K A MATHIALAGAN Vs. GOVERNOR OF TAMIL NADU

JUDGEMENT

(1.) BY a notification dated 14-11-1972, in exercise of the powers conferred upon him by Article 174 (2) (a) of the Constitution of India, the Governor of Tamil Nadu mr. K. K. Shah, prorogued the Tamil Nadu Legislative Assembly with effect from the forenoon of 15-11-1972, Mr. K. A. Mathialagan, the Speaker of the Assembly has filed W. P. 2968 of 1972 under Article 226 of the Constitution praying for a writ of certiorari, or order or direction in the nature of a writ to call for the records of the respondent, who is the Governor of Tamil Nadu, relating to G. O. Ms. 128 legislative Assembly department, dated 14-11-1972, and quash the same and also pass such further or other order as this court may deem fit under the circumstances of the case. Mr. M. G. Ramachandran, Leader of the Anna Dravida munnetra Kazhagam and a member of the Assembly, has filed W. P. 2969 of 1972 with a similar prayer, W. P. 3010 of 1972 filed by Mr. K. T. K. Thangamani, also a member of the Legislature, is with a like prayer. According to the Speaker, the circumstances leading to the petitions are these. The Speaker convened a meeting of the Assembly to be held on and from 13-11-1972. When the Assembly commenced. Mr. K. T. K. Thangamani wanted the Chief Minister to make a statement on Cabinet changes since the House had last met and the reasons therefor. The Speaker ruled that it was open to the Chief Minister to make necessary changes according to administrative exigencies and so he could not be compelled to give his reason. There was a motion for removal of the Speaker, the subject of which was raised, and a few members expressed their views. The speaker brought to the notice of the House the legal position regarding requirement of 14 days clear notice of such a motion and ruled that the motion could be taken up for consideration only the next day. He stated that 'to protect and preserve Democracy' he would like to take up the 'no-confidence' motion straightway on the 14th and asked the Leader of the House if it would be all right. But the Chief Minister said that a date could be fixed later in consultation with the members. The Speaker, however, rejected the suggestion and held that the motion would be taken up for consideration on the next day. Mr. M. G. Ramachandran then raised a point of order and said that the Ministry had lost the confidence of the majority of the members in the party and the people, and questioned the property of the Government continuing in office. Mr. Thangamani also voiced a similar sentiment. The Chief Minister said that the House could straightway discuss the no-confidence motion against the Government. The speaker then explained that an extraordinary situation had arisen in the State and it was advisable to seek fresh mandate from the people. There was some further discussion and the Chief Minister said that he would go to the polls in 1976. Some members suggested that the Chief Minister should have some time a think over the suggestion. The Speaker felt that this was quite proper, especially as the Chief minister did not give a reply whether he was prepared for a re-election even then. He, therefore, adjourned the House till 5-12-1972 in order to enable the government to consider the suggestion made regarding their seeking a fresh mandate from the people. While that was the position the Governor had issued the impugned notification. It was significant that so far no Ordinance had been issued on any matter of importance nor had the Assembly been re-convened to any specific date anterior to 5-12-1972, to which date the House stood adjourned. The speaker, therefore, submits that the order of the Governor is contrary to the letter as well as the spirit of the law and the Constitution, and says that he has no remedy except to seek the aid of this court under Art. 226. The Speaker proceeds to say in his affidavit in support of the petition that the Governor, apparently, on advice, was attempting to follow the precedent of the Punjab Assembly in 1968, but the circumstances were entirely different and hardly analogous. The Speaker has further stated that from the above it would be seen that the Governor is the head of the Executive and forms part of the Legislative along with the two Houses. He derives legislative power only in the absence of the House. While the power to prorogue may not be conditional at the same time, it has to be used to further, rather than frustrate the Democratic process. In the present case, there was no matter of any great urgency which needed to be disposed of before 5-12-1972, and which could not wait till then. The piquant situation caused by the Speaker's adjournment in the Punjab Assembly in 1968 had absolutely no parallel to the present situation in Tamil Nadu. The Governor is, therefore, incorrect in placing any reliance on the Punjab precedent or in seeking to act likewise. The very decision of the Supreme Court in the Punjab case lays open to judicial review an order of the Governor under Art. 174. He, therefore, submits that in the instant case, the exercise of the power by the Governor is vitiated by lack of good faith. In fact, he says, if there was any matter that could be considered important, if not urgent, it was the notice of a motion of no-confidence tabled against him by two members, which he wanted to take on the 14th. By proroguing the House, that notice has lapsed and even if it is sought to be revived, the period of 14 days notice that is mandatory will not enable the matter to be considered much earlier. The Speaker points out that it was significant that though the Assembly had been prorogued, there has since been no notice to convene again nor has any ordinance been issued to lend excuse, if not justification, for the extraordinary act of proroguing the Assembly one day after it had been convened and only to bring all business before it to a standstill. Being in exclusive right and responsibility to steer the course of the Assembly and guide its deliberation, he complains that by the impugned notification, the Governor, has really invaded his exclusive jurisdiction. In a statement to the Press, the Chief Minister had admitted alleges the Speaker, that the Governor acted on the advice of the Government. If this were so he says that it cuts at the very root of the power exercised by him and if allowed to stand, this would in effect mean that every time the Government finds itself in an inconvenient or awkward position, it could avoid the natural consequences of the Democratic process by resorting to the subterfuge of getting the House prorogued. As the Constitutional Head of the State, it is the duty of the governor to enable free discussion on important current issues agitating the minds of the people of the State, and not act on the interested advice of the Government whose anxiety may conceivably lie in a different direction. Inasmuch as the notification of proroguing the Assembly is but a thinly veiled attempt to by-pass his decision to adjourn the House for three weeks in the absence of any kind of emergency or justification, or pending business which needed early consideration, he would submit that the action of the Governor could not be upheld. The Speaker adds that it was significant that the Leader of the House did not bring to his attention at any time, the existence of any pressing or important business that could not wait for three weeks. The fact that the Legislative Council was adjourned the same day sine die was also relevant. The Speaker winds up his affidavit by stating that a perusal of the proceedings that led to the decision to adjourn the house would amply justify his decision which itself was only intended to enable the government to take stock of the situation in the State gauge the public feeling on vital issued, and come to a decision whether to seek the mandate of the people again or not. His decision was, therefore, in perfect accord with the real functioning of the Democratic process; it would not have created any impasse, nor would it have posed any practical problems for the Government. It sought to stay the act of the respondent that at the moment, sought to stay the Democratic process. It is not as if the Assembly would be able to meet earlier than December 5, for the necessary notices have to issue and there appears to be no Ordinance in the offing at all. It is on these allegations and submissions that the Speaker has prayed for the relief from this court. Mr. Ramachandran's affidavit entirely supports the Speaker. In the first instance, the Speaker and Mr. Ramachandran had in their respective petitions only impleaded the Governor as the sole respondent. But they have subsequently taken out petitions to impleaded the Chief secretary to Government and also the Secretary of the Legislative Assembly. These petitions have been ordered by us.

(2.) MR. Thangamani, in his affidavit says that the exercise of the power under article 174 in the instant case was vitiated by lack of good faith and abuse of power as it had been admittedly done on the advice of the Ministry in Office against whom a motion of no-confidence was pending at the time. He goes on to say that when the Speaker in exercise of his undoubted power and privilege had adjourned the House for the Chief Minister to take a concerted decision on the question of having re-elections in view of the situation prevailing in the State, the governor had really enabled the Ministry to side-step the ruling of the Speaker for its own political purpose and convenience and expediency. In doing so the Governor, says Mr. Thangamani, had abdicated his personal responsibility to objectively assess the situation and act in a manner most consonant with democracy, but had merely reflected the subjective reaction of the Ministry whose popular support was challenged, and the Governor had, therefore, failed to discharge his functions under Article 174 in good faith. This, Mr. Thangamani submits brought the present case squarely within the dicta in State of Punjab v. Satyapal, Mr. Thangamani would further say that the Governor when acting under Article 174 was not discharging a purely executive function nor was such an order by him strictly speaking, an act of the Executive issued in his name. Both prorogation and dissolution of the House are acts of far-reaching effects and consequences and affected both the Executive as well as the legislative limits is the State. By necessary implication and a constitutional historical interpretation, the Governor acts in his own right and responsibility when taking a decision under Article 174, and cannot merely voice the views of his council of Ministers. Any contrary interpretation will not only make the Governor a futile and purposeless functionary, but lead to all possible abuses by the Council of ministers whose interest might not necessarily or conceivably always be that of the general public, or of whose interests the Governor, as Head of the State was sole guardian. There was no pending business on 13-11-1972, which could not wait till 5-12-1972. The procedure generally followed before the prorogation involved the participation of the Secretariat of the Legislature the Speaker, the Council chairman, the Leader of the House and the Chief Minister. But Mr. Thangamani, as he goes on to state, understood that in the instant case the usual procedure was not followed and the Speaker was not even informed, much less consulted, and this departure from the usual procedure also pointed to bad faith. Under the Rules the Speaker could advance or postpone the date of any session. If indeed there was any emergent business that could not wait till December 5, and there was a bona fide need to have the session earlier, the Speaker could have been requested to advance this date. Unless he had been so requested and he refused to yield if reasonable, there is no point in rushing to act under Article 174. The short adjournment for three weeks to consider a serious and important issue posed before the Government could not be reasonably construed as leading to a constitutional crisis or administrative stalemate to justify resort to Article 174. These are the circumstances and some of the reasons with reference to which Mr. Thangamani has approached this court with the prayer mentioned earlier. In his petition he has not only impleaded the Governor, but also the Chief Secretary and the Secretary of the Legislative Assembly, as respondents.

(3.) THE Governor, the Chief Minister, the Chief Secretary and the Secretary of the legislative Assembly have filed separate counter affidavits and have resisted the petitions. The Governor at the outset, has stated in his common counter affidavit that under Art. 361 of the Constitution the Governor of a State is not answerable in courts for any of the acts done or purporting to be done by him in the exercise of his powers, nor, did Art. 226 of the Constitution empower the court to issue a writ against the Governor of a State. He has also submitted that the power to prorogue is absolute. Without prejudice to these contentions, he has referred to the circumstances as mentioned in the affidavit of the Chief Minister which led up to the adjournment of the Assembly and consequent prorogation and has stated that he was advised that there was pressing financial business to be transacted by the assembly. On the agenda of 13-11-1972 an important item to be disposed of by the House related of Electricity Budget which had to be taken up immediately after the question hour. It left undisposed of. He was further advised by the Chief minister that there were other important matters which required immediate attention namely, a Bill in respect of Agricultural income-tax, and another measure relating to Betting tax. He had also fixed 16-11-1972 for presentation of supplementary Estimates, 1972-73. All these were matters which were to be disposed of by the legislature. The sudden adjournment by the Speaker putting the Legislative machinery out of action for the time being left no alternative to him, but to prorogue the legislature on the advice of the Chief Minister, in order to enable the emergent Government business to be carried on. Copies of the required ordinance were sent to him on 17-11-1972. While they were being considered by him, he received the rule nisi in the above writ petition and notice of application for stay of the operation of the prorogation order. In deference to these notices, he has not done so. The Governor in his counter-affidavit proceeds to state that he regretted very much that charges of lack of good faith should have been leveled against him. When the Assembly was adjourned till 5-12-1972, without doing any business and he was advised about the need to transact pressing Government financial business as stated already, he thought that it was his duty to prorogue both the Houses, so that there may be no dislocation in running the business of the Government. The petitioners had not given any particulars as to the absence of good faith and only a bald statement to that effect had been made. The governor would, therefore, say that the averment was absolutely untrue and that he denied it. He has also added in his counter affidavit that the order of prorogation was made after careful consideration of the advice of the Chief minister, the proceedings of the Assembly on November 13 and the background of events represented to him. The Assembly had been adjourned by the Speaker without transacting any business, and the Constitution has conferred on him the power of prorogation to remedy such a situation. The Governor has also stated that the allegation of the Speaker that he had invaded his jurisdiction is wholly misconceived, and that, when the Speaker instead of conducting legislative business, adjourned the House for the purpose which was beyond him, it was the right and duty of the Governor under the Constitution to effectuate the Democratic process, and that it was only in the supreme interest of the State that the prorogation had been ordered. The counter affidavit of the Chief Minister, Mr. M. Karunanidhi, has at the outset mentioned that Mr. Ramachandran was a member of the D. M. K. Party, that he was suspended from the party for breach of party discipline, that there after he became antagonistic to the party, formed his own party known as Anna Dravida Munnetra Kazhagam, and has since then been making several allegations and casting aspersions against the Ruling Party including the council of Ministers. According to the Chief Minister, the Speaker of the Legislative Assembly was stated to be siding Mr. Ramachandran and encouraging his anti D. M. K. activities, and that several members of the Ruling Party expressed profound dissatisfaction about his indulging in active politics, contrary to the code of ethics prescribed for the office of the Speaker. This promoted some of the members of the Ruling Party to give a notice of resolution for the removal of the Speaker. Under the Constitution and Legislative Assembly rules, 14 days notice was required for moving such a resolution. The Assembly sat on 13-11-1972 at 10 a. m. During the question hour, some members raised a point of order relating to the notice of resolution for the removal of the Speaker. The speaker said that the notice of resolution could be taken up only on the 14th, as 14 clear days notice was required. He further said that he was prepared to have this taken up on 14-11-1972, and asked the Leader of the House Mr. V. R. Nedunchezhian to give his consent to which he replied that he would consult the speaker and the members and have the date fixed before the Secretary of the legislature Assembly circulated the motion to the members of the Assembly. But strangely enough, a little later, on a point of order raised by Mr. Ramachandran which was no point of order at all either in fact or under the Rules, the Speaker made a speech which was wholly unwarranted on his part, advising him, that is to say the Chief Minister to have the Assembly dissolved and to face the electorate in view of what he termed as an extraordinary situation in that the Council of ministers had lost its support among the people. The Chief Minister in his counter affidavit goes on to say that it was curious that the Speaker should have chosen to tender such advice to the Government which enjoyed the absolute confidence in the Assembly and had an overwhelming majority. That being so, the Council of ministers, of which he was the Chief Ministers, was perfectly and legitimately entitled to continue in office under the Constitution. This unwarranted and uncalled for speech would clearly demonstrate his partisan attitude and it smacks of political overtones. In fact, the Speaker had violated his oath of office in not upholding the Constitution. In tendering such advice, he has not only transgressed, but had even gone to the extent of abusing his position. On the contrary he had offered to have either the motion of censure against the government or the adjournment taken up immediately. But, that was no allowed to be taken up by the Speaker. The Chief Minister adds that the entire proceedings of the Assembly would show that the members of the Treasury bench were restrained and evinced keen interest in proceeding with the transaction of the business. Further, according to the Chief Minister, the Speaker's adjournment was arbitrary and capricious and was done with an ulterior motive of avoiding considerations of the resolution for his removal, and the Speaker had thus prevented the popularly elected Assembly from conducting its lawful deliberations in accordance with the norms of Democracy. Then the Chief Minister adverts to the urgent business awaiting the House. On November 13, the Electricity Budget was to have been considered by the Assembly. The Governor had fixed 16-11-1972, for the presentation of the Supplementary Estimates for 1972-73. Necessary appropriation Bill has to be passed in relation to the Supplementary Estimate in that sitting itself. There was also the Tamil Nadu Agricultural Income-tax (Amendment) Bill which was referred to the Select Committee by the Assembly in its previous sitting. Under this measure, important concessions were to be made to the agriculturists who had expressed difficulties under the existing Act. It may be pertinent to point out that agitation's throughout the State were launched to press for these concessions. The Government was of the opinion that it was eminently an urgent matter and should be given priority in the business to be transacted in the sitting in question itself. Further, no collection of agricultural income-tax had been made for the assessment year commencing from April 1972, pending this measure, as a result of which the work of the Agricultural Income-tax department had come to a stand-still with consequent administrative dislocation, not to speak of the loss of revenue to the Government. Had the sitting continued, similar matters relating to finance would have also been taken up. By the unexpected adjournment of the Assembly by the Speaker before transacting any official business, all these matters came to a stand-still. After a careful consideration of all these matters, says the Chief Minister in his counter-affidavit, he advised the Governor to prorogue the Assembly in order to facilitate the promulgation of the necessary legislation, in relation to the abovesaid financial bills, but before any such steps could be taken, the Speaker approached this court with the petition. The Chief Secretary, Mr. P. Sabhanayagam, in his counter affidavit mentions the urgent business before the House and says that by the unexpected adjournment of the Assembly by the Speaker before transacting any official business, all those matters came to a stand-still, and that in order to facilitate the passing of these matters the Chief Minister advised the Governor to prorogue the Assembly. He states that before further action could be taken after the prorogation, the present writ petitions have been filed and since then, the governor has promulgated, on 21-11-1972, the Tamil Nadu Agricultural Income-tax (Amendment) Ordinance 1972, and the Tamil Nadu Betting tax (Amendment)Ordinance 1972. The Chief Secretary also submits that power of the Governor to prorogue the Assembly on the advice of the Chief Minister, is absolute and unqualified, and the same cannot be questioned in a court of law, that the writ petitions themselves were misconceived and unsustainable, in view of the positive terms of Article 361 of the Constitution, and that under Art 163 (3) of the constitution, the question whether any, and if so what advice was tendered by ministers to the Governor should not be inquired into in any court. Mr. C. D. Natarajan, Secretary to the Legislative Assembly says in his counter affidavit that the prayer for a direction from his court to him to notify the members that the house continued to be in session and would resume on 5-12-1972, to which date it stood adjourned, was one which could not be granted by this court in view of the terms of Art. 212 of the Constitution. According to Mr. Natarajan, as on 13-111972, the party position was as follows : Dravida Munnetra Kazhagam 176; congress (O)13; Anna Dravida Munnetra Kazhagam 9; Communist Party of India 8; Forward Block 7; Muslim League 6; Swatantra 6; Congress 6; Tamil Arasu kazhagam 1; independent 1; nominated member 1; and the Speaker. He has enclosed with his counter affidavit a copy of the agenda for the Legislative assembly and has stated that there were several matters, financial and otherwise, for which notice had been received by him and which were to be considered by the assembly during its sitting from November 13. He also refers to the fact that the governor had fixed November 16, 1972 for the presentation of the Supplementary estimate for 1972-73, and to some other matters including Bills, which were to be considered by the Assembly. Under Rule 22 of the Legislative Assembly Rules, the first hour of every sitting shall unless the House unanimously resolved otherwise, be available for the asking and answering of question. Accordingly, says Mr. Natarajan, he had listed questions on that day to be answered during the question hour, but neither the questions which were listed were taken up, nor did the house unanimously resolve to dispense with the question hour as provided under the rule. But the Speaker adjourned the House, as a result of which very many urgent and important matters listed in his counter affidavit could not be transacted. The Speaker has filed an elaborate reply affidavit in which he says that art. 361 did not invest the Governor with unqualified or absolute immunity that article 154 read with the second proviso to Article 361 property read would indicate that the ambit of the immunity is the ambit of the executive power of the State vested in and exercised by the Governor, and that in regard to such acts alone the governor enjoyed personal immunity because these acts were nevertheless made subject to judicial review in proceedings directed against the Government of the state. The Speaker would also submit that in any case, where lack of good faith or abuse of power was alleged. Art 361 did not bar the court from inquiring into the matter. According to him, the Governor when acting under Article 174, did not discharge an executive function and he was not to be guided solely by the advice of his Council of Ministers, and that in the instant case his admitted acceptance of the advice of the Chief Minister showed that he had not discharged his function under Art. 174 as it should have been, and that the order of prorogation was also unique in that it had not been preceded by any reference to him as Speaker, nor was his opinion sought in the usual manner. This, says the Speaker also pointed to lack of good faith. He continue to state that he did not admit that there were any items of business that could not wait till December 5, and that, indeed if there was any such genuine urgency, nothing prevented the Governor or the Chief Minister from requesting him to act under Rule 17 of the Assembly Rules, and advance the date of the meeting from December 5 to an earlier date which he would have certainly done if any urgency was made out. The Speaker denies that the governor, in the present case, effectuated Democratic process by the prorogation, or that it was in the supreme interest of the State, but says, on the contrary he has failed to assess the situation objectively and inquire from all parties concerned and had merely furthered the political interests of his Council of Ministers. He craves leave to submit that the two Ordinances since promulgated after the issue of rule Nisi would themselves expose the futility of the pretended emergency. The speaker does not admit that the work of the Agricultural Income-tax Department has come to a stand-still, and states that this was an over-statement of the respondent. The Bill itself was referred at the close of the previous session, to the select Committee in view of the divergence of opinion and the report of the Select committee had not been received before the commencement of the present session nor was this an item in the agenda of the Business Advisory Committee. The other Ordinance relating to Betting tax was only a validating measure, and therefore, was not of immediate urgency. The Speaker further submits that when the Governor chose to reveal the advice tendered to him and volunteers the information, there was no bar to this fact being considered by court in determining whether or not he had acted in conformity with the Constitution. He also says that art. 212 (1) would not held the respondent. for, he was not impugning the validity of any proceedings in the Legislature, and further, the Secretary to the Assembly is not an officer on whom any powers are vested by the Constitution, and therefore, was not within the protection of Article 212 (2 ). The Speaker ends his reply affidavit by stating that with regard to the averment in the supporting affidavit of the Chief Minister, without admitting their correctness, he would refer to and rely on them to establish his personal feelings against him, and that it was precisely this prejudice and political animosity of his towards him and his disinclination to listen to any voice of dissent or friendly admonition that permeated his interested advice to the Governor which the latter implicitly accepted, and that it was this bias which was transmitted and violated the proceeding.