M A I N   N E W S

Opinion
Bihar Assembly: Autopsy possible, not resurrection
By Fali S. Nariman — exclusive to The Tribune

On “dissolution” the Constitution says very little: the duration of every legislative assembly is five years unless the Governor dissolves the same earlier. As to when and under what circumstances a dissolution should take place is not prescribed. That is left to the good sense of the Governor. But in the case of Bihar that decision was taken out of the Governor’s hands.

As from March 7, 2005, the Governor’s power of dissolution of the ‘hung’ State Assembly of Bihar stood vested in the President: this was as a consequence of imposition of President’s rule in that State. On the night of May 22, the Bihar Assembly was pronounced dead by the President acting on the aid and advice of his Council of Ministers.

With judicial intervention (which now appears to be threatened) there can be at best an autopsy report on the demise, not a resurrection. But the method and manner of the dissolution of the Bihar Assembly has thrown up important questions.

Some weeks after the Presidential Proclamation (under Article 356) had been approved by both Houses of Parliament the Bihar Governor went on record to say that there were “reports”, and then “solid proof” of “rampant horse-trading” amongst elected members of political parties in Bihar to somehow get together a majority coalition and to stake a claim to form a government; it was characterised by him as a “corruption of democracy”; it appears that on his recommendation the Council of Ministers at the Centre on the mid-night of May 22, 2005, advised the President who was then in Moscow, that the State Assembly be immediately dissolved.

Parties in Opposition to the government at the Centre maintain that even though more than two months had elapsed since the Bihar elections, and the Assembly had even been placed under “suspended animation”, no attempt had been made by the Governor or by the Centre to install a government in Bihar; that many elected members including Independents began giving support to the NDA (the single largest group returned after the elections); and that just before a majority could be asserted, the Bihar Assembly was precipitately dissolved.

The dissolution was characterised as a “murder of democracy”; that a large number of members had defected for corrupt reasons was disputed; it was said that their purpose was only to ensure that a stable government could be put in place in Bihar and fresh elections avoided.

As to which of these versions is true has been a matter of much dispute and speculation. We could have known. But alas we will now never know, for sure. Let me explain.

Constitutionally, the President is not bound by the advice initially given by his Council of Ministers. Under the proviso to Article 74 he has a discretion to specifically require his Council of Ministers to reconsider their advice, and only if the same advice is again tendered after such reconsideration, is he constitutionally bound by that advice.

The power of the President to require the Cabinet to reconsider its advice has been invoked by Presidents in the past in important matters, and with good results. In March 1996, in Prime Minister Narasimha Rao’s time, President Sharma sent back two draft Ordinances forwarded to him by the Cabinet “as being contrary to canons of constitutional propriety”; the public supported him; when all this got known the Cabinet dropped its request for promulgation of the Ordinances. In President K R Narayanan’s tenure he had also returned for reconsideration the advice of the Cabinet that President’s rule be imposed in Bihar; when news of this got around, Prime Minister Gujral wisely dropped his recommendation for imposition of President’s Rule in Bihar!

It should be noted that the power to ask the Council of Ministers to reconsider their advice is conferred only on the President, not on Governors of States. It is a unique power, deliberately conferred, it is the power of Superior Constitutional Wisdom - rarely to be invoked, it is true, but nevertheless a power coupled with a constitutional duty to exercise it if the President in his absolute and independent judgment thinks it fit to do so.

The imposition of President’s rule on March 7 made on the Report of the Governor was itself controversial and had excited much adverse comment. Ordering a dissolution of a recently elected Assembly (in Bihar) was necessarily going to be even more controversial: especially its timing. The President, in whom the power of dissolution had now vested had to ensure that the advice given to him was not driven by petty party considerations as had been alleged by the Opposition but by higher considerations of State policy as was asserted by the Council of Ministers.

The President had to exercise his mature and considered judgment on which side of the line the disputed assertions fell - “corruption of democracy” or “murder of democracy”? This he could only do after he had fully informed himself of the contentions on both sides of the fractured political spectrum. But the President denied himself this opportunity. In this he erred, he gravely erred. I believe that this will be reckoned as one of the few (perhaps the only) questionable decision of importance taken by an otherwise highly conscientious, and most distinguished and lovable Head of State.