Disapproving the action of the Centre recommending to the President at Moscow at midnight on May 23, 2005, the Cabinet decision for dissolving the House, the majority judgement by Chief Justice Y. K. Sabharwal, Mr Justice B.N. Agrawal and Mr Justice Ashok Bhan said Governor Buta Singh had “misled” the Centre in recommending the dissolution with a “mala fide” intention to prevent the formation of a government by a particular party, which was trying to cobble a majority.

The Governor, who had failed to place on record any material to show that his report about the alleged “allurement” offered to a section of MLAs of Lok Janshakti Party (LJP) trying to align with JD(U) and BJP combination, the court said “clearly the Governor had misled the Council of Ministers in recommending the Presidential proclamation. Such fanciful presumptions will subvert the democracy and the Constitution”.

Stating that post-poll alliances were not unknown to the country’s politics, the court said if MLAs wanted to vote in the House in a particular manner, it was for them to face the consequences if they would have violated the anti-defection law, but “the stage for that had not arrived” when the Governor acted. A duty had been cast upon the Speaker under 10th Schedule to decide if anti-defection laws were applicable, as the presiding officer of the House acts in his “judicial capacity” to deal with this question, the court said, adding that the Governor could not take upon himself that role.

It was wholly an "unconstitutional act” it said, holding that defections were not unknown but subject to assessment of Speaker under the provision of 10th Schedule of the Constitution to see whether the majority was cobbled with fair or unfair means.

“The Governor’s duty was to preserve the Constitution, the rule of law and the democracy, but in this case Governor’s reports (of April 27 and May 22 recommending President's rule) do not show that he did it to achieve this objective,” the court said, adding that his reports rather talked of “caste and other factors”.

However, in their separate minority judgements, Mr Justice K.G. Balakrishnan and Mr Justice Arijit Pasayat did not agree with the majority view that the court had the power of “judicial review” of Governor’s decisions as he enjoyed immunity under Article 361 against such scrutiny by the courts.

But the majority judgement said though the Governor had immunity from being called to the court or put on its notice under Article 361, but his decision if taken with a “mala fide” intention, was subject to the scrutiny of the court. “The courts cannot remain silent spectators to the subversion of the Constitution,” it observed.

There was nothing wrong if the MLAs wanted to come together to form a government when people had thrown a fractured mandate in the February 2005 elections. If the Governor had no material regarding alleged bribes being offered to the MLAs to support his action, he should have allowed the formation of the government. By not permitting the formation of government on mere “assumption was mala fide” on his part, the majority judgement said.

The court rejected the stand of the Union Government that Buta Singh had acted to enforce the “public morality” by not allowing an “unholy” alliance to come to power, saying the Constitution has not “permitted any constitutional authority to lay down its own standards of public morality… it is very difficult to leave this question to the high constitutional authority… the definition of public morality may change from time to time”.

On the question of not ordered restoration of the Assembly in its short order of October 7, the majority judgement said, it was not done because the Election Commission had already announced the poll schedule and made arrangements for fresh poll. Had it not been done, the status quo ante was the automatic consequence once the dissolution order was held to be “unconstitutional”, it said.

But Mr Justice Balakrishnan and Mr Pasayat referred to corruption in public life and stated that any move to cobble majority where allurement of powers were being offered to legislators should be discouraged.

Mr Justice Balakrishnan said the JD(U) and BJP combine, under the leadership of Nitish Kumar, had not actually staked the claim to form the government and Governor Buta Singh’s two reports were in themselves a “material” for Centre to come to the conclusion about dissolution, which was recommended by the Governor almost three months after the elections.