CASE ANALYSIS: UNR

RAO VS INDHIRA
GAMDHI

Damodaram Sanjivayya National Law

University
 Presented to the faculty of Constitutional law-II,

Damodaram Sanjivayya National Law University

(In absolute fulfillment of the project for Semester IV)

Authored by,

GTGURU CHARAN REDDY, Semester IV, 2018032

Signature of the Faculty:

 ACKNOWLEDGEMENTS

Whenever we get on with a job,we need support in many waysquite often ,we get the support we
requirewhen I sat down to complete this project,I was not sure if i could have managed to
complete even twenty five percent of what i have done nowThe truth is-it wouldnt have been, but
for the priceless support I have recieved during the course of project workSo it is my privilege tp
menmtion them and thank them for their help

I would like to express my gratitrude to MrNageshwar rao ,the head of Constituitional law –II
department for BaLLB course in DAMODARAM SNAJIVAYYA NATIONAL LAW
AUNIVERSITYfor going through my project several timeshe was present everytime to help me
out and he solved patiently all my doubts and queries

A special thanks to my family for just being there for me and letting me knoe that I could count
on them every single timethey gae me the will to get on with this project

”
NAME OF THE CASE: U.N.R. RAO VERSUS SMT. INDIRA GANDHI LNIND 1971 SC 179
 Supreme Court of India

Equivalent citation : AIR 1971 SC 1002, (1971) 2 SCC 63, (1971) 3 SCC 287, 1971 1 Civ Ap J (SC) 176, 1971
(Supp) SCR 46

Judges:

HON'BLE JUSTICE SIKRI

HON'BLE JUSTICE MR. JUSTICE G.K. MITTER

HON'BLE JUSTICE MR. JUSTICE K.S. HEGDE

HON'BLE JUSTICE MR. JUSTICE A.N. GROVER

HON'BLE JUSTICE MR. JUSTICE P. JAGANMOHAN REDDY

CIVIL APPEAL NO.

196 OF 1971 17 March 1971

CASES CITED/REFERRED TO:

(1955) 2 SCR 225 [LNIND 1955 SC 123], A.I.R. (1970) S.C. 1102 [LNIND 1970 SC 33]

LEGISLATION CITED/REFERRED TO:

Constitution, art. 85(2) of the Constitution , art. 75 , art. 85 , art. 53(1) of the Constitution , article 53 ,
article 75 , Motor Vehicles Act, article 3 , Article 166 , art. 75(3) of the Constitution , Article 52 , art. 53 ,
Article 60 , Article 74 and 75 , art. 74 , art. 61 , art.74 , Art.74 , Art. 75 , Art.75 , Art.85 , Art. 83 , s.14 of
Representation of People Act, 1951 , Art.77 , Art. 78.

ACT:
Constitution of India, 1950, Arts,. 74(1) and 75(3) House
of People dissolved,If Prime Minister ceases to hold
office.

Constitution Dissolved Council Executive Power Constitutional Authority Constitution of India,

1950 Arts.74 (1),75 (3), 85 (2)(b) Appellant submitted that as soon as House of the People was
dissolved under Art.85 (2) of Constitution Prime Minister and other Ministers cease to hold
Office Appellant sought writ of qua warrant to be issued against respondent with declaration that
no constitutional authority to office of and to function as Prime Minister of India Whether
respondent has constitutional authority to office of and to function as Prime Minister Held,
council of Ministers must enjoy the confidence of the House of People while the House of
People is not dissolved under Art. 85 (2)(b) such Article 75 (3) has full operation When it is
dissolved Council of Ministers cannot naturally enjoy confidence of House of People Art.75 (3)
only applies when House of People does not stand dissolved or prorogued Art.74 (1) is
mandatory such President cannot exercise the executive power without aid and advice of Council
of Ministers Appeal dismissed.

JUDGMENT
 This appeal by certificate is directed against the judgment of the High Court of Judicature at Madras
dismissing Writ Petition No. 63 of 1971 filed by U.N.R. Rao, appellant before us. In this petition the
appellant had prayed that a writ of quo warranto be issued to the respondent, Smt. Indira Gandhi, and it
be declared that the respondent has no constitutional authority to hold the office of and to function as
Prime Minister of India. In brief, the appellant contends that under the Constitution as soon as the
House of the People is dissolved under , art. 85(2) of the Constitution the Council of Ministers, i.e., the
Prime Minister and other Ministers, cease to hold office. According to him this follows plainly from the
wording of , art. 75 (3), which provides that the Council of Ministers shall be collectively responsible to
the House of the People. How can the Council of Ministers be responsible to the House of the People
when it has been dissolved under , art. 85 (2)? According to him no void in the carrying out of
Government will be created because the President can exercise the Executive Power of the Union either
directly or through officers subordinate in accordance with the , Constitution as provided in , art. 53(1)
of the Constitution .

In constitutional matters it is advisable to decide only those points which necessarily arise for
determination on the facts of the case. It seems to us that a very narrow point arises on the facts of the
present case. The House of the People was dissolved by the President on 27.12.1970. The respondent
was the Prime Minister before the dissolution. Is there anything in the Constitution, and in particular in ,
art. 75 (3), which renders her carrying on as Prime Minister contrary to the , Constitution? It was said
that we must interpret , art. 75 (3) according to its own terms regardless of the conventions that prevail
in the United Kingdom. If the words of an article are clear, notwithstanding any relevant convention,
effect will no doubt be given to the words. But it must be remembered that we are interpreting a ,
Constitution and not an Act of Parliament, a , Constitution which establishes a Parliamentary system of
Government with a Cabinet. In trying to understand one may well keep in mind the conventions
prevalent at the time the , Constitution was framed.

Speaking for the Court (Mukherjea, C.J.) observed in Ram Jawaya Kapur v. State of Punjab(1 )

The limits within which the executive Government can function under the Indian Constitution can be
ascertained without much difficulty by reference to the form of the executive which our , Constitution
has set up. Our , Constitution, though federal in its structure, is modeled on the British Parliamentary
system where the executive is deemed to have the primary responsibility for the formulation of
governmental policy and its transmission into law though the condition precedent to the exercise of this
responsibility is its retaining the confidence of the legislative branch of the state. The executive function
compromises both the determination of the policy as well as carrying it into execution. This evidently
includes the initiation of legislation, the maintenance of order, the promotion of social and economic
welfare, the direction of foreign policy, in fact the carrying on or supervision of the general
administration of the State.

In India, as in England, the executive has to act subject to the control of the legislature; but in what way
is this control exercisable by the legislature? Under article 53 (1) of our , Constitution, the executive
power of the Union is vested in the President but under , article 75 there is to be a Council of Minister
with the Prime Minister at the head to aid and advise the President in the exercise of his functions. The
President has thus been made a formal or constitutional head of the executive and the real executive
powers are vested in the Ministers or the Cabinet. The same provisions obtain in regards to the
Government of States; the Governor or the Rajpramukh, as the case may be, occupies the positions of
the head of the executive in the State but it is virtually the council of Ministers in each State that carries
on the executive Government. In the Indian , Constitution, therefore, we have the same system of
parliamentary executive as in England and the council of Ministers consisting as it does, of the members
of the legislature is like the British Cabinet, a hyphen which joins, a buckle which fastens the legislative
part of the State to the executive part. The Cabinet enjoying, as it does, a majority in the legislature
concentrates in itself the virtual control of both legislative and executive functions; and as the Ministers
constituting the Cabinet presumably agreed on fundamental and act on the principle of collective
responsibility, the most important questions of policy are all formulated by them.

In A. Sanjeevi Naidu V. State of Madras

It was urged on behalf of the appellants in that case that the Parliament has conferred power under
Section 68(C) of the (Motor Vehicles Act, 1939) to a designated authority. That power can be exercised
only by that authority and by no one else. The authority concerned in the present case is the State
Government. The Government could not have delegated its statutory functions to any one else. The
Government means the Governor aided and advised by his Ministers. Therefore the required opinion
should have been formed by the Minister to whom the business had been allocated by the the Rules . It
was further urged that if the functions of the Government can be discharged by any one else then the
doctrine of ministerial responsibility which is the very essence of the cabinet form of Government
disappears; such a situation is impermissible under our , Constitution.

Speaking on behalf of the Court, Hedge J. repelled the contentions in the following words:

We think that the above submissions advanced on behalf of the appellants are without force and are
based on a misconception of the principles underlying our Constitution. Under our , Constitution, the
Governor is essentially a constitutional head, the administration of State is run by the Council of
Ministers. But in the very nature of things, it is impossible for the Council of Ministers to deal with each
and every matter that comes before the Government. In order to obviate that difficulty the ,
Constitution has authorized the Governor under sub-, article 3 of , Article 166 to make rules for the
more convenient transaction of business of the Government of the State and for all the allocation
amongst its Ministers, the business of the Government. All matters excepting those in which Governor is
required to act in his discretion have to be allocated to one or the other of the Ministers on the advice
of the Chief Minister. Apart from allocating business among the Ministers, the Governor can also make
rules on the advice of his Council of Ministers for more convenient transaction of business. He can, not
only allocate the various subjects amongst the Ministers but may go further and designate a particular
official to discharge any particular function. But this again he can do only on the advice of the Council of
Ministers. The Cabinet is responsible to the legislature for every action taken in any of the ministries.
That is the essence of joint responsibility.
Let us now look at the relevant articles of the Constitution in the context of which we must interpret ,
art. 75(3) of the Constitution . Chapter I of Part V of the , Constitution deals with the Executive. , Article
52 provides that there shall be a President of India and , art. 53 (1) vests the executive power of the
Union in the President and provides that it shall be exercised by him either directly or through officers
subordinate to him in accordance with this , Constitution. The last five words are important inasmuch as
they control the President s action under , art. 53 (1). Any exercise of the executive power not in
accordance with the , Constitution will be liable to the set aside. There is no doubt that President of
India is a person who has to be elected in accordance with the relevant provisions of the , Constitution
but even so he is bound by the provisions of the , Constitution. , Article 60 prescribes the oath or
affirmation which the President has to take. It reads.

I, A.B., do swear in the name of the God/solemnly affirm that I will faithfully execute the office of
President (or discharge the functions of the President) of India and will to the best of my ability
preserve, protect and defend the Constitution and the law and that I will devote myself to the service
and well-being of the people of India.

Article 74 and 75 deal with the council of Ministers. They read thus: 74.

(1) There shall be a Council of Ministers with the Prime Ministers at the head to aid and advise the
President in the exercise of his functions.

(2) The question whether any, and if so what, advice was tendered by Ministers to the President shall
not be inquired into in any court.

75.

(1) The Prime Minister shall be appointed by the President and the other Ministers shall be appointed by
the President on the advice of the Prime Minister.

(2) The Ministers shall hold office during the pleasure of the President.

(3) The Council of Ministers shall be collectively responsible to the House of the People.

(4) Before a Minister enters upon his office, the President shall administer to him the oaths of office and
of secrecy according to the forms set out for the purpose in the Third schedule.

(5) A Minister who for any period of six consecutive months is not a member of either House of
Parliament shall at the expiration of that period cease to be a Minister.

(7) The salaries and allowances of Ministers shall be such as Parliament may from time to time by law
determine and, until Parliament so determines, shall be as specified in the Second Schedule. I
t will be noticed that art. 74 (1) is mandatory in form. We are unable to agree with the appellant that in
the context the word shall should be read as may . , Article 52 is mandatory. In other words there shall
be a President of India. So is , art. 74 (1). The Constituent Assembly did not choose the Presidential
system of Government. If we were to give effect to this contention of the appellant we would be
changing the whole concept of the Executive. It would mean that the President need not have a Prime
Minister and Ministers to aid and advise in the exercise of his functions. As there would be no Council of
Ministers, no-body would be responsible to the House of the People.

With the aid of advisers he would be able to rule the country at least till he is impeached under , art. 61 .
It seems to use that we must read the word shall as meaning shall and not may . If art.74 (1) is read in
this manner the rest of the provisions dealing with the Executive must be read in harmony with. Indeed
they fall into place. Under , art. 75 (1) the President appoints the Prime Minister and appoints the other
Ministers on the advice of the Prime Minister, and under , art. 75 (2) they hold office during the pleasure
of the President. The President has not said that it is his pleasure that the respondent shall not hold
office. Now comes the crucial clause three of art. 75 . The appellant urges that the House of People
having been dissolved this clause cannot be compiled with.

According to him it follows from the provisions of this clause that it was contemplated that on the
dissolution of the House of People the Prime Minister and the other ministers must resign or be
dismissed by the President and the President must carry on the Government as best as he can with the
aid of the Services. As we have shown above, , Art.74 (1) is mandatory and, therefore the President
cannot exercise the executive power without the aid and advice of the Council of Ministers. We must
then harmonise the provisions of , Art. 75 (3) with , Art.74 (1) and , Art.75 (2). , Art. 75 (3) brings into
existence what is usually called Responsible Government . In other words the Council of Ministers must
enjoy the confidence of the House of People. While a house of People not dissolved under , Art.85 (2)
(b), Art(75(3) has full operation. But when it is dissolved the Council of Ministers cannot naturally enjoy
the confidence of the House of People. Nobody has said that the Council of Ministers does not enjoy the
confidence of the House of People when it is prorogued. In the context, therefore, this clause must be
read as meaning that , Art. 75 (3) only applies when the House People does not stand dissolved or
prorogued.

We are not concerned with the case where dissolution of the House of People takes place under , Art.
83 (2) on expiration of the period of five years prescribed therein, for Parliament has provided for that
contingency in , s.14 of Representation of People Act, 1951 . On our interpretation other articles of the
Constitutions also have full play; e.g. Art.77 (3) which contemplates allocation of business among
Ministers, & , Art. 78 which prescribes certain duties of Prime Minister. We are grateful to the learned
Attorney General and the appellant for having supplied to us compilations containing extracts from
various books on Constitutional Law and extracts from the debates in the Constituent Assembly. We
need not burden this judgment with them. But on the whole we receive assurance from the learned
authors and the speeches that the view we have taken is the right ones, and is in accordance with
conventions followed not only in the United Kingdom but in other countries as following a similar
system of responsible Government.

In the result the appeal fails and is discussed, but there will be no order as to costs in this Court.
HELD: There is nothing in the Constitution and in particular inArt. 75(3) which renders
the respondent functioning as Prime Minister contrary to the Constitution. The Indian
Constitution establishes a Parliamentary system of Government with a Cabinet, and not a
Presidential form. Article 75(3) brings into existence responsible Government, that is, the
Council of Ministers must enjoy the confidence of the House of the People. In the context, it
can only mean that Art. 75(3) applies when the House of the People does not stand dissolved
or prorogued, for, when it is dissolved, the Council of Ministers cannot naturally enjoy the
confidence of the House. But such dissolution of the House does not require that the Prime
Minister and other ministers must resign, or cease to hold office or must be dismissed by
the President, because, Art. 74(1). Is mandatory and the President cannot exercise his
executive power without the aid and advice of the Council of Ministers, with the Prime
Minister at the head. This view is also in accordance with the conventions followed not
only in the United Kingdom but in the countries following a similar system of responsible
government