RAMESHWAR PRASAD Vs. UNION OF INDIA

JUDGEMENT

(1.) The general elections to the Legislative Assembly of Bihar were held in three phases in the month of February 2005. The results of the election were notified vide Notification No. 308/b. R.-LA/2005 of the Election commission of India on 4-3-2005. The Governor of Bihar made a report whereupon President's rule was promulgated over the State of Bihar vide notification No. GSR/162 (E) dated 7-3-2005 and the Assembly was kept in suspended animation. By yet another notification of the same date, it was notified that all powers, which have been assumed by the President of India, would be exercised by the Governor of the State. It appears that the Governor of Bihar made two other reports, respectively dated 27-4-2005 and 21-5-2005, based whereupon, on 23-5-2005, a notification GSR No. 333 (E) was issued ordering the dissolution of the Bihar Legislative Assembly.

(2.) On 30-5-2005, Writ Petition (C) No. 258 of 2005 had been filed by one Viplav Sharma, Advocate challenging the notification dated 23-5-2005. The reliefs sought for include (i) quashing of the recommendation reports of the Governor of Bihar for dissolution of the Legislative Assembly, (ii) quashing of the notification dated 23-5-2005 dissolving the State Legislative assembly, (iii) a direction, order or writ of mandamus directing the Governor to forthwith administer the oath to all the elected members of the 13th legislative Assembly of the State of Bihar and make it functional in compliance with Articles 172, 176 and 164 (1) of the Constitution. Certain guidelines are also requested to be framed by this Court in the areas on which the Constitution is silent and does not make explicit provisions. The petition purports to have been filed in public interest. The Union of India, the governor of the State of Bihar (by designation in his official capacity and not by name in his personal capacity) and the Election Commission have been joined as respondents. On 25-7-2005', rule nisi was issued. Later on, on the attention of the Court being invited by making a mention, to the protection conferred on the Governor by Article 361 of the Constitution, on 27-7-2005, the Court directed: (SCC p. 147, para 2) "2. For the present, notice shall not issue to Respondent 2 (the governor of Bihar). The order in that regard made on 25-7-2005' is recalled. "

(3.) On 30-5-2005, yet another petition, Writ Petition (C) No. 258 of 2005 had been filed by a voter in the State of Bihar seeking quashing of the notification dated 23-5-2005. The petitioner claims to have filed the petition in public interest. On 12-7-2005, CWP No. 353 of 2005 had been filed by smt Purnima Yadav, who was elected as member of the Legislative assembly, seeking quashing and setting aside of the notification dated 23-5-2005, dissolving the Legislative Assembly and also seeking restoration of the Election Commission notification dated 4-3-2005 and constituting the legislative Assembly. Initially, the Union of India and the Governor of Bihar (by name) were impleaded as the respondents. However, the petitioner, through her counsel, took a candid stand that in view of Article 361 of the constitution, the Governor could not be added as a party to the petition and called upon to answer in any proceedings in the court and sought the leave of the court to delete the name of Respondent 2 from the array of parties. The petitioner also sought for leave of the court for deleting certain averments made in the petition (which related to Respondent 2) as also to raise some additional points, purely legal ones in support of the leave already sought for. Pursuant to the leave so granted, the petitioner has filed an amended writ petition wherein the Governor of Bihar impleaded by name, the then respondent 2, has been deleted from the array of parties and in stead, the election Commission has been impleaded as Respondent 2.