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2004 DIGILAW 217 (RAJ)

B. D. Purohit v. Union of India

2004-02-16

ANIL DEV SINGH, K.K.ACHARYA

body2004
Judgment Anil Dev Singh, C.J.-By this writ petition under Article 226 of the Constitution of India the petitioner inter alia seeks a direction to the first respondent not to dissolve the Lok Sabha before completion of its prescribed term. The petitioner also seeks a direction to the appropriate authority to frame guidelines for exercise of the power by the President under Article 85(2)(b) of the Constitution, and a direction to the third respondent Election Commission not to hold general elections for the Lok Sabha till the completion of its term of five years. 2. The petitioner is a practicing lawyer and has moved the instant writ petition by way of public interest litigation. 3. In the petition the petitioner claims that he is deeply concerned about the decision of the concerned authority to dissolve the Lok Sabha before the complection of its usual term. The instant writ petition was filed on 5th February, 2004, a day earlier to the dissolution of the Lok Sabha by the President under Article 85(2)(b) of the Constitution. Article 85 reads as follows: "85. (1) 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) The President may from time to time- .(a) prorogue the Houses or either House; .(b) dissolve the House of people." 4. From a bare reading of Article 85, it is apparent that the President is empowered to dissolve the House of People at any time. But this power of dissolution is required to be exercised by the President on the aid and advice of the Council of Ministers. This follows from Article 74(1) of the Constitution, which provides for a Council of Ministers with the Prime Minister at the head to aid and advice the President, who shall in the exercise of his functions act in accordance with such advice. Thus reading Articles 74 and Article 85(2)(b) together, it is clear that the President on the aid and advice of the Council of Ministers is empowered to dissolve the House of People at any time even prior to the term of five years provided under Article 85(2)(b) of the Constitution. 5. In U.N.R. Rao. Thus reading Articles 74 and Article 85(2)(b) together, it is clear that the President on the aid and advice of the Council of Ministers is empowered to dissolve the House of People at any time even prior to the term of five years provided under Article 85(2)(b) of the Constitution. 5. In U.N.R. Rao. vs. Smt. Indira Gandhi, AIR 1971 SC 1002 , it was held by the Supreme Court that Article 74(1) is mandatory in form and the President cannot exercise executive power of the Constitution without the aid and advice of the Council of Ministers. It is not the case of the petitioner that the Lok Sabha has been dissolved by the President without the advice of the Council of Ministers. As already pointed out the petition was filed on 5th February, 2004, a day earlier to the dissolution of the Lok Sabha. After the dissolution of the Lok Sabha no further affidavit has been filed by the petitioner nor any application for amendment of the writ petition has been move. The Lok Sabha stands dissolved with effect from 6th February, 2004. The dissolution has not been challenged by the petitioner. Therefore, in so far as the prayer of the petitioner seeking a direction against dissolution of the Lok Sabha before the completion of its usual term has been rendered infructuous. During the arguments it was admitted by the petitioner that the Lok Sabha was dissolved by the President on the aid and advice of the Council of Ministers. This being so the power was exercised by the President in consonance with Article 85(2)(b) of the Constitution read with Article 74(1) thereof . 6. The petitioner submitted that as per the newspaper reports the advice of the Council of Ministers was based upon its decision to go for early polls, keeping in view the feeling in the ruling party that this was an appropriate time to fight the Lok Sabha election as the result of the recent Assembly polls reflect that the people are with them. The petitioner also submitted that as per the news paper report the decision was also taken on the ground that the opposition was in disarray and it did not know what to do and on what issue to corner the ruling party. The petitioner also submitted that as per the news paper report the decision was also taken on the ground that the opposition was in disarray and it did not know what to do and on what issue to corner the ruling party. Basically the petitioner drew our attention to the following excerpt from the news paper report: "Vajpayee said the decision to go for early polls was taken because "the situation is in our favour: We have been able to win the peoples confidence with our performance. Recent Assembly polls show that the people are with us. The opposition is in disarray. They do not know what to do and on what issues to corner us." 7. Except referring us to the newspaper report, the petitioner has no personal knowledge of the advice given by the Council of Ministers to the President under Article 74(1) of the Constitution, which led to the dissolution of the Lok Sabha. Therefore, it cannot be said with any certainty by the petitioner as to on what basis the advice was given by the Council of Ministers to the President for the dissolution of the Lok Sabha before completion of its term of five years. The petitioner while relying upon the aforesaid excerpt forgot to give importance to the following statement which has been ascribed to the Prime Minister in the news item: "We will seek a renewed and larger mandate to build a strong and prosperous India. I am confident that we will get it. The BJP is not merely a political party, but a movement for social transformation," said Vajpayee." 8. In case the advice of the Council of Ministers to the President for dissolution of the Lok Sabha was based on the reason that the BJP will be able to seek at this point of time a renewed and larger mandate to build a strong and prosperous India, we cannot find the reason to be not in keeping with the spirit of the Constitution. 9. In Britain, Crown has the power to dissolve the House of Commons but this can be done on the advice of the Prime Minister though he may consult a few of his colleagues, if he so chooses. But he is not bound to do so. 9. In Britain, Crown has the power to dissolve the House of Commons but this can be done on the advice of the Prime Minister though he may consult a few of his colleagues, if he so chooses. But he is not bound to do so. There can be various factors on the basis of which the Prime Minister can advice the Crown to dissolve the House of Commons. The Prime Ministers over all majority in the House may be very lean. It may be difficult to push his programmes through the house. In such a contingency he may ask for the dissolution of the House so that his party position improves after fresh elections. Dissolution may also be resorted to in case the Prime Minister feels that he should seek a mandate from the people on important matter of policy on which he wishes to embark upon. (See Jennings Cabinet Government. Third Edition, 1969 and Indian Constitutional Law by M.P. Jain, Fifth Edition). 10. Taking cue from the British practice we do not find any reason to hold that the advice of the Council of Ministers to the President to dissolve the House suffers from any legal flaw. 11. It was next submitted by the petitioner that Article 85(2)(b) of the Constitution does no lay down guidelines and checks and balances for exercise of the power under Article 85(2)(b) of the Constitution by the President. We have considered the submission of the petitioner. We have already held that the powers exercised by the President to dissolve the Lok Sabha cannot be found fault with. This being so the question of guidelines raised by the petitioner is merely of academic interest. The framers of the Constitution have not chosen to lay down any inflexible rule as to in what circumstances the Council of Ministers may advice the President to exercise power under Art. There can be no rigidity or straight jacket formula for exercising the power under Article 85(2)(b). That power has not been hedged in by any limitations under the Constitution. This being so, it will not be in keeping with the letter and spirit of the Constitution to lay down a rigid formula for exercise of the power. 12. That power has not been hedged in by any limitations under the Constitution. This being so, it will not be in keeping with the letter and spirit of the Constitution to lay down a rigid formula for exercise of the power. 12. We are told that a petition under Article 32 of the Constitution was filed before the Supreme Court, being Writ Petition (Civil) No. 54 of 2004, Viplav Sharma, Advocate vs. Union of India & Ors., challenging the dissolution of Lok Sabha. We are also told that the petition has been rejected by the Supreme Court. This fact is not denied by the petitioner. 13. In the circumstances, therefore, the petition merits dismissal and we order accordingly.