or forced one against advice.' [SomeProblems of the Constitution' by Geoffrey Marshall and Graeme C.Moodie, (1961) page 52]. A convention 'may be described as the'battleground' between conflicting political forces and constitutionalbeliefs in society. But this is true not only of disputes about conventional rules. It applies also to a legal argument...... 'attempts topersuade the Supreme Court Justice (of United States) of what thedocumentary constitution ought to mean'' is an instance oflegal argument stepping into the field of political morality (ibid pages 44and 45). It has been further said that 'the standing of the court atany period will depend, in part, upon whether its interpretations conflict with the wishes and beliefs of the most powerful forces in societyat the time.' (ibid page 45). The rejection by the Supreme Court inthe State of Rajasthan case (supra) in 1977 of the contention that thepolitical decision to dissolve the Assemblies should be countermandedby judicial decision and the rejection by the Madras and Allahabad HighCourts of the challenges to the dissolution of Assemblies in 1980 areillustrations of the force of this observation. The learned authorshave further observed that 'it is at least arguable that the high standingof the British Court owes something to the fact that many ofthe most important constitutional rules are, at present of a non-legalcharacter.' Evert though 'the doctrine of parliamentary supremacysaves the British courts from having to give the last word on legalpoints...... it is doubtful whether this would prevent the courts froma loss of prestige if they were constantly called upon to decide (evensubject to parliamentary 'reversal') a whole series of constitutionalcontroversies.' (ibid page 45).

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

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

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