With Janata Dal (United) leader Nitish Kumar faxing a letter to Bihar Governor in-charge Keshari Nath Tripathi, claiming a majority in the Assembly, legal experts say the Governor should, “in all fairness,” ask Chief Minister Jitan Ram Manjhi to prove his majority in the House.
The Governor is in receipt of a recommendation by the Chief Minister to dissolve the Assembly.
But experts say the Governor should tread carefully before he takes a call on recommending dissolution of the Assembly when a major political party within the State has realigned itself and wrote to him claiming majority support.
“In fairness, the Governor should ask the Chief Minister to prove his majority in the Assembly. Usually, the Governor is bound by the Chief Minister’s advice, but here when there is a letter claiming majority support from legislators, the Governor has the discretion to revert and ask the Chief Minister to prove his majority,” Justice K.T. Thomas, former Supreme Court judge, said.
“The State Assembly is not the private property of the Chief Minister. When a majority of legislators claim they do not support the Chief Minister, it is definitely the Governor’s call to ask the Chief Minister to seek a vote of confidence in the House,” Rajinder Sachar, former High Court Chief Justice and jurist, agreed.
PrecedentThe legislative history of the State of Bihar provides an example of what a Governor should avoid in a situation like this.
In the Rameshwar Prasad judgment in January 2006, the Supreme Court slammed the then Bihar Governor Buta Singh’s attempts to dissolve the Assembly to prevent Nitish Kumar from forming a majority government in the State as unconstitutional and illegal.
A majority Bench comprising the then Chief Justice Y.K. Sabharwal and Justices B.N. Agrawal and Ashok Bhan said that a recommendation by the Governor to the President favouring dissolution under Article 356 (1) should be supported by “highly cogent material.”
The Constitution Bench, by a majority of 3-2, further held that “drastic and extreme action under Article 356 of the Constitution cannot be justified on mere ipse dixit , suspicion, whims and fancies of the Governor.”
On the reports sent by Mr. Buta Singh on April 27, 2005 and May 21, 2005, the Bench observed that “without highly cogent material, it would be wholly irrational for constitutional authority to deny the claim made by a majority to form the government only on the ground that the majority has been obtained by offering allurements and bribe...”
Calling the recommendation to dissolve a State Assembly an “extraordinary emergency power”, the Supreme Court said it cannot be resorted to as a “matter of course” in the name of “good governance or cleansing of the politics without any authentic material”.
The court cautioned that it would not remain a silent spectator watching the subversion of the Constitution. “It is to be remembered that this court is the sentinel on the qui vive ,” the judgment observed.
“A majority of the legislators have decided to elect an alternative leader on the face of it. Even the majority of the Cabinet is in support of Mr. Nitish Kumar. The Governor has enough prima facie material before him to first question the Chief Minister’s recommendation for dissolution of the Assembly,” senior advocate Raju Ramachandran said.
