Andhra High Court
N.T. Rama Rao vs His Excellency The Governor Of ... on 22 December, 1995
Equivalent citations: 1995 (3) ALT 929
Author: P Mishra
Bench: P Mishra, L Rath, B S Reddy
ORDER P.S. Mishra, C.J.
1. A dispute which parties are not ready to call inter party dispute has come to the Court in phases, first by certain persons who thought that public interest was in jeopardy with such facts which were hardly sufficient for any definite view followed by a petition by Sri G. Buchaiah Chowdhary who was a Minister in the Government headed by Sri N.T. Rama Rao and a comprehensive petition by Sri N.T. Rama Rao. They have invoked the jurisdiction of this Court under Article 226 of the Constitution of India and Sri N.T. Rama Rao has, in particular, sought for a writ, order or direction more particularly a writ in the nature of mandamus for reliefs inter alia that the appointment of Sri N. Chandrababu Naidu (3rd respondent) as Chief Minister by the Governor of the State (1st respondent) is illegal and unconstitutional and that he continues to be the Chief Minister.
2. Sri N.T. Rama Rao has stated on oath as follows:
"......I was born in a poor agricultural family in a remote village and have known poverty. I had to earn for my education and I have completed my education with one meal a day. Due to my hard work, discipline and the God's kindness, I became an actor of repute and have acted in several hundred films in a variety of roles. My achievements in the cine-field are well known. Though I was pre-occupied with my film industry, I always did my best to help my poor countrymen especially the villagers.......
......at the age of 60,I have renounced everything and began my life as a humble servant of the people and I founded a political party (Telugu Desam Party) in the year 1982. The Telugu Desam Party has a constitution with its own ideology and objectives apart from the Rules and regulations that should govern the affairs of the party.......There was a kind of political revolution in the State of Andhra Pradesh when people from all corners of the State have voted Telugu Desam Party into power in 1983 elections with a overwhelming majority. I have fulfilled most of the election promises and gave clean and transparent administration to the people.......some bad elements who gained entry into Telugu Desam Party with ulterior motives did not like my clean policies and their implementation and have unseated me in August 1984, but ultimately they had to bow to the anger and will of the people and I was again installed as the Chief Minister.......in order to set at rest the doubts about the ideology of the Party and the Government, I approached the people by way of election and the people have again endorsed my Policies and voted my party into power with thumping majority in the year 1985. I have continued my efforts to propagate the idea of cleaning the political executive and made efforts in that direction at the National level also by bringing about a consensus among various political parties other than Indian National Congress. My efforts in that direction have fructified into a Front called National Front and the same also has formed a Government at the Centre.
......I am continuously elected as the President of the Telugu Desam Party since the formation of the Party in the year 1982.......the President of the Party shall be elected only by "Rashtra Pratinidhula Maha Sabha (State General Body)" during Mahanadu as per Article 19 read with Article 11 (b) of Constitution of Telugu Desam Party.......similarly, as per Article 8 of Constitution of Telugu Desam Legislature Party, the leader of Telugu Desam Legislature Party shall be elected after every General election and the term of the said leader shall be coextensive with the term of the Assembly. ...for convening of general body of Telugu Desam Legislature Party, a minimum of one week notice is necessary when the Assembly is not in session, as per Article 13(b) of Constitution of Telugu Desam Legislature Party.... since I was elected as Leader of Telugu Desam Legislature Party, immediately after the General elections in the year 1994, I am the Leader of Telugu Desam Legislature Party and continues to be the leader till the expiry of the term of the 10th Assembly of the State of A.P.
...the third respondent herein originally belonged to Congress Party and was defeated by a Telugu Desam Party candidate in 1983 elections. Thereafter, he approached our party and made us to believe that he would be a loyal party worker and he was admitted into our party and subsequently he was made an important functionary in the Party. ...the third respondent slowly started developing his own group with ulterior motive of becoming the leader of the Telugu Desam Party and the Chief Minister in a surreptitious manner.
...in the General elections held in December, 1994 for the A.P. Legislative Assembly, my party i.e. Telugu Desam Party has won 214 seats besides (10) Associate Members and another (34) seats by other friendly parties.... the people of the State of Andhra Pradesh have voted for the Telugu Desam Party mainly because of my charisma and because of the policies formulated by me for the benefit of the people. ... I was unanimously elected as Leader of Telugu Desam Legislature Party and assumed the office of Chief Minister on 12-12-1994....
... in order to maintain discipline in the party and to see that the M.L. As and other functionaries in my party are sincere and honest in the discharge of their duties, I have taken some steps which were not to the liking of the third respondent who wanted to give a fee hand to these people working against the interests of the people and the Party.
... behind my back, the third respondent had conspired to over-throw me and to become Chief Minister, he induced some M.L.As with money and position..., some of the supporters of the third respondent indulged in anti-party activities and were responsible for the defeat of some of the official candidates set up by the Party for the offices of Presidents of District Co-operative Central Banks and Presidents of District Co-operative Marketing Committees, which compelled the Party to take disciplinary action and suspended (8) MLAs. The third respondent had come to me seeking revocation of the suspension and disciplinary action, which was not agreed to since the same was against the interests of the party. Because of the unreasonable demand made by the third respondent, the Party also constrained to suspend the third respondent and four others from the Party on 24-8-1995. On 25-8-1995 at 6.00 AM, invoking my emergency power under the Party constitution, I expelled the third respondent and four others from the Party and the same was informed to the second respondent on 25-8-1995 in writing. I have also recommended to the first respondent to dismiss the third respondent and four others from my Cabinet and the same was accepted by the first respondent and G.O.Ms.No. 360, General Administration (Pol. C) department, dated 25-8-1995 was issued dismissing the third respondent and four others from the cabinet. Because of unhappy circumstances in the Party. I convened the meeting of the Council of Ministers and in the meeting, the Council of Ministers unanimously resolved to recommend the dissolution of the Legislative Assembly and the said decision was conveyed in writing to the first respondent on 25-8-1995 at 7.45 A.M. ... the resolution was passed by the Council of Ministers when I was enjoying the majority support of M.L.As. ... the first respondent chose to keep the matter in abeyance and allowed the third respondent to play manupulative politics in order to become Chief Minister.
... I reliably learnt that the first respondent received instructions from the Central Government not to dissolve the Assembly and to invite the third respondent to form a Government with the mala fide intention of splitting the Telugu Desam Party and weakening it in the forthcoming Parliamentary elections, as well as in the National Front, of which the Telugu Desam Party is an important constituent of which I am Chairman, which is posing a threat to the Congress Party in the forthcoming Parliamentary elections at the State and National level.... on coming to know about the supporting role being played by the first respondent, I addressed another letter dated 26-8-1995 appealing to him to know that some M.L.As of Telugu Desam Party alleged to have assembled on 24-8-1995 in the night in Hotel Viceroy and alleged to have passed three resolutions:
(i) expressing lack of confidence in my leadership;
(ii) electing third respondent as Leader of Telugu Desam Legislature Party; and
(iii) requesting the first respondent not to dissolve the Assembly.
... the first respondent referred the Memoranda to the fifth respondent, The Special Secretary, A.P. Legislative Assembly, Hyderabad., for verification of genuineness of the signatures of the Legislators appearing on the Memoranda__the fifth respondent herein who is an independent constitutional functionary has abdicated his functions at the instance of second, The Speaker, A.P. Legislative Assembly, and third respondents and allowed the second respondent to verify the signatures and send a report.
... the second respondent also has played his role in the conspiracy hatched by the third respondent. He is a supporter of third respondent. When the choice of selecting a candidate for the Speaker had come up for consideration, 3rd respondent strongly supported the candidature of the second respondent. ... though the second respondent was not asked to verify the signatures of the M.L. As alleged to have signed the Memoranda submitted to the first respondent, the second respondent rushed back to Hyderabad from his Assembly Constituency Tuni at the instance of third respondent by a Special Chartered flight in the event of 25-8-95. While the first respondent asked the fifth respondent to verify the signatures of 144 M.L.As the second respondent sent a false report stating that he counted 154 M.L.As who were produced before him claiming to be supporters of the third respondent. The second respondent admitted in his counter-affidavit in W.P. No. 19609 of 1995 that he counted the heads of M.L. As in the presence of third respondent, his co-brother Dr. Venkateswararao and others. This clearly establishes that the second respondent has acted in a manner unbecoming of the august office that he holds. The second respondent has exceeded his limits in his anxiety to help the third respondent. Further, it is a known fact that the second respondent has aspired to become an important cabinet Minister in the Ministry of the third respondent. It is reported in newspapers that he will be inducted into cabinet in Eenadu Telugu daily dt 8-10-1995 that one ministerial berth in the cabinet is being reserved in the next expansion of the cabinet. This,... is by way of reward for helping the third respondent to become Chief Minister by abusing his constitutional power. Not stopping at that, he even issued a bulletin dated 28-8-1995 informing all M.L.As that the third respondent was elected as Leader of Telugu Desam Legislature Party solely on the basis of a letter said to have been written by the third respondent.... the second respondent is aware that who is the Leader of the Legislature Party and even the first respondent in his letter dt. 27-8-1995 continued to treat me as Leader of Telugu Desam Legislature Party and as a Chief Minister.... the minimum duty of the second respondent is to give notice to me and enquire into the matter before issuing the bulletin dated 28-8-1995. According to the Constitution of Telugu Desam Legislature Party, the Leader once elected continues to be the Leader for the term of the House. The vacancy does not arise unless the Leader already elected resigns or demits office. Since I did not resign, there was no vacancy to elect another leader for Telugu Desam Legislature Party. Even assuming, the Leader already elected can be replaced, certain procedure has to be followed. According to the Constitution of Telugu Desam Legislature Party, a special meeting has to be called for with the approval of the Leader of Telugu Desam Legislature Party on a requisition notice given by at least l/3rd of the members or 50 members of Telugu Desam Legislature Party whichever is less. ... no meeting of Telugu Desam Legislature Party was held on 24-8-1995 in Viceroy Hotel. Even assuming that such a meeting was held, it is not a valid meeting at all since no requisition was made by the required number of MLL.As and since no approval was given by me as Leader of Telugu Desam Legislature Party and minimum seven days notice was not given to the members intimating the convening of the meeting. Meeting notices were not served upon me and to several other MLAs and to even some of the Ministers of my cabinet. ...
... the second respondent, being a Legislator of Telugu Desam Legislature Party from the year 1983 is fully aware of the provisions of the constitution of Telugu Desam Legislature Party. But he chose to get the bulletin issued illegally recognising the third respondent as Leader of Telugu Desam Legislature Party. It is pertinent to submit here that when there was mounting criticism for issuing the bulletin dated 28-8-1995, the second respondent stated on 7-9-1995 that he did not issue the bulletin dated 28-8-1995 informing all the Legislators that the third respondent is the leader of Telugu Desam Legislature Party and if the newspapers have reported like that, he is not responsible. This conduct of the second respondent cleanly shows his partisan attitude and the second respondent has no respect for the truth. When he sent the false report to the Hon'ble Governor, the first respondent that 154 M.L.As of Telugu Desam Legislature Party were supporting the third respondent and when he further got the bulletin dated 28-8-1995 issued stating that third respondent is the leader of Telugu Desam Legislature Party/the entire atmosphere became polluted and mislead the M.L.As to support the third respondent. ... the second respondent while holding the meeting of Business Advisory Committee on 29-8-1995 at 3.00 PM did not take my consent for holding such a meeting and further did not even invite or inform me about the holding of such an important meeting whereas he has called the third respondent as also other opposition party leaders__ ... when I came to know about the wrongful confinement of some M.L.As in Hotel Viceroy, I went there along with some of my colleagues. The M.L.As were wanting to come out of the Hotel and join me but were prevented from coming out of the Hotel by rowdies and goondas who were already employed there. The policemen on duty remained silent spectators and when I ordered them to procure the release of the M.L.As, my orders were not obeyed. When I directed the superior police officers in the presence of thousands of people to secure the release of the M.L. As, who were wanting to come out, instead of obeying my order, they have thrown a protective ring around the Hotel and did not allow them to leave the Hotel. ....
... the third respondent had wrongfully confined some M.L.As in Hotel Viceroy and the intentional inaction of the first respondent in not dissolving the Assembly and giving time to the third respondent has enabled the third respondent to indulge in horse-trading and gathering several M.LAs by inducement. ... the first respondent does not have any discretion once the Council of Ministers gives its recommendations and therefore he ought to have dissolved the Assembly forthwith. ... the Hon'ble Governor could not have taken cognisance of the Memoranda submitted by some ML As and the only Course left to the first respondent was to advise the third respondent to test the strength in Legislative Assembly as and when it is convened.... the first respondent lost sight of the fact that the third respondent was lawfully expelled from Telugu Desam Party and consequently he ceased to be the Telugu Desam Legislature Party and therefore could not have participated or call for any lawful meeting of Telugu Desam Legislature Party and could get elected as Leader of Telugu Desam Legislature Party. ... then first respondent without taking into consideration of the above said facts attributed legal status to the above said meeting and converted himself into a Legislature by seeking to conduct an enquiry whether I enjoyed the confidence of the House or not.
the first respondent with a mala fide motive to remove me as the Chief Minster and to help the third respondent to form the Government has taken the following unconstitutional steps:-
(i) he launched on an enquiry into the matter of confidence of his own Chief Minister when the only proper course was the question of confidence to be tested on the floor of the House.
(ii) He addressed a letter dt. 25-8-1995 to the fifth respondent herein seeking verification of the signatures in a manner which is not controversial and illegal and not befitting the stature and dignity of the august office of Governor of a State.
(iii) He failed to examine uncontroverted facts, glaring egregious inaccuracies which were publicly brought to his notice and included non-correspondence of the signatures, duplication of names and names which do not belong to Telugu Desam Party and without application of mind and with mala fide intent assumed that I lost the majority. In other words, the first respondent has converted the Raj Bhavan as an alternative legislature. No Chief Minister shall survive if the Governor takes recourse to such enquiry into the question of confidence when the House is not in session.".
3. Speaking further on the role of the Governor (1st respondent), he (Sri N.T. Rama Rao) has alleged that on 27-8-1995 the Governor directed him to seek vote of confidence within a short time of three days. He (Sri N.T. Rama Rao) addressed a letter on the same date to the Governor requesting him to convene the House after 15th of September, 1995 keeping in view communally sensitive time. The Governor, however, gave him only one extra day asking him to convene the House on 31-8-1995 vide his second letter dated 27-8-1995.
4. Sri N.T. Rama Rao has alleged that due to the above acts of the Governor (1 st respondent), the Speaker (2nd respondent) and Sri N. Chandrababu Naidu (3rd respondent), he went to the people to explain the "treacherous role played by the 2nd and 3rd respondents and subversion of massive mandate given to me by the people". He went, according to him, on a hectic tour of 48 hours covering the entire State and alleged, "due to the deep distress and anguish over the undemocratic and anti-people turn of events engineered by the self-seeking 2nd and 3rd respondents, coupled with my hectic tour, had a telling effect on my health and it deteriorated further". Characterising himself as a chronic diabetic and suffering from hypertension and its concomitant ailments he has stated, "frustrated with the conspiracy hatched by the first, second and third respondents, I prepared a personal letter to resign with a view to finalise it after consulting my cabinet colleagues. At 9.00 A.M. on 31-8-1995,1 suddenly felt breathlessness and fell unconscious in my office room in the presence of several party functionaries. I regained my consciousness in the evening only at about 6.00 PM. I found myself admitted in Intensive Care Unit of Mediciti Hospital. I was told that after I fell unconscious, I was carried to the Mediciti Hospital and admitted in Intensive Care Unit for treatment. I was informed that several important persons visited me in the Hospital during noon on 31-8-1995. In that unconscious state, I do not know how the so-called resignation letter went into the hands of the first respondent. It is also reported in the newspapers that the first respondent told the newsmen that he received a cover from me and that he does not know what the cover contains. Subsequently I came to know that the first respondent has accepted my so-called resignation and I was asked to continue till alternative arrangements are made.". Sri N.T. Rama Rao has further alleged that even before he received the communication from the Governor that his resignation was accepted, he (the Governor) invited Sri N. Chandrababu Naidu to form the Government and that he was informed that even before the so-called resignation was accepted by the Governor the Speaker made a statement that he had resigned. Sri N.T. Rama Rao has given the sequence of events on and after 31-8-1995 as follows:
(a) That I wrote out a letter of resignation on the morning of 31st August 1995 and fell unconscious in and around 9.00 A.M.
(b) That around 9.30 A.M. on31-8-1995, I was brought to Medidti Hospital with a high respiratory rate and was unconscious.
(c) The medical report from the Medidti Hospital clearly indicates that from the momentI was brought in i.e., 9.30 A.M. till around 6.00 P.M. I was not in a conscious state.
(d) That the first respondent in his letter dt. 31-84995 addressed to me stated that he visited me "this afternoon".
It is a matter of public knowledge that the first respondent visited me at about 1.30 P.M. This is self-evident from the report in Telugu Eenadu daily of 1st September, 1995 which clearly states that the Hon'ble Governor visited the Hospital at 1.30 PM and accepted my resignation and communicated the same to 2nd respondent by 2.30 PM by fax.
(e) Since I was medically unfit and unconscious, no question arose of my communicating the alleged resignation to anybody.
(f) The official record of the Andhra Pradesh Legislative Assembly shows that by 4.02 pm on 31-8-1995, the 2nd respondent had received communication from Raj Bhavan in which my alleged resignation was mentioned. Further, the Legislative Assembly proceedings also revealed that the first respondent not only communicated this to the second respondent but also communicated to me when I was unconscious that he had accepted the resignation and asked the Council of Ministers to continue until the new Government takes office. It is pertinent to mention that when I was unconscious, I could never have communicated my resignation nor I was in a position to receive the acceptance of the resignation at that time.
(g) Therefore, between 1.30 PM and 4.02 PM, it is established on the basis of undeniable documents on record that the Hon'ble Governor-received the resignation from an unconscious Chief Minister, immediately accepted it without any further consultation or discussion, communicated it to the second respondent by fax, as a consequence of which the Assembly called to test my majority was adjourned and the entire proceedings were brought to an end by 4.02 PM.
(h) Before 6.00 PM. the first respondent invited third respondent to form a Government. Significantly, while inviting the third respondent laid no pre-conditions that he should seek a vote of confidence."
5. Sri N.T. Rama Rao has made a specific mention of the fact that the letter of resignation was signed by him alone and if at all it was validly tendered by him to the Governor, it was not a resignation of the Council of Ministers at all. He has, on the basis of the above, come forward with a case mat the Governor and the Speaker acted in league with Sri N. Chandrababu Naidu and by their actions they have demonstrated that they acted with malice to see mat he (Sri N.T. Rama Rao) was removed from the office of the Chief Minister, his Council of Ministers was dismissed and Sri N. Chandrababu Naidu was installed as the leader of the Telugu Desam Legislature party by throwing him out even of the office of the leader of the Telugu Desam Legislature party. To complete the narration on behalf of Sri N.T. Rama Rao, it is stated that on 1-9-1995 Sri N. Chandrababu Naidu was appointed as the Chief Minister; Sri N.T. Rama Rao, however, made clear to all that he continued to be the Telugu Desam Legislature party leader as well as the leader of the Telugu Desam party; issued whip to the members belonging to the legislature party on 4-9-1995 accordingly and on 5-9-1995 wrote a letter to the Speaker stating unequivocally that he was the leader of the Telugu Desam Legislature party and that the Speaker's bulletin, dated 28-8-1995, was bad in law followed by another whip issued by him on 6-9-1995 to the Telugu Desam Legislature party members, but on 7-9-1995, when Assembly met to consider the motion of confidence tabled by Sri N. Chandrababu Naidu, the Speaker accepted him as the Leader of the Telugu Desam Legislature party; on 17-9-1995 Sri N.T. Rama Rao met the President of India and presented to him a memorandum and filed writ petition No. 23509 of 1995 questioning the action of the Governor and the Speaker.
6. The Governor (1st respondent) has returned the allegations by an affidavit stating as follows:
"(a) On 25-8-1995, at about 5.30 a.m. a letter was received from the then Chief Minister, Sri N.T. Rama Rao recommending the immediate dismissal of five members of the Council of Ministers, namely, S/Sri N. Chandra Babu Naidu, P. Ashok Gajapathi Raju, T. Devender Goud, A. Madhava Reddy and K. Vidyadhara Rao with a request that immediate orders my be issued to that effect. The said recommendation was accepted and these Ministers were dismissed and G.O.Ms.No. 360 G.A. (Poll. C) Department dated 25-8-1995 was issued to that effect.
(b) Later on at about 7.45 a.m. the petitioner called on me and handed over a letter dated 25-8-1995 requesting the Governor to dissolve the Assembly and permit his Government to continue in the interim period until the general election is held. It was stated in the letter that "owing to certain unhappy circumstances in my party. I have felt my moral duty to go back to the ultimate sovereign in a democracy, to the people." It was stated that the Council of Ministers had met at the petitioner's residence at 7a.m. on 25-8-1995 and unanimously resolved to recommend the immediate dissolution of the A.P. Legislative Assembly. Along with the letter was enclosed a resolution dated 25-8-1995 of the Council of Ministers unanimously resolving to recommend dissolution of the 10th A.P. Legislative Assembly with 'immediate effect.
(c) Thereafter at about 9.30 a.m. the third respondent and some other legislators called on me and submitted two resolutions dated 24-8-1995 purported to have been passed by the legislators of the Telugu Desam Party expressing lack of confidence in the petitioner as leader of the party and expressing confidence in the third respondent and resolving to elect him as leader of the said party. It may be mentioned that a letter dated 24-8-1995 addressed to the Governor was handed over earlier at about 720 a.m. in which the signatories to the said letter numbering 140 requested me not to dissolve the Assembly.
(d) In order to satisfy myself about the signatures of the legislators in the aforesaid documents, the same were sent to the Special Secretary, Legislature Secretariat, for certification of the genuineness of the signatures.
(e) At about 11.00 a.m. on 25-8-1995, Shri Puwada Nageswara Rao, Leader, CPI Legislature Party handed over a letter dated 25-08-1995 to the Governor which reads: "You are aware of the developments in the Telugu Desam Party which led to split in that Party. All together a new political situation has been arised. I, as the Leader of the C.P.I. Legislature Party want to inform you that our Party (CPI) is against the dissolution of the 10th A.P. Legislative Assembly from whatever quarter it is put forward".
(f) Around the same time the floor leaders of the Communist Party of India (Marxist) also came and met the Governor and a representation was given bearing the signature of Sri Koratala Satyanarayana, Secretary, which reads as follows:
"On behalf of the Communist Party of India (Marxist), we which to bring to your kind consideration the following matter.
A serious inner party crisis has erupted in Telugu Desam Party since the last two days. We came to know that the Chief Minister Sri N.T. Rama Rao is thinking of dissolving the Legislative Assembly as a solution to overcome the crises in his own party.
This proposed measure is against the interests of the people as well as the State and also against the mandate of the people. We also feel that it is highly objectionable and undemocratic. The people and the State should not be made to pay the price for the inefficient and undemocratic handling of the internal problems of the ruling Telugu Desam Party. We also learnt that the Telugu Desam Legislature party met and removed Sri N.T. Rama Rao and elected Sri N. Chandrababu Naidu as their new leader and Sri N. Chandrababu Naidu is also claiming majority for him.
We are of the opinion that the claims and counter claims should be ascertained first by the honourable Governor and then the Assembly should be convened to prove the majority. We feel that this would be the best and democratic way.
Hence the Communist Party of India (Marxist) opposes any move to dissolve the Legislative Assembly. We request your goodself not to accept any request to dissolve the Assembly. We also request you to convene the Assembly immediately in order to prove the majority by the claimants."
(g) At about 7.30 p.m. on 25-8-1995 a letter was received from Sri V. Rama Rao, State BJP President stating that 'At an emergency meeting of the office bearers of the party held at 3.00 p.m. on 25-08-1995 a decision has been taken to request the Honourable Governor not to dissolve the Assembly as recommended by the Chief Minister Sri N.T. Rama Rao, Sri Ch. Vidyasagara Rao, Leader of the BJP group in the Legislative Assembly and Sri Baddam Bal Reddy, MLA are authorised to communicate the decision of the party to the Honourable Governor in person.'
(h) A letter dated 26-8-1995 addressed to the Governor by the petitioner was received in which the petitioner inter-alia reiterated his request for dissolution of the Assembly.
(i) The contents of the petitioner's letter dated 25-8-1995 in light of the aforesaid subsequent developments evidenced leadership crisis and indicated that the request for dissolution was made to resolve the internal problems of the ruling party, and raised doubts about the petitioner enjoying the confidence of the Legislative Assembly. Consequently, by my letter dated 27-8-1995, the petitioner was requested to seek a vote of confidence on the floor of the Assembly by Wednesday the 30th August, 1995.
Having regard to the contents of the petitioner's letter dated 25-8-1995, the aforesaid facts and circumstances and considering the enormous strain and expenditure on State resources, and the tumult and turmoil to which the people of the State would be put in holding another election within nine months of the earlier election held in December, 1994, and on my assessment that the Government of the State could be carried on without sending the electorate again to the polls. I in bona fide exercise of my discretion and judgment, thought fit not to accede to the request for dissolution of the Assembly. In my judgment, it is the constitutional obligation of the Governor that every effort should be made, which would obviate the extreme consequences of the dissolution of the Assembly. The views expressed by the Members of the CPI Legislature Party, CPI(M) Legislature Party, the BJP Legislature Party and the Memoranda submitted by the Members of the Telugu Desam Legislature Party further led me to explore an alternative that would permit the continuance of the 10th Legislative Assembly in light of the recommendations of the Sarkaria Commission and the judgment of the Supreme Court in Bommai's case about ascertaining majority support and enjoyment of the confidence of the House by means of a floor test. In arriving at my decision, I acted in the best interests of the State according to my understanding of the Constitutional provisions, practice and precedents and my assessment of the prevailing situation....
The petitioner, by his letter dated 27-8-1995 addressed to the Governor, inter-alia, requested that the Assembly should be convened after 15th September, 1995. By my letter dated 27-8-1995, I agreed to the extension of the date for summoning the Assembly Sessions from 30th to 31st August, 1995. In the said letter, I expressed my keenness, "That a stable Government, reinforced by the proven majority support of the Assembly, should be in place, as soon as possible, to meet any situation effectively."
"(a) At about 07.00 a.m. on 31-08-1995 Dr. N. Jayaprakash Narayan, IAS., Secretary to Sri N.T. Rama Rao, Chief Minister telephoned the Principal Secretary to Governor, Sri A.N. Tiwari, IAS., and the ADC to Governor, Capt. R.K. Singh requesting a meeting for Sri N.T. Rama Rao with the Governor at 11.00 a.m. Dr. N. Jaya Prakash Narayan, IAS., informed the Principal Secretary to Governor that the Chief Minister wished to submit his resignation personally. The appointment was accordingly given.
(b) At about 10.15 A.M. on 31-08-1995 the Chief Secretary to Government of A.P. Dr. M.S. Rajajee, IAS., telephoned the principal Secretary to Governor Sri A.N. Tiwari, IAS., that the petitioner had taken ill and was admitted to the Mediciti Hospital. Consequently the Principal Secretary to Governor remained in touch with the Mediciti Hospital regarding the petitioner's health. The Principal Secretary to Governor was informed by Dr. P.S. Reddy, Secretary General of the Mediciti Hospital, over telephone, that the Governor could come to visit the petitioner to enquire after his health, after 1.00 pm.
(c) Atabout 1.00 p.m. on 31-08-1995 the Chief Secretary to the Government of A.P., Dr. M.S. Rajajee, IAS., and Dr. N. Jayaprakash Narayan., IAS., Secretary to Chief Minister, arrived at Raj Bhavan. The Chief Secretary informed me that the Chief Minister had requested me to go over to the Mediciti Hospital to receive the Chief Minister's resignation, as he was not in a position to travel to the Raj Bhavan for the said purpose.
(d) At about 1.20 p.m. on 31-08-1995, I, accompanied by the Chief Secretary, proceeded to the Mediciti Hospital and railed on the petitioner and enquired after his health, A bouquet was presented to the Chief Minister. The Chief Minister greeted me with folded hands. He received a cover from his Secretary, Dr. N. Jayaprakash Narayan, IAS., and gave the said cover to me.
(e) On return to the Raj Bhavan the cover was opened. After perusing the letter of the petitioner, I accepted the resignation and requested Sri N.T. Rama Rao to continue to be in office till the new Government was sworn-in. The letter of acceptance of resignation was sent by Special Messenger, which was acknowledged by Dr. N. Jayaprakash Narayan, I.A.S. Secretary to Chief Minister. A copy of the letter of resignation of Sri N.T. Rama Rao together with a letter of the Governor accepting it, was sent to the Special Secretary of the Legislature Secretariat, as the Legislative Assembly was scheduled at 4 p.m. to consider the motion of confidence to be moved by the petitioner and for which purpose the Assembly was summoned.
(f) The petitioner has not made any grievance to me about my acceptance of his resignation. I am informed that, in the affidavit dated 14-9-1995 filed by the petitioner in writ petition No. 19557 of 1995, he has admitted and accepted that he has resigned.
In the evening of 31-8-1995 a letter signed by 188 MLAs was received from P. Ashok Gajapati Raju, T. Devender Goud and K. Vidyadher Rao in which it was stated that Chandrababu Naidu was elected as leader of the Telugu Desam Legislature Party and a request was made to invite him to form the Government. Thereupon, the third respondent was invited to assist me in the formation of the Council of Ministers.
On 1-9-1995, the third respondent was sworn in as the Chief Minister along with 8 others as Cabinet Ministers and 2 others as Ministers of State.
On 7-9-1995, the A.P. Legislative Assembly met at 12.00 noon and passed a vote of confidence in the Chief Minister, namely the third respondent.
7. The Governor has categorically denied that he received instructions from the Central Government not to dissolve the Assembly and to invite Sri N. Chandrababu Naidu to form a Government.
8. The Speaker has filed a detailed affidavit in the petition (W.P.No. 19609 of 1995) by Sri G. Buchaiah Chowdhary and adopted its contents as a part of the counter-affidavit to the allegations by Sri N.T. Rama Rao against him. He has denied the allegations of any connivance with Sri N. Chandrababu Naidu, has asserted that he has played his constitutional role only and has asserted that he acted strictly in accordance with the request of the Governor in respect of verification of the signatures of the Members of the Legislative Assembly, denied the allegations that he aspired to become an important Cabinet Minister or that he rushed back to Hyderabad at the behest of Sri N. Chandrababu Naidu to help him in his efforts to dislodge Sri N.T. Kama Rao. He has also denied that he made any statement before the letter was issued by the Governor accepting the resignation of Sri N.T. Rama Rao. He has, however, accepted that bulletin dated 28-8-1995 was issued at his instance.
9. Sri N. Chandrababu Naidu's (3rd respondent) return, to the extent it is relevant, is to the following effect:
"...the petitioner seems to suggest that I am a political non-entity and only because of the patronage bestowed by the petitioner I have become what I am to-day. I deny the said allegation as incorrect. Before the petitioner entered politics of Andhra Pradesh I was actively involved in the politics of Andhra Pradesh. I was a student leader in my younger days when I did the Post Graduation at Sri Venkateswara University, Tirupathi. In 1978 I contested the Chandragiri Assembty Constituency Election for the Andhra Pradesh Legislative Assembly and won the said election with a handsome majority. In 19801 was chosen as a Member of the Cabinet and continued in that capacity from 1980 to 1982 under three former Chief Ministers.
In 1983 election to the Andhra Pradesh Legislative Assembly it is a fact that I was defeated from Chandragiri Assembly Constituency.... I was married in 1981 while I had been in politics long before my marriage. The petitioner entered political field for the first time only in 1982. After the writ petitioner formed the Government in 1983 as Chief Minister of Andhra Pradesh he requested me to join his party and assist him in running the party and advise him on various political and administrative matters. After carefully assessing the various political and personal aspects involved in the problem, I took a decision to join the Telugu Desam Party both in the interest of the State of Andhra Pradesh at large and in the interest of the writ petitioner and also my interest. Having joined , (sic) Telugu Desam Party I spared no effort to maintain the image of the party and its Leader. It is a matter of common knowledge that Sri N. Bhaskara Rao was a Member of the Petitioner's Cabinet in August, 1984, became Chief Minister for only one month by unconstitutional means. During that period this respondent was mainly responsible to expose the unconstitutional methods adopted by Shri N. Bhaskara Rao and to install the petitioner as Chief Minister once again. This respondent's efforts were appreciated not only by the petitioner himself but also by the public at large and all the political parties in the country. In recognition of the hard work and services rendered to the Telugu Desam Party I was made the General Secretary of the Party in 1985. From 1989 to 1994, i.e., after the petitioner ceased to be Chief Minister of Andhra Pradesh and again became the Chief Minister of Andhra Pradesh, I along with the senior Members of the Telugu Desam Party strained every nerve to sustain the party and prepared the party for the electoral battle of 1994. From 1985 onwards this respondent held various positions in Telugu Desam Party, such as General Secretary, Polit Bureau Member, Party Co-ordinator, etc., having regard to his vast political experience since his student days, Such vast political experience of this respondent manifested itself in the elections held in December, 1994 when Telugu Desam Party bagged as many as 214 seats in the Assembly out of 294 which was unprecedented in the history of Andhra Pradesh. Such electoral success of the petitioner, therefore, cannot be attributed only to the alleged personal charisma of the petitioner and the same is also attributable to the political experience and organisational capacity of this respondent as well as hard work of the general cadre of the party. During that period the writ petitioner was busy looking after his personal business of film making and acting in the movies.
... it is a fact that the President of the Telugu Desam Party shall be elected by Rashtra Prathinidula Mahasabha (State General Body). But the election according to the Telugu Desam Party Constitution should take place once in every two years. ... such last election for the office of the President of the Telugu Desam Party was held in May 1992 wherein the petitioner was elected the President of the Telugu Desam Party and though the election was due in the month of May, 1994, the petitioner never took any steps for the conduct of such an election. No doubt Rule 8 of the Telugu Desam Legislature Party says that the term of the Legislature shall be co-extensive with that of the term of the Assembly. Clause 9 of the said Constitution stipulates who are to be executive members of the party, which includes the Leader. The allegation that the petitioner is the elected Leader of the Telugu Desam Legislature Party and he continues to be so till the expiry of the term of the 10th Assembly of the State of Andhra Pradesh is incorrect and is hereby denied. The President who is one of the executive members of the Legislature Party can be removed by resolution as per Clause 24 of the Constitution by resolution passed by the General Body. There is no executive body to the Telugu Desam Legislature party till date.
... there has been no violation of the provisions of the Telugu Desam Party Constitution in electing me as Leader. In any event irrespective of whatever be the provision in the party's constitution the Speaker has to act on the basis of the situation obtaining from time to time in the Assembly. If at any particular point of time the majority of the Members of the Legislature belonging to a particular party manifest their intention as to who is their Leader, he and he alone will be the Leader of the Legislature party. It was in this contest that I submitted a memorandum to the Hon'ble Speaker on 26-8-1995.....
... the allegation that I had "conspired to overthrow me and to become the Chief Minister, he induced some MLAs with money and position" is totally baseless. I never induced any MLA with money or position either to overthrow the petitioner or for any other purpose. Not being able to withstand the autocratic style of functioning of the writ petitioner herein, the Members of the Legislative Assembly revolted against the Leadership of the petitioner and elected me to be their Leader.
... allegations with regard to the elections to the District Cooperative Central Banks etc., are untrue and vague, without any definite particulars and as such the same are liable to be struck off. However it is pertinent to state that the reason for such defeat was not due to the alleged antiparty activities, but the same was due to the autocratic manner in which the petitioner chose the candidates whose names were put in the sealed envelopes. This style of functioning of the petitioner created displeasure in the rank and file of the party. The allegation that on 24-8-1995, I was suspended from the party and on 25-8-1995 at 6.00 a.m. that I was expelled from the party only with 4 others can only be proved by the petitioner as till today I have not received any communication in this regard either from the petitioner or any other person acting on his behalf.....
.......it is a fact that on24-8-95,144 MLAs of the Telugu Desam Party met at Viceroy Hotel and passed resolutions referred to by the petitioner in his affidavit.... The petitioner has been elected to be the Leader of the Telugu Desam Legislature Party thrice so far, first time in 1983 January, second time in 1985 March and third time in December, 1994. Pursuant to which elections he was invited by the Governor to be the Chief Minister of Andhra Pradesh and form the Government......in all the said three occasions, the said Legislature Party meetings, wherein, he was elected to be the Leader were held outside the Legislative Assembly. 1983 January meeting was held at the Jubilee Hall in the Public Gardens of Hyderabad, in 1985 March meeting was held at Ramakrishna Cine Studios at Musheerabad belonging to the petitioner and his family members and 1994 December meeting was held at Telugu Desam party office situated at Gandipet in Ranga Reddy district. That apart in August, 1984, when the petitioner was thrown out of power by the said Shri N.Bhaskara Rao, the Member of the Legislative Assembly and the cadre of theTelugu Desam Party lead by the Petitioner and this respondent demonstrated the petitioner's strength in the then Legislative Assembly to the President of India and made an appeal to the President of India that he should be reinstated as the Chief Minister of Andhra Pradesh.....
.....I hereby deny that there was any conspiracy hatched between me and the second respondent herein as alleged or at all.... the meeting of the Telugu Desam Legislative party which was held on 24th August, 1995, in Viceroy Hotel was a proper meeting of the Telugu Desam Legislature Party with notice to all Legislative Assembly Members of the Telugu Desam party. The said meeting was attended by more than 2/3rds of the Telugu Desam Legislature Party. ... the Members of the Legislature Party belonging to the Telugu Desam Party who were outside Hyderabad sent fax messages expressing their support to this respondent which establishes that there was proper notice of the said meeting.....
... it is absolutely false to allege that I wrongfully confined some MLAs in Viceroy Hotel and indulged in horse trading and gathering several MLAs by inducements. As a matter of fact on the 24th August, 1995, evening when I met the petitioner on behalf of the Members of the Legislative Assembly with certain specific requests with reference to the conduct of the Telugu Desam party affairs the petitioner autocratically rejected all the humble request made by me in the interest of the party and in public interest. Thereafter I was compelled to go back to the Members of the Legislative Assembly about 150 of whom were waiting in the Secretariat in my Chambers and report to them the writ petitioner was not willing to consider any one of our requests. Then to discuss the future course of action, all of us took a collective decision to adjourn to Viceroy Hotel. There at the Viceroy Hotel after the dinner, after long debate over the future course of action of the Members of the Legislative Assembly who attended the said meeting, took a collective decision to pass the three resolutions referred to earlier and it was also decided by the gathering that all of them are to stay back in the Viceroy Hotel, until a decision is taken by the Governor on the resolution passed by us. The reason for such a decision is that, every one of the Members who garnered there was apprehending danger to their lives and liberty from the writ petitioner and his supporters.... in view of the fact that the Governor took considerable time to come to a definite conclusion in the matter, stay of the Members of the Legislative Assembly in Viceroy Hotel was inevitably prolonged for six days.... during the stay of the Members of the Legislative Assembly in the Viceroy Hotel, many prominent National Leaders like Mr. V.P.Singh, former Prime Minister and Mr. S.R.Bomrnai, former Chief Minister of Karnataka and other Leaders representing various political parties at the State and national level visited the Viceroy Hotel held extensive discussions with the MLAs with an intention to save the Telugu Desam Party and resolve the crisis occurring in the party. Apart from that the writ petitioner as Chief Minister of Andhra Pradesh directed the Police to verify whether any one of the MLAs was illegally confined in the Viceroy Hotel. Pursuant to such directions, senior Police Officials visited the Viceroy Hotel and interacted and verified with all Members of the Legislature Party belonging to the Telugu Desam Party. If in fact any one of the MLAs was confined in the Viceroy Hotel, illegally and against their volition, they would have complained to either of the various political leaders who visited the Viceroy Hotel and interacted with them or to the Police Officers. The Press Correspondents were also present inside the Viceroy Hotel from the night of 24th August, 1995, till the afternoon of 31st August, 1995.
... the extraordinary general body meeting of the Telugu Desam Party was held on 30th August, 1995, at Basanth Talkies, Hyderabad, wherein I was elected Leader of the Telugu Desam Party. The meeting and its proceedings were widely published about by the local as well as by the national press and also televised on the various television net works.
... In view of the extraordinary situation occurring at that time, the notice of the meeting was given to all the concerned through an advertisement in the press dated 29-8-1995."
10. Sri N.Chandrababu Naidu has filed his counter in the petition filed by Sri G.Buchaiah Chowdhary and has incorporated the contents of the said affidavit as a part of the affidavit in the petition by Sri N.T.Rama Rao.
11. In course of the hearing of the writ petitions, the Governor has made all the records with him available to the Court. Sri N.T.Rama Rao has produced a copy of the discharge summary from the hospital, the place where the letter of resignation surfaced and in support of the said summary, two doctors belonging to the hospital have filed affidavits. The Chief Secretary and the then Secretary to Sri N.T.Rama Rao-Sri (Dr.) N. Jayaprakash Narayan have also filed affidavits giving their version of the happenings leading to the resignation by Sri N.T.Rama Rao. The Chief Secretary's affidavit is only supporting the affidavit by Sri (Dr.) N. Jayaprakash Narayan who, in his affidavit, has stated as follows:
"I have been working as the Additional Secretary to the Chief Minister of A.P., Sri N.T.Rama Rao since December, 1994. On 31-8-1995 I was the Secretary to the then Chief Minister, Sri N.T.Rama Rao.
On the morning of 31-8-1995, Sri N.T. Rama Rao, the then Chief Minister of A.P. informed me of his intention to submit his resignation as the Chief Minister of A.P. to the Governor in person and instructed me to have the resignation letter drafter for his signature and further to arrange a meeting for the said purpose with the Governor of A.P. I was also instructed to arrange for a Press Meeting after the meeting of the Cheif Minister with the Governor.
As per the Chief Minister's instructions, I had the letter of resignation prepared which reads as under : "I hereby tender my resignation to the office of the Chief Minister. I thank you for the kindness and courtesies extended to me and my Council of Ministers".
The then Chief Minister after going through the letter signed the same and thereafter it was kept in a cover. I was present when the Chief Minister signed the said letter. The cover containing the letter of resignation was kept in a drawer in the office at the residence of the Chief Minister.
Pursuant to the instructions of the Chief Minister, I also coordinated with the office of the Governor and arranged for a meeting of the Chief Minister with the Governor at the Raj Bhavan at 11 a.m. I also issued instructions for the convening of Press Meet to be held after the meeting of the Chief Minister with the Governor.
A little later, Sri N.T.Rama Rao had a paraxysm of cough and severe breathlessness, and he fell down on the floor from his chair. The Chief Minister was immediately rushed to Mediciti Hospital in the Sarovar Complex, opposite to the Secretariat. I followed the Chief Minister's convoy to the Hospital. At the Hospital, the Chief Minister was treated by a team of experts in Cardiology, Pulmonology and Neurology. He was in no condition to call on the Governor. I conveyed to the Raj Bhavan the news of the Chief Minister's sickness, and cancelled the appointment. I then went to my office in the Secretariat.
Some time later, when I visited the Hospital again, I was informed by the security personnel that the then Chief Minister had enquired about the resignation letter. I obtained the letter from the Cheif Minister's office at the residence, and kept it in my custody. Afterwards I enquired of Sri N.T.Rama Rao whether he wished to send the letter to the Governor. The Chief Minister after some questioning conveyed the impression that he wished to meet the Governor and submit the letter of resignation in person. However, the physicians at the hospital categorically advised against any movement of the Chief Minister as he was not in a position to move out. When I enquired of the Chief Minister whether I should convey to the Governor his desire to meet him personally, he responded positively by nodding. Then I informed the Chief Secretary, Dr. M.S.Rajajee on telephone mat the Chief Minister wanted to submit his resignation and that on medical advice he was not in a position to go over to the Raj Bhavan. The Chief Secretary, there upon, told me that if the Governor was to come to the hospital, it was appropriate that the Chief Secretary should also go over to the Raj Bhavan to escort the Governor to the hospital.
I, therefore went to the Secretariat along with Sri Dora, IPS., Additional Director General of Police (Law and Order) to escort die Chief Secretary, Dr. M.S.Rajajee to call on the Governor.
I accompanied the Chief Secretary along with Sri Dora to Raj Bhavan. The Chief Secretary met the Governor and informed him of the intention of the Chief Minister to submit his resignation. The Chief Secretary accompanied the Governor in the official car of the Governor to the Mediciti Hospital from Raj Bhavan. Sri Dora and I also accompanied the Governor from the Raj Bhavan to the hospital in a separate car in the convey.
On arrival at the hospital, I indicated to Sri N.T.Rama Rao, the then Chief Minister, that the Governor had come to call on him. The Chief Minister responded through gestures. The Governor there upon wished the Chief Minister speedy recovery and Sri N.T.Rama Rao responded to the greetings with folded hands. The Governor presented a bouquet which was accepted by Sri N.T.Rama Rao. I, therefore, handed over the cover containing the letter of resignation to the Chief Minister, and told him it was the letter he wished to pass on to the Governor. The Chief Minister received it and handed it over to the Governor. This was around 1.30 pm on 31-8-1995. The handing over of the cover containing the letter of resignation by the Chief Minister, Sri N.T.Rama Rao to the Governor was in my presence and lam aware that the cover handed over by the Chief Minister to the Governor contained the letter of resignation signed by Sri N.T. Rama Rao, the then Chief Minister on the morning of 31-8-1995."
12. From the above what transpires thus is that Sri N.T. Rama Rao was already the President of Telugu Desam Party when general elections were held and the 10th Assembly of the State was constituted and was elected as the leader of the Telugu Desam Legislature party on 11-12-1994. The party had the strength of 214 members of the Assembly out of a total number of 294 members. On 16-8-1995 he suspended eight members of the Telugu Desam Legislature party from the party itself. On 24-8-1995 the disciplinary committee of the party, allegedly, suspended some members from the party including Sri N. Chandrababu Naidu and authorised the President of the party i.e., Sri N.T. Rama Rao to expel them from the party and the Government On 25-8-1995 in the morning at 6.00 a.m., Sri N.T. Rama Rao allegedly took steps to expel the said members from the primary membership of the party. Later that day, the Speaker of the Assembly was informed of the explusion and the consequential effects of the explusion. Sri N.T. Rama Rao wrote to the Governor recommending that the said members of the party be dismissed from the Council of Ministersand order be issued with immediate effect. The order to the said effect was issued vide G.O.Ms.No. 360 G.A. (Poll.C) Department, dated 25-8-1995. While Sri N.T. Rama Rao was proceeding as above, quite a few Legislators belonging to the Telugu Desam party assembled at Viceroy hotel in the city of Hyderabad on 24-8-1995, allegedly held meeting on 24-8-1995 as well as on 25-8-1995 and resolved expressing lack of confidence in Sri N.T. Rama Rao, electing Sri N. Chandrababu Naidu as the leader of the Telugu Desam Legislature party and urging the Governor not to accept the advice to dissolve the House On 25-8-1995 Sri N.T. Rama Rao made a recommendation to the Governor to dissolve the House allegedly after a full Cabinet meeting. On the same day, Sri N. Chandrababu Naidu met the Governor and represented that 144 Legislators supported him and apprised him of the Viceroy hotel resolutions. On 25-8-1995 itself the Secretary to the Governor wrote to the Special Secretary to the Andhra Pradesh Legislative Assembly to verify signatures of Legislators in the memorandum which Sri N. Chandrababu Naidu had presented to him. The Speaker allegedly was out on tour and returned to Hyderabad on the same day and verified the signatures in the memorandum in the presence, allegedly, of Sri N. Chandrababu Naidu. On 26-8-1995 Sri N.T. Rama Rao wrote to the Governor once again repeating his request for dissolution of the House. On 27-8-1995 the Governor communicated in writing to Sri N.T. Rama Rao that some Legislators had expressed lack of confidence in him and asked him to seek a vote of confidence by 30-8-1995. Sri N.T. Rama Rao wrote back to the Governor on the same day stating that the time schedule was unacceptably short and advised through the reply to convene the Assembly after 15-9-1995 in public interest. Governor replied on the same day, extending the date for convening the Assembly by 31-8-1995. On 28-8-1995 the Speaker's office issued a bulletin that Sri N. Chandrababu Naidu was the leader of the Telugu Desam Legislature Party and Sri N. Chandrababu Naidu, on the same day, issued whip to vote against the confidence motion. On 30-8-1995, according to Sri N. Chandrababu Naidu, a meeting of the Legislators of the Telugu Desam Party was held which affirmed that Sri N. Chandrababu Naidu was the leader. The details how Sri N.T. Rama Rao contemplated resignation as Chief Minister and prepared a letter to the said effect, he fell unconscious and had to be taken to the Medidti Hospital, he was admitted to hospital, the Governor visited the hospital and the resignation letter was handed over to him on 31-8-1995 are stated precisely in the affidavits and it is not in dispute that Sri N.T. Rama Rao was admitted to hospital at 9.30 a.m., or so on 31-8-1995 and the Governor visited him and received a cover which contained the letter of resignation, around 1.30 p.m. At 2.30 p.m., on the same day the Governor accepted the resignation of Sri N.T. Rama Rao and informed the Speaker about it. He asked Sri N.T. Rama Rao to continue until a new leader was elected by the House. The House which had assembled to consider the vote of confidence in Sri N.T. Rama Rao was adjourned in view of the resignation by him. In the evening at 6.00 p.m., the Governor invited Sri N. Chandrababu Naidu to form a Ministry and Sri N. Chandrababu Naidu assumed the office of the Chief Minister of the State on 01-09-1995. Within the time stipulated by the Governor, however, for Sri N. Chandrababu Naidu to seek vote of confidence the Assembly was convened for 07-09-1995. In the meanwhile, on 4-9-1995 Sri N.T. Rama Rao issued a whip on behalf of the Telugu Desam Legislature party and repeated the whip on 6-9-1995. On 5-9-1995 he (Sri N.T. Rama Rao) wrote a letter to the Speaker stating that he was the leader of the Telugu Desam Legislature party and that the bulletin dated 28-8-1995 wrongly described Sri N. Chandrababu Naidu as the leader of the Telugu Desam Legislature party. The House on the same date i.e., 7-9-1995, however, expressed confidence in Sri N. Chandrababu Naidu.
13. In course of the hearing, however, several contentions have been raised and they revolve around the Governor's act of asking the Secretary of the Legislative Assembly to verify signatures of Legislators, Speaker's getting himself involved in the verification of the signatures, Governor not taking notice of the advice of the Council of Ministers headed by Sri N.T. Rama Rao to dissolve the Assembly, Governor asking Sri N.T. Rama Rao to seek vote of confidence in allegedly unacceptably short time, Speaker getting a bulletin published declaring Sri N. Chandrababu Naidu as the leader of the Telugu Desam Legislature Party, the Governor not accepting the advice of Sri N.T. Rama Rao to summon the House for the majority test or the vote of confidence in his Government after 15-9-1995 and instead extending time by one day only i.e., to have the test on 31-8-1995 and the delivery of the resignation letter to the Governor by Sri N.T. Rama Rao.
14. Part VI of the Constitution of India provides the scheme of the Executive and the extent of the executive power of a State and the constitution of Legislatures in a State, duration of a State Legislatures, sessions of the State ' Legislature, prorogation and dissolution, officers of the State Legislature, etc. Executive power of the State is spelled out in Article 154. Article 155 provides for the appointment of the Governor of a State, Article 156 provides for the term of off ice of Governor, Article 157 provides for the qualification for appointment as Governor, Article 158 provides for the conditions of Governor's office and Article 159 provides for oath or affirmation by the Government which, apart from the oath to faithfully execute the office of Governor and to the best of ability to preserve, protect and defend the Constitution and the law, requires oath or affirmation to, "that I will devote myself to the service and well-being of the people.........(name of the State)". Article 163 contains the provision for a Council of Ministers with the Chief Minister at the head to aid and advise (he Governor in the exercise of his function except in so far as he is by or under the Constitution required to exercise his functions or any of them in his discretion. Clause (2) provides, "if any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not have acted in his discretion". Clause (3) provides, "the question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into any court". Significant, however, for us in the instant case, are other provisions as to Ministers as stated in Article 164 of the Constitution of India. The relevant clauses of this Article read as follows:
"(1) The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor.
Provided.....................
(2) The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State.
(3) ...................
(4) ...................
(5) ...................
15. Article 168, which speaks of constitution of Legislatures in States, provides inter alia, "(1) for every State there shall be a Legislature which shall consist of the Governor, and (a).........; (b) in other States, one House, (2) where there are two Houses of the Legislature of a State, one shall be known as the Legislative Council and the other as the Legislative Assembly, and where there is only one House, it shall be known as the Legislative Assembly". (State of Andhra Pradesh has only one House). Article 174 which provides for sessions of the State Legislature, prorogation and dissolution, reads as follows:
"(1) The Government shall from time to time summon the House or each House of the Legislature of the State to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next sessions.
(2) The Governor may from time to time -
(a) prorogue the House or either House;
(b) dissolve the Legislative Assembly."
16. Articles which speak of officers of the State Legislature start with Article 178 which provides for every Legislative Assembly to choose two members of the Assembly to be respectively Speaker and Deputy Speaker thereof and so often as the Office of Speaker or Deputy Speaker becomes vacant, to choose another member to be a Speaker or a Deputy Speaker, as the case may be. Article 194 contains provisions as respects powers, privileges, etc., of the House of Legislatures and of the members arid committees thereof an apart from the freedom of speech in the Legislature, clause (2) thereof provides inter alia, "No member of the Legislature of a State shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof and no person shall be liable in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes or proceedings." Article 212 provides as follows:
"(1) The validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure.
(2) No officer or member or the Legislature of a State in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers."
17. The President of India or the Governor or Raj Pramukh of a State are extended protection against legal action, under Article 361 of the Constitution of India in these words:
"(1) The president, or the Governor or Rajpramukh of a State, 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 the exercise and performance of those powers and duties: Provided that the conduct of the President may be brought under review by any court, tribunal or body appointed or designated by either House of Parliament for the investigation of a charge under Article 61: Provided further that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Government of India or the Government of a State.
(2) No criminal proceedings whatsoever shall be instituted or continued against the President, or the Governor of a State, in any Court during his term of office.
(3) No process for the arrest or imprisonment of the President, or the Governor of a State, shall issue from any court during his term of office.
(4) No Civil proceedings in which relief is claimed against the President, or the Governor of a State, shall be instituted during his term of office in any court in respect of any act done or purporting to be done by him in his personal capacity, whether before or after he entered upon his office as President, or as Governor of such State, until the expiration of two months next after notice in writing has been delivered to the President or the Governor as the case may be, or left at his office stating the nature of the proceedings, the cause of action therefore, the name, description and place of residence of the party by whom such proceedings are to be instituted and the relief which he claims."
18. We shall see some more provisions for comparison how the Government of India has been envisaged with the executive power of the Union vested in the President, how the Council of Ministers with the Prime Minister at the head is constituted to aid and advise the President and how the Prime Minister is appointed by the President and the other Ministers are appointed by the President on the advice of the Prime Minister, later in our judgment.
19. Before doing so, we may refer to Article 160 in Part VI of the Constitution of India as respects the discharge of the functions of the Governor in certain contingencies and Article 70 as respects discharge of President's function in other contingencies which are not specifically provided for. Article 160 of the Constitution of India provides as follows:
"The President may make such provisions as he thinks fit for the discharge of the functions of the Governor of a State in any contingency not provided for in this Chapter." (Chapter II of Part VI of the Constitution of India) Article 70 of the Constitution of India provides as follows:
"Parliament may make such provisions as it thinks fit for the discharge of the functions of the President in any contingency not provided for in this Chapter."
(Chapter I of Part V of the Constitution of India)
20. Provisions in Chapter II of Part VI of the Constitution of India (Articles 153 to 167) envisage that the executive power of the State shall be vested in the Governor and also that there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions except in so far as he is by or under the Constitution required to exercise his functions or any of them in his discretion. While other Ministers shall be appointed by the Governor on the advice of the Chief Minister, the Chief Minister shall be appointed by the Governor. Before the appointment of the Chief Minister by the Governor there is no one, obviously not a Council of Ministers, to advise the Governor to appoint the Chief Minister. Once, however, the Chief Minister is appointed the Governor has to act on his advice and appoint Ministers and once a Council of Ministers with the Chief Minister at the head is constituted the Governor has to act in the exercise of his functions with the aid and on the advice of the Council of Ministers headed by the Chief Minister.
21. A serious contention has arisen as to the discretion of the Governor in discharge of the functions as envisaged under Article 174 of the Constitution can the Governor summon the House i.e., there Assembly to meet at such time and place as he thinks fit without the aid and advice of the Council of Ministers, can the Governor dissolve the Assembly without the aid and advice of the Council of Ministers and conversely can be decline to accept the advice of the Council of Ministers headed by the Chief Minister, to dissolve the Assembly.
22. It is clear that the Chief Minister shall be appointed by the Governor and there is no question of any aid and advice of the Council of Ministers being available. The question, however, which has arisen in the instant case is, shall the Governor be free to choose any person to be appointed as the Chief Minister or will he be bound to appoint only that person as the Chief Minister who has the support of the majority of the Legislators or members of the Assembly.
23. It is not difficult to see that the expression "Minister" in other parts of the Constitution including clause (4) of Article 164 will include a Chief Minister and thus, as clause (4) of Article 164 says, a Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister"., it is conceivable that a person who is not a member of the Legislature can be a Minister and so can be a Chief Minister. In H.S. Verma v. T.N. Singh, the Supreme Court has considered a situation of a person not being a member of the Legislature of the State being appointed as the Chief Minister and held that there is nothing in the Constitution which will make illegal the appointment of Chief Minister and Ministers none of whom are members of the State Legislature. The Supreme Court has in this case, however, made a significant observation while rejecting the comments of the appellant before it upon the interpretation put by the High Court to the above effect in these words:
"The appellant says that if the interpretation put by the High Court is correct it would be possible for a Governor to appoint a Chief Minister and Ministers none of whom are Members of the State Legislature. He said that this could not have been contemplated. But if the Legislative Assembly of the State to whom this Council of Ministers would be collectively responsible endorses this unlikely Council of Ministers there is nothing in the Constitution which would make this appointment illegal."
24. The reason why only such a person can be the Chief Minister arid Ministers selected by him for appointment shall constitute the Council of. " Ministers is available in clause (2) of Article 164 which says, "The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State". In Karnataka State v. Union of India, , the Supreme Court has stated, of Course in a different context but nonetheless upon the said provision, as follows:
"Article 163 speaks of the Council of Ministers "with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution is required to exercise his functions or any of them in his discretion". Now, the Council of Ministers, theoretically appointed by the Governor, is certainly "collectively responsible to the Legislative Assembly of the State" (See: Article 164(2)). But, this "collective responsibility" does not, as has been erroneously attempted to be argued before us, abridge or truncate the power of the Central Government to appoint a Commissioner under Section 3 of the Act. In fact, this "collective responsibility" has a scope and mode of operation which are very different from those of an inquiry under Section 3 of the Act even though the same or similar matters may, sometimes, give rise to both. "Collective Responsibility" is basically political in origin and mode of operation. It may arise even in cases which may not call for any inquiry under Section 3 of the Act. And, matters investigated under Section 3 of the Act may have no bearing on any "collective responsibility".
25. The Supreme Court in this judgment has quoted with approval the observations of two writers on constitutional matters - Geoffrey Marshall and Graeme C. Moodie, which are as follows:
"If responsibility is taken in the formal constitutional sense, there would seem granted collective governmental responsibility, to be no clear distinction to be drawn between Ministers inside and those outside the Cabinet. To be responsible in this sense simply is to share the consequences of responsibility - namely to be subject to the rule that no member of the Government may properly remain a member and dissociate himself from its policies (except on occasions when the Government permits a free vote in the house)'. They add:
'The substance of the Government's collective responsibility could be defined as its duty to submit its policy to and defend its policy before the House of Commons, and to resign if defeated on an issue of confidence."
26. The Supreme Court has in this judgment also quoted from Wade and Phillips on Constitutional Law (8th edition, page 87), the following:
"Just as it became recognised that a single Minister could not retain office against the will of Parliament, so later it became dear that all Ministers must stand or fall together in Parliament, if the Government was to be carried on as a unit rather than by a number of advisers of the Sovereign acting separately. This development of collective responsibility was thus described in 1878 by Lord Salisbury:
'For all that passes in Cabinet every member of it who does not resign is absolutely and irretrievably responsible and has no right afterwards to say that he agreed in one case to a compromise, while in another he was persuaded by his colleagues......It is only on the principle that absolute responsibility is undertaken by every member of the Cabinet, who, after a decision is arrived at, remains member of it, that the joint responsibility of Ministers to Parliament can be upheld and one of the most essential principles of parliamentary responsibility established."
27. The Supreme Court has upon this commented as follows:
"The whole question of responsibility is related to the continuance of a Minister or a Government in office. A Minister's own acts or omissions or those of others in the Department in his charge, for which he may feel morally responsible or, for which others may hold him morally responsible, may compel him to resign. By an extension of this logic, applied to individual Ministers at first, emerged the principle of "collective responsibility" which we find enacted in Articles 75 (2) and 164 (2) of our Constitution. The only sanction for its enforcement is the pressure of public opinion expressed particularly in terms of withdrawal of political support by members of Parliament or the State Legislature as the case may be.
As Prof. S. A. de Smith points out in his Constitutional and Administrative Law, 1971, at pp. 170 to 179, the principle operates in a nebulous moralcum-political sphere, sometimes forcing an individual Minister to resign, as in the case of Mr. Profumo, and, on other occasions, involving the fate of the whole Ministry, depending upon the extent to which the Cabinet as a whole could be, in the circumstances of a particular case, deemed to be responsible for a particular decision or action or inaction. In England, the principle operates as a matter of convention backed by political judgment, as reflected in Parliament whereas, for us, the principle is stated in our Constitution itself, but it, nevertheless, depends upon convention and upon public opinion, particularly as reflected in Parliament or in the State Legislature, as the case may be, for its effectiveness. The principle thus exists separately and independently from the legal liability of a Minister holding an office in the Union or a State Government."
28. The above, thus, makes it clear that after the executive Government is appointed the Governor ceases to have any responsibility and the Government or the Council of Ministers takes the collective responsibility. A Government, thus cannot be in office unless it enjoys the support of the majority of the members of the Legislature.
29. We do not propose to dilate further into this as all parties before us have agreed to the proposition that the Governor is bound to appoint only such a person as the Chief Minister who has the support of the majority of the House and although a feeble attempt for sometime was made on behalf of the petitioners to suggest that even a person who does not enjoy the majority support can be the Chief Minister and constitute his Council of Ministers, has not pursued beyond telling us that there can be situations when there shall be no person who shall enjoy the support of the majority of Legislators but nonetheless the Legislators may agree not to vote him out and thus in a given situation such a person can become the Chief Minister and constitute his Council of Ministers. We have good reasons, however, in the instant case not to go into any theoretical examination of this issue as before us there is a contest as to the majority in support of the Chief Minister - whether Sri N.T. Rama Rao enjoyed the support of the majority of Legislators or Sri N. Chandrababu Naidu enjoyed the support of the majority of Legislators.
30. Learned counsel for the petitioners have advanced their arguments on the basis that the Constitution of India is founded inter alia on the principle of a broad separation of powers and the relationship between the various organs of Government is coordinated by the constitutional conventions. According to them, such conventions define the relationship between the three organs of the State viz., the Executive, the Legislature and the Judiciary and the various institutions and authorities by and under the aegis of the Constitution define the contours, extent and exercise of discretionary powers under the Constitution; are relevant for the interpretation of the Constitution and powers exercised by constitutional authorities; develop over time and evolve in the light of given fact situations and requirements; have the force of law when they are expressly recognised by law courts and given due recognition by certain institutions and collectivities such as political parties which are not mentioned by the Constitution. Conventionally, according to them, the Governor acts on the aid and advice of the Council of Ministers through the Chief Minister and such advice is generally binding on the Governor in respect of certain areas of discretion. According to learned counsel for the petitioners, since the Constitution is founded on the rule of law, there is no power under the Constitution that is wholly discretionary even though some aspects of the exercise of discretionary power may not be justiciable in courts of law. The Court in the instant case, according to them, has to see the existence and extent of the discretion of the Governor and whether the exercise of discretion is lawful and constitutional. Since the Constitution is based on the principle of accountability to the people through the Legislature, a premium attaches to Governor acting on the binding advice of the Chief Minister and since the Constitution is founded on the rule of law there is no power exercised under the Constitution which is purely discretionary in nature. Wherever the Governor exercises a discretionary power it is coupled with a duty. Out attention is drawn to a quotation from Julius v. Lord Bishop of Oxford, (1880) 5 A.C. 214 which is quoted in the judgment of the Supreme Court in Commr. of Police v. Gordhandas, . One of the objections before the Supreme Court was that the Commissioner of Police who was required to exercise his discretion to cancel the licence had merely forwarded to the respondent an order of cancellation which another authority had purported to pass. The Supreme Court held, "since the law called for the exercise of the discretion regarding cancellation specifically vested in him, he. was bound to exercise it and bring to bear on the matter his own independent and unfettered judgment and decide for himself whether to cancel the licence or reject the objections". The Supreme Court quoted with approval the passage from the judgment of the House of Lords in Julius v. Lord Bishop of Oxford (3 supra) which is as follows:
"There may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so." The Supreme Court held:
"......An enabling power of this kind conferred for public reasons and for the public benefit was coupled with a duty to exercise it when the circumstances so demanded. It was a duty which could not be shirked or shelved nor could it be evaded...."
31. The first act of the Governor which is objected to by the petitioners is his accepting the representation of Sri N. Chandrababu Naidu and asking the Secretary to the Legislature to verify the signatures. It is contended that the Constitution does not give to the Governor any authority or discretion to communicate except by a message as envisaged under Article 175 of the Constitution. The method of signature verification by the Secretary of the Legislature or by the Speaker, according to the learned counsel for the petitioners, which the Governor adopted perverted the whole exercise into one of finding support from the Legislators for Sri N. Chandrababu Naidu. The constitutional conventions which are developed in course of time permitted only a floor test and so all experts say in the reports including the unanimous report of the committee of Governors appointed by the President of India. We cannot, however, miss the fact that the Governor did ask for the test of majority on the floor of the House and accordingly called upon Sri N.T. Rama Rao to seek vote of confidence. Before, however, he decided to ask Sri N.T. Rama Rao to seek vote of confidence, he asked for the verification of the signatures. The Supreme Court in S.R. Bommai v. Union of India, has of course observed that the Constitution does not create an obligation that the political party forming the Ministry should necessarily have a majority in the Legislature. Minority Governments are not unknown. What is necessary is that that Government should enjoy the confidence of the House. Whether the Council of Ministers has lost the confidence of the House is not a matter to be determined by the Governor or for that matter nowhere else except on the floor of the House. According to the Supreme Court in the said judgment:
"... The principle of democracy underlying our Constitution necessarily means that any such question should be decided on the floor of the House. The House is the place where the democracy is in action. It is not for the Governor to determine the said question on his own or on his own. verification. This is not a matter within his subjective satisfaction. It is an objective fact capable of being established on the floor of the House."
31-A. The Supreme Court has, however, observed:
"Exceptional and rare situations may arise where because of all pervading atmosphere of violence or other extraordinary reasons, it may not be possible for the members of the Assembly to express their opinion freely."
32. The recommendation of the committee of Governors, quoted in the judgment, is as follows:
"... the test of confidence in the Ministry should normally be left to a vote in the Assembly. ... Where the Governor is satisfied by whatever process or means, that the Ministry no longer enjoys majority support, he should ask the Chief Minister to face the Assembly and prove his majority within the shortest possible time. If the Chief Minister shirks this primary responsibility and fails to comply, the Governor would be in duty bound to initiate steps to form an alternative Ministry. A Chief Minister's refusal to test his strength on the floor of the Assembly can well be interpreted as prima facie proof of his no longer enjoying the confidence of the legislature. If then, an alternative Ministry can be formed, which, in the Governor's view, is able to command a majority in the Assembly, he must dismiss the Ministry in power and instal the alternative Ministry in office. On the other hand, if no such Ministry is possible, the Governor will be left with no alternative but to make a report to the President under Article 356.... As a general proposition, it may be stated that, as far as possible, the verdict as to majority support claimed by a Chief Minister and his Council of Ministers should be left to the Legislature, and that it is only if a responsible Government cannot be maintained without doing violence to correct constitutional practice that the Governor should resort to Article 356 of the Constitution...."
33. The above passage in the judgment of the Supreme Court clarifies the situation that the Governor shall not ask his Chief Minister to take vote of confidence merely because some representation is made to him that the Chief Minister has lost majority. He shall, prima facie, satisfy himself by some means before he shall ask his Chief Minister to seek vote of confidence. One of the methods suggested in this behalf when any memorandum is submitted to the Governor is to get the signatures verified and the best source to verify the signatures is the records containing the signatures of the Legislators in the office of the Assembly. It is a different matter, however, that the Speaker got involved and how far his involvement caused any difference to the verification of signatures. We have tried to see all the aspects of the matter-whether the Governor's initial hesitation in accepting the representation of Sri N. Chandrababu Naidu and others that Sri N.T. Rama Rao had lost majority, in any manner was an act prejudicial to the interests of Sri N.T. Rama Rao and also to see whether there could be any malice in law in seeking the verification of signatures before calling upon Sri N.T. Rama Rao to seek vote of confidence. It was rather an act of a Governor who hesitated in accepting that his Chief Minister had lost the support of majority of the Legislators. He wanted to be fully satisfied about it before he decided to ask the Chief Minister to seek vote of confidence. It was almost simultaneously with the Legislators supporting Sri N. Chandrababu Naidu alleging lack of confidence in Sri N.T. Rama Rao and electing the former as their leader and adopting a resolution urging the Governor not to accept the advice to dissolve the House that Sri N.T. Rama Rao allegedly, with the approval of his Cabinet, advised the Governor to dissolve the House.
34. A Serious grievance has been made before us on behalf of the petitioners against the Governor - why he did not dissolve the House when he was bound to act with the aid and advice of the Council of Ministers.
35. Reliance is placed upon a Full bench judgment of the Madras High Court in K.A. Mathialagan v. The Governor, (F.B. The Madras High Court has taken the view that under Article 163(1) of the Constitution, discretion relates to functions which are outside the area of ministerial responsibility and where the administration is exclusively vested in the Governor aided by his own secretarial staff. The Full Bench of the Madras High Court has said after referring to the provisions of the Government of India Act as follows:
"... The Sections in the Government of India Act corresponding to Arts. 85 and 174 had designated the functions, those which the Governor General or the Governor could as the case may be, exercise in his discretion. But that phraseology does not find a place either in Article 85 or Article 174 and there is no exception in Article 74(1) to control the meaning of Article 85 and there is no reason to construe Article 174 in a different way. That also shows that the exception in Article 163(1) is of narrow scope, as explained earlier, and does not qualify the nature and content of the power of propagation under Article 174. We find that a Division bench of the Travancore High Court in Varadaraja v. State of Travancore Cochin, AIR 1953 Trav-Co 140, took a similar view, on the scope of Article 163(1). It observed that the retention of the words "in his discretion" in Article 163(1) might be said to be a drafting anomaly, as no Governor, except the Governor of Assam acting under Schedule 6 paras (2) and 18(3), has any authority to act in his discretion. Bose, J in Biman Chandra v. Dr. H.C. Mukherjee, Governor, West Bengal, was of the view that Article 171 did not state that in making nominations, the Governor was bound to act in his discretion, and that unless a particular Article expressly so provided an obligation to act in his discretion could not be imposed upon the Governor by mere implication. We need not rest our view on this ground. with reference to Article 174 stated that the Governor's powers thereunder were without any restriction, and his powers were untrammelled, but that does not mean that the Court meant that the Governor could exercise his powers under Article 174 in his discretion. Building up of conventions as to the wisdom and propriety and the manner of exercising the power of prorogation in particular contingencies or situations is entirely different from the powers of the Governor being exercisable in his discretion. Legally, therefore, the Governor's prorogation in the instant case only on the advice of the Chief Minister is right, and its validity cannot be successfully questioned on that ground."
36. It is urged before us that Article 174(2) of the Constitution has placed proroguing the House and dissolving the Legislative Assembly together and as held by the Madras High Court, when the Governor has to prorogue the House on the advice of the Council of Ministers there is no reason why, when the Council of Ministers advises to dissolve the Legislative Assembly, the Governor could not do so. The Madras judgment, however, also pointed out that apart from and in the exercise of the generality of the executive powers of a State the Constitution makes a special mention of some of the functions of the Governor. Article 163(2) leaves for the decision of the Governor in his discretion the question whether any matter is or is not a matter as respects which the Governor is by or under the Constitution required to act in his discretion. This clause by itself does not throw light on the true scope of the exception in Article 163(1). Article 74(1) which speaks of the functions of the President contains no exception as to the discretion of the President. The Madras Court, however has noted, "under Article 164(1) the Governor shall appoint the Chief Minister and in doing this he acts by conventions and not in his discretion because in the nature of things at that stage there could be no question of exclusion of ministerial advice" and observed after taking notice of several other Articles of the Constitution, as follows:
"Out of the above list of Articles which detail the functions of the Governor, Counsel for the petitioners referred only to Arts. 164(1), 200, Cl.(c) of the proviso to Art 311(2) and Article 356 and also Arts. 163(2) and 174(2) as having a bearing in the present context. Article 163(2) does not take any one beyond the exception in Article 163. As to the appointment of the Chief Minister under Article 164(1), it is not, as pointed out before a function which the Governor is required to exercise in his discretion. He has no choice in the matter of appointment, he has to make it, and so too in his choice of the person whom he shall appoint as the Chief Minister, he has no discretion, but will be governed by the principles of Party and Parliamentary Government. He has necessarily to choose one for appointment as the Chief Minister, who shall have the support of his party and the majority in the House or who can form a Ministry which will have the support of the majority in the House. So too, as we said earlier, is his power of dismissal to be exercised in accordance with parliamentary conventions. Under Article 164(1), the power or function of the Governor is not, or does not become discretionary either because there is no Chief Minister, or Council of Ministers to advise the Governor in respect of the appointment of the Chief Minister or because the Council of Ministers, in the nature of things, cannot bind the Governor with their advice in case the Governor decides to dismiss the Council. Powers of the Governor which, in certain situations as there being no Chief Minister at all as one has to be appointed by him or where advice of Council of Ministers in the nature of things, has no place or will be inappropriate, he has to exercise in accordance with conventions established or to be established, cannot by any means be said to be powers which he exercises in his discretion in the strict Constitutional significance of the expression. The reason is that in such cases, no question of exclusion of aid and advice of Council of Ministers can arise at all either because it does not exist or because it is not available or inherently inappropriate in the particular exigencies or nature of things and circumstances as for instance, in the case of appointment of Chief Minister or a break down of the Constitution and action under Article 356. Where and when the Constitution speaks of a Governor being required to exercise his functions in his discretion, it postulates the existence of a Ministry competent to advise the circumstances and exclusion of its advice in respect of such functions. In the matter of appointment of Ministers, there is little room for discretion, and in the matter of dismissal of the Council of Ministers or a Minister the nature of the powers of the Governor springs from the tenure of office of Ministers which "is at the pleasure of the Governor, not that the power of the Governor in such a case is discretionary in the proper sense of the term. The power to assent or withhold assent to a Bill or reserve the same for the consideration of the President is a quasi legislative function, and in any case, having regard to the implications the power can hardly be regarded as one which the Governor can exercise in his discretion to the total exclusion of the ministerial advice, proviso (c) to Article 311(2) speaks of the President or the Governor's satisfaction. It may be possible to take the view that while the satisfaction is of the Governor, it is only in a formal sense, because the President even there has to act by and with the advice of the Council of Ministers. Even otherwise, satisfaction is not a power which can well be said to be exercised in the discretion of the President, or the Governor. It may be seen that while Article 74( 1) reserves no discretion to the President in the exercise of any of his functions, one cannot, nonetheless, justifiably import such a discretion into Arts. 75,86, 111 and the proviso (c) to Article 311(2) so far as the President is concerned. There is no more reason why because of the exception in Article 163(1) such a discretion for Governor's exercise of his function can or should be imported into the corresponding Arts. 164(1), 174,200 and proviso (c) to Article 311(2). That clearly shows that different yardsticks cannot be applied in interpreting parallel provisions in the Constitution and that, by the discretion in the exception in Article 163(1) all that is meant is a function of the Governor which he is required by or under the Constitution to exercise in his discretion, and not that it is imported impliedly or by construction into each and every one of the Articles relating to the Governor's functions. The functions of the Governor covered by the exception in Article 163(1) are those to be found in Scheduled Six read with Articles 224(2) and 275(1). More specifically the Governor's functions to be exercised in his discretion are only those in Rules 9(2) and 18(3) in the Sixth Schedule. These are the only two instances mentioned in the Constitution in which as we consider, the Governor is required by the Constitution to exercise his functions in his discretion. Even here, Rule 18 has been dropped recently by the Constitution amendment."
37. The Madras Court, however, rejected the argument that in piquant situations, which may arise in the matter of appointment of Chief Minister, dismissal of Ministry, proroguing and dissolving the Assembly, the Governor has necessarily to use his discretion to meet them but observed:
"... In Constitutional practice, when such peculiar or piquant situations arise for which there is no express provision made in the Constitution, conventions will have to be developed in the light of the experience here and elsewhere in the working of Parliamentary responsible Governments..."
38. Conventions indeed have developed and at least in respect of one part of Article 174 of the Constitution, Courts have taken the view mat the Governor or the President in a given situation may not act on the aid and advice of the Council of Ministers. A candid study of the subject of discretion of the President, although there is nothing like a discretion envisaged under the provisions of the Constitution for the President, and that of the Governor has been made in Samsher Singh v. State of Punjab, . The Supreme Court in this judgment has said:
"We have extensively excerpted from various sources not for adopting 'quotational jurisprudence' but to establish that the only correct construction can be that in constitutional law the 'functions' of the President and the Governor and the 'business' of Government belong to the Ministers and not to the head of State, that 'aid and advice' of ministers are terms of art which, in law mean, in the Cabinet context of our constitutional scheme, that the aider acts and the adviser decides in his own authority and not subject to the power of President to accept or reject such action or decision, except, in the case of Governors, to tike limited extent that Article 163 permits and his discretion, remote controlled by the Centre, has play."
and proceeded to say:
"Of course, there is some qualitative difference between the position of the President and the Governor. The former, under Article 74 has no discretionary powers; the latter too has none, save in the tiny strips covered by Articles 163(2), 371-A (1)(b) and (d), 371-A(2)(b) and (f), VI Schedule para 9(2) (and VI Schedule para 18(3), until omitted recently with effect from 21-1-1972). These discretionary powers exist only where expressly spelt out and even these are not left to the sweet will of the Governor but are remote controlled by the Union Ministry which is answerable to Parliament for those actions, Again, a minimal area centering round reports to be despatched under Article 356 may not, in the nature of things, be amenable to ministerial advice. The practice of. sending periodical reports to the Union Government is a preconstitutional one and it is doubtful if a Governor could or should report behind the back of his Ministers. For a centrally appointed constitutional functionary to keep a dossier on his Ministers or to report against them or to take up public stances critical of Government policy settled by the cabinet or to interfere in the administration directly - these are unconstitutional faux pas and run counter to parliamentary system. In all his constitutional 'functions' it is the Ministers who act; only in the narrow area specifically marked out for discretionary exercise by the Constitution, he is untrammelled by the State Ministers' acts and advice. Of course, a limited free-wheeling is available regarding choice of Chief Minister and dismissal of the Ministry, as in the English practice adapted to Indian conditions."
and concluded as follows:
"We declare the law of this branch of our Constitution to be that the President and 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 relate to (a) the choice of Prime Minister (Chief Minister), restricted though this choice is by the paramount consideration that he should command a majority in the House; (b) the dismissal of a Government which has lost its majority in tine House but refuses to quit office; (c) the dissolution of the House where an appeal to the country is necessitous, although in this area the Head of State should avoid getting involved in politics and must be advised by his Prime Minister (Chief Minister) who will eventually take the responsibility for the step. We do not examine in detail the constitutional proprieties in these predicaments except to utter the caution that even here the action must be compelled by the period to democracy and the appeal to the House or to the country must become blatantly obligatory. We have no doubt that de Smith's statement Constitutional and Administrative Law by S. A. de Smith-Penguin Books on foundations of Law regarding royal assent holds good for the President and Governor in India:
'Refusal of the royal assent on the ground that the monarch strongly disapproved of a bill or that it was intensely controversial would nevertheless be unconstitutional. The only circumstances in which the withholding of the royal assent might be justifiable would be if the Government itself were to advise such a course - a highly improbable contingency - or possibly if it was notorious that a bill had been passed in disregard to mandatory procedural requirements ; but since the Government in the latter situation would be of the opinion that the deviation would not affect the validity of the measure once it had been assented to, prudence would suggest the giving of assent.'
39. There are weighty considerations which invariably arise in cases where a Chief Minister who has lost his majority decides to dissolve the Legislature. The convention in this behalf has now been acknowledged. Sarkaria's report has indicated that a request for dissolution by the Chief Minister is not always binding on the Governor. The Governor may notice the reasons underlying the request for dissolution, the situation prevailing at the time the request for dissolution is made and the likely consequences flowing from dissolution. Learned Counsel for the Governor as well as Sri N. Chandrababu Naidu have drawn our attention to remarks at page 125 in the book by Colin Turpin in British Government and the Constitution, Text, Cases and Materials which run as follows:
"According to some constitutional authorities the sovereign might properly refuse a dissolution if it were clearly contrary to the public interest for a general election to be held in the circumstances prevailing at the time on condition that an alternative Government could be formed mat would be able to carry on with the working majority in the House".
and to the passage in De Smith and Colins in Constitutional and Administrative Law (New Penguin edition, page 119) which is as follows:
"Protests notwithstanding, a refusal would probably be justified and broadly acceptable if a Prime Minister, placed in a minority within his own cabinet and threatened with repudiation by his Parliamentary party, suddenly asked for a dissolution in order to forestall the proceeding of his imminent supersession. Refusal might be still more readily justifiable if the rebels were known to be prepared to form a coalition Government with an opposition party or if the country were in the throes of a serious economic crisis or widespread civil strife. A Prime Minister who has actually been repudiated by his own Parliamentary party in favour of one of his colleagues can claim no constitutional right at all to demand the dissolution. It is also possible to imagine a marginal situation in which the fact that the general election had been held only a short while previously might tip the balance against granting a request for dissolution."
40. The Calcutta High Court in Madan Murari v. Choudhuri Charan Singh, has quoted the above passage from de Smith and Colins, has taken notice of the various observations with respect to constitutional conventions in this behalf and observed as follows:
"............A clear distinction must be drawn between the existence of the prerogative to refuse a request for a dissolution and the question whether in any particular set of circumstances the Sovereign would regard it as the best interest of the nation to refuse a dissolution........."
and thereafter referred to the above view in de Smith. The Calcutta judgment has referred to Halsbury and also observed as follows:
"......In this connection the learned editors also observed that no Prime Minister in the United Kingdom has been refused a dissolution over a century, although in 1924 Asquith expressed the opinion that a Prime Minister leading a minority government was not entitled to dissolution and George V regarded himself as exercising an unfettered discretion in granting a dissolution to Mac Donald. According to the learned editors it would seem, therefore, that the Sovereign is not in all circumstances obliged to grant a Prime Minister's request for dissolution. The exercise of the royal prerogative in this respect is unlikely to be determined solely by past usages and precedents. The minimum criteria which are likely to be met before the Sovereign would consider refusing such a request from the Prime Minister are (1) belief that the existing Parliament was still vital, viable and capable of doing its job; (2) belief that a general election would be detrimental to the national economy; and (3) an alternative Prime Minister could be found who would be capable of commanding a working majority in the House of Commons and thus able to form a government for a reasonable period........."
41. In S.R. Bommai v. Union of India (5 supra) it is observed thus:
"It must further not be forgotten that in a representative democracy in a populous country like ours when Legislatures of the States are dissolved pursuant to the power used under Article 356(1) of the Constitution and the elections are proposed to be held, it involves for the public exchequer an enormous expenditure and consequently taxes the public. The machinery and the resources of the State are diverted from other useful work. The expenses of contesting elections which even, otherwise are heavy and unaffordable for common man are multiplied. Frequent elections consequent upon unjustified use of Article 356(1) has thus a potentially dangerous consequence of negating the very democratic principle by making the election-contest the exclusive preserve of the affluent. What is further, the frequent dissolution of the legislature, has the tendency to create disenchantment in the people with the process of election and thus with the democratic way of life itself. History warns us that the frustration with democracy has often in the past, led to an invitation to fascism and dictatorship of one form or the other.
42. There were significant observations by Dr. B.R. Ambedkar, Chairman of the Drafting Committee of the Constitution, while rejecting a suggestion in the Constituent Assembly that to guard against arbitrary advice by the Prime Minister for the dissolution of Lok Sabha, it might be indicated that in case the Prime Minister desired the dissolution of the House earlier than the completion of the normal term of five years as provided in the Constitution he should record the reasons therefor in writing. Dr. B.R. Ambedkar observed, "I think we could trust the President to make a correct decision between the party leaders and the House as a whole".
43. The Constitution has envisaged the life of the Assembly for a period of five years from the date appointed for its first meeting provided that the said period may, while a proclamation of emergency is in operation, be extended by Parliament by law for a period not exceeding one year at a time and not extending in any case beyond a period of six months after the proclamation has ceased to operate, unless sooner dissolved. No person, not one or two in the house or even a good number of them, can decide to dissolve the House without a valid reason before its completion of five years term. Since there is no warrant in the Constitution itself to read into Article 164(1) a condition or restriction mat the Governor must act on the advice of a Council of Ministers as provided in Article 163(1) in the matter of appointment of the Chief Minister, it is for him to make such enquiries as he thinks proper to ascertain who, among the members of the Legislature, ought to be appointed the Chief Minister and would be in a position to enjoy the confidence of the majority in the Legislative Assembly of the State. In Mahabir Prasad v. Prafulk Chandra, it is stated. "The Governor in making the appointment of the Chief Minister under Article 164(1) of the Constitution acts in his sole discretion and is guided by the convention to appoint such a person as the Chief Minister who is in a position to enjoy the confidence of the majority in the Legislative Assembly of the State". Thus, when a person who enjoyed the majority support in the Assembly at one time but appeared to lose the majority advised to dissolve the House, the Governor only respected the convention in this behalf and postponed acting on the advice to dissolve the Assembly until he explored the possibility of an alternative Government with the Chief Minister who enjoyed the support of the majority of the House. In the record of this case we have a plethora of materials on the prerogative which the President or the Governor may enjoy in a situation erf uncertainty and doubts as to the majority of the Chief Minister.
44. We are not unaware of the fact that Sri N.T. Rama Rao advised for the dissolution of the House at a time when the Governor was not sure of the fact that he had lost the majority support in the Assembly. But records reveal that Legislators in a substantial number had represented to him that they had withdrawn their support to his leadership in the House. Other political parties and their leaders were also not in agreement with the advice to dissolve the House and they had approached the Governor and told him not to dissolve the House but to give chance to another member of the House who enjoyed the support of the majority of the Legislators. The Governor's oath that he will devote himself to the service and well-being of the people could not/cannot allow him to close his eyes and ears and mechanically act upon the advice of the Chief Minister and the Council of Ministers which Chief Minister and Council had almost been declared to have lost the majority support in the House by an overwhelming majority of the members of the House, although it was yet to be fully ascertained by the Governor and the Chief Minister was yet to face the vote of confidence. We are not inclined to agree with the extreme proposition that Governor shall have no discretion but to act on the aid and advice of his executive Government headed by the Chief Minister even in a situation like the one the Government of Sri N.T. Rama Rao faced on and from 24-8-1995. Had Sri N.T. Rama Rao sought the vote of confidence himself and proved his majority in the House and then chosen to advice the dissolution, different considerations could have arisen. But even after proving the majority in the House no Chief Minister can advice dissolution of the House without any valid reason and unless it is in public interest. At every challenge to the Government by dissidents in the Legislature party or by others the House cannot be dissolved. Democracy can thrive not by the luxury of repeated elections but by commitment of the representatives of the people to serve the people, uphold the Constitution and the laws made thereunder and devote their time and might in the service of the people.
45. The constitutional conventions leave no manner of doubt that the Governor has to exercise his own discretion so far as the dissolution of the Legislative Assembly is concerned. It is significant to note that Article 174(2)(b) is a carbon copy of Article 85(2)(b) which empowers the President to dissolve the House of the people. In the words of Dr. B.R. Ambedkar, (a speech in the Constituent Assembly while speaking on draft Article 69(85), "the President of the Union will test the feelings of the House, whether the House agreed that there should be dissolution or whether the House agrees that the affairs should be carried on with some other leader without dissolution". We see great wisdom in these words and thus accept that the Governor's duty in this behalf cannot be performed unless the view of the Assembly is known. After verification of signatures the Governor gave to Sri N.T. Rama Rao opportunity to show his majority in the Legislature i.e., the Assembly of the State. Article 174(1) has vested the Governor with the power of summoning the Legislature. Only one condition has been stipulated i.e., six months shall not intervene between the sessions of the Assembly. If the Assembly is in session, it poses no difficulty how the majority shall be tested. Rules of business of the House have been brought to our notice by the learned counsel for the petitioners. They give a complete scheme for the vote of no-confidence. There is also no doubt in principle that so long as the Council of Ministers enjoys the confidence of the Assembly its advice for summoning the Assembly unless patently unconstitutional, will be binding on the Governor. It is only when such advice, if acted upon, would lead to an infringement of a constitutional provision or where the Council of Ministers has ceased to enjoy the confidence of the Assembly that the question will arise whether the Governor shall ignore the advice of Council of Ministers and ask the Chief Minister to summon the State Legislature immediately in order to demonstrate that he still has a majority support in the Assembly. Learned counsel for the petitioners have contended that the Governor cannot compel the Chief Minister to convene a session during the interval of six months or summon the Legislature on his own even against the wishes of the Chief Minister. According to them, the time of six months has been given by the clear provision of the Constitution and not by the order of the Governor. According to them, there is no morality or legal necessity to compel the Chief Minister to advice the Governor for early summoning of the Assembly. If the Chief Minister, in consultation with the Cabinet colleagues fixes a date, that date should be taken as the earliest day for the purpose of testing the strength of the Ministry on the floor of the Assembly. Any other step would amount to demonstrate the Governor's connivance for the prospects of a contender rather than the necessity of preserving his impartiality. They have laid great stress on what they have described as Mohana Kumar Mangalam test that: "the only limitation on the right of the Chief Minister and his Council of Ministers to convene the Legislative Assembly on the day they wish is Article 174(1). The fact that 10or20or even 50 MLAs met the Governor and told him that they no longer support the Government is irrelevant, in fact, constitutionally speaking, the Governor has no right to meet these gentlemen". Mohana Kumar Mangalan's is not alone in holding the above view.
46. We do not have much information about it. But we have some observations of the Administrative Reforms Commission which have been brought to our notice by learned counsel for the respondents which run as follows:
"A situation may, however, arise where the Chief Minister, who appears to have lost majority support in the Assembly, may be reluctant to summon it and at the same time unwilling to resign. In such a situation, the question arises as to whether the Governor can summon the Assembly even if the Chief Minister advises to the contrary. We suggest that the Governor should try to persuade the Chief Minister to agree to the Assembly being summoned as early as possible and to face it. If the Chief Minister still refuses to agree to advise the summoning of the Assembly, the Governor should summon the Assembly for the purpose of obtaining its verdict on the question as to whether the Council of Ministers enjoys the confidence of the Assembly.
The Commission has recommended:
"When the Governor has reason to believe that the Ministry has ceased to command a majority in the Assembly, he should come to a final conclusion on this question by summoning the Assembly and ascertaining its verdict on the support enjoyed by the Ministry. When a question arises as to whether the Council of Ministers enjoys the confidence of the majority in the Assembly, the Governor may, if he thinks fit, suo motu summon the Assembly for the purpose of obtaining its verdict on the question."
The Sarkaria Commission observation to which our attention has been drawn is as follows:
"A situation may, however, arise where the Chief Minister designedly fails to advise the summoning of the Assembly within six months of its last sitting, or advises its summoning on a date falling beyond this period. The Governor can, then summon the Assembly within the period of six months specified in Article 174(1), the neglect or wrong advice of the Chief Minister notwithstanding. Again, in our view, the Governor would be justified in summoning the Assembly when the Chief Minister is not prepared to summon it within 30 days of his taking over. Similarly, when at a later stage, on the basis of reliable evidence it appears to the Governor that the incumbent Ministry no longer enjoys the confidence of the Assembly, he should ask the Chief Minister to have the question of his majority support tested on the floor of the House within a reasonable time."
47. According to it generally a period of 30 days will be reasonable unless there is very urgent business to be transacted such as passing the budget in which case a shorter period may be indicated. In special circumstances it may even exceed the period of 30 days and go upto 60 days. Reasonable period, however, is incapable of any exact measurement. The Supreme Court while considering a case about the notice for the meeting of the Board of Directors of a company in N.I. (I) Ltd. v. Ni Newey (I) Holding Company Ltd., (1981) 51 Comp. Cases 743. has said, "the utter inadequacy of the notice to Sanders in terms of time stares in the face and needs no further argument to justify the finding that the holding of the meeting was illegal at least in so far as the holding company is concerned. It is selfevident that Sanders could not possible have attended the meeting. There is, therefore, no alternative save to hold that the decision taken in the meeting of May 2, cannot in the normal circumstances affect the legal rights of the holding company or create any legal obligations against it". According to the said judgment, inadequacy of the time in the notice which was issued for the meeting of the Board was sufficient to nullify the proceedings of the said meeting.
48. Still on the facts of this case can we say that the Governor denied a reasonable time to Sri N.T. Rama Rao for convening the Assembly for seeking vote of confidence. We have given our anxious thought and have come to the conclusion that in the prevailing situation no Governor could wait for a longer period and allow a Chief Minister whose majority in the House was in doubt to be at the helm of the Government of the State and in the fast developing situation the only reasonable course for the Governor was to see that all members in vacation were informed and they had sufficient time to assemble in the House. Had this been a case of quite a few members of the House not being able to arrive to attend the session of the House in which Sri N.T. Rama Rao sought vote of confidence the position would have been different. The House did assemble on 31-8-1995 and adjourned because it was informed that Sri N.T. Rama Rao had resigned. Governor has produced the papers and confidential informations about the indulgence of the members of the Legislative Assembly including Sri N.T. Rama Rao and his supporters and Sri N. Chandrababu Naidu and his supporters and since floor test was still to be held he was not in a position to appoint any care taker Government or order that Sri N.T. Rama Rao's Government would be a care taker Government because such an order he could make only after the floor test and Sri N.T. Rama Rao losing the majority support. The Governor had to uphold the public interest and see that on the one hand members of the Legislative Assembly got adequate notice and on the other hand the public at large was not left without a responsible Government for more than necessary time.
49. Whether all that the Governor did in the situation prevailing during the period between 24-8-1995 and 31-8-1995 are taken together or separately it is difficult to see any legal mala fide in his actions. Elaborate arguments have been advanced before us by the learned counsel for the parties on the scope of judicial review of the Governor's actions and his actions whether stricken by legal mala fides. In course of the arguments learned counsel for the petitioners have conceded that the Court shall confine considerations of issues pertaining to legal mala fides only and not any allegations of malice in fact against the Governor. One aspect of legal mala fides is whether the Governor acted as directed by the Centra! Government which is headed by a party different from the party of Sri N.I'. Rama Rao. But, no materials are placed before us for acceptance of the said allegation. There is some support to the view that when developments leading to a crisis in the State Legislature takes place, the Central Government can act and make provisions for discharge of the functions of the Governor. Article 160 of the Constitution provides as follows:
"The President may make such provision as he thinks fit for the discharge of the functions of the Governor of a State in any contingency not provided for in this Chapter." (Chapter II of Part VI of the Constitution)
50. It is the duty of the Governor to appoint the Chief Minister who enjoys the support of the majority of the Legislators of the State. In the situation that the Governor was placed he was required to ensure that only such person was the Chief Minister who enjoyed the support of the majority of the members of the House. Constitution is silent and we have noticed the conventions in this behalf how the Governor shall act when he has doubts about the support of the majority of the Legislators to his Chief Minister and in the event of floor test going against the Chief Minister, to explore the possibility of having another Chief Minister and the Council of Ministers to aid and advice him in the exercise of his executive functions. How Governor shall discharge his functions when he is not in a position to act on the aid and advice of the Council of Ministers and except constitutional conventions there is nothing to control his discretion, in our opinion, shall be covered by Article 160 of the Constitution of India. Since the Governor is required to discharge his executive functions on the aid and advice of the Council of Ministers with the Chief Minister at the Head and the above is not shown in any provision of the Constitution falling to his exclusive discretion, it will be a contingency not provided for in Article 163 of the Constitution of India and thus the President may make such provision as he thinks fit for the discharge of such functions of the Governor. The President, however, has no discretion of his own. He has to act on the aid and advice of the Council of Ministers with the Prime Minister at the Head (see Article 74 of the Constitution of India) in the exercise of his functions, except to the extent constitutional conventions permit him to act, to appoint a Prime Minister and in the situations when the Prime Minister has lost majority and he is required to appoint a new Prime Minister who has the support of the majority of the Members of the House. We need not however pursue this aspect of the case as there is no material to show that the Governor has acted as directed by the Central Government in the matter. No legal malice, thus, is inferable against the Governor on the basis of any material on the record of the case. Except simmering doubts which Sri N.T. Rama Rao has entertained as to the role played by the Governor, there is nothing to show that there was any irrelevant consideration which affected the Governor's actions. There is no material for us to hold that the Governor acted for any purpose not authorised by the Constitution and the constitutional conventions.
51. The first impression which we had, however, about the role of the Speaker is that of a person in authority who was over-zealous and was over doing in the situation that was fast developing on account of a strong dissent by Sri N. Chandrababu Naidu and his supporters against the Chief Minister Sri N.T. Rama Rao on and from 24-8-1995. We are reluctant for good reasons to investigate how the speaker got information about the developments and how he returned to Hyderabad by cutting short his tour. Allegations and counterallegations in this behalf made by the petitioners, however, cannot be accepted without going into the evidence and without recording a finding of fact. Affidavits of the parties are inadequate for any such finding and personal mala fides of the Speaker, learned counsel for the petitioners have agreed, are not to be investigated by us. Legal mala fides, however, of the role of the Speaker in the matter start from his getting involved in identification of the signatures to his getting a bulletin published before the Governor took any decision that Sri N. Chandrababu Naidu was the leader of the Teiugu Desam Legislature Party.
52. Learned counsel for the Speaker has heavily relied upon Article 212 of the Constitution which provides, (1) the validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure, (2) No officer or member or the Legislature of a State in whom powers are vested by our under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers. There could be no exception to the rule that no Court can go into those questions which are Within the special jurisdiction of the Legislature itself which has the power to conduct its own business; the validity of the proceedings inside the Legislature of a State cannot be called in question on the allegations that the procedure laid down by the law had not been strictly followed. But immunity from judicial interference is confined to matters of irregularity of procedure. There would be no immunity if the proceedings are held without jurisdiction. This aspect has been indicated in the judgment of the Supreme Court in M.S.M. Sharma v. Shree Krishna Singh, in these words:
"......It must also be observed that once it has been held that the Legislature has the jurisdiction to control the publication of its proceedings and to go into the question whether there has been any breach of its privileges, the Legislature is vested with complete jurisdiction to carry on its proceedings in accordance with its rules of business. Even though it may not have strictly complied with the requirements of the procedural law laid down for conducting its business that cannot be a ground for interference by this Court under Article 32 of the Constitution. Courts have always recognised the basic difference between the complete want of jurisdiction and improper or irregular exercise of jurisdiction.
Mere non-compliance with rules of procedure cannot be a ground for issuing a writ under Article 32 of the Constitution vide Janardhan Reddy v. State of Hyderabad, ."
53. Immunity which is referable to Article 212 and privileges which are referable to Article 194 of the Constitution are confined to procedure or the conduct of business or for maintaining order in the Legislature and the speech and the publication by or under the authority of a House of any report, paper, votes or proceedings. In a reference under Article 143 of the Constitution, the Supreme Court has given the majority opinion in these words:
"Let us first take Art 226. This Article confers very wide powers on every High Court throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warrnto, certiorari, or any of them for the enforcement of any of the rights conferred by Part III and for any other purpose. It is hardly necessary to emphasis that the language used by Article 226 in conferring power on the High Courts is very wide. Article 12 defines the "State" as including the Legislature of such State, and so, prima facie, the power conferred on the High Court under Article 226(1) can, in a proper case, be exercised even against the Legislature. If an application is made to the High Court for the issue of a writ of habeas corpus, it would not be competent to the House to raise a preliminary objection that the High Court has no jurisdiction to entertain the application because the detention is by an order of the House. Art 226(1) read by itself, does not seem to permit such a plea to be raised. Art 32 which deals with the power of this Court, puts the matter on a still higher pedestal; the right to move this Court by appropriate proceedings for the enforcement of the fundamental rights is itself a guaranteed fundamental right, and so, what we have said about Article 226(1) is still more true about Article 32(1).
Whilst we are considering this aspect of the matter, it is relevant to emphasise that the conflict which has arisen between the High Court and the House is, strictly speaking, not a conflict between the High Court and the House as such, but between the House and a citizen of this country. Keshav Singh claims certain fundamental rights which are guaranteed by the Constitution and he seeks to move the High Court under Article 226 on the ground that his fundamental rights have been contravened illegally. The High Court purporting to exercise its power under Article 226(1), seeks to examine the merits of the claims made by Keshav Singh and issues an interim order. It is this interim order which has led to the present unfortunate controversy. No doubt, by virtue of the resolution passed by the House requiring the Judges to appear before the Bar of the House to explain their conduct, the controversy has developed into one between the High Court and the House; but it is because the High Court in the discharge of its duties as such Court intervened to enquire into the allegations made by a citizen that the Judges have been compelled to enter the arena. Basically and fundamentally, the controversy is between a citizen of Uttar Pradesh and the Uttar Pradesh Legislative Assembly. That is why in dealing with the question about the extent of the powers of the House in dealing with cases of contempt committed outside its four walls, the provisions of Article 226 and Article 32 assume significance. We have already pointed out that in the case of M.S.M. Sharma (Supra), this Court has held that Art 21 applies where powers are exercised by the legislature under the latter part of Article 194(3). If a citizen moves the High Court on the ground that his fundamental right under Article 21 has been contravened, the High Court would be entitled to examine his claim, and that itself would introduce some limitation on the extent of the powers claimed by the House in the present proceedings.
There are two other articles to which reference must be made. Article 208(1) provides that a House of the Legislature of a State may make rules for regulating, subject to the provisions of this Constitution, its procedure and the conduct of its business. This provision makes it perfectly clear that if the House were to make any rules as prescribed by it, those rules would be subject to the fundamental rights guaranteed by Part III. In other words, where the House makes rules for exercising its powers under the latter part of Article 194(3), those rules must be subject to the fundamental rights of the citizens.
Similarly, Art 212(1) makes a provision which is relevant. It lays down that the validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure. Art 212(2) confers immunity on the officers and members of the Legislature in whom powers are vested by or under the Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature from being subject to the jurisdiction of any court in respect of the exercise by him of those powers. Art 212(1) seems to make it possible for a citizen to call in question in the appropriate court of law the validity of any proceedings inside the Legislative Chamber if his case is that the said proceedings suffer not from mere irregularity of procedure, but from an illegality. If the impugned procedure is illegal and unconstitutional, it would be open to be scrutinized in a court of law, though such scrutiny is prohibited if the complaint against the procedure is no more than this that the procedure was irregular. That again is another indication which may afford some assistance in construing the scope and extent of the powers conferred on the House by Art 194(3)."
54. The Supreme Court has in the said reference made it dear that the question of jurisdiction and the propriety or reasonableness of the exercise of jurisdiction are different and in the case of a superior court of record it is for the Court to consider whether any matter falls within its jurisdiction or not. Unlike a court of limited jurisdiction, the superior court is entitled to determine for itself questions about its own jurisdiction. The Supreme Court has quoted Halsbury (volume IX, page 349), "prima facie, no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the precedents that the particular matter is within the cognizance of the particular court."
55. In Kihota Hollohon v. Zachilhu, . the Supreme Court has dealt with Constitution (Fifty-second Amendment) Act on political defections (X Schedule of the Constitution) and spoken generally as to bar of jurisdiction of the Court within the meaning of Article 122 or Article212 of the Constitution, the former dealing with the proceedings in the Parliament and the latter dealing with the proceedings in a State Legislature. The arguments before the Supreme Court in Kohota Hollohon v. Zachilhu, in support of the bar of jurisdiction was based mainly upon paragraphs 6 and 7 of the X schedule of the Constitution which provide as follows:
"6.(1) If any question arises as to whether a member of a House has become subject to disqualification under this Schedule, the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final: Provided that where the question which has arisen is as to whether the Chairman or the Speaker of a House has become subject to such disqualification the question shall be referred for the decision of such member of the House as the House may elect in this behalf and his decision shall be final.
(2) All proceedings under sub-paragraph (1) of this paragraph in relation to any question as to disqualification of a member of a House under this Schedule shall be deemed to be proceedings in Parliament within the meaning of Article 122, or, as the case may be, proceedings in the Legislature of a State within the meaning of Article 212. 7. Notwithstanding anything in this Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under this Schedule."
56. It may be seen that by treating all proceedings in respect of the question whether a particular member of a House has become subject to disqualification is made a deemed proceedings under Article 212 of the Constitution and besides a further bar is introduced in paragraph 7 in respect of disqualification of a member of a House. The contention raised before the Supreme Court is stated in these words:
"In support of the objection raised to the jurisdiction of this Court and the justiciability of the Speaker's decision relating to disqualification of a member, it has been urged that sub-paragraph (1) of para 6 dearly lays down that the decision of the Chairman or, as the case may be, the Speaker of such House shall be final and sub-paragraph (2) proceeds to say that all proceedings under sub-paragraph (2) proceeds to say that all proceedings under sub-paragraph (1) shall be deemed to be proceedings in Parliament......or......... proceedings in the Legislature of a State within the meaning of Article 122 or Article 212, as the case may be. It was urged that the clear provision in para 6 that the decision of the Chairman/ Speaker on the subject of disqualification under this Schedule shall be final and the further provision that all such proceedings shall be deemed to be proceedings in Parliament......or......proceedings in the Legislature of a State, within the meaning of Article 122 or Article 212, as the case may be, clearly manifests the intention that the jurisdiction of all Courts including the Supreme Court is ousted in such matters and the decision on this question is not justiciable. Further argument is that para 7 in dear words thereafter reiterates that position by saying that notwithstanding anything in this Constitution, no Court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under this Schedule. In other words, the argument is that para 6 by itself provides for ouster of the jurisdiction of all Courts including the Supreme Court and para 7 is a remanifestation of that dear intent in case of any doubt arising from para 6 alone. On this basis it was urged that the issue raised before us is not justifiable and the Speaker or the Chairman, as the case may be, not being Tribunal' within the meaning of that expression used in Article 136 of the Constitution, their decision is not open to judicial review."
Argument against the above is noticed in the judgment in these words:
"In reply, it was urged that the finality clause in sub-paragraph (1) of para 6 does not exclude the jurisdiction of the High Courts under Articles 226 and 227 and of this Court under Article 136. Deeming provision in subparagraph (2) of para 6, it was urged, has the only effect of making it a 'proceedings in Parliament' or 'proceedings in the legislature of a state' to bring it within the ambit of clause (1) of Article 122 or 212 but not within clause (2) of these Articles. The expression 'proceedings in Parliament' and 'proceedings in the Legislature of a State' are used only in clause (1) of Articles 122 and 212 but not in clause (2) of either of these Articles, on account of which the scope of the fiction cannot be extended beyond the limitation implicit in the specific words used in the legal fiction. This being so, it was argued that immunity extended only to 'irregularity' of procedure' but no to illegality as held in Keshav Singh . In respect of para 7, the reply is that the expressi on 'no Court' therein must be similarly construed to refer only to the Courts of ordinary jurisdiction but not the extraordinary jurisdiction of the High Courts under Articles 226 and 227 and the Plenary jurisdiction of Supreme Court under Article 136. It was also argued that the Speaker/Chairman while deciding the question of disqualification of member under para 6 exercises a judidal function of the State which otherwise would be vested in the Courts and, therefore, in this capacity he acts as 'Tribunal' amenable to the jurisdiction under Articles 136, 226 and 227 of the Constitution. Sri Saibal also contended that the bar in para 7 operates only at the interim stage, like other election disputes, and not after the final decision under para 6."
The Supreme Court upon this has commented as follows:
"The finality clause in sub-paragraph (1) of para 6 which says that the decision of the Chairman, or, as the case may be, the Speaker of such House shall be final is not decisive. It is settled that such a finality clause in a statute by itself is not sufficient to exclude the jurisdiction of the High Courts under Articles 226 and 227 and the Supreme Court under Article 136 of the Constitution, the finality being for the statute alone. This is apart from the decision being vulnerable on the ground of nullity. Accordingly, sub-paragraph (1) alone is insufficient to exclude the extraordinary jurisdiction of the High Courts and the plenary jurisdiction of this Court The Legal fiction in sub-paragraph (2) of para 6 can only bring the proceedings under sub-paragraph (1) thereof within the ambit of clause (1) of Article 122 or clause (1) of Article 212, as the case may be, since the expressions used in sub-paragraph (2) of para 6 of the Tenth Schedule are 'shall be deemed to be proceedings in Parliament' or 'proceedings in the Legislature of the State', and such expressions find place both in Arts. 122 and 212 only in clause (1) and not clause (2) thereof. The ambit of the legal fiction must be confined to the limitation implicit in the words used for creating the fiction and it cannot be given an extended meaning to include therein something in addition. It is also settled that a matter falling within the ambit of clause (1) of either of these two Articles is justifiable on the ground of illegality or pervesity in spite of the immunity It enjoys to a challenge on the ground of 'irregularity of procedure'."
The Supreme Court in this judgment has also stated:
"..........In the first place, the two separate clauses in Articles 122 and 212 clearly imply that the meaning and scope of the two cannot be identical even assuming there be some overlapping area between them. What is to be seen is the direct impact of the action and its true nature'and not the further consequences flowing therefrom. It cannot be doubted in view of the clear language of sub-paragraph (2) of para 6 that it relates to clause (1) of both Articles 122 and 212 and the legal fiction cannot, therefore, be extended beyond the limits of the express words used in the fiction. In construing the fiction it is not to be extended beyond the language of the Section by which it is created and its meaning must be restricted by the plain words used. It cannot also be extended by importing another fiction. The fiction in para 6(2) is a limited one which serves its purpose by confining it to clause (1) alone of Articles 122 and 212 and, therefore, there is no occasion to enlarge its scope by reading into it words which are not there and extending it also to clause (2) of these Articles. (See Commr. of Income-tax v. Ajax Products Ltd. . - Moreover, it does appear to us that the decision relating to disqualification of a member does not relate to regulating procedure or the conduct of business of the House provided for in clause (2) of Articles 122 and 212 and taking that view would amount to extending the fiction beyond its language and importing another fiction for this purpose which is not permissible. That being so, the matter falls within the ambit of clause (1) only of Articles 122 and 212 as a result of which it would be vulnerable on the ground of illegality and pervesity and, therefore, justiciable to that extent."
57. Learned counsel for the Speaker has, however, tried to persuade us to hold that the extend and ambit of the privileges of the Legislature and the scope of Article 212 of the Constitution has generally been determined with reference to the fundamental rights in Part III of the Constitution and in Kihota Hollohon's case (supra) in particular since the Speaker was held to be an authority and the issue of disqualification was treated as an adjudicatory process and so the Court has found that jurisdiction of the Court is not barred. But, to read narrowly the judgment of the Supreme Court in Kihota Hollohon's case (supra) will mean a complete exclusion of the jurisdiction of the Court and even unauthorised actions of the Speaker or the Legislatures will fall beyond the realm of judicial review. The ma jority of the judges of the Supreme Court in Kihota Hollohon's case (supra) has not differed from the above as in the majority judgment it is stated that the fiction in paragraph 6(2) of the Tenth Schedule places it in the first clause of Article 122 and 212 as the case may be and, "the words 'proceedings in Parliament' or 'proceedings in the Legislature of a State' in paragraph 6(2) have their corresponding expression under Articles 122(1) and 212(1) respectively. This attracts immunity from mere irregularities of procedure. That apart, even after 1986 when the Tenth Schedule was introduced the Courts did not evince any intention to invoke Article 122 or 212 in the conduct of resolution of disputes as the disqualification under Article 191(1) and 102(1). The very deeming provision implies that the proceedings of disqualification are in fact not before the House but only before the Speaker as a specially designated authority. The decision under paragraph 6(2) is not the decision of the House nor is it subject to the approval by the House. The decision operates independent of the House. A deeming provision cannot by its creation transcend its own power. There is, therefore, no immunity under Articles 122 and 212 from judicial scrutiny of the decision of the Speaker or Chairman exercising power under paragraph 6(1) of the Tenth Schedule".
58. As the facts of the case show both in the matter of verification of the signatures as well as in issuing the bulletin the Speaker has acted outside of the House and thus his actions are not a part of the proceedings of the House. It is not possible to contend that the Speaker acted in the matter of verification of signatures for which power is vested inhirn by or under the Constitution or that it was a matter falling under his domain for regulating procedure or the conduct of business or for maintaining order in the Legislature. Article 194 of course speaks of the publication by or under the authority of a House of a Legislature of any report, paper, votes or proceedings but it is not possible to bring the bulletin which was allegedly issued under the authority of the speaker falling under the said expression under clause (2) of Article 194. The duty to recognise the leader of a Legislature party is created under the Rules framed by the Speaker of the Assembly in exercise of the powers conferred by paragraph 8 of the Tenth Schedule to the Constitution. 'Bulletin' is defined in Rule 2(a) of the Members of Andhra Pradesh Legislative Assembly (Disqualification on 5 Ground of Defection) Rules, 1986, to mean, "the Bulletin of the House containing information of any matter relating to or connected with the business of the House or of the Committees of other matter which in the opinion of the Speaker may be included therein". The bulletin relating to or connected with the business of the House or of the Committee, if issued, may in a given situation 10 fall under Article 194(2) of the Constitution but not a bulletin relating to any other matter which in the opinion of the Speaker may be included therein. These Rules also define 'leader' in relation to a Legislature party and in Rule 2(f) it is stated," 'Leader', in relation to a Legislature Party, means a member of the party chosen by it as its Leader, and includes any other member of the party 15 authorised by the party to act in the absence of the Leader, or discharge the functions of the leader of the party for the purpose of these Rules". Rule 3 Rule 3 of the Rules enjoins the Leader of each Legislature Party (other than a Legislature Party consisting of only one member) to furnish within 30 days after the first sitting of the House, or, where such Legislature Party is formed after the 20 first sitting, within 30 days after its formation, or, in either case within such further period as the Speaker may for sufficient cause allow, (a) a statement (in writing) containing the names of the members of such Legislature party together with other particulars regarding such members as in Form-I and the names and signatures of the members of such party who have been authorised 25 by it for communicating with the Speaker for purposes of these rules; (b) a copy of the rules and regulations (whether known as such or as constitution or by any other name) of the political party concerned; and (c) where such Legislature Party has any separate set of rules and regulations (whether known as such or as constitution or by any other name), also a copy of such rules and regulations. Sub-rule (4) of Rule 3 provides, "whenever any change takes place in the information furnished by the Leader of a Legislature Party under sub-rule (1) or by a member under sub-rule (2), he shall, within thirty days thereafter, or, within such further period as the Speaker may for sufficient cause allow, furnish 35 in writing information to the Speaker with respect to such change". Rule 4(3) provides as follows:
"A summary of information furnished by the members under this rule shall be published in the Bulletin and if any discrepancy therein is pointed out to the satisfaction of the Speaker, necessary corrigendum shall be 40 published in the Bulletin."
59. Provisions in the Tenth Schedule dearly recognise a split in a Legislature Party and thus formation of a separate Legislature party of the break-away group. What will happen when members of the Legislature party are divided but they do not acknowledge that there is a split, however, is not contemplated 5 either in the Tenth Schedule or under the Rules as such. It is, however, seen from the above that the bulletin which was issued recognising Sri N.Chandrababu Naidu as the leader of the Telugu Desarn Legislature Party was unconnected with the business of the House or of the Committees. It was a matter of a faction or a number of Legislators belonging to the Telugu Desam Legislature party showing lack of confidence in the leader of the Legislature Party i.e., Sri N.T.Rama Rao and thus it was a bulletin issued in respect of a matter which in the opinion of the Speaker was fit to be included in the bulletin. In the matters thus before us concerning the Speaker he has no immunity either under Article 194 of the Constitution or under Article 212 thereof.
60. Learned counsel for Sri N.Chandrababu Naidu as well as the Speaker have made attempts to justify the actions of the Speaker and we were in course of the arguments told that any communication coming from the Governor to the Secretary of the Legislature amounted to asking the Speaker and not the Secretary to verify the signatures of the Legislators and report to him. We have, however, not been able to persuade ourselves to think that the Secretary of the Legislature who is recognised as an officer of the Legislature is not an independent entity who could verify the signatures from the record in the secretariat of the State Legislature and the Speaker alone could do it. Article 187 of the Constitution recognises a Secretariat of the Legislature of a State and the Legislature by law regulating the recruitment and the conditions of service of persons appointed to the secretarial staff of the House and until provisions are made by the Legislature, the Governor after consultation with the Speaker to make rules regulating the recruitment and the conditions of service of persons appointed to the secretarial staff of the Assembly or the Council. What transpires from this, in our opinion, is that the Secretary to the Legislature is the Head of the Secretariat of the Legislature and not just a mere Private Secretary to the Speaker. Nothing has been shown to us from which it can be inferred that the Secretary to the Legislature could not and cannot act in his discretion and respond to the communication from the Secretary to the Governor by verifying the Signatures from the records in the Secretariat of the Legislature. We are inclined to take the view that when there is a change of the leader of the Legislature party the new leader can take recourse to Rule 3(1) of the Rules framed by the Speaker in exercise of the powers conferred by paragraph 8 of the Tenth Schedule to the Constitution and furnish to the Speaker a statement in writing containing the names of the members of the Legislature party. The names and the number of the Legislators supporting the new leader specially when the name of the constituency from which the member supporting him has been elected is required to be shown in the statement (as in Form-I) will show whether all the members of the Legislature party are supporting him or only a section or faction of them is supporting him. Although the statement furnished by Sri N.Chandrababu Naidu to the Speaker containing the names of the members of the Telugu Desam Legislature party supporting him has not been brought on the record of the case, there is no dispute before us that on verification and even finally, not all the members of the Telugu Desam Legislature party supported him. Good number of the members of the Telugu Desam Legislature Party remained with Sri N.T.Rama Rao and they continued supporting him. The two factions although never admitted that they had split, claimed that they represented the Telugu Desam Party and the Telugu Desam Legislature Party. They were divided in votes - one faction supported Sri N.Chandrababu Naidu and another faction supported Sri N.T.Rama Rao. The bulletin which the Speaker got issued declaring that Sri N.Chandrababu Naidu was the leader of the Telugu Desam Legislature Party, obviously did not/does not carry a correct information about the leader of the Telugu Desam Legislature party. Disqualification on ground of defection, as envisaged in paragraph 2 of the Tenth Schedule, subject to the provisions of paragraphs 3,4 and 5 thereof provides that a member of a House belonging to any political party shall be disqualified for being a member of the House (a) if he has voluntarily given up his membership of such political party or (b) if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf without obtaining in either House the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within 15 days from the date of such voting or abstention. It shall, however, not be a disqualification on ground of defection as provided in paragraph 3 of the Tenth Schedule where a member of a House makes a claim that he and any other members of his Legislature party constitute the group representing a faction which has arisen as a result of a split in his original political party and such group consists of not less than 1/3rd of the members of such Legislature party and (a) he shall not be disqualified under sub-paragraph (1) of paragraph 2 on the ground (i) that he has voluntarily given up his membership of his original political party; or (ii) that he has voted or abstained from voting in such House contrary to any direction issued by such party or by any person or authority authorised by it in that behalf without obtaining the prior permission of such party, person or authority and such voting or abstention has not been condoned by such party, person or authority within 15 days from the date of such voting or abstention and (b) from the time of such split, such faction shall be deemed to be the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2 and to be his original political party for the purposes of this (3) paragraph. Rules framed under paragraph 8 of the Tenth Schedule also contain provisions for references to the Speaker by a petition and Rule 6 says that a petition in relation to a member may be made in writing to the Speaker by any other member provided that a petition in relation to the Speaker shall be addressed to the Secretary. Rules also provide procedure for considering the petition, etc.
61. We have given a careful consideration to these aspects and found that in a serious situation like one which had developed on account of a division in the Telugu Desam Legislature Party, the Speaker entered into the arena to verify the signatures and to report to the Governor that as many as 153 signatures of the Legislators on the Memorandum were genuine. Of course the support of the majority of the Legislators was with Sri N.Chandrababu Naidu, and on the representation of Sri N.Chandrababu Naidu the Speaker got a bulletin published that he (Sri N.Chandrababu Naidu) was the leader of the Telugu Desam Legislature Party. The bulletin was published before the vote of confidence in the House in the Government headed by Sri N.T.Rama Rao.
62. There has been an argument before us that the Governor had sent a Memorandum which contained only 144 signatures but the Speaker identified more than the number appearing on the Memorandum. This allegation, however, is factually not correct. Records reveal that as and when representations were received by the Governor, he forwarded them to the Secretary of the Legislature and all these were available for the purposes of verification of signatures.
63. The issue as to who-Sri N.T.Rama Rao or Sri N.Chandrababu Naidu was the President or leader of the Telugu Desam Party or represented the Telugu Desam Party obviously is not one to be decided by the Speaker. It is also not possible to decide such an issue in a proceeding under Article 226 of the Constitution of India. If there are conflicting claims and any issue is created on the question who represented or represents the Telugu Desam Party advisedly a civil dispute in a competent Court is the remedy. Some jurisdiction in this behalf is in the Election Commission under the Election Symbols (Reservation and Allotment) Order, 1968. Clause 15 of this Order says, "When the Commission is satisfied on information in its possession that there are rival sections or groups of a recognised political party each of whom claims to be that party the Commission may, after taking into account all the available facts and circumstances of the case and hearing such representatives of the sections or groups and other persons as desired to be heard decide that one such rival section or group or none of such rival sections or groups is that recognised political party and the decision of the Commission shall be binding on all such rival sections or groups". In the case of a Legislature Party, however, since two factions obviously cannot be the one and the same Legislature party and there cannot be two leaders in a House of one and the same Legislature party, even though they do not admit a split, it seems obvious that ancillary to the power to decide whether there is a split or not and thus on account of the split there is no disqualification as no faction has less than 1/3rd of the original strength of the Legislature party, the Speaker may have jurisdiction to decide which of the two groups is the original Legislature party and only such group will be original Legislature party which has survived as a result of the split in the original political party.
64. Apart from the residuary or the ancillary power as discussed above, we see good reasons to agree with the view that by for the purposes of the business of the House, the Speaker shall have jurisdiction to decide who is the leader of a particular Legislature party or a group of Legislators by dint of the very office he holds. Unless such a power is conceded in him at any stage of a change in the composition of a Legislature party, it will become difficult for the House to conduct its business without there being a leader of the group of Legislators who seek recognition as a Legislature party. By this we do not mean, however, that unless the Legislators or a group of Legislators have a leader amongst them, they cannot function. The Speaker can well decide to leave them as they are, but he cannot deny to them a decision when a claim is brought before him that their faction represents a particular Legislature party.
65. Learned Counsel for the petitioners have urged that the Speaker's actions apparently were not justifiable, were supportive of Sri N.Chandrababu Naidu and intended to help him to gain the leadership of the Telugu Desam Legislature Party even before the vote of confidence. Speaker, according to the learned counsel, acted with malice in law and even if he acted innocently he cannot say that he has acted honestly. We have tried to guage the effect of Speaker's action upon the decision of the Governor and finally the events in the House. Even if we accept that there is some force in the contention of the learned counsel for the petitioners that Speaker's actions are demonstratively mala fide in law, we do not find any effect on the results that followed the verification of signatures by the Speaker or the issue of the bulletin. The main reason for our leaving this aspect of the case with the above observations only is that at no time it has been shown to us mat those who dissented Sri N.T.Rama Rao and assented Sri N.Chandrababu Naidu were less than 1/3rd in number of Legislators belonging to the felugu Desam Legislature party. They claimed that the party had elected Sri N.Chandrababu Naidu as the leader and accordingly had informed the Governor and the Speaker. They had raised a substantial claim that they represented the Telugu Desam Party and they obviously formed the majority of the Telugu Desam Legislature party and majority of the Legislators. We have good reasons, however, to hod that the bulletin issued by the Speaker is non-est as it contained a declaration which could have been made only by an enquiry by the Speaker of the collateral or jurisdictional facts whether the supporters of Sri N.Chandrababu Naidu in the Legislature represented a faction of the Legislature party, whether they represented the original political party or not but represented a Legislature party of their own, and whether Sri N.T.Rama Rao continued to be the leader of the Telugu Desam Legislature party, whether he was the leader of the original political party or not. The Speaker could not have decided the issue of the leadership of the Telugu Desam Legislature party without deciding about the status of Sri N.T.Rama Rao and his supporters and without taking notice of the fact that they were divided in votes and thus the Legislature party had a split or not. That there is no specific provisions in this behalf in the Rules framed under paragraph 8 of the Tenth Schedule or that the Tenth Schedule itself has not contemplated any such enquiry, in our opinion, is not a ground to say that without any enquiry the Speaker could/can declare someone leader of a particular Legislature party. If at all the Speaker is required to do such a thing he has to give opportunity of being heard to Sri NXRama Rao and his supporters. It is well settled that by necessary implications where a statute confers powers or duties in general terms, all powers and duties incidental and necessary to make such legislation effective are included therein. Implied powers are such as are necessary to make available and carry into effect those powers which are expressly granted or conferred and which must, therefore, be presumed to have been within the intention of the constitutional or legislative grant (see page 1334 of Black's legal dictionary, 4th edition). In Mohinder Singh v. Chief Election Comissioner, the Supreme Court has read by necessary implications such implied power in the Election Commission to decide collateral issues and power to cancel poll in the entire constituency in Article 324 of the Constitution of India read with certain regulatory and complementary provisions in the Representation of the People Act, 1950. The principles above stated are found expressed in Matagoj Dube v. H.C. Bari, and Commissioner of Commercial Taxes v. R.S. Jhaveer, .
66. Learned counsel for the petitioners have contended before us that the Governor and the Speaker in matters in which they have acted were required to at least inform Sri N.T.Rama Rao and afford opportunity to him to explain the true position that Sri N.Chandrababu Naidu and several other members of the Telugu Desam Party were expelled from the party and thus from the Telugu Desam Legislature party and that a person who was not a member of the Telugu Desam Party any longer, was not competent to claim the leadership of the Telugu Desam Legislature party and stake claim for becoming the leader of the Legislature party. They have also developed arguments ancillary to the principles of natural justice, the legitimate expectation of a person who was the leader of the House and the leader of the Legislature party.
67. We, however, see no denial of the principles of natural justice or legitimate expectations to Sri N.T.Rama Rao by the Governor. The Governor opted for verification of the signatures to have a prima facie satisfaction or preliminary satisfaction as to the genuineness of the signatures in the memorandum and when he heard from the Speaker about the support Sri N.Chandrababu Naidu had, he decided to call upon Sri N.T.Rama Rao to seek vote of confidence in the House. He gave thus dear opportunity to Sri N.T.Rama Rao to establish his majority. Had he called upon Sri N.Chandrababu Naidu after verification of signatures or head count of the members of the Legislative Assembly who were supporting him to form the Government, perhaps Sri N.T.Rama Rao could make a grievance. There is no denial of legitimate expectations in fixing the time for the vote of confidence by the Governor, in the fact situation as it obtained in those few days between 24-8-1995 and 31-8-1995. There has been nothing unreasonable in the conduct of the Governor and the Governor did nothing which went against the legitimate expectations of Sri N.T.Rama Rao.
68. Learned counsel for the'parties have cited a number of cases including judgments of the Courts of some of the common wealth countries on various principles. We have, however, seen them and finally found them not very relevant for the views which we have taken. All that has been argued before us and said against the actions of the Governor of the State and the Speaker of the State, however, appear to have become insignificant and inconsequential, except to the extent the Speaker's recognition of Sri N.Chandrababu Naidu as the leader of the Telugu Desam Legislature party has affected status of the two factions of the Telugu Desam Legislature party until one faction is found to be the real Telugu Desam Legislature party, for what Sri N.T.Rama Rao has himself done by tendering his resignation. That, however, declaration by the Speaker in favour of Sri N.Chandrababu Naidu as the leader of the Telugu Desam Legislature Party has no bearing on the formation of the Government and appointment of Sri N.Chandrababu Naidu as the Chief Minister by the Governor. All that was necessary for the Governor to see who was enjoyed the support of the majority of the Legislators. Whether he belonged to one Legislature party or another, whether he was expelled from any Legislature party or not, whether those who supported him belong to a particular Legislature party or were expelled from that Legislature party, are not at all relevant in deciding who should be appointed as the Chief Minister. The Governor is required to see who has the support of the majority of the Legislators and not the majority of a Legislature party or the majority of a political party.
69. How the political leadership has changed its course and people's representatives have almost become suspects that they are ready to be traded as horses is taken notice of by the Supreme Court in Kihota Hollohoh 's case (supra) and why thus anti-defection law is incorporated in the Tenth Schedule to the Constitution of India and given the status of the constitutional law are matters which this Court would have preferred to avoid but for the allegations in this behalf in the writ petitions i.e., whether Legislators belonging to the Telugu Desam party and supporters of Sri N.T.Rama Rao were detained by Sri N.Chandrababu Naidu and others in a hotel, whether they were promised unjustifiable benefits for supporting Sri N.Chandrababu Naidu, whether they were paid any money or not Sri N.T.Rama Rao has made such allegations, but, at the same time, expressed readiness to accept them if they returned to his fold. No constitutional authority, since by dint of appointment as the Chief Minister one becomes a constitutional authority, is expected to say that when Legislators support him they are paragons of virtue and when they support any other person they have tainted their souls. It is unidentified role of money and muscle in elections and suspected manipulations for the office of the Chief Minister or the Minister which have confused the public opinion and they i.e., the public are almost always ready to believe whenever there is any change that any such thing has happened. The Court, however, shall need more than mere allegations for acceptance of any such accusations and on the record before us there is nothing which can be taken as evidence of any such things happening. Legislators who supported Sri N.Chandrababu Naidu, it is not in dispute, stayed in a hotel. They, however, were not available to Sri N.T.Rama Rao and it seems that gave to him the idea that they were detained or that they were allured by some gratification or promise. It is necessary in public life, particularly for constitutional authorities, to accept all the rights which have been available to all other similarly situated, and as a Legislator if Sri N.T.Rama Rao could expect to be the leader of the Legislature and the Chief Minister, any other member of the Legislature could have/can have the same expectations. Dissent in political and public life is a right included in the freedom of speech and expression and it cannot be resented, but has to be respected. A democratic polity does not take an act of dissent as an expression of animosity. There is no adversary in politics and particularly amongst the representatives of the people. The Court cannot give any credence to such allegations without any proof.
70. Has Sri N.T.Rama Rao resigned ? Yes, says the Governor, the Speaker, Sri N.Chandrababu Naidu and other respondents. We have, however, before us information that on 31-8-1995 Sri N.T. Rama Rao was hospitalised. But before he was taken to hospital he had prepared the letter of resignation. He had given the same to his Secretary and also through his Secretary contacted the Governor and asked for time to meet him. It is not in dispute that the resignation letter which was prepared at his behest was handed over to the Governor while Sri N.T.Rama Rao was in the hospital and Governor on being informed by the Chief Secretary and the Secretary to the Chief Minister had called on him at the hospital. Sr. N.T. Rama Rao's case before us is that he had prepared the letter but was to consult his Cabinet colleagues before he submitted any letter of resignation; since he fell ill and was taken to the hospital he could not consult his Cabinet colleagues and since he was unconscious or semi-conscious he could not know how the cover containing the letter of resignation reached the Governor. It is contended, since he did not submit the letter of resignation consciously he never resigned; the Governor would not have accepted the resignation letter and it is suggested he hurriedly accepted the resignation because he had some motive to help Sri N.Chandrababu Naidu and see that Sri N.T.Rama Rao ceased to be the Chief Minister.
71. Had, however, the matter been rested on the affidavit of Dr. N. Jayaprakash Narayana who was the Secretary of Sri N.T.Rama Rao, one could give some more consideration to the statement of Sri N.T.Rama Rao. We would have taken Sri N.T.Rama Rao's statement seriously and examined the case summary prepared by the doctors who attended Sri N.T.Rama Rao in the hospital. Learned counsel for the 3rd respondent (Sri N.Chandrababu Naidu) has made a critical analysis of the hospital records to contend that Sri N.T.Rama Rao's condition of health was not such that he could not decide what to do and he in fact understood everything that happened preceding the visit of the Governor, at the visit of the Governor and the handing over of the cover containing the resignation letter. We are not inclined, however, to enter into any critical analysis of the case summary which doctors attending at Sri N.T.Rama Rao have prepared as our doing so would mean our entering into the varacity of the summary and the affidavit of the doctors who are not before us as a party to the proceeding and thus are not in a position to defend their action. We, for the same reason, do not propose to enter into the issue of the veracity of the affidavit of Dr N.Jayaprakash Narayan, Sri N.T. Rama Rao's Secretary who has volunteered an affidavit and spoken of his impressions from the gestures of Sri N.T.Rama Rao and claimed to have acted as he understood Sri N.T.Rama Rao wanted to hand over the letter of resignation to the Governor.
72. Our attention has been drawn to the proceed ings of the Andhra Pradesh Legislative Assembly, dated 7-9-1995. The House considered the vote of confidence in Sri N. Chandrababu Naidu. Sri N.T. Rama Rao at one stage said "I am still the leader of Telugu Desam Legislature party. So, this resolution, I must say, is not accepted by our party". He repeated this statement and latter in course of the proceeding said :
"Sri N.T.Rama Rao:-Why am I not invited to the B.A.C. meeting held on 29th? I am still the Telugu Desam Legislature Party Leader. You have not called me on 29th.
(Interruptions) Mr Speaker:- I will tell you. I will let you know.
Sri N.T. Rama Rao:-I am not invited to B. A.C. meeting. I was not invited yesterday, if you had invited me I would have told you on that day itself why I had resigned."
73. The statement that he resigned was repeated by him in these words:
"..........1 requested you for an opportunity to explain my position and the circumstances under which I had tendered my resignation. My health condition is not good. My younger brothers have requested you to kindly give me an opportunity........."
74. The petitioner in writ petition No. 19609/95 who was one of the Ministers in the Cabinet of Sri N.T.Rama Rao has in the additional affidavit in W.P.M.P.No. 25743/95 said:
"..........I filed W.P.No.. 19609/95 dated 30-8-95 requesting the Honourable High Court to direct the proceedings of the Assembly on 31-8-1995 to foe presided over by a protem speaker since the present speaker has taken a partisan attitude. Sri N.T.Rama Rao also requested His Excellency the Governor to replace the speaker by a protem speaker for the meeting dated 31-8-1995. Since no such arrangement was made, Sri N.T.Rama Rao tendered his resignation in protest against the partisan attitude of the speaker. As the Governor did not accept the conditional resignation, Sri N.T.Rama Rao sent his unconditional resignation but in fact as a protest against the patisan attitude of the Hon'ble Speaker. The resignation of Sri N.T.Rama Rao was accepted and the 4th respondent was invited to form the Government on 1-8-1995. ......."
75. In a writ petition by one V. Krishnamurthy (writ petition No. 19557/95) in which Sri N.T.Rama Rao was the 4th respondent, he has filed counter affidavit on 14-9-1995 and stated as follows:
" It is unfortunate that the learned Advocate General argued the matter in W.P.No. 19335/95 filed by R.Satyanarayana Reddy contrary to the advice given to me. Any how I have resigned as Chief Minister of Andhra Pradesh. Hence the writ petition has become infractuous. Therefore there is no need to meet the other averments in the writ petition."
76. In the representation to the President of India about which Sri N.T.Rama Rao has spoken in his affidavit filed in support of the writ petition, he has accused the Governor saying that while he was in the hospital the Governor snatched the letter of resignation from him. No one who had not known how the letter of resignation which he had prepared reached the Governor would have accepted categorically that he had resigned from the office of the Chief Minister. There is clear prevarication and there is no reason for tine Court to ignore all statements that Sri N.T.Rama Rao has himself made that he had resigned and accept the plea that the letter of resignation was passed on to the Governor but he did not know how it went into the hands of the Governor.
77. All parties appearing before us are at least one in acknowledging that Sri N.T.Rama Rao has been a popular leader and his services to the people are substantial and commendable. They appear, however, to question his style of functioning and his decisions which they say were not in the interest of the people and the State. A leader who would keep the interest of the people in consideration and find that his colleagues are finding his ways and decisions not beneficial to the people can reasonably think to resign the office of the Chief Minister and give chance to his critics to prove themselves. It is not unimaginable, thus, that Sri N.T.Rama Rao decided to resign and follow the democratic method of giving opportunity toothers. His advising dissolution of the Assembly might have been caused by his desire to seek people's mandate upon his actions. It, however, was an advice which if accepted by the Governor would have terminated the 10th Assembly prematurely, put the State exchequer at a very heavy cost and almost imposed his will upon other Legislators who were not in favour of the dissolution of the House. It is one thing to dissolve the House when the majority of the members of the House seek the dissolution. It is another that a small section of Legislators want to do so. The will of the people is not confined to the Chief Minister or to a few of the Legislators but is shown in all the representatives from all the constituencies. They have a right to decide who their leader will be. The majority of the Legislators have decided in favour of Sri N.Chandrababu Naidu and he has taken the office and his nominee Ministers have been appointed by the Governor. A responsible Government has come in existence to aid and advise the Governor.
78. Many ancillary and minor contentions have been raised on behalf of the parties. But on principles as we have taken notice of, we do not find any merit in the writ petitions for the reliefs of any directions to dissolve the Assembly or to declare that Sri N.T.Rama Rao has not resigned and that he continues to be Chief Minister. Irresistible conclusions are:
(1) The Governor has not gone beyond the constitutional conventions;
(2) Sri N.T.Rama Rao has resigned as the Chief Minister and since the Chief Minister has resigned, other Ministers who hold office at the pleasure of the Governor could not/cannot survive and thus the Council of Ministers headed by Sri N.T.Rama Rao ceased to exist on and from 31-8-1995;
(3) Since Sri N.Chandrababu Naidu has the support of majority of the members of the Legislature, whether he belongs to Telugu Desam Party or not and whether he is the leader of the Telugu Desam Legislature party or not, the Governor has committed nothing wrong in the eye of law in appointing him as the Chief Minister;
(4) The declaration, however, by the Speaker that Sri N.Chandrababu Naidu is the leader of the Telugu Desam Legislature party has not been in accordance with law as it related /relates to a change in the composition of the Telugu Desam Legislature Party, as it was, until the declaration, maintained in the Records of the Assembly with the names of the Legislators and the constituencies from which they have been elected.
(5) Course open to the Speaker to decide who the leader of the Telugu Desam Legislature Party is, is one envisaged under the Rules framed under paragraph 8 of the Tenth Schedule of the Constitution and preliminary to it, for purposes for which the Rules are specific and where they are silent, the power is inherent in the Speaker. The Speaker can also act independent of the Tenth Schedule of the Constitution to identify the factions of supporters of Sri N.Chandrababu Naidu and that of Sri N.T.Rama Rao and his supporters after giving opportunity of being heard to them.
79. In the result, the writ petitions are dismissed in all respects except that the declaration of the Speaker in the bulletin shall not be operative. The Speaker, however, can take a decision to recognise the faction of the supporters of Sri N.Chandrababu Naidu claiming that it was the real Telugu Desam Legislature Party as well as the faction of the supporters of Sri N.T.Rama Rao who are claiming to be the real Telugu Desam Legislature Party as independent groups of Legislators until decision is taken in accordance with law who represents the Telugu Desam Legislature Party or a decision on the question whether they have a split and formed separate Legislature parties.
Lingaraja Rath, J.
80. Even though originally I had thought of writing a separate judgment but after having had the benefit of going through the very erudite judgment prepared by my lord the Chief Justice, I have thought it better not to make an exercise of my own. All the questions which were raised and agitated have been met and I find myself in full agreement with the views expressed, and I would only express that situations as the one which engaged us in this case are best not to happen so that the Court is not called upon to engage itself in endeavours which are to say the least, not pleasant exercises. While expressing such, I would also reiterate and emphasise that a demand of an axiomatic/automatic dissolution of house on the demand of a Chief Minister whether he enjoys the support of the majority or not, is not a proposition which can be readily acceded to as the consequences following such action would be disastrous and no constitutional authority, decisions of the Apex Court, or conventions have been brought to out notice demanding such a course to be adopted. The considerations which have weighed in the judgment already pronounced are vital to negative such a stand.
81. I agree with the judgment.
B. Sudershan Reddy, J.
82. "Constitutional theory always has, and will emerge from the hard facts of politics rather than from the text books of Professors." - from the leading Article in Times dated 24-12-1985 quoted by J.A.G. Griffith & Michael Ryle in the book'Parliament'.
83. Jurisdiction, judicial power, the concept of State, constitutional relations between the Governor and the Chief Minister and the theory of political accountability of the constitutional Head of the State were all wrapped under the banner of Public Interest Litigation and expressed in the language of Constitutional Law in these Writ Petitions and presented for adjudication by this Court. Questions of public importance which may have a bearing upon the contemporary scenario, have come up for discussion. Issues are complex and unprecedented. - .
84. I have had the advantage of reading the erudite and elaborate judgment prepared by My Lord the Hon'ble the Chief Justice. I am in entire agreement with the conclusions reached on all issues. When occasions come Courts enter into the issues which they feel should be avoided. They have, however to do it because they are the ultimate protectors of the Constitutional values and speak not individually as Judges but as they represent the bull-work of Justice.
85. We are greatly benefitted by the arguments of the learned counsel of the parties who have not shown any reluctance in telling the Court such facts and laws which some time appear to go against the interest of their clients. We are beholden to them.
N.T. Rama Rao vs His Excellency The Governor Of ... on 22 December, 1995
Equivalent citations: 1995 (3) ALT 929
Author: P Mishra
Bench: P Mishra, L Rath, B S Reddy
ORDER P.S. Mishra, C.J.
1. A dispute which parties are not ready to call inter party dispute has come to the Court in phases, first by certain persons who thought that public interest was in jeopardy with such facts which were hardly sufficient for any definite view followed by a petition by Sri G. Buchaiah Chowdhary who was a Minister in the Government headed by Sri N.T. Rama Rao and a comprehensive petition by Sri N.T. Rama Rao. They have invoked the jurisdiction of this Court under Article 226 of the Constitution of India and Sri N.T. Rama Rao has, in particular, sought for a writ, order or direction more particularly a writ in the nature of mandamus for reliefs inter alia that the appointment of Sri N. Chandrababu Naidu (3rd respondent) as Chief Minister by the Governor of the State (1st respondent) is illegal and unconstitutional and that he continues to be the Chief Minister.
2. Sri N.T. Rama Rao has stated on oath as follows:
"......I was born in a poor agricultural family in a remote village and have known poverty. I had to earn for my education and I have completed my education with one meal a day. Due to my hard work, discipline and the God's kindness, I became an actor of repute and have acted in several hundred films in a variety of roles. My achievements in the cine-field are well known. Though I was pre-occupied with my film industry, I always did my best to help my poor countrymen especially the villagers.......
......at the age of 60,I have renounced everything and began my life as a humble servant of the people and I founded a political party (Telugu Desam Party) in the year 1982. The Telugu Desam Party has a constitution with its own ideology and objectives apart from the Rules and regulations that should govern the affairs of the party.......There was a kind of political revolution in the State of Andhra Pradesh when people from all corners of the State have voted Telugu Desam Party into power in 1983 elections with a overwhelming majority. I have fulfilled most of the election promises and gave clean and transparent administration to the people.......some bad elements who gained entry into Telugu Desam Party with ulterior motives did not like my clean policies and their implementation and have unseated me in August 1984, but ultimately they had to bow to the anger and will of the people and I was again installed as the Chief Minister.......in order to set at rest the doubts about the ideology of the Party and the Government, I approached the people by way of election and the people have again endorsed my Policies and voted my party into power with thumping majority in the year 1985. I have continued my efforts to propagate the idea of cleaning the political executive and made efforts in that direction at the National level also by bringing about a consensus among various political parties other than Indian National Congress. My efforts in that direction have fructified into a Front called National Front and the same also has formed a Government at the Centre.
......I am continuously elected as the President of the Telugu Desam Party since the formation of the Party in the year 1982.......the President of the Party shall be elected only by "Rashtra Pratinidhula Maha Sabha (State General Body)" during Mahanadu as per Article 19 read with Article 11 (b) of Constitution of Telugu Desam Party.......similarly, as per Article 8 of Constitution of Telugu Desam Legislature Party, the leader of Telugu Desam Legislature Party shall be elected after every General election and the term of the said leader shall be coextensive with the term of the Assembly. ...for convening of general body of Telugu Desam Legislature Party, a minimum of one week notice is necessary when the Assembly is not in session, as per Article 13(b) of Constitution of Telugu Desam Legislature Party.... since I was elected as Leader of Telugu Desam Legislature Party, immediately after the General elections in the year 1994, I am the Leader of Telugu Desam Legislature Party and continues to be the leader till the expiry of the term of the 10th Assembly of the State of A.P.
...the third respondent herein originally belonged to Congress Party and was defeated by a Telugu Desam Party candidate in 1983 elections. Thereafter, he approached our party and made us to believe that he would be a loyal party worker and he was admitted into our party and subsequently he was made an important functionary in the Party. ...the third respondent slowly started developing his own group with ulterior motive of becoming the leader of the Telugu Desam Party and the Chief Minister in a surreptitious manner.
...in the General elections held in December, 1994 for the A.P. Legislative Assembly, my party i.e. Telugu Desam Party has won 214 seats besides (10) Associate Members and another (34) seats by other friendly parties.... the people of the State of Andhra Pradesh have voted for the Telugu Desam Party mainly because of my charisma and because of the policies formulated by me for the benefit of the people. ... I was unanimously elected as Leader of Telugu Desam Legislature Party and assumed the office of Chief Minister on 12-12-1994....
... in order to maintain discipline in the party and to see that the M.L. As and other functionaries in my party are sincere and honest in the discharge of their duties, I have taken some steps which were not to the liking of the third respondent who wanted to give a fee hand to these people working against the interests of the people and the Party.
... behind my back, the third respondent had conspired to over-throw me and to become Chief Minister, he induced some M.L.As with money and position..., some of the supporters of the third respondent indulged in anti-party activities and were responsible for the defeat of some of the official candidates set up by the Party for the offices of Presidents of District Co-operative Central Banks and Presidents of District Co-operative Marketing Committees, which compelled the Party to take disciplinary action and suspended (8) MLAs. The third respondent had come to me seeking revocation of the suspension and disciplinary action, which was not agreed to since the same was against the interests of the party. Because of the unreasonable demand made by the third respondent, the Party also constrained to suspend the third respondent and four others from the Party on 24-8-1995. On 25-8-1995 at 6.00 AM, invoking my emergency power under the Party constitution, I expelled the third respondent and four others from the Party and the same was informed to the second respondent on 25-8-1995 in writing. I have also recommended to the first respondent to dismiss the third respondent and four others from my Cabinet and the same was accepted by the first respondent and G.O.Ms.No. 360, General Administration (Pol. C) department, dated 25-8-1995 was issued dismissing the third respondent and four others from the cabinet. Because of unhappy circumstances in the Party. I convened the meeting of the Council of Ministers and in the meeting, the Council of Ministers unanimously resolved to recommend the dissolution of the Legislative Assembly and the said decision was conveyed in writing to the first respondent on 25-8-1995 at 7.45 A.M. ... the resolution was passed by the Council of Ministers when I was enjoying the majority support of M.L.As. ... the first respondent chose to keep the matter in abeyance and allowed the third respondent to play manupulative politics in order to become Chief Minister.
... I reliably learnt that the first respondent received instructions from the Central Government not to dissolve the Assembly and to invite the third respondent to form a Government with the mala fide intention of splitting the Telugu Desam Party and weakening it in the forthcoming Parliamentary elections, as well as in the National Front, of which the Telugu Desam Party is an important constituent of which I am Chairman, which is posing a threat to the Congress Party in the forthcoming Parliamentary elections at the State and National level.... on coming to know about the supporting role being played by the first respondent, I addressed another letter dated 26-8-1995 appealing to him to know that some M.L.As of Telugu Desam Party alleged to have assembled on 24-8-1995 in the night in Hotel Viceroy and alleged to have passed three resolutions:
(i) expressing lack of confidence in my leadership;
(ii) electing third respondent as Leader of Telugu Desam Legislature Party; and
(iii) requesting the first respondent not to dissolve the Assembly.
... the first respondent referred the Memoranda to the fifth respondent, The Special Secretary, A.P. Legislative Assembly, Hyderabad., for verification of genuineness of the signatures of the Legislators appearing on the Memoranda__the fifth respondent herein who is an independent constitutional functionary has abdicated his functions at the instance of second, The Speaker, A.P. Legislative Assembly, and third respondents and allowed the second respondent to verify the signatures and send a report.
... the second respondent also has played his role in the conspiracy hatched by the third respondent. He is a supporter of third respondent. When the choice of selecting a candidate for the Speaker had come up for consideration, 3rd respondent strongly supported the candidature of the second respondent. ... though the second respondent was not asked to verify the signatures of the M.L. As alleged to have signed the Memoranda submitted to the first respondent, the second respondent rushed back to Hyderabad from his Assembly Constituency Tuni at the instance of third respondent by a Special Chartered flight in the event of 25-8-95. While the first respondent asked the fifth respondent to verify the signatures of 144 M.L.As the second respondent sent a false report stating that he counted 154 M.L.As who were produced before him claiming to be supporters of the third respondent. The second respondent admitted in his counter-affidavit in W.P. No. 19609 of 1995 that he counted the heads of M.L. As in the presence of third respondent, his co-brother Dr. Venkateswararao and others. This clearly establishes that the second respondent has acted in a manner unbecoming of the august office that he holds. The second respondent has exceeded his limits in his anxiety to help the third respondent. Further, it is a known fact that the second respondent has aspired to become an important cabinet Minister in the Ministry of the third respondent. It is reported in newspapers that he will be inducted into cabinet in Eenadu Telugu daily dt 8-10-1995 that one ministerial berth in the cabinet is being reserved in the next expansion of the cabinet. This,... is by way of reward for helping the third respondent to become Chief Minister by abusing his constitutional power. Not stopping at that, he even issued a bulletin dated 28-8-1995 informing all M.L.As that the third respondent was elected as Leader of Telugu Desam Legislature Party solely on the basis of a letter said to have been written by the third respondent.... the second respondent is aware that who is the Leader of the Legislature Party and even the first respondent in his letter dt. 27-8-1995 continued to treat me as Leader of Telugu Desam Legislature Party and as a Chief Minister.... the minimum duty of the second respondent is to give notice to me and enquire into the matter before issuing the bulletin dated 28-8-1995. According to the Constitution of Telugu Desam Legislature Party, the Leader once elected continues to be the Leader for the term of the House. The vacancy does not arise unless the Leader already elected resigns or demits office. Since I did not resign, there was no vacancy to elect another leader for Telugu Desam Legislature Party. Even assuming, the Leader already elected can be replaced, certain procedure has to be followed. According to the Constitution of Telugu Desam Legislature Party, a special meeting has to be called for with the approval of the Leader of Telugu Desam Legislature Party on a requisition notice given by at least l/3rd of the members or 50 members of Telugu Desam Legislature Party whichever is less. ... no meeting of Telugu Desam Legislature Party was held on 24-8-1995 in Viceroy Hotel. Even assuming that such a meeting was held, it is not a valid meeting at all since no requisition was made by the required number of MLL.As and since no approval was given by me as Leader of Telugu Desam Legislature Party and minimum seven days notice was not given to the members intimating the convening of the meeting. Meeting notices were not served upon me and to several other MLAs and to even some of the Ministers of my cabinet. ...
... the second respondent, being a Legislator of Telugu Desam Legislature Party from the year 1983 is fully aware of the provisions of the constitution of Telugu Desam Legislature Party. But he chose to get the bulletin issued illegally recognising the third respondent as Leader of Telugu Desam Legislature Party. It is pertinent to submit here that when there was mounting criticism for issuing the bulletin dated 28-8-1995, the second respondent stated on 7-9-1995 that he did not issue the bulletin dated 28-8-1995 informing all the Legislators that the third respondent is the leader of Telugu Desam Legislature Party and if the newspapers have reported like that, he is not responsible. This conduct of the second respondent cleanly shows his partisan attitude and the second respondent has no respect for the truth. When he sent the false report to the Hon'ble Governor, the first respondent that 154 M.L.As of Telugu Desam Legislature Party were supporting the third respondent and when he further got the bulletin dated 28-8-1995 issued stating that third respondent is the leader of Telugu Desam Legislature Party/the entire atmosphere became polluted and mislead the M.L.As to support the third respondent. ... the second respondent while holding the meeting of Business Advisory Committee on 29-8-1995 at 3.00 PM did not take my consent for holding such a meeting and further did not even invite or inform me about the holding of such an important meeting whereas he has called the third respondent as also other opposition party leaders__ ... when I came to know about the wrongful confinement of some M.L.As in Hotel Viceroy, I went there along with some of my colleagues. The M.L.As were wanting to come out of the Hotel and join me but were prevented from coming out of the Hotel by rowdies and goondas who were already employed there. The policemen on duty remained silent spectators and when I ordered them to procure the release of the M.L.As, my orders were not obeyed. When I directed the superior police officers in the presence of thousands of people to secure the release of the M.L. As, who were wanting to come out, instead of obeying my order, they have thrown a protective ring around the Hotel and did not allow them to leave the Hotel. ....
... the third respondent had wrongfully confined some M.L.As in Hotel Viceroy and the intentional inaction of the first respondent in not dissolving the Assembly and giving time to the third respondent has enabled the third respondent to indulge in horse-trading and gathering several M.LAs by inducement. ... the first respondent does not have any discretion once the Council of Ministers gives its recommendations and therefore he ought to have dissolved the Assembly forthwith. ... the Hon'ble Governor could not have taken cognisance of the Memoranda submitted by some ML As and the only Course left to the first respondent was to advise the third respondent to test the strength in Legislative Assembly as and when it is convened.... the first respondent lost sight of the fact that the third respondent was lawfully expelled from Telugu Desam Party and consequently he ceased to be the Telugu Desam Legislature Party and therefore could not have participated or call for any lawful meeting of Telugu Desam Legislature Party and could get elected as Leader of Telugu Desam Legislature Party. ... then first respondent without taking into consideration of the above said facts attributed legal status to the above said meeting and converted himself into a Legislature by seeking to conduct an enquiry whether I enjoyed the confidence of the House or not.
the first respondent with a mala fide motive to remove me as the Chief Minster and to help the third respondent to form the Government has taken the following unconstitutional steps:-
(i) he launched on an enquiry into the matter of confidence of his own Chief Minister when the only proper course was the question of confidence to be tested on the floor of the House.
(ii) He addressed a letter dt. 25-8-1995 to the fifth respondent herein seeking verification of the signatures in a manner which is not controversial and illegal and not befitting the stature and dignity of the august office of Governor of a State.
(iii) He failed to examine uncontroverted facts, glaring egregious inaccuracies which were publicly brought to his notice and included non-correspondence of the signatures, duplication of names and names which do not belong to Telugu Desam Party and without application of mind and with mala fide intent assumed that I lost the majority. In other words, the first respondent has converted the Raj Bhavan as an alternative legislature. No Chief Minister shall survive if the Governor takes recourse to such enquiry into the question of confidence when the House is not in session.".
3. Speaking further on the role of the Governor (1st respondent), he (Sri N.T. Rama Rao) has alleged that on 27-8-1995 the Governor directed him to seek vote of confidence within a short time of three days. He (Sri N.T. Rama Rao) addressed a letter on the same date to the Governor requesting him to convene the House after 15th of September, 1995 keeping in view communally sensitive time. The Governor, however, gave him only one extra day asking him to convene the House on 31-8-1995 vide his second letter dated 27-8-1995.
4. Sri N.T. Rama Rao has alleged that due to the above acts of the Governor (1 st respondent), the Speaker (2nd respondent) and Sri N. Chandrababu Naidu (3rd respondent), he went to the people to explain the "treacherous role played by the 2nd and 3rd respondents and subversion of massive mandate given to me by the people". He went, according to him, on a hectic tour of 48 hours covering the entire State and alleged, "due to the deep distress and anguish over the undemocratic and anti-people turn of events engineered by the self-seeking 2nd and 3rd respondents, coupled with my hectic tour, had a telling effect on my health and it deteriorated further". Characterising himself as a chronic diabetic and suffering from hypertension and its concomitant ailments he has stated, "frustrated with the conspiracy hatched by the first, second and third respondents, I prepared a personal letter to resign with a view to finalise it after consulting my cabinet colleagues. At 9.00 A.M. on 31-8-1995,1 suddenly felt breathlessness and fell unconscious in my office room in the presence of several party functionaries. I regained my consciousness in the evening only at about 6.00 PM. I found myself admitted in Intensive Care Unit of Mediciti Hospital. I was told that after I fell unconscious, I was carried to the Mediciti Hospital and admitted in Intensive Care Unit for treatment. I was informed that several important persons visited me in the Hospital during noon on 31-8-1995. In that unconscious state, I do not know how the so-called resignation letter went into the hands of the first respondent. It is also reported in the newspapers that the first respondent told the newsmen that he received a cover from me and that he does not know what the cover contains. Subsequently I came to know that the first respondent has accepted my so-called resignation and I was asked to continue till alternative arrangements are made.". Sri N.T. Rama Rao has further alleged that even before he received the communication from the Governor that his resignation was accepted, he (the Governor) invited Sri N. Chandrababu Naidu to form the Government and that he was informed that even before the so-called resignation was accepted by the Governor the Speaker made a statement that he had resigned. Sri N.T. Rama Rao has given the sequence of events on and after 31-8-1995 as follows:
(a) That I wrote out a letter of resignation on the morning of 31st August 1995 and fell unconscious in and around 9.00 A.M.
(b) That around 9.30 A.M. on31-8-1995, I was brought to Medidti Hospital with a high respiratory rate and was unconscious.
(c) The medical report from the Medidti Hospital clearly indicates that from the momentI was brought in i.e., 9.30 A.M. till around 6.00 P.M. I was not in a conscious state.
(d) That the first respondent in his letter dt. 31-84995 addressed to me stated that he visited me "this afternoon".
It is a matter of public knowledge that the first respondent visited me at about 1.30 P.M. This is self-evident from the report in Telugu Eenadu daily of 1st September, 1995 which clearly states that the Hon'ble Governor visited the Hospital at 1.30 PM and accepted my resignation and communicated the same to 2nd respondent by 2.30 PM by fax.
(e) Since I was medically unfit and unconscious, no question arose of my communicating the alleged resignation to anybody.
(f) The official record of the Andhra Pradesh Legislative Assembly shows that by 4.02 pm on 31-8-1995, the 2nd respondent had received communication from Raj Bhavan in which my alleged resignation was mentioned. Further, the Legislative Assembly proceedings also revealed that the first respondent not only communicated this to the second respondent but also communicated to me when I was unconscious that he had accepted the resignation and asked the Council of Ministers to continue until the new Government takes office. It is pertinent to mention that when I was unconscious, I could never have communicated my resignation nor I was in a position to receive the acceptance of the resignation at that time.
(g) Therefore, between 1.30 PM and 4.02 PM, it is established on the basis of undeniable documents on record that the Hon'ble Governor-received the resignation from an unconscious Chief Minister, immediately accepted it without any further consultation or discussion, communicated it to the second respondent by fax, as a consequence of which the Assembly called to test my majority was adjourned and the entire proceedings were brought to an end by 4.02 PM.
(h) Before 6.00 PM. the first respondent invited third respondent to form a Government. Significantly, while inviting the third respondent laid no pre-conditions that he should seek a vote of confidence."
5. Sri N.T. Rama Rao has made a specific mention of the fact that the letter of resignation was signed by him alone and if at all it was validly tendered by him to the Governor, it was not a resignation of the Council of Ministers at all. He has, on the basis of the above, come forward with a case mat the Governor and the Speaker acted in league with Sri N. Chandrababu Naidu and by their actions they have demonstrated that they acted with malice to see mat he (Sri N.T. Rama Rao) was removed from the office of the Chief Minister, his Council of Ministers was dismissed and Sri N. Chandrababu Naidu was installed as the leader of the Telugu Desam Legislature party by throwing him out even of the office of the leader of the Telugu Desam Legislature party. To complete the narration on behalf of Sri N.T. Rama Rao, it is stated that on 1-9-1995 Sri N. Chandrababu Naidu was appointed as the Chief Minister; Sri N.T. Rama Rao, however, made clear to all that he continued to be the Telugu Desam Legislature party leader as well as the leader of the Telugu Desam party; issued whip to the members belonging to the legislature party on 4-9-1995 accordingly and on 5-9-1995 wrote a letter to the Speaker stating unequivocally that he was the leader of the Telugu Desam Legislature party and that the Speaker's bulletin, dated 28-8-1995, was bad in law followed by another whip issued by him on 6-9-1995 to the Telugu Desam Legislature party members, but on 7-9-1995, when Assembly met to consider the motion of confidence tabled by Sri N. Chandrababu Naidu, the Speaker accepted him as the Leader of the Telugu Desam Legislature party; on 17-9-1995 Sri N.T. Rama Rao met the President of India and presented to him a memorandum and filed writ petition No. 23509 of 1995 questioning the action of the Governor and the Speaker.
6. The Governor (1st respondent) has returned the allegations by an affidavit stating as follows:
"(a) On 25-8-1995, at about 5.30 a.m. a letter was received from the then Chief Minister, Sri N.T. Rama Rao recommending the immediate dismissal of five members of the Council of Ministers, namely, S/Sri N. Chandra Babu Naidu, P. Ashok Gajapathi Raju, T. Devender Goud, A. Madhava Reddy and K. Vidyadhara Rao with a request that immediate orders my be issued to that effect. The said recommendation was accepted and these Ministers were dismissed and G.O.Ms.No. 360 G.A. (Poll. C) Department dated 25-8-1995 was issued to that effect.
(b) Later on at about 7.45 a.m. the petitioner called on me and handed over a letter dated 25-8-1995 requesting the Governor to dissolve the Assembly and permit his Government to continue in the interim period until the general election is held. It was stated in the letter that "owing to certain unhappy circumstances in my party. I have felt my moral duty to go back to the ultimate sovereign in a democracy, to the people." It was stated that the Council of Ministers had met at the petitioner's residence at 7a.m. on 25-8-1995 and unanimously resolved to recommend the immediate dissolution of the A.P. Legislative Assembly. Along with the letter was enclosed a resolution dated 25-8-1995 of the Council of Ministers unanimously resolving to recommend dissolution of the 10th A.P. Legislative Assembly with 'immediate effect.
(c) Thereafter at about 9.30 a.m. the third respondent and some other legislators called on me and submitted two resolutions dated 24-8-1995 purported to have been passed by the legislators of the Telugu Desam Party expressing lack of confidence in the petitioner as leader of the party and expressing confidence in the third respondent and resolving to elect him as leader of the said party. It may be mentioned that a letter dated 24-8-1995 addressed to the Governor was handed over earlier at about 720 a.m. in which the signatories to the said letter numbering 140 requested me not to dissolve the Assembly.
(d) In order to satisfy myself about the signatures of the legislators in the aforesaid documents, the same were sent to the Special Secretary, Legislature Secretariat, for certification of the genuineness of the signatures.
(e) At about 11.00 a.m. on 25-8-1995, Shri Puwada Nageswara Rao, Leader, CPI Legislature Party handed over a letter dated 25-08-1995 to the Governor which reads: "You are aware of the developments in the Telugu Desam Party which led to split in that Party. All together a new political situation has been arised. I, as the Leader of the C.P.I. Legislature Party want to inform you that our Party (CPI) is against the dissolution of the 10th A.P. Legislative Assembly from whatever quarter it is put forward".
(f) Around the same time the floor leaders of the Communist Party of India (Marxist) also came and met the Governor and a representation was given bearing the signature of Sri Koratala Satyanarayana, Secretary, which reads as follows:
"On behalf of the Communist Party of India (Marxist), we which to bring to your kind consideration the following matter.
A serious inner party crisis has erupted in Telugu Desam Party since the last two days. We came to know that the Chief Minister Sri N.T. Rama Rao is thinking of dissolving the Legislative Assembly as a solution to overcome the crises in his own party.
This proposed measure is against the interests of the people as well as the State and also against the mandate of the people. We also feel that it is highly objectionable and undemocratic. The people and the State should not be made to pay the price for the inefficient and undemocratic handling of the internal problems of the ruling Telugu Desam Party. We also learnt that the Telugu Desam Legislature party met and removed Sri N.T. Rama Rao and elected Sri N. Chandrababu Naidu as their new leader and Sri N. Chandrababu Naidu is also claiming majority for him.
We are of the opinion that the claims and counter claims should be ascertained first by the honourable Governor and then the Assembly should be convened to prove the majority. We feel that this would be the best and democratic way.
Hence the Communist Party of India (Marxist) opposes any move to dissolve the Legislative Assembly. We request your goodself not to accept any request to dissolve the Assembly. We also request you to convene the Assembly immediately in order to prove the majority by the claimants."
(g) At about 7.30 p.m. on 25-8-1995 a letter was received from Sri V. Rama Rao, State BJP President stating that 'At an emergency meeting of the office bearers of the party held at 3.00 p.m. on 25-08-1995 a decision has been taken to request the Honourable Governor not to dissolve the Assembly as recommended by the Chief Minister Sri N.T. Rama Rao, Sri Ch. Vidyasagara Rao, Leader of the BJP group in the Legislative Assembly and Sri Baddam Bal Reddy, MLA are authorised to communicate the decision of the party to the Honourable Governor in person.'
(h) A letter dated 26-8-1995 addressed to the Governor by the petitioner was received in which the petitioner inter-alia reiterated his request for dissolution of the Assembly.
(i) The contents of the petitioner's letter dated 25-8-1995 in light of the aforesaid subsequent developments evidenced leadership crisis and indicated that the request for dissolution was made to resolve the internal problems of the ruling party, and raised doubts about the petitioner enjoying the confidence of the Legislative Assembly. Consequently, by my letter dated 27-8-1995, the petitioner was requested to seek a vote of confidence on the floor of the Assembly by Wednesday the 30th August, 1995.
Having regard to the contents of the petitioner's letter dated 25-8-1995, the aforesaid facts and circumstances and considering the enormous strain and expenditure on State resources, and the tumult and turmoil to which the people of the State would be put in holding another election within nine months of the earlier election held in December, 1994, and on my assessment that the Government of the State could be carried on without sending the electorate again to the polls. I in bona fide exercise of my discretion and judgment, thought fit not to accede to the request for dissolution of the Assembly. In my judgment, it is the constitutional obligation of the Governor that every effort should be made, which would obviate the extreme consequences of the dissolution of the Assembly. The views expressed by the Members of the CPI Legislature Party, CPI(M) Legislature Party, the BJP Legislature Party and the Memoranda submitted by the Members of the Telugu Desam Legislature Party further led me to explore an alternative that would permit the continuance of the 10th Legislative Assembly in light of the recommendations of the Sarkaria Commission and the judgment of the Supreme Court in Bommai's case about ascertaining majority support and enjoyment of the confidence of the House by means of a floor test. In arriving at my decision, I acted in the best interests of the State according to my understanding of the Constitutional provisions, practice and precedents and my assessment of the prevailing situation....
The petitioner, by his letter dated 27-8-1995 addressed to the Governor, inter-alia, requested that the Assembly should be convened after 15th September, 1995. By my letter dated 27-8-1995, I agreed to the extension of the date for summoning the Assembly Sessions from 30th to 31st August, 1995. In the said letter, I expressed my keenness, "That a stable Government, reinforced by the proven majority support of the Assembly, should be in place, as soon as possible, to meet any situation effectively."
"(a) At about 07.00 a.m. on 31-08-1995 Dr. N. Jayaprakash Narayan, IAS., Secretary to Sri N.T. Rama Rao, Chief Minister telephoned the Principal Secretary to Governor, Sri A.N. Tiwari, IAS., and the ADC to Governor, Capt. R.K. Singh requesting a meeting for Sri N.T. Rama Rao with the Governor at 11.00 a.m. Dr. N. Jaya Prakash Narayan, IAS., informed the Principal Secretary to Governor that the Chief Minister wished to submit his resignation personally. The appointment was accordingly given.
(b) At about 10.15 A.M. on 31-08-1995 the Chief Secretary to Government of A.P. Dr. M.S. Rajajee, IAS., telephoned the principal Secretary to Governor Sri A.N. Tiwari, IAS., that the petitioner had taken ill and was admitted to the Mediciti Hospital. Consequently the Principal Secretary to Governor remained in touch with the Mediciti Hospital regarding the petitioner's health. The Principal Secretary to Governor was informed by Dr. P.S. Reddy, Secretary General of the Mediciti Hospital, over telephone, that the Governor could come to visit the petitioner to enquire after his health, after 1.00 pm.
(c) Atabout 1.00 p.m. on 31-08-1995 the Chief Secretary to the Government of A.P., Dr. M.S. Rajajee, IAS., and Dr. N. Jayaprakash Narayan., IAS., Secretary to Chief Minister, arrived at Raj Bhavan. The Chief Secretary informed me that the Chief Minister had requested me to go over to the Mediciti Hospital to receive the Chief Minister's resignation, as he was not in a position to travel to the Raj Bhavan for the said purpose.
(d) At about 1.20 p.m. on 31-08-1995, I, accompanied by the Chief Secretary, proceeded to the Mediciti Hospital and railed on the petitioner and enquired after his health, A bouquet was presented to the Chief Minister. The Chief Minister greeted me with folded hands. He received a cover from his Secretary, Dr. N. Jayaprakash Narayan, IAS., and gave the said cover to me.
(e) On return to the Raj Bhavan the cover was opened. After perusing the letter of the petitioner, I accepted the resignation and requested Sri N.T. Rama Rao to continue to be in office till the new Government was sworn-in. The letter of acceptance of resignation was sent by Special Messenger, which was acknowledged by Dr. N. Jayaprakash Narayan, I.A.S. Secretary to Chief Minister. A copy of the letter of resignation of Sri N.T. Rama Rao together with a letter of the Governor accepting it, was sent to the Special Secretary of the Legislature Secretariat, as the Legislative Assembly was scheduled at 4 p.m. to consider the motion of confidence to be moved by the petitioner and for which purpose the Assembly was summoned.
(f) The petitioner has not made any grievance to me about my acceptance of his resignation. I am informed that, in the affidavit dated 14-9-1995 filed by the petitioner in writ petition No. 19557 of 1995, he has admitted and accepted that he has resigned.
In the evening of 31-8-1995 a letter signed by 188 MLAs was received from P. Ashok Gajapati Raju, T. Devender Goud and K. Vidyadher Rao in which it was stated that Chandrababu Naidu was elected as leader of the Telugu Desam Legislature Party and a request was made to invite him to form the Government. Thereupon, the third respondent was invited to assist me in the formation of the Council of Ministers.
On 1-9-1995, the third respondent was sworn in as the Chief Minister along with 8 others as Cabinet Ministers and 2 others as Ministers of State.
On 7-9-1995, the A.P. Legislative Assembly met at 12.00 noon and passed a vote of confidence in the Chief Minister, namely the third respondent.
7. The Governor has categorically denied that he received instructions from the Central Government not to dissolve the Assembly and to invite Sri N. Chandrababu Naidu to form a Government.
8. The Speaker has filed a detailed affidavit in the petition (W.P.No. 19609 of 1995) by Sri G. Buchaiah Chowdhary and adopted its contents as a part of the counter-affidavit to the allegations by Sri N.T. Rama Rao against him. He has denied the allegations of any connivance with Sri N. Chandrababu Naidu, has asserted that he has played his constitutional role only and has asserted that he acted strictly in accordance with the request of the Governor in respect of verification of the signatures of the Members of the Legislative Assembly, denied the allegations that he aspired to become an important Cabinet Minister or that he rushed back to Hyderabad at the behest of Sri N. Chandrababu Naidu to help him in his efforts to dislodge Sri N.T. Kama Rao. He has also denied that he made any statement before the letter was issued by the Governor accepting the resignation of Sri N.T. Rama Rao. He has, however, accepted that bulletin dated 28-8-1995 was issued at his instance.
9. Sri N. Chandrababu Naidu's (3rd respondent) return, to the extent it is relevant, is to the following effect:
"...the petitioner seems to suggest that I am a political non-entity and only because of the patronage bestowed by the petitioner I have become what I am to-day. I deny the said allegation as incorrect. Before the petitioner entered politics of Andhra Pradesh I was actively involved in the politics of Andhra Pradesh. I was a student leader in my younger days when I did the Post Graduation at Sri Venkateswara University, Tirupathi. In 1978 I contested the Chandragiri Assembty Constituency Election for the Andhra Pradesh Legislative Assembly and won the said election with a handsome majority. In 19801 was chosen as a Member of the Cabinet and continued in that capacity from 1980 to 1982 under three former Chief Ministers.
In 1983 election to the Andhra Pradesh Legislative Assembly it is a fact that I was defeated from Chandragiri Assembly Constituency.... I was married in 1981 while I had been in politics long before my marriage. The petitioner entered political field for the first time only in 1982. After the writ petitioner formed the Government in 1983 as Chief Minister of Andhra Pradesh he requested me to join his party and assist him in running the party and advise him on various political and administrative matters. After carefully assessing the various political and personal aspects involved in the problem, I took a decision to join the Telugu Desam Party both in the interest of the State of Andhra Pradesh at large and in the interest of the writ petitioner and also my interest. Having joined , (sic) Telugu Desam Party I spared no effort to maintain the image of the party and its Leader. It is a matter of common knowledge that Sri N. Bhaskara Rao was a Member of the Petitioner's Cabinet in August, 1984, became Chief Minister for only one month by unconstitutional means. During that period this respondent was mainly responsible to expose the unconstitutional methods adopted by Shri N. Bhaskara Rao and to install the petitioner as Chief Minister once again. This respondent's efforts were appreciated not only by the petitioner himself but also by the public at large and all the political parties in the country. In recognition of the hard work and services rendered to the Telugu Desam Party I was made the General Secretary of the Party in 1985. From 1989 to 1994, i.e., after the petitioner ceased to be Chief Minister of Andhra Pradesh and again became the Chief Minister of Andhra Pradesh, I along with the senior Members of the Telugu Desam Party strained every nerve to sustain the party and prepared the party for the electoral battle of 1994. From 1985 onwards this respondent held various positions in Telugu Desam Party, such as General Secretary, Polit Bureau Member, Party Co-ordinator, etc., having regard to his vast political experience since his student days, Such vast political experience of this respondent manifested itself in the elections held in December, 1994 when Telugu Desam Party bagged as many as 214 seats in the Assembly out of 294 which was unprecedented in the history of Andhra Pradesh. Such electoral success of the petitioner, therefore, cannot be attributed only to the alleged personal charisma of the petitioner and the same is also attributable to the political experience and organisational capacity of this respondent as well as hard work of the general cadre of the party. During that period the writ petitioner was busy looking after his personal business of film making and acting in the movies.
... it is a fact that the President of the Telugu Desam Party shall be elected by Rashtra Prathinidula Mahasabha (State General Body). But the election according to the Telugu Desam Party Constitution should take place once in every two years. ... such last election for the office of the President of the Telugu Desam Party was held in May 1992 wherein the petitioner was elected the President of the Telugu Desam Party and though the election was due in the month of May, 1994, the petitioner never took any steps for the conduct of such an election. No doubt Rule 8 of the Telugu Desam Legislature Party says that the term of the Legislature shall be co-extensive with that of the term of the Assembly. Clause 9 of the said Constitution stipulates who are to be executive members of the party, which includes the Leader. The allegation that the petitioner is the elected Leader of the Telugu Desam Legislature Party and he continues to be so till the expiry of the term of the 10th Assembly of the State of Andhra Pradesh is incorrect and is hereby denied. The President who is one of the executive members of the Legislature Party can be removed by resolution as per Clause 24 of the Constitution by resolution passed by the General Body. There is no executive body to the Telugu Desam Legislature party till date.
... there has been no violation of the provisions of the Telugu Desam Party Constitution in electing me as Leader. In any event irrespective of whatever be the provision in the party's constitution the Speaker has to act on the basis of the situation obtaining from time to time in the Assembly. If at any particular point of time the majority of the Members of the Legislature belonging to a particular party manifest their intention as to who is their Leader, he and he alone will be the Leader of the Legislature party. It was in this contest that I submitted a memorandum to the Hon'ble Speaker on 26-8-1995.....
... the allegation that I had "conspired to overthrow me and to become the Chief Minister, he induced some MLAs with money and position" is totally baseless. I never induced any MLA with money or position either to overthrow the petitioner or for any other purpose. Not being able to withstand the autocratic style of functioning of the writ petitioner herein, the Members of the Legislative Assembly revolted against the Leadership of the petitioner and elected me to be their Leader.
... allegations with regard to the elections to the District Cooperative Central Banks etc., are untrue and vague, without any definite particulars and as such the same are liable to be struck off. However it is pertinent to state that the reason for such defeat was not due to the alleged antiparty activities, but the same was due to the autocratic manner in which the petitioner chose the candidates whose names were put in the sealed envelopes. This style of functioning of the petitioner created displeasure in the rank and file of the party. The allegation that on 24-8-1995, I was suspended from the party and on 25-8-1995 at 6.00 a.m. that I was expelled from the party only with 4 others can only be proved by the petitioner as till today I have not received any communication in this regard either from the petitioner or any other person acting on his behalf.....
.......it is a fact that on24-8-95,144 MLAs of the Telugu Desam Party met at Viceroy Hotel and passed resolutions referred to by the petitioner in his affidavit.... The petitioner has been elected to be the Leader of the Telugu Desam Legislature Party thrice so far, first time in 1983 January, second time in 1985 March and third time in December, 1994. Pursuant to which elections he was invited by the Governor to be the Chief Minister of Andhra Pradesh and form the Government......in all the said three occasions, the said Legislature Party meetings, wherein, he was elected to be the Leader were held outside the Legislative Assembly. 1983 January meeting was held at the Jubilee Hall in the Public Gardens of Hyderabad, in 1985 March meeting was held at Ramakrishna Cine Studios at Musheerabad belonging to the petitioner and his family members and 1994 December meeting was held at Telugu Desam party office situated at Gandipet in Ranga Reddy district. That apart in August, 1984, when the petitioner was thrown out of power by the said Shri N.Bhaskara Rao, the Member of the Legislative Assembly and the cadre of theTelugu Desam Party lead by the Petitioner and this respondent demonstrated the petitioner's strength in the then Legislative Assembly to the President of India and made an appeal to the President of India that he should be reinstated as the Chief Minister of Andhra Pradesh.....
.....I hereby deny that there was any conspiracy hatched between me and the second respondent herein as alleged or at all.... the meeting of the Telugu Desam Legislative party which was held on 24th August, 1995, in Viceroy Hotel was a proper meeting of the Telugu Desam Legislature Party with notice to all Legislative Assembly Members of the Telugu Desam party. The said meeting was attended by more than 2/3rds of the Telugu Desam Legislature Party. ... the Members of the Legislature Party belonging to the Telugu Desam Party who were outside Hyderabad sent fax messages expressing their support to this respondent which establishes that there was proper notice of the said meeting.....
... it is absolutely false to allege that I wrongfully confined some MLAs in Viceroy Hotel and indulged in horse trading and gathering several MLAs by inducements. As a matter of fact on the 24th August, 1995, evening when I met the petitioner on behalf of the Members of the Legislative Assembly with certain specific requests with reference to the conduct of the Telugu Desam party affairs the petitioner autocratically rejected all the humble request made by me in the interest of the party and in public interest. Thereafter I was compelled to go back to the Members of the Legislative Assembly about 150 of whom were waiting in the Secretariat in my Chambers and report to them the writ petitioner was not willing to consider any one of our requests. Then to discuss the future course of action, all of us took a collective decision to adjourn to Viceroy Hotel. There at the Viceroy Hotel after the dinner, after long debate over the future course of action of the Members of the Legislative Assembly who attended the said meeting, took a collective decision to pass the three resolutions referred to earlier and it was also decided by the gathering that all of them are to stay back in the Viceroy Hotel, until a decision is taken by the Governor on the resolution passed by us. The reason for such a decision is that, every one of the Members who garnered there was apprehending danger to their lives and liberty from the writ petitioner and his supporters.... in view of the fact that the Governor took considerable time to come to a definite conclusion in the matter, stay of the Members of the Legislative Assembly in Viceroy Hotel was inevitably prolonged for six days.... during the stay of the Members of the Legislative Assembly in the Viceroy Hotel, many prominent National Leaders like Mr. V.P.Singh, former Prime Minister and Mr. S.R.Bomrnai, former Chief Minister of Karnataka and other Leaders representing various political parties at the State and national level visited the Viceroy Hotel held extensive discussions with the MLAs with an intention to save the Telugu Desam Party and resolve the crisis occurring in the party. Apart from that the writ petitioner as Chief Minister of Andhra Pradesh directed the Police to verify whether any one of the MLAs was illegally confined in the Viceroy Hotel. Pursuant to such directions, senior Police Officials visited the Viceroy Hotel and interacted and verified with all Members of the Legislature Party belonging to the Telugu Desam Party. If in fact any one of the MLAs was confined in the Viceroy Hotel, illegally and against their volition, they would have complained to either of the various political leaders who visited the Viceroy Hotel and interacted with them or to the Police Officers. The Press Correspondents were also present inside the Viceroy Hotel from the night of 24th August, 1995, till the afternoon of 31st August, 1995.
... the extraordinary general body meeting of the Telugu Desam Party was held on 30th August, 1995, at Basanth Talkies, Hyderabad, wherein I was elected Leader of the Telugu Desam Party. The meeting and its proceedings were widely published about by the local as well as by the national press and also televised on the various television net works.
... In view of the extraordinary situation occurring at that time, the notice of the meeting was given to all the concerned through an advertisement in the press dated 29-8-1995."
10. Sri N.Chandrababu Naidu has filed his counter in the petition filed by Sri G.Buchaiah Chowdhary and has incorporated the contents of the said affidavit as a part of the affidavit in the petition by Sri N.T.Rama Rao.
11. In course of the hearing of the writ petitions, the Governor has made all the records with him available to the Court. Sri N.T.Rama Rao has produced a copy of the discharge summary from the hospital, the place where the letter of resignation surfaced and in support of the said summary, two doctors belonging to the hospital have filed affidavits. The Chief Secretary and the then Secretary to Sri N.T.Rama Rao-Sri (Dr.) N. Jayaprakash Narayan have also filed affidavits giving their version of the happenings leading to the resignation by Sri N.T.Rama Rao. The Chief Secretary's affidavit is only supporting the affidavit by Sri (Dr.) N. Jayaprakash Narayan who, in his affidavit, has stated as follows:
"I have been working as the Additional Secretary to the Chief Minister of A.P., Sri N.T.Rama Rao since December, 1994. On 31-8-1995 I was the Secretary to the then Chief Minister, Sri N.T.Rama Rao.
On the morning of 31-8-1995, Sri N.T. Rama Rao, the then Chief Minister of A.P. informed me of his intention to submit his resignation as the Chief Minister of A.P. to the Governor in person and instructed me to have the resignation letter drafter for his signature and further to arrange a meeting for the said purpose with the Governor of A.P. I was also instructed to arrange for a Press Meeting after the meeting of the Cheif Minister with the Governor.
As per the Chief Minister's instructions, I had the letter of resignation prepared which reads as under : "I hereby tender my resignation to the office of the Chief Minister. I thank you for the kindness and courtesies extended to me and my Council of Ministers".
The then Chief Minister after going through the letter signed the same and thereafter it was kept in a cover. I was present when the Chief Minister signed the said letter. The cover containing the letter of resignation was kept in a drawer in the office at the residence of the Chief Minister.
Pursuant to the instructions of the Chief Minister, I also coordinated with the office of the Governor and arranged for a meeting of the Chief Minister with the Governor at the Raj Bhavan at 11 a.m. I also issued instructions for the convening of Press Meet to be held after the meeting of the Chief Minister with the Governor.
A little later, Sri N.T.Rama Rao had a paraxysm of cough and severe breathlessness, and he fell down on the floor from his chair. The Chief Minister was immediately rushed to Mediciti Hospital in the Sarovar Complex, opposite to the Secretariat. I followed the Chief Minister's convoy to the Hospital. At the Hospital, the Chief Minister was treated by a team of experts in Cardiology, Pulmonology and Neurology. He was in no condition to call on the Governor. I conveyed to the Raj Bhavan the news of the Chief Minister's sickness, and cancelled the appointment. I then went to my office in the Secretariat.
Some time later, when I visited the Hospital again, I was informed by the security personnel that the then Chief Minister had enquired about the resignation letter. I obtained the letter from the Cheif Minister's office at the residence, and kept it in my custody. Afterwards I enquired of Sri N.T.Rama Rao whether he wished to send the letter to the Governor. The Chief Minister after some questioning conveyed the impression that he wished to meet the Governor and submit the letter of resignation in person. However, the physicians at the hospital categorically advised against any movement of the Chief Minister as he was not in a position to move out. When I enquired of the Chief Minister whether I should convey to the Governor his desire to meet him personally, he responded positively by nodding. Then I informed the Chief Secretary, Dr. M.S.Rajajee on telephone mat the Chief Minister wanted to submit his resignation and that on medical advice he was not in a position to go over to the Raj Bhavan. The Chief Secretary, there upon, told me that if the Governor was to come to the hospital, it was appropriate that the Chief Secretary should also go over to the Raj Bhavan to escort the Governor to the hospital.
I, therefore went to the Secretariat along with Sri Dora, IPS., Additional Director General of Police (Law and Order) to escort die Chief Secretary, Dr. M.S.Rajajee to call on the Governor.
I accompanied the Chief Secretary along with Sri Dora to Raj Bhavan. The Chief Secretary met the Governor and informed him of the intention of the Chief Minister to submit his resignation. The Chief Secretary accompanied the Governor in the official car of the Governor to the Mediciti Hospital from Raj Bhavan. Sri Dora and I also accompanied the Governor from the Raj Bhavan to the hospital in a separate car in the convey.
On arrival at the hospital, I indicated to Sri N.T.Rama Rao, the then Chief Minister, that the Governor had come to call on him. The Chief Minister responded through gestures. The Governor there upon wished the Chief Minister speedy recovery and Sri N.T.Rama Rao responded to the greetings with folded hands. The Governor presented a bouquet which was accepted by Sri N.T.Rama Rao. I, therefore, handed over the cover containing the letter of resignation to the Chief Minister, and told him it was the letter he wished to pass on to the Governor. The Chief Minister received it and handed it over to the Governor. This was around 1.30 pm on 31-8-1995. The handing over of the cover containing the letter of resignation by the Chief Minister, Sri N.T.Rama Rao to the Governor was in my presence and lam aware that the cover handed over by the Chief Minister to the Governor contained the letter of resignation signed by Sri N.T. Rama Rao, the then Chief Minister on the morning of 31-8-1995."
12. From the above what transpires thus is that Sri N.T. Rama Rao was already the President of Telugu Desam Party when general elections were held and the 10th Assembly of the State was constituted and was elected as the leader of the Telugu Desam Legislature party on 11-12-1994. The party had the strength of 214 members of the Assembly out of a total number of 294 members. On 16-8-1995 he suspended eight members of the Telugu Desam Legislature party from the party itself. On 24-8-1995 the disciplinary committee of the party, allegedly, suspended some members from the party including Sri N. Chandrababu Naidu and authorised the President of the party i.e., Sri N.T. Rama Rao to expel them from the party and the Government On 25-8-1995 in the morning at 6.00 a.m., Sri N.T. Rama Rao allegedly took steps to expel the said members from the primary membership of the party. Later that day, the Speaker of the Assembly was informed of the explusion and the consequential effects of the explusion. Sri N.T. Rama Rao wrote to the Governor recommending that the said members of the party be dismissed from the Council of Ministersand order be issued with immediate effect. The order to the said effect was issued vide G.O.Ms.No. 360 G.A. (Poll.C) Department, dated 25-8-1995. While Sri N.T. Rama Rao was proceeding as above, quite a few Legislators belonging to the Telugu Desam party assembled at Viceroy hotel in the city of Hyderabad on 24-8-1995, allegedly held meeting on 24-8-1995 as well as on 25-8-1995 and resolved expressing lack of confidence in Sri N.T. Rama Rao, electing Sri N. Chandrababu Naidu as the leader of the Telugu Desam Legislature party and urging the Governor not to accept the advice to dissolve the House On 25-8-1995 Sri N.T. Rama Rao made a recommendation to the Governor to dissolve the House allegedly after a full Cabinet meeting. On the same day, Sri N. Chandrababu Naidu met the Governor and represented that 144 Legislators supported him and apprised him of the Viceroy hotel resolutions. On 25-8-1995 itself the Secretary to the Governor wrote to the Special Secretary to the Andhra Pradesh Legislative Assembly to verify signatures of Legislators in the memorandum which Sri N. Chandrababu Naidu had presented to him. The Speaker allegedly was out on tour and returned to Hyderabad on the same day and verified the signatures in the memorandum in the presence, allegedly, of Sri N. Chandrababu Naidu. On 26-8-1995 Sri N.T. Rama Rao wrote to the Governor once again repeating his request for dissolution of the House. On 27-8-1995 the Governor communicated in writing to Sri N.T. Rama Rao that some Legislators had expressed lack of confidence in him and asked him to seek a vote of confidence by 30-8-1995. Sri N.T. Rama Rao wrote back to the Governor on the same day stating that the time schedule was unacceptably short and advised through the reply to convene the Assembly after 15-9-1995 in public interest. Governor replied on the same day, extending the date for convening the Assembly by 31-8-1995. On 28-8-1995 the Speaker's office issued a bulletin that Sri N. Chandrababu Naidu was the leader of the Telugu Desam Legislature Party and Sri N. Chandrababu Naidu, on the same day, issued whip to vote against the confidence motion. On 30-8-1995, according to Sri N. Chandrababu Naidu, a meeting of the Legislators of the Telugu Desam Party was held which affirmed that Sri N. Chandrababu Naidu was the leader. The details how Sri N.T. Rama Rao contemplated resignation as Chief Minister and prepared a letter to the said effect, he fell unconscious and had to be taken to the Medidti Hospital, he was admitted to hospital, the Governor visited the hospital and the resignation letter was handed over to him on 31-8-1995 are stated precisely in the affidavits and it is not in dispute that Sri N.T. Rama Rao was admitted to hospital at 9.30 a.m., or so on 31-8-1995 and the Governor visited him and received a cover which contained the letter of resignation, around 1.30 p.m. At 2.30 p.m., on the same day the Governor accepted the resignation of Sri N.T. Rama Rao and informed the Speaker about it. He asked Sri N.T. Rama Rao to continue until a new leader was elected by the House. The House which had assembled to consider the vote of confidence in Sri N.T. Rama Rao was adjourned in view of the resignation by him. In the evening at 6.00 p.m., the Governor invited Sri N. Chandrababu Naidu to form a Ministry and Sri N. Chandrababu Naidu assumed the office of the Chief Minister of the State on 01-09-1995. Within the time stipulated by the Governor, however, for Sri N. Chandrababu Naidu to seek vote of confidence the Assembly was convened for 07-09-1995. In the meanwhile, on 4-9-1995 Sri N.T. Rama Rao issued a whip on behalf of the Telugu Desam Legislature party and repeated the whip on 6-9-1995. On 5-9-1995 he (Sri N.T. Rama Rao) wrote a letter to the Speaker stating that he was the leader of the Telugu Desam Legislature party and that the bulletin dated 28-8-1995 wrongly described Sri N. Chandrababu Naidu as the leader of the Telugu Desam Legislature party. The House on the same date i.e., 7-9-1995, however, expressed confidence in Sri N. Chandrababu Naidu.
13. In course of the hearing, however, several contentions have been raised and they revolve around the Governor's act of asking the Secretary of the Legislative Assembly to verify signatures of Legislators, Speaker's getting himself involved in the verification of the signatures, Governor not taking notice of the advice of the Council of Ministers headed by Sri N.T. Rama Rao to dissolve the Assembly, Governor asking Sri N.T. Rama Rao to seek vote of confidence in allegedly unacceptably short time, Speaker getting a bulletin published declaring Sri N. Chandrababu Naidu as the leader of the Telugu Desam Legislature Party, the Governor not accepting the advice of Sri N.T. Rama Rao to summon the House for the majority test or the vote of confidence in his Government after 15-9-1995 and instead extending time by one day only i.e., to have the test on 31-8-1995 and the delivery of the resignation letter to the Governor by Sri N.T. Rama Rao.
14. Part VI of the Constitution of India provides the scheme of the Executive and the extent of the executive power of a State and the constitution of Legislatures in a State, duration of a State Legislatures, sessions of the State ' Legislature, prorogation and dissolution, officers of the State Legislature, etc. Executive power of the State is spelled out in Article 154. Article 155 provides for the appointment of the Governor of a State, Article 156 provides for the term of off ice of Governor, Article 157 provides for the qualification for appointment as Governor, Article 158 provides for the conditions of Governor's office and Article 159 provides for oath or affirmation by the Government which, apart from the oath to faithfully execute the office of Governor and to the best of ability to preserve, protect and defend the Constitution and the law, requires oath or affirmation to, "that I will devote myself to the service and well-being of the people.........(name of the State)". Article 163 contains the provision for a Council of Ministers with the Chief Minister at the head to aid and advise (he Governor in the exercise of his function except in so far as he is by or under the Constitution required to exercise his functions or any of them in his discretion. Clause (2) provides, "if any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not have acted in his discretion". Clause (3) provides, "the question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into any court". Significant, however, for us in the instant case, are other provisions as to Ministers as stated in Article 164 of the Constitution of India. The relevant clauses of this Article read as follows:
"(1) The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor.
Provided.....................
(2) The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State.
(3) ...................
(4) ...................
(5) ...................
15. Article 168, which speaks of constitution of Legislatures in States, provides inter alia, "(1) for every State there shall be a Legislature which shall consist of the Governor, and (a).........; (b) in other States, one House, (2) where there are two Houses of the Legislature of a State, one shall be known as the Legislative Council and the other as the Legislative Assembly, and where there is only one House, it shall be known as the Legislative Assembly". (State of Andhra Pradesh has only one House). Article 174 which provides for sessions of the State Legislature, prorogation and dissolution, reads as follows:
"(1) The Government shall from time to time summon the House or each House of the Legislature of the State to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next sessions.
(2) The Governor may from time to time -
(a) prorogue the House or either House;
(b) dissolve the Legislative Assembly."
16. Articles which speak of officers of the State Legislature start with Article 178 which provides for every Legislative Assembly to choose two members of the Assembly to be respectively Speaker and Deputy Speaker thereof and so often as the Office of Speaker or Deputy Speaker becomes vacant, to choose another member to be a Speaker or a Deputy Speaker, as the case may be. Article 194 contains provisions as respects powers, privileges, etc., of the House of Legislatures and of the members arid committees thereof an apart from the freedom of speech in the Legislature, clause (2) thereof provides inter alia, "No member of the Legislature of a State shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof and no person shall be liable in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes or proceedings." Article 212 provides as follows:
"(1) The validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure.
(2) No officer or member or the Legislature of a State in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers."
17. The President of India or the Governor or Raj Pramukh of a State are extended protection against legal action, under Article 361 of the Constitution of India in these words:
"(1) The president, or the Governor or Rajpramukh of a State, 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 the exercise and performance of those powers and duties: Provided that the conduct of the President may be brought under review by any court, tribunal or body appointed or designated by either House of Parliament for the investigation of a charge under Article 61: Provided further that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Government of India or the Government of a State.
(2) No criminal proceedings whatsoever shall be instituted or continued against the President, or the Governor of a State, in any Court during his term of office.
(3) No process for the arrest or imprisonment of the President, or the Governor of a State, shall issue from any court during his term of office.
(4) No Civil proceedings in which relief is claimed against the President, or the Governor of a State, shall be instituted during his term of office in any court in respect of any act done or purporting to be done by him in his personal capacity, whether before or after he entered upon his office as President, or as Governor of such State, until the expiration of two months next after notice in writing has been delivered to the President or the Governor as the case may be, or left at his office stating the nature of the proceedings, the cause of action therefore, the name, description and place of residence of the party by whom such proceedings are to be instituted and the relief which he claims."
18. We shall see some more provisions for comparison how the Government of India has been envisaged with the executive power of the Union vested in the President, how the Council of Ministers with the Prime Minister at the head is constituted to aid and advise the President and how the Prime Minister is appointed by the President and the other Ministers are appointed by the President on the advice of the Prime Minister, later in our judgment.
19. Before doing so, we may refer to Article 160 in Part VI of the Constitution of India as respects the discharge of the functions of the Governor in certain contingencies and Article 70 as respects discharge of President's function in other contingencies which are not specifically provided for. Article 160 of the Constitution of India provides as follows:
"The President may make such provisions as he thinks fit for the discharge of the functions of the Governor of a State in any contingency not provided for in this Chapter." (Chapter II of Part VI of the Constitution of India) Article 70 of the Constitution of India provides as follows:
"Parliament may make such provisions as it thinks fit for the discharge of the functions of the President in any contingency not provided for in this Chapter."
(Chapter I of Part V of the Constitution of India)
20. Provisions in Chapter II of Part VI of the Constitution of India (Articles 153 to 167) envisage that the executive power of the State shall be vested in the Governor and also that there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions except in so far as he is by or under the Constitution required to exercise his functions or any of them in his discretion. While other Ministers shall be appointed by the Governor on the advice of the Chief Minister, the Chief Minister shall be appointed by the Governor. Before the appointment of the Chief Minister by the Governor there is no one, obviously not a Council of Ministers, to advise the Governor to appoint the Chief Minister. Once, however, the Chief Minister is appointed the Governor has to act on his advice and appoint Ministers and once a Council of Ministers with the Chief Minister at the head is constituted the Governor has to act in the exercise of his functions with the aid and on the advice of the Council of Ministers headed by the Chief Minister.
21. A serious contention has arisen as to the discretion of the Governor in discharge of the functions as envisaged under Article 174 of the Constitution can the Governor summon the House i.e., there Assembly to meet at such time and place as he thinks fit without the aid and advice of the Council of Ministers, can the Governor dissolve the Assembly without the aid and advice of the Council of Ministers and conversely can be decline to accept the advice of the Council of Ministers headed by the Chief Minister, to dissolve the Assembly.
22. It is clear that the Chief Minister shall be appointed by the Governor and there is no question of any aid and advice of the Council of Ministers being available. The question, however, which has arisen in the instant case is, shall the Governor be free to choose any person to be appointed as the Chief Minister or will he be bound to appoint only that person as the Chief Minister who has the support of the majority of the Legislators or members of the Assembly.
23. It is not difficult to see that the expression "Minister" in other parts of the Constitution including clause (4) of Article 164 will include a Chief Minister and thus, as clause (4) of Article 164 says, a Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister"., it is conceivable that a person who is not a member of the Legislature can be a Minister and so can be a Chief Minister. In H.S. Verma v. T.N. Singh, the Supreme Court has considered a situation of a person not being a member of the Legislature of the State being appointed as the Chief Minister and held that there is nothing in the Constitution which will make illegal the appointment of Chief Minister and Ministers none of whom are members of the State Legislature. The Supreme Court has in this case, however, made a significant observation while rejecting the comments of the appellant before it upon the interpretation put by the High Court to the above effect in these words:
"The appellant says that if the interpretation put by the High Court is correct it would be possible for a Governor to appoint a Chief Minister and Ministers none of whom are Members of the State Legislature. He said that this could not have been contemplated. But if the Legislative Assembly of the State to whom this Council of Ministers would be collectively responsible endorses this unlikely Council of Ministers there is nothing in the Constitution which would make this appointment illegal."
24. The reason why only such a person can be the Chief Minister arid Ministers selected by him for appointment shall constitute the Council of. " Ministers is available in clause (2) of Article 164 which says, "The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State". In Karnataka State v. Union of India, , the Supreme Court has stated, of Course in a different context but nonetheless upon the said provision, as follows:
"Article 163 speaks of the Council of Ministers "with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution is required to exercise his functions or any of them in his discretion". Now, the Council of Ministers, theoretically appointed by the Governor, is certainly "collectively responsible to the Legislative Assembly of the State" (See: Article 164(2)). But, this "collective responsibility" does not, as has been erroneously attempted to be argued before us, abridge or truncate the power of the Central Government to appoint a Commissioner under Section 3 of the Act. In fact, this "collective responsibility" has a scope and mode of operation which are very different from those of an inquiry under Section 3 of the Act even though the same or similar matters may, sometimes, give rise to both. "Collective Responsibility" is basically political in origin and mode of operation. It may arise even in cases which may not call for any inquiry under Section 3 of the Act. And, matters investigated under Section 3 of the Act may have no bearing on any "collective responsibility".
25. The Supreme Court in this judgment has quoted with approval the observations of two writers on constitutional matters - Geoffrey Marshall and Graeme C. Moodie, which are as follows:
"If responsibility is taken in the formal constitutional sense, there would seem granted collective governmental responsibility, to be no clear distinction to be drawn between Ministers inside and those outside the Cabinet. To be responsible in this sense simply is to share the consequences of responsibility - namely to be subject to the rule that no member of the Government may properly remain a member and dissociate himself from its policies (except on occasions when the Government permits a free vote in the house)'. They add:
'The substance of the Government's collective responsibility could be defined as its duty to submit its policy to and defend its policy before the House of Commons, and to resign if defeated on an issue of confidence."
26. The Supreme Court has in this judgment also quoted from Wade and Phillips on Constitutional Law (8th edition, page 87), the following:
"Just as it became recognised that a single Minister could not retain office against the will of Parliament, so later it became dear that all Ministers must stand or fall together in Parliament, if the Government was to be carried on as a unit rather than by a number of advisers of the Sovereign acting separately. This development of collective responsibility was thus described in 1878 by Lord Salisbury:
'For all that passes in Cabinet every member of it who does not resign is absolutely and irretrievably responsible and has no right afterwards to say that he agreed in one case to a compromise, while in another he was persuaded by his colleagues......It is only on the principle that absolute responsibility is undertaken by every member of the Cabinet, who, after a decision is arrived at, remains member of it, that the joint responsibility of Ministers to Parliament can be upheld and one of the most essential principles of parliamentary responsibility established."
27. The Supreme Court has upon this commented as follows:
"The whole question of responsibility is related to the continuance of a Minister or a Government in office. A Minister's own acts or omissions or those of others in the Department in his charge, for which he may feel morally responsible or, for which others may hold him morally responsible, may compel him to resign. By an extension of this logic, applied to individual Ministers at first, emerged the principle of "collective responsibility" which we find enacted in Articles 75 (2) and 164 (2) of our Constitution. The only sanction for its enforcement is the pressure of public opinion expressed particularly in terms of withdrawal of political support by members of Parliament or the State Legislature as the case may be.
As Prof. S. A. de Smith points out in his Constitutional and Administrative Law, 1971, at pp. 170 to 179, the principle operates in a nebulous moralcum-political sphere, sometimes forcing an individual Minister to resign, as in the case of Mr. Profumo, and, on other occasions, involving the fate of the whole Ministry, depending upon the extent to which the Cabinet as a whole could be, in the circumstances of a particular case, deemed to be responsible for a particular decision or action or inaction. In England, the principle operates as a matter of convention backed by political judgment, as reflected in Parliament whereas, for us, the principle is stated in our Constitution itself, but it, nevertheless, depends upon convention and upon public opinion, particularly as reflected in Parliament or in the State Legislature, as the case may be, for its effectiveness. The principle thus exists separately and independently from the legal liability of a Minister holding an office in the Union or a State Government."
28. The above, thus, makes it clear that after the executive Government is appointed the Governor ceases to have any responsibility and the Government or the Council of Ministers takes the collective responsibility. A Government, thus cannot be in office unless it enjoys the support of the majority of the members of the Legislature.
29. We do not propose to dilate further into this as all parties before us have agreed to the proposition that the Governor is bound to appoint only such a person as the Chief Minister who has the support of the majority of the House and although a feeble attempt for sometime was made on behalf of the petitioners to suggest that even a person who does not enjoy the majority support can be the Chief Minister and constitute his Council of Ministers, has not pursued beyond telling us that there can be situations when there shall be no person who shall enjoy the support of the majority of Legislators but nonetheless the Legislators may agree not to vote him out and thus in a given situation such a person can become the Chief Minister and constitute his Council of Ministers. We have good reasons, however, in the instant case not to go into any theoretical examination of this issue as before us there is a contest as to the majority in support of the Chief Minister - whether Sri N.T. Rama Rao enjoyed the support of the majority of Legislators or Sri N. Chandrababu Naidu enjoyed the support of the majority of Legislators.
30. Learned counsel for the petitioners have advanced their arguments on the basis that the Constitution of India is founded inter alia on the principle of a broad separation of powers and the relationship between the various organs of Government is coordinated by the constitutional conventions. According to them, such conventions define the relationship between the three organs of the State viz., the Executive, the Legislature and the Judiciary and the various institutions and authorities by and under the aegis of the Constitution define the contours, extent and exercise of discretionary powers under the Constitution; are relevant for the interpretation of the Constitution and powers exercised by constitutional authorities; develop over time and evolve in the light of given fact situations and requirements; have the force of law when they are expressly recognised by law courts and given due recognition by certain institutions and collectivities such as political parties which are not mentioned by the Constitution. Conventionally, according to them, the Governor acts on the aid and advice of the Council of Ministers through the Chief Minister and such advice is generally binding on the Governor in respect of certain areas of discretion. According to learned counsel for the petitioners, since the Constitution is founded on the rule of law, there is no power under the Constitution that is wholly discretionary even though some aspects of the exercise of discretionary power may not be justiciable in courts of law. The Court in the instant case, according to them, has to see the existence and extent of the discretion of the Governor and whether the exercise of discretion is lawful and constitutional. Since the Constitution is based on the principle of accountability to the people through the Legislature, a premium attaches to Governor acting on the binding advice of the Chief Minister and since the Constitution is founded on the rule of law there is no power exercised under the Constitution which is purely discretionary in nature. Wherever the Governor exercises a discretionary power it is coupled with a duty. Out attention is drawn to a quotation from Julius v. Lord Bishop of Oxford, (1880) 5 A.C. 214 which is quoted in the judgment of the Supreme Court in Commr. of Police v. Gordhandas, . One of the objections before the Supreme Court was that the Commissioner of Police who was required to exercise his discretion to cancel the licence had merely forwarded to the respondent an order of cancellation which another authority had purported to pass. The Supreme Court held, "since the law called for the exercise of the discretion regarding cancellation specifically vested in him, he. was bound to exercise it and bring to bear on the matter his own independent and unfettered judgment and decide for himself whether to cancel the licence or reject the objections". The Supreme Court quoted with approval the passage from the judgment of the House of Lords in Julius v. Lord Bishop of Oxford (3 supra) which is as follows:
"There may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so." The Supreme Court held:
"......An enabling power of this kind conferred for public reasons and for the public benefit was coupled with a duty to exercise it when the circumstances so demanded. It was a duty which could not be shirked or shelved nor could it be evaded...."
31. The first act of the Governor which is objected to by the petitioners is his accepting the representation of Sri N. Chandrababu Naidu and asking the Secretary to the Legislature to verify the signatures. It is contended that the Constitution does not give to the Governor any authority or discretion to communicate except by a message as envisaged under Article 175 of the Constitution. The method of signature verification by the Secretary of the Legislature or by the Speaker, according to the learned counsel for the petitioners, which the Governor adopted perverted the whole exercise into one of finding support from the Legislators for Sri N. Chandrababu Naidu. The constitutional conventions which are developed in course of time permitted only a floor test and so all experts say in the reports including the unanimous report of the committee of Governors appointed by the President of India. We cannot, however, miss the fact that the Governor did ask for the test of majority on the floor of the House and accordingly called upon Sri N.T. Rama Rao to seek vote of confidence. Before, however, he decided to ask Sri N.T. Rama Rao to seek vote of confidence, he asked for the verification of the signatures. The Supreme Court in S.R. Bommai v. Union of India, has of course observed that the Constitution does not create an obligation that the political party forming the Ministry should necessarily have a majority in the Legislature. Minority Governments are not unknown. What is necessary is that that Government should enjoy the confidence of the House. Whether the Council of Ministers has lost the confidence of the House is not a matter to be determined by the Governor or for that matter nowhere else except on the floor of the House. According to the Supreme Court in the said judgment:
"... The principle of democracy underlying our Constitution necessarily means that any such question should be decided on the floor of the House. The House is the place where the democracy is in action. It is not for the Governor to determine the said question on his own or on his own. verification. This is not a matter within his subjective satisfaction. It is an objective fact capable of being established on the floor of the House."
31-A. The Supreme Court has, however, observed:
"Exceptional and rare situations may arise where because of all pervading atmosphere of violence or other extraordinary reasons, it may not be possible for the members of the Assembly to express their opinion freely."
32. The recommendation of the committee of Governors, quoted in the judgment, is as follows:
"... the test of confidence in the Ministry should normally be left to a vote in the Assembly. ... Where the Governor is satisfied by whatever process or means, that the Ministry no longer enjoys majority support, he should ask the Chief Minister to face the Assembly and prove his majority within the shortest possible time. If the Chief Minister shirks this primary responsibility and fails to comply, the Governor would be in duty bound to initiate steps to form an alternative Ministry. A Chief Minister's refusal to test his strength on the floor of the Assembly can well be interpreted as prima facie proof of his no longer enjoying the confidence of the legislature. If then, an alternative Ministry can be formed, which, in the Governor's view, is able to command a majority in the Assembly, he must dismiss the Ministry in power and instal the alternative Ministry in office. On the other hand, if no such Ministry is possible, the Governor will be left with no alternative but to make a report to the President under Article 356.... As a general proposition, it may be stated that, as far as possible, the verdict as to majority support claimed by a Chief Minister and his Council of Ministers should be left to the Legislature, and that it is only if a responsible Government cannot be maintained without doing violence to correct constitutional practice that the Governor should resort to Article 356 of the Constitution...."
33. The above passage in the judgment of the Supreme Court clarifies the situation that the Governor shall not ask his Chief Minister to take vote of confidence merely because some representation is made to him that the Chief Minister has lost majority. He shall, prima facie, satisfy himself by some means before he shall ask his Chief Minister to seek vote of confidence. One of the methods suggested in this behalf when any memorandum is submitted to the Governor is to get the signatures verified and the best source to verify the signatures is the records containing the signatures of the Legislators in the office of the Assembly. It is a different matter, however, that the Speaker got involved and how far his involvement caused any difference to the verification of signatures. We have tried to see all the aspects of the matter-whether the Governor's initial hesitation in accepting the representation of Sri N. Chandrababu Naidu and others that Sri N.T. Rama Rao had lost majority, in any manner was an act prejudicial to the interests of Sri N.T. Rama Rao and also to see whether there could be any malice in law in seeking the verification of signatures before calling upon Sri N.T. Rama Rao to seek vote of confidence. It was rather an act of a Governor who hesitated in accepting that his Chief Minister had lost the support of majority of the Legislators. He wanted to be fully satisfied about it before he decided to ask the Chief Minister to seek vote of confidence. It was almost simultaneously with the Legislators supporting Sri N. Chandrababu Naidu alleging lack of confidence in Sri N.T. Rama Rao and electing the former as their leader and adopting a resolution urging the Governor not to accept the advice to dissolve the House that Sri N.T. Rama Rao allegedly, with the approval of his Cabinet, advised the Governor to dissolve the House.
34. A Serious grievance has been made before us on behalf of the petitioners against the Governor - why he did not dissolve the House when he was bound to act with the aid and advice of the Council of Ministers.
35. Reliance is placed upon a Full bench judgment of the Madras High Court in K.A. Mathialagan v. The Governor, (F.B. The Madras High Court has taken the view that under Article 163(1) of the Constitution, discretion relates to functions which are outside the area of ministerial responsibility and where the administration is exclusively vested in the Governor aided by his own secretarial staff. The Full Bench of the Madras High Court has said after referring to the provisions of the Government of India Act as follows:
"... The Sections in the Government of India Act corresponding to Arts. 85 and 174 had designated the functions, those which the Governor General or the Governor could as the case may be, exercise in his discretion. But that phraseology does not find a place either in Article 85 or Article 174 and there is no exception in Article 74(1) to control the meaning of Article 85 and there is no reason to construe Article 174 in a different way. That also shows that the exception in Article 163(1) is of narrow scope, as explained earlier, and does not qualify the nature and content of the power of propagation under Article 174. We find that a Division bench of the Travancore High Court in Varadaraja v. State of Travancore Cochin, AIR 1953 Trav-Co 140, took a similar view, on the scope of Article 163(1). It observed that the retention of the words "in his discretion" in Article 163(1) might be said to be a drafting anomaly, as no Governor, except the Governor of Assam acting under Schedule 6 paras (2) and 18(3), has any authority to act in his discretion. Bose, J in Biman Chandra v. Dr. H.C. Mukherjee, Governor, West Bengal, was of the view that Article 171 did not state that in making nominations, the Governor was bound to act in his discretion, and that unless a particular Article expressly so provided an obligation to act in his discretion could not be imposed upon the Governor by mere implication. We need not rest our view on this ground. with reference to Article 174 stated that the Governor's powers thereunder were without any restriction, and his powers were untrammelled, but that does not mean that the Court meant that the Governor could exercise his powers under Article 174 in his discretion. Building up of conventions as to the wisdom and propriety and the manner of exercising the power of prorogation in particular contingencies or situations is entirely different from the powers of the Governor being exercisable in his discretion. Legally, therefore, the Governor's prorogation in the instant case only on the advice of the Chief Minister is right, and its validity cannot be successfully questioned on that ground."
36. It is urged before us that Article 174(2) of the Constitution has placed proroguing the House and dissolving the Legislative Assembly together and as held by the Madras High Court, when the Governor has to prorogue the House on the advice of the Council of Ministers there is no reason why, when the Council of Ministers advises to dissolve the Legislative Assembly, the Governor could not do so. The Madras judgment, however, also pointed out that apart from and in the exercise of the generality of the executive powers of a State the Constitution makes a special mention of some of the functions of the Governor. Article 163(2) leaves for the decision of the Governor in his discretion the question whether any matter is or is not a matter as respects which the Governor is by or under the Constitution required to act in his discretion. This clause by itself does not throw light on the true scope of the exception in Article 163(1). Article 74(1) which speaks of the functions of the President contains no exception as to the discretion of the President. The Madras Court, however has noted, "under Article 164(1) the Governor shall appoint the Chief Minister and in doing this he acts by conventions and not in his discretion because in the nature of things at that stage there could be no question of exclusion of ministerial advice" and observed after taking notice of several other Articles of the Constitution, as follows:
"Out of the above list of Articles which detail the functions of the Governor, Counsel for the petitioners referred only to Arts. 164(1), 200, Cl.(c) of the proviso to Art 311(2) and Article 356 and also Arts. 163(2) and 174(2) as having a bearing in the present context. Article 163(2) does not take any one beyond the exception in Article 163. As to the appointment of the Chief Minister under Article 164(1), it is not, as pointed out before a function which the Governor is required to exercise in his discretion. He has no choice in the matter of appointment, he has to make it, and so too in his choice of the person whom he shall appoint as the Chief Minister, he has no discretion, but will be governed by the principles of Party and Parliamentary Government. He has necessarily to choose one for appointment as the Chief Minister, who shall have the support of his party and the majority in the House or who can form a Ministry which will have the support of the majority in the House. So too, as we said earlier, is his power of dismissal to be exercised in accordance with parliamentary conventions. Under Article 164(1), the power or function of the Governor is not, or does not become discretionary either because there is no Chief Minister, or Council of Ministers to advise the Governor in respect of the appointment of the Chief Minister or because the Council of Ministers, in the nature of things, cannot bind the Governor with their advice in case the Governor decides to dismiss the Council. Powers of the Governor which, in certain situations as there being no Chief Minister at all as one has to be appointed by him or where advice of Council of Ministers in the nature of things, has no place or will be inappropriate, he has to exercise in accordance with conventions established or to be established, cannot by any means be said to be powers which he exercises in his discretion in the strict Constitutional significance of the expression. The reason is that in such cases, no question of exclusion of aid and advice of Council of Ministers can arise at all either because it does not exist or because it is not available or inherently inappropriate in the particular exigencies or nature of things and circumstances as for instance, in the case of appointment of Chief Minister or a break down of the Constitution and action under Article 356. Where and when the Constitution speaks of a Governor being required to exercise his functions in his discretion, it postulates the existence of a Ministry competent to advise the circumstances and exclusion of its advice in respect of such functions. In the matter of appointment of Ministers, there is little room for discretion, and in the matter of dismissal of the Council of Ministers or a Minister the nature of the powers of the Governor springs from the tenure of office of Ministers which "is at the pleasure of the Governor, not that the power of the Governor in such a case is discretionary in the proper sense of the term. The power to assent or withhold assent to a Bill or reserve the same for the consideration of the President is a quasi legislative function, and in any case, having regard to the implications the power can hardly be regarded as one which the Governor can exercise in his discretion to the total exclusion of the ministerial advice, proviso (c) to Article 311(2) speaks of the President or the Governor's satisfaction. It may be possible to take the view that while the satisfaction is of the Governor, it is only in a formal sense, because the President even there has to act by and with the advice of the Council of Ministers. Even otherwise, satisfaction is not a power which can well be said to be exercised in the discretion of the President, or the Governor. It may be seen that while Article 74( 1) reserves no discretion to the President in the exercise of any of his functions, one cannot, nonetheless, justifiably import such a discretion into Arts. 75,86, 111 and the proviso (c) to Article 311(2) so far as the President is concerned. There is no more reason why because of the exception in Article 163(1) such a discretion for Governor's exercise of his function can or should be imported into the corresponding Arts. 164(1), 174,200 and proviso (c) to Article 311(2). That clearly shows that different yardsticks cannot be applied in interpreting parallel provisions in the Constitution and that, by the discretion in the exception in Article 163(1) all that is meant is a function of the Governor which he is required by or under the Constitution to exercise in his discretion, and not that it is imported impliedly or by construction into each and every one of the Articles relating to the Governor's functions. The functions of the Governor covered by the exception in Article 163(1) are those to be found in Scheduled Six read with Articles 224(2) and 275(1). More specifically the Governor's functions to be exercised in his discretion are only those in Rules 9(2) and 18(3) in the Sixth Schedule. These are the only two instances mentioned in the Constitution in which as we consider, the Governor is required by the Constitution to exercise his functions in his discretion. Even here, Rule 18 has been dropped recently by the Constitution amendment."
37. The Madras Court, however, rejected the argument that in piquant situations, which may arise in the matter of appointment of Chief Minister, dismissal of Ministry, proroguing and dissolving the Assembly, the Governor has necessarily to use his discretion to meet them but observed:
"... In Constitutional practice, when such peculiar or piquant situations arise for which there is no express provision made in the Constitution, conventions will have to be developed in the light of the experience here and elsewhere in the working of Parliamentary responsible Governments..."
38. Conventions indeed have developed and at least in respect of one part of Article 174 of the Constitution, Courts have taken the view mat the Governor or the President in a given situation may not act on the aid and advice of the Council of Ministers. A candid study of the subject of discretion of the President, although there is nothing like a discretion envisaged under the provisions of the Constitution for the President, and that of the Governor has been made in Samsher Singh v. State of Punjab, . The Supreme Court in this judgment has said:
"We have extensively excerpted from various sources not for adopting 'quotational jurisprudence' but to establish that the only correct construction can be that in constitutional law the 'functions' of the President and the Governor and the 'business' of Government belong to the Ministers and not to the head of State, that 'aid and advice' of ministers are terms of art which, in law mean, in the Cabinet context of our constitutional scheme, that the aider acts and the adviser decides in his own authority and not subject to the power of President to accept or reject such action or decision, except, in the case of Governors, to tike limited extent that Article 163 permits and his discretion, remote controlled by the Centre, has play."
and proceeded to say:
"Of course, there is some qualitative difference between the position of the President and the Governor. The former, under Article 74 has no discretionary powers; the latter too has none, save in the tiny strips covered by Articles 163(2), 371-A (1)(b) and (d), 371-A(2)(b) and (f), VI Schedule para 9(2) (and VI Schedule para 18(3), until omitted recently with effect from 21-1-1972). These discretionary powers exist only where expressly spelt out and even these are not left to the sweet will of the Governor but are remote controlled by the Union Ministry which is answerable to Parliament for those actions, Again, a minimal area centering round reports to be despatched under Article 356 may not, in the nature of things, be amenable to ministerial advice. The practice of. sending periodical reports to the Union Government is a preconstitutional one and it is doubtful if a Governor could or should report behind the back of his Ministers. For a centrally appointed constitutional functionary to keep a dossier on his Ministers or to report against them or to take up public stances critical of Government policy settled by the cabinet or to interfere in the administration directly - these are unconstitutional faux pas and run counter to parliamentary system. In all his constitutional 'functions' it is the Ministers who act; only in the narrow area specifically marked out for discretionary exercise by the Constitution, he is untrammelled by the State Ministers' acts and advice. Of course, a limited free-wheeling is available regarding choice of Chief Minister and dismissal of the Ministry, as in the English practice adapted to Indian conditions."
and concluded as follows:
"We declare the law of this branch of our Constitution to be that the President and 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 relate to (a) the choice of Prime Minister (Chief Minister), restricted though this choice is by the paramount consideration that he should command a majority in the House; (b) the dismissal of a Government which has lost its majority in tine House but refuses to quit office; (c) the dissolution of the House where an appeal to the country is necessitous, although in this area the Head of State should avoid getting involved in politics and must be advised by his Prime Minister (Chief Minister) who will eventually take the responsibility for the step. We do not examine in detail the constitutional proprieties in these predicaments except to utter the caution that even here the action must be compelled by the period to democracy and the appeal to the House or to the country must become blatantly obligatory. We have no doubt that de Smith's statement Constitutional and Administrative Law by S. A. de Smith-Penguin Books on foundations of Law regarding royal assent holds good for the President and Governor in India:
'Refusal of the royal assent on the ground that the monarch strongly disapproved of a bill or that it was intensely controversial would nevertheless be unconstitutional. The only circumstances in which the withholding of the royal assent might be justifiable would be if the Government itself were to advise such a course - a highly improbable contingency - or possibly if it was notorious that a bill had been passed in disregard to mandatory procedural requirements ; but since the Government in the latter situation would be of the opinion that the deviation would not affect the validity of the measure once it had been assented to, prudence would suggest the giving of assent.'
39. There are weighty considerations which invariably arise in cases where a Chief Minister who has lost his majority decides to dissolve the Legislature. The convention in this behalf has now been acknowledged. Sarkaria's report has indicated that a request for dissolution by the Chief Minister is not always binding on the Governor. The Governor may notice the reasons underlying the request for dissolution, the situation prevailing at the time the request for dissolution is made and the likely consequences flowing from dissolution. Learned Counsel for the Governor as well as Sri N. Chandrababu Naidu have drawn our attention to remarks at page 125 in the book by Colin Turpin in British Government and the Constitution, Text, Cases and Materials which run as follows:
"According to some constitutional authorities the sovereign might properly refuse a dissolution if it were clearly contrary to the public interest for a general election to be held in the circumstances prevailing at the time on condition that an alternative Government could be formed mat would be able to carry on with the working majority in the House".
and to the passage in De Smith and Colins in Constitutional and Administrative Law (New Penguin edition, page 119) which is as follows:
"Protests notwithstanding, a refusal would probably be justified and broadly acceptable if a Prime Minister, placed in a minority within his own cabinet and threatened with repudiation by his Parliamentary party, suddenly asked for a dissolution in order to forestall the proceeding of his imminent supersession. Refusal might be still more readily justifiable if the rebels were known to be prepared to form a coalition Government with an opposition party or if the country were in the throes of a serious economic crisis or widespread civil strife. A Prime Minister who has actually been repudiated by his own Parliamentary party in favour of one of his colleagues can claim no constitutional right at all to demand the dissolution. It is also possible to imagine a marginal situation in which the fact that the general election had been held only a short while previously might tip the balance against granting a request for dissolution."
40. The Calcutta High Court in Madan Murari v. Choudhuri Charan Singh, has quoted the above passage from de Smith and Colins, has taken notice of the various observations with respect to constitutional conventions in this behalf and observed as follows:
"............A clear distinction must be drawn between the existence of the prerogative to refuse a request for a dissolution and the question whether in any particular set of circumstances the Sovereign would regard it as the best interest of the nation to refuse a dissolution........."
and thereafter referred to the above view in de Smith. The Calcutta judgment has referred to Halsbury and also observed as follows:
"......In this connection the learned editors also observed that no Prime Minister in the United Kingdom has been refused a dissolution over a century, although in 1924 Asquith expressed the opinion that a Prime Minister leading a minority government was not entitled to dissolution and George V regarded himself as exercising an unfettered discretion in granting a dissolution to Mac Donald. According to the learned editors it would seem, therefore, that the Sovereign is not in all circumstances obliged to grant a Prime Minister's request for dissolution. The exercise of the royal prerogative in this respect is unlikely to be determined solely by past usages and precedents. The minimum criteria which are likely to be met before the Sovereign would consider refusing such a request from the Prime Minister are (1) belief that the existing Parliament was still vital, viable and capable of doing its job; (2) belief that a general election would be detrimental to the national economy; and (3) an alternative Prime Minister could be found who would be capable of commanding a working majority in the House of Commons and thus able to form a government for a reasonable period........."
41. In S.R. Bommai v. Union of India (5 supra) it is observed thus:
"It must further not be forgotten that in a representative democracy in a populous country like ours when Legislatures of the States are dissolved pursuant to the power used under Article 356(1) of the Constitution and the elections are proposed to be held, it involves for the public exchequer an enormous expenditure and consequently taxes the public. The machinery and the resources of the State are diverted from other useful work. The expenses of contesting elections which even, otherwise are heavy and unaffordable for common man are multiplied. Frequent elections consequent upon unjustified use of Article 356(1) has thus a potentially dangerous consequence of negating the very democratic principle by making the election-contest the exclusive preserve of the affluent. What is further, the frequent dissolution of the legislature, has the tendency to create disenchantment in the people with the process of election and thus with the democratic way of life itself. History warns us that the frustration with democracy has often in the past, led to an invitation to fascism and dictatorship of one form or the other.
42. There were significant observations by Dr. B.R. Ambedkar, Chairman of the Drafting Committee of the Constitution, while rejecting a suggestion in the Constituent Assembly that to guard against arbitrary advice by the Prime Minister for the dissolution of Lok Sabha, it might be indicated that in case the Prime Minister desired the dissolution of the House earlier than the completion of the normal term of five years as provided in the Constitution he should record the reasons therefor in writing. Dr. B.R. Ambedkar observed, "I think we could trust the President to make a correct decision between the party leaders and the House as a whole".
43. The Constitution has envisaged the life of the Assembly for a period of five years from the date appointed for its first meeting provided that the said period may, while a proclamation of emergency is in operation, be extended by Parliament by law for a period not exceeding one year at a time and not extending in any case beyond a period of six months after the proclamation has ceased to operate, unless sooner dissolved. No person, not one or two in the house or even a good number of them, can decide to dissolve the House without a valid reason before its completion of five years term. Since there is no warrant in the Constitution itself to read into Article 164(1) a condition or restriction mat the Governor must act on the advice of a Council of Ministers as provided in Article 163(1) in the matter of appointment of the Chief Minister, it is for him to make such enquiries as he thinks proper to ascertain who, among the members of the Legislature, ought to be appointed the Chief Minister and would be in a position to enjoy the confidence of the majority in the Legislative Assembly of the State. In Mahabir Prasad v. Prafulk Chandra, it is stated. "The Governor in making the appointment of the Chief Minister under Article 164(1) of the Constitution acts in his sole discretion and is guided by the convention to appoint such a person as the Chief Minister who is in a position to enjoy the confidence of the majority in the Legislative Assembly of the State". Thus, when a person who enjoyed the majority support in the Assembly at one time but appeared to lose the majority advised to dissolve the House, the Governor only respected the convention in this behalf and postponed acting on the advice to dissolve the Assembly until he explored the possibility of an alternative Government with the Chief Minister who enjoyed the support of the majority of the House. In the record of this case we have a plethora of materials on the prerogative which the President or the Governor may enjoy in a situation erf uncertainty and doubts as to the majority of the Chief Minister.
44. We are not unaware of the fact that Sri N.T. Rama Rao advised for the dissolution of the House at a time when the Governor was not sure of the fact that he had lost the majority support in the Assembly. But records reveal that Legislators in a substantial number had represented to him that they had withdrawn their support to his leadership in the House. Other political parties and their leaders were also not in agreement with the advice to dissolve the House and they had approached the Governor and told him not to dissolve the House but to give chance to another member of the House who enjoyed the support of the majority of the Legislators. The Governor's oath that he will devote himself to the service and well-being of the people could not/cannot allow him to close his eyes and ears and mechanically act upon the advice of the Chief Minister and the Council of Ministers which Chief Minister and Council had almost been declared to have lost the majority support in the House by an overwhelming majority of the members of the House, although it was yet to be fully ascertained by the Governor and the Chief Minister was yet to face the vote of confidence. We are not inclined to agree with the extreme proposition that Governor shall have no discretion but to act on the aid and advice of his executive Government headed by the Chief Minister even in a situation like the one the Government of Sri N.T. Rama Rao faced on and from 24-8-1995. Had Sri N.T. Rama Rao sought the vote of confidence himself and proved his majority in the House and then chosen to advice the dissolution, different considerations could have arisen. But even after proving the majority in the House no Chief Minister can advice dissolution of the House without any valid reason and unless it is in public interest. At every challenge to the Government by dissidents in the Legislature party or by others the House cannot be dissolved. Democracy can thrive not by the luxury of repeated elections but by commitment of the representatives of the people to serve the people, uphold the Constitution and the laws made thereunder and devote their time and might in the service of the people.
45. The constitutional conventions leave no manner of doubt that the Governor has to exercise his own discretion so far as the dissolution of the Legislative Assembly is concerned. It is significant to note that Article 174(2)(b) is a carbon copy of Article 85(2)(b) which empowers the President to dissolve the House of the people. In the words of Dr. B.R. Ambedkar, (a speech in the Constituent Assembly while speaking on draft Article 69(85), "the President of the Union will test the feelings of the House, whether the House agreed that there should be dissolution or whether the House agrees that the affairs should be carried on with some other leader without dissolution". We see great wisdom in these words and thus accept that the Governor's duty in this behalf cannot be performed unless the view of the Assembly is known. After verification of signatures the Governor gave to Sri N.T. Rama Rao opportunity to show his majority in the Legislature i.e., the Assembly of the State. Article 174(1) has vested the Governor with the power of summoning the Legislature. Only one condition has been stipulated i.e., six months shall not intervene between the sessions of the Assembly. If the Assembly is in session, it poses no difficulty how the majority shall be tested. Rules of business of the House have been brought to our notice by the learned counsel for the petitioners. They give a complete scheme for the vote of no-confidence. There is also no doubt in principle that so long as the Council of Ministers enjoys the confidence of the Assembly its advice for summoning the Assembly unless patently unconstitutional, will be binding on the Governor. It is only when such advice, if acted upon, would lead to an infringement of a constitutional provision or where the Council of Ministers has ceased to enjoy the confidence of the Assembly that the question will arise whether the Governor shall ignore the advice of Council of Ministers and ask the Chief Minister to summon the State Legislature immediately in order to demonstrate that he still has a majority support in the Assembly. Learned counsel for the petitioners have contended that the Governor cannot compel the Chief Minister to convene a session during the interval of six months or summon the Legislature on his own even against the wishes of the Chief Minister. According to them, the time of six months has been given by the clear provision of the Constitution and not by the order of the Governor. According to them, there is no morality or legal necessity to compel the Chief Minister to advice the Governor for early summoning of the Assembly. If the Chief Minister, in consultation with the Cabinet colleagues fixes a date, that date should be taken as the earliest day for the purpose of testing the strength of the Ministry on the floor of the Assembly. Any other step would amount to demonstrate the Governor's connivance for the prospects of a contender rather than the necessity of preserving his impartiality. They have laid great stress on what they have described as Mohana Kumar Mangalam test that: "the only limitation on the right of the Chief Minister and his Council of Ministers to convene the Legislative Assembly on the day they wish is Article 174(1). The fact that 10or20or even 50 MLAs met the Governor and told him that they no longer support the Government is irrelevant, in fact, constitutionally speaking, the Governor has no right to meet these gentlemen". Mohana Kumar Mangalan's is not alone in holding the above view.
46. We do not have much information about it. But we have some observations of the Administrative Reforms Commission which have been brought to our notice by learned counsel for the respondents which run as follows:
"A situation may, however, arise where the Chief Minister, who appears to have lost majority support in the Assembly, may be reluctant to summon it and at the same time unwilling to resign. In such a situation, the question arises as to whether the Governor can summon the Assembly even if the Chief Minister advises to the contrary. We suggest that the Governor should try to persuade the Chief Minister to agree to the Assembly being summoned as early as possible and to face it. If the Chief Minister still refuses to agree to advise the summoning of the Assembly, the Governor should summon the Assembly for the purpose of obtaining its verdict on the question as to whether the Council of Ministers enjoys the confidence of the Assembly.
The Commission has recommended:
"When the Governor has reason to believe that the Ministry has ceased to command a majority in the Assembly, he should come to a final conclusion on this question by summoning the Assembly and ascertaining its verdict on the support enjoyed by the Ministry. When a question arises as to whether the Council of Ministers enjoys the confidence of the majority in the Assembly, the Governor may, if he thinks fit, suo motu summon the Assembly for the purpose of obtaining its verdict on the question."
The Sarkaria Commission observation to which our attention has been drawn is as follows:
"A situation may, however, arise where the Chief Minister designedly fails to advise the summoning of the Assembly within six months of its last sitting, or advises its summoning on a date falling beyond this period. The Governor can, then summon the Assembly within the period of six months specified in Article 174(1), the neglect or wrong advice of the Chief Minister notwithstanding. Again, in our view, the Governor would be justified in summoning the Assembly when the Chief Minister is not prepared to summon it within 30 days of his taking over. Similarly, when at a later stage, on the basis of reliable evidence it appears to the Governor that the incumbent Ministry no longer enjoys the confidence of the Assembly, he should ask the Chief Minister to have the question of his majority support tested on the floor of the House within a reasonable time."
47. According to it generally a period of 30 days will be reasonable unless there is very urgent business to be transacted such as passing the budget in which case a shorter period may be indicated. In special circumstances it may even exceed the period of 30 days and go upto 60 days. Reasonable period, however, is incapable of any exact measurement. The Supreme Court while considering a case about the notice for the meeting of the Board of Directors of a company in N.I. (I) Ltd. v. Ni Newey (I) Holding Company Ltd., (1981) 51 Comp. Cases 743. has said, "the utter inadequacy of the notice to Sanders in terms of time stares in the face and needs no further argument to justify the finding that the holding of the meeting was illegal at least in so far as the holding company is concerned. It is selfevident that Sanders could not possible have attended the meeting. There is, therefore, no alternative save to hold that the decision taken in the meeting of May 2, cannot in the normal circumstances affect the legal rights of the holding company or create any legal obligations against it". According to the said judgment, inadequacy of the time in the notice which was issued for the meeting of the Board was sufficient to nullify the proceedings of the said meeting.
48. Still on the facts of this case can we say that the Governor denied a reasonable time to Sri N.T. Rama Rao for convening the Assembly for seeking vote of confidence. We have given our anxious thought and have come to the conclusion that in the prevailing situation no Governor could wait for a longer period and allow a Chief Minister whose majority in the House was in doubt to be at the helm of the Government of the State and in the fast developing situation the only reasonable course for the Governor was to see that all members in vacation were informed and they had sufficient time to assemble in the House. Had this been a case of quite a few members of the House not being able to arrive to attend the session of the House in which Sri N.T. Rama Rao sought vote of confidence the position would have been different. The House did assemble on 31-8-1995 and adjourned because it was informed that Sri N.T. Rama Rao had resigned. Governor has produced the papers and confidential informations about the indulgence of the members of the Legislative Assembly including Sri N.T. Rama Rao and his supporters and Sri N. Chandrababu Naidu and his supporters and since floor test was still to be held he was not in a position to appoint any care taker Government or order that Sri N.T. Rama Rao's Government would be a care taker Government because such an order he could make only after the floor test and Sri N.T. Rama Rao losing the majority support. The Governor had to uphold the public interest and see that on the one hand members of the Legislative Assembly got adequate notice and on the other hand the public at large was not left without a responsible Government for more than necessary time.
49. Whether all that the Governor did in the situation prevailing during the period between 24-8-1995 and 31-8-1995 are taken together or separately it is difficult to see any legal mala fide in his actions. Elaborate arguments have been advanced before us by the learned counsel for the parties on the scope of judicial review of the Governor's actions and his actions whether stricken by legal mala fides. In course of the arguments learned counsel for the petitioners have conceded that the Court shall confine considerations of issues pertaining to legal mala fides only and not any allegations of malice in fact against the Governor. One aspect of legal mala fides is whether the Governor acted as directed by the Centra! Government which is headed by a party different from the party of Sri N.I'. Rama Rao. But, no materials are placed before us for acceptance of the said allegation. There is some support to the view that when developments leading to a crisis in the State Legislature takes place, the Central Government can act and make provisions for discharge of the functions of the Governor. Article 160 of the Constitution provides as follows:
"The President may make such provision as he thinks fit for the discharge of the functions of the Governor of a State in any contingency not provided for in this Chapter." (Chapter II of Part VI of the Constitution)
50. It is the duty of the Governor to appoint the Chief Minister who enjoys the support of the majority of the Legislators of the State. In the situation that the Governor was placed he was required to ensure that only such person was the Chief Minister who enjoyed the support of the majority of the members of the House. Constitution is silent and we have noticed the conventions in this behalf how the Governor shall act when he has doubts about the support of the majority of the Legislators to his Chief Minister and in the event of floor test going against the Chief Minister, to explore the possibility of having another Chief Minister and the Council of Ministers to aid and advice him in the exercise of his executive functions. How Governor shall discharge his functions when he is not in a position to act on the aid and advice of the Council of Ministers and except constitutional conventions there is nothing to control his discretion, in our opinion, shall be covered by Article 160 of the Constitution of India. Since the Governor is required to discharge his executive functions on the aid and advice of the Council of Ministers with the Chief Minister at the Head and the above is not shown in any provision of the Constitution falling to his exclusive discretion, it will be a contingency not provided for in Article 163 of the Constitution of India and thus the President may make such provision as he thinks fit for the discharge of such functions of the Governor. The President, however, has no discretion of his own. He has to act on the aid and advice of the Council of Ministers with the Prime Minister at the Head (see Article 74 of the Constitution of India) in the exercise of his functions, except to the extent constitutional conventions permit him to act, to appoint a Prime Minister and in the situations when the Prime Minister has lost majority and he is required to appoint a new Prime Minister who has the support of the majority of the Members of the House. We need not however pursue this aspect of the case as there is no material to show that the Governor has acted as directed by the Central Government in the matter. No legal malice, thus, is inferable against the Governor on the basis of any material on the record of the case. Except simmering doubts which Sri N.T. Rama Rao has entertained as to the role played by the Governor, there is nothing to show that there was any irrelevant consideration which affected the Governor's actions. There is no material for us to hold that the Governor acted for any purpose not authorised by the Constitution and the constitutional conventions.
51. The first impression which we had, however, about the role of the Speaker is that of a person in authority who was over-zealous and was over doing in the situation that was fast developing on account of a strong dissent by Sri N. Chandrababu Naidu and his supporters against the Chief Minister Sri N.T. Rama Rao on and from 24-8-1995. We are reluctant for good reasons to investigate how the speaker got information about the developments and how he returned to Hyderabad by cutting short his tour. Allegations and counterallegations in this behalf made by the petitioners, however, cannot be accepted without going into the evidence and without recording a finding of fact. Affidavits of the parties are inadequate for any such finding and personal mala fides of the Speaker, learned counsel for the petitioners have agreed, are not to be investigated by us. Legal mala fides, however, of the role of the Speaker in the matter start from his getting involved in identification of the signatures to his getting a bulletin published before the Governor took any decision that Sri N. Chandrababu Naidu was the leader of the Teiugu Desam Legislature Party.
52. Learned counsel for the Speaker has heavily relied upon Article 212 of the Constitution which provides, (1) the validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure, (2) No officer or member or the Legislature of a State in whom powers are vested by our under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers. There could be no exception to the rule that no Court can go into those questions which are Within the special jurisdiction of the Legislature itself which has the power to conduct its own business; the validity of the proceedings inside the Legislature of a State cannot be called in question on the allegations that the procedure laid down by the law had not been strictly followed. But immunity from judicial interference is confined to matters of irregularity of procedure. There would be no immunity if the proceedings are held without jurisdiction. This aspect has been indicated in the judgment of the Supreme Court in M.S.M. Sharma v. Shree Krishna Singh, in these words:
"......It must also be observed that once it has been held that the Legislature has the jurisdiction to control the publication of its proceedings and to go into the question whether there has been any breach of its privileges, the Legislature is vested with complete jurisdiction to carry on its proceedings in accordance with its rules of business. Even though it may not have strictly complied with the requirements of the procedural law laid down for conducting its business that cannot be a ground for interference by this Court under Article 32 of the Constitution. Courts have always recognised the basic difference between the complete want of jurisdiction and improper or irregular exercise of jurisdiction.
Mere non-compliance with rules of procedure cannot be a ground for issuing a writ under Article 32 of the Constitution vide Janardhan Reddy v. State of Hyderabad, ."
53. Immunity which is referable to Article 212 and privileges which are referable to Article 194 of the Constitution are confined to procedure or the conduct of business or for maintaining order in the Legislature and the speech and the publication by or under the authority of a House of any report, paper, votes or proceedings. In a reference under Article 143 of the Constitution, the Supreme Court has given the majority opinion in these words:
"Let us first take Art 226. This Article confers very wide powers on every High Court throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warrnto, certiorari, or any of them for the enforcement of any of the rights conferred by Part III and for any other purpose. It is hardly necessary to emphasis that the language used by Article 226 in conferring power on the High Courts is very wide. Article 12 defines the "State" as including the Legislature of such State, and so, prima facie, the power conferred on the High Court under Article 226(1) can, in a proper case, be exercised even against the Legislature. If an application is made to the High Court for the issue of a writ of habeas corpus, it would not be competent to the House to raise a preliminary objection that the High Court has no jurisdiction to entertain the application because the detention is by an order of the House. Art 226(1) read by itself, does not seem to permit such a plea to be raised. Art 32 which deals with the power of this Court, puts the matter on a still higher pedestal; the right to move this Court by appropriate proceedings for the enforcement of the fundamental rights is itself a guaranteed fundamental right, and so, what we have said about Article 226(1) is still more true about Article 32(1).
Whilst we are considering this aspect of the matter, it is relevant to emphasise that the conflict which has arisen between the High Court and the House is, strictly speaking, not a conflict between the High Court and the House as such, but between the House and a citizen of this country. Keshav Singh claims certain fundamental rights which are guaranteed by the Constitution and he seeks to move the High Court under Article 226 on the ground that his fundamental rights have been contravened illegally. The High Court purporting to exercise its power under Article 226(1), seeks to examine the merits of the claims made by Keshav Singh and issues an interim order. It is this interim order which has led to the present unfortunate controversy. No doubt, by virtue of the resolution passed by the House requiring the Judges to appear before the Bar of the House to explain their conduct, the controversy has developed into one between the High Court and the House; but it is because the High Court in the discharge of its duties as such Court intervened to enquire into the allegations made by a citizen that the Judges have been compelled to enter the arena. Basically and fundamentally, the controversy is between a citizen of Uttar Pradesh and the Uttar Pradesh Legislative Assembly. That is why in dealing with the question about the extent of the powers of the House in dealing with cases of contempt committed outside its four walls, the provisions of Article 226 and Article 32 assume significance. We have already pointed out that in the case of M.S.M. Sharma (Supra), this Court has held that Art 21 applies where powers are exercised by the legislature under the latter part of Article 194(3). If a citizen moves the High Court on the ground that his fundamental right under Article 21 has been contravened, the High Court would be entitled to examine his claim, and that itself would introduce some limitation on the extent of the powers claimed by the House in the present proceedings.
There are two other articles to which reference must be made. Article 208(1) provides that a House of the Legislature of a State may make rules for regulating, subject to the provisions of this Constitution, its procedure and the conduct of its business. This provision makes it perfectly clear that if the House were to make any rules as prescribed by it, those rules would be subject to the fundamental rights guaranteed by Part III. In other words, where the House makes rules for exercising its powers under the latter part of Article 194(3), those rules must be subject to the fundamental rights of the citizens.
Similarly, Art 212(1) makes a provision which is relevant. It lays down that the validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure. Art 212(2) confers immunity on the officers and members of the Legislature in whom powers are vested by or under the Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature from being subject to the jurisdiction of any court in respect of the exercise by him of those powers. Art 212(1) seems to make it possible for a citizen to call in question in the appropriate court of law the validity of any proceedings inside the Legislative Chamber if his case is that the said proceedings suffer not from mere irregularity of procedure, but from an illegality. If the impugned procedure is illegal and unconstitutional, it would be open to be scrutinized in a court of law, though such scrutiny is prohibited if the complaint against the procedure is no more than this that the procedure was irregular. That again is another indication which may afford some assistance in construing the scope and extent of the powers conferred on the House by Art 194(3)."
54. The Supreme Court has in the said reference made it dear that the question of jurisdiction and the propriety or reasonableness of the exercise of jurisdiction are different and in the case of a superior court of record it is for the Court to consider whether any matter falls within its jurisdiction or not. Unlike a court of limited jurisdiction, the superior court is entitled to determine for itself questions about its own jurisdiction. The Supreme Court has quoted Halsbury (volume IX, page 349), "prima facie, no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the precedents that the particular matter is within the cognizance of the particular court."
55. In Kihota Hollohon v. Zachilhu, . the Supreme Court has dealt with Constitution (Fifty-second Amendment) Act on political defections (X Schedule of the Constitution) and spoken generally as to bar of jurisdiction of the Court within the meaning of Article 122 or Article212 of the Constitution, the former dealing with the proceedings in the Parliament and the latter dealing with the proceedings in a State Legislature. The arguments before the Supreme Court in Kohota Hollohon v. Zachilhu, in support of the bar of jurisdiction was based mainly upon paragraphs 6 and 7 of the X schedule of the Constitution which provide as follows:
"6.(1) If any question arises as to whether a member of a House has become subject to disqualification under this Schedule, the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final: Provided that where the question which has arisen is as to whether the Chairman or the Speaker of a House has become subject to such disqualification the question shall be referred for the decision of such member of the House as the House may elect in this behalf and his decision shall be final.
(2) All proceedings under sub-paragraph (1) of this paragraph in relation to any question as to disqualification of a member of a House under this Schedule shall be deemed to be proceedings in Parliament within the meaning of Article 122, or, as the case may be, proceedings in the Legislature of a State within the meaning of Article 212. 7. Notwithstanding anything in this Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under this Schedule."
56. It may be seen that by treating all proceedings in respect of the question whether a particular member of a House has become subject to disqualification is made a deemed proceedings under Article 212 of the Constitution and besides a further bar is introduced in paragraph 7 in respect of disqualification of a member of a House. The contention raised before the Supreme Court is stated in these words:
"In support of the objection raised to the jurisdiction of this Court and the justiciability of the Speaker's decision relating to disqualification of a member, it has been urged that sub-paragraph (1) of para 6 dearly lays down that the decision of the Chairman or, as the case may be, the Speaker of such House shall be final and sub-paragraph (2) proceeds to say that all proceedings under sub-paragraph (2) proceeds to say that all proceedings under sub-paragraph (1) shall be deemed to be proceedings in Parliament......or......... proceedings in the Legislature of a State within the meaning of Article 122 or Article 212, as the case may be. It was urged that the clear provision in para 6 that the decision of the Chairman/ Speaker on the subject of disqualification under this Schedule shall be final and the further provision that all such proceedings shall be deemed to be proceedings in Parliament......or......proceedings in the Legislature of a State, within the meaning of Article 122 or Article 212, as the case may be, clearly manifests the intention that the jurisdiction of all Courts including the Supreme Court is ousted in such matters and the decision on this question is not justiciable. Further argument is that para 7 in dear words thereafter reiterates that position by saying that notwithstanding anything in this Constitution, no Court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under this Schedule. In other words, the argument is that para 6 by itself provides for ouster of the jurisdiction of all Courts including the Supreme Court and para 7 is a remanifestation of that dear intent in case of any doubt arising from para 6 alone. On this basis it was urged that the issue raised before us is not justifiable and the Speaker or the Chairman, as the case may be, not being Tribunal' within the meaning of that expression used in Article 136 of the Constitution, their decision is not open to judicial review."
Argument against the above is noticed in the judgment in these words:
"In reply, it was urged that the finality clause in sub-paragraph (1) of para 6 does not exclude the jurisdiction of the High Courts under Articles 226 and 227 and of this Court under Article 136. Deeming provision in subparagraph (2) of para 6, it was urged, has the only effect of making it a 'proceedings in Parliament' or 'proceedings in the legislature of a state' to bring it within the ambit of clause (1) of Article 122 or 212 but not within clause (2) of these Articles. The expression 'proceedings in Parliament' and 'proceedings in the Legislature of a State' are used only in clause (1) of Articles 122 and 212 but not in clause (2) of either of these Articles, on account of which the scope of the fiction cannot be extended beyond the limitation implicit in the specific words used in the legal fiction. This being so, it was argued that immunity extended only to 'irregularity' of procedure' but no to illegality as held in Keshav Singh . In respect of para 7, the reply is that the expressi on 'no Court' therein must be similarly construed to refer only to the Courts of ordinary jurisdiction but not the extraordinary jurisdiction of the High Courts under Articles 226 and 227 and the Plenary jurisdiction of Supreme Court under Article 136. It was also argued that the Speaker/Chairman while deciding the question of disqualification of member under para 6 exercises a judidal function of the State which otherwise would be vested in the Courts and, therefore, in this capacity he acts as 'Tribunal' amenable to the jurisdiction under Articles 136, 226 and 227 of the Constitution. Sri Saibal also contended that the bar in para 7 operates only at the interim stage, like other election disputes, and not after the final decision under para 6."
The Supreme Court upon this has commented as follows:
"The finality clause in sub-paragraph (1) of para 6 which says that the decision of the Chairman, or, as the case may be, the Speaker of such House shall be final is not decisive. It is settled that such a finality clause in a statute by itself is not sufficient to exclude the jurisdiction of the High Courts under Articles 226 and 227 and the Supreme Court under Article 136 of the Constitution, the finality being for the statute alone. This is apart from the decision being vulnerable on the ground of nullity. Accordingly, sub-paragraph (1) alone is insufficient to exclude the extraordinary jurisdiction of the High Courts and the plenary jurisdiction of this Court The Legal fiction in sub-paragraph (2) of para 6 can only bring the proceedings under sub-paragraph (1) thereof within the ambit of clause (1) of Article 122 or clause (1) of Article 212, as the case may be, since the expressions used in sub-paragraph (2) of para 6 of the Tenth Schedule are 'shall be deemed to be proceedings in Parliament' or 'proceedings in the Legislature of the State', and such expressions find place both in Arts. 122 and 212 only in clause (1) and not clause (2) thereof. The ambit of the legal fiction must be confined to the limitation implicit in the words used for creating the fiction and it cannot be given an extended meaning to include therein something in addition. It is also settled that a matter falling within the ambit of clause (1) of either of these two Articles is justifiable on the ground of illegality or pervesity in spite of the immunity It enjoys to a challenge on the ground of 'irregularity of procedure'."
The Supreme Court in this judgment has also stated:
"..........In the first place, the two separate clauses in Articles 122 and 212 clearly imply that the meaning and scope of the two cannot be identical even assuming there be some overlapping area between them. What is to be seen is the direct impact of the action and its true nature'and not the further consequences flowing therefrom. It cannot be doubted in view of the clear language of sub-paragraph (2) of para 6 that it relates to clause (1) of both Articles 122 and 212 and the legal fiction cannot, therefore, be extended beyond the limits of the express words used in the fiction. In construing the fiction it is not to be extended beyond the language of the Section by which it is created and its meaning must be restricted by the plain words used. It cannot also be extended by importing another fiction. The fiction in para 6(2) is a limited one which serves its purpose by confining it to clause (1) alone of Articles 122 and 212 and, therefore, there is no occasion to enlarge its scope by reading into it words which are not there and extending it also to clause (2) of these Articles. (See Commr. of Income-tax v. Ajax Products Ltd. . - Moreover, it does appear to us that the decision relating to disqualification of a member does not relate to regulating procedure or the conduct of business of the House provided for in clause (2) of Articles 122 and 212 and taking that view would amount to extending the fiction beyond its language and importing another fiction for this purpose which is not permissible. That being so, the matter falls within the ambit of clause (1) only of Articles 122 and 212 as a result of which it would be vulnerable on the ground of illegality and pervesity and, therefore, justiciable to that extent."
57. Learned counsel for the Speaker has, however, tried to persuade us to hold that the extend and ambit of the privileges of the Legislature and the scope of Article 212 of the Constitution has generally been determined with reference to the fundamental rights in Part III of the Constitution and in Kihota Hollohon's case (supra) in particular since the Speaker was held to be an authority and the issue of disqualification was treated as an adjudicatory process and so the Court has found that jurisdiction of the Court is not barred. But, to read narrowly the judgment of the Supreme Court in Kihota Hollohon's case (supra) will mean a complete exclusion of the jurisdiction of the Court and even unauthorised actions of the Speaker or the Legislatures will fall beyond the realm of judicial review. The ma jority of the judges of the Supreme Court in Kihota Hollohon's case (supra) has not differed from the above as in the majority judgment it is stated that the fiction in paragraph 6(2) of the Tenth Schedule places it in the first clause of Article 122 and 212 as the case may be and, "the words 'proceedings in Parliament' or 'proceedings in the Legislature of a State' in paragraph 6(2) have their corresponding expression under Articles 122(1) and 212(1) respectively. This attracts immunity from mere irregularities of procedure. That apart, even after 1986 when the Tenth Schedule was introduced the Courts did not evince any intention to invoke Article 122 or 212 in the conduct of resolution of disputes as the disqualification under Article 191(1) and 102(1). The very deeming provision implies that the proceedings of disqualification are in fact not before the House but only before the Speaker as a specially designated authority. The decision under paragraph 6(2) is not the decision of the House nor is it subject to the approval by the House. The decision operates independent of the House. A deeming provision cannot by its creation transcend its own power. There is, therefore, no immunity under Articles 122 and 212 from judicial scrutiny of the decision of the Speaker or Chairman exercising power under paragraph 6(1) of the Tenth Schedule".
58. As the facts of the case show both in the matter of verification of the signatures as well as in issuing the bulletin the Speaker has acted outside of the House and thus his actions are not a part of the proceedings of the House. It is not possible to contend that the Speaker acted in the matter of verification of signatures for which power is vested inhirn by or under the Constitution or that it was a matter falling under his domain for regulating procedure or the conduct of business or for maintaining order in the Legislature. Article 194 of course speaks of the publication by or under the authority of a House of a Legislature of any report, paper, votes or proceedings but it is not possible to bring the bulletin which was allegedly issued under the authority of the speaker falling under the said expression under clause (2) of Article 194. The duty to recognise the leader of a Legislature party is created under the Rules framed by the Speaker of the Assembly in exercise of the powers conferred by paragraph 8 of the Tenth Schedule to the Constitution. 'Bulletin' is defined in Rule 2(a) of the Members of Andhra Pradesh Legislative Assembly (Disqualification on 5 Ground of Defection) Rules, 1986, to mean, "the Bulletin of the House containing information of any matter relating to or connected with the business of the House or of the Committees of other matter which in the opinion of the Speaker may be included therein". The bulletin relating to or connected with the business of the House or of the Committee, if issued, may in a given situation 10 fall under Article 194(2) of the Constitution but not a bulletin relating to any other matter which in the opinion of the Speaker may be included therein. These Rules also define 'leader' in relation to a Legislature party and in Rule 2(f) it is stated," 'Leader', in relation to a Legislature Party, means a member of the party chosen by it as its Leader, and includes any other member of the party 15 authorised by the party to act in the absence of the Leader, or discharge the functions of the leader of the party for the purpose of these Rules". Rule 3 Rule 3 of the Rules enjoins the Leader of each Legislature Party (other than a Legislature Party consisting of only one member) to furnish within 30 days after the first sitting of the House, or, where such Legislature Party is formed after the 20 first sitting, within 30 days after its formation, or, in either case within such further period as the Speaker may for sufficient cause allow, (a) a statement (in writing) containing the names of the members of such Legislature party together with other particulars regarding such members as in Form-I and the names and signatures of the members of such party who have been authorised 25 by it for communicating with the Speaker for purposes of these rules; (b) a copy of the rules and regulations (whether known as such or as constitution or by any other name) of the political party concerned; and (c) where such Legislature Party has any separate set of rules and regulations (whether known as such or as constitution or by any other name), also a copy of such rules and regulations. Sub-rule (4) of Rule 3 provides, "whenever any change takes place in the information furnished by the Leader of a Legislature Party under sub-rule (1) or by a member under sub-rule (2), he shall, within thirty days thereafter, or, within such further period as the Speaker may for sufficient cause allow, furnish 35 in writing information to the Speaker with respect to such change". Rule 4(3) provides as follows:
"A summary of information furnished by the members under this rule shall be published in the Bulletin and if any discrepancy therein is pointed out to the satisfaction of the Speaker, necessary corrigendum shall be 40 published in the Bulletin."
59. Provisions in the Tenth Schedule dearly recognise a split in a Legislature Party and thus formation of a separate Legislature party of the break-away group. What will happen when members of the Legislature party are divided but they do not acknowledge that there is a split, however, is not contemplated 5 either in the Tenth Schedule or under the Rules as such. It is, however, seen from the above that the bulletin which was issued recognising Sri N.Chandrababu Naidu as the leader of the Telugu Desarn Legislature Party was unconnected with the business of the House or of the Committees. It was a matter of a faction or a number of Legislators belonging to the Telugu Desam Legislature party showing lack of confidence in the leader of the Legislature Party i.e., Sri N.T.Rama Rao and thus it was a bulletin issued in respect of a matter which in the opinion of the Speaker was fit to be included in the bulletin. In the matters thus before us concerning the Speaker he has no immunity either under Article 194 of the Constitution or under Article 212 thereof.
60. Learned counsel for Sri N.Chandrababu Naidu as well as the Speaker have made attempts to justify the actions of the Speaker and we were in course of the arguments told that any communication coming from the Governor to the Secretary of the Legislature amounted to asking the Speaker and not the Secretary to verify the signatures of the Legislators and report to him. We have, however, not been able to persuade ourselves to think that the Secretary of the Legislature who is recognised as an officer of the Legislature is not an independent entity who could verify the signatures from the record in the secretariat of the State Legislature and the Speaker alone could do it. Article 187 of the Constitution recognises a Secretariat of the Legislature of a State and the Legislature by law regulating the recruitment and the conditions of service of persons appointed to the secretarial staff of the House and until provisions are made by the Legislature, the Governor after consultation with the Speaker to make rules regulating the recruitment and the conditions of service of persons appointed to the secretarial staff of the Assembly or the Council. What transpires from this, in our opinion, is that the Secretary to the Legislature is the Head of the Secretariat of the Legislature and not just a mere Private Secretary to the Speaker. Nothing has been shown to us from which it can be inferred that the Secretary to the Legislature could not and cannot act in his discretion and respond to the communication from the Secretary to the Governor by verifying the Signatures from the records in the Secretariat of the Legislature. We are inclined to take the view that when there is a change of the leader of the Legislature party the new leader can take recourse to Rule 3(1) of the Rules framed by the Speaker in exercise of the powers conferred by paragraph 8 of the Tenth Schedule to the Constitution and furnish to the Speaker a statement in writing containing the names of the members of the Legislature party. The names and the number of the Legislators supporting the new leader specially when the name of the constituency from which the member supporting him has been elected is required to be shown in the statement (as in Form-I) will show whether all the members of the Legislature party are supporting him or only a section or faction of them is supporting him. Although the statement furnished by Sri N.Chandrababu Naidu to the Speaker containing the names of the members of the Telugu Desam Legislature party supporting him has not been brought on the record of the case, there is no dispute before us that on verification and even finally, not all the members of the Telugu Desam Legislature party supported him. Good number of the members of the Telugu Desam Legislature Party remained with Sri N.T.Rama Rao and they continued supporting him. The two factions although never admitted that they had split, claimed that they represented the Telugu Desam Party and the Telugu Desam Legislature Party. They were divided in votes - one faction supported Sri N.Chandrababu Naidu and another faction supported Sri N.T.Rama Rao. The bulletin which the Speaker got issued declaring that Sri N.Chandrababu Naidu was the leader of the Telugu Desam Legislature Party, obviously did not/does not carry a correct information about the leader of the Telugu Desam Legislature party. Disqualification on ground of defection, as envisaged in paragraph 2 of the Tenth Schedule, subject to the provisions of paragraphs 3,4 and 5 thereof provides that a member of a House belonging to any political party shall be disqualified for being a member of the House (a) if he has voluntarily given up his membership of such political party or (b) if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf without obtaining in either House the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within 15 days from the date of such voting or abstention. It shall, however, not be a disqualification on ground of defection as provided in paragraph 3 of the Tenth Schedule where a member of a House makes a claim that he and any other members of his Legislature party constitute the group representing a faction which has arisen as a result of a split in his original political party and such group consists of not less than 1/3rd of the members of such Legislature party and (a) he shall not be disqualified under sub-paragraph (1) of paragraph 2 on the ground (i) that he has voluntarily given up his membership of his original political party; or (ii) that he has voted or abstained from voting in such House contrary to any direction issued by such party or by any person or authority authorised by it in that behalf without obtaining the prior permission of such party, person or authority and such voting or abstention has not been condoned by such party, person or authority within 15 days from the date of such voting or abstention and (b) from the time of such split, such faction shall be deemed to be the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2 and to be his original political party for the purposes of this (3) paragraph. Rules framed under paragraph 8 of the Tenth Schedule also contain provisions for references to the Speaker by a petition and Rule 6 says that a petition in relation to a member may be made in writing to the Speaker by any other member provided that a petition in relation to the Speaker shall be addressed to the Secretary. Rules also provide procedure for considering the petition, etc.
61. We have given a careful consideration to these aspects and found that in a serious situation like one which had developed on account of a division in the Telugu Desam Legislature Party, the Speaker entered into the arena to verify the signatures and to report to the Governor that as many as 153 signatures of the Legislators on the Memorandum were genuine. Of course the support of the majority of the Legislators was with Sri N.Chandrababu Naidu, and on the representation of Sri N.Chandrababu Naidu the Speaker got a bulletin published that he (Sri N.Chandrababu Naidu) was the leader of the Telugu Desam Legislature Party. The bulletin was published before the vote of confidence in the House in the Government headed by Sri N.T.Rama Rao.
62. There has been an argument before us that the Governor had sent a Memorandum which contained only 144 signatures but the Speaker identified more than the number appearing on the Memorandum. This allegation, however, is factually not correct. Records reveal that as and when representations were received by the Governor, he forwarded them to the Secretary of the Legislature and all these were available for the purposes of verification of signatures.
63. The issue as to who-Sri N.T.Rama Rao or Sri N.Chandrababu Naidu was the President or leader of the Telugu Desam Party or represented the Telugu Desam Party obviously is not one to be decided by the Speaker. It is also not possible to decide such an issue in a proceeding under Article 226 of the Constitution of India. If there are conflicting claims and any issue is created on the question who represented or represents the Telugu Desam Party advisedly a civil dispute in a competent Court is the remedy. Some jurisdiction in this behalf is in the Election Commission under the Election Symbols (Reservation and Allotment) Order, 1968. Clause 15 of this Order says, "When the Commission is satisfied on information in its possession that there are rival sections or groups of a recognised political party each of whom claims to be that party the Commission may, after taking into account all the available facts and circumstances of the case and hearing such representatives of the sections or groups and other persons as desired to be heard decide that one such rival section or group or none of such rival sections or groups is that recognised political party and the decision of the Commission shall be binding on all such rival sections or groups". In the case of a Legislature Party, however, since two factions obviously cannot be the one and the same Legislature party and there cannot be two leaders in a House of one and the same Legislature party, even though they do not admit a split, it seems obvious that ancillary to the power to decide whether there is a split or not and thus on account of the split there is no disqualification as no faction has less than 1/3rd of the original strength of the Legislature party, the Speaker may have jurisdiction to decide which of the two groups is the original Legislature party and only such group will be original Legislature party which has survived as a result of the split in the original political party.
64. Apart from the residuary or the ancillary power as discussed above, we see good reasons to agree with the view that by for the purposes of the business of the House, the Speaker shall have jurisdiction to decide who is the leader of a particular Legislature party or a group of Legislators by dint of the very office he holds. Unless such a power is conceded in him at any stage of a change in the composition of a Legislature party, it will become difficult for the House to conduct its business without there being a leader of the group of Legislators who seek recognition as a Legislature party. By this we do not mean, however, that unless the Legislators or a group of Legislators have a leader amongst them, they cannot function. The Speaker can well decide to leave them as they are, but he cannot deny to them a decision when a claim is brought before him that their faction represents a particular Legislature party.
65. Learned Counsel for the petitioners have urged that the Speaker's actions apparently were not justifiable, were supportive of Sri N.Chandrababu Naidu and intended to help him to gain the leadership of the Telugu Desam Legislature Party even before the vote of confidence. Speaker, according to the learned counsel, acted with malice in law and even if he acted innocently he cannot say that he has acted honestly. We have tried to guage the effect of Speaker's action upon the decision of the Governor and finally the events in the House. Even if we accept that there is some force in the contention of the learned counsel for the petitioners that Speaker's actions are demonstratively mala fide in law, we do not find any effect on the results that followed the verification of signatures by the Speaker or the issue of the bulletin. The main reason for our leaving this aspect of the case with the above observations only is that at no time it has been shown to us mat those who dissented Sri N.T.Rama Rao and assented Sri N.Chandrababu Naidu were less than 1/3rd in number of Legislators belonging to the felugu Desam Legislature party. They claimed that the party had elected Sri N.Chandrababu Naidu as the leader and accordingly had informed the Governor and the Speaker. They had raised a substantial claim that they represented the Telugu Desam Party and they obviously formed the majority of the Telugu Desam Legislature party and majority of the Legislators. We have good reasons, however, to hod that the bulletin issued by the Speaker is non-est as it contained a declaration which could have been made only by an enquiry by the Speaker of the collateral or jurisdictional facts whether the supporters of Sri N.Chandrababu Naidu in the Legislature represented a faction of the Legislature party, whether they represented the original political party or not but represented a Legislature party of their own, and whether Sri N.T.Rama Rao continued to be the leader of the Telugu Desam Legislature party, whether he was the leader of the original political party or not. The Speaker could not have decided the issue of the leadership of the Telugu Desam Legislature party without deciding about the status of Sri N.T.Rama Rao and his supporters and without taking notice of the fact that they were divided in votes and thus the Legislature party had a split or not. That there is no specific provisions in this behalf in the Rules framed under paragraph 8 of the Tenth Schedule or that the Tenth Schedule itself has not contemplated any such enquiry, in our opinion, is not a ground to say that without any enquiry the Speaker could/can declare someone leader of a particular Legislature party. If at all the Speaker is required to do such a thing he has to give opportunity of being heard to Sri NXRama Rao and his supporters. It is well settled that by necessary implications where a statute confers powers or duties in general terms, all powers and duties incidental and necessary to make such legislation effective are included therein. Implied powers are such as are necessary to make available and carry into effect those powers which are expressly granted or conferred and which must, therefore, be presumed to have been within the intention of the constitutional or legislative grant (see page 1334 of Black's legal dictionary, 4th edition). In Mohinder Singh v. Chief Election Comissioner, the Supreme Court has read by necessary implications such implied power in the Election Commission to decide collateral issues and power to cancel poll in the entire constituency in Article 324 of the Constitution of India read with certain regulatory and complementary provisions in the Representation of the People Act, 1950. The principles above stated are found expressed in Matagoj Dube v. H.C. Bari, and Commissioner of Commercial Taxes v. R.S. Jhaveer, .
66. Learned counsel for the petitioners have contended before us that the Governor and the Speaker in matters in which they have acted were required to at least inform Sri N.T.Rama Rao and afford opportunity to him to explain the true position that Sri N.Chandrababu Naidu and several other members of the Telugu Desam Party were expelled from the party and thus from the Telugu Desam Legislature party and that a person who was not a member of the Telugu Desam Party any longer, was not competent to claim the leadership of the Telugu Desam Legislature party and stake claim for becoming the leader of the Legislature party. They have also developed arguments ancillary to the principles of natural justice, the legitimate expectation of a person who was the leader of the House and the leader of the Legislature party.
67. We, however, see no denial of the principles of natural justice or legitimate expectations to Sri N.T.Rama Rao by the Governor. The Governor opted for verification of the signatures to have a prima facie satisfaction or preliminary satisfaction as to the genuineness of the signatures in the memorandum and when he heard from the Speaker about the support Sri N.Chandrababu Naidu had, he decided to call upon Sri N.T.Rama Rao to seek vote of confidence in the House. He gave thus dear opportunity to Sri N.T.Rama Rao to establish his majority. Had he called upon Sri N.Chandrababu Naidu after verification of signatures or head count of the members of the Legislative Assembly who were supporting him to form the Government, perhaps Sri N.T.Rama Rao could make a grievance. There is no denial of legitimate expectations in fixing the time for the vote of confidence by the Governor, in the fact situation as it obtained in those few days between 24-8-1995 and 31-8-1995. There has been nothing unreasonable in the conduct of the Governor and the Governor did nothing which went against the legitimate expectations of Sri N.T.Rama Rao.
68. Learned counsel for the'parties have cited a number of cases including judgments of the Courts of some of the common wealth countries on various principles. We have, however, seen them and finally found them not very relevant for the views which we have taken. All that has been argued before us and said against the actions of the Governor of the State and the Speaker of the State, however, appear to have become insignificant and inconsequential, except to the extent the Speaker's recognition of Sri N.Chandrababu Naidu as the leader of the Telugu Desam Legislature party has affected status of the two factions of the Telugu Desam Legislature party until one faction is found to be the real Telugu Desam Legislature party, for what Sri N.T.Rama Rao has himself done by tendering his resignation. That, however, declaration by the Speaker in favour of Sri N.Chandrababu Naidu as the leader of the Telugu Desam Legislature Party has no bearing on the formation of the Government and appointment of Sri N.Chandrababu Naidu as the Chief Minister by the Governor. All that was necessary for the Governor to see who was enjoyed the support of the majority of the Legislators. Whether he belonged to one Legislature party or another, whether he was expelled from any Legislature party or not, whether those who supported him belong to a particular Legislature party or were expelled from that Legislature party, are not at all relevant in deciding who should be appointed as the Chief Minister. The Governor is required to see who has the support of the majority of the Legislators and not the majority of a Legislature party or the majority of a political party.
69. How the political leadership has changed its course and people's representatives have almost become suspects that they are ready to be traded as horses is taken notice of by the Supreme Court in Kihota Hollohoh 's case (supra) and why thus anti-defection law is incorporated in the Tenth Schedule to the Constitution of India and given the status of the constitutional law are matters which this Court would have preferred to avoid but for the allegations in this behalf in the writ petitions i.e., whether Legislators belonging to the Telugu Desam party and supporters of Sri N.T.Rama Rao were detained by Sri N.Chandrababu Naidu and others in a hotel, whether they were promised unjustifiable benefits for supporting Sri N.Chandrababu Naidu, whether they were paid any money or not Sri N.T.Rama Rao has made such allegations, but, at the same time, expressed readiness to accept them if they returned to his fold. No constitutional authority, since by dint of appointment as the Chief Minister one becomes a constitutional authority, is expected to say that when Legislators support him they are paragons of virtue and when they support any other person they have tainted their souls. It is unidentified role of money and muscle in elections and suspected manipulations for the office of the Chief Minister or the Minister which have confused the public opinion and they i.e., the public are almost always ready to believe whenever there is any change that any such thing has happened. The Court, however, shall need more than mere allegations for acceptance of any such accusations and on the record before us there is nothing which can be taken as evidence of any such things happening. Legislators who supported Sri N.Chandrababu Naidu, it is not in dispute, stayed in a hotel. They, however, were not available to Sri N.T.Rama Rao and it seems that gave to him the idea that they were detained or that they were allured by some gratification or promise. It is necessary in public life, particularly for constitutional authorities, to accept all the rights which have been available to all other similarly situated, and as a Legislator if Sri N.T.Rama Rao could expect to be the leader of the Legislature and the Chief Minister, any other member of the Legislature could have/can have the same expectations. Dissent in political and public life is a right included in the freedom of speech and expression and it cannot be resented, but has to be respected. A democratic polity does not take an act of dissent as an expression of animosity. There is no adversary in politics and particularly amongst the representatives of the people. The Court cannot give any credence to such allegations without any proof.
70. Has Sri N.T.Rama Rao resigned ? Yes, says the Governor, the Speaker, Sri N.Chandrababu Naidu and other respondents. We have, however, before us information that on 31-8-1995 Sri N.T. Rama Rao was hospitalised. But before he was taken to hospital he had prepared the letter of resignation. He had given the same to his Secretary and also through his Secretary contacted the Governor and asked for time to meet him. It is not in dispute that the resignation letter which was prepared at his behest was handed over to the Governor while Sri N.T.Rama Rao was in the hospital and Governor on being informed by the Chief Secretary and the Secretary to the Chief Minister had called on him at the hospital. Sr. N.T. Rama Rao's case before us is that he had prepared the letter but was to consult his Cabinet colleagues before he submitted any letter of resignation; since he fell ill and was taken to the hospital he could not consult his Cabinet colleagues and since he was unconscious or semi-conscious he could not know how the cover containing the letter of resignation reached the Governor. It is contended, since he did not submit the letter of resignation consciously he never resigned; the Governor would not have accepted the resignation letter and it is suggested he hurriedly accepted the resignation because he had some motive to help Sri N.Chandrababu Naidu and see that Sri N.T.Rama Rao ceased to be the Chief Minister.
71. Had, however, the matter been rested on the affidavit of Dr. N. Jayaprakash Narayana who was the Secretary of Sri N.T.Rama Rao, one could give some more consideration to the statement of Sri N.T.Rama Rao. We would have taken Sri N.T.Rama Rao's statement seriously and examined the case summary prepared by the doctors who attended Sri N.T.Rama Rao in the hospital. Learned counsel for the 3rd respondent (Sri N.Chandrababu Naidu) has made a critical analysis of the hospital records to contend that Sri N.T.Rama Rao's condition of health was not such that he could not decide what to do and he in fact understood everything that happened preceding the visit of the Governor, at the visit of the Governor and the handing over of the cover containing the resignation letter. We are not inclined, however, to enter into any critical analysis of the case summary which doctors attending at Sri N.T.Rama Rao have prepared as our doing so would mean our entering into the varacity of the summary and the affidavit of the doctors who are not before us as a party to the proceeding and thus are not in a position to defend their action. We, for the same reason, do not propose to enter into the issue of the veracity of the affidavit of Dr N.Jayaprakash Narayan, Sri N.T. Rama Rao's Secretary who has volunteered an affidavit and spoken of his impressions from the gestures of Sri N.T.Rama Rao and claimed to have acted as he understood Sri N.T.Rama Rao wanted to hand over the letter of resignation to the Governor.
72. Our attention has been drawn to the proceed ings of the Andhra Pradesh Legislative Assembly, dated 7-9-1995. The House considered the vote of confidence in Sri N. Chandrababu Naidu. Sri N.T. Rama Rao at one stage said "I am still the leader of Telugu Desam Legislature party. So, this resolution, I must say, is not accepted by our party". He repeated this statement and latter in course of the proceeding said :
"Sri N.T.Rama Rao:-Why am I not invited to the B.A.C. meeting held on 29th? I am still the Telugu Desam Legislature Party Leader. You have not called me on 29th.
(Interruptions) Mr Speaker:- I will tell you. I will let you know.
Sri N.T. Rama Rao:-I am not invited to B. A.C. meeting. I was not invited yesterday, if you had invited me I would have told you on that day itself why I had resigned."
73. The statement that he resigned was repeated by him in these words:
"..........1 requested you for an opportunity to explain my position and the circumstances under which I had tendered my resignation. My health condition is not good. My younger brothers have requested you to kindly give me an opportunity........."
74. The petitioner in writ petition No. 19609/95 who was one of the Ministers in the Cabinet of Sri N.T.Rama Rao has in the additional affidavit in W.P.M.P.No. 25743/95 said:
"..........I filed W.P.No.. 19609/95 dated 30-8-95 requesting the Honourable High Court to direct the proceedings of the Assembly on 31-8-1995 to foe presided over by a protem speaker since the present speaker has taken a partisan attitude. Sri N.T.Rama Rao also requested His Excellency the Governor to replace the speaker by a protem speaker for the meeting dated 31-8-1995. Since no such arrangement was made, Sri N.T.Rama Rao tendered his resignation in protest against the partisan attitude of the speaker. As the Governor did not accept the conditional resignation, Sri N.T.Rama Rao sent his unconditional resignation but in fact as a protest against the patisan attitude of the Hon'ble Speaker. The resignation of Sri N.T.Rama Rao was accepted and the 4th respondent was invited to form the Government on 1-8-1995. ......."
75. In a writ petition by one V. Krishnamurthy (writ petition No. 19557/95) in which Sri N.T.Rama Rao was the 4th respondent, he has filed counter affidavit on 14-9-1995 and stated as follows:
" It is unfortunate that the learned Advocate General argued the matter in W.P.No. 19335/95 filed by R.Satyanarayana Reddy contrary to the advice given to me. Any how I have resigned as Chief Minister of Andhra Pradesh. Hence the writ petition has become infractuous. Therefore there is no need to meet the other averments in the writ petition."
76. In the representation to the President of India about which Sri N.T.Rama Rao has spoken in his affidavit filed in support of the writ petition, he has accused the Governor saying that while he was in the hospital the Governor snatched the letter of resignation from him. No one who had not known how the letter of resignation which he had prepared reached the Governor would have accepted categorically that he had resigned from the office of the Chief Minister. There is clear prevarication and there is no reason for tine Court to ignore all statements that Sri N.T.Rama Rao has himself made that he had resigned and accept the plea that the letter of resignation was passed on to the Governor but he did not know how it went into the hands of the Governor.
77. All parties appearing before us are at least one in acknowledging that Sri N.T.Rama Rao has been a popular leader and his services to the people are substantial and commendable. They appear, however, to question his style of functioning and his decisions which they say were not in the interest of the people and the State. A leader who would keep the interest of the people in consideration and find that his colleagues are finding his ways and decisions not beneficial to the people can reasonably think to resign the office of the Chief Minister and give chance to his critics to prove themselves. It is not unimaginable, thus, that Sri N.T.Rama Rao decided to resign and follow the democratic method of giving opportunity toothers. His advising dissolution of the Assembly might have been caused by his desire to seek people's mandate upon his actions. It, however, was an advice which if accepted by the Governor would have terminated the 10th Assembly prematurely, put the State exchequer at a very heavy cost and almost imposed his will upon other Legislators who were not in favour of the dissolution of the House. It is one thing to dissolve the House when the majority of the members of the House seek the dissolution. It is another that a small section of Legislators want to do so. The will of the people is not confined to the Chief Minister or to a few of the Legislators but is shown in all the representatives from all the constituencies. They have a right to decide who their leader will be. The majority of the Legislators have decided in favour of Sri N.Chandrababu Naidu and he has taken the office and his nominee Ministers have been appointed by the Governor. A responsible Government has come in existence to aid and advise the Governor.
78. Many ancillary and minor contentions have been raised on behalf of the parties. But on principles as we have taken notice of, we do not find any merit in the writ petitions for the reliefs of any directions to dissolve the Assembly or to declare that Sri N.T.Rama Rao has not resigned and that he continues to be Chief Minister. Irresistible conclusions are:
(1) The Governor has not gone beyond the constitutional conventions;
(2) Sri N.T.Rama Rao has resigned as the Chief Minister and since the Chief Minister has resigned, other Ministers who hold office at the pleasure of the Governor could not/cannot survive and thus the Council of Ministers headed by Sri N.T.Rama Rao ceased to exist on and from 31-8-1995;
(3) Since Sri N.Chandrababu Naidu has the support of majority of the members of the Legislature, whether he belongs to Telugu Desam Party or not and whether he is the leader of the Telugu Desam Legislature party or not, the Governor has committed nothing wrong in the eye of law in appointing him as the Chief Minister;
(4) The declaration, however, by the Speaker that Sri N.Chandrababu Naidu is the leader of the Telugu Desam Legislature party has not been in accordance with law as it related /relates to a change in the composition of the Telugu Desam Legislature Party, as it was, until the declaration, maintained in the Records of the Assembly with the names of the Legislators and the constituencies from which they have been elected.
(5) Course open to the Speaker to decide who the leader of the Telugu Desam Legislature Party is, is one envisaged under the Rules framed under paragraph 8 of the Tenth Schedule of the Constitution and preliminary to it, for purposes for which the Rules are specific and where they are silent, the power is inherent in the Speaker. The Speaker can also act independent of the Tenth Schedule of the Constitution to identify the factions of supporters of Sri N.Chandrababu Naidu and that of Sri N.T.Rama Rao and his supporters after giving opportunity of being heard to them.
79. In the result, the writ petitions are dismissed in all respects except that the declaration of the Speaker in the bulletin shall not be operative. The Speaker, however, can take a decision to recognise the faction of the supporters of Sri N.Chandrababu Naidu claiming that it was the real Telugu Desam Legislature Party as well as the faction of the supporters of Sri N.T.Rama Rao who are claiming to be the real Telugu Desam Legislature Party as independent groups of Legislators until decision is taken in accordance with law who represents the Telugu Desam Legislature Party or a decision on the question whether they have a split and formed separate Legislature parties.
Lingaraja Rath, J.
80. Even though originally I had thought of writing a separate judgment but after having had the benefit of going through the very erudite judgment prepared by my lord the Chief Justice, I have thought it better not to make an exercise of my own. All the questions which were raised and agitated have been met and I find myself in full agreement with the views expressed, and I would only express that situations as the one which engaged us in this case are best not to happen so that the Court is not called upon to engage itself in endeavours which are to say the least, not pleasant exercises. While expressing such, I would also reiterate and emphasise that a demand of an axiomatic/automatic dissolution of house on the demand of a Chief Minister whether he enjoys the support of the majority or not, is not a proposition which can be readily acceded to as the consequences following such action would be disastrous and no constitutional authority, decisions of the Apex Court, or conventions have been brought to out notice demanding such a course to be adopted. The considerations which have weighed in the judgment already pronounced are vital to negative such a stand.
81. I agree with the judgment.
B. Sudershan Reddy, J.
82. "Constitutional theory always has, and will emerge from the hard facts of politics rather than from the text books of Professors." - from the leading Article in Times dated 24-12-1985 quoted by J.A.G. Griffith & Michael Ryle in the book'Parliament'.
83. Jurisdiction, judicial power, the concept of State, constitutional relations between the Governor and the Chief Minister and the theory of political accountability of the constitutional Head of the State were all wrapped under the banner of Public Interest Litigation and expressed in the language of Constitutional Law in these Writ Petitions and presented for adjudication by this Court. Questions of public importance which may have a bearing upon the contemporary scenario, have come up for discussion. Issues are complex and unprecedented. - .
84. I have had the advantage of reading the erudite and elaborate judgment prepared by My Lord the Hon'ble the Chief Justice. I am in entire agreement with the conclusions reached on all issues. When occasions come Courts enter into the issues which they feel should be avoided. They have, however to do it because they are the ultimate protectors of the Constitutional values and speak not individually as Judges but as they represent the bull-work of Justice.
85. We are greatly benefitted by the arguments of the learned counsel of the parties who have not shown any reluctance in telling the Court such facts and laws which some time appear to go against the interest of their clients. We are beholden to them.
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