Indian Kanoon - Search engine for Indian Law

It has to be borne in mind that even before the 42nd Amendment of the Constitution Chief Justice Ray had observed in the passage quoted above that the powers of the President and the powers of the Governor are similar to the powers of the Crown under the British Parliamentary System. It is, therefore, material to bear in mind the conventions that guide the exercise of discretion in the British Parliamentary System. For this purpose reference must necessarily be made to Halsbury's Laws of England, Fourth Edition, Volume 8, pages 540-541 at paragraphs 818 and 819. There it has been recognised that existence of some conventions is certain and could be defined accurately. The nature and the existence of others are subject to varying degrees of doubt. In this connection Halsbury refers to the part played by the Sovereign in choosing a Prime Minister when there is no clear majority in the House of Commons. The learned editors also recognised at paragraph 818 referred to hereinbefore, that there could therefore be no authoritative source to which reference can be made to ascertain whether a convention exists or what it is. One could only refer to the works on constitutional law or on constitutional or political history or the biographies of public figures, more especially where they deal with crises of one kind or another. At paragraph 819 the learned editors however recognised that the paramount convention is that the Sovereign must act on the advice tendered to her by her ministers, in particular the Prime Minister. She must appoint as Prime Minister, that member of the House of Commons who commands the confidence of the House and must appoint such persons to be members of the ministry and the Cabinet as he recommends. She must, in ordinary circumstances, accept any recommendation he may submit that Parliament be dissolved. In this connection the learned editors also observed that no Prime Minister in the United Kingdom has been refused a dissolution over a century, although in 1924 Asquith expressed the opinion that a Prime Minister leading a minority government was not entitled to dissolution and George V regarded himself as exercising an unfettered discretion in granting a dissolution to Mac Donald. According to the learned editors it would seem, therefore, that the Sovereign is not in all circumstances obliged to grant a Prime Minister's request for dissolution. The exercise of the royal prerogative in this respect is unlikely to be determined solely by past usages and precedents. The minimum criteria which are likely to be met before the Sovereign would consider refusing such a request from the Prime Minister are (1) belief that the existing Parliament was still vital, viable and capable of doing its job; (2) belief that a general election would be detrimental to the national economy; and (3) an alternative Prime Minister could be found who would be capable of commanding a working majority in the House of Commons and thus able to form a government for a reasonable period. A clear distinction must be drawn between the existence of the prerogative to refuse a request for a dissolution and the question whether in any particular set of circumstances the Sovereign would regard it as the best interest of the nation to refuse a dissolution. In this context, therefore, it may not be inappropriate to refer to certsm observations from the Constitutional and Administrative Law by S. A. de Smith, Third Edition, where the learned author has referred to the conventions of the Constitution and at pages 104-105 the learned author has mentioned about the conventions that guide situations of this nature. Here also the author has recognised that in 1924, George V granted a dissolution to Mac Donald when the first Labour Government was defeated on a matter of confidence in the House. He did not, however, consider himself constitutionally obliged to grant the request. Refusal must still be more readily justifiable according to the learned author if the rebels were known to be prepared to form a coalition Government with an opposition party, or if the country was in the throes of serious economic crisis or widespread civil strife. A Prune Minister who has actually been repudiated by his own parliamentary party in favour of one of his colleagues can claim no constitutional right at all to demand a dissolution. The learned author has also recognised that it is possible to imagine a marginal situation in which the fact that the General Election had been held only a short while previously might tip the balance against granting a request for a dissolution and at page 148 the learned author has summarised the modern conventions concerning the Prime Minister and the Cabinet and item 4 of the summary states that the general rule is that in appointing a Prime Minister, the Queen should commission that person who appears best able to command the support of a stable majority in the House of Commons. At page 153, there the author has recognised that when the Parliament is dissolved the Government continues in office; it vacates office only if the election results show that it has lost its majority in the House, in which case it must resign. Similarly, reference may be made to O. Hood Phillips' Constitutional and Administrative Law, Sixth Edition where at page 104 the learned author has described the nature and purpose of constitutional conventions and at pages 344 and 145 has discussed the conventions regarding the prerogative of dissolution. The petitioner strongly relied on convention (e) at page 145 where it is stated by the learned author that if the Government is defeated in the House of Commons on a motion of confidence or a motion of no confidence, the Prime Minister must either ask for a dissolution or tender resignation of himself and his ministerial colleagues. Where there is a dissolution which is the usual course, Ministers retain office during the ensuing general election. The petitioner relied on this passage in support of his contention that it is only an alternative for the Prime Minister when the Government is defeated or lost the confidence of the Parliament, he can either ask for a dissolution or tender resignation. He cannot simultaneously do both.

12. The next question that calls for consideration, is, whether the respondent No. 1 and his Council of Ministers were competent to resign and advise the President the dissolution of the Lok Sabha simultaneously in the fact's and circumstances of this case. Here, again, the circumstances under which the letters of resignation were sent have been set out-in the petition briefly and not incorrectly and also set out in Full Bench decision of the Madras High Court referred to hereinbefore. It is true in some cases after being defeated in the House of Commons in England the Prime Minister either continues in office and asks for dissolution of the House and verdict from the people and in some cases he resigns to give the Crown or the Sovereign the liberty to choose the succeeding Prime Minister. It is in that context perhaps de Smith at page 145 of his book referred to hereinbefore has spoken in the alternative and not as a conjunctive power of the Prime Minister. But the President retains as a prerogative his right to accept the advice of dissolution tendered by the Prime Minister. As we have seen, George V accepted the advice of a minority Government to dissolve the Parliament. It is, here, again in my opinion, the President has a wide choice to make and he must act on his own discretion. He is not bound to accept the advice tendered by the Prime Minister though in normal situation he should accept by the constitutional precedents and conventions. In this case, there are various factors which the President has to take into consideration. Sri Morarji Desai was the leader of the Janata Parliamentary Party and as such leader of the Parliamentary Party in the Lok Sabha he was the Prime Minister, because he apprehended that he had lost the confidence of the House, he tendered his resignation before the vote of no confidence was taken up for consideration. But in tendering his resignation the Prime Minister had not asked for dissolution of the House. He, therefore, did not at that time seek any vote of confidence from the people, leaving the President the choice either to call someone else in his discretion to form the Government or to dissolve the House. The President following the ordinary convention asked the leader of the opposition who had tabled the vote of no confidence to form the Government. After some negotiations and attempts the leader of the opposition expressed his inability to form the Government and conveyed his request t'o the President to ask the respondent No. 1 to form the Government. In the meantime, Sri Morarji Desai had again made a claim to form the Government. The President asked both respondent of No. 1 and Sri Morarji Desai as leader of the Janata Party to submit lists of their supporters. On the assessment of the said lists it was found by the President that the respondent No. 1 had a chance of being able to form a stable Govt. for sometime. He accordingly called upon the respondent No. 1 to form the Government in the manner indicated before. But before respondent No. 1 could face the vote of confidence tabled by him some of his supporters withdrew support and the President accepted the resignation on the decision and the advice of the Cabinet to dissolve the Parliament. It was felt by some that he should have asked Sri Jagjivan Ram who had in the meantime been elected Leader of the Janata Party, a party whose leader was the Prime Minister and who had resigned because he thought that he lacked the confidence of the House and who had not advised dissolution of the House. Whether the President should have asked the same party by the mere fact that there was change in the leadership to form the Government or accept the advice of the Prime Minister and his Council of Ministers and dissolve the House, is a matter which constitutionally and by convention is within the discretion of the President. He must act on his own assessment. He is not bound constitutionally and legally by the advice given by such a Prime Minister and Council of Ministers nor was he bound to call upon the new leader of the same party which had not faced the vote of confidence to form the Ministry. Whether the President thought that it was a futile exercise or whether the President thought that the special provisions of the Constitution for the scheduled castes and scheduled tribes must be continued for some more years by amendment of the Constitution which was not possible with the present composition of the House and as such there was urgent necessity of convening a new House, is a matter for the political assessment by the President with which this Court is not concerned and competent to judge. In that view of the. matter, in my opinion, tha advice of the Cabinet was tendered when the Cabinet was functioning in terms of Article 75(3) and under Article 74(1) the President should normally accept such an advice and therefore the advice tendered on the 20th of August, 1979, by respondent No. 1 in my opinion, is not legally and constitutionally improper but the President was, however, free to accept that advice or not to accept that advice. If the President had accepted that advice then the President cannot be said to have acted unconstitutionally.