Can a Legislative Assembly Function without an Executive Government under the Indian Constitution?

Publication Type

Journal Article

Version

acceptedVersion

Publication Date

1-2008

Abstract

Can the Governor dissolve a Legislative Assembly under the Indian Constitution even before convening its first meeting on the ground that no party had adequate mandate to form the government? That was the question posed before the Supreme Court in Rameshwar Prasad. The Court held in the affirmative. For the Court, a Legislative Assembly can be brought into existence only when some members of the Legislature are in a position to form the Executive Government (the Cabinet). This short comment proposes an argument to the contrary. I argue that the Supreme Court's conclusion was made possible by a method of qualified silence. The comment identifies three forms of qualified silence in the text of the judgment and argues that in so concluding the Court inverted the normative positions of the Legislature and the Executive. In a parliamentary democracy, where the Legislature legitimises public institutions and offices including those of the Executive, the relationship must be otherwise.

Keywords

Cabinet, Legislature, parliamentary democracy, silence, Legal Systems, Theory and Regulation

Discipline

Asian Studies | Constitutional Law | Law and Society | Public Law and Legal Theory

Publication

Public Law

First Page

224

Last Page

233

ISSN

0033-3565

Publisher

Sweet and Maxwell

Comments

Summer 2008 issue

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