New Delhi: Constitutional experts say any attempt by the Congress-led United Progressive Alliance Government to dismiss the Mulayam Singh Government in Uttar Pradesh by invoking Article 356 will be illegal and unconstitutional.

The former Attorney-General Soli Sorabjee says the February 14 Supreme Court judgment on the illegality of the split in the Bahujan Samaj Party has "nothing to do with the legal or illegal functions of the Mulayam Singh Government." The Congress reliance on giving the judgment retroactivity "is only disingenuous as this issue was not before the court at all."

The floor test is to be held in a few days. That is where the Government's fate is to be decided, and not in the Raj Bhavan or the corridors of power at the Centre, Mr. Sorabjee says. Dismissing the Government on moral grounds is not countenanced in Article 356 and will be in conflict with the Sarkaria Committee recommendations accepted by the Supreme Court in the Bommai case.

Both in the Bommai and Bihar dissolution cases, the court deprecated the bogey of "horse-trading" for dismissing a government, says Mr. Sorabjee.

Senior lawyer P.P. Rao says there was no declaration in the recent judgment that the Mulayam Singh Government, formed in 2003, was unconstitutional. Even assuming that it was formed illegally, President's rule will not be an answer. Mr. Singh should be given a chance to prove his majority in the House.

Further, whenever President's rule is imposed, the Governor should ascertain whether any other party can form a government. In the present situation, if no party is in a position to form a government, dismissal of the Mulayam Singh regime on moral grounds will be unconstitutional. The only course is to ask the House to elect a new leader in the event of Mr. Singh losing his majority, says Mr. Rao.

Imposing President's rule will be brazenly illegal, says senior lawyer Harish Salve. The Government was sworn in by the Governor on the assurance that it would muster the requisite majority in the House. This was done in a floor test, Samajwadi Party leader Amar Singh says, adding the Government got 247 votes out of 400. Even after excluding 37 (the 13 disqualified members plus the other 24 defectors), the number will still be past the half-way mark.

Mr. Salve says: "After the Bihar judgment, I think, citing this bogey of horse-trading as an excuse to topple governments should be given up. In the circumstances, I wonder how it can be said that the government in office is not in accordance with the Constitution, thereby justifying action under Article 356."

According to senior lawyer Rajeev Dhavan, when there is no breakdown of the constitutional machinery, Article 356 cannot be used as a political toy. The court has only disqualified 13 MLAs; it has not doubted the vote of confidence obtained by Mr. Singh.

Mr. Dhavan says governments cannot become tainted; only individuals can. "Now, we find a new set of principles from the Congress: moral grounds to dismiss a government." Even if Mulayam Singh is defeated on the floor of the House, he should continue as the head of a caretaker government.

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