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LB-301-Constitutional Law-I |2022
(S.M.Sikri, C.J. and G.K.Mitter, K.S.Hegde, A.N.Grover and P.Jaganmohan Reddy, JJ.)
[It is essential to have a Council of Ministers under Article 74(1) even at a time when the
House of the People has been dissolved or when its term has expired.]
A writ of quo warranto was prayed in this appeal against the continuation of Mrs.
Indira Gandhi as the Prime Minister since the House of the People had been dissolved.
The appellant contended that under the Constitution, as soon as the House of the People was dissolved under Article 85(2), the Council of Ministers, i.e. the Prime Minister and the other Ministers, ceased to hold office. This argument was based upon thewordings of Article 75(3), which prescribes that: “the Council of Ministers shall be collectively responsible to the House of the People”. The question is, “how can the Council of Ministers be collectively responsible to the House of the People when it has already been dissolved under Article 85(2)?” It was contended that while carrying out its functions, no void would be created because the President can exercise the executive power of the Union either directly, or through officers subordinate to him, in accordance with Article 53(1) of the Constitution.
S.M. SIKRI, C.J.: 3. It seems to us that a very narrow point arises on the facts of the present case. The House of the People was dissolved by the President on December 27, 1970. The respondent was the Prime Minister before the dissolution. Is there anything in theConstitution, and in particular in Article 75(3), which renders her carrying on as Prime Minister, contrary to the Constitution? It was said that we must interpret Article 75(3)according to its own terms, regardless of the conventions that prevail in the United Kingdom. If the words of an Article are clear, notwithstanding any relevant convention, effect will, no doubt, be given to the words. But it must be remembered that we are interpreting a Constitution and not an Act of Parliament, a Constitution which establishes a Parliamentary system of Government with a Cabinet. In trying to understand one may well keep in mind the conventions prevalent at the time the Constitution was framed.
[The Court quoted Paras. 13 and 14 of Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549.]
In A. Sanjeevi Naidu v. State of Madras [AIR 1970 SC 1102], it was urged on behalf of the appellants in that case that “the Parliament has conferred power under Section 68(C) of the Motor Vehicles Act, 1939 to a designated authority. That power can be exercised only by that authority and by no one else. The authority concerned in the present case is the State Government. The Government could not have delegated its statutory functions to anyone else. The Government means the Governor aided and advised by his Ministers. Therefore the required opinion should have been formed by the Minister to whom the business had been allocated by ‘the Rules’. It was further urged that if the functions of the Government can be discharged by anyone else then the doctrine of ministerial responsibility which is the very
U.N.R. Rao v. Indira Gandhi 67 essence of the cabinet form of Government disappears; such a situation is impermissible under
our Constitution.”
5. Speaking on behalf of the Court, Hegde, J., repelled the contentions in the following words:
“We think that the above submissions advanced on behalf of the appellants are without force and are based on a misconception of the principles underlying our Constitution. Under our Constitution the Governor is essentially a constitutional head, the administration of State is run by the Council of Ministers. But in the very nature of things, it is impossible for the Council of Ministers to deal with each and every matterthat comes before the Government. In order to obviate that difficulty the Constitution has authorised the Governor under sub-article (3) of Article 166 to make rules for the more convenient transaction of business of the Government of the State and for the allocation amongst its Ministers, the business of the Government. All matters, excepting those in which Governor is required to act in his discretion, have to be allocated to one or theother of the Ministers on the advice of the Chief Minister. Apart from allocating business among the Ministers, the Governor can also make rules on the advice of his Council of Ministers for more convenient transaction of business. He cannot only allocate the various subjects amongst the Ministers but may go further and designate a particular official to discharge any particular function. But this again he can do only on the adviceof the Council of Ministers. The Cabinet is responsible to the Legislature for every actiontaken in any of the ministries. That is the essence of joint responsibility.”
6. Let us now look at the relevant Articles of the Constitution in the context of which we must interpret Article 75(3) of the Constitution. Chapter I of Part V of the Constitution deals with the Executive. Article 52 provides that there shall be a President of India and Article 53(1) vests the executive power of the Union in the President and provides that it shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution. The last five words are important inasmuch as they control the President’s action under Article 53(1). Any exercise of the executive power not in accordance with the Constitution will be liable to be set aside. There is no doubt that the President of India is a person who has to be elected in accordance with the relevant provisions of the Constitutionbut even so he is bound by the provisions of the Constitution. Article 60 prescribes the oath oraffirmation which the President has to take. It reads:
“I, A. B., do swear in the name of God/solemnly affirm that I will faithfully execute the office of President (or discharge the functions of the President) of India and will to the best of my ability preserve, protect and defend the Constitution and the law and that I will devote myself to the service and well-being of the people of India.”
7. It will be noticed that Article 74(1) is mandatory in form. We are unable to agree with the appellant that in the context the word ‘shall’ should be read as ‘may’. Article 52 is mandatory. In other words “there shall be a President of India”. So is Article 74(1). The Constituent Assembly did not choose the Presidential system of Government. If we were to give effect to this contention of the appellant we would be changing the whole concept of the Executive. It would mean that the President need not have a Prime Minister and Ministers to aid and advise in the exercise of his functions. As there would be no ‘Council of Ministers’, nobody would
68 U.N.R. Rao v. Indira Gandhi be responsible to the House of the People. With the aid of advisers he would be able to rule
the country at least till he is impeached under Article 61.
8. It seems to us that we must read the word ‘shall’ as meaning ‘shall’ and not ‘may’. If Article 74(1) is read in this manner the rest of the provisions dealing with the Executive must be read in harmony with. Indeed they fall into place. Under Article 75(1), the President appoints the Prime Minister and appoints the other Ministers on the advice of the Prime Minister, and under Article 75(2) they hold office during the pleasure of the President. The President has not said that it is his pleasure that the respondent shall not hold office.
9. Now comes the crucial clause three of Article 75. The appellant urges that the House of People having been dissolved this clause cannot be complied with. According to him it follows from the provisions of this clause that it is was contemplated that on the dissolution ofthe House of People the Prime Minister and the other ministers must resign or be dismissed by the President and the President must carry on the Government as best as he can with theaid of the Services. As we have shown above, Article 74(1) is mandatory and, therefore, the President cannot exercise the executive power without the aid and advice of the Council of Ministers. We must then harmonise the provisions of Article 75(3) with Article 74(1) and Article 75(2). Article 75(3) brings into existence what is usually called “Responsible Government”. In other words the Council of Ministers must enjoy the confidence of the House of People. While the House of People is not dissolved under Article 85(2)(a), Article 75(3) has full operation. But when it is dissolved the Council of Ministers cannot naturally enjoy the confidence of the House of People. Nobody has said that the Council of Ministers does not enjoy the confidence of the House of People when it is prorogued. In the context, therefore, this clause must be read as meaning that Article 75(3) only applies when the House of People does not stand dissolved or prorogued. We are not concerned with the case where dissolution of the House of People takes place under Article 83(2) on the expiration of the period of five years prescribed therein, for Parliament has provided for that contingency in Section 14 of the Representation of Peoples Act, 1951.
10. On our interpretation other articles of the Constitution also have full play, e.g. Article 77(3), which contemplates allocation of business among Ministers, and Article 78, which prescribes certain duties of Prime Minister.
12. In the result the appeal fails and is dismissed.
