Rameshwar Prasad & Ors. v/s. Union of India & ANR.

Facts of the Case

The Elections took place in the State of Bihar in the year of 2005 by the Election Commission of India and its results were announced on 04th March, 2005. The Bihar Assembly consists of 243 total seats and a party to come into power & form the government requires to cross the golden mark of 122 seats. The seats-won breakup is hereby illustrated:

Thus, no party individually and with their respective coalition which was entered before the elections could cross the simple majority mark, which resulted in the imposition of the President’s Rule in the State, as government could not be formed.

Followed by the imposition of President’s Rule, the top 2 coalition’s major parties (NDA- BJP & RJD- JDU) indulged in the wrongful practices including those where the MLA’s of the aforesaid parties allegedly promised the LJP MLA’s money and political positions to win them over. These MLA’s were being swayed on the grounds of religion, caste and creed etc.

The then Governor of Bihar bought the situation before the then Hon’ble President of India Shri A.P.J. Abdul Kalam Azad, which was not noticed at Governor’s first letter, but took it seriously when 2nd letter to his majesty reached. This resulted in the emergency cabinet’s meeting with the Hon’ble President, which took the decision to dissolve the Bihar Legislative Assembly on 23rd May, 2005- even before the Assembly had had its first meeting.

The order of dissolution raised an upsurge in the political community which argued on the ground that, without even a single meeting and Assembly not being officially met once, how it could be regarded as functional and thereby if it wasn’t functional, then how it could be dissolved?

In respect of the same, a Public Interest Litigation was filed before the Hon’ble Supreme Court of India to challenge the constitutional validity of the President’s order of dissolution and the decision to the same was delivered on 24th January, 2006.

Decision Taken in the Case

The decision in this case was delivered with 3:2 majority favouring the contention that the President’s order clearly meets the test of Unconstitutionality and was thus declared as UNCONSTITUTIONAL.

‘The views of the minority seem to be based on mainly following grounds which upheld the constitutional validity of the President’s Order. Firstly, non-applicability of the Bommai's case since there was no assembly in existence in Bihar as in the case of Karnataka and Nagaland assemblies which were dissolved. But it is submitted that the different fact situation can neither deviate or detract or dilute the principles laid down in Bommai case nor displace its essential reasoning. Secondly, it said, there was no material to show that the Governor actually prevented the staking of claim by the Janata Dal (U); the latter took no preliminary step to stake its claim that was prevented by the Governor. With due respect to the Court, it is submitted that the minority completely overlooked that the whole object and aim of recommending the dissolution of the Assembly with indecent haste was to prevent Nitish Kumar even from staking the claim to form the government. Thirdly, as Justice Pasayat noted, if the governor felt that what was being done was morally wrong, it couldn't be treated as politically right. This is his perception. It may be erroneous. It may not be specifically spelt out by the Constitution so far as his powers are concerned. But it ultimately is a perception.

The Majority Judgment which changed the course of Elections in India came up with the reasoning that, constitutionally, the most responsible functionary was the President who allowed himself to be hurried into signing the order of dissolution. He could have asked the Council of Ministers headed by the Prime Minister to wait; he could have taken his own time, could have made necessary consultations before signing the impugned order dissolving the Bihar Assembly, and should have taken a decision only after careful consideration. Moreover, he could have sent the matter back to the Cabinet for reconsideration. All these rights and powers of the President are well within our constitutional framework. Inasmuch as what was declared unconstitutional by the Court in the present case was the Presidential notification, one cannot absolve the President's office of discharging its constitutional responsibility.’[i]

But interestingly the Court passed an interim order which virtually created a constitutional anomaly by allowing the second election to go on. Indeed, this interim order itself rendered the petition infructuous because when the judgment was delivered in this case already the second government was in power and that is the reason why President’s order was declared unconstitutional, but revival of the status quo cabinet was not ordered. This created an anomaly between whether this case was actually a victory of Constitutionality over Political Evil or the latter one showcased its strength?

COPY OF THE JUDGMENT

Rameshwar Prasad & Ors vs Union Of India & Anr on 24 January, 2006
Author: Y Sabharwal
Bench: Y.K. Sabharwal Cji, K.G. Balakrishnan, B.N. Agrawal, Ashok Bhan, Arijit Pasayat
CASE NO.: Writ Petition (civil)  257 of 2005

PETITIONER: Rameshwar Prasad & Ors.
RESPONDENT: Union of India & Anr.

DATE OF JUDGMENT: 24/01/2006

BENCH: Y.K. Sabharwal CJI & K.G. Balakrishnan & B.N. Agrawal & Ashok Bhan & Arijit Pasayat

JUDGMENT:

JUDGMENT Delivered by Y.K. Sabharwal, CJI K.G. BALAKRISHNAN, J ARIJIT PASAYAT J.

[With W.P. (C) No.255 of 2005, W.P. (C) No.258 of 2005 and W.P.(C) No.353 of 2005 Y.K. Sabharwal, CJI.

The challenge in these petitions is to the constitutional validity of Notification dated 23rd May, 2005 ordering dissolution of the Legislative Assembly of the State of Bihar. It is a unique case. Earlier cases that came up before this Court were those where the dissolutions of Assemblies were ordered on the ground that the parties in power had lost the confidence of the House. The present case is of its own kind where before even the first meeting of the Legislative Assembly, its dissolution has been ordered on the ground that attempts are being made to cobble a majority by illegal means and lay claim to form the Government in the State and if these attempts continue, it would amount to tampering with constitutional provisions.

One of the questions of far reaching consequence that arises is whether the dissolution of Assembly under Article 356(1) of the Constitution of India can be ordered to prevent the staking of claim by a political party on the ground that the majority has been obtained by illegal means. We would first note the circumstances which led to the issue of impugned notification. Factual Background Election to the State of Bihar was notified by the Election Commission on 17th December, 2004. Polling for the said elections were held in three phases, i.e., 3rd February, 2005, 5th February, 2005 and 13th February, 2005. Counting of votes took place on 27th February, 2005. Results of the said elections were declared by the Election Commission. On 4th March, 2005, Notification was issued by the Election Commission in pursuance of Section 73 of Representation of People Act, 1951 (for short 'the RP Act, 1951') duly notifying the names of the members elected for all the constituencies along with party affiliation.

To read the full judgement, find the enclosed attachment