1. By a notification dated 14-11-1972, in exercise of the powers conferred upon him by Article 174(2)(a) of the Constitution of India, the Governor of Tamil Nadu Mr. K. K. Shah, prorogued the Tamil Nadu Legislative Assembly with effect from the forenoon of 15-11-1972, Mr. K. A. Mathialagan, the Speaker of the Assembly has filed W. P. 2968 of 1972 under Article 226 of the Constitution praying for a writ of certiorari, or order or direction in the nature of a writ to call for the records of the respondent, who is the Governor of Tamil Nadu, relating to G. O. Ms. 128 Legislative Assembly department, dated 14-11-1972, and quash the same and also pass such further or other order as this court may deem fit under the circumstances of the case. Mr. M. G. Ramachandran, Leader of the Anna Dravida Munnetra Kazhagam and a member of the Assembly, has filed W. P. 2969 of 1972 with a similar prayer, W. P. 3010 of 1972 filed by Mr. K. T. K. Thangamani, also a member of the Legislature, is with a like prayer. According to the Speaker, the circumstances leading to the petitions are these. The Speaker convened a meeting of the Assembly to be held on and from 13-11-1972. When the Assembly commenced. Mr. K. T. K. Thangamani wanted the Chief Minister to make a statement on Cabinet changes since the House had last met and the reasons therefor. The Speaker ruled that it was open to the Chief Minister to make necessary changes according to administrative exigencies and so he could not be compelled to give his reason. There was a motion for removal of the Speaker, the subject of which was raised, and a few members expressed their views. The Speaker brought to the notice of the House the legal position regarding requirement of 14 days clear notice of such a motion and ruled that the motion could be taken up for consideration only the next day. He stated that 'to protect and preserve Democracy' he would like to take up the 'no-confidence' motion straightway on the 14th and asked the Leader of the House if it would be all right. But the Chief Minister said that a date could be fixed later in consultation with the members. The Speaker, however, rejected the suggestion and held that the motion would be taken up for consideration on the next day. Mr. M. G. Ramachandran then raised a point of order and said that the Ministry had lost the confidence of the majority of the members in the party and the people, and questioned the property of the Government continuing in office. Mr. Thangamani also voiced a similar sentiment. The Chief Minister said that the House could straightway discuss the no-confidence motion against the Government. The Speaker then explained that an extraordinary situation had arisen in the State and it was advisable to seek fresh mandate from the people. There was some further discussion and the Chief Minister said that he would go to the polls in 1976. Some members suggested that the Chief Minister should have some time a think over the suggestion. The Speaker felt that this was quite proper, especially as the Chief Minister did not give a reply whether he was prepared for a re-election even then. He, therefore, adjourned the House till 5-12-1972 in order to enable the Government to consider the suggestion made regarding their seeking a fresh mandate from the people. While that was the position the Governor had issued the impugned notification. It was significant that so far no Ordinance had been issued on any matter of importance nor had the Assembly been re-convened to any specific date anterior to 5-12-1972, to which date the House stood adjourned. The Speaker, therefore, submits that the order of the Governor is contrary to the letter as well as the spirit of the law and the Constitution, and says that he has no remedy except to seek the aid of this court under Art. 226. The Speaker proceeds to say in his affidavit in support of the petition that the Governor, apparently, on advice, was attempting to follow the precedent of the Punjab Assembly in 1968, but the circumstances were entirely different and hardly analogous. The Speaker has further stated that from the above it would be seen that the Governor is the Head of the Executive and forms part of the Legislative along with the two Houses. He derives legislative power only in the absence of the House. While the power to prorogue may not be conditional at the same time, it has to be used to further, rather than frustrate the Democratic process. In the present case, there was no matter of any great urgency which needed to be disposed of before 5-12-1972, and which could not wait till then. The piquant situation caused by the Speaker's adjournment in the Punjab Assembly in 1968 had absolutely no parallel to the present situation in Tamil Nadu. The Governor is, therefore, incorrect in placing any reliance on the Punjab precedent or in seeking to act likewise. The very decision of the Supreme Court in the Punjab case lays open to judicial review an order of the Governor under Art. 174. He, therefore, submits that in the instant case, the exercise of the power by the Governor is vitiated by lack of good faith. In fact, he says, if there was any matter that could be considered important, if not urgent, it was the notice of a motion of no-confidence tabled against him by two members, which he wanted to take on the 14th. By proroguing the House, that notice has lapsed and even if it is sought to be revived, the period of 14 days notice that is mandatory will not enable the matter to be considered much earlier. The Speaker points out that it was significant that though the Assembly had been prorogued, there has since been no notice to convene again nor has any Ordinance been issued to lend excuse, if not justification, for the extraordinary act of proroguing the Assembly one day after it had been convened and only to bring all business before it to a standstill. Being in exclusive right and responsibility to steer the course of the Assembly and guide its deliberation, he complains that by the impugned notification, the Governor, has really invaded his exclusive jurisdiction. In a statement to the Press, the Chief Minister had admitted alleges the Speaker, that the Governor acted on the advice of the Government. If this were so he says that it cuts at the very root of the power exercised by him and if allowed to stand, this would in effect mean that every time the Government finds itself in an inconvenient or awkward position, it could avoid the natural consequences of the Democratic process by resorting to the subterfuge of getting the House prorogued. As the Constitutional Head of the State, it is the duty of the Governor to enable free discussion on important current issues agitating the minds of the people of the State, and not act on the interested advice of the Government whose anxiety may conceivably lie in a different direction. Inasmuch as the notification of proroguing the Assembly is but a thinly veiled attempt to by-pass his decision to adjourn the House for three weeks in the absence of any kind of emergency or justification, or pending business which needed early consideration, he would submit that the action of the Governor could not be upheld. The Speaker adds that it was significant that the Leader of the House did not bring to his attention at any time, the existence of any pressing or important business that could not wait for three weeks. The fact that the Legislative Council was adjourned the same day sine die was also relevant. The Speaker winds up his affidavit by stating that a perusal of the proceedings that led to the decision to adjourn the House would amply justify his decision which itself was only intended to enable the Government to take stock of the situation in the State gauge the public feeling on vital issued, and come to a decision whether to seek the mandate of the people again or not. His decision was, therefore, in perfect accord with the real functioning of the Democratic process; it would not have created any impasse, nor would it have posed any practical problems for the Government. It sought to stay the act of the respondent that at the moment, sought to stay the Democratic process. It is not as if the Assembly would be able to meet earlier than December 5, for the necessary notices have to issue and there appears to be no Ordinance in the offing at all. It is on these allegations and submissions that the Speaker has prayed for the relief from this court. Mr. Ramachandran's affidavit entirely supports the Speaker. In the first instance, the Speaker and Mr. Ramachandran had in their respective petitions only impleaded the Governor as the sole respondent. But they have subsequently taken out petitions to impleaded the Chief Secretary to Government and also the Secretary of the Legislative Assembly. These petitions have been ordered by us.
2. Mr. Thangamani, in his affidavit says that the exercise of the power under Article 174 in the instant case was vitiated by lack of good faith and abuse of power as it had been admittedly done on the advice of the Ministry in Office against whom a motion of no-confidence was pending at the time. He goes on to say that when the Speaker in exercise of his undoubted power and privilege had adjourned the House for the Chief Minister to take a concerted decision on the question of having re-elections in view of the situation prevailing in the State, the Governor had really enabled the Ministry to side-step the ruling of the Speaker for its own political purpose and convenience and expediency. In doing so the Governor, says Mr. Thangamani, had abdicated his personal responsibility to objectively assess the situation and act in a manner most consonant with Democracy, but had merely reflected the subjective reaction of the Ministry whose popular support was challenged, and the Governor had, therefore, failed to discharge his functions under Article 174 in good faith. This, Mr. Thangamani submits brought the present case squarely within the dicta in State of Punjab v. Satyapal, . Mr. Thangamani would further say that the Governor when acting under Article 174 was not discharging a purely executive function nor was such an order by him strictly speaking, an act of the Executive issued in his name. Both prorogation and dissolution of the House are acts of far-reaching effects and consequences and affected both the Executive as well as the Legislative limits is the State. By necessary implication and a constitutional historical interpretation, the Governor acts in his own right and responsibility when taking a decision under Article 174, and cannot merely voice the views of his Council of Ministers. Any contrary interpretation will not only make the Governor a futile and purposeless functionary, but lead to all possible abuses by the Council of Ministers whose interest might not necessarily or conceivably always be that of the general public, or of whose interests the Governor, as Head of the State was sole guardian. There was no pending business on 13-11-1972, which could not wait till 5-12-1972. The procedure generally followed before the prorogation involved the participation of the Secretariat of the Legislature the Speaker, the Council Chairman, the Leader of the House and the Chief Minister. But Mr. Thangamani, as he goes on to state, understood that in the instant case the usual procedure was not followed and the Speaker was not even informed, much less consulted, and this departure from the usual procedure also pointed to bad faith. Under the Rules the Speaker could advance or postpone the date of any session. If indeed there was any emergent business that could not wait till December 5, and there was a bona fide need to have the session earlier, the Speaker could have been requested to advance this date. Unless he had been so requested and he refused to yield if reasonable, there is no point in rushing to act under Article
174. The short adjournment for three weeks to consider a serious and important issue posed before the Government could not be reasonably construed as leading to a Constitutional crisis or administrative stalemate to justify resort to Article 174. These are the circumstances and some of the reasons with reference to which Mr. Thangamani has approached this court with the prayer mentioned earlier. In his petition he has not only impleaded the Governor, but also the Chief Secretary and the Secretary of the Legislative Assembly, as respondents.
3. The Governor, the Chief Minister, the Chief Secretary and the Secretary of the Legislative Assembly have filed separate counter affidavits and have resisted the petitions. The Governor at the outset, has stated in his common counter affidavit that under Art. 361 of the Constitution the Governor of a State is not answerable in courts for any of the acts done or purporting to be done by him in the exercise of his powers, nor, did Art. 226 of the Constitution empower the court to issue a writ against the Governor of a State. He has also submitted that the power to prorogue is absolute. Without prejudice to these contentions, he has referred to the circumstances as mentioned in the affidavit of the Chief Minister which led up to the adjournment of the Assembly and consequent prorogation and has stated that he was advised that there was pressing financial business to be transacted by the Assembly. On the agenda of 13-11-1972 an important item to be disposed of by the House related of Electricity Budget which had to be taken up immediately after the question hour. It left undisposed of. He was further advised by the Chief Minister that there were other important matters which required immediate attention namely, a Bill in respect of Agricultural income-tax, and another measure relating to Betting tax. He had also fixed 16-11-1972 for presentation of Supplementary Estimates, 1972-73. All these were matters which were to be disposed of by the legislature. The sudden adjournment by the Speaker putting the Legislative machinery out of action for the time being left no alternative to him, but to prorogue the legislature on the advice of the Chief Minister, in order to enable the emergent Government business to be carried on. Copies of the required ordinance were sent to him on 17-11-1972. While they were being considered by him, he received the rule nisi in the above writ petition and notice of application for stay of the operation of the prorogation order. In deference to these notices, he has not done so. The Governor in his counter-affidavit proceeds to state that he regretted very much that charges of lack of good faith should have been leveled against him. When the Assembly was adjourned till 5-12-1972, without doing any business and he was advised about the need to transact pressing Government financial business as stated already, he thought that it was his duty to prorogue both the Houses, so that there may be no dislocation in running the business of the Government. The petitioners had not given any particulars as to the absence of good faith and only a bald statement to that effect had been made. The Governor would, therefore, say that the averment was absolutely untrue and that he denied it. He has also added in his counter affidavit that the order of prorogation was made after careful consideration of the advice of the Chief Minister, the proceedings of the Assembly on November 13 and the background of events represented to him. The Assembly had been adjourned by the Speaker without transacting any business, and the Constitution has conferred on him the power of prorogation to remedy such a situation. The Governor has also stated that the allegation of the Speaker that he had invaded his jurisdiction is wholly misconceived, and that, when the Speaker instead of conducting legislative business, adjourned the House for the purpose which was beyond him, it was the right and duty of the Governor under the Constitution to effectuate the Democratic process, and that it was only in the supreme interest of the State that the prorogation had been ordered. The counter affidavit of the Chief Minister, Mr. M. Karunanidhi, has at the outset mentioned that Mr. Ramachandran was a member of the D. M. K. Party, that he was suspended from the party for breach of party discipline, that there after he became antagonistic to the party, formed his own party known as Anna Dravida Munnetra Kazhagam, and has since then been making several allegations and casting aspersions against the Ruling Party including the council of Ministers. According to the Chief Minister, the Speaker of the Legislative Assembly was stated to be siding Mr. Ramachandran and encouraging his anti D. M. K. activities, and that several members of the Ruling Party expressed profound dissatisfaction about his indulging in active politics, contrary to the code of ethics prescribed for the office of the Speaker. This promoted some of the members of the Ruling Party to give a notice of resolution for the removal of the Speaker. Under the Constitution and Legislative Assembly rules, 14 days notice was required for moving such a resolution. The Assembly sat on 13-11-1972 at 10 a.m. During the question hour, some members raised a point of order relating to the notice of resolution for the removal of the Speaker. The Speaker said that the notice of resolution could be taken up only on the 14th, as 14 clear days notice was required. He further said that he was prepared to have this taken up on 14-11-1972, and asked the Leader of the House Mr. V. R. Nedunchezhian to give his consent to which he replied that he would consult the Speaker and the members and have the date fixed before the Secretary of the Legislature Assembly circulated the motion to the members of the Assembly. But strangely enough, a little later, on a point of order raised by Mr. Ramachandran which was no point of order at all either in fact or under the Rules, the Speaker made a speech which was wholly unwarranted on his part, advising him, that is to say the Chief Minister to have the Assembly dissolved and to face the electorate in view of what he termed as an extraordinary situation in that the Council of Ministers had lost its support among the people. The Chief Minister in his counter affidavit goes on to say that it was curious that the Speaker should have chosen to tender such advice to the Government which enjoyed the absolute confidence in the Assembly and had an overwhelming majority. That being so, the Council of Ministers, of which he was the Chief Ministers, was perfectly and legitimately entitled to continue in office under the Constitution. This unwarranted and uncalled for speech would clearly demonstrate his partisan attitude and it smacks of political overtones. In fact, the Speaker had violated his oath of office in not upholding the Constitution. In tendering such advice, he has not only transgressed, but had even gone to the extent of abusing his position. On the contrary he had offered to have either the motion of censure against the Government or the adjournment taken up immediately. But, that was no allowed to be taken up by the Speaker. The Chief Minister adds that the entire proceedings of the Assembly would show that the members of the Treasury bench were restrained and evinced keen interest in proceeding with the transaction of the business. Further, according to the Chief Minister, the Speaker's adjournment was arbitrary and capricious and was done with an ulterior motive of avoiding considerations of the resolution for his removal, and the Speaker had thus prevented the popularly elected Assembly from conducting its lawful deliberations in accordance with the norms of Democracy. Then the Chief Minister adverts to the urgent business awaiting the House. On November 13, the Electricity Budget was to have been considered by the Assembly. The Governor had fixed 16-11-1972, for the presentation of the Supplementary Estimates for 1972-73. Necessary appropriation Bill has to be passed in relation to the Supplementary Estimate in that sitting itself. There was also the Tamil Nadu Agricultural Income-tax (Amendment) Bill which was referred to the Select Committee by the Assembly in its previous sitting. Under this measure, important concessions were to be made to the agriculturists who had expressed difficulties under the existing Act. It may be pertinent to point out that agitation's throughout the State were launched to press for these concessions. The Government was of the opinion that it was eminently an urgent matter and should be given priority in the business to be transacted in the sitting in question itself. Further, no collection of agricultural income-tax had been made for the assessment year commencing from April 1972, pending this measure, as a result of which the work of the Agricultural Income-tax Department had come to a stand-still with consequent administrative dislocation, not to speak of the loss of revenue to the Government. Had the sitting continued, similar matters relating to finance would have also been taken up. By the unexpected adjournment of the Assembly by the Speaker before transacting any official business, all these matters came to a stand-still. After a careful consideration of all these matters, says the Chief Minister in his counter-affidavit, he advised the Governor to prorogue the Assembly in order to facilitate the promulgation of the necessary legislation, in relation to the abovesaid financial Bills, but before any such steps could be taken, the Speaker approached this court with the petition. The Chief Secretary, Mr. P. Sabhanayagam, in his counter affidavit mentions the urgent business before the House and says that by the unexpected adjournment of the Assembly by the Speaker before transacting any official business, all those matters came to a stand-still, and that in order to facilitate the passing of these matters the Chief Minister advised the Governor to prorogue the Assembly. He states that before further action could be taken after the prorogation, the present writ petitions have been filed and since then, the Governor has promulgated, on 21-11-1972, the Tamil Nadu Agricultural Income-tax (Amendment) Ordinance 1972, and the Tamil Nadu Betting tax (Amendment) Ordinance 1972. The Chief Secretary also submits that power of the Governor to prorogue the Assembly on the advice of the Chief Minister, is absolute and unqualified, and the same cannot be questioned in a court of law, that the writ petitions themselves were misconceived and unsustainable, in view of the positive terms of Article 361 of the Constitution, and that under Art 163(3) of the Constitution, the question whether any, and if so what advice was tendered by Ministers to the Governor should not be inquired into in any court. Mr. C. D. Natarajan, Secretary to the Legislative Assembly says in his counter affidavit that the prayer for a direction from his court to him to notify the members that the House continued to be in session and would resume on 5-12-1972, to which date it stood adjourned, was one which could not be granted by this court in view of the terms of Art. 212 of the Constitution. According to Mr. Natarajan, as on 13-11-1972, the party position was as follows : Dravida Munnetra Kazhagam 176; Congress (O)13; Anna Dravida Munnetra Kazhagam 9; Communist Party of India 8; Forward Block 7; Muslim League 6; Swatantra 6; Congress 6; Tamil Arasu Kazhagam 1; independent 1; nominated member 1; and the Speaker. He has enclosed with his counter affidavit a copy of the agenda for the Legislative Assembly and has stated that there were several matters, financial and otherwise, for which notice had been received by him and which were to be considered by the Assembly during its sitting from November 13. He also refers to the fact that the Governor had fixed November 16, 1972 for the presentation of the Supplementary estimate for 1972-73, and to some other matters including Bills, which were to be considered by the Assembly. Under Rule 22 of the Legislative Assembly Rules, the first hour of every sitting shall unless the House unanimously resolved otherwise, be available for the asking and answering of question. Accordingly, says Mr. Natarajan, he had listed questions on that day to be answered during the question hour, but neither the questions which were listed were taken up, nor did the House unanimously resolve to dispense with the question hour as provided under the rule. But the Speaker adjourned the House, as a result of which very many urgent and important matters listed in his counter affidavit could not be transacted. The Speaker has filed an elaborate reply affidavit in which he says that Art. 361 did not invest the Governor with unqualified or absolute immunity that Article 154 read with the second proviso to Article 361 property read would indicate that the ambit of the immunity is the ambit of the executive power of the State vested in and exercised by the Governor, and that in regard to such acts alone the Governor enjoyed personal immunity because these acts were nevertheless made subject to judicial review in proceedings directed against the Government of the State. The Speaker would also submit that in any case, where lack of good faith or abuse of power was alleged. Art 361 did not bar the court from inquiring into the matter. According to him, the Governor when acting under Article 174, did not discharge an executive function and he was not to be guided solely by the advice of his Council of Ministers, and that in the instant case his admitted acceptance of the advice of the Chief Minister showed that he had not discharged his function under Art. 174 as it should have been, and that the order of prorogation was also unique in that it had not been preceded by any reference to him as Speaker, nor was his opinion sought in the usual manner. This, says the Speaker also pointed to lack of good faith. He continue to state that he did not admit that there were any items of business that could not wait till December 5, and that, indeed if there was any such genuine urgency, nothing prevented the Governor or the Chief Minister from requesting him to act under Rule 17 of the Assembly Rules, and advance the date of the meeting from December 5 to an earlier date which he would have certainly done if any urgency was made out. The Speaker denies that the Governor, in the present case, effectuated Democratic process by the prorogation, or that it was in the supreme interest of the State, but says, on the contrary he has failed to assess the situation objectively and inquire from all parties concerned and had merely furthered the political interests of his Council of Ministers. He craves leave to submit that the two Ordinances since promulgated after the issue of rule Nisi would themselves expose the futility of the pretended emergency. The Speaker does not admit that the work of the Agricultural Income-tax Department has come to a stand-still, and states that this was an over-statement of the respondent. The Bill itself was referred at the close of the previous session, to the Select Committee in view of the divergence of opinion and the report of the Select Committee had not been received before the commencement of the present session nor was this an item in the agenda of the Business Advisory Committee. The other Ordinance relating to Betting tax was only a validating measure, and therefore, was not of immediate urgency. The Speaker further submits that when the Governor chose to reveal the advice tendered to him and volunteers the information, there was no bar to this fact being considered by court in determining whether or not he had acted in conformity with the Constitution. He also says that Art. 212(1) would not held the respondent. for, he was not impugning the validity of any proceedings in the Legislature, and further, the Secretary to the Assembly is not an officer on whom any powers are vested by the Constitution, and therefore, was not within the protection of Article 212(2). The Speaker ends his reply affidavit by stating that with regard to the averment in the supporting affidavit of the Chief Minister, without admitting their correctness, he would refer to and rely on them to establish his personal feelings against him, and that it was precisely this prejudice and political animosity of his towards him and his disinclination to listen to any voice of dissent or friendly admonition that permeated his interested advice to the Governor which the latter implicitly accepted, and that it was this bias which was transmitted and violated the proceeding.
4. We have set out the allegations and counter-allegations and reply at some length, in order to fully bring out the entire state of affairs and the background, though, of course, the area for consideration of this court is much narrower.
5. The main contention for the petitioners for whom Mr. V. P. Raman appears, revolves around the nature of the powers and duties of the Governor under Article 174, the scope of Art. 361 and the invalidity of the prorogation on ground of lack of good faith on the part of the Governor in making it, if the question is open for this court to consider and arises in the circumstances. Mr. Raman submits that the power of the Governor to prorogue under Art. 174, though untrammeled and without restriction, should be exercised by him in his discretion, and not act merely and only on the advice of the Chief Minister. Secondly, he says that where lack of bona fides or good faith is imputed to the Governor in exercising his power under Article 174, the immunity to him under Article 361 is not available; and lastly he urges that the order of prorogation was invalid on ground of lack of bona fides in the Governor making the order of prorogation. To establish lack of bona fides, he presses into service six circumstances-
(1) Use of power by the Governor contrary to the manner in which it is intended to be exercised, the Governor abdicating his personal responsibility and acting only on the advice of the Chief Minister:
(2) his failure to note the admitted internal conflict between the Speaker and the Chief Minister, and his ignoring the likelihood of a biased version being given to him;
(3) his failure to resort to Rule 174 of the Assembly rules and ask the Speaker to advance the sitting of the House, if there was real urgent business;
(4) his failure to see that the Ordinances promulgated were out really urgent;
(5) his failure to observe the usual procedure generally followed before prorogation as provided by Rule 25-A of the Madras Government Business rules by ignoring and by-passing the Speaker; and
(6) his failure to take note of significant happenings in the State, though outside the House.
6. On his first submission, Mr. Raman's argument is this. While under Article 153 there shall be a Governor for each State. Article 154(1) vests in him the executive power of the State which shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. Article 166(1) requires all executive action of the Government of a State should be expressed to be taken in the name of the Governor. He shall make rules for the more convenient transaction of the business of the Government of the State and for the allocation among Ministers of the business in so far as it is not business with respect to which the Governor is by or under the Constitution required to act in his discretion. Under Article 163(1), there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions except in so far as he is by or under the Constitution required to exercise his functions or any of them in his discretion and by sub-art(2) on a question whether any matter is or is not a matter in regard to which he is by or under the Constitution required to act in his discretion his decision in his discretion his decision shall be final and by sub-art(3) whether any and if so what, advice was tendered by Ministers to him shall not be inquired into in any court. So, in terms of Article 163(1) unlike those of Article 74(1), not in respect of all the functions of the Governor he is to be aided and advised by the Council of Ministers. To the extent the Constitution requires him to exercise his functions or any of them in his discretion, he cannot in any case act only on the aid and advice of the Council of Ministers. The powers of the Governor is respect of such functions of his are entirely discretionary. The word 'required' in Article 163(1) includes implied requirement as well and to act in his discretion, for, if the exceptions were confined to express requirement, it will be but a purposeless verbiage because in the entire Constitution, except the express provisions in Schedule VI, Rules 9(2) and 18(3), there is no other such express requirement, and even there, clause (3) of Rule 18 has since been dropped with effect from 21-1-1972 by a Constitution amendment. To say that the exception in Art. 163(1) has been provided for only to cover the solitary express requirement in Schedule VI, Rule 9(2) is to reduce the exception to nothing which could not be the intention of the Constitution. So, the exception is intended to cover cases where the Governor, in the exercise of his functions is impliedly required by or under the Constitution to exercise them or any of them in his discretion. The test is not that the particular Article speaks of the discretion of the Governor, but whether or not he should exercise his functions in his discretion should be gathered from the nature of his function under each of the related Articles of the Constitution. Where there is a failure of Constitutional machinery in States, it is entirely within the province of the Governor under Article 356(1) to satisfy himself that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution, so as to enable the President to make a Proclamation. The Governor in such a case cannot be guided, or led by the aid and advice of the Council of Ministers. Under Article 200, the Governor has discretion to assent to a Bill or withhold assent, or reserve the same for the consideration of the President though the Article does not use the word 'discretion'. So also is the discretionary power of the Governor under the proviso to Article 200 to return the Bill to the House with a message for reconsideration. Clause(c) of the proviso to Article 311(2) vests discretion in the Governor to dispense with enquiry if he is satisfied to do so in the interest of the security of the State. The appointment of the Chief Minister by the Governor under of things, be on the aid and advice of the Council of Ministers, for at that stage there will be no such Council of Ministers. The Governor has to exercise his power of appointment in his discretion, though the Article does not in terms say so. Likewise, as a part of the Legislature, though not as a member of any House, the Governor has discretion in the exercise of his powers vested in him by Article 174(2). The language of sub-article(1) of Article 174 is directory in the matter of summoning of the House, that of sub-article(2) inasmuch as it says that the Governor may from time to time prorogue the House, or dissolve the Legislative Assembly, it is indicative that the power thereunder is to be exercised by the Governor in his discretion. If that were not so, it would lead to piquant situation to the detriment of proper and effective working of Democratic principles of Government. For instance if there is a motion of no-confidence pending discussion in the Assembly, the Chief Minister in order to steer clear of the situation, may ask the Governor to prorogue the House. Similarly, where the Government is in a minority in the Legislative Assembly, the Chief Minister by the instrument of aid and advice to the Governor, can so manipulate the machinery of proroguing the House as to perpetuate his Council of Ministers in power, avoiding from time to time, facing the Assembly. So also the Governor's power to dissolve the Legislative Assembly can be exercised by the Council of Ministers, if the Governor is bound to act only on the aid and advice of the Council of Ministers. British Parliamentary conventions cannot override the provisions of Article 174. In the circumstances, therefore, the Governor is under a duty to exercise his power under Article 174 only in his discretion, after considering all facts and relevant matters in proroguing the House or dissolving the Legislative Assembly, the test for the exercise of his discretionary power always being whether the step taken by him is in accordance with, and will promote Democratic principles in operation.
7. If this argument is accepted in its entirely, it will, in our opinion, cut the roots of the basic concepts of Parliamentary system of Government, which the Constitution has clearly adopted. Its preamble declares the Constitution of India as a Sovereign Democratic Republic in order to secure to the citizens of India certain laudable purpose which should constantly be kept in view in the interpretation of the Constitution, so that the foundation of the Democratic principles of Government enshrined in the Constitution are not weakened but strengthened preserved and promoted. The founding Fathers of the Constitution, while drafting it had very much before them the history, experience, principles and conventions evolved through the centuries in the working of the Parliamentary or Cabinet System of Government in England under the Crown and the experience of the Constitutional enactment's relating to India prior to 1947, other Dominion Governments and Cabinet systems elsewhere. This background too cannot be lost sight of for a clear and proper understanding of the various provisions of our Constitution, as to the fundamentals of the set-up, and nature and scope of powers under the Constitution.
8. The question whether the Governor can validly exercise his power to prorogue the House or either House of the Legislature only on the aid and advice of the Council of Ministers or he can do so in his discretion, can simply be answered with reference to Arts. 163 and 166(3) read with clause (xlii) of Rule 31 of the Madras Government Business Rules, which we shall advert to in due course. But we think it proper and necessary to consider it in the larger perspective and context of the entire range of functions of the Governor in juxtaposition of those of them which the Constitution intends he can exercise in his discretion. We shall, therefore, examine the provisions related to them. There shall be a Governor for each State (Article 153), and he shall be appointed by the President (Art 155). The executive power of the State is vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution (Art. 154). This Article read literally and by itself will mean that the Governor's executive power is absolute and untrammeled and without any restriction, except what is indicated in sub-article(2) of that Article. But it has been well settled that this is not the meaning. Art. 163(1) is the real repository and source, in fact and substance of the executive power of the State and the manner in which it should or can be exercise. The sub-article says that there shall be a Council of Ministers with the Chief Minister at the head to aid and advice the Governor in the exercise of his functions. We shall deal with the exception at the proper time. The executive power of the State, as mentioned by Article 162, shall extend to matters with respect to which the Legislature of the State has power to make laws and to the field covered by the proviso to the Article. Art. 163(1) inasmuch as it pervades the entire range of the Governor's functions subject of course to the exception seems to embrace a field wider than the executive power of the State. The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by him on the advice of the Chief Minister and the Ministers shall hold office during the pleasure of the Governor. The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State. That is Art. 164(1) and (2). Taking Arts 154(1), 162, 163(1), 164(1) and (2) together, it is clear that though the executive power of the State is vested in the Governor, and it shall be exercised by him either directly or through officers subordinate to him, that he can do only in accordance with the Constitution, that is to say, with the aid and advice of the Council of Ministers, and this is so in respect of all his functions as Governor, subject to the exception in Art. 163(1). In spite of the fact that the Chief Minister and the other Ministers are appointed by the Governor which is one of his functions under the Constitution, and they hold office during his pleasure, neither the Council of Ministers is responsible to the Governor, nor is the Governor responsible to the Legislature. The Council of Ministers is made collectively responsible to the Legislature of the State. These matters are clear from Art. 164(1) and (2). The governor is thus made the nominal Head of the Administration in whom the executive power of the State is formally vested, and consistently with it, all executive actions of the Government of the State are required by Art. 166(1) to be expressed to be taken in the name of the Governor. The executive power is, in substance and factually, exercised by the Council of Ministers which, as we said, is collectively made responsible to the Legislature, and not the Governor. This system of Government known as the Cabinet or Parliamentary system of Government envisaged in our Constitution has been more or less modeled on the British Cabinet system of Government with the Crown as the formal Head of Administration, the Cabinet exercising in fact the real administrative power and being responsible for its action to the House of Commons. That system of Government in the United Kingdom has been evolved as a result of centuries of struggle for power of the people and the Parliament on the one hand and the Sovereign on the other, and the progress eventually made in the Parliamentary or responsible system of Government by which it meant the real power in substance though not in form is transferred to the people and is exercised by a representative Cabinet of Ministers responsible to the House of Commons elected by the people. It is evident from the provisions of the Constitution that in establishing a Democratic Republic it has with suitable modifications modeled and established its pattern of Government at the Centre and in the States on the British Model of Parliamentary responsible Government with the Crown as the formal head and with the Constitutional and political as well as Parliamentary conventions and developments. It will therefore, be a retrograde step and indeed, it will not be permissible, to read the provisions of the Constitution in such a way, unless their language compels it, as to depart from the well-established Constitutional position that the President or the Governor is but a formal Head of Administration, with the real power factually wielded and exercised by the relative Council of Ministers. Article 74(1) provides for no exception to the requirement that the President, in the exercise of his functions, shall be aided and advised by the Council of Ministers with the Prime Minister as the Head. The functions of the President in respect of the Union, as gathered from the various provisions of the Constitution, are comparable with those of a Governor with this difference that the Governor's functions are confined to the State of which he is the Head of Administration. These analogous provisions will have necessarily to be interpreted alike, except to the extent warranted by the exception made in Art. 163.
9. Now, what is the scope of the exception in Art. 163 which is peculiar to the Governor In so far as the Governor is by or under the Constitution, required to exercise his functions, or any of them in his discretion, to that extent ministerial interference is excluded. That is its significance, as we shall show later. Within the field of the exception the Governor will act on his own without the sanction of Parliamentary responsibility. In other words, any action of the Governor in his discretion will be an exception to and a departure from the principles of Democratic Republican form a Parliamentary or responsible Government.
10. Apart from and in the exercise of the generality of the executive powers of a State, the Constitution makes special mention of some of the functions of the Governor. Article 163(2) leaves for the decision of the Governor, in his discretion, the question whether any matter is or is not a matter as respects of which the Governor is by or under the Constitution required to act in his discretion. This Sub-Article by itself does not throw light on the true scope of the exception in Art. 163(1). In the Central setup there is no such provision as the Sub-Article since Art. 74(1) contains no exception. Under Art. 164(1), the Governor shall appoint the Chief Minister. In doing this, he acts by conventions and not in his discretion, because in the nature of things, at that stage there can be no question of exclusion of ministerial advice. He also appoints the other Ministers but on the advice of the Chief Minister. The Ministers hold office during the pleasure of the Governor which implies that in certain justifying circumstances, the Governor may dismiss them from office. When he does that, he is guided by norms of relative conventions and not he acts in his discretion as in such a situation advice of Ministers cannot be ruled out, though he may not feel bound by it in given circumstances. Under Art. 164(3), the Governor shall administer oath of office to a Minister and of secrecy. He appoints the Advocate General for the State : Art. 165(1). Under Art. 166(3), he shall make rules for the more convenient transaction of the business of the Government, and for the allocation among Ministers of the business in so far as it is not business with respect to which the Governor is by or under the Constitution required to act in his discretion. The Governor may, under Art. 167, require the Chief Minister to submit for consideration of the Council of Ministers any matter on which a decision has been taken by a Minister but which has not been considered by the Council. Then we have Art. 174(1) under which the Governor shall from time to time summon the House or each House of the Legislature in the State in terms mentioned therein. Sub-Article(2) of this Article says, the Governor may from time to time prorogue the House or either House; dissolve the Legislative Assembly. Under Art. 175(1) he may address the Legislative Assembly or both Houses, as the case may be, and also send messages to the House or Houses whether with respect to a Bill then pending in the Legislature or otherwise. The Governor, under Art. 176(1), shall address the Legislative Assembly, at its first session after each general election and of each year. Where there are two Houses, the Governor shall address in that manner both the Houses, assembled together. If the Speaker's and Deputy Speaker's Offices are vacant, the Governor under Art. 180(1), may appoint any member of the Assembly for the purpose. Article 200 states that when a Bill which has been passed by the Legislature is presented to the Governor, he shall declare either that he assents to it, or that he withholds assent therefrom, or that he reserves the Bill for consideration of the President. Article 202(1) requires the Governor in respect of every financial year to be caused to be laid before the Legislature a statement of the estimated receipts and expenditure of the State for every year. The Governor also, as contemplated by Art. 205(1) is to cause to be placed before the Legislature statements for supplementary additional or excess grants required. Under Art. 213, the Governor has powers of promulgating Ordinance which he can exercise when the Legislature is not in session, and when he is satisfied that circumstances exist which render it necessary to take immediate action. In the appointment of Judges of High Courts, the Governor is among the authorities to be consulted. Under the proviso to Article 229(1), the Governor may by rules requires that in specified cases no person not already attached to a Court shall be appointed to any office connected with it save after consultation with the State Public Service Commission. Under Article 234, the Governor makes appointment of District Judges in accordance with the rules made by him in that behalf after consultation with the State Public Service Commission and the High Court exercising jurisdiction in relation to the State. Article 237 empowers the Governor to apply by notification the provisions of Chapter VI of the Constitution to certain class or classes of Magistrates. Under Art 309 the Governor makes rules regulating recruitment and conditions of service in the State. Under clause(c) of the proviso to sub-Article(2) of Art 311, the Governor or the President, if he is satisfied that in the interest of the security of the State. It is not expedient to hold such an inquiry, he may direct dispensing with it. Art. 356 makes provision in case of failure of constitutional machinery in the State. The Article contemplates the Governor of a State who 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 making a report to that effect to the President. Except Article 163(2), none of the other Article which we have mentioned as referring to the specially mentioned functions of the Governor speaks of the Governor acting exclusive of the ministerial aid and advice. Expressions like 'in the opinion of' and 'if he is satisfied' occur in a few of the Articles. As will appear from our discussion supra, from none of them or the other Articles we have referred to the ministerial advice is excluded or Cabinet or ministerial responsibility can reasonably be excluded.
11. Out of the above list of Articles which detail the functions of the Governor, counsel for the petitioners referred only to Arts. 164(1).
200. Cl.(c) of the proviso to Art. 311(2) and Article 356 and also Arts. 163(2) and 174(2) as having a bearing in the present context. Article 163(2) does not take any one beyond the exception in Art. 163. As to the appointment of the Chief Minister under Art. 164(1), it is not, as pointed out before a function which the Governor is required to exercise in his discretion. He has no choice in the matter of appointment; he has to make it, and so too in his choice of the person whom he shall appoint as the Chief Minister, he has no discretion, but will be governed by the principles of Party and Parliamentary Government. He has necessarily to choose one for appointment as the Chief Minister, who shall have the support of his party and the majority in the House, or who can form a Ministry which will have the support of the majority in the House. So too, as we said earlier, is his power of dismissal to be exercised in accordance with parliamentary conventions. Under Art. 164(1), the power or function of the Governor is not or does not become discretionary either because there is no Chief Minister, or Council of Ministers to advice the Governor in respect of the appointment of the Chief Minister, or because the Council of Ministers, in the nature of things, cannot bind the Governor with their advice in case the Governor decides to dismiss the Council. Powers of the Governor which in certain situations as there being no Chief Minister at all as one has to be appointed by him or where advice of Council of Ministers in the nature of things, has no place or will be inappropriate, he has to exercise in accordance with conventions established or to be established, cannot by any means be said to be powers which he exercises in his discretion in the strict Constitutional significance of the expression. The reason is that in such cases, no question of exclusion of aid and advice of Council of Ministers can arise at all either because it does not exist or because it is not available or inherently inappropriate in the particular exigencies of nature of things and circumstances as for instance, in the case of appointment of Chief Minister or a break down of the Constitution and action under Art. 356. Where and when the Constitution speaks of a Governor being required to exercise his functions in his discretion, it postulates the existence of a Ministry competent to advise in the circumstances and exclusion of its advice in respect of such functions. In the matter of appointment of Ministers, there is little room for discretion, and in the matter of dismissal of the Council of Ministers or a Minister the nature of the powers of the Governor springs from the tenure of office of Ministers which is at the pleasure of the Governor, not that the power of the Governor in such a case is discretionary in the proper sense of the term. The power to assent or withhold assent to a Bill or reserve the same for the consideration of the President is a quasi legislative function, and in any case, having regard to the implications the power can hardly be regarded as one which the Governor can exercise in his discretion to the total exclusion of the ministerial advice. Proviso(c) to Art. 311(2) speaks of the President or the Governor's satisfaction. It may be possible to take the view that while the satisfaction is of the Governor, it is only in a formal sense, because the President even there has to act by and with the advice of the Council of Ministers. Even otherwise, satisfaction is not a power which can well be said to be exercised in the discretion of the President or the Governor. It may be seen that while Art. 74(1) reserves no discretion to the President in the exercise of any of his functions, one cannot, nonetheless, justifiably import such a discretion into Arts. 75, 86, 111 and the Proviso(c) to Art. 311(2) so far as the President is concerned. There is no more reason why because of the exception in Art. 163(1) such a discretion for Governor's exercise of his function can or should be imported into the corresponding Arts. 164(1), 174, 200 and Proviso(c) to art. 311(2). That clearly shows that different yardsticks cannot be applied in interpreting parallel provisions in the Constitution and that, by the discretion in the exception in Article 163(1) all that is meant is a function of the Governor which he is required by or under the Constitution to exercise in his discretion, and not that it is imported impliedly or by construction into each and every one of the Articles relating to the Governor's functions. The functions of the Governor covered by the exception in Article 163(1) are those to be found in schedule Six read with Articles 224(2) and 275(1). More specifically the Governor's functions to be exercised in his discretion are only those in Rules 9(2) and 18(3) in the Sixth Schedule. These are the only two instances mentioned in the Constitution in which as we consider, the Governor is required by the Constitution to exercise his functions in his discretion. Even here, Rule 18 has been dropped recently by the Constitution amendment.
12. It was contended for the petitioners that it could not have been the intention of the Constitution-makers to provide for the exception in Art. 163(1) in the form in which it appears, to confine its scope only to the two instances. But that is what it is and the argument to the contrary does not impress us, more especially when we know the constitution history of the origin of the Governor acting in his discretion in respect of his stated functions. It is further argued that in piquant situations which may arise in the matter of appointment of Chief Minister, dismissal of Ministry, proroguing and dissolving the Assembly, the Governor has necessarily to use his discretion to meet them. This is not true any more than it is in the case of the President in whose case there is no reservation for exceptional discretionary function. In Constitutional practice when such peculiar or piquant situations arise for which there is no express provision made in the Constitution conventions will have to be developed in the light of the experience here and elsewhere in the working of Parliamentary responsible Governments. As to Art. 356, this is a unique provision without a parallel, and the functions thereunder of the Governor appears to be more of a political character than administrative. In any case, we are inclined to think that the report stands on the satisfaction of the Governor for which in the context of break down of the Constitution ministerial advice is not apposite, though not ruled out. But that by itself, in our opinion, does not make the Governor's function under Art. 356 of the nature and character of the functions of the Governor within the scope of exception to Art. 163(1). The power to make Ordinance under Art. 213 is a legislative function of the Governor which is not administrative in character. But inasmuch as the ordinance making power is co-executive with the power of the Legislature to make laws, it is relatable to the executive power of the State which is vested in the Governor, and in exercising it, he should do so in accordance with the Constitution that is to say, by and with the aid of the Council of Ministers. That is a region which is peculiarly and entirely of ministerial responsibility. In our opinion, therefore, in the field of making Ordinance, there is no room for the Governor to function in his discretion.
13. An examination of the Government of India Act. 1935 before and after adaptation, brings out clearly what was meant by the Governor acting in his discretion. The expression was used in a special and technical sense in the Government of India Act. which had reference to this country in its then Dominion status. That Act, besides the phraseology that the Governor shall function in his discretion in specified matters, uses also other expressions such as the Governor or the Governor-General acting in his individual judgment in areas of ministerial responsibility where in some cases the Governor was to act by the aid and advice of the Council of Ministers. Where the Governor was required to act in his individual judgment, ministerial advice would be welcome, but the Governor was not bound to follow it. But where the Governor was required to act in his discretion, ministerial advice was excluded, and it had no place. Section 7 of this Act before adaptation said that subject to the provisions of the Act. the executive authority of the Federation should be exercised on behalf of His majesty by the governor-general, either directly or through officers subordinate to him. Section 9 said that there shall be a Council of Ministers to aid and advise the governor-general in the exercise of his functions "except in so far as he is by or under this Act required to exercise his functions or any of them in his discretion". The sub-section contained a proviso to the effect that nothing in the sub-section shall be construed as preventing the governor-general from exercising his individual judgment in any case where by or under the Act he was required to do so. Sub-section(2) said that the governor-general in his discretion might preside at meetings of the Council of Ministers, and sub-section(3) was similar to the wording of Art. 163(2) of our Constitution; Section 10 was to the effect that the governor-general's Ministers should be chosen and summoned by him, should be sworn by him as members of the Council, and should hold office during his pleasure. What advice was tendered by the Council of Ministers to the governor-general was not justiciable. Then Section 11 said that the functions of the governor-general with respect to defense and ecclesiastical affairs and with respect to external affairs expect the relations between the Federation and any part of His Majesty's dominions should be exercised by him in his discretion and his functions in or in relation to the tribal areas should be similarly exercised. To assist him in the exercise of those functions the governor-general might appoint counselors. Section 12 spoke of the special responsibilities of the governor-general in respect of the prevention of any grave menace to the peace or tranquillity of India, the safeguarding of the financial stability and credit of the Federal Government, the safeguarding of the legitimate interests of minorities, the protection of the rights of any Indian State and the rights and dignity of the Ruler thereof, the securing that the due discharge of his functions with respect to matters with respect to which he was by or under the Act required to act in his discretion, or to exercise his individual judgment, was not prejudiced or impeded by any course of action taken with respect to any other matter, and a few other matters. If and in so far as any special responsibility of the governor-general was involved, he should in the exercise of his functions exercise his individual judgment as to the action to be taken Section 17(3) provided that the Governor General should make rules for the more convenient transaction of the business of the Federal Government and for the allocation among Ministers of the said business in so far as it was not business with respect to which the Governor General was by or under the Act required to act in his discretion. As to the sessions of the Legislature, prorogation and dissolution. Section 19 said that the Federal Legislature should be summoned to meet once at least in every year, and twelve months should not intervene between their last sitting in one session and the date appointed for their first sitting in the next session, and subject to the provisions of the section the Governor General might in his discretion from time to time summon the Chambers to meet at such time and place as he thought fit; prorogue the Chambers; dissolve the Federal Assembly. Section 32 which provided for assent to Bills was to the effect that when a Bill had been passed by Chambers, it should be presented to the Governor General who should in his discretion declare either that he had assented in His Majesty's name to the Bill, or that he had withheld assent therefrom, or that he had reserved the Bill for the signification of His Majesty's pleasure. It was also provided that the Governor General in his discretion might return the Bill to the Chambers, with a message etc. The Governor General was required by Section 33 in respect of every financial year to cause to be laid before both Chambers of the Federal Legislature a statement of the estimated receipts and expenditure of the Federation for that year. As to the Legislative powers of the Governor General. Section 42 provided that if at any time when the Federal Legislature was not in session the Governor General was satisfied that circumstances exist which rendered it necessary for him to take immediate action he might promulgate such Ordinances as the circumstances appeared to him to require, provided that he should exercise his individual judgment as respects the promulgation of any Ordinance under the section if a Bill containing the same provisions would under the Act have required his previous sanction to the introduction thereof into the Legislature. Similar powers to make Ordinance were vested in the Governor General by Section 43 to make Ordinance if at any time the Governor General was satisfied that circumstances exist which rendered it necessary for him to take immediate action for the purpose of enabling him satisfactorily to discharge his functions in so far as he was by or under the Act required in the exercise thereof, to act in his discretion or to exercise his individual judgment. The governor-general also was vested by Section 45 with the power to issue Proclamations if he was satisfied that situation had arisen in which the Government of the Federation could not be carried on in accordance with the provisions of the Act, and in that event, he should declare that his functions to such extent as might be specified in the Proclamation, be exercised by him in his discretion. In the Governors' Provinces analogous provisions were made as to the appointment of the Governor by His Majesty, the Executive authority of the Province to be vested in the Governor who was to be aided and advised by a council of ministers in the exercises of his functions, except is so far as he was by or under the Act required to exercise his functions, or any of them in his discretion. Here again, by a proviso it was stated that nothing in the sub-section should be construed as preventing the Governor from exercising his individual judgment in any case where by or under the Act he was required so to do. The Governor in his discretion might preside over meetings of the Council of Ministers. If any question arose whether any matter was or was not a matter in respect of which he was required to act in his discretion, or to exercise his individual judgment the decision of the Governor should be final. The Governor's Ministers shall be chosen and summoned by him, shall be sworn by him as members of the Council, and shall hold office during his pleasure. Section 52 laid certain special responsibilities on the Governor which included the prevention of any grave menace to the peace or tranquillity of the Province, safeguarding of the legitimate interests of minorities the protection of the rights of any Indian State and the rights and dignity of the Ruler thereof, and certain other matters. If and in so far as any special responsibility of the Governor was involved he should in the exercise of his functions, exercise his individual judgment as to the action to be taken. The power to summon the Legislature was in terms similar to those in Section 19. Sub-section(2) of S. 62 said that subject to the provisions of the section, the Governor might in his discretion from time to time, summon the Chambers or either Chamber to meet at such time and place as he thought fit; prorogue the Chamber or Chambers dissolve the Legislative Assembly. There were other sections relating to the right of the Governor to address and send messages to Chambers, assent to Bills, reservation for consideration of the Governor General cause to be laid before the Chamber or Chambers of the Legislature statements of receipts and expenditure. Powers were given to the Governor to promulgate Ordinance during recess of the Legislature and separate powers of make similar Ordinances for the purpose of enabling him to satisfactorily discharge his functions in so far as he was by or under the Act required in the exercise thereof to act in his discretion or to exercise his individual judgment. So under the Government of India Act. 1935 as it stood originally, the Governor was to be aided and advised by a Council of Ministers in the exercise of his functions. But his requirement was not to apply to functions of the Governor which he was by or under the Act required to exercise in his discretion. But the requirement that in respect of the exercise of his functions he was to be aided and advised by a Council of Ministers did not prevent him from exercising his individual judgment in any case where by or under the Act he was required to do so, that is to say, in such cases though the Governor might be aided and advised by the Council of Ministers, he was not bound to follow such aid and advice, but would be free to exercise his functions in his individual judgment. The Act specifically provided both at the Federal and Provincial levels for functions of Governor which he was to exercise in his discretion or by his individual judgment. So the exceptions to Sections 9 and 50 of the Government of India Act, 1935, referred to those functions specifically and expressly mentioned which the Governor was required to exercise in his discretion and the provisos in the two sections referred to functions of the Governor or Governor General as the case may be, which each of them was called upon to exercise in his individual judgment. The other functions of the Governor General, or the Governor which they were not expressly required to exercise in their discretion or in their individual judgment were not within the exception. It may be noted that one of the functions which the Governor General or the Governor was required to exercise in his discretion was proroguing and dissolving the Legislature. When the Government of India Act was adapted after independence in 1947, discretion in Sections 9, 19, 50, 62 and 84 was omitted. Sections 11 and 12 which expressly mentioned the functions to be exercised by the Governor General in his discretion was dropped. As adapted in 1947 the Government of India Act, 1935 did not provide that the Governor General or the Governor had any function which he had to exercise in his discretion or in his individual judgment. The position was the same in the Constitution of India so far as the Union is concerned. As we mentioned, Art. 74(1) which provides for the President acting by the aid and advice of the Council of Ministers makes no exception to the rule. It is, however, true that the exception as in Section 50(1) of the Government of India Act. 1935, as it originally was reappears in Art. 163(1) of the Constitution. But at the same time it should be observed that the Constitution has not reiterated expressly any functions of the Governor which he was called upon to exercise in his discretion except those in the Sixth Schedule to the Constitution. Historically, therefore when in the Government of India Act. 1935, before its adaptation, functions of the Governor General or the Governor were referred to specifically which they were expressly required to exercise in their discretion, and a similar exception finds a place in Art. 163(1), it is reasonable to take the view that the exception has reference only to those functions of the Governor which he is expressly required by or under the Constitution to exercise in his discretion, and that has reference only to the two instances of functions of the Governor in Schedule Six to the Constitution. We may also note that the powers of the Governor General and the Governor under Sections 19 and 62 to summon, prorogue and dissolve and Legislature were to be exercised in their discretion. But after adaptation, the function of proroguing was not in the discretion of the Governor General or Governor. That is also the position with reference to Arts. 85 and 174. The exercise of the function of the Governor in proroguing or dissolving the Assembly under Art. 174 is not a function which he can exercise in his discretion that is to say, to the exclusion of the ministerial advice. Since the matter is not, therefore, covered by the exception to Article 163(1), in the matter of prorogation the Governor is bound by the advice of the Council of Ministers and in the instant case by the advice of the Chief Minister under the rules of allocation of Government business.
14. In fact as we indicated at the outset. Art. 166(3) enables the Governor to make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under the Constitution required to act in his discretion. Accordingly, the Governor has made the Madras Government Business Rules and Secretariat Instructions. Rule 31 lists out classes of cases allocated to the Chief Minister, and item (xiii) in the list pertains to cases relating to summoning and prorogation of the Legislature and dissolution of the Legislative Assembly. This shows that the Governor himself considered that the act of prorogation of the Assembly is not one which he is required to exercise in his discretion. We are of opinion, therefore, that the contention for the petitioner that the Governor's function of prorogation is one he should exercise in his discretion, and so the impugned notification proroguing the Assembly only on the advice of the Chief Minister without the Governor himself objectively assessing the situation and circumstances is invalid, cannot be accepted.
15. That under the Constitution the President or the Governor has been made but a formal Constitutional head of the Executive and the real executive powers are vested in the Ministers or the Cabinet has been held by the Supreme Court and this Court on more than one occasion. State of Travancore Cochin v. Bombay Co. Ltd. AIR 1952 SC 366; P. Joseph John v. State of Travancore Cochin, ; Ramjawaya v. State of Punjab. ; T. M. Kanniyan v. Income-tax
Officer, Pondicherry. ; R. C. Cooper v. Union of
Indian, ; A. Sanjeevi v. State of Madras,
and Balasubramania v. Karunanidhi 84 Mad LW 318. In
the last of these decisions the earlier cases have been referred to. Though in that case the point for decision was whether after dissolution of the House of the People, the Council of Ministers could continue in office; if not whether the President could take over the reins of Government until a fresh election and formation of a new Ministry in deciding that question, it was necessary for the Court to consider the nature and character of the system of Government which the Constitution has adopted. It was there pointed out that our Constitution has adopted both at the Union and at State levels the Parliamentary or Cabinet System of Government of the type obtaining in the United Kingdom. The Court observed :--
"In England, as a result of centuries of conflict between the Crown and the subjects and historical evolution of a form a Parliamentary Government based mostly on conventions and traditions, the King in whom the executive power is nominally vested is but a Constitutional Monarch in the sense that in the exercise of his executive power, he is aided and advised by his Council of Ministers, who are collectively responsible to the House of Commons. The King or the Queen, cannot act himself or herself and cannot exercise executive power unless aided and advised by the Council. Though in form the power is vested in the Crown, in substance, the real power is with the King's Council of Ministers. Though the members of the Council of Ministers including the Prime Minister come out of the House of Commons, the choice of the Prime Ministers rests with the King but the choice is controlled by conventions and the Prime Minister is appointed by the King, who, on the advice of the Prime Minister appoints the other Ministers. The leader of the majority party in the House of Commons who can command not merely the confidence of his party but also the majority of the members of the House of Commons is the hallmark of the choice of the Prime Minister by the King. This is because of the principle that the Council of Ministers, including the Prime Minister, are responsible to the House of Commons, the members of which represent the electorate of the people.
That, by and large, the British Parliamentary system of Government, as we have just outlined has been adopted in our Constitution is evident from the debates and some of the speeches of the prominent members of the Constituent Assembly. The debates and speeches in the Constituent Assembly to which our attention was drawn by the Attorney General show that while the Constitution adopted the British form of Parliamentary Government it was thought to be necessary only to incorporate into it a few of the major conventions of that form of Government namely, that the Head of the State is but a nominal Head, the real power being in the Ministry, that he should act on the aid and advice of the Council of Ministers, and that the Council of Ministers is collectively responsible to the House of the People."
16. After mentioning this in support this Court referred to some of the decisions of the Supreme Court on the subject and then observed-
"Articles 53(1), 74(1) and 75(1),(2) and (3) and 77(1) and (2) have enshrined the fundamentals of the Parliamentary system of Government as in Britain which still remain as some of the major conventions in England of the Parliamentary system of Government which have been developed over the centuries through political conflicts between the King and the People for transfer of the real power from the former to the latter. It is clear to us from a close examination of these Article apart from the authority of and
, that the President in whom the executive power of
the Union has been vested has to exercise it on the aid and advice of the Council of Ministers with the Prime Minister as its head. No doubt, Article 53(1) says that, the executive power of the Union vested in the President, shall be exercised by the President either directly or through officers subordinate to him. But it also says that it shall be so exercised by him in accordance with the Constitution. That means, the exercise of the power by the President is controlled and limited by the other provisions of the Constitution. He can exercise his power directly in accordance with the Constitution that is to say in the cases and manner indicated elsewhere in the Constitution. For instance the appointment of Judges of the Supreme Court and of the High Courts, is made directly by the President under a warrant signed by him as provided in the Constitution, so too in the case of appointment of Governors. The President appoints the Auditor General of India by warrant under his hand and seal. These, and other cases are instances of exercises by the President directly of the executive power. But it should be noted that, as such exercise of power should be in accordance with the Constitution, he has to act in those cases too on the aid and advice of the Council of Ministers. The position is the same when he exercises his powers through officers subordinate to him. The Council of Ministers are undoubtedly subordinate to him. But even so. Art. 74 enjoins 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. What is one of the most important and major conventions of Parliamentary System of Government in Britain is embodied in this provision. The effect of this provision is to make the President a formal head of the State, and to vest the real executive power in the Council of Ministers. This effect is achieved by vesting the executive power in the President and requiring him in the exercise of it to be aided and advised by his Council of Ministers. We are unable to accept the contention of the petitioners that there is no indication in Art. 53(1) read with Arts. 74(1) & 75, that the requisite of the President's exercising the power in that manner is mandatory. The requisite is clearly expressed in Articles 53(1) and 74(1) and admits of no exception. Nowhere in the Constitution do we find any provision enabling the President to act on his own and by his individual judgment. That is truly the effect and intention of Arts. 53(1), 74(1) and 75(1) has been stated by the Supreme Court in Ramjawaya v. State of Punjab. in
these words--'The President has thus been made a formal or constitutional head of the executive and the real executive powers are vested in the Ministers of the Cabinet'. This view has been unanimously held in the other decided cases...................." This Court referred to Golaknath v. State of Punjab, , as to the circumstances in which speeches during
the debates in the Constituent Assembly were made, and then quoted the following passage from the speech of Dr. Ambedkar, who was the Chairman of the Drafting Committee :--
"What the Draft Constitution proposed is the Parliamentary System........... Under the Draft Constitution the President occupies the same position as the King under the English Constitution. He is the head of the State but not of the executive. He represents the nation but does not rule the nation. He is symbol of Nation. His place in the administration is that of a ceremonial device on a seal by which the nation's decisions are made known............ The President of the Indian Union will be generally bound by the advice of his Ministers. He can do nothing contrary to their advice, nor can he do anything without their advice."
17. In 7 Halsbury's Laws of England 3rd Edn. in paragraph 763 the position of the Sovereign and the Cabinet is stated thus :--
"Since the reign of George I the Sovereign has ceased to attend meetings of the Cabinet, the place of the Sovereign being taken by the Prime Minister. Moreover, the presence of the Sovereign at any meetings of ministers where deliberations of discussions take place is now clearly recognized as being contrary to constitutional practice. The decisions arrived at by the ministry must, however, be communicated to the Sovereign, in order to afford her the opportunity of exercising that Constitutional criticism with regard to all the departments of State to which she is entitled. The fullest information should also be given to her both by the Cabinet and by individual ministers, as to the measures proposed to be taken in important matters, and drafts for the Sovereign's approval and signature, and the papers or dispatches, connected therewith should be submitted in time to permit of her becoming fully acquainted with their nature before coming to a decision, the proper course being for all important documents and correspondence to be sent first to the Prime Minister, to be transmitted by him to the Sovereign, and afterwards circulated amongst members of the Cabinet."
18. It is also well worth noting the King's power of dismissal of Ministers as obtains in England and referred to in paragraph 768 of 7 Halsbury's Laws of England :--
"The Sovereign may legally dissolve the ministry at any time by dismissal; but the exercise of this power in order to assert the personal wishes of the Sovereign in opposition to the wishes of Parliament and ultimately of the electorate is clearly recognized as unconstitutional. However in cases where the Ministry still retains the confidence of the House of Commons, but the Crown has reason to believe that the latter no longer represents the sense of the electorate the dismissal of the Ministry or the dissolution of Parliament would be constitutional, and cases of emergency might conceivably arise, where through the unfitness or incapacity of the Ministry, the exercise of the power of dismissal would be constitutional justifiable and proper in order to prevent the adoption of some course of action ruinous to the nation."
19. Ivor Jennings in his work on 'The Law and the Constitution' 1933, while discussing the Cabinet system, made the following observations in respect of the conventions and prerogative :--
"One of the earliest results, naturally, was that the powers which are legally exercised by the King-the royal prerogative were in practice exercised by the Cabinet or by the individual ministers who formed the Cabinet. The King acted on the 'advice' of the Cabinet ministers; and in practice he could not refuse to take that advice unless he could find another set of ministers who could keep a majority in the House of Commons. Hence there was by the constitutional convention a transference of the royal prerogative to the Cabinet. These conventions are therefore, as Dicey put it, 'rules for determining the mode in which the discretionary powers of the Crown (or of the ministers as servants of the Crown) ought to be exercised."
A. B. Keith in his book on "The Constitutional Law of the British Dominions, 1933" points out with reference to Dominion conditions that responsible Government demands that the powers of the Crown or its representative, whether resting on the prerogative or on statute, must be exercised on the advice of Ministers. He also points out that in all cases alike the principle prevails that for official actions the Governor must under normal circumstances act on the advice of his ministry or of an individual minister, according as the case demands. The duty of acting it must be noted, is a legal duty but one of imperfect obligation. Keith further observes-
"The Governor could not act without the aid of his ministry. The necessary of acting on ministerial advice does not preclude, of course, the right to discuss and advise. If after discussion the Dominion ministry declines to modify its proposed line of action, there is normally no option for Governor but to assent, for the responsibility belongs to ministers, not to him."
In the Indian Constitution by Grenville Austin, 1966, the author says-
"The (Constituent) Assembly chose a slightly modified version of the British Cabinet System. India was to have a President, indirectly elected for a term of five years, who would be a constitutional head of State in the manner of the monarch in England. He could be removed by impeachment proceedings brought against him by the Parliament. A Vice-President, also indirectly elected, would serve as head of State in the event of the President's incapacity or death; he would also be the Chairman of the Upper House of Parliament. As in England there was to be a council of Ministers, headed by the Prime Minister and collectively responsible to Parliament to aid and advise the head of State. The President was to be the nominal head of the Executive; the Prime Minister the real head................... The President could not dissolve Parliament without the advice of his Prime Minister, in the first place."
We think it is permissible for this Court to advert to the opinions expressed by the them Attorney General Mr. M. C. Setalvad, and Mr. Alladi Krishnaswami Aiyar, on the subject, on a reference to them by Prime Minister Mr. Nehru which Grenville Austin makes mention of as the views of noted Jurists of this country. Mr. Setalvad was of the view that because of Art. 74(1), the President was required to act in all matters with the aid and advice of his Council of Ministers, and in support is the argument of Mr. Alladi Krishnaswami Aiyar in the Constituent Assembly that because sovereignty lay with the people, and because the people elected the Parliament from which came the Council of Ministers, power lay with the Council of Ministers, not with the President, Mr. Aiyar expressed the view that it was perfectly clear to him that the President's position was analogous to that of a Constitutional monarch in England, and there was no sphere of his functions in respect of which he would act without reference to the advice of his Ministers. He further said that Mr. Prasad seemed to read every Article of the Constitution in which the expression 'President' occurred as conferring powers on the President in his personal capacity without referring to the Cabinet, but the legal position was that Art. 74 was all pervasive in its character, and that it would be constitutionally improper for the President not to seek or not to be guided by the advice of his Ministers. Referring to this controversy and the opinions, Grenville Austin made this pertinent observation :--
"For ill or creditable motives, however, Prasad attempted to read into the Constitution what was never intended to be there. Fortunately he failed. In fact, his efforts may have strengthened the Constitution by establishing the firm precedent that within the Executive the cabinet is all powerful. There is no reason to believe that President, Radhakrishnan shares his predecessor's views. And Indian may with some confidence hope that the State Executive and the Union Executive will continue to function as Professor Alexandrowicz had described them. Governors, he wrote 'have under the present Constitution, apart from a few exceptions a nominal position only and depend entirely on the Ministry. And so for the Federal Executive despite Rajendra Prasad's attempt to the contrary, 'the examination of constitutional practice in the post-Independence years shows beyond doubt that.............. The President is by convention reduced to a mere figurehead while the Ministry is the real Executive."
The few exceptions which Professors Alexandrowicz had in mind evidently related to those applicable to the Assam Governor. Pursuant to an order of the President dated 26-11-1970, a Committee of Governors considered the role of Governors and made a report in 1971 which contains the official views of the Committee of Governors. In the report we find mention made that the question as to what, if any, are the discretionary functions of the Governor under the Constitution was considered soon after it came into force in 1950, and that Dr. B.R. Ambedkar, who was then the Law Minister and who as Chairman of the Drafting Committee had piloted the Constitution through the Constituent Assembly, answered it in categorical terms:
"There are in fact, only two cases mentioned in the Constitution in which a Governor can act in his discretion both of which relate to the functions of the Governor of Assam, and these will be found in paras 9(2) and 18 of the Sixth Schedule to the Constitution." The report set out briefly the scope of the expressions 'discretion' 'special responsibility' and 'individual judgment' in so far as they are used in the Constitution in relation to the functions of the Governor and refers to the fact that these terms have been borrowed from the Government of India Act. 1935, as embodying concepts which were clearly explained at the time that Act was made. The scope of the expressions is stated to be-
" 'Discretion' relates to functions which were outside the area of ministerial responsibility and where the administration was exclusively vested in the Governor aided by his own secretarial staff. So far as the term 'special responsibility' is concerned, the declaration of a special responsibility with respect to a particular matter was never intended to mean or even to suggest that when a question relating to that matter comes up for consideration, the decision is to be that of the Governor to the exclusion of his Ministers. In no sense does it define a sphere from which the action of Ministers is excluded. It does no more than indicate a sphere of action in which it will be constitutionally proper for the Governor after receiving Ministerial advice to signify his dissent from it and even to act in opposition to it if, in his own unfettered judgment, he is of opinion that the circumstances of the case so require. The term 'individual judgment' is necessarily linked with the exercise of a special responsibility. When a Governor acts against the advice of the Council of Ministers in relation to a matter which involves special responsibility, he exercises his individual judgment as to the action to be taken."
20. The report goes on to say-
"There are also expressions used in the constitution such as 'in the opinion of the Governor' (Art. 200) and 'if the Governor is satisfied' (Art. 213). In these cases, it is clear that the advice of the Council of Ministers is not excluded, but is, in fact, envisaged." Reference is then made to the fundamental concept underlying the scheme of Government under the Constitution that is to say, both at the Union and at the State levels, the responsibility is of the executive to the Legislature as implicit in Arts. 163 and 164, which provided first for a council of Ministers to aid and advice the Governor in the exercise of his functions; secondly, for advice if any tendered by the Ministers being beyond question in any Court of law; and thirdly, and even more important, for the Ministers to be collectively responsible to the Legislative Assembly of the State. The mechanism of Government, continues the report the procedure for tendering advice and the manner of ensuring responsibility to the Assembly are left to practice and convention; they are not and did not need to be spelt out in the Constitution. The view is then expressed in the report that proper traditions have to be built up round the fundamental concepts of responsible Government, and the primary duty alike of the Governor, the Ministers and the political parties is to ensure that it is honored, and the right of the Legislature to expect and demand responsibility is never assailed or undermined.
21. It may be noted that the Draft Constitution had proposed conferring on the Governor discretionary functions in relation to-
(1) appointment and dismissal of his Ministers;
(2) summoning of the Legislature and dissolution of the Legislative Assembly;
(3) power to return to the Legislature for reconsideration a Bill submitted for assent;
(4) issue of a Proclamation in an emergency superseding Ministers and assuming by the Governor of executive functions;
(5) appointment of the Provincial Auditor-in-Chief;
(6) appointment of the Chairman and members of the Public Service Commission; and
(7) discretionary powers are conferred on the Governor of Assam.
But since it became clear that the Constitution was to adopt the Parliamentary System of Government, that is to say, responsibility of the Council of Ministers to the Legislative Assembly in regard to executive functions, the Drafting Committee proposed deleting the requirement in the relative provisions requiring the Governor to act in his discretion in the above matters, except in the case relating to the Governor of Assam. As regards summoning of the Legislature, the view of the Committee of Governors appears to be that the Governor has to act on the advice of the Council of Ministers. This is because it is the Council of Ministers which provides business for a session of the Legislature and that for that reason it would be purposeless for the Governor to act otherwise than in accordance with such advice. As regards prorogation, it has expressed the view that the Governor should normally act on the advice of the Council of Ministers. In connection with prorogation the report deals with a particular situation and says-
"A point has arisen, however, whether a Chief Minister has the right to advise prorogation when there is pending in the Legislative Assembly a notice of a motion of no-confidence against his Ministry. The Governor in such a case should first satisfy himself that the notice of the no-confidence motion is not frivolous and is a genuine exercise of the Parliamentary right of an opposition to challenge the Government's majority. If so satisfied, the Governor should ask the Chief Minister to face the Assembly and allow the motion to be debated and voted upon. To prorogue the Assembly otherwise would amount to avoidance of responsibility of the Council of Ministers to the Assembly."
The dissolution of the Assembly may follow defeat of the Government in the Assembly by an adverse vote amounting to an expression of want of confidence in the Council of Ministers and where no alternative Government can be formed or when the Chief Minister asks for dissolution on the ground that due to certain changed circumstances, the Government feels that it should seek a fresh mandate from its political sovereign the people. Dissolution also will have to follow if there is a failure of the Constitutional machinery and the administration is taken over by the President under Art. 356. But it is regarded in the report of the Committee of Governors that normally a Governor should exercise the power of dissolution on the advice of the Council of Ministers. It says-
"If a Chief Minister who enjoys majority support advises dissolution the Governor must accept the advice, but if he advises dissolution after losing his majority the Governor need accept his advice only if the Ministry suffers a defeat on a question of major policy and the Chief Minister wishes to appeal to the electorate for a mandate on that policy. In the case of a Chief Minister heading a single party Government which has been returned by the electorate in absolute majority, if the ruling party loses its majority because of defection by a few members and the Chief Ministers recommends dissolution so as to enable him to make a fresh appeal to the electorate, the Governor may grant a dissolution. The mere fact that a few members of the party have defected does not necessarily prove that the party has lost the confidence of the electorate. If there is a no-confidence motion against a Ministry and the Chief Minister, instead of facing the Assembly, advises the Governor to dissolve the Assembly, the Governor need not accept such advice but should ask the Chief Minister to get the verdict of the Assembly on the no-confidence motion."
We have referred to observations in the report of the Committee of Governors or to the speeches in the Constituent Assembly or the statement of Dr. B. R. Ambedkar, not for the purpose of using them in the interpretation of specific language used in the Constitution in any particular Article or Articles of the Constitution, but as historical facts and views in the process of the making of the Constitution and landmarks in the development of constitutional practice and conventions in the working of the Parliamentary system of Government with the Governor as head in accordance with the provisions of the Constitution. It is clear from the foregoing references that the functions of the Governor General or the Governor under the Government of India Act 1935, before adaptation, which he was required to exercise in his discretion, had a particular technical meaning as functions which were outside the area of ministerial responsibility and where the administration was exclusively vested in the Governor aided by his own secretarial staff and not that it carried the sense that in whichever Article the word 'Governor' occurred it meant conferring discretionary powers which he was free to exercise without ministerial responsibility and that discretion of the Governor in that sense was omitted in the Government of India Act. 1935 as adapted, and that when the expression has found a place in Art. 163(1) it has no sense or significance different from what had been assigned to it earlier in the Government of India Act 1935 before adaptation. It is also to be observed that the expressions in the Constitution like 'in the opinion of the Governor' 'if the Governor is satisfied' do not have the effect of excluding ministerial advice, unless in the context and in the nature of things, such advice will necessarily have no place.
22. As already indicated, we are of opinion therefore that the exception in Art. 163(1) of the Constitution uses the word 'discretion' in the technical sense we have adverted to which applied only to the Assam Governor in the single case surviving in schedule six of the Constitution, and does not apply of govern interpretation of any of the other Articles relating to the Governor's functions. We agree that the exception in Art. 163(1) need not have found place, and in any case, in the particular form in the sub-Article which at least could have been expressly and easily confined to the Assam instance, if only to avoid confusion, but that in our opinion can make no difference to the real meaning of the exception to which sub-Art.(2) of Art. 163 is related. The sections in the Government of India Act corresponding to arts. 85 and 174 had designated the functions, those which the Governor General or the Governor could as the case may be, exercise in his discretion. But that phraseology does not find a place either in Art. 85 or Art. 174 and there is no exception in Art. 174(1) to control the meaning of Art. 85 and there is no reason to construe Art. 174 in a different way. That also shows that the exception in Art. 163(1) is of narrow scope, as explained earlier, and does not qualify the nature and content of the power of prorogation under Art. 174. We find that a Division Bench of the Travancore High Court in Varadaraja v. State of Travancore Cochin. AIR 1953 Trav-Co 140 took a similar view, on the scope of Art. 163(1). It observed that the retention of the words 'in his discretion' in Art. 163(1) might be said to be a drafting anomaly, as no Governor, except the Governor of Assam acting under Sch. 6 paras 9(2) and 18(3), has any authority to act in his discretion. Bose. J. in Biman Chandra v. Dr. H. C. Mukherjee, Governor, West Bengal was of the view that Art. 171 did not state that in making nominations, the Governor was bound to act in his discretion, and that unless a particular Article expressly so provided an obligation to act in his discretion could not be imposed upon the Governor by mere implication. We need not rest our view on this ground. with
reference to Article 174 stated that the Governor's powers thereunder were without any restriction, and his powers were untrammeled, but that does not mean that the Court meant that the Governor could exercise his powers under Art. 174 in his discretion. Building up of conventions as to the wisdom and propriety and the manner of exercising the power of prorogation in particular contingencies or situations is entirely different from the powers of the Governor being exercisable in his discretion. Legally, therefore, the Governor's prorogation in the instant case only on the advice of the Chief Minister is right and its validity cannot be successfully questioned on that ground.
23. Before we leave this question of discussion in the context of Art. 174, we should refer to Bk. Sardarilal v. Union of India. , cited for the petitioners. The Supreme Court held
there that the function under clause(c) of the proviso to Art. 311(2) could not be delegated by the President to any one else in the case of a civil servant of the Union, because the President had to be satisfied personally that in the interest of the security of the State, it was not expedient to hold the enquiry by C1.(2). But that was a case where the matter was never placed before the President. Also the decision is no authority that the President, under clause(c) to the proviso to Art. 311(2) acts in his discretion, that is to say to the exclusion of ministerial advice. As a matter of fact, the Supreme Court in observed-
"Under the Constitution the President being the constitutional head normally acts in all matters including the promulgation of an Ordinance on the advice of his Council of Ministers".
24. Article 123 it may be noted, speaks of "the President is satisfied and that circumstances exist." But the concept of satisfaction of the President has been explained by the Supreme Court in that case thus-
"The ordinance is promulgated in the name of the President and in a constitutional sense on his satisfaction; it is in truth promulgated on the advice of his Council of Ministers and on their satisfaction."
Grover, J. who delivered the judgment for the Supreme Court in Bk. Sardarilal v. Union of India. was a party to R. C.
Cooper v. Union of India, . In fact all the learned
Judges who constituted the Bench in Bk. Sardarilal v. Union of India were parties to R. C. Cooper v. Union of India.
. In our opinion therefore, the expressions 'in the
opinion of' or 'if he is satisfied' used in the Constitution, except perhaps, in the case of Art. 356, do not postulate the particular related function being discharged by the President or the Governor as the case may be in his discretion in the sense of excluding the Ministerial responsibility therefor by aid and advice, and entirely acting on his own. Even under Art. 356(1) the ministerial advice may not be excluded, but only that it will not be binding on the Governor. But that is different from saying that the Governor under Art. 356(1) functions in the exercise of his discretion.
25. If in proroguing the Assembly the Governor was bound to act by the aid and advice tendered by the Chief Minister, and he acted in the instant case in conformity with it, we are of the view that no lack of good faith or mala fides could be imputed to him. But since the Governor has claimed absolute immunity under Art. 361 of the Constitution it is contended that he has no immunity under the Articles where his bona fides in proroguing the Legislature are in question. In our opinion Art. 361(1) affords the President, or the Governors, absolute immunity. He cannot be made by any Court answerable to it 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 and performance of his powers and duties. As the first proviso indicates, the President's conduct can be brought under review by any Court Tribunal or body appointed or designated by either House of Parliament for the investigation of a charge under Art. 61. Since the Governor holds his office at the pleasure of the President the Governor's conduct may conceivably be reviewed by the President. But the immunity of the President, or the Governor is but personal to him. He cannot be made a party defendant or respondent in respect of his official act done or purported to be done which pertains to the exercise and performance of his powers and duties of his office. The policy behind the immunity is that just like the Sovereign in England the President or the Crown is Head of a State. That seems to be the view of the basis for protection in the King v. The Governor of the State of South Australia. 4 CLR 1497.
26. A single learned Judge of the Calcutta High Court in , held that a comparison of clause(1) of Art. 361 with clause(4) thereof made it clear that in respect of official acts an absolute bar was created, but in respect of acts done in personal capacity a partial bar in the shape of notice for a period of two months prior to institution of civil proceedings was imposed. We concur with him in this view. But the learned Judge went further to observe-
"If the act is ostensibly done in exercise of the power given under the Constitution and it is not established that the act is done dishonestly or in bad faith or in other words out of any improper motive the immunity attaches to the exercise of the power."
On the facts, the learned Judge found in that case the Governor had not acted mala fide in the exercise of his powers under Art. 171. G. D. Karkare v. T. L. Shevde. AIR 1952 Nag 330 decided by a Division Bench also held the view that the immunity afforded by Art. 361 was personal to the Governor, but it did not place the actions of the Governor done or purporting to be done in pursuance of his powers and duties under the Constitution beyond the scrutiny of the Courts. We agree with this view and also with the further observation that what the Constitution establishes is supremacy of law and not of men however high-placed they might be. What was in question there was the validity of the appointment of an Advocate General and the Court held that if a question about the validity of an enactment assented to by the Governor could be considered and decided in the absence of the Governor, there was no force in the objection that an appointment made by the Governor could not be questioned in his absence. Subba Rao, C. J. as he then was of the Andhra Pradesh High Court, was of opinion in Gnanamani v. Governor of Andhra. AIR 1954 Andhra 9 that-
"Under Art. 361, there is an absolute immunity for the first category of acts, but only a limited one in respect of the other two. In respect of the first he is not answerable to any Court of law. No Court can compel him to show cause or defend his action. In the case of official acts an absolute immunity from the process of Court is given and this immunity extends not only to his official acts but also to acts purporting to be done by him in exercise of the powers conferred on him, so long as he is not guilty of dishonesty or bad faith. But this will not preclude the acts of the Governor from being questioned if they can be done without issuing a process on him. Indeed Article 361 itself recognizes that this immunity would not restrict the right of any person to bring appropriate proceedings against the Government."
The Governor was not a party to the litigation in that case nor was his bona fides in question. Dr. C. V. Pantulu v. Govt. of Andhra. AIR 1958 Andh Pra 240 again pointed out that though an order of the Governor made on appeal filed by the petitioner in that case ignoring the constitutional safeguard was bad, still the Governor was not answerable to the Court in view of Art. 361. The Patna High Court also took a similar view in Binkim Chandra v. State of Bihar, .
There, Das, C. J. and Imam, J. held that the Governor when he dismissed the petitioner he was doing so in his official capacity in the exercise and performance of the powers and duties of his office, and therefore, it was not open to the High Court to issue a writ under Art. 226 of the Constitution of India so are as the Governor of a State was concerned. But actually, neither in the Patna nor in the Andhra Pradesh case, the Governor was eo nominee a party. In the Supreme Court observed-
"Article 174(2)(a) which enables Governor to prorogue the legislature does not indicate any restrictions on this power. Whether a Governor will be justified to do this when the legislature is in session and in the midst of its legislative work, is a question that does not fall for consideration here. When that happens the motives of the Governor may conceivably be questioned on the ground of an alleged want of good faith and abuse of constitutional powers. We do not go as far as the learned Judge in In re Kalyanam Veerabadrayya. . But that is not the
case here................ No mala fides were attributed to the Governor except of his powers or in colourable exercise of them. The power being untrammeled by the Constitution and an emergency having arisen, the action was perfectly understandable."
Neither the Supreme Court in this case, nor in the other cases we referred to of the High Courts, was it held that the personal immunity afforded by Art. 361(1) to the Governor did not avail where his bona fides were questioned. They have not held that where his bona fides are questioned, he can personally be called to enter his defense. In our opinion, his personal immunity extends to such a case as well. Though the Governor cannot be personally, as a party or otherwise called upon to answer a charge of bad faith or lack of bona fides with reference to his official act, the validity of his act is open to attack on that ground in a Court. In fact the second proviso to Art. 361(1) is indicative of it. But inasmuch as mala fides or want of bona fides is a mental factor and when such a charge is made against the Governor in respect of his official act we are inclined to think that there will be atleast an obligation or duty on the Governor to make an affidavit for assistance of the Court in deciding the question. In this case, the Governor has made such an affidavit denying the charge of mala fides on his part in proroguing the Assembly.
27. We have already mentioned while setting out the pleadings, what the Governor has stated while denying the charge of mala fides or lack of bona fides on his part. He says that the order of prorogation was made after a careful consideration of the advice given by the Chief Minister the proceedings of the Assembly on November 13, and the background of events represented to him. He made a note of the fact that the Assembly had been adjourned by the Speaker without transacting any business and when the Speaker instead of conducting the legislative business adjourned the House for the purpose which was beyond him as the Governor says namely, for the purpose of giving time to the Chief Minister and the Government to consider whether they would face a fresh election, according to the Governor it was his right and duty under the Constitution to effectuate Democratic process by the order of prorogation. In this connection the proceedings of the Assembly on November 13 have been read out to us at lengthy. We do not think it necessary to reiterate them in any detail. It will suffice to say that when there was all the business to be transacted by the Assembly as has been detailed in the counter affidavits, including the no-confidence motion against the Ministry and the motion for the removal of the Speaker which according to the Speaker he would like to take up for discussion on November 14, it was very strange that the Assembly should have been adjourned on the 13th for the stated purpose as appears from the speech of the Speaker, of giving the Government time to consider whether it will be prepared to face the people for a fresh mandate, as the Government as was alleged by one or two of the speakers which was voiced by the Speaker, had lost the confidence of the people. The adjournment of the House in such circumstances cannot be viewed as a proper or bona fide exercise of the power of adjournment. Between two General Elections, the question of continued confidence of the people in a ruling party having a majority in the Assembly can be and is normally tested only on the floor of the Assembly itself. The Constitution and the Assembly ruled, do not contemplate or provide any other mode of testing it. The secretary of the Legislative Assembly has given the party position in the Assembly which we have already noticed and which has not been contradicted. When the ruling party still has an overwhelming majority in the Assembly, as appears from the record it is odd or strange that on a suggestion, that the Ministry had lost the confidence of the people the Assembly should in the midst of its work have been adjourned, just on the day it commenced work for three weeks for the Government to consider whether they would face the people then and there for a fresh mandate through a fresh general election. A perusal of the Assembly proceedings on 14th November, leaves us with the impression that the adjournment putting the Assembly out of action in the circumstances and in the particular manner smacks of ulterior purpose. But, in the circumstances as here when they concern the proceedings in the Assembly, a cautious judicial restraint which springs from the regard due to the House as a whole, forbids us from making more critical observations. We will be content to observe that in all the circumstances, the Governor, far from being actuated by mala fides or lack of bona fides, prorogued the Assembly bona fide and duly, in order to get rid of such an adjournment. Counsel for the petitioners relied on six circumstances which were set out earlier, in support of his contention that the prorogation was not bona fide. But, in our opinion none of the circumstances taken together or separately, establishes counsel's proposition. There is nothing to show that the Governor used his power contrary to the manner in which it is intended to be exercise. Under the rules framed by the Governor under Article 166(3) relating to the distribution of Government business, the subject of prorogation has been allocated to the Chief Minister. We have already held that the Governor has no personal responsibility in the matter, except to act, in the circumstances, on the advice only of the Chief Minister. It may be that in normal circumstances, as a matter of practice, the Legislative Secretariat the speaker and the Chairman would be informed of, or initiate the proposal for prorogation, and it would eventually go to the Chief Minister before the Governor. But that is only a practice and the procedure is not required by the rules of business or the Constitution. Also in the circumstances one could hardly expect the proposal to pass through the Speaker. We do not think that there is any substance in the charge that the Governor failed to note the admitted internal conflict between the Speaker and the Chief Minister and ignored the likelihood of a biased version being given to him. Under the Constitution, as we have interpreted it, the Governor is bound in the matter of prorogation by the advice of the Chief Minister, and as far as we could see there is nothing before the Governor to suggest that he ignored the likelihood of a biased version being given to him. The suggestion that the Governor should have resorted to R. 174 of the Assembly Rules and asked the Speaker to advance the sitting of the House, if there was real urgent business, loses sight of the real state of affairs and presumes that the Speaker would have readily responded to do it. As to the complaint that the Governor failed to see that the ordinance promulgated were not really urgent he has said enough in his counter-affidavit on this matter including the fact of the pendency of these petitions in this Court which convinces us that there was no such failure on his part. So also is the charge against him vague and without substance happenings in the State, though outside the House. We hold, therefore, that the prorogation of the Assembly by the Governor was duly and properly made and was valid.
28. The petitions fail and are dismissed with costs. Counsel's fee Rupees 250 in each of them.
29. Petitions dismissed.