01-28-2006, 06:49 PM
<!--QuoteBegin-->QUOTE<!--QuoteEBegin--><b>Beware, there's no morality in midnight haste</b>
<i>The Supreme Court judgment on Bihar is a shot in the arm for federalism, says SOLI J. SORABJEE</i>
Posted online: Saturday, January 28, 2006 at 0000 hours IST
The recent Supreme Court judgment pronouncing dissolution of the Bihar legislative assembly to be unconstitutional has enunciated far-reaching constitutional principles.
Consequent upon the elections to the Bihar legislative assembly held in March 2005 no political party was in a position to form a stable government. Hence President's Rule was imposed under Article 356 of the Constitution on March 17 and the assembly was kept in suspended animation. The purpose of imposing President's Rule was to explore the possibility of forming a majority government in the state through a process of political realignment. This was clearly reflected in the home minister's speech in the Rajya Sabha on March 21.
The process of realignment of forces was set in motion and several political parties and independent MLAs re-considered their position and announced support to the NDA led by Nitish Kumar.
The governor of Bihar sent a report to the President on April 27 in which he inter alia stated that "serious attempts are being made by the JD-U and BJP to cobble a majority and lay claim to form the government in the state... The high pressure moves of JD-U/BJP are also affecting the RJD MLAs who have become restive." Reference was made to alleged horse trading and other unethical practices. Another report dated May 21 was sent to the President from the governor's camp office in Delhi in which it was stated that "any move by the breakaway faction to align with any other party to cobble a majority and stake claim to form a government would positively affect the constitutional provisions and safeguards". In the governor's view, "if the trend is not arrested immediately, it may not be possible to contain the situation" and therefore it was desirable that the assembly be dissolved.
This report was received by the Centre on Sunday, May 22. On the same day, the Union cabinet met at about 11 pm and decided to accept the governor's report and sent a fax to the President in Moscow recommending dissolution of the Bihar legislative assembly. This message was received by the President in Moscow at 1:52 am (IST). The President accorded his approval and sent it by fax which was received at 3:50 am on May 23. Thereafter on May 23 a notification was issued at 2:30 pm dissolving the Bihar legislative assembly with lightening speed.
<b>Contentions of Parties</b>
Dissolution was challenged in the Supreme Court. Admittedly the action of dissolution was based solely on the two reports of the governor and not on any other material. The main grounds of challenge were that the governor's reports contained matters which were thoroughly extraneous to the exercise of power of dissolution under Article 356. The entire object of dissolving the assembly in indecent haste was to prevent Nitish Kumar from even staking his claim to form the government. The governor's reports were tainted with mala fides and the consequent action of dissolution based upon the reports was likewise tainted with the same infirmities.
The case of the Government of India was that dissolution of the assembly could be ordered to prevent even the staking of claim by a political party if its majority had been obtained by illegal or foul means or by unethical practices as stated in the governor's reports. Its plea was that he can override the majority claim because of his subjective assessment that the majority was cobbled by illegal, unethical means.
<b>'Alarming and dangerous'</b>
Chief Justice Y.K. Sabharwal and Justices B.N. Agrawal and Ashok Bhan constituting the majority rejected this plea and held that "no such power has been vested with the governor. Such a power would be against the democratic principles of 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 has 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."
The majority judgment 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". It rightly pointed out that cases of so-called horse trading and defections are matters within the province of the speaker under the 10th Schedule and the governor cannot usurp these functions and take these factors into account in forming his opinion about the capacity of a particular political party to form a stable government.
The majority judgment further noted the manner in which the governor moved, "very swiftly and with undue haste, finding that one political party may be close to getting majority". It concluded that "the object of ordering dissolution was not the professed anxiety to prevent distortion of the political system by defections and employment of unethical means but the sole object was to prevent a particular political party from making a claim to form the government and such action was wholly illegal and mala fide".
According to the majority in the facts and circumstances of this case the "council of ministers should have verified facts stated in the report of the governor before hurriedly accepting it as a gospel truth". It further held that the governor had "misled the council of ministers which led to aid and advice being given by the council of ministers to the President leading to the issue of the impugned proclamation". Strong condemnation indeed.
A fair reading of the governor's reports reveals that his burning desire was not to preserve democracy. It was really to prevent Nitish Kumar from staking his claim to form the government and thereby to placate an influential member of the coalition at the Centre, Laloo Prasad Yadav, because in the Governor's own words "RJD MLAs have become restive on account of the moves of JD-U/BJP".
The conclusion of the majority judgment is unexceptionable. Acceptance of the Union 's argument 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.
<b>The minority judgment</b>
The dissent of the two minority judges, Justices K.G. Balakrishnan and Arijit Pasayat, are mainly on three grounds. Firstly that Bommai's judgment was inapplicable because there was no assembly in existence in Bihar as in the case of Karnataka and Nagaland assemblies which were dissolved. It is submitted that the different fact situation cannot detract from or dilute the principles laid down in Bommai nor displace its essential reasoning.
Secondly, according to the minority judgment, "it is nobody's case that somebody had staked a claim". With respect, the minority completely overlooked that the whole object of ordering dissolution with indecent haste was to prevent Nitish Kumar even from staking this claim and not the governor's fervent desire to preserve the Constitution.
The third reason elaborated by Justice Pasayat is that "if the governor felt that what was being done was morally wrong, it cannot 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".
<b>If this minority view is 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 fabric of our Constitution and open floodgates of dissolutions and lead to alarming consequences as the majority judgment has pointed out.</b>
Furthermore if the minority view is accepted then its principle can logically be also extended to the President. It is inconceivable 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.
The minority judgment (Justice Pasayat) has relied heavily on Wednesbury principles regarding the standards for judging reasonableness of an executive action. Unfortunately it has overlooked that the Wednesbury principles have been diluted, if not rejected, by the House of Lords in Ex p Daly in 2001 and previously by the Privy Council in 1999. This was pointed out in the submissions (Part II Para 19) but somehow has escaped attention.
<b>In the end, fond hope</b>
Although the Court held that the dissolution to be unconstitutional it did not direct status-quo ante and revival of the assembly because in its view the election process had been set in motion and was at an advanced stage and judicial notice could be taken of the fact that considerable amount must have been spent; enormous preparations made and ground works done in the process of election. Therefore the Court moulded the relief and permitted completion of the ongoing election process with the fond hope that the electorate may again not give a fractured verdict and may give a clear majority to one or other political party. On this aspect there is no dissent by the minority judges. <b>Happily the fond hope of the Court has been amply realised by the electoral verdict in Bihar.</b>
The Supreme Court judgment is most welcome. It is a salutary check on the arbitrary exercise of power of dissolution of legislative assemblies under Article 356, provides an invaluable safeguard to our federal structure and is an affirmation of democratic principles. <b>In a sense it is also an affirmation of constitutional morality and a strong disapproval of the impropriety of midnight dissolution of assemblies in indecent haste. Above all, the judgment vindicates the faith of the common citizen in the independence and courage of our Supreme Court.</b>
<i>Soli J. Sorabjee is a former attorney general for India</i>
http://indianexpress.com/full_story.php?...t_id=86743
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<i>The Supreme Court judgment on Bihar is a shot in the arm for federalism, says SOLI J. SORABJEE</i>
Posted online: Saturday, January 28, 2006 at 0000 hours IST
The recent Supreme Court judgment pronouncing dissolution of the Bihar legislative assembly to be unconstitutional has enunciated far-reaching constitutional principles.
Consequent upon the elections to the Bihar legislative assembly held in March 2005 no political party was in a position to form a stable government. Hence President's Rule was imposed under Article 356 of the Constitution on March 17 and the assembly was kept in suspended animation. The purpose of imposing President's Rule was to explore the possibility of forming a majority government in the state through a process of political realignment. This was clearly reflected in the home minister's speech in the Rajya Sabha on March 21.
The process of realignment of forces was set in motion and several political parties and independent MLAs re-considered their position and announced support to the NDA led by Nitish Kumar.
The governor of Bihar sent a report to the President on April 27 in which he inter alia stated that "serious attempts are being made by the JD-U and BJP to cobble a majority and lay claim to form the government in the state... The high pressure moves of JD-U/BJP are also affecting the RJD MLAs who have become restive." Reference was made to alleged horse trading and other unethical practices. Another report dated May 21 was sent to the President from the governor's camp office in Delhi in which it was stated that "any move by the breakaway faction to align with any other party to cobble a majority and stake claim to form a government would positively affect the constitutional provisions and safeguards". In the governor's view, "if the trend is not arrested immediately, it may not be possible to contain the situation" and therefore it was desirable that the assembly be dissolved.
This report was received by the Centre on Sunday, May 22. On the same day, the Union cabinet met at about 11 pm and decided to accept the governor's report and sent a fax to the President in Moscow recommending dissolution of the Bihar legislative assembly. This message was received by the President in Moscow at 1:52 am (IST). The President accorded his approval and sent it by fax which was received at 3:50 am on May 23. Thereafter on May 23 a notification was issued at 2:30 pm dissolving the Bihar legislative assembly with lightening speed.
<b>Contentions of Parties</b>
Dissolution was challenged in the Supreme Court. Admittedly the action of dissolution was based solely on the two reports of the governor and not on any other material. The main grounds of challenge were that the governor's reports contained matters which were thoroughly extraneous to the exercise of power of dissolution under Article 356. The entire object of dissolving the assembly in indecent haste was to prevent Nitish Kumar from even staking his claim to form the government. The governor's reports were tainted with mala fides and the consequent action of dissolution based upon the reports was likewise tainted with the same infirmities.
The case of the Government of India was that dissolution of the assembly could be ordered to prevent even the staking of claim by a political party if its majority had been obtained by illegal or foul means or by unethical practices as stated in the governor's reports. Its plea was that he can override the majority claim because of his subjective assessment that the majority was cobbled by illegal, unethical means.
<b>'Alarming and dangerous'</b>
Chief Justice Y.K. Sabharwal and Justices B.N. Agrawal and Ashok Bhan constituting the majority rejected this plea and held that "no such power has been vested with the governor. Such a power would be against the democratic principles of 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 has 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."
The majority judgment 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". It rightly pointed out that cases of so-called horse trading and defections are matters within the province of the speaker under the 10th Schedule and the governor cannot usurp these functions and take these factors into account in forming his opinion about the capacity of a particular political party to form a stable government.
The majority judgment further noted the manner in which the governor moved, "very swiftly and with undue haste, finding that one political party may be close to getting majority". It concluded that "the object of ordering dissolution was not the professed anxiety to prevent distortion of the political system by defections and employment of unethical means but the sole object was to prevent a particular political party from making a claim to form the government and such action was wholly illegal and mala fide".
According to the majority in the facts and circumstances of this case the "council of ministers should have verified facts stated in the report of the governor before hurriedly accepting it as a gospel truth". It further held that the governor had "misled the council of ministers which led to aid and advice being given by the council of ministers to the President leading to the issue of the impugned proclamation". Strong condemnation indeed.
A fair reading of the governor's reports reveals that his burning desire was not to preserve democracy. It was really to prevent Nitish Kumar from staking his claim to form the government and thereby to placate an influential member of the coalition at the Centre, Laloo Prasad Yadav, because in the Governor's own words "RJD MLAs have become restive on account of the moves of JD-U/BJP".
The conclusion of the majority judgment is unexceptionable. Acceptance of the Union 's argument 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.
<b>The minority judgment</b>
The dissent of the two minority judges, Justices K.G. Balakrishnan and Arijit Pasayat, are mainly on three grounds. Firstly that Bommai's judgment was inapplicable because there was no assembly in existence in Bihar as in the case of Karnataka and Nagaland assemblies which were dissolved. It is submitted that the different fact situation cannot detract from or dilute the principles laid down in Bommai nor displace its essential reasoning.
Secondly, according to the minority judgment, "it is nobody's case that somebody had staked a claim". With respect, the minority completely overlooked that the whole object of ordering dissolution with indecent haste was to prevent Nitish Kumar even from staking this claim and not the governor's fervent desire to preserve the Constitution.
The third reason elaborated by Justice Pasayat is that "if the governor felt that what was being done was morally wrong, it cannot 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".
<b>If this minority view is 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 fabric of our Constitution and open floodgates of dissolutions and lead to alarming consequences as the majority judgment has pointed out.</b>
Furthermore if the minority view is accepted then its principle can logically be also extended to the President. It is inconceivable 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.
The minority judgment (Justice Pasayat) has relied heavily on Wednesbury principles regarding the standards for judging reasonableness of an executive action. Unfortunately it has overlooked that the Wednesbury principles have been diluted, if not rejected, by the House of Lords in Ex p Daly in 2001 and previously by the Privy Council in 1999. This was pointed out in the submissions (Part II Para 19) but somehow has escaped attention.
<b>In the end, fond hope</b>
Although the Court held that the dissolution to be unconstitutional it did not direct status-quo ante and revival of the assembly because in its view the election process had been set in motion and was at an advanced stage and judicial notice could be taken of the fact that considerable amount must have been spent; enormous preparations made and ground works done in the process of election. Therefore the Court moulded the relief and permitted completion of the ongoing election process with the fond hope that the electorate may again not give a fractured verdict and may give a clear majority to one or other political party. On this aspect there is no dissent by the minority judges. <b>Happily the fond hope of the Court has been amply realised by the electoral verdict in Bihar.</b>
The Supreme Court judgment is most welcome. It is a salutary check on the arbitrary exercise of power of dissolution of legislative assemblies under Article 356, provides an invaluable safeguard to our federal structure and is an affirmation of democratic principles. <b>In a sense it is also an affirmation of constitutional morality and a strong disapproval of the impropriety of midnight dissolution of assemblies in indecent haste. Above all, the judgment vindicates the faith of the common citizen in the independence and courage of our Supreme Court.</b>
<i>Soli J. Sorabjee is a former attorney general for India</i>
http://indianexpress.com/full_story.php?...t_id=86743
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