The President has the power to prorogue the Lok Sabha under Article 85 of the Constitution. The President's discretion in this regard is untrammelled by the Constitution.

( 1 ) WHICH comes first in order of time, the executive or the legislature ? This question raised by the present writ petition is certainly easier to answer than the popular quiz which comes first, the egg or the chicken. For, the answer comes out of Article 75 of the Constitution and the - unwritten conventions or constitutional practice.

( 2 ) AFTER the resignation of the Council of Ministers headed by Shri Morarji Desai, the President first called upon the Leader of the Opposition to form the Government. When he expressed his inability to do so, the President asked Shri Morarji Desai and Shri Charan Singh to submit lists of their supporters in the Lok Sabha. After scrutinising them on 26th July, 1979 the President concluded that Shri Charan Singh enjoyed the support of more members in the Lok Sabha than Shri Morarji Desai. He called upon Shri Charan Singh to form a Government adding that in accordance with the highest democratic traditions and in the interests of establishing healthy conventions Shri Charan Singh would seek a vote of confidence in the Lok Sabha at the earliest possible opportunity, say, by the third week of August, 1979. Shri Charan Singh was sworn in as the Prime Minister and thereafter some other Ministers were also sworn in. Presumably on the advice of the Cabinet the Lok Sabha was prorogued by the President. Soon thereafter a session of the Lok Sabha was called for to begin on Monday the 20th August, 1979 to enable the new Government to seek a vote of confidence.

( 3 ) IN the above circumstances, the petitioner challenges the legality of the Government formed by Shri Charan Singh. Shri Danial Latiffi, learned Counsel who argued for the admission of the petition, chose to advance the following points in support of the contention :

(1) Under Article 75 (3) the Council of Ministers shall be collectively responsible for the House of the People. The vote of confidence in the Lok Sabha should therefore have been sought by the new Government either before taking office or simultaneously with it. The continuation of the new Council of Ministers in the office without doing so is a violation of Article 75 (3 ). (2) The de jure status of the new Government thus being doubtful, the President should not have accepted its advice to prorogue the Lok Sabha since this enables the new Government to continue in office without seeking a vote of confidence in the Lok Sabha. (3) In case the new Government does not get the vote of confidence on the 20th August, 1979 or thereafter it would not have the right to advise the President to dissolve the Lok Sabha for a mid-term poll because it was not a legally constituted Government.

( 4 ) THE contentions raised in his argument by the learned counsel are only partly questions of law. They are also partly political. They involve considerations not only of the Constitution but also of the conventions. The courts in India have not evolved a set of principles by following which they shun "political questions" as unjusticiable in courts. The main reason for non-justiciability is that legitimate use of political power is generally non-justiciable since it has political sanction which is sufficient in view of the separation of powers between the executive, the legislature and the judiciary in the Constitution.

( 5 ) BUT when it is alleged that political power has not been used in accordance with the Constitution or law, the courts have to examine if the issues are legal or political and if the latter if they are justiciable or not. The distinction between a legal and a political issue is something which we know, but find hard to define. Broadly speaking, "when there is a general agreement among the dominant groups as to the rules which should be applied, then we have a legal issue. . . . . . A political issue, on the other hand, is one about which there is greater conflict, less certainty and less agreement. . . . . . The distinction turns on the amount and intensity of th