Y.K.SABHARWAL, CJI. - (1.) (For himself and on behalf of B.N.Agrawal and Ashok Bhan, JJ.)
(2.) THE challenge in these petitions is to the constitutional validity of Notification dated 23rd May, 2005 ordering dissolution of the Legislative Assembly of the State of Bihar. It is a unique case. Earlier cases that came up before this Court were those where the dissolutions of Assemblies were ordered on the ground that the parties in power had lost the confidence of the House. THE present case is of its own kind where before even the first meeting of the Legislative Assembly, its dissolution has been ordered on the ground that attempts are being made to cobble a majority by illegal means and lay claim to form the Government in the State and if these attempts continue, it would amount to tampering with constitutional provisions. One of the questions of far reaching consequence that arises is whether the dissolution of Assembly under Article 356(1) of the Constitution of India can be ordered to prevent the staking of claim by a political party on the ground that the majority has been obtained by illegal means. We would first note the circumstances which led to the issue of impugned notification. Factual Background Election to the State of Bihar was notified by the Election Commission on 17th December, 2004. Polling for the said elections were held in three phases, i.e., 3rd February, 2005, 5th February, 2005 and 13th February, 2005. Counting of votes took place on 27th February, 2005. Results of the said elections were declared by the Election Commission. On 4th March, 2005, Notification was issued by the Election Commission in pursuance of Section 73 of Representation of the People Act, 1951 (for short 'the RP Act, 1951') duly notifying the names of the members elected for all the constituencies along with party affiliation.
(3.) BIHAR Legislative Assembly comprises of 243 members and to secure an absolute majority support of 122 Members of Legislative Assembly (in short 'MLAs'), is required. National Democratic Alliance (for short 'NDA'), a political coalition of parties comprising of the Bharatiya Janata Party (for short 'BJP') and the Janata Dal (United) (for short 'JD(U)') was the largest pre-poll combination having the support of 92 MLAs. The party-wise strength in the Assembly was as under : JUDGEMENT_494_AIR(SCW)_2006Html1.htm Report dated 6th March, 2005 was sent by the Governor to the President, recommending newly constituted Assembly to be kept in suspended animation for the present. It reads as under : "Respected Rashtrapati Jee, The present Bihar Legislative Assembly has come to an end on 6th March, 2005. The Election Commission's notification with reference to the recent elections in regard to constitution of the new Assembly issued vide No. 308/B.R.-L.A./2005 dated 4th March 2005 and 464/Bihar-LA/2005, dated the 4th March, 2005 is enclosed (Annexure-I) (2. Based on the results that have come up, the following is the party-wise position : JUDGEMENT_494_AIR(SCW)_2006Html2.htm 3. The present C.M., Bihar, Smt. Rabri Devi met me on 28-2-2005 and submitted her resignation along with her Council of Ministers. I have accepted the same and asked her to continue till an alternative arrangement is made. 4. A delegation of members of LJP met me in the afternoon of 28-2-2005 and they submitted a letter (Annexure II) signed by Shri Ram Vilas Paswan, President of the Party, stating therein that they will neither support the RJD nor the BJP in the formation of Government. The State President of Congress Party, Shri Ram Jatan Sinha, also met in the evening of 28-2-2005. 5. The State President of BJP, Shri Gopal Narayan Singh along with supporters met me on 1-3-2005. They have submitted a letter (Annexure III) stating that apart from combined alliance strength of 92 (BJP and JD(U)) they have support of another 10 to 12 Independents. The request in the letter is not to allow the RJD to form a Government. 6. Shri Dadan Singh, State President of Samajwadi Party, has sent a letter (Annexure IV) indicating their decision not to support the RJD or NDA in the formation of the Govt. He also met me on 2-3-2005. 7. Shri Ram Naresh Ram, Leader of the CPI (ML-Lib.), Legislature Party long with 4 others met me and submitted a letter (AnnexureV) that they would not support any group in the formation of Government. 8. Shri Ram Vilas Paswan, National President of LJP, along with 15 others met me and submitted another letter (Annexure VI). They have reiterated their earlier stand. 9. The RJD met me on 5-3-2005 in the forenoon and they staked claim to form a Government indicating the support from the following parties : JUDGEMENT_494_AIR(SCW)_2006Html3.htm (Copy enclosed as Ann.VII) The RJD with the above will have only 91. They have further claimed that some of the Independent members may support the RJD. However, it has not been disclosed as to the number of Independent MLAs from whom they expect support nor their names. Even if we assume the entire Independents totalling 17 to extend support to RJD alliance, which has a combined strength of 91, the total would be 108, which is still short of the minimum requirement of 122 in a House of 243. 10. The NDA delegation led by Shri Sushil Kumar Modi, MP, met me in the evening of 5-3-2005. They have not submitted any further letter. However, they stated that apart from their pre-election alliance of 92, another 10 Independents will also support them and they further stated that they would be submitting letters separately. This has not been received so far. Even assuming that they have support of 10 Independents, their strength will be only 102, which is short of the minimum requirement of 122. 11. Six Independent MLAs met me on 5-3-2005 and submitted a letter in which they have claimed that they may be called to form a Government and they will be able to get support of others (Annexure VIII). They have not submitted any authorization letter supporting their claim. 12. I have also consulted the Legal experts and the case laws particularly the case reported in AIR 1994 SC 1918 where the Supreme Court in para 365 of the report summarised the conclusion. The relevant part is para 2, i.e., the recommendation of the Sarkaria Commission do merit serious consideration at the hands of all concerned. Sarkaria Commission in its report has said that Governor while going through the process of selection should select a leader who in his judgment is most likely to command a majority in the Assembly. The Book "Constitution of India" written by Shri V.N. Shukla (10th edition) while dealing with Article 75 and Article 164 of the Constitution of India has dealt with this subject wherein it has quoted the manner of selection by the Governor in the following words : "In normal circumstances the Governor need have no doubt as to who is the proper person to be appointed; it is leader of majority party in the Legislative Assembly, but circumstances can arise when it may be doubtful who that leader is and the Governor may have to exercise his personal judgment in selecting the C.M. Under the Constitutional scheme which envisages that a person who enjoys the confidence of the Legislature should alone be appointed as C.M." In Bommai's case referred to above in para 153, S.C. has stated with regard to the position where, I quote : "After the General Elections held, no political party or coalition of parties or group is able to secure absolute majority in the Legislative Assembly and despite the Governor's exploring the alternatives, the situation has arisen in which no political party is able to form stable Government, it would be case of completely demonstrable inability of any political party to form a stable Government commanding the confidence of the majority members of the Legislature. It would be a case of failure of constitutional machinery." 13. I explored all possibilities and from the facts stated above, I am fully satisfied that no political party or coalition of parties or groups is able to substantiate a claim of majority in the Legislative Assembly, and having explored the alternatives with all the political parties and groups and Independents MLAs, a situation has emerged in which no political party or groups appears to be able to form a Government commanding a majority in the House. Thus, it is a case of complete inability of any political party to form a stable Government commanding the confidence of the majority members. This is a case of failure of constitutional machinery. 14. I, as Governor of Bihar, am not able to form a popular Government in Bihar, because of the situation created by the election results mentioned above. 15. I, therefore, recommend that the present newly constituted Assembly be kept in suspended animation for the present, and the President of India is requested to take such appropriate action/decision, as required." ;