'The Verdict Is Unethical, Illegal, Unconstitutional'

Click here for the full text of the Supreme Court judgement on Bihar Dissolution case [PDF format]

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If the SC judgement on the dissolution of the Bihar assembly in 2004 is split right down the middle, so is the legal community. Constitutional law experts like Soli Sorabjee and Fali Nariman may have expressed their approval of the majority judgement, but other legal luminaries are dismayed by the verdict.

They include former Union law minister Shanti Bhushan, and senior SC lawyers Rajiv Dhawan and P.P. Rao. Agreeing with the minority view of Justice K.G. Balakrishnan and Justice Arijit Pasayat, who concurred with the decision to dissolve the Bihar assembly, they say the court's judgement held out "dangerous portents for democracy"—as Rao put it—"as it virtually endorsed horse-trading."

The majority judgement, delivered by Chief Justice Y.K. Sabharwal, Justice B.N. Aggarwal and Justice Ashok Bhan, says "without highly cogent material, it would be wholly irrational for a constitutional authority to deny the claim made by a majority to form the government only on the ground that the majority has been obtained by offering allurements and bribe...."

This, these lawyers say, appears to endorse horse-trading. They also point out the contradiction between the court's describing the dissolution of the Bihar assembly as a "subversion" of the Constitution while allowing a fresh election instead of reviving the old assembly. Says Bhushan: "If the majority judgement has a quarrel with dissolution, it was duty-bound to restore the government. The MLAs elected in February can cite this judgement and challenge the fact that they were not permitted to complete their five-year tenure." Not mincing his words, he adds: "The majority judgement is unconstitutional, unethical and illegal. Buta Singh may be corrupt, but in this case, he acted correctly."

Dhawan points out that after the anti-defection law was amended, only a merger is legal. A third of a party can no longer defect legally. Since the BJP-JD(U) combine only added up to 93, 29 short of the magic figure of 122 required in the 243-member assembly, the 17 independents could not have filled the breach. The 29-member Lok Janshakti Party would have had to be broken as its leader Ram Vilas Paswan had decided not to back the combine. "The judgement is, therefore, constitutionally indefensible," says Dhawan.

Concurring with this, Rao says: "The majority view is a blow to democracy—it implies a government must be formed at all cost. How could the governor allow the government to be formed, opening up the possibility of some of the MLAs being disqualified by the Speaker for violating the anti-defection law?"

Sorabjee challenges this line: "Yes, the Speaker decides on disqualification, but why should the governor predecide the issue? His job is limited to ensuring that the requisite majority is there and the new government can provide stability. He is not an ombudsman. It is not for him to be a judge of political morality."