DINESH CHANDRA PANDE Vs. CHUDHURY CHARAN SINGH

JUDGEMENT

(1.) Which comes first in order of time, the executive or the legislature ? This question raised by the present writ petition is certainly easier to answer than the popular quiz which comes first, the egg or the chicken. For, the answer comes out of Article 75 of the Constitution and the - unwritten conventions or constitutional practice.

(2.) After the resignation of the Council of Ministers headed by Shri Morarji Desai, the President first called upon the Leader of the Opposition to form the Government. When he expressed his inability to do so, the President asked Shri Morarji Desai and Shri Charan Singh to submit lists of their supporters in the Lok Sabha. After scrutinising them on 26th July, 1979 the President concluded that Shri Charan Singh enjoyed the support of more members in the Lok Sabha than Shri Morarji Desai. He called upon Shri Charan Singh to form a Government adding that in accordance with the highest democratic traditions and in the interests of establishing healthy conventions Shri Charan Singh would seek a vote of confidence in the Lok Sabha at the earliest possible opportunity, say, by the third week of August, 1979. Shri Charan Singh was sworn in as the Prime Minister and thereafter some other Ministers were also sworn in. Presumably on the advice of the Cabinet the Lok Sabha was prorogued by the President. Soon thereafter a session of the Lok Sabha was called for to begin on Monday the 20th August, 1979 to enable the new Government to seek a vote of confidence.

(3.) In the above circumstances, the petitioner challenges the legality of the Government formed by Shri Charan Singh. Shri Danial Latiffi, learned Counsel who argued for the admission of the petition, chose to advance the following points in support of the contention :