The Telegraph
Since 1st March, 1999
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Twin-edged weapon with Delhi
Law on UP governor’s side

New Delhi, Jan. 10: As Uttar Pradesh heads towards a constitutional crisis, legal experts are coming up with different views on what the developments imply for the Mulayam Singh Yadav government.

Whether the chief minister was provoking dismissal by the Centre with his move to convene a special Assembly sitting on January 15 or whether governor T.V. Rajeswar had the constitutional right to come in the way have become the main talking points.

The Mulayam-governor face-off reached a flashpoint when the government declared it would go ahead with the session, regardless of whether Rajeswar formally convened it or not.

A legal expert who did not wish to be quoted said the state government’s move was a good enough reason for the Centre to use Article 356 and sack it. “The power to summon the Assembly rests only with the governor. The chief minister and the Speaker cannot (do it). But on the other hand, the governor is bound to act on the advice of the council of ministers and, in this case, it was the council which in December 2006 recommended that the Assembly should be adjourned sine die and then prorogued,” he said.

He added that the legislative rules of procedure required a gap of 15 days between the prorogation and the calling of a new session.

“The idea of allowing for such a gap is to give enough time to all the members to reach the state or national capital and allow them to do other business for the period of prorogation,” said Rajeev Dhavan, another authority on the Constitution.

Dhavan also clarified that the governor was not bound to act on the advice of the chief minister in two cases — if a special session was being called to seek a vote of confidence (as in Uttar Pradesh) or to transact urgent legislative business when an Assembly is under suspended animation and a state is under President’s rule.

Legal sources said if the Speaker ignored the governor’s directive, the session would not be “valid, legally or constitutionally”.

“Without the governor’s signature, it would not be constitutional in law,” Dhavan said.

As for the consequences of such a session, “it will result in a breakdown of the constitutional machinery and the Centre can use it as a ground for dismissal of the state government under Article 356”, said an expert.

There were, however, different views on what the governor can and should do. Soli Sorabjee, who was attorney-general during the NDA government, said while the governor could not move a court of law and become a litigant, “any other person can challenge the decision”.

Supreme Court lawyer Prashant Bhushan downplayed the fallout and said Rajeswar can send a report to the Centre, recommending President’s rule.

The legal implications apart, Delhi’s political establishment is abuzz with discussions on Mulayam’s logic behind the move to call the session and what it means for Uttar Pradesh politics.

The Congress’s second-rung leaders in the state, claiming to have their “ears to the ground”, have advised their central bosses to keep quiet against the Samajwadi Party and not say or do anything that might make Mulayam a martyr.

“This morning, I spoke to one of his biggest detractors from a small party. But because this person was from the backward caste, he sounded sympathetic towards Mulayam,” said a leader.

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