RAVI VARMA KUMAR v. UNION OF INDIA — 1989 DIGILAW 463 (KAR)

SHIVASHANKAR BHAT, J. ( 1 ) THE petitioner who is a practising Advocate of this Court and a Professor of Law, has filed this writ petition questioning the condition purported to have been imposed by the President of India on the 2nd respondent to prove the majority in the house of people within one month from the date of assuming office as the Prime minister of India. According to the petitioner such a condition cannot be imposed by the President; therefore in the interest of healthy conventions and proper enforcement of constitutional provisions, this writ petition has been filed. ( 2 ) ACCORDING to the petitioner it is imperative for the President to invite a person to become the Prime Minister unconditionally and when a prime Minister is appointed by the President and he takes office, then it is for the appointee to seek vote of confidence as and when he chooses. In support of this proposition the petitioner also relied on an observation of the Calcutta High court in Madan Murari Verma v Choudhuri charan Singh and Another, AIR 1980 Cal. 95 , at para 11 wherein Justice Sabhyasachi Mukharji, (as he then was) observed that strictly speaking, in terms of the Constitution, the President was not competent to impose any condition while inviting a person to become the Prime Minister. However, on facts, in the said case, it was found that there was no such specific condition as a term of appointment. ( 3 ) IN the said case the relevant paragraph in the letter written by the then President of India to Mr. Charan Singh while inviting him to form government stated as follows:" I trust that in accordance with the highest democratic traditions and in the interest of establishing healthy conventions you would seek a vote of confidence in the Lok Sabha at the earliest possible opportunity, say, by the third week of August 1979. "the petitioner compared this sentence in the aforesaid letter with the communication issued by the President in the instant case as given in the Indian Express dated 2nd December, 1989. "the petitioner compared this sentence in the aforesaid letter with the communication issued by the President in the instant case as given in the Indian Express dated 2nd December, 1989. According to the News paper report the communique issued by the President reads as follows:"since the Congress-I elected to the ninth lok Sabha with the largest membership has opted not to stake its claim for forming a government, I have invited Shri Vishwanath pratap Singh, leader of the second largest party group namely the Janata dal/national Front, to form a Government and take a vote of confidence in the Lok sabha within 30 days of assuming office. " (Take a vote of confidence obviously, was printed as take an oath of confidence.) ( 4 ) TO appreciate the petitioner's contention, it is necessary to refer to three provisions of the Indian Constitution relevant parts of which are given below:-"article: 74 (1): There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice. ""article: 75 (1): The Prime Minister shall be appointed by the President and the other ministers shall be appointed by the President on the advice of the Prime Minister. (2) The Ministers shall hold office during the pleasure of the President. (3) The Council of Ministers shall be collectively responsible to the House of the people. (4 ). . . . . . . . . . . . . . . . . . (5 ). . . . . . . . . . . . . . . . . . . . (6 ). . . . . . . . . . . . . . . . . . . . . ""article 85 (l):the President shall from time to time summon each House of Parliament to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session. (2 ). . . . . . . . . . . . . . (2 ). . . . . . . . . . . . . . " ( 5 ) THE established convention is that the President would invite the person whom he considers is likely to command the majority support in the Lok Sabha, to assume the office of the prime Minister, though Article 75 (1) does not say so. The Constitution reposes full faith in the president to exercise his power in this regard as a wise States-man. The person who occupies the highest office in the nation should be attributed with the requisite wisdom and objectivity. ( 6 ) IT must be noted here that the communication is issued by the President and the communication will have to be understood primarily in the light of the Constitutional provisions and unless the language of the communication is expressingly contrary to the Constitutional provisions, no inference could be drawn that the President's communication is not in accordance with the Constitutional requirements. In fact the rule of interpretation requires that such a communication should be read harmoniously with the Constitutional provisions and the communication should be read so as to be in consonance with the Constitutional provisions. The meaning attributable to the communication should be only such a meaning and not the meaning which will attribute an unintended controvention of the Constitutional provisions by the president. As I read it, the said communication issued by the President only invites Sri Vishwanath pratap Singh to form the Government and take a vote of confidence in the Lok Sabha within 30 days of assuming office. The invitation is not only to form a Government but also to take the vote of confidence, and if this sentence is read literally it cannot be read as a condition nor as a mandate, but as a sentence reminding the Prime minister of the requirement of Article 75 (3) of the Constitution which says that the Council of ministers shall be collectively responsible to the house of People. ( 7 ) UNDER the Indian Constitutional set up there shall be Council of Ministers with the Prime minister at the head to aid and advice the President as per Article 74 of the Constitution. This article makes it clear that the President cannot function without a Council of Ministers headed by the Prime Minister. ( 7 ) UNDER the Indian Constitutional set up there shall be Council of Ministers with the Prime minister at the head to aid and advice the President as per Article 74 of the Constitution. This article makes it clear that the President cannot function without a Council of Ministers headed by the Prime Minister. Therefore, there may be a situation where an existing Prime Minister may resign and insist for the acceptance of the resignation immediately creating thereby a lacuna for the proper functioning of the President. Ttherefore, Article 74 read with Article 75 (1) should be understood as enabling the President to invite a proper person to assume the office of the Prime Minister so that there may be a council of Ministers headed by the Prime Minister to aid and advice the President. At that particular moment the President maybe satisfied that the particular person whom he invites to be the Prime Minister will be capable of running the Government commanding the confidence of the House of the People. The belief and the opinion formed by the President ultimately may not stand the test of time because by the time lok Sabha meets, the said Prime Minister may lose the confidence of the House. But at the particular moment when the President invites a person to assume the office of Prime Minister, what is required is the satisfaction of the President that the particular person whom he invites will be in a position to command the confidence of Lok sabha. ( 8 ) WE have to assume that, President acts in the best interest of the country and ignore hypothetical possibilities while interpreting the constitutional provisions. It is also not necessary to examine as to what should happen in case the Prime Minister on assuming office, refuses to face the House of People to prove his majority in the House. Article 85 (1), read with Article 75 (3) takes care of the situation. ( 9 ) AT the moment of inviting a person to become the Prime Minister, the President might have genuinely formed his opinion that, the invitee commands the support of the Lok Sabha. Article 85 (1), read with Article 75 (3) takes care of the situation. ( 9 ) AT the moment of inviting a person to become the Prime Minister, the President might have genuinely formed his opinion that, the invitee commands the support of the Lok Sabha. But, the opinion of the President, if justified by an open expression of support by the Lok Sabha, would advance the national interest, by not only strengthening the hands of the Prime Minister, but also will be conducive to the sense of security and stability amongst the people in general. Therefore, under a given set of circumstance, if the President reminds the invitee- "would be prime Minister" - that he should prove the support for him, in Lok Sabha, it cannot be held to be an unconstitutional act at all. ( 10 ) PETITIONER does not dispute the soundness of this requirement as a matter of democratic principle. His challenge is against the condition imposed by the President, that the new Prime Minister should prove his majority within 30 days. According to the petitioner, if the President has any doubt about the invitee having the majority support in Lok Sabha, such a person cannot be invited; having invited a person to be the Prime Minister, then, it is for the person who assumes office as Prime Minister, to take appropriate action and he is not bound by any direction issued or condition imposed by the president. It is contended that, in the instant case, the President has imposed a condition which is entirely foreign to the scheme of our constitution and therefore, the Court should declare that the said condition is not binding on the new Prime Minister. ( 11 ) IT is not necessary in this case to go in to the broader question as to whether the Prime minister is bound by any such condition imposed by the President. The communication nowhere imposed a condition on Sri Vishwanalh Pratap singh to be complied with by him for his continuation as the Prime Minister beyond 30 days after assumption of office. If vote of confidence to be obtained within 30 days, was a binding or mandatory condition, consequences of non-complying with it should have been stated. The communication nowhere imposed a condition on Sri Vishwanalh Pratap singh to be complied with by him for his continuation as the Prime Minister beyond 30 days after assumption of office. If vote of confidence to be obtained within 30 days, was a binding or mandatory condition, consequences of non-complying with it should have been stated. ( 12 ) THE relevant passage in the a fore said Calcutta decision is found at para-11 of the report, which is as follows:-"the next question that falls for consideration is whether in fact the President called upon the respondent No. 1 to form the government upon the condition that the respondent No. 1 and his Council of Ministers obtain sanction of Lok Sabha by 3rd week of August, 1979. Reading the communication which I have set out herein before whereby the respondent No. 1 was asked to form the Government by the President, in my opinion, this was not a condition of appointment. But the President, if one may say so with respect, that in the uncertain period through which parliamentary affairs were passing at that stage, suggested the course he did; he was justified in suggesting that the respondent No. 1 and his Council of Ministers should publicly demonstrate their responsibility by seeking a vote of confidence at the earliest possible opportunity say by 3rd week of August, 1979. Strictly speaking, in terms of the Constitution the president was not competent to impose any condition. But as I have read the letter, I have found that no such condition was in fact imposed. So, I need not decide in this application whether in view of the fact that the Council of Ministers continue in office "at the pleasure of the President" the president was competent to impose such a condition. This is certainly a matter of some doubt. But this doubt does not call for a solution, in the facts and circumstances, of this case as I have found that the president did not impose any condition but merely made a suggestion in which if I may say so with great respect, the President acted with the highest propriety. " ( 13 ) AS I have found the communique as not imposing any condition, the above observations equally govern the instant case. However, i do not express any final view as to whether under the Constitution, President could impose such a condition. " ( 13 ) AS I have found the communique as not imposing any condition, the above observations equally govern the instant case. However, i do not express any final view as to whether under the Constitution, President could impose such a condition. ( 14 ) A vote of confidence by Lok Sabha would demonstrate the correctness of president's choice of the Prime Minister and would reserve any suspicion that President has imposed on the Nation, a Prime Minister who is not competent to be so. Therefore, when the president desired the new Prime Minister should face the Lok Sabha, at the earliest, the same cannot be stigmatised as an unwarranted and unconditional act of the President. The President has acted in accordance with the highest traditions of democracy. Writ Petition is accordingly rejected. Writ Petition rejected. --- *** --- .