Unconstitutionality of the Proclamation dissolving the Legislative Assembly of Bihar.

Judgment

( 1 ) THE general elections to the Legislative Assembly of Bihar were held in the month of February 2005. The Election Commission of India, in pursuance of Section 73 of the Representation of the People Act, 1951 in terms of the notification dated 4-3-2005 notified the names of the elected members.

( 2 ) AS no party or coalition of the parties was in a position to secure 122 seats so as to have majority in the Assembly, the Governor of Bihar made a report dated 6-3-2005 to the President of India, whereupon in terms of notification GSR 162 (E) dated 7-3-2005, issued in exercise of powers under article 356 of the Constitution, the State was brought under the Presidents rule and the Assembly was kept in suspended animation. By another notification GSR 163 (E) of the same date 7-3-2005, it was notified that all powers which have been assumed by the President of India, shall, subject to the superintendence, direction and control of the President, be exercisable also by the Governor of the State. The Home Minister in a speech made on 21-3-2005, when the Bihar Appropriation (Vote on Account) Bill, 2005 was being discussed in the Rajya Sabha, said that the Government was not happy to impose Presidents Rule in Bihar and would have been happy if government had been formed by the elected representatives after the election. That was, however, not possible and, therefore, Presidents Rule was imposed. It was also said that the Government would not like to see that presidents Rule is continued for a long time but it is for elected representatives to take steps in this respect; the Governor can ask them and request them and he would also request that the elected representatives should talk to each other and create a situation in which it becomes possible for them to form a Government. The Presidential Proclamation dated 7-3-2005 was approved by the Lok Sabha at its sitting held on 19-3-2005 and rajya Sabha at its sitting held on 21-3-2005.

( 3 ) THE Governor of Bihar made two reports to the President of India, one dated 27-4-2005 and the other dated 21-5-2005. On consideration of these reports, notification dated 23-5-2005 was issued in exercise of the powers conferred by sub-clause (b) of clause (2) of Article 174 of the Constitution, read with clause (a) of Notification GSR 162 (E) dated 7-3-2005 issued under article 356 of the Constitution and the Legislative Assembly of the State of bihar was dissolved with immediate effect.

( 4 ) THESE writ petitions have been filed challenging constitutional validity of the aforesaid Proclamation dated 23-5-2005. Mr Soli J. Sorabjee, Senior advocate and Mr P. S. Narasimha, Advocate and Mr Viplav Sharma, advocate appearing in person have made elaborate submissions in support of the challenge to the impugned action of dismissing the Assembly.

( 5 ) ON the other hand, Mr Milon K. Banerjee, Attorney General for India, mr Goolam E. Vahanavati, Solicitor General and Mr Gopal Subramanium, additional Solicitor General appearing for the Union of India and Mr P. P. Rao, Senior Advocate appearing for the State of Bihar also made elaborate submissions supporting the impugned Proclamation dated 23-5-2005.

( 6 ) MANY intricate and important questions of law having far-reaching impact have been addressed from both sides. After the conclusion of the hearing of oral arguments, written submissions have also been filed by the learned counsel.

( 7 ) FRESH elections in the State of Bihar have been notified. As per press note dated 3-9-2005 issued by the Election Commission of India, the schedule for general elections to the Legislative Assembly of Bihar has been announced. According to it, the polling is to take place in four phases commencing from 18-10-2005 and ending with the fourth phase voting on 19-11-2005. As per the said press note, the date of the notifications for first and second phase of poll was 23-9-2005 and 28-9-2005, date of poll being 18-10-2005 and 26-10-2005 respectively. The notifications for thi