ValkyaEditorial
Supreme Court

Rameshwar Prasad v. Union of India: the Bihar dissolution, a Governor's apprehension, and the limits of Article 361

In January 2006, a five-judge Constitution Bench held that the dissolution of the Bihar Legislative Assembly under Article 356 — ordered on the Governor's report that a claimant's majority had been assembled through unconstitutional means — was itself unconstitutional. The majority found the Governor had acted on unverified apprehension rather than objective material, and clarified that the personal immunity Article 361 gives the Governor does not immunise the action from judicial review. The Court nonetheless declined to restore the dissolved Assembly, given how far fresh elections had already proceeded.

Valkya Editorial· Legal Intelligence··8 min read
Court
Supreme Court of India
Citation
(2006) 2 SCC 1
Bench
Y.K. Sabharwal, CJI, K.G. Balakrishnan, J., B.N. Agrawal, J., Ashok Bhan, J., Arijit Pasayat, J.
Decided
24 January 2006

The Supreme Court's judgment of 24 January 2006 in Rameshwar Prasad & Ors. v. Union of India & Anr. — reported as (2006) 2 SCC 1 — arose from one of the more unusual episodes in the post-Bommai history of Article 356: a Governor's report recommending dissolution of a Legislative Assembly not because a government had lost its majority, but to prevent one from being formed at all. A five-judge Constitution Bench of Chief Justice Y.K. Sabharwal and Justices K.G. Balakrishnan, B.N. Agrawal, Ashok Bhan and Arijit Pasayat heard writ petitions filed under Article 32 by members elected to the dissolved Bihar Assembly, challenging the dissolution as tainted, mala fide and unconstitutional.

The Bihar election and the Governor's reports

The Bihar Assembly elections of February 2005 produced a fractured verdict. No single party or pre-poll alliance commanded a majority in the 243-member House: the Rashtriya Janata Dal (RJD) held 75 seats, the Janata Dal (United) 55, the Bharatiya Janata Party 37, the Lok Janshakti Party (LJP) 29, and the Indian National Congress 10, with the remainder split across smaller parties and independents. No government could be formed on the results as they stood, and the State was placed under President's Rule by a Proclamation dated 7 March 2005, with the Assembly kept in suspended animation rather than dissolved.

Over the following weeks, political efforts were made to cobble together a majority. Reports emerged that a breakaway group from the LJP was prepared to combine with the JD(U) and independents to project Nitish Kumar as the Chief Ministerial candidate of the National Democratic Alliance, in numbers said to exceed the requisite majority. The Governor, in a report dated 21 May 2005, took the position that the claimed majority rested on allurements and other unfair means — "horse-trading" — and recommended dissolution of the Assembly rather than allow the claim to be tested on the floor of the House. The Union Council of Ministers accepted the recommendation with what the petitioners characterised as unusual speed, and the President's Proclamation of 23 May 2005 dissolved the Assembly under Article 174(2)(b) read with Article 356.

The petitioners — one of them the Advocate Viplav Sharma, in a separate public-interest petition — challenged the dissolution as founded on a report that was not based on any objectively verified material, and as actuated by the object of preventing a particular political formation from staking its claim to form the Government. They invoked S.R. Bommai v. Union of India, (1994) 3 SCC 1, in which similar apprehensions of horse-trading, expressed by other Governors in relation to Karnataka and Meghalaya, had not been accepted as a constitutional foundation for dissolution.

The majority: apprehension is not material

The majority — Chief Justice Sabharwal, writing for himself and Justices Agrawal and Bhan — held that the Governor's report, and the Presidential Proclamation founded on it, were unconstitutional. The reasoning proceeded on the settled Bommai framework: a Proclamation under Article 356 is subject to judicial review, though on limited grounds — mala fides, and reliance on wholly extraneous or irrelevant material. Tested on that standard, the majority found the Governor's report wanting. The Governor had not waited to see whether the claimed majority would in fact be tested; the report referred to horse-trading and allurements in general terms, without any material capable of objective verification, and was framed with the specific object of foreclosing a claim to form the Government before it could be made. A mere apprehension that a majority might have been assembled by unfair means — without any attempt to test the claim, whether on the floor of the House or otherwise — could not, on the majority's reasoning, furnish the objective foundation Article 356 requires. The dissolution was accordingly held to be unconstitutional.

Article 361: personal immunity, not immunity for the act

A distinct and doctrinally durable strand of the judgment concerns the relationship between the Governor's personal immunity under Article 361 and the reviewability of gubernatorial action under Article 356. Article 361 provides that the Governor "shall not be answerable to any court for the exercise and performance of the powers and duties of his office." The Union's counsel pressed this immunity as a further ground insulating the Governor's report from scrutiny. The Court — and on this point Justice Pasayat's opinion records express agreement with the reasoning of the Chief Justice — rejected the wider reading.

In terms of Article 361 Governor enjoys complete immunity. Governor is not answerable to any Court for exercise and performance of powers and duties of his office or for any act done or purporting to be done by him in the exercise of those powers and duties. However, such immunity does not take away power of the Court to examine validity of the action including on the ground of mala fides.
— Pasayat, J.

The distinction is precise and has since been treated as settled doctrine: Article 361 shields the Governor personally — he cannot be summoned, arraigned or held to account in his own person for acts done in the exercise of his office — but it does not shield the action itself from being examined by a court on established grounds of judicial review, including mala fides. The immunity attaches to the officer, not to the constitutionality of what the officer does. A Proclamation founded on a Governor's report remains as reviewable as any other exercise of Article 356 power, notwithstanding that the Governor who authored the report cannot personally be called to answer for it.

The dissent

Justices Balakrishnan and Pasayat dissented on the ultimate question, taking the view that the Governor's assessment — even if it later proved to be a wrong or erroneous perception — was not irrational, extraneous or irrelevant, and that the limited scope of judicial review over Article 356 did not extend to substituting the Court's own view of the political assessment for the Governor's. On this reading, the impugned notifications did not suffer from constitutional invalidity, and the writ petitions ought to have been dismissed. The 3:2 division left the majority's finding of unconstitutionality intact as the judgment of the Court, but the closeness of the split signals how contested the "objective material" standard remained even among judges applying the same Bommai framework to the same set of reports.

No restoration: the practical limit of the remedy

Notwithstanding the finding of unconstitutionality, the Court declined to restore the dissolved Assembly or direct the reconvening of the House that had existed before dissolution. By the time the matter was decided, the Election Commission had already made substantial arrangements for fresh elections to the Fourteenth Assembly, and those elections were at an advanced stage. A finding of unconstitutionality, the Court held, does not mechanically entail restoration of the status quo ante; where restoration would be inequitable or impracticable — including where a fresh electoral process has already progressed too far to unwind — the Court retains discretion to mould the relief, declaring the proclamation unconstitutional without disturbing elections already under way. The declaration thus operated principally as a statement of constitutional wrong rather than a restorative remedy — a distinction that has since informed later discussions of relief in Article 356 litigation.

Why the case still matters

Rameshwar Prasad refined Bommai in two lasting ways. First, it extended the "objective material" requirement to a fact pattern Bommai had not squarely addressed: dissolution used to prevent a government from forming, rather than to remove one already in office. Apprehension is not evidence, and a Governor is not entitled to short-circuit a floor test merely because he doubts the legitimacy of a claimed majority. Second, it settled that Article 361's personal immunity is not a doctrine of non-reviewability for gubernatorial action — a distinction later invoked in disputes over Governors' conduct in Maharashtra, Arunachal Pradesh and elsewhere. The decision is also a reminder that invalidation and remedy do not always travel together: a proclamation can be declared unconstitutional and an assembly can remain, all the same, dissolved.

Sources

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