K K ABOO Vs. UNION OF INDIA

JUDGEMENT

(1.) CONSEQUENT on the resignation of the ministry that caused a breakdown of the constitutional Government in the State of Kerala, the President dissolved the legislative Assembly and assumed the executive powers of the State to himself by a Proclamation dated September 10, 1964, which was approved by the Parliament by a resolution on September 30, 1964. A general election was held, thereafter, in february/march 1965, for the purpose of constituting a new Legislative Assembly in the State; and the names of members elected for the various Constituencies were notified under Section 73 of the Representation of the People Act, 1951, in the Kerala Gazette, Extraordinary, No. 41 dated March 17, 1965. 133 members were declared elected, inclusive of the petitioner returned by Kuthupararnba constituency; but no party was able to secure a working majority of seats in the legislature. The Patty position among the elected representatives was thus : communist Party of India (Marxist or Left 40 indian National Congress 36 kerala Congress 23 samyuktha Socialist Party 13 muslim League 6 communist Party of India (Right) 4 independents (of different affiliations) 11 the new Legislature had never been summoned, under Article 174 of the constitution, to meet and therefore the members elected could not be sworn in. On March 16, 1985, the Governor held consultations with the leaders of the various parties among the elected members, and soon thereafter submitted his report to the President on the possibility of the formation of a constitutional government in the State. On March 24, 1985, the Vice-President, who was then discharging the functions of the President in the latter's absence out of India, revoked the Proclamation of September 10, 1964, and issued a fresh Proclamation (Ext. P 4) under Article 356 assuming to himself all the functions of the government of Kerala and dissolving the newly constituted Legislative Assembly of the State; and a consequential order (Ext. P5) delegating subject to his superintendence, direction and control, all the functions of the Government of the state to the Governor of Kerala. This Original Petition is for a declaration that Exts. P4 and P5 are illegal and therefore non est and for reliefs which are consequential on such declaration. The challenge of legality of Ext. P4 is mainly on two grounds ; unconstituttonality and mala fides.

(2.) THE contentions in regard to the constitutionality may be summarised thus ; (i) Under Article 172 of the Constitution the term of a Legislative assembly commences with its first meeting; and under Article 174 (1) it is incumbent on the President or the Governor to summon the Assembly to hold its meeting. A dissolution of the Legislative Assembly can be ordered "only after the date fixed for its first meeting". The dissolution of the newly elected Legislature, even before its first meeting ordered by the Proclamation, Ext. P4, is premature, illegal and void; and the legislative Assembly "should therefore be deemed to be in existence" and declared so.

(3.) THE contention that the President's Proclamation was mala fide is elaborated in the affidavit of the petitioner thus :