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Friday, May 27, 2005

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National

Bihar: legal opinion divided

J. Venkatesan

Dissolution is a consequence of earlier order, say retired judges

NEW DELHI: Legal opinion is divided on whether or not parliamentary approval is required for the President's Proclamation to dissolve the Bihar Assembly that was kept under suspended animation by the March 7 Proclamation.

While one section of lawyers says that the order issued on May 23 under Article 174 (2) (b) (President exercising the powers of the Governor) requires a fresh consideration by Parliament, another section feels that since the original Proclamation has already been ratified by Parliament for six months, a second ratification is not necessary.

Different objectives

Senior lawyer K. Subramanian says that the two proclamations were issued for achieving different objectives, since the Governor's report, based on which they were issued, must have referred to different and distinct materials.

Parliament has only approved the Proclamation issued under Article 356 (1). It will therefore be in conformity with the constitutional requirement laid down in the majority judgment in the S.R. Bommai case to get separate approval by Parliament on the dissolution of the Assembly.

He says while the first Proclamation relates to the assumption of power to dissolve the Assembly, the second relates to the exercise of that power. Unless it is approved by Parliament, it will cease to operate at the expiry of two months in accordance with the Bommai judgment.

Senior lawyer C.S. Vaidyanathan says Parliament's approval is required for the second time notwithstanding the earlier approval. When the first Proclamation was put before Parliament, the members discussed only those aspects that were presented before them.

The intention of Parliament was only to keep the legislature in suspended animation. Now, in the light of dissolution, Parliament must consider the materials in the changed circumstances and there must be judicious application of mind by the members.

He says the earlier ratification cannot be taken as blanket approval by Parliament for whatever happens in future.

The Bommai judgment is very clear that once the Assembly is dissolved, it must be approved by Parliament within two months and there cannot be any going back on this law, says Mr. Vaidyanathan.

Another senior advocate Gopal Subramanian too feels that as per the Bommai judgment Parliament must approve either the continuance or discontinuance of a legislative Assembly. Since the first approval is only for keeping the House in suspended animation, separate approval is necessary for dissolution.

Not necessary

Senior advocate T.R. Andhyarujina, however, differs with this view and says President's rule has already been implemented and approved by Parliament for six months.

The legislature was kept under suspended animation to explore the possibility of government formation.

Once it became clear that there is no such possibility, the legislature has been dissolved and therefore fresh approval by Parliament is not necessary.

Advocate Prashant Bhushan agrees with him and says the Bommai judgment does not go into this question at all.

Since dissolution is only a consequence of President's rule, which has been approved, no further approval is necessary.

Two retired Supreme Court Judges, who did not want to be quoted, are also of the view that second ratification by Parliament will be a redundant exercise when President's rule, imposed on March 7, has been approved for six months.

Dissolution is only a consequence of the earlier order, they say.

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