Why Buta stands on slippery ground: apex court can even reverse his orders

Much as it smacks of a finality, the dissolution of the Bihar Assembly can actually be reversed. The Supreme Court is empowered to revive th...

Much as it smacks of a finality, the dissolution of the Bihar Assembly can actually be reversed. The Supreme Court is empowered to revive the dissolved House if it finds that the material on which Governor Buta Singh made his recommendation was ‘‘irrelevant’’ or that he had acted in a ‘‘mala fide’’ manner.

The apex court can also pass an interim order to prevent fresh elections in Bihar while it is examining the validity of the dissolution.

Such sweeping powers to correct any misuse of Article 356 have been conferred on the Supreme Court by the landmark judgment delivered in the S R Bommai case in 1994 by a nine-judge bench.

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So, if the NDA challenges the dissolution, the UPA Government will have the ‘‘burden’’ of proving in the court that Buta Singh’s report was neither politically motivated nor hasty.

Legal experts are divided over the dissolution because of the manner in which Buta Singh recommended it ostensibly to check ‘‘horse-trading.’’ The Centre may find it hard to take refuge in that claim as the Bommai verdict specifically says that ‘‘there are no judicially discoverable and manageable standards’’ to decide the allegation of horse-trading.

	Legally untenable: Soli Sorabjee

			• Ex-Attorney General Soli Sorabjee: Governor acted in haste. Decision to dissolve the Assembly is legally untenable and instance of constitutional immorality. The first impression one gets is that UPA did not want to see any Opposition party-led government in the state • Ex-Solicitor General Harish Salve: Politically motivated. It did not appear to be as per constitutional provision. It did not appear to be a bonafide exercise • Ex-Law Minister Shanti Bhushan: Dissolution saved democracy from being murdered and prevented horse-trading

Even otherwise, the charge of horse-trading may cut no ice with the court as the anti-defection law does not apply where two-thirds of the members of a legislature party merge with another party. The rebel MLAs of LJP were reportedly close to garnering the requisite strength when Buta Singh made the pre-emptive strike.

Buta Singh’s recommendation flies in the face of a warning contained in the Bommai verdict: ‘‘The dissolution of Legislative Assembly is not a matter of course. It should be resorted to only where it is found necessary for achieving the purposes of the Proclamation (of the President’s rule).’’

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Since the whole point of the imposition of the President’s rule three months ago was to explore the chances of government formation in Bihar, the Centre will be hard pressed to defend its decision to dissolve the House without exhausting all the available options.

If the dissolution is held to be invalid, then it will be open to the court to ‘‘revive and reactivate the legislative assembly wherever it may have been dissolved.’’

Since a dissolved assembly cannot however be revived if its successor has come into existence, the Bommai verdict says: ‘‘In appropriate cases, the court will have the power by an interim injunction, to restrain the holding of fresh elections to the Legislative Assembly pending the final disposal of the challenge to the validity of the Proclamation to avoid the fait accompli and the remedy of judicial review being rendered fruitless.’’