Unconstitutional!

In a strong indictment of the UPA government, the Supreme Court struck down the Presidential proclamation dissolving the Bihar Assembly terming it as "unconstitutional" but declined to revive the House, paving way for the four-phased elections commencing October 18.

"As per the majority opinion, this court orders as under: The proclamationdated May, 23, 2005 dissolving the legislative assembly of the state of Bihar is unconstitutional," a Constitution Bench headed by Justice Y K Sabharwal said pronouncing the majority opinion.

However, the five-judge Bench, which examined malafides alleged against Governor Buta Singh in giving reports to the Centre leading to dissolution of the Bihar Assembly, did not restore the House which was initially kept under suspended animation following a political stalemate before its dissolution.

"Despite unconstitutionality of the impugned proclamation, but having regard to the facts and circumstances of the case, the present is not a case where in exercise of discretionary jurisdiction, the status quo ante deserves to be ordered to restore the Legislative Assembly as it stood on the date ofproclamation dated March 7, 2005where under it was kept under suspended animation," the Bench said in a short order.

"Keeping in view the questions involved, pronouncement of judgement with detailed reasons is likely to take some time and, therefore we are pronouncing this brief order as the order of the court to be followed by detailed reasons later," the Bench also comprising Justice K GBalakrishnan, Justice B N Agarwal, Justice Ashok Bhan and Justice Arijit Pasayat said.

The order, quashing the Centre's proclamation on the basis of the Governor's controversial report, came on a bunch of petitions filed by MLAs of the dissolved Assembly which alleged that it was done at the behest of RJD chief Lalu Prasad to preventJD(U) leader Nitish Kumar from forming the government.

The approval of the proclamation came from President APJ Abdul Kalam when he was on a visit to Moscow after a late night Cabinet recommendation on May 22-23 following a stalemate in government formation after the elections produced a fractured verdict.

The petitioners had alleged that "undue haste" was shown by the Governor and the Centre in recommending the dissolution of the House with the sole aim to prevent Kumar from staking claim for government formation.

While delivering the order, the Bench examined the developments which took place in the State since March 7 when Bihar was brought under President's Rule and the Assembly was kept in suspended animation after no party or coalition mustered the magic figure of 122 to stake claim to form the government.

A blow against the "arbitrary action" of mid-night dissolution.

Former Attorney General Soli J Sorabjee, who argued the case against the dissolution of the House on the basis of the controversial report of Governor Buta Singh,in his reaction, was justifiably exultant: "Let us hope there would not be any mid-night dissolution inhaste"

"The proclamation to dissolve the Assembly was based exclusively on the Governor's report which was tainted with malafides andincorporation of extraneous matters, and the corollary of striking down the dissolution is the illegality of the Governor's report," the senior advocate, who was theAttorney General in the previous NDA regime, said.

Sorabjee said the apex court's order was vindication of constitutionalism, democracy and federalism: "It is a blow against arbitrary action of midnight dissolution".

Apart from seriously indicting the UPA government, and while the timing of this judgement can be questioned -- belated, in our view -- by the Supreme Court has once again opened the debate about therole of governors. The need for reforms in the discretionary powers inappointment of governors and, in turn, of the powers vested in them, and ofdissolution of state assemblies, of course remain to be addressed urgently, asare the questions about the role of the judiciary in disposing off such contentiousissues in time, and the concept of justice itself. If it was unconstitutional,what penalties would the perpetrators of this unconstitutionalities have topay?

Obviously, the onus of the dissolution cannot just be shifted toButa Singh, who in any case is just a soft-target. Can the PM, the cabinet andeven the President, absolve themselves of all responsibility? The need for the resignation of governor Buta Singh, as the least that can be done, before the elections, could not have been been more emphatically underlined.It is time for Prime Minister Manmohan Singh to take full responsibility and notabdicate it once again.