WILLING TO STRIKE BUT AFRAID TO WOUND
This is the title of an interesting piece [http://www.hindu.com/2005/10/10/stories/2005101000561000.htm] by N. Ravi which appeared in the Hindu on October 10,2005. While the order of the Supreme Court seems to have won more bouquets than brickbats, I would like to don the role of the Devil’s Advocate and focus on some of the disturbing issues that the judgment throws up. I hold no brief for Buta Singh, and my concerns are directed more towards the scope and extent of judicial review of a proclamation issued under Article 356. While any detailed analysis of the issue will necessarily have to await the release of the detailed judgment of the court, a few preliminary points seem to be in order.
One, the judgment is symptomatic of the Court’s tendency to delve deep into the political thicket. The Bihar Dissolution is not unique in India’s constitutional history, but the reaction of the Apex Court is certainly without precedent. Further, the dissolution could be justified on more than one count. The elections had thrown up a hung assembly and no concrete coalition of formation had yet been cobbled together which offered the possibility of a stable government. The popular press reported desperate measures by political parties to poach members of other political formations so as to reach the magical figure of a simple majority of members in the Assembly. Does a Governor have to sit by and permit horse trading, unethical coaxing and cajoling so that the political class somehow cobbles together a government? Is the formation of a government by means ethical or otherwise the sacrosanct end of a democratic society? In these circumstances, wouldn’t it be preferable to go back to the people and enable them to resolve the issue? In this view of the matter, would not the actions of the Governor and the President pass muster in light of the test laid down in the SR Bommai Case?
Whether the dissolution took place at midnight or mid-day; whether the Cabinet’s recommendation was forwarded to the President in Moscow or Delhi- aren’t all these but red herrings which surely should not influence judicial decision making?
I look forward to reading your views on this.