E-Paper
Dissolution of Bihar Assembly is debatable
UNDER THE Constitution, the Governor, no doubt, is empowered to send report to the centre recommending dissolution of the Assembly if the circumstances so warrant under the law, but it is for the Union Government to verify the authenticity of the recommendation of the Governor and take decision thereafter. And as such the Union Government failed to discharge its constitutional obligation in accepting the report of Governor. So, what Supreme Court did ought to have been done by the Union Government itself.
UNDER THE Constitution, the Governor, no doubt, is empowered to send report to the centre recommending dissolution of the Assembly if the circumstances so warrant under the law, but it is for the Union Government to verify the authenticity of the recommendation of the Governor and take decision thereafter. And as such the Union Government failed to discharge its constitutional obligation in accepting the report of Governor. So, what Supreme Court did ought to have been done by the Union Government itself. Therefore, to maintain the highest tradition of democracy, the Union Government should resign and toe the line of Buta Singh.
The judgment in the matter being majority one i.e. 3 to 2, and the matter having serious repercussions on the constitutional functioning, it is highly desirable that either on the initiation of any party or suo moto, the Supreme Court should refer the matter to larger bench i.e. at least 11 Judges of Supreme Court and help in restoring democratic fabric of the Constitution of India.
At present, there being no guidelines or norms in the appointment of Governors, either politicians or their henchmen, are appointed as Governors and they have no option except to function on the dictate of the Union Government. Whenever the assembly is contemplated to be dissolved , the Union Government procures a recommendation from the Governor to achieve its ends and hardly Governor sends any independent recommendation. Therefore, I am in complete agreement with the judgment of Supreme Court that Government should provide or legislate norms for the purpose and appointment of Governors.
(The writer is former Chairman of Bar Council of India and a prominent senior advocate of Allahabad High Court)
‘The guidelines for appointment is not required’
Ravi Kiran Jain
First and foremost, it is not for the political parties to say that Supreme Court did not have power to scrutinise the actions of the Governor. In the famous SR Bommai's case, nine Judges Bench has decided the scope of the judicial scrutiny and the Governors action can be scrutinised by the judiciary.
Further , Governor's action is the action of the Cabinet because the Governor had to act on the aid and advice of the Council of Ministers.
So far as guidelines for the appointment of Governors is concerned, the appointment of Governors is done by the President of India, the highest constitutional functionary. The President too has the power to dismiss the Governor.
Therefore, to me it seems that the guidelines for appointment is not required. Even if there is some guideline, the same cannot be a safeguard. So far as acceptance of the report of the Governor is concerned in the present case, the Council of Ministers should not have acted mechanically upon it. They should have applied their mind. It was writ large, that the action was arbitrary.
Regarding the legislation of norms by the government for the appointment of Governors are concerned, it can be said that the post of Governor should not be distributed as booty or state largess particularly for political considerations. However, one recall the personalities like Madhu Dandavate and Rabi Ray, who refused the offer of Governorship because it will appear to be political patronage.
(The writer is a prominent senior advocate of Allahabad High Court)
‘Mere charge of horse-trading is not sufficient ground for the dissolution’
Nandita Adawal
A Severe indictment of Bihar Governor Buta Singh by a five judges' constitutional bench of Supreme Court came as a big jolt to the present central government. The Supreme Court came down heavily on Buta Singh as the dissolution of the State Assembly last year was held illegal and unconstitutional and indicted him for 'mala-fide exercise of power and subversion of the Constitution'.
It was further held that the Governor had acted in undue haste in sending his report and made a comment on the Union Government also for not verifying the facts stated in the report of the Governor before hurriedly accepting it as a gospel truth as to what the Governor stated.
Governor is the constitutional head of a state in our Indian federal system and plays a pivotal role in defining the centre-state relationship. He is also entrusted to play important constitutional obligations. Formation of state government is the most important function of the Governor.
This responsibility is even more complex to decide when there is no clear cut majority of any political party to form the government and in such cases the Governor uses his discretion of either calling the largest political party to form the government or recommending the dissolution of state assembly.
The recent Supreme Court judgment curbing the power of the Governor had opined that "adjudication of defection is not within the domain of a Governor'', the mere charge of horse-trading is not sufficient ground for the dissolution and Governor will have to provide sufficient evidence regarding such severe charge.
Most of political parties have used the office of the Governor to meet their political interests in recent times and this is not the first time we have confronted with such a situation. If we go back, the Sarkaria Commission report had already recommended that the Governor should be a person of integrity and constitutional expertise.
He or should not have a turbulent and recent political past and should be some eminent personality from some walk of life. The recommendations which Sarkaria Commission made are not followed till now. The post of the Governor is highly sensitive one and should be entrusted to a person who hands it with dignity.
(The writer is a lady advocate of Allahabad High Court)
‘President had to act on the advice of Council of Ministers’
S Farman Ahmad Naqvi
The recent judgment of Supreme Court in had been curiously waited by the people than any other judgment of Supreme Court was ever been waited and watched.
The case of Rameshawar Prasad & others vs. UOI relates to the imposition of President's rule & subsequently dissolution of Bihar Assembly in the year 2005. The main challenge in the said petition was the constitutional validity of notification dated May 23,2005 ordering dissolution of Bihar assembly.
In this case it was stressed that before any meeting of assembly, it was dissolved on the ground that as no party could get majority and attempts are being made to cobble the majority by illegal means to form a popular government.
One of the important question rose before the Apex Court in the above case was whether an assembly can be dissolved by invoking the power under article 356 (1) of Constitution to prevent a political party to stake its claim on the ground that the said party had obtained majority by illegal means.
The Constitutional mechanism regarding formation of government and the powers of Governor are very clearly laid down in the constitution. Besides article 356, two more important articles are widely attracted in the case in hand viz. articles 74(2) and Article 361 of Constitution of India.
The President had to act on the advice of Council of Ministers appointed by him, as provided under article 74 (1). Under article 74(2), it is provided that the question whether any, and if so, what advice was tendered by Ministers to the President shall not be inquired into in any court. Article 361 of Constitution lays down that President or Governor shall not be answerable to any court for the exercise and performance of the powers and duties of his office or any act done in or purporting to be done by him in exercise and performance of those duties.
The landmark decision of like nature was of S R Bommai's case decided by SC in 1994. In S R Bommai's case (AIR 1994 SC 1918) it was laid down by the SC that the power under article 356 (1) should be exercised very sparingly. It was laid down that the floor test may be one consideration which the Governor may keep in view, but whether or not to resort to it would be dependent on the prevailing situation.
It was stressed by the SC "the possibility of horse trading also to be kept in view having regard to the prevailing political situation" (Para 198, AIR 1994 SC 1918). The Governor in such circumstance assumes most important role because he is the person who is to be satisfied about the formation of Govt. without any 'horse trading'. Governor of Bihar sent a report on April, 27th, 2005 to the President of India, stating that the newspaper reports and other reports gathered through meeting with various party functionaries/leaders and also intelligence reports received, indicated a trend to gain over elected representatives of the people and various elements within the party and also outside the party being approached through various allurements like money, caste, posts etc., which was a disturbing feature.
The Governor, as per the scheme of Constitution can only submit a report to the President who in his wisdom can accept it or reject it on advice by central council of Ministers. Neither the report of Governor nor the advice of Council of ministers to the President could be questioned in a court, except in a very limited manner.
The Governor has got no other machinery, except the state machinery to make basis of his report, as well as the bare facts which are evident to one and all in a peculiar scenario like one evident in Bihar in March or thereafter. The bare facts are saying otherwise, the horse trading was the only method available to get the impossible magic figure of 122 to attain majority in Bihar.
(The writer is an advocate of Allahabad High Court)
‘The issue led to widely publicised controversy’
Neeraj Kanta Verma
The Constitution of India is the highest tier of Law that Independent India gave itself. The combined brilliance of the members of the Constituent Assembly can never be overstated. The result of their efforts find manifestation in the Constitution, which is also based on a study of various Constitutions of the world, and it incorporates several ideas and conceptions that existed in earlier texts.
However, three main sources may be specially mentioned. First is the American Constitution, which is generally regarded and accepted as a model of a Federal Constitution. On the subject of fundamental rights, judicial enquiry into the validity of laws, inter-state commerce, etc., the American Constitution is a valuable source of guidelines.
However, basic features of the said text naturally differ from our Constitution, since it was necessary to adopt measures which were best suited to address India's future, given its own circumstances.
Secondly, with regard to writ proceedings, which are special and, next to Fundamental Rights, perhaps the most prominent feature of the Indian Constitution, English Law is invaluable. It also formed the backbone of initial precedents for India's fledgling democracy immediately after it became Independent.
Thirdly, the Constitution is in many places an adaptation of the Government of India Act, 1935.
The Constitution of India separates governance in three categories, namely the Executive, the Legislature and the Judiciary. These again, are divided between the Union and the States. For the Union of India, the President is the Head of the State, whereas in the States, the Governor discharges this function.
The intention of the founding fathers was to create a system of checks and balances to ensure that, while all the three arms of Government worked in harmony, at the same time each could prevent the misuse of power by another arm, without any conflict or needless fiction.
Articles 52 to 62 of Part-V of the Constitution of India deal with the office of President of India. Similarly Articles 153 to 162 in Part VI, define the role and office of the Governors of States. In the Indian Constitutional framework, the State remains constant, and there is no break in its existence, whosoever may be its head. However, the governments change, both of the Union and of the respective States .
Since the Counsel of Ministers advises the President and Governors, a heavy responsibility rests on the former. Equally serious, if not more , is the power vested with the Governor who reports to the President of India. Article 163 and 164 of the Constitution of India outline the procedure for the formation of the Government in the States, and the Governor appoints the Chief Minister who in turn, advises the Governor about the members and formation of the Council of Ministers.
Conversely, if the government loses its majority status, then instead of waiting for the regular term to finish, the Governor should recommend the dissolution of the assembly to the Council of Ministers of the Union, who in turn advise the President to do so.
The aforesaid controversy will probably rage on. However, the basic question which must be answered to vindicate our great nation's claim to a free democracy where the rule of law prevails, is whether any law, no matter how profound or noble, is equipped to eliminate capricious delinquency from human behaviour.
The answer, sadly, cannot be found in any book. It lies in the human conscience. Because, when conscience reprimands, it is a far more scathing indictment than criticism from peers or posterity.
(The writer is an advocate of Allahabad High Court)
