Case: Rameshwar Prasad &amp; Others Vs. Union of India &amp; Another

is of serious significance and it sometime amounts to undoing the will of the people of the State by dismissing the duly constituted Government and dissolving the duly constituted Legislative Assembly. Any misuse of such power is to be curbed if it is exercised for mala fide purposes or for wholly extraneous reasons based on irrelevant grounds. The Court can certainly go into the materials placed by the Governor which led to the decision of dissolving the State Assembly. 28. The Presidential proclamation dissolving the Bihar State Legislative Assembly was issued pursuant to two reports sent in by the Governor. It may be remembered that Article 356(1) Proclamation imposing Presidents Rule was issued on 7th March, 2005. Thereafter, on 22nd April, 2005, the Governor sent a report wherein he stated that none of the political parties. either individually or with the then pre-election combination or with post-election alliance, could stake a claim to form a popular Government wherein they could claim support of a simple majority of 122 in a House of 243. The Governor had also indicated that there are certain newspaper reports and other reports gathered through meeting with different parties functionaries that some steps are being taken to win over the elected representatives of the people through various allurements like money, caste, post, etc. Thereafter, on 21.5.2005, the Governor of Bihar sent another report and based on that, the Bihar State Assembly was dissolved on 23rd May, 2005. In the report dated 21st May, 2005, the Governor reiterated his earlier report that no party had approached him to form a popular Government since none could claim the support of a simple majority of 122 in a House of 243. In that report, the Governor had also stated that 17/18, or more perhaps, LJP MLAs are moving towards the JD(U) and that various allurements have been offered to them and it was an alarming feature and the Governor was also of the opinion that it was positively affecting the Constitutional provisions and safeguards built therein and distorted the verdict of the people. 29. The contention urged by learned ASG, Shri Gopal Subramaniam was that this is the material which was placed before the President before a Proclamation was issued under Article 174(2)(b) of the Constitution. It is important to note that the writ petitioners have no case that JD(U) or any other alliance had acquired majority and that they had approached the Governor staking their claim for forming a Government. No material is placed before us to show that the JD(U) or its alliance with BJP had ever met the Governor praying that they had got the right to form a Government. The plea of the petitioners counsel is that they were about to form a Government and in order to scuttle that plan the Governor sent a report whereby the Assembly was dissolved to defeat that plan is without any basis. The Governor in his report stated that 17 or 18 members of the LJP had joined the JD(U)-BJP alliance, but no materials have been placed before us to show that they had, in fact, joined the alliance to form a Government. One letter has been produced by one of the petitioners and the same is not signed by all the MLAs and as regards some of them, some others had put their signatures. Therefore, it is incorrect to say that the Governor had taken steps to see that the Assembly was dissolved hastily to prevent the formation of a Government under the leadership of the political party JD(U). If any responsible political party had any case that they had obtained majority support or were about to get a majority support or were in a position to form minority Government with the support of some political parties and if their plea was rejected by the Governor, the position would have been totally different. No such situation had been reached in the instant case. It is also very pertinent to note that the order for dissolution of the State Assembly was passed after about three months of the proclamation imposing the Presidents Rule was issued under Article 356(1). When there was such a situation, the only possible way was to seek a fresh election and if it was done by the President, it cannot be said that it was a mala fide exercise of power and the dissolution of the Assembly was wholly on extraneous or irrelevant grounds. It is also equally important that in Karnataka, Meghalaya and Nagaland cases, there was a democratically-elected Government functioning and when there is an allegation that it had lost its majority in the Assembly, the primary duty was to seek a vote of confidence in the Assembly and test the strength on the floor of the Assembly. Such a situation was not available in the present case. It was clear that not a single political party or alliance was in a position to form the Government and when the Assembly was dissolved after waiting for a reasonable period, the same cannot be challenged on the ground that the Governor in his report had stated that some horse-trading is going on and some MLAs are being won over by allurements. These are certainly facts to be taken into consideration by the Governor. If by any foul means the Government is formed, it cannot be said to be a democratically- elected Government. If Governor has got a reasonable apprehension and reliable information such unethical means are being adopted by the political parties to get majority, they are certainly matters to be brought to the notice of the President and at least they are not irrelevant matters. Governor is not the decision-making authority. His report would be scrutinized by the Council of Ministers and a final decision is taken by the President under Article 174 of the Constitution. Therefore, it cannot be said that the decision to dissolve the Bihar State Legislative Assembly, is mala fide exercise of power based on totally irrelevant grounds.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]Therefore, it is incorrect to say that the Governor had taken steps to see that the Assembly was dissolved hastily to prevent the formation of a Government under the leadership of the political party JD(U). If any responsible political party had any case that they had obtained majority support or were about to get a majority support or were in a position to form minority Government with the support of some political parties and if their plea was rejected by the Governor, the position would have been totally different. No such situation had been reached in the instant case. It is also very pertinent to note that the order for dissolution of the State Assembly was passed after about three months of the proclamation imposing the Presidents Rule was issued under Article 356(1). When there was such a situation, the only possible way was to seek a fresh election and if it was done by the President, it cannot be said that it was a mala fide exercise of power and the dissolution of the Assembly was wholly on extraneous or irrelevant grounds. It is also equally important that in Karnataka, Meghalaya and Nagaland cases, there was a democratically-elected Government functioning and when there is an allegation that it had lost its majority in the Assembly, the primary duty was to seek a vote of confidence in the Assembly and test the strength on the floor of the Assembly. Such a situation was not available in the present case. It was clear that not a single political party or alliance was in a position to form the Government and when the Assembly was dissolved after waiting for a reasonable period, the same cannot be challenged on the ground that the Governor in his report had stated that some horse-trading is going on and some MLAs are being won over by allurements. These are certainly facts to be taken into consideration by the Governor. If by any foul means the Government is formed, it cannot be said to be a democratically- elected Government. If Governor has got a reasonable apprehension and reliable information such unethical means are being adopted by the political parties to get majority, they are certainly matters to be brought to the notice of the President and at least they are not irrelevant matters. Governor is not the decision-making authority. His report would be scrutinized by the Council of Ministers and a final decision is taken by the President under Article 174 of the Constitution. Therefore, it cannot be said that the decision to dissolve the Bihar State Legislative Assembly, is mala fide exercise of power based on totally irrelevant groundsArticle 174 of the Constitution deals with the power of the Governor to summon the House, prorogue the House and dissolve the Legislative Assembly. This Court never had the occasion to consider the question of legality of dissolution of a Legislative Assembly even before its first meeting contemplated under Article 172 of the Constitution. It has been contended on behalf of the petitioners by Mr. Narsimha and Mr. Viplav Sharma,, that a Legislative Assembly can be dissolved under Article 174(2)(b) only after its first meeting is held as postulated by Article 172 of the Constitution. The argument is that there cannot be any dissolution without even members taking oath and the Legislative Assembly coming into existence. What does not exist, cannot be dissolved, is the submission. In this regard, the question to be considered also is whether the date for first meeting of the Legislative Assembly can be fixed without anyone being in a position to form the Government.