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Dissolving Raj Bhavans

In the recent Bihar legislative assembly case, three judges out of a bench of five Supreme Court judges have held that Governor Buta Singh made a report to the president to dissolve the assembly with the real motive of preventing Nitish Kumar from forming the government.

india Updated: Jan 31, 2006 02:06 IST

In the recent Bihar legislative assembly case, three judges out of a bench of five Supreme Court judges have held that Governor Buta Singh made a report to the president to dissolve the assembly with the real motive of preventing Nitish Kumar from forming the government. The three judges (Chief Justice Y.K. Sabharwal, Justice B.N. Agrawal and Justice Ashok Bhan) say that the governor had no relevant material for his stated apprehension that the elected representatives were being allured with money, horse-trading and the like to cobble up a majority and as such his report was made mala fide.

Two other dissenting judges (Justice K.G. Balakrishnan and Justice A. Pasayat), however, find that Nitish Kumar never made a claim to form a government. Therefore, the question of his being prevented from staking a claim to form the government never arose. Further, they say that the governor’s perception that foul means were being resorted to in order to form a majority was a relevant fact to report to the president, who ultimately made the decision on the advice of the council of ministers.

A perusal of 350 pages of the three judgments of the court raises some vexed questions.

Quite apart from the facts of the Bihar case, the majority lays down a far-reaching proposition for the future functioning of governors (and necessarily the president) in making the choice of a party or parties to form a government. According to the majority view, no governor, even the most informed and neutral one, can “refuse the formation of a government and override a majority claim because in his subjective assessment the majority was cobbled up by illegal and unethical means”. Hence, according to the majority, “such a power would be against the democratic principle of majority rule”.

According to the majority judges, “Such a power, if allowed to the governor, may be a handle to reject post-election alignments, plunging the state into another election”. The governor having no role, the majority says that, “These are the aspects best left to be determined by the political parties, which, of course, must set healthy and ethical standards for themselves, but in any case the ultimate judgment has to be left to the electorate, and the legislature comprising also members of the opposition”. The Tenth Schedule to the Constitution, which seeks to prevent defections by disqualifying members of the House who defect from their party, is, according to the majority view, not relevant for consideration at the time when the governor has to invite a party or parties to form a government.

With great respect to the majority of the court, if this is right, governors (and the president) must now remain silent spectators to horse-trading and to other dishonest breaking-up of parties by allurements. They have no option but to allow claims to form a government by parties who resort to foul practices. This must be so even if the combination so gathered is not likely to give any stable government.

This is what one of the dissenting judges, Justice Pasayat, forcibly points out. The view of the majority will encourage even more defections and breach of faith by elected representatives to the electors, which is the bane of our political life today. A governor who now honestly refuses the claim of a cobbled-up party or parties to form a government, by defections from other parties by monetary or other rewards to the defectors, runs the risk of his refusal being challenged in court. This is a development in our constitutional law that requires serious consideration.

Another feature of the court’s judgment is that the mala fides in the action of dissolution was restricted by the court only to the mala fides of the governor in submitting his report to the president. The act of dissolution was not that of the governor but of the president acting on the aid and advice of the council of ministers who, it was stated, acted entirely on the governor’s report. The petitioners had not only alleged that the governor’s report made on May 22, 2005 was mala fide but also that the midnight consideration of this report by the council of ministers and the assent of the president to the dissolution in Moscow the very same night showed mala fides in hurrying the dissolution.

It is obvious that the council of ministers does not rubber stamp the governor’s report, and even presidents in the past have refused to act on such reports. Justice Balakrishnan, in his dissenting judgment, rightly notes: “The governor is not the decision-making authority. His report would be scrutinised by the council of ministers and a final decision is taken by the president.” How then were the mala fides only of the governor relevant? The majority judgment’s explanation is: “Clearly the governor had misled the council of ministers, which led to the aid and advice being given by the council of ministers to the president, leading to the issue of the impugned proclamation.”

Another feature of the court’s judgments is that on the dissolution being held unconstitutional, the assembly should have continued to subsist as it was before the dissolution and there would be no question of fresh elections. Nevertheless, by the court’s earlier brief order of October 7, 2005, the elections were allowed to be held as if the assembly was legally dissolved.

In its detailed judgment of January 24, 2006, the court says that it allowed the elections in larger public interest keeping in view the ground realities and taking a pragmatic view that the election programme had far advanced on October 7, 2005, with considerable expenditure. The court accordingly ‘moulded’ the relief by not directing the status quo ante prior to the illegal dissolution. Even if the election programme had far advanced when the court decided that the dissolution was unconstitutional, the question is, does a court have the power to cut down the Constitution’s mandate of five years for an elected assembly without a valid dissolution, and allow fresh elections?

All these, and many other questions, in the Bihar assembly case will be debated long after Buta Singh making his farewell salute, respecting the verdict of the court.

The writer is a Senior Advocate and a former Solicitor-General of India

First Published: Jan 31, 2006 02:06 IST