New Delhi, March 9: The Supreme Court has a precedent in advancing the Jharkhand Assembly's floor test and in saying that its order 'be construed to be the formal notice' for convening the House, say legal experts.
They referred to its 1999 order to convene the Uttar Pradesh Assembly for a trial of strength. Congress's Jagadambika Pal had broken away to form the Loktantrik Congress Party to support Kalyan Singh's BJP regime and then split his new party to join hands with Mulayam Singh Yadav.
That order, which declared the House's sole agenda to be the floor test, had followed an appeal after the matter went to Allahabad High Court. Pal had been made chief minister and the test had been delayed.
Citing this instance, former Chief Justice of India G.B. Pattanaik said 'extraordinary situations require extraordinary orders from the judiciary, like (in) the Best Bakery case'.
He hastened to add that in the case of Jharkhand, 'the court could have just said that the governor is hereby directed to convene the Assembly on March 10 as scheduled and the floor test be conducted the next day'.
Justice Kuldip Singh, a retired apex court judge who now heads the country's delimitation commission, echoed this view.
But he said: 'When the MLAs have to take oath on March 10, the Assembly is actually convened. So there is no necessity for the Supreme Court to say that its order be construed as the formal notice for convening the Assembly, which is certainly beyond the court's constitutional limits.'
'The present CJI bench,' he added, 'could have done better to just add a line that we hereby request the governor to include in the Assembly's agenda to take up the confidence vote on the very day the House is convened and after the MLAs have taken oath.'
This is because the 'one-point agenda of trial of strength' could be taken up the same day as the MLAs take oath or even the 'next day', Justice Singh said.
Justice Pattanaik, however, believes that the apex court, 'in doing complete justice', can intervene in any matter in the country under Article 142 of the Constitution. 'But if certain constitutional limits are exceeded, then only a review of the matter lies for any affected party,' he added.
The government, Justice Singh said, could file a review petition 'to the limited extent of withdrawing that one line in the order that it be treated as the notice for convening the Assembly'.
'This could be done tomorrow itself and the government could assure the Supreme Court that it would ask the governor to take up on the agenda the floor test for the next day, after all MLAs had taken oath on March 10,' he added.
Former Supreme Court Bar Association president M.N. Krishnamani agreed that a review was possible but time was short. 'In the same logic of paucity of time, the court deemed it fit to direct that the order be treated as notice for convening the Assembly.'
Krishnamani, a senior counsel, said the order could have been passed to 'prevent a fraud being played on the Constitution, which the judges have correctly observed'.
All three experts agreed that the other aspects of the order like submission of videographed proceedings and the acting Speaker's report on the floor test's outcome were 'okay and within the realm of the court, which, after all, has to decide the matter'.