The Telegraph
Since 1st March, 1999
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Centre gets court rap on Bihar voices
Buta Singh: Summon tussle

New Delhi, Sept. 6: The Supreme Court today asked the Centre to “speak in one voice” in the Bihar Assembly dissolution case after the attorney-general and the additional solicitor-general differed on a key issue.

Attorney-general Milon Banerjee argued that a governor (Buta Singh in this instance) can be summoned to answer the court if he has committed an act of “personal malafide”, but not if the only charge against him is of “legal malafide”. But Gopal Subramanian held that a governor cannot be summoned on either count.

A charge of personal malafide implies the accused acted out of bad intention; one of legal malafide implies he acted without realising that his action or decision is legally wrong.

As the five-judge Constitution bench of Justices Y.K. Sabharwal, K.G. Balakrishnan, B.N. Agrawal, Ashok Bhan and Arijit Pasayat began hearing the case today, it was Banerjee who gave his opinion first. He said in case of “proven personal malafide”, the court can issue a notice to a governor to appear and answer its questions.

But Subramanian stood firm that “though the court could examine the personal as well as legal malafide alleged against the governor, under no circumstances could the court issue notice to him”.

The judges asked whether this did not amount to the Centre taking “two stands”. When Banerjee replied that he was appearing merely in his personal capacity as “attorney-general of India”, the bench said he was “first of all, the first of all law officers of the country” and “should know” the Centre’s stand.

The bench is to judge if the May 23 dissolution of the Bihar Assembly was constitutionally sound and, if not, whether the House should be revived. It is also to decide if governor Buta Singh can be summoned and whether the Election Commission should be restrained from issuing a formal poll notification.

If the commission officially notifies a new election, courts cannot intervene any more and the petitions seeking revival of the House become infructuous.

The bench said it would take up the challenge to the Assembly dissolution first so that a verdict can be passed before October 18, the date for the first phase of Bihar elections.

At this the commission’s counsel, S. Muralidhar, mentioned that the panel has already announced in a press release that the formal notification will be issued on September 23. So, after that date, no court can interfere in the election process.

“The model code of conduct has already come into force,” Muralidhar told the court.

The bench clarified that it wasn’t talking of a stay on the poll process but only about the constitutional validity of the Bihar House dissolution.

“If the proclamation is bad, the decision must come before October 18 because so much money is spent and the rights of the electorate (are) involved,” Justice Sabharwal, the presiding judge, said.

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