ON October 7, the Constitution Bench of the Supreme Court, which heard the petitions challenging the dissolution of the Bihar Assembly in the Rameshwar Prasad and Others vs. Union of India, pronounced a brief order declaring the proclamation of the President dissolving the Assembly on May 23 unconstitutional. A detailed judgment with the reasons for arriving at the decision would be given later, the court said. The majority decision was given by a five-Judge Bench comprising Justices Y.K. Sabharwal, K.G. Balakrishnan, B.N. Agrawal, Ashok Bhan and Arijit Pasayat.
In the same order, the Judges expressed their disinclination to exercise their discretionary jurisdiction to restore the dissolved Assembly, considering the facts and circumstances of the case. The implication of the order is that the Election Commission (E.C.) can go ahead with the ongoing elections.
The brief order cleared the uncertainty about the elections that existed since September 29, when the Constitution Bench reserved its judgment on the matter. But the question whether it was necessary for the Bench to pronounce the brief order 10 days before the first phase of elections when it did not want to stop the electoral process remained to be answered.
Having declared the presidential proclamation unconstitutional, why did the Bench refrain from the next logical step of restoring the dissolved Assembly? Counsel Viplav Sharma, arguing for himself in a public interest petition, and P.S. Narasimha, counsel for Purnima Yadav, a member of the dissolved Assembly, sought an interim stay on the election process, as otherwise, if the Bench found the presidential proclamation void, the petitions challenging it would become infructuous because the Bench would be unable to roll back the elections.
Soli J. Sorabjee, counsel for Rameshwar Prasad, a Bharatiya Janata Party member of the dissolved Assembly, did not seek an interim stay on the elections. Sorabjee was counsel for three other members of the dissolved Assembly, belonging to the Janata Dal (United) and the Lok Janshakthi Party (LJP). They claimed they had made an attempt to form a government headed by Janata Dal (United) leader Nitish Kumar, but, they alleged, the dissolution thwarted their efforts. However, Sorabjee's reluctance to seek a stay on the elections created doubts about the motives of the petitioners.
The Bench persuaded Sharma and Narasimha not to persist with their demand for an interim stay as it was ready to reschedule and advance the hearing of the matter so as to complete it well before the first phase of polling on October 18. Counsel too thought it was too small a concession expected from them to let the hearing of the main matter on the dissolution go ahead, rather than get bogged down in the pros and cons of granting an interim stay on the elections. The Additional Solicitor-General and counsel for the Union of India, Gopal Subramanian, protested against the Bench hearing their plea for an interim stay of the elections as his party had not been heard on the matter of stay.
Meanwhile, the E.C. believed that it was bound by the Supreme Court's advisory opinion in 2002 on the Gujarat case, in which it gave the E.C. six months' "outer limit" to complete the elections after a dissolution. But the facts of the Gujarat case were different from those of Bihar, where the Assembly was dissolved on May 23, even before it met for the first time. A confused E.C. expected the Supreme Court to clarify, but it did not. The result is, as a senior E.C. official put it, "we are facing an unpleasant situation of holding an election under a notification, born out of an illegal dissolution of the previous Assembly".
The Supreme Court in its judgment in S.R. Bommai vs. Union of India (1994) held that the court was not bound in all cases to grant the relief of restoration of the Assembly and the Ministry, dismissed under Article 356 of the Constitution, on the grounds of failure of constitutional machinery in the State. The question of relief in a particular case pertained to the discretionary jurisdiction of the court, it said. However, the court added that if other conditions were satisfied, it would defeat the very purpose of judicial review if the requisite interim relief was denied. "The least relief that can be granted in such circumstances is an injunction restraining the holding of fresh elections for constituting the new Legislative Assembly," the court ruled in the Bommai case.
The Bommai case ruling is significant: "The court in appropriate cases will not only be justified in preventing the holding of fresh elections but would be duty-bound to do so by granting suitable interim relief to make effective the constitutional remedy of judicial review and to prevent the emasculation of the Constitution."
No doubt, the facts before the court in the Bommai case were different, as there were elected governments in the States and they were dismissed following the imposition of President's Rule. In the Bihar case, in contrast, the court was admittedly grappling with a new problem: the dissolution of an Assembly before it met for the first time, and without an elected government in place. But the Bench made it clear that the logic and the reasoning in the Bommai case would be applicable in this case too, despite the factual differences.
Many constitutional experts are convinced that the court could have restored the dissolved Assembly and rolled back the electoral process, as there was enough time left for the first phase of the elections. Such a decision, they say, would have been consistent with the observations of the Bench and counsel during the hearing of the case.
During the hearing, the Judges had queried: "What would happen if the dissolution were struck down?" To this, Attorney-General Milon Banerjee and Gopal Subramanian replied that in that eventuality, fresh polls would be automatically annulled notwithstanding the formal notification of the E.C. Sorabjee agreed that the Assembly could be restored and kept in suspended animation for two months to explore the possibility of government formation. None had contended that because the election process was already underway and the dissolved Assembly could not be restored. The Bench clearly indicated during the hearing that it was not dealing with an academic question and that it would certainly consider appropriate relief, if necessary.
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