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Rameshwar Prasad (Iv) And Others v. Union Of India And Another
Factual and Procedural Background
Three writ petitions—W.P. (C) Nos. 257, 258 and 353 of 2005—were listed before the Court. The petitions challenge a proclamation issued under Article 356(1) of the Constitution. During the hearing on 5-9-2005, counsel for the petitioners, the Attorney General, and the Additional Solicitor General presented oral arguments. After concluding arguments, the Court reserved orders on whether notice should be issued to the Governor and on several ancillary applications. By the present order it (i) rules on the notice issue, (ii) reschedules the merits hearing from 27-9-2005 to 20-9-2005, and (iii) records the petitioners’ decision not to press their pending applications for stay of elections.
Legal Issues Presented
- Whether, in view of the immunity granted by Article 361(1) of the Constitution, the Governor can be impleaded as a party and served with notice in these writ proceedings.
- Whether Article 361(1) bars judicial scrutiny of a proclamation issued under Article 356(1) when the challenge alleges mala fides or that the proclamation is ultra vires.
Arguments of the Parties
Union of India
- The Attorney General and the Additional Solicitor General contended that Article 361(1) confers complete immunity on the Governor from being answerable to any court for acts done in the discharge of official duties; therefore, no notice should be issued to the Governor.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Court accepted the submission of the Attorney General and Additional Solicitor General that, because of the constitutional immunity contained in Article 361(1), notice should not issue to the Governor. Nevertheless, the Court clarified that such immunity does not insulate the underlying proclamation under Article 356(1) from judicial review. Acts that are mala fide or ultra vires fall outside the protective scope of the phrase “purporting to be done” in Article 361, and the Government must still justify the proclamation if it is challenged on those grounds. The Court expressly left open, for future argument, the question whether the Governor’s exercise of power in issuing the proclamation was in fact mala fide or ultra vires.
Procedurally, the Court advanced the substantive hearing to 20-9-2005 and laid down a detailed schedule for oral and written submissions. Because of this expedited timetable, the petitioners elected not to press their applications seeking a stay of elections, and those applications were dismissed as not pressed.
Holding and Implications
Holding: The Court declined to issue notice to the Governor in light of Article 361(1); it preponed (advanced) the hearing of the writ petitions to 20-9-2005 and dismissed, as not pressed, the petitioners’ applications for stay of elections.
Implications: The writ petitions will proceed without the Governor as a party, but the Court will still examine—on the scheduled dates—whether the Article 356(1) proclamation is vitiated by mala fides or is otherwise ultra vires. The order affects only the conduct of these particular proceedings and does not establish a new precedent beyond the reaffirmation of the constitutional immunity conferred by Article 361(1).
Order
1. Mr P.S Narasimha, learned counsel for the petitioner in Writ Petition (C) No. 353 of 2005, made his submissions from 10.30 a.m to 10.40 a.m Mr Soli J. Sorabjee, learned Senior Counsel for the petitioners in Writ Petition (C) No. 257 of 2005, made his submissions for five minutes. Thereafter, Mr Viplav Sharma, petitioner in person in Writ Petition (C) No. 258 of 2005, thereafter resumed his submissions and concluded at 12.20 p.m Thereafter, Mr Milon K. Banerji, learned Attorney General, made his submissions till 1.00 p.m Mr Gopal Subramanium, learned Additional Solicitor General, appearing for the Union of India, thereafter made his submissions till 3.00 p.m
2. Hearing concluded. Orders reserved.
3. In terms of the signed order, the Court, while giving brief reasons, accepted the submissions of the learned Attorney General and the learned Additional Solicitor General that this Court may not issue notice to the Governor, and stated that it will give detailed reasons later.
4. The hearing of the writ petitions is preponed; instead of 27-9-2005, the arguments in these matters would commence on 20-9-2005. Before 20-9-2005, the parties shall also file their written submissions. The petitioners would be permitted to make oral submissions on 20-9-2005 and 21-9-2005. The respondents would be permitted to make their submissions on 22-9-2005, 27-9-2005 and 28-9-2005. On 29-9-2005, the petitioners will make submissions in reply and the hearing will conclude on that day.
5. In view of the preponement of the date of hearing, Mr P.S Narasimha, learned counsel for the petitioner in Writ Petition (C) No. 353 of 2005 and Mr Viplav Sharma, appearing in person in Writ Petition (C) No. 258 of 2005, do not press their applications for grant of stay of elections. These applications are, accordingly, disposed of as not pressed.
6. On the question whether the Governor could be impleaded in his capacity as the Governor and whether notice could be issued to him on the writ petitions in the context of averments made and the prayers contained in the petitions and other aspects highlighted in the order dated 31-8-2005, we have heard Mr Soli J. Sorabjee, learned Senior Counsel appearing in Writ Petition (C) No. 257 of 2005, and Mr Viplav Sharma, petitioner in person in Writ Petition (C) No. 258 of 2005. We have also heard the submissions made by Mr Milon K. Banerji, Attorney General and Mr Gopal Subramanium, learned Additional Solicitor General.
7. The Constitution grants immunity to the Governor as provided in Article 361. Article 361(1), inter alia, provides that the Governor shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in exercise and performance of those powers and duties. It is submitted by the learned Attorney General and the Additional Solicitor General that in view of Article 361(1), this Court may not issue notice to the Governor. While we accept the submission but, at the same time, it is also necessary to note that the immunity granted to the Governor does not affect the power of the court to judicially scrutinise the attack made to the proclamation issued under Article 356(1) of the Constitution on the ground of mala fides or it being ultra vires. It would be for the Government to satisfy the court and adequately meet such ground of challenge. A mala fide act is wholly outside the scope of the power and has no existence in the eye of the law. Even, the expression “purporting to be done” in Article 361 does not cover acts which are mala fide or ultra vires and, thus, the Government supporting the proclamation under Article 356(1) shall have to meet the challenge. The immunity granted under Article 361 does not mean that in the absence of the Governor, the ground of mala fides or proclamation being ultra vires would not be examined by the Court. At this stage, we have not examined the question whether the exercise of power by the Governor was mala fide or ultra vires or not. That is a question still to be argued.
8. These are our brief reasons. We will give detailed reasons later.
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