New Delhi, October 7
In a rebuff to the UPA Government, the Supreme Court today quashed the Presidential order dissolving the Bihar Assembly based on Governor Buta Singh’s two controversial reports. The court, however, refused to restore it in view of the elections already declared by the Election Commission (EC) to be held in four phases from October 18.
Clearing any doubt about the fate of the ongoing election process, a five-judge Constitution Bench, headed by Mr Justice Y.K. Sabharwal, in a majority verdict held that “the proclamation of May 23 dissolving the Bihar Assembly is unconstitutional.”
The Assembly, which was kept in suspended animation following the imposition of Central rule on March 7 because no party or alliance could get a majority of 122 MLAs in the 243-member House, was dissolved on May 23 by the Union Government after obtaining the assent to a Cabinet’s midnight decision from the President in Moscow.
Since the detailed judgement is yet to be delivered by the Bench, which had expressed its inability to give it prior to the first phase of polling on October 18 due to paucity of time, the court had thought it fit to give a short order to clear any lingering doubt over the fate of election, on which there were apprehension in the minds of political parties after the judgement was reserved by it on September 29.
Without making any observation either on Union Government or Bihar Governor Buta Singh’s action in the five-page short order, the Bench having Mr Justice K.G. Balakrishnan, Mr Justice B.N. Agrawal, Mr Justice Ashok Bhan and Mr Justice Arijit Pasayat said, “Despite the unconstitutionality of the impugned proclamation, but having regard to the facts and circumstances… the present is not a case where in exercise of discretionary jurisdiction the status quo ante deserves to be ordered to restore the Assembly.”
But the striking down of the proclamation is being seen in legal and political circles as an indictment of the Union Government for its unconstitutional action, particularly that of Governor Buta Singh, whose controversial reports of April 27 and May 21 had come under close scrutiny of the Bench, which had grilled Attorney General Milon
Banerjee, Solicitor General G.V. Vahanvati and ASG Gopal Subramaniam on various aspects of his recommendations.From the short order it was, however, not clear as which of the five judges had given the majority opinion and who had dissented as it would only be known when the detailed verdict is delivered later. It was also not clear whether the minority opinion by dissenting judges or a judge was only confined to the question of constitutional validity of the proclamation or also on the issue of restoring the dissolved Assembly.
The court said since many “intricate and important questions of law having far reaching impact” had been addressed by former Attorney General Soli J. Sorabjee from the side of petitioners and government law officers, the pronouncement of judgement with detailed reasons was likely to take some time.
It said the short order was necessitated due to the announcement of the election process by EC on September 3 while the petition was still being heard and the date for first phase of polling was fixed for October 18.
But it preferred to record the statement of Union Home Minister Shivraj Patil in Rajya Sabha in the brief order quoting him saying that “Government was not happy to impose President’s rule in Bihar…”
It further quoted him as having said, “Government would not like to see that the President’s rule is continued for a long time but it is for elected representatives to take steps in this respect; the Governor can ask them and request them ... to talk to each other and create a situation in which it becomes possible for them to form a government.”
But contrary to Home Minister’s statement in Parliament, the government counsel had strongly defended the dissolution of the Assembly and even went on to claim that the Governor with a view to maintain “purity of democratic process and constitution” could prevent a leader from staking claim to form a government with a “rag-tag
majority" support in the House obtained by “illicit means”.
During the hearing, the court on specific charges of “horse trading” had asked government counsel how can a conclusion regarding this be drawn merely on the basis of media reports, information of some political functionaries and purported intelligence information, which Governor mentioned in his reports, not supported by any material evidence.
The dissolution was challenged in three separate writ petitions - one by four NDA supporting MLAs led by Rameshwar Prasad, second by independent legislator Purnima Yadav and a PIL by advocate Viplav Sharma.
The main ground of challenge was that the Governor had acted with “mala fide” intention of pre-empting JD(U) leader Nitish Kumar from staking claim to form a government when a section of Lok Jan Shakti (LJP) MLAs had pledged support to him to overcome the stalemate in Assembly after ractured mandate in last elections when the House was not even convened and MLAs had not even been administered oath.
Sorabjee had heavily relied on Home Minister’s statement in Parliament to show that how the Governor had failed in his constitutional duty to see that a viable government was formed after the election and had instead forced
unnecessary elections on the already cash strapped state.
Mr Buta Singh in his reports to the President had stated that moving of a section of LJP MLAs towards JD(U) was a “very disturbing and alarming feature” and had shown more concern for the “restiveness” among MLAs of Lalu Prasad’s party RJD, putting pressure on him to form a government in Bihar on the pattern of UPA at the Centre.
While observing that the Governor seemed to be more concerned about “restiveness” of RJD, the court had questioned how he had came to a conclusion about the alleged purchase of MLAs when he did not have any material evidence before him.
The Bench had also questioned the Governor’s powers to prevent a leader form staking claim to form the government, asking should his role come after the claim is staked or before it.?
The petitioners had relied heavily on apex court’s verdict in S.R. Bomai case which is being considered a bench mark for use of Governor’s discretionary power under Article 356 of the Constitution and also referred to the Sarkaria Commission report.
