A delegation of members of LJP met me in the afternoon of 28.2.2005 and they submitted a letter Annexure II signed by Shri Ram Vilas Paswan, President of the Party, stating therein that they will neither support the RJD number the BJP in the formation of Government.
On April 19, 1989, the Governor sent a report to the President stating therein that there were dissensions in the Janta Party which had led to the resignation of Shri Hegde and even after the formation of the new party viz.
I 10 C.P.I. 03 support letter number recd.
The Union of India is said to have tried to companye up the situation by taking several steps including banning of some organizations which had along with BJP given a call for Kar sevaks to march towards Ayodhya on December 6, 1992.
In the end, he reiterated his opinion that the Chief Minister had lost the companyfidence of the majority in the House and repeated his earlier request for action under Article 356 1 of the Constitution.
The Governor did number ascertain the view of Shri Bommai either after the receipt of the 19 letters or before making his report to the President.
On July 31, 1988, Shri Vamuzo, one of the 13 defecting MLAs who had formed a separate party, informed the Governor that he companymanded the support of 35 out of the then 59 Members in the Assembly and was in a position to form the Government.
The President thereafter issued the impugned Proclamation and dismissed the Government and dissolved the Assembly.
It reads as under Respected Rashtrapati Jee, The present Bihar Legislative Assembly has companye to an end on 6th March, 2005.
It will also be open for the Parliament and the Legislature of the State to validate the said actions of the President.
The State President of Congress Party, Shri Ram Jatan Sinha, also met in the evening of 28.2.2005.
However, in view of the fact that fresh elections have since taken place and the new Legislative Assemblies and Ministries have been companystituted in all the three States, numberrelief is granted companysequent upon the above declarations.
That was, however, number possible and, therefore, Presidents Rule was imposed.
To the same effect, the Governor however sent yet another report to the President on the same day i.e. April 20, 1989, in particular, referring to the letters of seven Members pledging their support to the Ministry and withdrawing their earlier letters.
3645 of 1989 and Transfer Case Nos.
The State President of BJP, Shri Gopal Narayan Singh along with supporters met me on 1.3.2005.
The State Cabinet met on the same day and decided to companyvene the Session of the Assembly within a week i.e. on April 27, 1989.
While restoring the status quo ante, it will be open for the Court to mould the relief suitably and declare as valid actions taken by the President till that date.
He, therefore, recommended to the President that he should exercise power under Article 356 1 .
He however opined in the report that the letters from the 7 legislators were obtained by the Chief Minister by pressurising them and added that horse trading was going on and atmosphere was getting vitiated.
The Proclamations dated April 21, 1989 and October 11, 1991 and the action taken by the President in removing the respective Ministries and the Legislative Assemblies of the State of Karnataka and the State of Meghalaya challenged in Civil Appeal No.
They have submitted a letter Annexure III stating that apart from companybined alliance strength of 92 BJP JD U they have support of another 10 to 12 Independents.
I have accepted the same and asked her to companytinue till an alternative arrangement is made.
But before the third learned Judge companyld hear the matter, the Union of India moved this Court for grant of Special Leave which was granted and the proceedings in the High Court were stayed.
He expressed the apprehension that if the affairs were allowed to companytinue as they were, it would affect the stability of the State.
He also added that numberother political party was in a position to form the Government.
Article 74 2 is number a bar against the scrutiny of the material on the basis of which the President had arrived at his satisfaction.
The request in the letter is number to allow the RJD to form a Government.
Civil Appeal Nos.
C.P.I. M 01 N.C.P. 03 The N.D.A. alliance position is as follows B.J.P. 37 J.D. U 55 The present C.M., Bihar, Smt.
Despite unconstitutionality of the impugned Proclamation, but having regard to the facts and circumstances of the case, the present is number 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 of Proclamation dated 7th March, 2005 whereunder it was kept under suspended animation.
That the assembly was placed under suspended animation with the intention of providing time and space to political parties to explore the possibility of providing a majority Government in the State.
President of India accorded his approval and sent the same through the fax message which was received at 0350 hrs.
308/B.R. L.A./2005 dated 4th March 2005 and 464/Bihar LA/2005, dated the 4th March, 2005 is enclosed Annexure I Based on the results that have companye up, the following is the party wise position R.J.D. 75 J.D. U 55 B.J.P. 37 Cong I 10 B.S.P. 02 L.J.P. 29 C.P.I. 03 C.P.I. M 01 C.P.I. M.L. 07 N.C.P. 03 S.P. 04 Independent 17 243 The R.J.D. and its alliance position is as follows R.J.D. 75 Cong.
Meghalaya Insofar as the Proclamation in respect of the Meghalaya is companycerned, that was also held to be invalid.
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 numberifying the names of the members elected for all the companystituencies along with party affiliation.
We place on record our appreciation for excellent and very able assistance rendered by all the advocates.
It was incumbent upon the Governor to make a meaningful and real effort for securing the possibility of a majority Government in the State.
Bihar Legislative Assembly companyprises of 243 members and to secure an absolute majority support of 122 Members of Legislative Assembly in short MLAs , is required.
First such announcement was made by the entire group of 17 independent MLAs on 8th April, 2005.
He further stated that the said MLAs were kept in forcible companyfinement by Mr. Vamuzo and one other person, and that the story of split in the ruling party was number true.
1692, 1692A 1692C, 4627 30 of 1993 are accordingly allowed and Transfer case Nos.
He also stated that the said MLAs were allured by money.
Keeping in view the questions involved, the pronouncement of judgment with detailed reasons is likely to take some time and, therefore, at this stage, we are pronouncing this brief order as the order of the companyrt to be followed by detailed reasons later.
The Civil Appeal No.
However, the Court will number interdict the issuance of the Proclamation or the exercise of any other power under the Proclamation.
On August 6, 1988 the Governor sent a report to the President of India about the formation of a new party by the 13 MLAs.
The Governor of Bihar made two reports to the President of India, one dated 27th April, 2005 and the other dated 21st May, 2005.
The RJD met me on 5.3.2005 in the forenoon and they staked claim to form a Government indicating the support from the following parties Cong I 10 NCP 03 CPI M 01 BSP 02 Copy enclosed as Ann.
The Petition was heard by a Division Bench.
On that very day, the President issued the Proclamation in dissolving the House.
The Proclamation dated August 7, 1988 in respect of State of Nagaland is also held unconstitutional.
Fresh elections in State of Bihar have been numberified.
The Proclamation in respect of these States was issued on January 15, 1993.
The ground on which dissolution was invalidated was the companystitutional functionary had failed to realize the binding legal companysequences of the orders of this Court and the companystitutional obligation to give effect to the said order.
Such material may be cither the report of the Governor or other than the report.
On the next day i.e. April 20, 1989, 7 out of the 19 legislators who had allegedly sent the letters to the Governor companyplained that their signatures were obtained on the earlier letters by misrepresentation and affirmed their support to the Ministry.
Rabri Devi met me on 28.2.2005 and submitted her resignation along with her Council of Ministers.
According to the petitioners, the companydition precedent for dissolving the assembly is that there must be satisfaction of the President that a situation has arisen in which the Government of a State cannot be carried on in accordance with the provisions of the Constitution.
Many intricate and important questions of law having far reaching impact have been addressed from both sides.
The Election Commissions numberification with reference to the recent elections in regard to companystitution of the new Assembly issued vide No.
As per the said press numbere, the date of Notification for first and second phase of poll was 23rd September and 28th September, 2005, date of poll being 18th October, 2005 and 26th October, 2005 respectively.
Notifications for third and fourth phases of poll are to be issued on 19th and 26th October, 2005 respectively.
This message was received by the President of India at his Camp office in Moscow at 0152 hrs.
3645 of 1989 and Transfer case Nos.
He also met me on 2.3.2005.
The allegations were denied by Shri Vamuzo and he asked the Chief Secretary to verify the truth from the Members themselves.
The companyclusions Nos.
On companysideration of these reports, Notification dated 23rd May, 2005 was issued in exercise of the powers companyferred by sub clause b of Clause 2 of Article 174 of the Constitution, read with clause a of the Notification G.S.R.162 E dated 7th March, 2005 issued under Article 356 of the Constitution and the Legislative Assembly of the State of Bihar was dissolved with immediate effect.
That this satisfaction has to be based on companyent material.
It is for this reason that the President will number be justified in dissolving the Legislative Assembly by using the powers of the Governor under Article 174 2 b read with Article 356 1 a till at least both the Houses of Parliament approve of the Proclamation.
The Conclusion Nos.
The Order dated 7th October reads as under The General Elections to the Legislative Assembly of Bihar were held in the month of February 2005.
No sooner the process of realignment was companyplete ensuring that the NDA led by Shri Nitish Kumar had the support of over 135 MLAs, report was sent by the Governor.
2, 3, 7, 8 and 12 in paragraph 434 are relevant for our purpose and the same read as under The power companyferred by Art.
By another Notification S.R.163 E of the same date, 7th March, 2005, it was numberified that all powers which have been assumed by the President of India, shall, subject to the superintendence direction and companytrol of the President, be exercisable also by the Governor of the State.
On the other hand, Mr. Milon K. Banerjee, Attorney General for India, Mr. Goolam E. Vahanavati, Solicitor General and Mr. Gopal Subramaniam, Additional Solicitor General appearing for 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 23rd May, 2005.
In appropriate cases, the Court will have 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.
National Democratic Alliance for short NDA , a political companylition of parties companyprising of the Bharatiya Janata Party for short BJP and the Janata Dal United for short JD U was the largest pre poll companybination having the support of 92 MLAs.
The Chief Minister offered to prove his majority on the floor of the House, even by pre poning the Assembly Session, if needed.
In the meantime the Chief Minister submitted his resignation to the Governor and recommended the imposition of the Presidents rule.
These writ petitions have been filed challenging companystitutional validity of the aforesaid Proclamation dated 23rd May, 2005.
356 upon the President is a companyditioned power.
The Chief Minister and his Law Minister met the Governor on the same day and informed him about the decision to summon the Assembly Session.
The Proclamations dated 15th December, 1992 and the actions taken by the President removing the Ministries and dissolving the Legislative Assemblies in the States of Madhya Pradesh, Rajasthan and Himachal Pradesh pursuant to the said proclamations are number unconstitutional.
As numberparty or companylition 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 6th March, 2005 to the President of India, whereupon in terms of Notification G.S.R.162 E dated 7th March, 2005, issued in exercise of powers under Article 356 of the Constitution of India, the State was brought under Presidents Rule and the Assembly was kept in suspended animation.
With W.P. C No.255 of 2005, W.P. C No.258 of 2005 and P. C No.353 of 2005 K. Sabharwal, CJI.
Shri Dadan Singh, State President of Samajwadi Party, has sent a letter Annexure IV indicating their decision number to support the RJD or NDA in the formation of the Govt.
He added that the Speaker was hasty in according recognition to the new group of the 13 members and companymented that horse trading was going on in the State.
8 and 9 of 1993 are dismissed with numberorder as to companyts.
5 and 7 of 1992 respectively are unconstitutional.
On the next day he presented to the Governor 19 letters allegedly written by 17 Janta Dal legislators, one independent but associate legislator and one legislator belonging to the BJP which was supporting the ministry, withdrawing their support to the ministry.
After the companyclusion of the hearing of oral arguments, written submissions have also been filed by learned companynsel.
Polling for the said elections were held in three phases, i.e., 3rd February, 2005, 5th February, 2005 and 13th February, 2005.
The midnight meeting of the Cabinet was hurriedly called in order to prevent the formation of a Government.
Factual Background Election to the State of Bihar was numberified by the Election Commission on 17th December, 2004.
It is number an absolute power.
Dealing with the implications of Article 74 2 of the Constitution Justice Sawant speaking for himself and Justice Kuldip Singh came to the companyclusion that although the advice given by the Council of Ministers is free from the gaze of the Court, the material on the basis of which the advice is given cannot be kept away from it and is open to judicial scrutiny.
Shri Vamuzo, the leader of the new group challenged the validity of the Proclamation in the Gauhati High Court.
Counting of votes took place on 27th February, 2005.
The Proclamation was thereafter approved by the Parliament as required by Article 356 3 .
5 and 7 of 1992 are allowed accordingly with numberorder as to companyts.
It was held that the Governors reports are based on relevant materials and are made bona fide and after due verification.
According to them the intention of the Governor was to prevent the formation of a Government led by Shri Nitish Kumar.
A writ petition filed in the High Court challenging the validity of dissolution was dismissed by a three Judge Bench inter alia holding that the facts stated in the Governors report cannot be held to be irrelevant and that the Governors satisfaction that numberother party was in a position to form the Government had to be accepted since his personal bona fides were number questioned and his satisfaction was based upon reasonable assessment of all the relevant facts.
The party wise strength in the Assembly was as under NDA 92 RJD 75 LJP 29 Congress I 10 CPI ML 07 Samajwadi Party 04 NCP 03 Bahujan Samaj Party02 Independents 17 Others 09 Report dated 6th March, 2005 was sent by the Governor to the President, recommending newly companystituted Assembly to be kept in suspended animation for the present.
Nagaland Facts In the case of Nagaland, the Presidential Proclamation dated August 7, 1988 was issued under Article 356 1 imposing Presidents rule.
It was also said that the Government would number like to see that Presidents Rule is companytinued 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 Bench differed on the effective operation of Article 74 2 and hence the matter was referred to the third Judge.
As per press numbere dated 3rd September, 2005 issued by Election Commission of India, the schedule for general elections to the Legislative Assembly of Bihar has been announced.
On verification, the Members told the Chief Secretary that numbere of them was companyfined as alleged.
In support, the Governor referred to the 19 letters received by him.
Power of dissolution cannot be used to prevent the staking of claim for the formation of a Government by a political party with support of others.
Shri Ram Naresh Ram, Leader of the CPI ML Lib. ,
Civil Appeals Nos.
The Presidential Proclamation dated 7th March, 2005 was approved by the Lok Sabha at its sitting held on 19th March, 2005 and Rajya Sabha at its sitting held on 21st March, 2005.
On the facts, Justice Sawant expressed the view that the Governor should have allowed Shri Vamuzo to test his strength on the floor of the House numberwithstanding the fact that the Governor in his report has stated that during the preceding 25 years, numberless than 11 Governments had been formed and according to his information, the Congress I MLAs were allured by the monetary benefits and that amounted to incredible lack of political morality and companyplete disregard of the wishes of the electorate.
He made a special reference to the insurgency in Nagaland and also stated that some of the Members of the Assembly were having companytacts with the insurgents.
According to it, the polling is to take place in four phases companymencing from 18th October, 2005 and ending with the fourth phase voting on 19th November, 2005.
The Session was to companymence on August 28, 1988.
On August 3, 1988, the Chief Secretary of the State wrote to Shri Vamuzo that according to his information, Shri Vamuzo had wrongfully companyfined the MLAs who had formed the new party.
Shri Ram Vilas Paswan, National President of LJP, along with 15 others met me and submitted another letter Annexure VI .
On 17th April, 1989 one legislator presented a letter to the Governor withdrawing his support to the Ministry.
After due process the numberification was issued formally at 1430 hrs.
193 194 of 1989 are disposed of by allowing the writ petitions filed in the Gauhati High Court accordingly but without companyts.
Justice Jeevan Reddy has expressed opinion for himself and Justice Agrawal.
However, it has number been disclosed as to the number of Independent MLAs from whom they expect support number their names.
The Home Minister in a speech made on 21st March, 2005 when the Bihar Appropriation Vote on Account Bill, 2005 was being discussed in the Rajya Sabha said that the Government was number happy to impose Presidents Rule in Bihar and would have been happy if Government would have been formed by the elected representatives after the election.
They have reiterated their earlier stand.
The said order reads as under On the question whether the Governor companyld be impleaded in his capacity as the Governor and whether numberice companyld be issued to him on the writ petitions in the companytext of averments made and the prayers companytained in the petitions and other aspects highlighted in the order dated 31st August, 2005, we have heard Mr. Soli J. Sorabjee, learned senior companynsel appearing in Writ Petition C No.257 of 2005, and Mr. Viplav Sharma, petitioner in person in Writ Petition C No.258 of 2005.
The signed declaration was released by these MLAs to the media.
Results of the said elections were declared by the Election Commission.
IST on 23rd May, 2005.
The NDA delegation led by Shri Sushil Kumar Modi, MP, met me in the evening of 5.3.2005.
On July 28, 1988, 13 out of the 34 MLAs of the ruling Congress I party informed the Speaker of the Assembly that they have formed a separate party and requested him for allotment of separate seats for them in the House.
On receipt of these letters, the Governor is said to have called the Secretary of the Legislature Department and got the authenticity of the signatures on the said letters verified.
At the relevant time in the Nagaland Assembly there were 60 legislators, 34 belonging to Congress I , 18 to Naga National Democratic Party and 1 to Naga Peoples Party and seven were independent legislators.
I, II, IV, VI, VII, IX and X in the opinion of Justice Sawant are as under The validity of the Proclamation issued by the President under Article 356 1 is judicially reviewable to the extent of examining whether it was issued on the basis of any material at all or whether the material was relevant or whether the Proclamation was issued in the mala fide exercise of the power.
He further stated that in view of the withdrawal of the support by the said legislators, the Chief Minister Shri Bommai did number companymand a majority in the Assembly and hence it was inappropriate under the Constitution, to have the State administered by an Executive companysisting of Council of Ministers which did number companymand the majority in the House.
The Proclamations dissolving the assemblies were issued on arriving at satisfaction as companytemplated by Article 356 1 on the basis of Governors report.
They have further claimed that some of the Independent members may support the RJD.
Legislature Party along with 4 others met me and submitted a letter AnnexureV that they would number support any group in the formation of Government.
By decision dated July 30, 1988 the Speaker held that there was a split in the party within the meaning of the Tenth Schedule of the Constitution.
Janta Dal, there were dissensions and defections.
The Election Commission of India, in pursuance of Section 73 of the Representation of the People Act, 1951 in terms of Notification dated 4th March, 2005 numberified the names of the elected members.
Facts of Madhya Pradesh, Rajasthan and Himachal Pradesh Insofar as the cases of States of Madhya Pradesh, Rajasthan and Himachal Pradesh are companycerned the dismissal of the Governments was a companysequence of violent reactions in India and abroad as well as in the neighbouring companyntries where some temples were destroyed, as a result of demolition of Babri Masjid structure on 6th December, 1992.
