ORDER 1. The general elections to the Legislative Assembly of Bihar were held in three phases in the month of February 2005. The results of the election were notified vide Notification No. 308/B.R.-LA/2005 of the Election Commission of India on 4-3-2005. The Governor of Bihar made a report whereupon President’s rule was promulgated over the State of Bihar vide Notification No. GSR/162(E) dated 7-3-2005 and the Assembly was kept in suspended animation. By yet another notification of the same date, it was notified that all powers, which have been assumed by the President of India, would be exercised by the Governor of the State. It appears that the Governor of Bihar made two other reports, respectively dated 27-4-2005 and 21-5-2005, based whereupon, on 23-5-2005, a notification GSR No. 333(E) was issued ordering the dissolution of the Bihar Legislative Assembly. 2. On 30-5-2005, Writ Petition (C) No. 258 of 2005 had been filed by one Viplav Sharma, Advocate challenging the notification dated 23-5-2005. The reliefs sought for include (i) quashing of the recommendation reports of the Governor of Bihar for dissolution of the Legislative Assembly, (ii) quashing of the notification dated 23-5-2005 dissolving the State Legislative Assembly; (iii) a direction, order or writ of mandamus directing the Governor to forthwith administer the oath to all the elected members of the 13th Legislative Assembly of the State of Bihar and make it functional in compliance with Articles 172, 176 and 164(1) of the Constitution. Certain guidelines are also requested to be framed by this Court in the areas on which the Constitution is silent and does not make explicit provisions. The petition purports to have been filed in public interest. The Union of India, the Governor of the State of Bihar (by) designation in his official capacity and not by name in his personal capacity) and the Election Commission have been joined as respondents. On 25-7-20051, rule nisi was issued. Later on, on the attention of the Court being invited by making a mention, to the protection conferred on the Governor by Article 361 of the Constitution, on 27-7-20052, the Court directed : (SCC p. 147, para 2) "2. For the present, notice shall not issue to Respondent 2 (the Governor of Bihar). The order in that regard made on 25-7-20051 is recalled.” 3. For the present, notice shall not issue to Respondent 2 (the Governor of Bihar). The order in that regard made on 25-7-20051 is recalled.” 3. On 30-5-2005, yet another petition, Writ Petition (C) No. 258 of 2005 had been filed by a voter in the State of Bihar seeking quashing of the notification dated 23-5-2005. The petitioner claims to have filed the petition in public interest. On 12-7-2005, CWP No. 353 of 2005 had been filed by Smt. Purnima Yadav, who was elected as member of the Legislative Assembly, seeking quashing and setting aside of the notification dated 23-5-2005, dissolving the Legislative Assembly and also seeking restoration of the Election Commission notification dated 4-3-2005 and constituting the Legislative Assembly. Initially, the Union of India and the Governor of Bihar (by name) were impleaded as the respondents. However, the petitioner, through her counsel, took a candid stand that in view of Article 361 of the Constitution, the Governor could not be added as a party to the petition and called upon to answer in any proceedings in the court and sought the leave of the court to delete the name of Respondent 2 from the array of parties. The petitioner also sought for leave of the court for deleting certain averments made in the petition (which related to Respondent 2) as also to raise some additional points, purely legal ones in support of the leave already sought for. Pursuant to the leave so granted, the petitioner has filed an amended writ petition wherein the Governor of Bihar impleaded by name, the then Respondent 2, has been deleted from the array of parties and in stead, the Election Commission has been impleaded as Respondent 2. 4. On 31-5-2005, the four petitioners, who were elected as members of the Legislative Assembly, filed Writ Petition (C) No. 257 of 2005, putting in issue the notification dated 23-5-2005 and seeking restoration of the elected Legislative Assembly of Bihar. The Union of India and the Governor of the State (by name) have been joined as respondents. On 25-7-2005, this Court directed rule nisi to issue. The Union of India and the Governor of the State (by name) have been joined as respondents. On 25-7-2005, this Court directed rule nisi to issue. Later on, the attention of the Court was invited by making a mention that in view of the protection conferred on the Governor by Article 361 of the Constitution, neither the Governor can be joined as a respondent in the petition nor can the Court call upon him to answer the averments made in the petition. On 27-7-20052, the Court directed : (SCC) p. 147, para 2) "2. For the present, notice shall not issue to Respondent 2 (the Governor of Bihar). The order in that regard made on 25-7-20051 is recalled.” 5. IA No. 6 of 2005 was filed in WP (C) No. 257 of 2005 for the issue of a direction to the Union of India to produce the reports of the Governor which led to the dissolution of the Assembly. Since the Attorney General and the Additional Solicitor General appearing on behalf of the Union of India submitted that the Union of India is not claiming any privilege regarding those reports and the reports are proposed to be annexed to the common counter-affidavit being filed by the respondents, IA No. 6 of 2005 did not call for an adjudication and the same was disposed of on 30-8-20053 recording the submissions made by the Attorney General and the Additional Solicitor General. Therefore, that aspect is no more relevant. 6. Shri Soli J. Sorabjee, the learned Senior Counsel appearing in WP (C) No. 257 of 2005 and Shri Viplav Sharma, the petitioner appearing in person in WP (C) No. 258 of 2005, have urged that the action of the Governor is being assailed in the writ petitions and any finding thereon needs the impleadment of the Governor as the respondent in the petitions and notice ought to issue to him in the light of allegations made in the petitions. Shri Milon Banerji, the learned Attorney General, and Shri Gopal Subramanium, the learned Additional Solicitor General, appearing for the Union of India have placed implicit reliance on Article 361 of the Constitution submitting that the Governor enjoys complete immunity from court proceedings and is not answerable to any court for the exercise and performance of the powers and duties of his office or any act done or purporting to be done by him in the exercise and performance of those powers and duties. Both of them have submitted that the Governor cannot be impleaded as a party in these proceedings either in his official capacity or by name in person which, if done, would fall foul of Article 361 of the Constitution. It is submitted that any proclamation by the President under Article 356 of the Constitution may be open to judicial review within the limited scope of the law laid down in Bommai case4. But the President or the Governor cannot be joined as parties to the proceedings. It is for the Union of India to defend the proclamation under Article 356 of the Constitution based on the materials available. The report of the Governor constitutes a part of such material. The court may scrutinise the materials but inasmuch as the ultimate relief to be granted by the court would be either to sustain or to quash and set aside the proclamation under Article 356 of the Constitution, that can be done without impleading the President and/or the Governor as party to the proceedings. By way of rejoinder it was submitted by Shri Soli J. Sorabjee, the learned Senior Counsel, that in WP (C) No. 257 of 2005 legal mala fides have been alleged on the part of the Governor and it was an elementary principle of our procedural jurisprudence to implead the person against whom the allegations are made and in that context it was necessary to implead the Governor and it was also necessary for this Court to issue notice to him before adjudicating on the point that the acts of the Governor are tainted by mala fides in law. This submission was sought to be met by Shri Gopal Subramanium, the learned ASG, by pointing out that it is one thing to say that an action under Article 356 of the Constitution does not enjoy the protection of Article 361, but it is quite another thing to say that the Governor who has made a recommendation which is taken note of by the President acting on the advice of the Council of Ministers to issue the notification dissolving the Assembly, has to be decided with the Governor on the array of parties. It is pointed out that no such proposition is laid down in Bommai and on the other hand, the said decision would show that there could be no question of impleading the Governor in such a proceeding. 7. However, the contention raised by Shri Soli J. Sorabjee, the learned Senior Counsel need not detain us further as, at the end, and after hearing the stand taken by the learned Attorney General and the learned Additional Solicitor General appearing for the Union of India, he made the following statement : "The petitioners are not keen to have the exalted presence of His Excellency the Governor before the Supreme Court. The petitioners’ anxiety is that they may not be precluded or foreclosed from urging the grounds of mala fide in the writ petition solely on the ground that the Governor is not a party to the writ petition. It is submitted that this should be made explicitly clear in order to protect and safeguard the interest of the petitioners.” 8. In response to the abovesaid statement made by Shri Soli J. Sorabjee, the learned Attorney General and the learned Additional Solicitor General appearing for the Union of India joined in making the following statement: "That the constitutional validity of the proclamation under Article 356 of the Constitution on the averments made in the petitions can be gone into within the scope of judicial review permissible in the light of the law laid down in the case of S.R. Bommai v. Union of India and a finding either way arrived at by this Court without impleading the Governor in his official or personal capacity and without calling upon him to answer any of the averments made in the petitions in view of Article 361 of the Constitution.” 9. Shri Viplav Sharma, the petitioner appearing in person in WP (C) No. 258 of 2005, submitted that he has not only challenged the act of the Governor in recommending the dissolution of the Assembly, but he has also challenged the inaction of the Governor in not constituting the Assembly by administering the oath of office to the representatives of the people newly elected. He submitted that he was really seeking the issue of a writ of mandamus directing the Governor to perform his duty under the Constitution of duly constituting the Assembly after the Election Commission had furnished the list of successful candidates and in such a writ petition, the Governor was obviously a necessary party and the protection afforded under Article 361 of the Constitution was not attracted. He submitted that if only the Governor would have discharged his constitutional duty and obligation of administering oath to the newly elected members of the Legislative Assembly, as required by Article 188 of the Constitution, by appointing a pro tem Speaker, the Assembly would have come into existence and a popular Government could have been formed. Instead of performing the constitutional duty obligated on the Governor, the latter chose to make a report recommending the imposition of President’s rule and dissolution of the Assembly. The principal grievance raised in the writ petition, submitted by the petitioner, relates to "non-performance of duty” by the Governor and that would not attract the applicability of Article 361 of the Constitution. He submitted that this Court is not powerless to issue a writ of mandamus to the Governor for securing performance of any constitutional duty attached to the office of the Governor and the Constitution does not provide any alternative efficacious remedy to a citizen of India if the Governor fails to exercise any of his powers or to perform any of the duties of his office. In reply, the learned ASG argued that even in such a case, a direction can only be issued to the Union or the Central Government directing that entity to ensure that the Governor performed his duties. It was submitted that the Governor was only holding office at the pleasure of the President and the President always acted on the advice of the Council of Ministers. It was submitted that the Governor was only holding office at the pleasure of the President and the President always acted on the advice of the Council of Ministers. It was, therefore, for the Union of India to take the necessary steps and this Court was expected only to direct the Union Government to ensure that the constitutional duties were performed by the Governor. Learned counsel relied on Article 355 of the Constitution and emphasised the last limb of the article that it shall be the duty of the Union ofin accordance with the provisions of the Constitution. According to the Additional Solicitor General, the direction to be issued in case the Court ultimately found that a mandamus was liable to be issued was only to the Union of India and not to the Governor himself. 10. The submissions made before us call for an interpretation of Article 361 of the Constitution and other related issues. It is a case involving "a substantial question of law as to the interpretation of the Constitution” within the meaning of Article 145(3) of the Constitution. We are, therefore, of the view that the question whether the Governor could be impleaded in his capacity as the Governor and whether notice could be issued to him on the writ petitions in the context of the averments made and the prayers contained therein, have to be resolved by a Constitution Bench. As the main matters are to be heard by a Constitution Bench, we deem it proper to refer these questions also to a Constitution Bench of this Court. We think it proper to highlight, in particular, the following aspects for consideration: 1. What is the extent and ambit of constitutional immunity enjoyed by the Governor under Article 361 of the Constitution? 2. Whether the protection afforded by Article 361 of the Constitution to the Governor of a State prevents the Governor being impleaded even when there are allegations in the writ petition which according to the writ petitioner constitute mala fides? 3. What is the extent and ambit of constitutional immunity enjoyed by the Governor under Article 361 of the Constitution? 2. Whether the protection afforded by Article 361 of the Constitution to the Governor of a State prevents the Governor being impleaded even when there are allegations in the writ petition which according to the writ petitioner constitute mala fides? 3. Whether inaction or omission to exercise a power conferred or the failure to perform a duty imposed by the Constitution would come under the protection of Article 361 of the Constitution and could it be claimed that the Governor shall not be answerable to the Court for non-exercise of the power or non-performance of the duties conferred or imposed on him by the Constitution? 4. Whether in a case where one of the prayers in the petition is for the issuance of a writ of mandamus directing the Governor to perform his constitutional obligation of administering the oath of office to the newly elected representatives of the people for making the Assembly functional as contemplated by Article 188 and appointing a Chief Minister and other Ministers under Article 164(1) of the Constitution, the Governor could not be nominee impleaded since the mandamus sought for is against the Governor and not against the Union of India? 5. Whether the contention on behalf of the respondents that even in the case of a failure on the part of the Governor to perform his constitutional duty, mandamus or any other direction could be issued only to the Union of India and not to the Governor himself, is justified in the light of the relevant constitutional provisions? 11. The learned Attorney General, the learned Additional Solicitor General appearing for the Union of India, the learned Senior Counsel Mr. Soli J. Sorabjee appearing for the petitioners in WP (C) No. 257 of 2005, the other counsel appearing in the cases, as also the petitioner in WP (C) No. 258 of 2005 appearing in person pray that there is an urgency for hearing of the matters and the case may be appointed for hearing at the earliest date available. As agreed, let the matters come up before the Constitution Bench at the earliest. All other pending applications shall also be placed before the Constitution Bench for consideration. 12. Be placed for directions before the Hon’ble the Chief Justice of India. Matter referred to Constitution Bench. **********************