Case Note & Summary
The petitioner, P.B. Samant, claiming to be an active social worker, filed a public interest litigation in the Bombay High Court seeking a writ of prohibition, injunction, direction, or order against the Union of India and its Ministers, officers, and servants restraining them from exercising any constitutional powers and functions of the President under various articles of the Constitution, including Articles 3, 76, 80(1)(a), 124, 155, 217, 263, 316, 324, 338, 356, 358, 360, 370, and 371, by tendering 'advice'. The central issue was whether the constitutional functions of the President are to be exercised by the President in his discretion and not by the Council of Ministers. The petitioner argued that the President enjoys executive powers and that constitutional functions by the President are not conferable on officers under Articles 53(3)(b) and 258 of the Constitution. The court noted that a previous petition, Writ Petition No. 2954 of 1987, filed by the same petitioner involving the same or substantially the same questions of law, had already been decided by a learned Single Judge of the same court by a reasoned judgment and order dated 1st October, 1987. The petitioner had appealed against that judgment in Appeal No. 146 of 1988. The court, without delving into the merits, dismissed the present petition on the ground that the issues raised were already adjudicated in the earlier petition. The judgment was delivered by a Division Bench consisting of Chief Justice Dalveer Bhandari and Justice S.A. Bobde, with the petitioner appearing in person and the respondent represented by the Additional Solicitor General, Mr. B.A. Desai, and Mr. A.S. Khan.
Headnote
A) Constitutional Law - Executive Powers of President - Aid and Advice of Council of Ministers - Articles 53, 74, 53(3)(b), 258 of the Constitution of India - The petitioner sought to restrain the Union of India and its Ministers from exercising constitutional powers of the President by tendering advice. The court held that the President exercises executive powers on the aid and advice of the Council of Ministers under Article 74, and the petition was dismissed as the same issues were already decided in a previous petition. (Paras 1-5)
Issue of Consideration
Whether the constitutional functions of the President of India are to be exercised by the President in his discretion and not by the Council of Ministers, and whether the President enjoys executive powers that cannot be conferred on officers under Articles 53(3)(b) and 258 of the Constitution.
Final Decision
The petition was dismissed as the same issues were already decided in a previous petition (Writ Petition No. 2954 of 1987) filed by the same petitioner.
Law Points
- Constitutional law
- Executive powers of President
- Aid and advice of Council of Ministers
- Article 53
- Article 74
- Article 53(3)(b)
- Article 258
- Public Interest Litigation
- Res judicata
Case Details
2005 LawText (BOM) (03) 270
Writ Petition No. 872 of 1990
Dalveer Bhandari, C.J., S.A. Bobde, J.
Petitioner in person, Mr. B.A. Desai (Additional Solicitor General) with Mr. A.S. Khan for Respondent
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Nature of Litigation
Public Interest Litigation (PIL) challenging the exercise of President's constitutional powers by the Council of Ministers.
Remedy Sought
Writ of prohibition, injunction, direction or order restraining the Union of India and its Ministers from exercising constitutional powers of the President by tendering advice.
Filing Reason
Allegation that the President's constitutional functions are being exercised by the Council of Ministers instead of the President in his discretion.
Previous Decisions
Writ Petition No. 2954 of 1987 filed by the same petitioner involving same questions was decided by a learned Single Judge on 1st October, 1987. Appeal No. 146 of 1988 was preferred against that judgment.
Issues
Whether the constitutional functions of the President are to be exercised by the President in his discretion and not by the Council of Ministers.
Whether the President enjoys executive powers that cannot be conferred on officers under Articles 53(3)(b) and 258 of the Constitution.
Submissions/Arguments
Petitioner argued that the President's constitutional functions are to be exercised by the President in his discretion and not by the Council of Ministers.
Petitioner argued that the President also enjoys executive powers and constitutional functions by the President are not conferable on officers under Articles 53(3)(b) and 258 of the Constitution.
Petitioner argued that constitutional powers of the President cannot be exercised by the Ministers under 'advice'; these powers can only be exercised by the President in his discretion on the 'aid and advice' given to him by the Council of Ministers.
Ratio Decidendi
The court did not decide the merits of the constitutional issue because the same questions of law had already been adjudicated in a previous petition filed by the same petitioner. The principle of res judicata or issue estoppel applied, barring the re-litigation of the same issues.
Judgment Excerpts
The central issue involved in this petition is that the constitutional functions of the President of India are to be exercised by the President in his discretion and not by the Council of Ministers.
It may be pertinent to mention that another petition, Writ Petition No. 2954 of 1987, filed by the writ petitioner herein before the Court involving the same and/or substantially the same questions of law has already been decided by a learned Single Judge of this Court by a reasoned judgment and order dated 1st October, 1987.
Procedural History
The petitioner filed Writ Petition No. 872 of 1990 in the Bombay High Court. Previously, the same petitioner had filed Writ Petition No. 2954 of 1987 involving the same questions, which was decided by a learned Single Judge on 1st October, 1987. The petitioner appealed that decision in Appeal No. 146 of 1988. The present petition was heard by a Division Bench and dismissed on 31st March, 2005.
Acts & Sections
- Constitution of India: Articles 3, 53, 53(3)(b), 74, 76, 80(1)(a), 124, 155, 217, 258, 263, 316, 324, 338, 356, 358, 360, 370, 371
