Delivering a stinging blow to the UPA government, the Supreme Court today called its dissolution of the Bihar Assembly as ‘‘unconstitutional’’ but stopped short of reviving it, thus clearing the decks for the four-phase elections starting October 18. The court will deliver a full judgment later. ‘‘The proclamation of May 23, 2005 dissolving the Bihar legislative Assembly is unconstitutional,’’ was the majority opinion of the constitution bench of Justice Y K Sabharwal, Justice Arijit Pasayat, Justice B N Agrawal, Justice Ashok Bhan and Justice K G Balakrishnan. The interim order was delivered on a bunch of PILs challenging the dissolution. But why did the Supreme Court not restore the status quo ante and call off the ongoing election process? The bench acknowledged its ‘‘discretionary jurisdiction’’ to do so but chose not to exercise it ‘‘having regard to the facts and circumstances of the case.’’ Though the reasons for the ruling are due to be spelt out only later, ‘‘the facts and circumstances’’ that weighed with the court today can be safely said to have included the fact that two of the notifications for the four-phase polling in Bihar have already been issued. If the court had rolled back the election process at this advanced stage, it would have been hardpressed to explain why the petitions filed over four months ago had not been disposed of earlier or why it had not stayed the initiation of fresh polls till the disposal of the petitions. This is the first occasion the apex court has had to exercise the sweeping powers given to it by the 1994 S R Bommai case to check any misuse of Article 356. Yet, on the two applications that were filed before it for interim order, the court was reluctant to follow the radical prescription of the Bommai verdict. Consider the Bommai verdict’s emphasis on interim orders: ‘‘The court in appropriate cases will not only be justified in preventing holding of fresh elections but would be duty-bound to do so by granting suitable interim relief to make effective the constitutional remedy of judicial review and to prevent the emasculation of the Constitution.’’ The Bommai case had anyway given greater latitude to the court on whether the restoration of the Assembly should necessarily follow if its dissolution had been found to be invalid. ‘‘The necessary consequence of the invalidation of the Proclamation,’’ according to the Bommai verdict, ‘‘could be to restore the status quo ante and, therefore, to restore . the Legislative Assembly.’’ But, as the Bommai judgment went on to clarify, it was for the court to ‘‘mould the relief’’ to meet the requirements of the situation. ‘‘The question of relief to be granted in a particular case pertains to the discretionary jurisdiction of the court.’’ Given the stage at which it delivered its short order on the Bihar controversy, the court had no option but to hold that it was ‘‘not a case where, in exercise of discretionary jurisdiction, the status quo ante deserves to be ordered to restore the Legislative Assembly.’’ How it all started: blasts in Delhi, fax to Moscow
