Rameshwar Prasad v Union of India (2006)

It applies the Bommai framework to a situation Bommai did not face: dissolution of a Legislative Assembly before it had met even once, ordered to prevent a party from staking a claim on the ground that its majority had been obtained by illegal means. The Court held the Proclamation unconstitutional, and then declined to restore the status quo ante — so it is also the leading illustration of moulding relief in constitutional litigation.

The challenge was to the constitutional validity of a Notification dated 23 May 2005 ordering the dissolution of the Legislative Assembly of Bihar.

The Bihar Legislative Assembly comprises 243 members, so an absolute majority required the support of 122. After the election the party-wise strength was: NDA (BJP and JD(U)) 92; RJD 75; LJP 29; Congress (I) 10; CPI (ML) 7; Samajwadi Party 4; NCP 3; Bahujan Samaj Party 2; Independents 17; Others 9. The NDA was the largest pre-poll combination with 92.

The previous Assembly came to an end on 6 March 2005. The Chief Minister had resigned with her Council of Ministers on 28 February 2005 and was asked to continue until an alternative arrangement was made. A delegation of the LJP told the Governor by letter that the party would support neither the RJD nor the BJP in the formation of a Government. By report dated 6 March 2005 the Governor recommended that the newly constituted Assembly be kept in suspended animation.

By a further report dated 21 May 2005, the Governor stated that 17 to 18 MLAs of the LJP were moving towards the JD(U), which would mean the JD(U) might be in a position to stake a claim to form the Government; that this movement was itself indicative of allurements having been offered; and that a claim so founded would distort the verdict of the people. On that basis the Assembly was dissolved on 23 May 2005 — before its first meeting.

Can dissolution under Art. 356(1) be ordered to prevent a political party from staking a claim, on the ground that its majority was obtained by illegal means?

There was no material

As in Bommai, there was no material whatsoever except the ipse dixit of the Governor. Action which prevents a political party from staking a claim to form a Government after an election, on such fanciful assumptions, would if allowed to stand be destructive of the democratic fabric.

The Court drew a careful distinction. It is one thing to conclude that a majority staking a claim would not be able to provide a stable Government; it is altogether different to say that they have garnered a majority by illegal means and therefore their claim cannot be accepted. In the latter case the matter may have to be left to the wisdom and will of the people — taken up by the opposition in the same House, or determined by the people at the next election.

Without highly cogent material it would be wholly irrational for a constitutional authority to deny a claim made by a majority to form the Government, only on the ground that the majority was obtained by allurements and bribes in deals done under cover of darkness which undisclosed sources have confirmed. The extraordinary emergency power of recommending dissolution of a Legislative Assembly is not a matter of course, to be resorted to for good governance or the cleansing of politics without any authentic material.

Defection is for the Speaker, not the Governor

The Governor's reasoning assumed that the movement of LJP legislators would attract disqualification under the Tenth Schedule. The Court held that whether the case fell within the permissible category of merger under para. 4 was an intricate question, and it is for the MLAs or the appropriate functionary to decide, not for the Governor to assume disqualification and thereby prevent the staking of a claim. The Court expressly declined to decide whether there can be a merger of a legislature party without a merger of the original political party, because it was not something the Governor could have gone into for recommending dissolution.

More generally: the power under the Tenth Schedule in respect of defection lies with the Speaker of the House and not with the Governor, and the power exercised by the Speaker under that Schedule is of a judicial nature. The Governor cannot assume to himself that judicial power and, on that assumption, conclude that there would be a violation of the Tenth Schedule and use it as a reason for recommending dissolution.

The Court added that the Tenth Schedule, the corrupt-practice, electoral-offence and disqualification provisions of the Representation of the People Act 1951, and the Prevention of Corruption Act 1988 are the legal safeguards available for ensuring purity of public life in a democracy — but they had no relevance at the stage when dissolution was recommended without any material.

The Governor's oath and duty

Under Art. 159 the Governor swears to perform faithfully the duties of his office and to the best of his ability preserve, protect and defend the Constitution and the law. He cannot, in the exercise of his discretion or otherwise, do anything which is prohibited. The Constitution enjoins upon the Governor that after the conclusion of elections every possible attempt is made for the formation of a popular Government representing the will of the people expressed through the electoral process. If the Governor acts to the contrary by creating a situation whereby a party is prevented even from staking a claim, and recommends dissolution to achieve that object, the only inescapable inference is that the exercise of jurisdiction is wholly illegal and unconstitutional.

The Governor is not an ombudsman

The passage that is the heart of the case: if a political party, with the support of other parties or MLAs, stakes a claim and satisfies the Governor about its majority to form a stable Government, the Governor cannot refuse the formation of a Government and override the majority claim because of his subjective assessment that the majority was cobbled by illegal and unethical means. No such power is vested in him; such a power would be against the democratic principles of majority rule. The Governor is not an autocratic political Ombudsman. If such a power were vested in the Governor or the President, the consequences could be horrendous.

The Court added the related and frequently examined proposition: the ground of maladministration by a State Government enjoying a majority is not available for invoking the power under Art. 356. The remedy for corruption or similar ills and evils lies elsewhere and not in Art. 356(1).

The Proclamation dated 23 May 2005 is unconstitutional.

The Court could have ordered status quo ante. It declined, for reasons of larger public interest, ground realities and pragmatism.

By the time of the order the Election Commission had not only made preparations for a four-phase election in Bihar but had issued the notification for the first two phases before the conclusion of arguments; for those two phases the last date for nominations and their scrutiny had passed; for the first phase even the last date for withdrawal had expired and polling was fixed for 18 October 2005. The election process had been set in motion and was at an advanced stage; considerable money had been spent and enormous preparations made. Having regard to those developments and to the numbers of the different political parties, the Court thought it fit not to put the State into another spell of uncertainty.

It therefore held the Proclamation unconstitutional, moulded the relief, declined status quo ante, and permitted the completion of the ongoing election process — expressing the hope that the electorate might give a clear majority to one party.

Dissolution of a Legislative Assembly under Art. 356(1) to prevent a party with the numbers from staking a claim, on the Governor's own assessment that the majority was obtained by illegal means and without any authentic material, is unconstitutional; questions of defection are for the Speaker under the Tenth Schedule and cannot be assumed by the Governor; and the Court may declare a Proclamation invalid while moulding the relief so as not to unsettle an election already under way.

• Pair it with Bommai. Bommai gives the standard of review and the floor test; Rameshwar Prasad shows the standard applied where no House had yet met and no floor test was possible.
• Three propositions to name: the Governor is not an ombudsman; maladministration is not a ground under Art. 356; and defection is the Speaker's judicial function, not the Governor's.
• On remedies: use the moulding of relief here alongside B. R. Kapur and Krishna Kumar Singh to show the Court separating the declaration of invalidity from the consequences it will order.
• Read forward to Nabam Rebia v Deputy Speaker, Arunachal Pradesh (2016), where the Governor, without the aid and advice of the Chief Minister or Council of Ministers, preponed the sixth session of the Assembly and directed the manner of conducting its proceedings; the Court held the order of 9 December 2015 violative of Art. 163 read with Art. 174, and the message of the same date violative of Art. 163 read with Art. 175, quashed both, set aside all steps taken pursuant to them, and restored the status quo ante as it prevailed on 15 December 2015.