PUCL Bulletin, August 2005

Dissolution of Bihar assembly

-- By Rajindar Sachar

[To deprive the people of a State rule by a democratically formed government is an assault on the rights of the people. True, the suspension of the Assembly, rule by the Governor or the President of the India are legal, but to have a government elected by them is the supreme right of the people. It is necessary to know the games played in the shadow of the Constitution. – Chief Editor]

The mid-night proclamation issued by the President under Article 356 of the Constitution dissolving the Bihar Assembly has justifiably caused ripples in the public and raised questions about the bona fide of the exercise of this power by the Central Govt., regrettably suspected to be under the pressure of tainted ministers.

It is common knowledge that for last so many months there was great ferment to form a Government amongst Bihar Legislators. But it was not succeeding because of self-proclaimed king-maker Paswan who thought he was a modern Bhishma Pitamah and no one but he alone could choose the time of his political demise. But what a farcical tragedy that his own footmen brought down his downfall, and were willing to put the crown on Nitish Kumar. But this was not even allowed to be tested because of ever-obliging Governor and sympathetic Central Government

The excuse of horse trading is difficult to appreciate because horse trading is anyway permitted by the 10th Schedule which allows 2/3rd members to break-away and merge with another party. By giving it the glorifying name of “split in the party”, the odour of horse trading does not vanish. And pray what else but horse trading was going on all these months between Paswan, Lalu, Independents and Congress. There were no ideological debates but only about distribution of spoils. One is somewhat sad at the almost automatic and rather unusual haste with which the President’s assent was given from Moscow at the dead end of the night. There was, obviously, no danger of Bihar seceding from the Union of India even if Nitish had been able to present a majority (though this itself was in no way certain).

It is more disappointing that Left should have approved of this step when it was the first victim of Article 356 when Namboodripad Government was dismissed, which act everyone now accepts was one of the most indefensible action by the then Congress Central Government.

In Bommai’s case, Supreme Court had warned against the improper use of Article 356. It noted the temptation of the political party or parties in power (in a coalition Govt.) to destabilize or sack the Government in the State not being run by the same political party or parties.

There is another infirmity in the recent proclamation.
It is not disputed that when the 1st proclamation was issued and approved by Parliament, it was for keeping the Assembly in suspended animation. There was no approval by Parliament for dissolution of the Assembly.
The court has held that in no case the President shall exercise the Governor’s power of dissolution of the Assembly prior to the approval of the Proclamation by Parliament under clause (3) of the said Article will be per se invalid. But, as now the matter is before the Supreme Court it will give its verdict. All this mess-up could have been avoided had the Election Commission decided to hold general elections in July. But, the decision to hold the election in October-November would keep the bitterness and wrangling at iron hot.

No doubt in Gujarat’s case, the court held that Article 174 which directs that 6 months shall not intervene between the last sitting in one session and date appointed for its first sitting in next session does not apply to dissolved Assembly, however, it has expressed the view that even in the case of premature dissolution, effort of the Election Commission should be to hold elections within 6 months. It has recognized that for justifiable reasons, there may be inevitable delay. But reasons for deferring elections should be relatable to acts of God and normally not acts of man.

It is wrong to calculate 6 months from the last general elections held in March which, apparently, is the view of the Election Commission. The reason is that 6 months period mentioned by Supreme Court must start from the dissolution of a live and existing Assembly which was when Assembly was dissolved in February on the expiry of its term. The new Assembly constituted in March. It never became a live Assembly. It could only become live if the Governor under Article 174 had summoned the Legislatures of an Assembly to meet.

But, it never did so rather it imposed President’s rule immediately when it was constituted. In my view, 6 months period has to be calculated from the earlier dissolution of the Assembly, i.e. in February and, therefore, elections have to be held by end of August and as it is not possible to do so because of monsoon it was still more incumbent to complete the elections in the month of June so that there was compliance with the directions of the Supreme Court

Under the election law, the last date for making nominations is the 7th day from the date of publication of the notification calling for general elections to a State Legislative Assembly. The 8th day is the date for scrutiny and the last date for withdrawal is the 10th day from the date of 1st notification. Thereafter, the poll can be taken not earlier than the 14th day after the last date for withdrawal of candidatures.

Thus, elections could have been held in Bihar even within the month of June by one day poll, if notification was issued to hold the general elections and results could be declared within 2 days thereafter and completing the election by June end. Surely, a mighty State like India where we justifiably pride ourselves as the biggest democracy and have held general elections democratically since 1952 can hardly feel proud if it was to plea that it could not hold a single election in one State in one month. Such a situation would make the British Government having a snide laugh at us considering that the Prime Minister Blair could hold the Parliamentary general elections in United Kingdom within 3 weeks of its announcement, surely we can do so in one State with our experience since 1952.

Can one hope, even now, for intra party exchange and agreement to hold early elections to avoid further bitterness in the country so as to give relief to the common person?

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