J. Venkatesan

In the Bihar issue, Bench applies principles laid down in Bommai case

If Governor's satisfaction is mala fide, court can examine it Centre's claim of privilege rejected For the first time, letters were made public

New Delhi: In holding unconstitutional last year's dissolution of the Bihar Assembly, the Supreme Court has applied the principles laid down in the Bommai case that the Governor's report could be judicially scrutinised and that there could be no absolute immunity to a Governor from court proceedings.

The majority judgment by a Bench headed by Chief Justice Y.K. Sabharwal held that "if the satisfaction [of the Governor to recommend dissolution] is mala fide or is based on wholly extraneous or irrelevant grounds, the court would have the jurisdiction to examine it."

The Bench said: "The immunity granted under Article 361 does not mean that in the absence of Governor [as a party since no notice was issued to Mr. Buta Singh], the grounds of mala fide or [the action] being ultra vires would not be examined by the court." It said, "the action which results in preventing a political party from staking claim to form a government after election, on such fanciful assumptions, if allowed to stand, would be destructive of the democratic fabric."

The court rejected the Centre's claim of privilege for the Governor's report and the Government made public the two reports sent by Governor Buta Singh on April 27 and May 21, 2005 recommending dissolution of the Assembly. These letters faxed to the President, who was in Moscow, formed the basis for dissolving the House on May 23.

Though letters of the Governor were judicially scrutinised in the past, it is the first time copies were made public in the Bihar episode.