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ON January 24, the Supreme Court's Constitution Bench released its detailed judgment holding the dissolution of the Bihar Assembly on May 23, 2005, unconstitutional. The majority judgment was delivered by Chief Justice Y.K. Sabharwal and Justices B.N. Agrawal and Ashok Bhan. Justices Arijit Pasayat and K.G. Balakrishnan dissented and held the dissolution constitutional. In an interim order delivered in 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 question posed by the majority Judges at the outset was whether the dissolution of the Assembly under Article 356(1) of the Constitution could be ordered to prevent the staking of claim by a political party on the grounds that it had obtained a majority by illegal means. 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 their oaths.
On both these issues, the majority Judges laid down a law that is inconsistent. In their view, the dissolution of the Assembly cannot be ordered to prevent the staking of claim by a political party on the grounds that its majority was obtained by illegal means. A logical corollary of this position would be for the Governor to let a government be sworn in once a political party stakes its claim to form the government, without examining how it managed to secure its majority despite the hung verdict. The majority Judges did not indicate how the Governor ought to conduct himself if he or she is faced with two or more conflicting claims. In effect, it means that the Governor may have to swear in the first claimant without verifying his or her claims.
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. If the Governor considers the splits in the recognised political parties in the Assembly, he or she would be examining the legality of the splits and that would be unacceptable to 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. On the other hand, 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 a dissolution would be valid.
In other words, dissolution in the context of no claims by any party is fine; but a 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.
The majority Judges infer from the May 21, 2005, report of Buta Singh as 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. They described as arbitrary two assumptions of Buta Singh as contained in his report: 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 Buta Singh'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. "It was thus a wholly unconstitutional act," they said. Therefore, they said, the proclamation of May 23, 2005, dissolving the Assembly was unconstitutional.
Justice Pasayat, in his note of dissent, termed these very assumptions of Buta Singh as valid. "The Governor cannot be a mute spectator when democratic process is tampered with by unfair means... When the sole object is to grab power at any cost even by apparent unfair and tainted means, the Governor cannot allow such a government to be installed," he said. Justice Balakrishnan, in his note of dissent, said that if the Governor got a reasonable apprehension and reliable information that such unethical means were being adopted by the political parties to get a majority, they were certainly matters to be brought to the notice of the President.
Justice Pasayat reasoned: "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 majority Judges seem to suggest - without any substantiation in the judgment - that the Janata Dal (U) was to stake its claim on May 24, 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, the May 21 report did not suggest that such a possibility was imminent and that the Assembly should be dissolved immediately to prevent this. He said: "If the trend is not arrested immediately, it may not be possible to contain the situation."
The majority Judges, apparently, missed the point that Buta Singh was essentially a politician and as Governor he was conveying his assessment of the political situation in the State to the Centre. There is no material to show that he 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 him.
Justice Pasayat said in his dissenting judgment: "The Governor had not in reality prevented anybody from staking a claim. It is nobody's case that somebody had staked a claim." 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.
The position adopted by the majority Judges is inherently contradictory. They reject the proposition that given a choice between going back to the electorate and accepting a majority obtained improperly, only the former is the real alternative. "Acceptance of such a proposition as a relevant factor to invoke Article 356 may open a floodgate of dissolutions and has far-reaching alarming and dangerous consequences. It may also be a handle to reject post-election alignments and realignments on the grounds of [the] same being unethical, plunging the country or the State to another election. This aspect assumes great significance in situation of fractured verdicts and in the formation of coalition governments," they say.
Having said this, they found nothing wrong in dissolving an elected Assembly immediately after its due constitution, even before it was allowed to meet for the first time. They concluded that the Constitution did not postulate a live Assembly without the Executive Government. If this is the correct position, the right course for a Governor in case of a political deadlock after an election would be 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 possess[es] utmost intelligence and ha[s] risen to the occasion on various such occasions in the past".
Clearly, the Indian democracy's dilemma in the face of hung electoral verdicts is yet to be resolved.
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