RAMESHWAR PRASAD AND ORS. versus UNION OF INDIA AND ANR.

Citation: [2006] 1 S.C.R. 562 · Decided: 24-01-2006 · Supreme Court of India · Bench: Y.K. SABHARWAL · Disposal: Disposed off
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Judgment (excerpt)

A 
B 
c 
RAMESHW AR PRASAD AND ORS. 
v. 
UNION OF INDIA AND ANR. 
JANUARY 24, 2006 
[Y.K. SABHARWAL, CJ., K.G. BALAKRISHNAN, B.N. AGRAWAL, 
ASHOK BHAN AND ARIJIT PASAYAT, JJ.) 
Constitution of India, 1950; Articles 321226, 356, 74 and 163: 
Ifivoking of power under Article 356-/ssue of proclamation-- Subjective 
satisfaction of President-Conditions precedent-Scope of judicial review. 
Articles 356 and 74-Satisfaction of President under -.Vature o.f-Duty 
of Council of Ministers before recommending issuance uf proclamation- -On 
D facts, held: Governor has misled Union Council of Ministers. 
E 
Article 356--Nature and Scope of power---Held, is un emergency power 
but not an absolute power. 
Articles 32, 226 and Preamble-Scope of interference. 
Articles 356, 163 and 174(2)(b)-Dissolution of State Assembly-Floor 
test-Necessity of 
Articles 356, I 74(2)(b), 8j(2)(b) and Schedule X-Dissolution of newly 
F elected Assembly-Grounds to be taken into consideration-Hung Assembly-
Realignment of parties/MlAs-Unethical means/horse lrading-
Recommendation of dissolution on that ground-Scope of judicial review in 
such situations. 
Articles 159, 163, 164, I 74(2)(b) and 356--/nsta/lation of new 
G Government after election-Duty of Governor. 
H 
Articles 79, 168, 245 and 246-Parliament-Nature of acts o.f-When 
legislative. 
562 
• 
•. 
> 
-f 
-~ 
RAMESHWAR PRASAD v.U.0.1. 
563 
Articles 356, /74(2)(b). 85, 32 and 226-Unconstitutionality of A 
proclamation under Article 356 dissolving Legislative Assembly of State-
power to mould relief 
Articles 157 and 155-Governor-Criteria for appointment a/-
Suggestions given in Sarkaria Commission Report-Need for observance of 
Articles 163, 153, 154 and 159-Governor-Nature and role of office 
of-Discharge of powers and duties-Discretionary powers-Scope of 
Article 361-Scope of immunity granted to Governors and President-
Discussed. 
Articles 327, 324, 329, 174, 168, 172, 83. 85 and 79-"Due constitution" 
or coming into existence of a. legislative Assembly-When takes place. 
Words and Phrases: 
"Emergency "-Meaning of in the context of Part XVlll of the 
Constitution. 
"Merger"-Meaning of in the context of Para 4 Schedule X of the 
Constitution. 
"Required"-Meaning of in the context of discretionary powers of the 
Governor under the Constitution. 
B 
c 
D 
E 
~. 
In these Writ Petitions, the petitioners have challenged the validity 
of the proclamation dated 23rd May, 2005 issued under Article 356 of the F 
Constitution ordering dissolution of Bihar Legislative Assembly. They have 
also prayed for restoration of the Election Commission Notification dated 
4th March, 2005 issued under Section 73 of the Representation of People 
Act, 1951 notifying the names of the elected members. 
It was contended on behalf of the petitioners that the allegations in G 
the Governor's report of horse trading was factually incorrect and 
fictional. It was incumbent upon the Governor to verify the facts personally 
from the MLAs; that under the scheme of the Constitution the decision 
with regard to mergers and disqualifications on the ground of defection 
or horse trading is vested in the Speaker; and that the Governor could H 
564 
SUPREME COlJRT REPORTS 
(2006 j I S.C.R. 
A not have attempted to act on that basis and arrogated to himself such an 
authority. Relying heavily on the Nine Judge Bench judgment of this Court 
in S.R .. Bommai and Ors. v. Union of India and Ors .. 1199413 SCC I, it was 
contended that action of the Governor is ma/a fide in law; irrational, 
without any cogent material to support the conclusion arrived at and is 
based on mere ipse dixit and, thus, was not sustainable in law. It was 
B contended that in exercise of judicial review this Court should quash the 
impugned notification and as a consequence restore the legislative 
assembly constituted by the Election Commission notification dated 4th 
March, 2005. 
c 
It was further contended that before even elected candidates making 
and subscribing oath or affirmation, as contemplated by Article 188 of 
the Constitution, even the Assembly could not be placed under su~pended 
animation and status quo as on the date of issue of notification under 
Section 73 of the RP Act of 1951 deserves to be directed. 
D 
After hearing arguments on the question of the Governor not being 
E 
answerable to any Court in view of immunity granted by Article 361(1) 
of the Constitution, this Court accepted the submission of the Government 
that notice may no
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