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CASE NO.: Writ Petition (civil)  257 of 2005

PETITIONER: Rameshwar Prasad & Ors.                          

RESPONDENT: Union of India & Anr.                                    

DATE OF JUDGMENT: 07/10/2005

BENCH: Y.K. Sabharwal,K.G. Balakrishnan,B.N. Agrawal,Ashok Bhan Arijit Pasayat

JUDGMENT: JUDGMENT

O R D E R [With W.P. (C) No.255 of 2005, W.P. (C) No.258 of 2005 and  W.P.(C) No.353 of 2005]

The General Elections to the Legislative Assembly of Bihar were  held in the month of February 2005.  The Election Commission of India, in  pursuance of Section 73 of the Representation of the People Act, 1951 in  terms of Notification dated 4th March, 2005 notified the names of the  elected members.   

 As no party or coalition of the parties was in a position to secure  122 seats so as to have majority in the Assembly, the Governor of Bihar  made a report dated 6th March, 2005 to the President of India, whereupon  in terms of Notification G.S.R.162(E) dated 7th March, 2005, issued in  exercise of powers under Article 356 of the Constitution of India, the State  was brought under President’s Rule and the Assembly was kept in  suspended animation.  By another Notification G.S.R.163(E) of the same  date, 7th March, 2005, it was notified that all powers which have been  assumed by the President of India, shall, subject to the superintendence  direction and control of the President, be exercisable also by the Governor  of the State.  The Home Minister in a speech made on 21st March, 2005  when the Bihar Appropriation (Vote on Account) Bill, 2005 was being  discussed in the Rajya Sabha said that the Government was not happy to  impose President’s Rule in Bihar and would have been happy if  Government would have been formed by the elected representatives after  the election.  That was, however, not possible and, therefore, President’s  Rule was imposed.  It was also said that the Government would not like to  see that President’s Rule is continued for a long time but it is for elected  representatives to take steps in this respect; the Governor can ask them  and request them and he would also request that the elected  representatives should talk to each other and create a situation in which it  becomes possible for them to form a Government.  The Presidential  Proclamation dated 7th March, 2005 was approved by the Lok Sabha at its  sitting held on 19th March, 2005 and Rajya Sabha at its sitting held on 21st  March, 2005.         The Governor of Bihar made two reports to the President of India,  one dated 27th April, 2005 and the other dated 21st May, 2005.  On  consideration of these reports, Notification dated 23rd May, 2005 was  issued in exercise of the powers conferred by sub-clause (b) of Clause (2)  of Article 174 of the Constitution, read with clause (a) of the Notification  G.S.R.162(E) dated 7th March, 2005 issued under Article 356 of the  Constitution and the Legislative Assembly of the State of Bihar was  dissolved with immediate effect.         These writ petitions have been filed challenging constitutional  validity of the aforesaid Proclamation dated 23rd May, 2005.  Mr. Soli J.  Sorabjee, Senior Advocate and Mr. P.S. Narasimha, Advocate and Mr.

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Viplav Sharma, advocate appearing-in-person have made elaborate  submissions in support of the challenge to the impugned action of  dismissing the assembly. On the other hand, Mr. Milon K. Banerjee, Attorney-General for  India, Mr. Goolam E. Vahanavati, Solicitor General and Mr. Gopal  Subramaniam, Additional Solicitor General appearing for Union of India  and Mr. P.P. Rao, Senior Advocate appearing for the State of Bihar also  made elaborate submissions supporting the impugned Proclamation dated  23rd May, 2005.         Many intricate and important questions of law having far reaching  impact have been addressed from both sides. After the conclusion of the  hearing of oral arguments, written submissions have also been filed by  learned counsel. Fresh elections in State of Bihar have been notified.  As per press  note dated 3rd September, 2005 issued by Election Commission of India,  the schedule for general elections to the Legislative Assembly of Bihar has  been announced.  According to it, the polling is to take place in four  phases commencing from 18th October, 2005 and ending with the fourth  phase voting on 19th November, 2005.  As per the said press note, the  date of Notification for first and second phase of poll was 23rd September  and 28th September, 2005, date of poll being 18th October, 2005 and 26th  October, 2005 respectively.  Notifications for third and fourth phases of poll  are to be issued on 19th and 26th October, 2005 respectively.         Keeping in view the questions involved, the pronouncement of  judgment with detailed reasons is likely to take some time and, therefore,  at this stage, we are pronouncing this brief order as the order of the court  to be followed by detailed reasons later. Accordingly, as per majority opinion, this court orders as under: 1.      The Proclamation dated 23rd May, 2005 dissolving the Legislative  Assembly of the State of Bihar is unconstitutional. 2.      Despite unconstitutionality of the impugned Proclamation, but having  regard to the facts and circumstances of the case, the present is not  a case where in exercise of discretionary jurisdiction the status quo  ante deserves to be ordered to restore the Legislative Assembly as it  stood on the date of Proclamation dated 7th March, 2005 whereunder  it was kept under suspended animation.