New Delhi, Oct. 6: The Supreme Court has listed the Bihar case “for orders” tomorrow, raising the unprecedented prospect of elections scheduled for later this month to be annulled.
The court has been hearing a challenge to the dissolution of the Assembly by the governor. During the arguments that continued till last week, the court had said it would give an order before the start of the first phase of polls from October 18 “only if it felt” the elections should not be held now.
The court’s five-judge constitution bench is slated to pronounce its order tomorrow, according to the schedule ' called the supplementary cause list ' released late in the evening.
It said: “For Orders”. According to legal experts, in the normal course, this should mean first there will be an order and then the debate and decision on other issues in the case, where the constitutionality of the dissolution is under contest.
Counsel Viplav Sharma, a petitioner in the case, said: “Since the judges had already made it clear that in the event of their coming to a conclusion that elections should not be held before deciding the constitutionality of the dissolution of the assembly, a verdict to that effect (stopping of the elections) is expected.”
The bench, headed by Justice Y.K. Sabharwal and consisting of K.G. Balakrishnan, B.N. Agrawal, Ashok Bhan and Arijit Pasayat, had earlier heard arguments advanced on behalf of four legislators of the National Democratic Alliance, Poornima Yadav, an independent MLA of the dissolved Assembly, and Sharma against the dissolution.
They argued that the governor should not have taken the decision without:
• Swearing in the newly elected MLAs
• Making the Assembly functional
• Taking into consideration the claims of various groups.
They alleged that the decision was made in haste only to favour Laloo Prasad Yadav, the Rashtriya Janata Dal leader and railway minister, whose support is crucial to the Congress-led government at the Centre.
A three-judge bench that Chief Justice R.C. Lahoti presided over had earlier referred the matter to the constitution bench as important constitutional issues were involved.
The issues are:
• Whether the governor for his commissions and omissions could be issued notices
• Whether the governor could be called to answer questions of the court about his legal and personal mala fide
• Whether the Assembly could be revived
• Whether the dissolution was unconstitutional, null and void and deemed not to have been effected
(This means that if the dissolution is held unconstitutional, the Assembly gets revived and fresh elections are annulled, which the judges had made clear during the proceedings.)
• Whether under the S.R. Bommai judgment (where the Supreme Court had said a governor should first explore ways to form a government), elections could be stopped before deciding the issue of constitutionality of dissolution of the Assembly
• Whether the governor should have invited the single largest pre- or post-poll coalition to prove majority and in the event of its failure, called the next formation. If that, too, failed, he could have recommended dissolution.
These issues will now be debated after tomorrow’s order.