1. The petitioner claims to be a tax payer and he has filed this writ petition seeking the issue of a writ of certiorari to quash the notification in G.O.Ms No. 200 Legislative Assembly Secretariat, dated 15th November, 1984 ordering under Art. 174(2)(b) of the Constitution of India, the dissolution of the Tamil Nadu Legislative Assembly published in Tamil Nadu Government Gazette Extraordinary of the same date. He has also filed two interlocutory petitions, one W.M.P 18175 of 1984 for staying all further proceedings in pursuance of the impugned notification and the other W.M.P 18176 of 1984 for an interim injunction restraining the respondents 3 and 4, the Election Commission of India and the Chief Electoral Officer respectively from conducting elections to the Tamil Nadu Legislative Assembly, pending disposal of the writ petition.

2. The validity of the notification has been questioned by the petitioner on the following three grounds: (1) There is no properly constituted Council of Ministers, since the requirements of Art. 163 of the Constitution are not satisfied. (2) Since there is no Chief Minister who alone can communicate the decision of the Council of Ministers to the Governor as contemplated under Art. 167, the issuance of the notification by the Governor dissolving the Assembly without such a communication is violative of the said Article. (3) Since the Chief Minister is not a party to the decision to dissolve the Assembly, the action of the Governor is ultra vires the Constitution and the question of dissolution of the Assembly can only be decided by the Chief Minister and by none else.

3. Before proceeding to consider as to how far the above contentions are tenable, it is necessary to set out the circumstances under which the dissolution of the Assembly came to be ordered by the Governor of Tamil Nadu, the first respondent herein, under the impugned notification. Mr. M.G Ramachandran, the Chief Minister of Tamil Nadu, fell ill and he was admitted into the Appollo Hospital, Madras for treatment on 5th October, 1984. Since then he is under medical treatment. In view of his continued medical treatment in the hospital, he was not in a position to personally discharge his functions as Chief Minister. Therefore, he is said to have orally delegated his duties to the Finance Minister, Mr. V.R Nedunchezian. Taking note of the above factors, the first respondent, the Governor of Tamil Nadu issued a notification G O.Ms 1806 Public (Special-B) dated 25th October, 1984, under Art. 166(3) allocating the subjects dealt with by Mr. M.G Ramachandran, the Chief Minister to Mr. V.R Nedunchezian, the Finance Minister, during the period of the former's medical treatment. That notification is not under challenge here. Thereafter, on 15th November, 1984, the Council of Ministers had met and decided to dissolve the Assembly and the Finance Minister, who is authorised to attend and deal with the portfolios of the Chief Minister by the earlier notification issued by the Governor, communicated the said decision to the Governor. Acting on the said communication, the first respondent had issued the impugned notification dissolving the Assembly. It is in the light of the above facts which have not been disputed before me by the learned counsel for the petitioner, the tenability of the contentions advanced by the petitioner have to be considered.

4. According to the petitioner, since there is no properly constituted Council of Ministers as contemplated by Art. 163 of the Constitution after Mr. M.G Ramachandran, the Chief Minister of Tamil Nadu took ill, the Council of Ministers cannot function at all and the decision taken by such a Council of Ministers without the Chief Minister taking part in the discussion cannot be acted upon by the Governor. It is said that the Council of Ministers ‘to aid and advise the Governor’ as contemplated by Art. 163 is one with the Chief Minister as its head and as the Chief Minister is laid up in the hospital, there is nobody to head the Council of Ministers, and, therefore, the Council of Ministers cannot act without its head. The petitioner has characterised the present Council of Ministers as ‘headless Council of Ministers’ and it is said that such a headless Council of Ministers cannot aid and advise the Governor in exercise of any of his functions. It is not possible for me to accept the said contention of the learned counsel that the Council of Ministers has ceased to have the Chief Minister as its head. Admittedly, Mr. M.G Ramachandran, the Chief Minister, has not either resigned or ceased to hold office. The fact that he is laid up in the Hospital will not make him any the less Chief Minister and he continues even now to be the head of the Council of Ministers. Therefore, there is a Council of Ministers with the Chief Minister as its head to aid and advise the Governor in the exercise of his functions as contemplated by Art. 163. The expression ‘to aid and advise the Governor’ in Art. 163 qualifies ‘the Council of Ministers’ and not the ‘Chief Minister’. The fact that the Chief Minister is not in a position to attend the meeting of the Council of Ministers on a particular occasion or situation will not make the Council of Ministers an ineffective or non-existent body. The Council of Ministers is enjoined by the Constitution to aid and advise the Governor in the exercise of his functions, and even if the Chief Minister was not in a position to attend the meeting of the Council of Ministers on a particular occasion, the decision taken by the Council of Ministers has to be given effect to by the Governor. As a matter of fact, the Government Business Rules specifically contemplate a meeting of the Council of Ministers being held even in the absence of the Chief Minister. Rule 19(4) of the Business Rules provides that the Chief Minister and in his absence, the Minister nominated by him will preside over the meeting of the Council of Ministers. In this view of the matter, the first of the three contentions fails.

5. The second contention is that there has been a violation of Art. 167 of the Constitution in that the decision of the Council of Ministers has not been communicated to the Governor by the Chief Minister as contemplated by that Article but it has been communicated by the Finance Minister, and that will not satisfy the requirement of Art. 167. That Article says that it shall be the duty of the Chief Minister of each State to communicate to the Governor of the State all decisions of the Council of Ministers relating to the administration of the affiairs of the State. According to the learned counsel the Chief Minister alone can communicate the decisions to the Governor and none else as per the provisions of Art. 167. The above contention, in my view, is based on a misconception of the scope of Art. 167. Art. 167 talks of the duty of the Chief Minister and not of his right. The object of the Article is to ensure that the Chief Minister does not give effect to the decision of the Council of Ministers without reference to the Governor and it is for that purpose a duty is enjoined by that provision on the Chief Minister to communicate all the decisions of the Council of Ministers to the Governor. Therefore, the petitioner is not right in saying that the Chief Minister alone has got the right to communicate the decision of the Council of Ministers and none else. No doubt, the Chief Minister is under a duty to communicate the decision of the Council of Ministers, but if the Chief Minister is not in a position to perform the said duty the same can be performed by the Ministers to whom his functions had been delegated. In this case the portfolios of the Chief Minister have been allocated by the Governor to the Finance Minister during the period of the former's medical treatment by the earlier notification of the Governor. Therefore all the functions assigned to the Chief Minister under the Business Rules can be performed by the Finance Minister. Further, the Finance Minister has also been delegated the powers of the Chief Minister and as a delegate, the former can communicate the decisions of the Council of Ministers to the Governor. I do not therefore find any substance in the above contention of the petitioner as well.

6. Coming to the third contention, it is contended on behalf of the petitioner that the Chief Minister alone can advise the Governor to dissolve the Assembly and in the absence of the Chief Minister nobody else including the Council of Ministers can decide to dissolve the Assembly. In support of the above submission that the decision to dissolve the Assembly is to be taken only by the Chief Minister and none else, reference has been made to the following passage in page 55 of the Constitutional and Administrative Law, by de Smith (4th edn):

“Thus arose the modern convention that the decision to advise a dissolution was for the Prime Minister alone, though it was still open to the Prime Minister to discuss the matter with his colleagues, privately or in a Cabinet meeting.”

Reference is also made to the following passage at page 174 of the same book—

“The Prime Minister may decide to advise a dissolution without prior reference to the Cabinet. In some situations, as we have already noted, it would be constitutionally proper for the Queen to refuse such a request, absolutely, temporarily, or conditionally, and one of those situations may be the case of a Prime Minister, placed in a minority in his own Cabinet, seeking to appeal to the electorate against his colleagues instead of following the more appropriate course of resigning. Nevertheless the widespread assumption that it is within the Prime Minister's sole authority to fix the date of the next General Election enhances his personal power in relation to his ministerial colleagues and his party, and in the country as a whole”.

The following passage in Harold Wilson's treatise on ‘The Governors of Britain’ at page 37 has also been referred—

“He (Lord Blake) goes on to point out that Asquith emphasises that this was ‘always submitted to the Cabinet for ultimate decision’, yet Balfour, writing to Bonar Law in 1918, said ‘I think that, whatever happens, the responsibility of a dissolution must rest with the Prime Minister. It always does so rest in fact, and on some previous occasions the Prime Minister of the day has not even gone through the form of consulting his colleagues. I do not believe that there is any profound constitutional issue here.”

The learned counsel for the petitioner also refers to the following passage in Basu's ‘Commentary on the Constitution of India’, 4th Edn. Volume 2, at page 443—

“Position of the Prime Minister in the Cabinet: (A) England: The Prime Minister is the leader of the Cabinet. He gains this position as the head of the party in majority in the House of Commons when an existing Cabinet resigns, the King calls for the leader of the party then in majority in the Commons and asks him to form a new Cabinet, of which he becomes the Premier. The first function of the Prime Minister, thus, is the choice of colleagues or Ministers. Theoretically, the position of the Prime Minister is only primus inter partes (Lord Morley,) or the ‘first among equals’. But in practice, all members of the Cabinet must refer to the Premier, and when any of them disagrees with him he ought in strictness to resign. He has thus been described as ‘the keystone of the Cabinet arch’ (Sir William Harcourt). He is, in fact, the working head of the State. He not only selects Ministers and assigns to them their office’, but can compel anyone of them to resign. The other Ministers virtually hold their office at the pleasure of the Prime Minister.”

Reference has also been made to a decision of a Full Bench of this Court in K.A Mathialagan v. The Governor . A.I.R 1973 Mad. 198, where the Court held that the exercise of the functions of the Governor in proroguing or dissolving the Assembly under Art. 174 is not a function which he can exercise in his discretion, that is to say, to the exclusion of the ministerial advice, that since the matter is not therefore covered by the exception to Art. 163(1) in the matter of prorogation the Governor is bound by the advice of the Council of Ministers and that on the facts of that case since the Chief Minister under the rules of allocation of the Government business was given the power to decide the question of dissolution, the Chief Minister is the only person who can advise on the question of dissolution. The learned counsel relies on the said decision in support of his plea that the advice on the question of dissolution can be tendered only by the Chief Minister and the decision cannot be taken by the Council of Ministers. But the said submission of the learned counsel overlooks the reasoning given by the Full Bench to hold that the Chief Minister alone can decide the question of dissolution. In that case it was specifically found that the power to decide the question of prorogation or dissolution has been allocated under the Government Business Rules to the Chief Minister and it is for that reason it was held that the Chief Minister alone is competent to decide that question. The said decision does not only lay down that even in the absence of such a power under the Business Rules in cases of dissolution it is only the Chief Minister who can aid and advise the Governor and not the Council of Ministers. As per the said decision, the question will depend upon the allocation of such a power under the Government Business Rules to the Chief Minister and if the question of dissolution is allocated to the Chief Minister, then it is the Chief Minister who can advise the Governor on the question of dissolution and if the question is not allocated under the Business Rules to the Chief Minister, then the Council of Ministers can decide the question of dissolution.

7. The above passages relied on by the counsel referring to the modern conventions cannot automatically be applied to the case on hand without reference to the relevant Constitutional provisions. As pointed out by the Supreme Court in A. Sanjeevi Naidu v. State of Madras,2 under our Constitution, the Governor is essentially a constitutional head, and the administration of the State is run by the Council of Ministers. But in the very nature of things it is impossible for the Council of Ministers to deal with each and every matter that comes before the Government and in order to obviate that difficulty the Constitution has authorised the Governor under sub-Rule 3 of Art. 166 to make rules for the more convenient transaction of business of the Government of the State and for the allocation amongst its Ministers the business of the Government and all matters excepting those in which the Governor is required to act in his discretion have to be allocated to one or the other of the Ministers on the advice of the Chief Minister. Apart from allocating the business among the Ministers the Governor can also make rules on the advice of the Council of Ministers for the more convenient transaction of business. He can not only allocate the various subjects amongst the Ministers but may go further and designate a particular official to discharge any particular function though he can do it only on the advice of the Council of Ministers. Therefore, as to who is to aid and advise the Governor in taking a decision for dissolution of the Assembly will depend upon the distribution of the business under the Business Rules.

8. In this case Rule 35(1)(a) of the Business Rules having allocated the question of dissolution of the Assembly to the Chief Minister and those functions having been allocated to the Finance Minister by the earlier notification issued by the Governor under Art. 166, the question of dissolution can be decided by the Finance Minister or the Council of Ministers. As has been held by the Supreme Court in The State Of Rajasthan v. The Union Of India, to dissolve or not to dissolve a Legislative Assembly is a matter of executive and political expediency and the courts cannot go into either the executive or political expediency. As a matter of fact, Art. 163(5) disables the Court from going into the existence and the nature of the contents of ministerial advice. It is also not open to the Court to go into the satisfaction of the executive head in dissolving the Assembly since an attempt to do that will be entering into a political question which the courts usually avoid especially when the Constitution does not lay down as to when the power of dissolution should be exercised by the Governor.

9. In this view of the matter, I do not see any merit in any of the three contentions set out above. The writ petition is therefore, dismissed. In view of the dismissal of the writ petition, the interlocutory petitions are dismissed.

VCS.