Constitution of India, 1950; Articles 32/226, 356, 74 and 163:

Invoking of power under Article 356 - Issue of proclamation - Subjective satisfaction of President - Conditions precedent - Scope of judicial review.

Articles 356 and 74 - Satisfaction of President under - Nature of - Duty of Council of Ministers before recommending issuance of proclamation - On facts, held: Governor has misled Union Council of Ministers.

Article 356 - Nature and Scope of power - Held, is un emergency power but not an absolute power.

Articles 32, 226 and Preamble - Scope of interference.

Articles 356, 163 and 174(2)(b) - Dissolution of State Assembly - Floor test - Necessity of.

Articles 356, 174(2)(b), 85(2)(b) and Schedule X - Dissolution of newly elected Assembly - Grounds to be taken into consideration - Hung Assembly - Realignment of parties/MLAs - Unethical means/horse trading - Recommendation of dissolution on that ground - Scope of judicial review in such situations.

Articles 159, 163, 164, 174(2)(b) and 356 - Installation of new Government after election - Duty of Governor.

Articles 79, 168, 245 and 246 - Parliament - Nature of acts of - When legislative.

Articles 356, 174(2)(b). 85, 32 and 226-Unconstitutionality of proclamation under Article 356 dissolving Legislative Assembly of State - power to mould relief.

Articles 157 and 155 - Governor - Criteria for appointment of - Suggestions given in Sarkaria Commission Report - Need for observance of.

Articles 163, 153, 154 and 159 - Governor - Nature and role of office of - Discharge of powers and duties - Discretionary powers - Scope of.

Article 361 - Scope of immunity granted to Governors and President - Discussed.

Articles 327, 324, 329, 174, 168, 172, 83. 85 and 79 - "Due constitution" or coming into existence of a legislative Assembly - When takes place.

Words and Phrases:

"Emergency"- Meaning of in the context of Part XVIII of the Constitution.

"Merger" - Meaning of in the context of Para 4 Schedule X of the Constitution.

"Required" - Meaning of in the context of discretionary powers of the Governor under the Constitution.

In these Writ Petitions, the petitioners have challenged the validity of the proclamation dated 23rd May, 2005 issued under Article 356 of the Constitution ordering dissolution of Bihar Legislative Assembly. They have also prayed for restoration of the Election Commission Notification dated 4th March, 2005 issued under Section 73 of the Representation of People Act, 1951 notifying the names of the elected members.

It was contended on behalf of the petitioners that the allegations in the Governor's report of horse trading was factually incorrect and fictional. It was incumbent upon the Governor to verify the facts personally from the MLAs; that under the scheme of the Constitution the decision with regard to mergers and disqualifications on the ground of defection or horse trading is vested in the Speaker; and that the Governor could not have attempted to act on that basis and arrogated to himself such an authority. Relying heavily on the Nine Judge Bench judgment of this Court in S.R. Bommai and Ors. v. Union of India and Ors., [1994] 3 SCC 1, it was contended that action of the Governor is mala fide in law; irrational, without any cogent material to support the conclusion arrived at and is based on mere ipse dixit and, thus, was not sustainable in law. It was contended that in exercise of judicial review this Court should quash the impugned notification and as a consequence restore the legislative assembly constituted by the Election Commission notification dated 4th March, 2005.

It was further contended that before even elected candidates making and subscribing oath or affirmation, as contemplated by Article 188 of the Constitution, even the Assembly could not be placed under suspended animation and status quo as on the date of issue of notification under Section 73 of the RP Act of 1951 deserves to be directed.

After hearing arguments on the question of the Governor not being answerable to any Court in view of immunity granted by Article 361(1) of the Constitution, this Court accepted the submission of the Government that notice may not be issued to the Governor, and for giving brief reason in the order to be followed by detailed reasons later.

The points that fell for determination by this Court are :

(1) Is it permissible to dissolve the Legislative Assembly under Article 174(2)(b) of the Constitution without its first meeting taking place?

(2) Whether the proclamation dated 23rd May, 2005 dissolving the Assembly of Bihar is illegal and unconstitutional?

(3) If the answer to the aforesaid question is in affirmative, is it necessary to direct status quo ante as on 7th March, 2005 or 4th March, 2005?

(4) What is the scope of Article 361 granting immunity to the Governor?

After hearing elaborate arguments, by a brief order dated 7th October, 2005, the notification dated 23rd May, 2005 was held to be unconstitutional but having regard to the facts and circumstances of the case, relief directing status quo ante to restore the Legislative Assembly as it stood on 7th March, 2005, was declined.