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High Court Of Calcutta
SABYASACHI MUKHERJI
MADAN MURARI VERMA - Appellant
Versus
CHOUDHURI CHARAN SINGH - Respondent
CO 10725 (W) Of 1979
Decided On : 12/11/1979
CONSTITUTIONAL LAW - PRESIDENT'S POWER TO DISSOLVE LOK SABHA - ADVICE OF COUNCIL OF MINISTERS - CONDITIONS - RESIGNATION OF PRIME MINISTER AND COUNCIL OF MINISTERS - CONTINUANCE IN OFFICE UNTIL ALTERNATIVE ARRANGEMENTS MADE - OATH OF OFFICE - CARETAKER GOVERNMENT - PRESIDENT'S DISCRETION - JUDICIAL REVIEW.
Fact of the Case:
Petitioner challenged the President's decision to dissolve the Lok Sabha on the advice of the Prime Minister, who had resigned along with his Council of Ministers. The petitioner contended that the President could not impose any condition on the Prime Minister, that the Prime Minister and his Council of Ministers could not resign and advise the dissolution of the Lok Sabha simultaneously, and that they could not continue in office without taking fresh oaths of office.
Finding of the Court:
The court held that the President was justified in calling upon the Prime Minister to form the Ministry, as he had the discretion to choose the Prime Minister who could command the confidence of the House. The court also held that the Prime Minister and his Council of Ministers were competent to function and aid and advise the President until their resignations were accepted. The court further held that the President was not competent to impose a condition that the Prime Minister and his Council of Ministers obtain the sanction of the Lok Sabha by a certain date, but that the President's suggestion in this regard was not a condition. The court also held that the Prime Minister and his Council of Ministers were competent to resign and advise the dissolution of the Lok Sabha simultaneously, as the President had the discretion to accept or reject such advice. Finally, the court held that the Prime Minister and his Council of Ministers could continue in office without taking fresh oaths of office, as they were holding office during the pleasure of the President.
Issues: 1. Whether the President was justified in calling upon the Prime Minister to form the Ministry as he did? 2. Whether the Prime Minister and his Council of Ministers were competent to function "to aid and advise" the President in terms of Article 74 (1) of the Constitution of India until the Prime Minister and his Council of Ministers tendered resignations on the 20th August, 1979? 3. Whether the President called upon the Prime Minister to form the Government upon the condition that respondent No. 1 and his Council of Ministers obtained the sanction of the Lok Sabha by the 3rd week of August, 1979 and if so, whether the President was competent to impose such a condition and whether the respondent No. 1 and his Council of Ministers were competent to function without fulfilling the said condition? 4. Whether the respondent No. 1 was competent to resign and advise the dissolution of the Lok Sabha simultaneously, in the facts and the circumstances of this case? 5. Whether, after the resignations of the respondent No. 1 and Council of Ministers were accepted by the President the respondent No. 1 and the Council of Ministers were competent of function without taking any fresh oaths of office under Article 75 (4) of the Constitution?
Ratio Decidendi: 1. The President has the discretion to choose the Prime Minister who can command the confidence of the House. 2. The Prime Minister and his Council of Ministers are competent to function and aid and advise the President until their resignations are accepted. 3. The President is not competent to impose a condition that the Prime Minister and his Council of Ministers obtain the sanction of the Lok Sabha by a certain date, but the President's suggestion in this regard is not a condition. 4. The Prime Minister and his Council of Ministers are competent to resign and advise the dissolution of the Lok Sabha simultaneously, as the President has the discretion to accept or reject such advice. 5. The Prime Minister and his Council of Ministers can continue in office without taking fresh oaths of office, as they are holding office during the pleasure of the President.
Final Decision: The court declined to issue a rule nisi, but directed that the Prime Minister and his Council of Ministers must act only in the manner indicated by the court and that in case of any doubt, the decision must be left by the Prime Minister and his Council of Ministers to the President.
( 1 ) THE petitioner in this application is a citizen of India. In his application filed under Article 226 of the Constitution on 3rd of September 1979 he has asked for a rule nisi upon the two respondents to show cause under what authority the respondent no. 1 and his colleagues resolved to advice the President to dissolve the Lok Sabha on 20th of August, 1979 and also a rule nisi upon the respondents to show cause why writ or order or direction in the nature of quo warranto should not be issued calling upon Choudhuri Charan Singh to show cause why he should not be removed from the office of the Prime Minister. The petitioner also prays for an ad interim order of injunction restraining the respondent no. 1 from functioning as the Prime Minister of India till the disposal of the petition. After the application was filed it came up in the list on the 4th of September 1979 and instead of issuing a rule nisi I directed the respondents to file affidavits and the respondents have filed affidavits and I have heard this matter as a contested application.
( 2 ) IT is not necessary for me to set out in detail the events that took place after the monsoon session of the Union Parliament began on the 9th of July, 1979. These events are of very recent origin and are fresh in public memory. It is not necessary to recapitulate them and these have been practically in near exhaustive manner set out in the Full Bench decision of the Madras High Court in the case of S. Ramaswami v. Sri Charan Singh (W. P. No. 3671 of 1979), and O. V. Alagesan v. Union of India (W. P. No. 3742 of 1979), The judgment was delivered on 10-10-1979. I will only, therefore, refer to certain relevant facts which are necessary for the purpose of determining the issues involved in this case. It is necessary to set out the contents of certain letters. The first one is the letter whereby the President invited the respondent No. 1 to become the Prime Minister of India and form the Government. It may be mentioned that before that the President had asked Sree Morarji Desai, leader of the Janata Party in Lok Sabha and who had prior thereto tendered resignation of himself and his Council of Ministers on 15th July. 1979 without facing the no-confidence motion and whose resignation had been accepted and who had been asked by the President "to continue in office fill a new Government is formed" had made his claim to form the new Government on the basis of his supporters. The President who had asked the respondent No. 1 to submit the list of his followers to judge his ability to form the Government had also submitted his list. Thereafter the following correspondence followed, The following is the text of the President's letter to Mr. Charan Singh:"dear Mr. Charan Singh. Please refer to the correspondence resting with your letter dated 25th July and the discussion which your representatives and those of Mr. Morarji Desai held with my secretary yesterday evening and this morning. After consideration of all relevant aspects of the matter, I find that you enjoy the support of more members of the Lok Sabha than Mr. Morarji Desai. I, therefore, call upon you to form a Government. Please let me have the names of persons t'o be appointed to the Council of Ministers. 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. "following is the text of Mr. Charan Singh's letter dated August, 20, 1979 addressed to the President of India. "my Dear Rashtrapatiji, the Cabinet met this morning and took a decision as follows:--"we had formed the Government with a view to restoring effective democracy and secularism. We had further hoped that we would be able to bring light into the life of the deprived and the down-trodden, to restore confidence amongst the minorities and weaker secti
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