Dalpat Raj Bhandari vs President of India and Others

K.C. Agrawal, C.J.—The appellant, Sri Dalpal Raj Bhandari, is an Advocate of this Court; he filed a petition under Art. 226 of the Constitution of India, which was dismissed by learned single Judge on 7th August, 1991 and dissatisfied with the same, the present appeal u/s 18 of the Rajasthan High Court Ordinance, 1948 has been preferred.

In the writ petition, the appellant challenged the validity of the appointment as Prime Minister of Sri P. V. Narashimha Rao. Before we deal with the merits of the case, we would like to give a brief history as to how his appointment as Prime Minister was made.

After declaration of the results of Lok Sabha elections, he was unanimously elected leader of the Congress (I) Parliamentary Party on June 20, 1991. He called on the President who invited him to form a Government and gave him four weeks from June 21, 1991 to prove his majority on the floor of the Lok Sabha. A communique issued by the Rashtrapati Bhavan said :--

"Mr. P. V. Narasirnha Rao called on the President this evening. The President has personally handed over a letter to Mr. P. V. Narasirnha Rao which reads as follows :

''As the leader of the Congress (I) the largest party in the Lok Sabha, I appoint you as the Prime Minister of India and invite you to form the Council of Ministers, I advise you to establish your majority in the Lok Sabha within four weeks.''"

Before Sri Rao''s elections leader of the Congress (I) Parliamentary Party, the then Maharashtra Chief Minister Sri Sarad Pawar was a contender. Sri Pawar thereafter issued an appeal to all party MPs to ''support Mr. Rao and thus arrive at a unanimous decision''. He personally conveyed to Mr. Rao the change in his decision to oppose him. He met Mr. Rao along with Sri N.K.P. Salve, Mrs. Najma Heptullah and Sri P. Shiv Shanker. The meeting lasted ten minutes and thereafter Sri Pawar said that he had decided to offer ''constructive co-operation to Mr. Rao. Then, Mr. Rao expressed his happiness that the leadership issue was resolved through consensus.

Later, felicitating Mr. Rao for his election as the CPP-I leader, Mr. Pawar described him as a ''mature, intelligent and experienced leader who had risen in the organisation from the ranks.''

On June 21, 1991 Hindustan Times

editorially commented:

"Most political parties centred on one person generally face difficulties in sorting out the succession question. The Congress Party could have got caught in this problem after Rajiv Gandhi''s assassination, but it has succeeded in resolving the leadership issue without much trouble. Credit for this should go to Mr. P. V. Narasimha Rao who has been chosen as the leader of the Congress Parliamentary Party and Mr, Sharad Pawar, his main challenger who preferred party unity and stability to his keenness to be Prime Minister. The Congress party does not enjoy majority in the Lok Sabha and a split over the issue would have made the task of forming the Government difficult. Mr. Rao will now be able to form a Government, hopefully stable with support of other groups."

The main ground of challenge in the writ petition was that the President of India did not have any power under the Constitution to invite Sri Rao , for forming the Government on the basis that he was leader of Congress (I) Parliamentary Party. The petitioner alleged that India has a written Constitution and the Government can be formed on the basis of the provisions contained therein and not on the basis of conventions borrowed from England, which does not have any written Constitution. The appellant took us to the various provisions of the Constitution and attempted to demonstrate that a person should be nominated as leader only when he is a member of a recognised political party and he has been chosen as such by the majority of that party. The appellant Sri Dalpat Raj Bhandari, emphasised that under Article 75 of the Constitution, there was no provision for a situation like the present one where none of the parties got majority to form the Government. In this view of the matter, the President could not usurp the power, not conferred by the Constitution to call any person for forming the Government. This action of the President resulted in throttling democracy and bringing in power a person of his own choice. According to Sri Bhandari, even the conventions developed in England cannot justify the action of the President and in this connection, he referred to Halsbury''s Laws of England, Fourth Ed., Vol. 8, page 1116 and tried to find support for the submission that there did not exist any such convention in England which entitled the King/Queen to invite a person, not commanding majority to form the Government. He also cited some observations from the book titled ''Constitutional Law of India'' by H.M. Seervai, Vol. II.

It is, no doubt, true that we have a written Constitution whereas England is governed by unwritten Constitution. Another difference between India and England is that while President is the Head of State in India, the King or Queen is the Head of State in England. Taken as a whole, and at their face value, the Presidential powers are formidable indeed. But since the Government envisaged under the Constitution is modelled after the Cabinet system of Government in Britain, these powers are only formal and not real. Late B. R. Ambedkar stated as under in the Constitutent Assembly:--

"The President occupies the same position as the King under the English Constitution. He is the head of the State but not of the Executive. He represents the nation but does not rule the nation. He is the symbol of the nation. His place in the administration is that of a ceremonial device on the seal by which the nation''s decisions are made known."

In a parliamentary system of Government, the Executive is responsible to the Legislature. The Council of Ministers hold their offices not by the grace of the President (or literally during the pleasure of the President) but because of the confidence of Parliament which they enjoy. They go out of office not because the President has lost confidence in them, but because they have lost the confidence of Parliament to which they are jointly and directly responsible.

Since the Cabinet system of Government has been introduced into the Indian Constitution from the British model and since all the conventions cannot possibly be codified exhaustively, it would be legitimate to refer to the British conventions in interpreting the provisions of Articles 74 and 75, unless of course, they are excluded or modified by these or other provisions of the Constitution, as held in Rai Sahib Ram Jawaya Kapur and Others Vs. The State of Punjab, ; Samsher Singh Vs. State of Punjab and Another, U.N.A. Rao Vs. Smt. Indira Gandhi,

The power and the position of the President- of India under our Constitution had been considered by the Supreme Court in Samsher Singh''s case (supra) and in this case it also referred the earlier decisions in Ram Jawaya (supra) and Rao v. Indira (supra). Ray, C.J.I., as he then was, observed as under after considering all the previous decisions (at p. 2199 of Samsher Singh Vs. State of Punjab and Another,

"This Court has consistently taken the view 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.

.......

The executive has the primary responsibility for the formulation of govermental policy and its transmission into law. The Condition Precedent to the exercise of this responsibility is that the executive retains the confidence of the legislative Branch of the State."

Krishna Iyer, J. while concurring with the majority judgment, also observed as under (at p. 2230 of AIR):--

"We declare the law of this branch of our Constitution to be that the President and the Governor custodians of all executive and other powers under various Articles shall, by virtue of these provisions, exercise their formal constitutional powers only upon and in accordance with the advice of their ministers save in a few well-known exceptional situations. Without being dogmatic or exhaustive, these situations relates to (a) the choice of Prime Minister..... restricted though this choice is by the paramount consideration that he should command a majority in the House....."

Sri Dalpat Raj Bhandari next contended that the learned single Judge erred in relying on the decisions of Madan Murari Verma Vs. Choudhuri Charan Singh and Another, and Dinesh Chandra Pande v. Chaudhury Charan Singh AIR 1980 Delhi 114 as these cases have not decided the controversy in issue and by placing reliance on them, the learned single Judge arrived at an incorrect conclusion. We are unable to uphold his submission. Both the aforesaid decisions have relevance to the controversy in issue and the relevant extracts are being quoted below (at p. 101 of Madan Murari Verma Vs. Choudhuri Charan Singh and Another,

".....However, in making a choice of the Prime Minister, the President has to act in his own discretion and naturally he must take various factors into consideration and naturally he must take various factors into consideration and the primary factor in his assessment is to who as Prime Minister and which body of Council of Ministers will enjoy the confidence of the Parliament in terms of Article 75(3).......

The Court could not sit in judgment on the political assessment of the President."

In Dinesh Chandra''s case (AIR 1980 Delhi 114) (supra), the following observations are relevant:--

"....-.Therefore, it is not correct to say that the Prime Minister must seek the vote of confidence in the Lok Sabha before his appointment or simultaneously with it. Under Article 85, the President can prorogue the Lok Sabha on the advice of the new Government headed by the Prime Minister and summon the session of the Lok Sabha subsequently

Therefore, we find that the learned single Judge rightly relied on the aforesaid decisions.

From the foregoing discussion, we are of opinion that conventions can be taken advantage of. In ''An Introduction to the Study of the Law of the Constitution'', A. V. Dicey defined conventions as "rules for determining the mode in which the discretionary powers of the Crown (or the Ministers as servants of the Crown) ought to be exercised". He was concerned to establish that conventions were "intended to secure the ultimate supremacy of the electorate as the true political sovereign of the State." The following observations of Dicey at page cliv of the aforesaid book are important:--

"It is the prerogative of the Sovereign to appoint the Prime Minister. Convention limits the range of choice to that of a party leader who can command a majority in the House of Commons. This does not mean that the rules can normally be disregarded, but that unforeseen circumstances may deprive them of their force on a particular occasion; any departure from the normal would have to conform to recognising the supremacy of the electorate and not to serve autocratic ends.

......

On the whole it seems preferable to regard the political practices of Sovereigns in coice of Prime Ministers as within the category of conventional rules, even though those rules are still somewhat inconclusive and, therefore, sufficiently flexible to meet unforeseen circumstances."

The importance of conventions has been described by Sir Ivor Jennings in his book ''The Law and the Constitution'' at pages 82 and 83 in the following words :--

"Necessarily conventional rules spring up to regulate the working of the various parts of the Constitution, their relation to one another and to the subject. And not only will conventions spring up in these circumstances, but they will always have two common characteristics. In the first place, it is at these conventions that we must look if we would discover the manner in which the Constitution works in practice. They determine the manner in which the rules of law, which they presuppose, are applied, so that they are in fact, the motive power of the Constitution. In the second place, these conventions are always directed to secure that the Constitution works in practice in accordance with the prevailing constitutional theory of the time."

In this connection, reference may also made to Halbury''s Laws of England, Fourth Ed., Note 1 below para 812, wherein the following observations are made :--

"Apparently the Queen need not ask or accept advice on the question whom she is to call upon to form a new Government; but her choice is almost completely circumscribed by the practice of all parties to elect their leaders, and by the verdict of the House of Commons or of the country at a general election: ..... There may, residually, be a function for the Queen to perform, however, in the event of an inconclusive general election or at any other time when the elected leader of the majority party in the House of Commons is unable to command the confidence of the House over a matter of principle if a dissolution would be inappropriate at that time."

In England, somewhat similar situation, as in the present case before us, arose after the general elections in February, 1974, when no party had an over-all majority and the Conservatives who had a majority in the outgoing Parliament, were narrowly defeated by the Labour Party. Upon the Labour Party refusing to join hands with the Conservatives, the Queen appointed Mr. Wilson, the Labour leader as Prime Minister and he formed the Government, relying on sufficient support from other parties to enable him to command a working majority. Thus, in that case, the discretion was exercised by the Queen as her prerogative.

In the Indian Constitution, President occupies the highest position. He has to watch the interest of the country and the people of India. Law requires that the President must exercise his powers on the advice of Council of Ministers but that advice will not be available to him in the choice of a Prime Minister, where his predecessor has been removed by death or his own resignation. In such a situation, the President has the discretion to follow convention and there is no legal bar to the same. The following observations of Jennings in the aforesaid book are very useful for this purpose :---

".....A Constitution does not work itself; it has to be worked by men. It is an instrument of national co-operation, and the spirit of co-operation is as necessary as the instrument. The constitutional conventions are the rules elaborated for effecting that co-operation. Also, the effects of a Constitution must change with the changing circumstances of national life. New needs demand a new emphasis and a new orientation even when the law remains fixed. Men have to work the old law in order to satisfy the new needs. Constitutional conventions are the rules which they eleborate.

Sir William Hold worth has explained these characteristics. ''Conventions must grow up at all times and in all places where the powers of Government arc vested in different persons or bodies-- where in other words there is a mixed Constitution. The constituent parts of a state said Burke, are obliged to hold their public faith with each other, and with all those who derive any serious interest under their engagements, as much as the whole state is bound to keep faith with separate communities."

Therefore, it is always open to the President to follow convention. At the same time, it is also not binding on him to follow the same convention next time. Each and every time, he will have to take decision in accordance with the exigency of the situation. There is no estoppel against his working differently than on the previous occasion. Country is supreme and as a watchdog, the President is always empowered to take final decision in such matters in accordance with law and conventions keeping in view the changing circumstances of the national life.

19-20. Emphasis was laid by the appellant on the point that the learned single Judge erroneously treated the question as political and refused to go into the validity of the action of the President. We are unable to agree with the submission. We find that the learned single Judge considered all pros and cons of the matter and correctly found justification in the action of the President.

Argument was made by the appellant regarding initial induction of Mr. Rao as Prime Minister, but since then, several sessions of Parliament took place and he has been found to be commanding majority in the same. Consequently, even if the submission of the appellant is taken to be correct that illegality and irregularity was committed, with which we do not agree, the same has lost significance. In the forthcoming by-election of the Lok Sabha, Mr. Rao is one of the candidates and thus, the condition imposed by Article 75(3) of the Constitution, is also met.

Now we come to the last point that since the Congress (I) Parliamentary Party was not validly constituted and no meeting of the same was held for electing Mr. Rao as its leader, he could not be invited by the President to form the Council of Ministers.

This submission has also no force in the eye of law. In the beginning, we have given a brief history as to how Mr. Rao became Prime Minister. That itself shows that none of the party member had any grudge against him and his election as the leader was unanimous. Congress (I) Party is a registered society and no writ can be issued against it on the grounds urged by the appellant. The appellant is a busy body and admittedly, he has no interest in the affairs of the Congress (I) Party. He is not even its member. In such circumstances, he is not an aggrieved party.

In view of what has been discussed above, we find no merit in this appeal and we respectfully agree with the view taken by the learned single Judge. The writ petition deserved dismissal and he rightly did so.

In the result, the appeal fails and is dismissed with no costs.