New Delhi, Sept. 8: What will happen if the Supreme Court strikes down the dissolution of the Bihar Assembly (even after the Election Commission has officially notified the polls)'
This question from the court ' and the answer by attorney-general Milon Banerjee and additional solicitor-general Gopal Subramanian ' today brought the Bihar polls under a cloud of uncertainty.
Both Banerjee and Subramanian, appearing for the Centre, said that if the bench strikes down the presidential proclamation dissolving the House, the poll panel’s notification ' even if formally announced ' will stand annulled.
The bench asked the two of them, as well as former attorney-general Soli Sorabjee ' appearing for one of the petitioners ' to give their reply in writing on Tuesday. Sorabjee agrees with Banerjee and Subramanian on the subject.
The five-judge Constitution bench, nevertheless, advanced the date of final hearing by seven days to September 20, so that a verdict could pre-empt the commission’s official notification, slated for September 23.
The bench had directed its question to the commission’s counsel, S. Muralidhar. He contended that once the notification is issued, the court cannot interfere with it.
Not satisfied, the judges asked Banerjee, Subramanian and Sorabjee to reply to this.
Muralidhar, however, declared that the poll process will formally start on September 23 with the notification being issued.
A commission source said poll preparations will go on as the panel has the “constitutional mandate” to conduct elections within six months of the dissolution of an Assembly. But, he added, “the honourable Supreme Court’s order, whatever it may be, will have to be implemented”.
The court itself said, in answer to petitioner Viplav Sharma, that “if the dissolved Assembly is revived” even by October 18, the date of the first phase of polls, “the elections will be automatically annulled”.
If hearings cannot be concluded on September 20, the court said, then “in any case” they will be by September 29. The verdict would, therefore, come before the polls begin.
The court said it will not now examine the question of whether to summon governor Buta Singh. But it will go into the details of his “personal and legal mala fides” and, if his action is found to be “illegal and unconstitutional”, remedial action will follow.
“Mala fide act of the governor has no sanction under Article 361,” the bench said. “The immunity under Article 361 also does not cover any unconstitutional action of the governor. It is for the government to meet the challenge posed by the petitioners.”
If the House dissolution is struck down, the following can happen:
• Dissolved Assembly is revived automatically;
• Elections are annulled;
• The MLAs are sworn in;
• One of them, purported to command a majority (possibly the leader of the single-largest pre- or post-poll alliance) is appointed chief minister and takes the floor test;
• He proves his majority and runs the state ' or, loses the trust vote and the ministry falls, in which case:
• Another person is given a chance to prove majority;
• He, too, fails and dissolution of House is recommended and fresh polls conducted.
Today, all these scenarios were debated threadbare before the bench, made up by Justices K.G. Balakrishnan, B.N. Agrawal, Ashok Bhan and Arijit Passayat, besides Justice Y.K. Sabharwal, who is presiding over it.