Supreme Court indictment of Bihar Governor

Democracy derailed
By Soli J. Sorabjee

In this article the writer joins issue with Shri T. S. Andhyarujina, former Solicitor-General of India who had raised certain points about the Supreme Court judgment on dissolution of Bihar assembly. Shri Sorajbjee has emphatically grounded his arguments.

The Supreme Court’s recent judgment in Rameshwar Prasad, follows the earlier landmark nine-bench Supreme Court judgment in Bommai that has held the field since 1994.

One of the issues that arose in Bommai was whether a governor can take into consideration alleged horse-trading, unethical practices, obtaining majority by foul means, etc. while recommending dissolution of an assembly. The high courts of Nagaland and Karnataka had taken the view, rejecting the petitioner’s contention, that these factors mentioned in the governor’s reports were not irrelevant and upheld the imposition of President’s Rule in those states. The Supreme Court in Bommai overturned the high court judgments. It categorically held that allegations of horse-trading, unethical practices, political machinations, etc. were entirely extraneous and irrelevant to the exercise of power of dissolution and were mere ipse dixit of the governor, untested and unverified.

In Bommai’s case, the court further held that the Tenth Schedule was designed to deal with defections and persons resorting to horse-trading would incur the penalty of disqualification provided under it, but that could not be a relevant factor for recommending dissolution.

The factors in the governor’s reports that were held to invalidate the presidential proclamation in Nagaland and Karnataka are more or less identical with those mentioned in the Bihar governor’s reports. In truth and effect, Andhyarujina’s criticism is of the Supreme Court judgment in Bommai whose correctness was not disputed by any party before the court nor was there any plea for its reconsideration.

Andhyarujina asks in anguish whether the governor can remain a silent spectator of horse-trading and other unethical practices. He has missed the vital distinction between two situations. One, where the governor has allowed the party to stake its claim to form the government but has disallowed it because in the governor’s bona fide assessment, the party or combination of parties is not likely to give any stable government. The other situation is where the party is effectively prevented from even staking a claim. This was precisely the situation in Rameshwar Prasad’s case. As the majority judgment points out, the object of the hurried midnight dissolution of the assembly 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”. This action was held by the majority to be illegal and mala fide.

It  needs to be emphasised that there was no explanation whatsoever tendered before the court about the undue haste for the midnight dissolution of the assembly. Would Bihar have gone up in flames if Nitish Kumar was allowed to stake his claim? Would democracy have suffered an instant demise if the dissolution was not ordered immediately? It would be the height of naivety to believe that the indecent haste of midnight dissolution was to save democracy in Bihar.

The truth of the matter is that the governor’s anxiety was to accommodate Lalu Prasad’s insistence that Nitish Kumar should not even be permitted to stake his claim and his restiveness about the likelihood of Nitish securing a majority. Truth does leak out unwittingly at times as it did in the governor’s report, which states that “RJD MLAs have become restive on account of the moves of JD(U)/BJP”. That was the real motivation, totally extraneous to recommending dissolution.

The basic question that Andhyarujina has not addressed is whether our constitutional scheme entrusts the power claimed for the governor. Would that not, in effect, transform the governor into a moral ombudsman? If the president can also, as Andhyarujina suggests, exercise the power of not recognising a party or combination of parties that has the requisite numbers and is capable of forming a stable government on the ground that its majority has been cobbled by foul means or it is an alliance of convenience, would that not tantamount to replacing our parliamentary system based on the Westminster model with a presidential system? No doubt defections are a bane and the worst form of political immorality. The Tenth Schedule was enacted to curb this phenomenon.

If it is ineffective, the remedy lies in amending the Tenth Schedule and not in propounding a doctrine that would be alien to our constitutional scheme and, as the majority rightly points out, would lead to horrendous consequences and open a floodgate of dissolutions. Besides, “it may also be a handle to reject post-election alignments and realignments on the ground of the same being unethical, plunging the country or the state into another election”.

Abhishek Singhvi’s criticism that the majority judgment bristles with logical inconsistencies is a classic ipse dixit based on bare assertions. He overlooks that the court can always mould the relief of declaration that is a discretionary relief. The course adopted by the majority of not reviving the assembly and permitting the electoral process to go on was justified in the facts and circumstances of the case. Besides, it has not been dissented from by the minority judges though they did not hold the dissolution to be unconstitutional.
The writer is a former Attorney General of India

(Courtesy : Hindustan Times)