Bihar Assembly Dissolution Case: A Critical Appraisal
The detailed judgment of the Supreme Court in Rameshwar Prasad And Others v. Union of India on January 24, 2006 holding the dissolution of the Bihar Assembly as illegal and unconstitutional has enunciated far-reaching constitutional principles and will have wide ramifications. Although the Court held the dissolution unconstitutional it did not direct status quo ante and the revival of the assembly. Earlier, in an interim order delivered on the 7th October 2005, the Bench had, even while finding the dissolution unconstitutional, expressed its inability to restore the dissolved Assembly in view of the electoral process under way then to constitute a new Assembly.
The present case was the first of its kind where even before the first meeting of the Legislative Assembly its dissolution had been ordered on the ground that attempts were being made to cobble together a majority by illegal means and to lay claim to form the government in the State. So, the main question before the Court at the outset was whether the dissolution of the Assembly under Article 356(1) of the Constitution could be ordered on the said ground. Linked with this question was the correctness of the dissolution even before the Assembly met for the first time after its due constitution and the members took oath. The majority while agreeing with the contentions of the petitioners held that no such power has been vested with the governor. Such a power would be against the democratic principles of the majority rule. If such a power is vested in the governor and/or the president, the consequences can be horrendous and would open a floodgate of dissolutions and will have far reaching alarming and dangerous consequences. It may also be a handle to reject post-election alignments and realignments on the ground of same being unethical, plunging the country or the state into another election. It further held that there was no material, let alone relevant, with the governor to recommend dissolution and the drastic and extreme action of dissolution cannot be justified on mere ipse dixit, suspicion, whims and fancies of the governor.
Unexceptionally, under no circumstances the action of the Governor can be held to be bona fide when it is intended to prevent a political party to stake claim for the formation of the government. After elections, every genuine attempt is to be made which helps in installation of a popular government, whichever be the political party. The Governor must not be allowed to take the plea that no government could be formed, unless he exhausts all possible options, including the one of asking the House itself to elect its Leader. Extreme step of imposition of President’s Rule immediately after the election without allowing the newly elected House to meet was nothing short of contempt of the electoral exercise and the verdict of “[We] the people”.
The representatives whom “[We] the people” elect cannot be so unceremoniously sent home on the arbitrary advice of a Governor and subsequent approval by the Cabinet and the seal of the President. Indeed, when President’s Rule was imposed and instead of being dissolved, the Assembly was kept under suspended animation, obviously the hope was that through some realignments, some leader or political party could be in a position to stake claim to form a government. Thus, the possibility of change in loyalties of Members was accepted as legitimate. So, the majority Judges described the two assumptions of the Governor as contained in his report as arbitrary: that the move was itself indicative of various allurements having been offered to the LJP MLAs and that the claim that might be staked to form a government would affect the constitutional provisions and safeguards built therein, and distort the verdict of the people. From this, the majority Judges concluded that Governor’s attempt was to prevent one way or the other the formation of the government by a political party - an area wholly prohibited insofar as the functions, duties and obligations of the Governor are concerned.
Moreover, the argument of so-called horse trading as stated in the Governor Report is most untenable because for dealing with horse trading and defections, it is the speaker under the 10th Schedule of the Constitution and the governor cannot usurp these functions while forming his opinion about the capacity of a political party to form a stable government. Even under 10th Schedule, the law comes into play only after the defection has taken place and not at the prospect or threat of defection. Also there may be change of loyalties, which may be legal and protected under the merger clause. In any case, there is no provision that can justify dissolution of the House on grounds of threatened defections.
However, a crucial issue still remains unanswered is if the Governor wants to consider the letters of support given by individual party leaders to a claimant as proof of his or her majority support, it may not suggest majority backing in the case of a political deadlock. It might be quite possible that the other members of that individual party having something different in their mind. Interestingly, if the Governor considers the splits in the recognized political parties in the Assembly, he or she would be examining the legality of the splits and that would be unacceptable as per the ratio decidendi of the majority Judges. According to them, under the Anti-Defection Act, the Governor has no role to play in such a situation and he or she should not be concerned about its possible violation before swearing-in a new government.
Justice K.G. Balakrishnan, in his separate dissenting judgment, while accepting the submissions of the Union of India came to the conclusion that the dissolution of the assembly was not mala fide and the facts stated in the Governor’s report that some horse trading was going on and some MLAs were being won over by allurements were certainly facts to be taken into consideration by the Governor. “If by any foul means the government is formed, it cannot be said to be a democratically-elected government. If the Governor has got a reasonable apprehension and reliable information such unethical means are being adopted by the political parties to get majority, they are certainly matters to be brought to the notice of the President and at least they are not irrelevant matters. The Governor is not the decision-making authority.
His report would be scrutinized by the Council of Ministers and a final decision is taken by the President under Article 174 of the Constitution. Therefore, it cannot be said that the decision to dissolve the Bihar State Legislative Assembly is mala fide exercise of power based on totally irrelevant grounds.” Further, Justice Pasayat, in his separate note of dissent, termed the very assumptions of Governor as valid. He observed that the Governor cannot be a mute spectator when democratic process was tampered with by unfair means. When the sole object was to grab power at any cost even by apparent unfair and tainted means, the Governor cannot allow such a government to be installed. “It may be a wrong perception of the Governor. But it is his duty to prevent installation of a Cabinet where the majority has been cobbled [together] in the aforesaid manner... It may be in a given case be an erroneous approach, but it is certainly not irrational or irrelevant or extraneous.” “The Governor had not in reality prevented anybody from staking a claim. It is nobody's case that somebody had staked a claim.” Justice Pasayat added.
The views of the minority seem to be based on mainly following grounds. Firstly, non-applicability of the Bommai’s case since there was no assembly in existence in Bihar as in the case of Karnataka and Nagaland assemblies which were dissolved. But, it is submitted that the different fact situation can neither deviate or detract or dilute the principles laid down in Bommai case nor displace its essential reasoning. Secondly, it said, there was no material to show that the Governor actually prevented the staking of claim by the Janata Dal (U); the latter took no preliminary step to stake its claim that was prevented by the Governor. With due respect to the Court, it is submitted that the minority completely overlooked that the whole object and aim of recommending the dissolution of the Assembly with indecent haste was to prevent Nitish Kumar even from staking the claim to form the government. Thirdly, as Justice Pasayat noted, “if the governor felt that what was being done was morally wrong, it couldn’t be treated as politically right. This is his perception. It may be erroneous. It may not be specifically spelt out by the Constitution so far as his powers are concerned. But it ultimately is a perception.
Though erroneous it cannot be termed as extraneous or irrational. Therefore however suspicious conduct of the governor may be, and even if it is accepted that he had acted in hot haste it cannot be a ground to term his action as extraneous.” If this minority view is accepted as correct and the use of drastic power under Article 356 can be justified on these problematic and far fetched grounds it would inflict a fatal blow to the federal character of our Constitution and open floodgates of dissolutions and lead to alarming consequences as the majority judgment has rightly pointed out. Acceptance of the Central Government’s contention would in effect convert the governor into an autocratic political ombudsman and would be tantamount to replacing our parliamentary system based on the Westminster model into a presidential system. Further, if the minority view is accepted then its principle can logically be also extended to the President. It is inconceivable and beyond imagination that the President can reject the claim of a party to form government even if it has the requisite numerical strength and the capacity to form a stable government on the ground that its majority has been cobbled by foul means. Such a doctrine would be alien to our constitutional scheme and cannot merit acceptance.
However, all the five Judges implicitly agree that if there are no claims, the Governor has no option but to dissolve the Assembly, even before it meets for the first time, and such dissolution would be valid. In other words, dissolution in the context of no claims by any party is fine; but dissolution would always suggest that it has nipped in the bud the possibility of a realignment of political parties in the future if the state of suspended animation of the Assembly continued for some more time. Precisely, how long can the Governor wait before recommending dissolution? There are no answers in the majority judgment. Though it is difficult to lay down any definite time framework for that, still some sort of guidelines to be followed by the Governor in future may well have been suggested. Clearly, the judgment makes no provisions for dealing with hung verdicts and the Indian democracy’s dilemma in the face of hung electoral verdicts is yet to be resolved. The right course for a Governor in case of a political deadlock after an election would have been to invite the leader of the single largest party after the declaration of the results, and if he fails to form a viable government, invite the other parties in the queue in terms of their strength in the new House. But the majority Judges did not lay down any such principles. Instead, while explaining why they did not restore the dissolved Assembly, they found merit in going back to the electorate to get a clear verdict – “the Indian electorate possessing utmost intelligence and having risen to the occasion on various such occasions in the past.”
The role of the Supreme Court should have been more pro-active. How could the Court allow the beneficiaries of an unconstitutional act to get away? The primary duty of the Court is to adjudicate disputes and to provide relief and remedy to victims of injustice and unconstitutional acts. In this case, “in view of the ground realities,” “pragmatic” considerations, etc., elections based on the unconstitutional dissolution were allowed to be held and the petitioner and public interest got no relief from the apex court. Was the Supreme Court judgment really the victory of the Constitution over political evil? If so, the evil continues uncorrected by the Court as on October 7, 2005, when the Court passed an interim order which virtually created a constitutional anomaly by allowing the second election to go on. Indeed, this interim order itself rendered the petition infracutous. Even after that the Court proceeded further and passed the final order on January 24, 2006, where it refused to revive the Assembly even after finding the dissolution as illegal and unconstitutional. Of course, by then, the Assembly could not have been restored since second election was already held and a new government was already formed due to the interim relief granted by the Court. So, by January 24, 2006, there was nothing left in this case. The court’s judgment had become purely academic kind of advisory opinion of ‘dos and don’ts’ for the future. It is true that the election results brought a stable Government but it is not to be forgotten that the second election was held only under the authority of the interim order of the Court itself. If the election had been stayed by the Court, the dissolution of Assembly declared unconstitutional could have been restored on January 24, 2006.
Indeed, the Court would have done well to flag the responsibility of the Union Cabinet squarely and to have laid down some guidelines for future correctives . But it must be understood that howsoever good or bad the report of the Governor was, he was only one of the player in the entire episode. He only made a recommendation, gave his own assessment of the situation. He took no decision or action. He had, in fact, no power to do either. Bihar being under President's Rule, the powers of the Governor to dissolve the Assembly under article 174(2) stood transferred to the Central Government and the President. Indeed, it was the Cabinet which took the decision to recommend to the President for issuance of the notification dissolving the Bihar Assembly. It was not just the responsibility but also a positive obligation of the Cabinet to satisfy itself on points of law and fact before deciding on dissolution. It can be nobody’s case that the Governor’s report or recommendation was binding on the Cabinet. Further, constitutionally, the most responsible functionary was the President who allowed himself to be hurried into signing the order of dissolution. He could have asked the Council of Ministers headed by the Prime Minister to wait; he could have taken his own time, could have made necessary consultations before signing the impugned order dissolving the Bihar Assembly, and should have taken a decision only after careful consideration. Moreover, he could have sent the matter back to the Cabinet for reconsideration. All these rights and powers of the President are well within our constitutional framework. Inasmuch as what was declared unconstitutional by the Court in the present case was the Presidential notification, one cannot absolve the President’s office of discharging its constitutional responsibility.
However, the judgment concentrated on the Governor’s role and reiterated earlier recommendations about the type of persons who should or should not be appointed as Governors. It appeared to be too soft on the role of other players particularly the Union Cabinet when it merely said: “the Governor may be the main player, but Council of Ministers should have verified facts stated in the report of the Governor before hurriedly accepting it as a gospel truth as to what Governor stated. So, in the facts and circumstances of the case the “council of ministers should have verified facts stated in the report of the governor before hurriedly accepting it as a gospel truth”. Clearly, the Governor has misled the Council of Ministers...” And we might add that the Council of Ministers misled the President. It would be a moot question whether more responsibility attached to those who misled or who got misled. Lastly, quite unobviously, the majority judgment failed to address any arguments advanced on behalf of the State of Bihar. One is left to speculate only whether the majority considered the said argument and felt that it was of no relevance or missed it altogether inadvertently.
In nutshell, this judgment can well be regarded as a salutary check on the arbitrary exercise of power of dissolution of legislative assemblies and an affirmation of democratic and federal principles. In a sense it is also an affirmation of constitutionalism and negation of the impropriety of midnight dissolution of assemblies in indecent haste. However, the two dissenting views highlight the position that more than one view is possible in a case like this. Whatever the case may be, whether right or wrong, every judgment of the Supreme Court is entitled to respect and needs to be given full effect both in spirit as well as in letter so long as it is not modified or overruled by the court itself.
1. Advocate, High Court of Delhi at New Delhi and Visiting Faculty at the Indian Law Institute, New Delhi. Author wishes to thank Prof. K. N. Chandrasekharan Pillai and Mr. P. Puneeth for commenting on previous drafts and giving valuable suggestions. However, the views are personal. (2006) 2 Supreme Court Cases 1.
2. Dissolution of the Bihar Assembly vide proclamation dated 23-05-2005.
3. Rameshwar Prasad And Others v. Union of India, (2005) 7 SCC 625.
4. Comprising Chief Justice Y.K. Sabharwal, Justices B.N. Agrawal and Ashok Bhan.
5. Supra note 1 at p. 129.
6. Id. at p. 120. The majority judgment noted that the Governor’s report of April 27, 2005, had referred to: (1) serious attempt to cobble a majority; (2) winning over MLAs by various means; (3) targeting parties for a split; (4) high pressure moves; (5) offering various allurements like castes, posts, money, etc.; and (6) Horse-trading. Para 5 of the report mentions that it was based on “newspaper reports and other reports gathered through meetings of various party functionaries / leaders and also intelligence reports” received by him. The court’s response to this report is: “This approach makes it evident that the object was to prevent a particular political party from staking a claim and not the professed object of anxiety not to permit the distortion of the political system, as sought to be urged. Such a course is nothing but wholly illegal and irregular and has to be described as mala fide.”
7. Supra note 1 at p. 91.
8. The majority Judges infer from the May 21, 2005, report of the Governor of Bihar that he believed that 17 or 18 MLAs belonging to the Lok Janshakthi Party (LJP) were moving towards the Janata Dal (United), which would mean that the latter was in a position to stake its claim to form the government.
9. The majority Judges seems to suggest that the Janata Dal (United) was to stake its claim on May 24, 2005, or within a few days after May 23 and Buta Singh’s May 21 report to the President aimed to prevent that possibility. In fact, apparently the May 21 report did not suggest that such a possibility was imminent and that the Assembly should be dissolved immediately to prevent this. Report said: “If the trend is not arrested immediately, it may not possible to contain the situation.” Failure to explain the necessity of midnight haste by the Central Government to dissolving the Bihar Assembly may have probably led to such inference drawn by the majority Judges.
10. Supra note 1 at p. 129.
11. In fact, there have been several instances both at the Union and State levels when governments were formed, facilitated or enabled to survive by defectors. Defectors may suffer disqualification but the government is in order so long as it does not lose the confidence of the House.
12. On this particular issue, see e.g. K. N. Bhat, “The Bihar verdict: Defections are the concern of Speaker, not of Governor”, The Tribune (New Delhi), February 2, 2006. Available at <www.tribuneindia.com> [Visited on October 20, 2006]. He says: “Facts apart, in this case the Governor straying into the Tenth Schedule was a pure question of constitutional law-the anti-defection area is reserved for the Speaker…Is it too much to expect the Central government to appreciate this legal position settled in Kohito (1992)?”
13. Supra note 1 at p. 147.
14. Id. at p. 151.
15. Id. at p. 176.
16. Id. at p. 151. However, the fact is that Buta Singh was faced with two claims. One was by outgoing Chief Minister Rabri Devi, who in her letter to the Governor on March 5, 2005, promised to provide a stable government and expressed her hope to prove her party's majority in the Assembly. The other was made on the same day by six independent MLAs who promised to prove their majority in the House. If the majority Judges are correct, Buta Singh must have accepted either of these claims, without verifying them. The question of considering Janata Dal (U) leader Nitish Kumar's ability to form the government would not have arisen because he had not staked his claim.
17. S. R. Bommai v. Union of India, (1994) 3 SCC 1.
18.Supra note 1 at p. 177.
19. Soli J. Sorabjee, “Beware, there’s no morality in midnight haste”, The Indian Express (New Delhi), January 28, 2006, p. 9, wherein he says: “The Supreme Court judgment on Bihar is a shot in the arm for federalism.”
20. Supra note 1 at p. 131.
21. By November 23, NDA led by Mr. Nitish Kumar was invited by the Governor to form the government after the declaration of the second election results.
22. See e.g. Rajeev Dhavan, “All Form And No Matter-Supreme Court’s judgment is of academic interest”, The Times of India (New Delhi). Available at timesofindia.indiatimes.com [Visited on October 20, 2006].
23. Subhash Kashyap, “Supreme Court judgment revisited”, The Hindu (New Delhi), March 21, 2006, p. 8.
24. Supra note 1 at p. 120.
25. The Counsel appearing for the State of Bihar submitted that the instant case falls in the category of cases where there are no judicially manageable standards to judge the subjective satisfaction of the President. The reports of the Governors cannot be tested with reference to any objective test. Moreover, the writ petitions have been filed under Article 32 of the Constitution. The jurisdiction under Article 32 is only for the enforcement of the fundamental rights in Part III. None of the provisions [Articles 356, 174(2), 188] which are alleged to have been violated in this case is in Part III.
26. P. P. Rao, “Buta Singh had to go: Whatever its merits, court verdict has to be respected”, The Tribune (New Delhi), January 28, 2006. Available at www.tribuneindia.com [Visited on October 20, 2006].
The author can be reached at: email@example.com