The dissolution and the law

The Bihar episode appears to be a grey area altogether with regard to what the Governor ought to do when faced with hung verdicts followed by irresolvable political stalemates.

V. VENKATESAN in New Delhi

THE dissolution of the 13th Bihar Assembly by President A.P.J. Abdul Kalam on May 22, even before the House met even once after its formation, is the first of its kind in Indian legislative history. It was not the first time that a State Assembly election had resulted in a hung verdict, but the kind of political stalemate witnessed in Bihar perhaps convinced the Governor and the Central government that no political party or combination of parties would be in a position to form a stable government. It has led to a controversy whether the dissolution was in consonance with the letter and spirit of the Constitution.

While considering the legality of the dissolution of the Assembly, it is important to bear in mind that on March 7, 2005, the State came under President's Rule and the newly formed Legislative Assembly was kept under suspended animation. The action, within a week of the declaration of the Assembly elections results, did not create any controversy. Considering the fractured verdict of the electorate, all the contending parties assumed that President's Rule was perhaps inevitable as there was no possibility of a new government being formed well before March 31, so that the legislature would pass the State's Budget. If the State is under President's Rule, Parliament is empowered to pass the State's Budget.

The criticism of the decision to dissolve the Assembly stems from the feeling in some quarters that more time could have been given to the political parties to explore the possibility of a realignment in order to form the government. In particular, the critics of the decision suggest that the Centre acted in haste in dissolving the House, when it appeared that the National Democratic Alliance (NDA) was on the verge of forming the government with the support of some MLAs belonging to the Lok Jansakthi Party of Union Steel Minister Ram Vilas Paswan.

Both these criticisms may be valid, but to examine the legality of the decision one needs to go beyond the possible motives of the decision-makers.

First, it appears that the Union Cabinet, which advised the President to dissolve the Assembly, did so on the basis of a similar recommendation from the Governor of Bihar, Buta Singh. The March 7 decision to keep the Assembly under suspended animation clearly suggested that it was being done as no party or combination of parties was able to get a majority in the Assembly. The decision taken on May 23 - as mentioned in the press note issued by the Press Information Bureau - simply cites this fact, and adds nothing more, to justify the dissolution.

However, some functionaries in the Union government have come out with explanations. Prime Minister Manmohan Singh has claimed that the government had "credible evidence" about nefarious activities taking place in the State and that an atmosphere was created in which "horse-trading" of the worst kind was taking place. He added that it was the constitutional duty of the government to see to it that such nefarious activities did not spoil the good name of the country. Union Law Minister H.R. Bhardwaj hinted that the two reports from the Governor referred to "horse-trading" and "malpractices to buy MLAs" and that the government could not remain a silent spectator to such assault on democracy. It is imperative that the government makes the evidence it has about the nefarious activities involving "horse-trading" public and launches prosecution if there was violation of any legal provisions.

That apart, the legality of the dissolution centres around the merits or otherwise of the action of the Governor. The provisions of the anti-defection law do not apply during the period between the polls and the swearing-in of MLAs. Therefore, any suggestion that a legislator was on the verge of violating the anti-defection Act in exploring realignment in the dissolved House does not make sense.

Indeed, Section 4 of the Tenth Schedule (provision as to disqualification on ground of defection) - which was not amended by the NDA government - lays down that disqualification on grounds of defection would not apply in the case of mergers (with another political party) agreed to by not less than two-thirds of the members of the legislature party concerned. The Section also protects from disqualification those who have not accepted the merger and opted to function as a separate group. This - along with the now-deleted Section 3 legitimising splits caused by one-third members of a legislature party - is aimed to facilitate realignment of political forces in case of hung verdicts after an election, as originally conceived when it was enacted in 1985 by the Rajiv Gandhi government.

Section 3 was deleted because it was felt across the political spectrum that bulk defections caused by so-called splits - such as individual defections - are equally marred by money power and, therefore, are detrimental to the health of the polity. A group that has split can retain its independent identity and demand its pound of flesh from those seeking its support to form the government, thus betraying the electoral mandate.

In the case of a merger, however, the understanding is that the merging group buries its identity with the party with which it merges, and therefore, in the new party, its strength would not be substantial enough to demand any trade-off or quid pro quo after the merger. Therefore, if MLAs wanted to make use of Section 4 of the Tenth Schedule to facilitate the formation of a government in the State, it would not constitute an illegal or unethical act in itself.

In Bihar, reports suggested that the LJP was on the verge of a split before the dissolution and a number of its MLAs were being wooed to support the formation of an NDA government. Whatever the truth of these reports, the Governor was not officially apprised of these developments either by the NDA or by the LJP rebels, so as to gain more time to form the government. Nor was he met with any request from these groups seeking more time for discussions among them to fructify - clearly suggesting that they were not transparent and overboard. It is not clear whether the LJP rebels constituted two-thirds of the party's strength in the Assembly, and whether the NDA was confident of securing a simple majority with the support of these rebels and a few independents. On the other hand, LJP chief Paswan had already informed the Governor about the unwillingness of his party to support any government formed with the help of either the RJD or the BJP. For the Governor, it is natural to assume that this would be the basis of his recommendation to the Centre rather than speculative reports appearing in the media about a possible split in the LJP.

IN the absence of clarity about the NDA's likely strength - it had not even staked its claim to form the government before the Governor, despite being the largest pre-election alliance winning 92 seats in the Assembly - the options before the Governor were limited, on the basis of the recommendations of the Sarkaria Commission on Centre-State relations, and the nation's recent political experience of dealing with similar situations at the Centre and in some States.

First, no pre-election combination of parties had staked its claim to form the government. Second, as the majority of the parties were opposed to giving a chance to the single largest party, the Rashtriya Janata Dal, which secured 75 seats, the Governor could not have invited the leader of this party to form the government. Third, no post-electoral combination of parties commanding a majority in the House had emerged. Had there been such a combination, the Governor would have been well advised to invite its leader first.

The Sarkaria Commission had recommended that the Governor adopt the first two courses in the order of preference, namely, invite the leader of a pre-election alliance, or the largest single party staking its claim to form the government with the support of others, including independents, who is most likely to command a majority in the Assembly, before considering the claim of any post-electoral alliance of parties. But this has not been looked at with favour in view of the fall of the Atal Bihari Vajpayee government within 13 days of its formation at the Centre in 1996. A post-election coalition led by H.D. Deve Gowda could prove its majority in the Lok Sabha then, after the Vajpayee government fell.

In terms of the Supreme Court's judgment in the Bommai case (1994), dissolution of the Assembly is subject to judicial review, and if the court is convinced that it is mala fide, it can even revive the Assembly, before fresh elections are held. However, in the Bommai case, the court was faced with a different situation, that is, dissolution of Assemblies following the dismissal of duly elected governments under Article 356; the recent Bihar episode appears to be a grey area altogether with regard to what the Governor ought to do when faced with hung verdicts followed by irresolvable political stalemates.

Still, the Bommai judgment offers some clues as to the legality of the dissolution decision in Bihar. First, the court's majority judgment held that the dissolution of an Assembly prior to the approval of the Proclamation (imposing President's Rule under Article 356) by Parliament would be per se invalid. As Parliament has already approved the Proclamation under Article 356 (3), the President's decision to dissolve the Assembly is perfectly valid.

Second, the Bommai judgment held that the dissolution of the Legislative Assembly is not a matter of course and that it should be resorted to only where it is found necessary for achieving the purposes of Proclamation, which is to carry on the government of the State in accordance with the provisions of the Constitution.

As there was no prospect of a government being formed in Bihar even two-and-a-half months after the Proclamation imposing President's Rule, the Union government could have rightly felt that only fresh elections held after the dissolution of the present Assembly could help to revive representative democracy in the State, and bring President's Rule to an end at the earliest.