There is a new angle to the Bihar dissolution case. The Constitution has little to say on the "dissolution" of a state assembly: its duration is five years unless the governor dissolves it earlier (Article 174). As to when and under what circumstances a dissolution can take place "earlier" is not prescribed. That is left to the good sense of the governor. But in the case of Bihar that decision was taken out of the governor's hands from March 7 in view of the Presidential Proclamation under Article 356 (the state Assembly being placed in a state of suspended animation). The decision to dissolve or not to dissolve the Bihar Assembly was then left to the good sense of the President, not the governor. It then appears that on the report made by the governor to the Centre in the third week of May, the Council of Ministers advised the President who was then on a state visit to Moscow, on the midnight of May 22, that the state Assembly be immediately dissolved. The President, acting on telephonic advice, gave his assent and signed the order of dissolution. There was little time for the President to cogitate, to consider and arrive at a properly considered decision.
In my humble opinion, there was no need to hustle the President and to embarrass him into a precipitate decision for which there was no apparent rational basis-a decision that has now been declared by the Supreme Court (by its order of October 7) to be "unconstitutional". An important provision of the Constitution was regrettably overlooked. Article 65(2) provides that "when the President is unable to discharge his functions owing to absence, illness or any other cause, the vice-president shall discharge his functions until the date on which the President resumes his duties" (note the word "shall").
The President when on a state visit abroad remains the President of India. When abroad, he enjoys the dignity of a head of state because he is the President of India. The vice-president is never the President of India nor head of state. But the vice-president must discharge the "functions" of the President when the President is absent, that is, when he is not in India. If the recommendation of the Council of Ministers for dissolution had been (as it should have been) forwarded to the vice-president on May 22, as required by Article 65(2), he could have considered the same dispassionately. No one could then have said that it was a "rushed midnight order" or that the Government had denied the signatory of the dissolution order the opportunity of fully informing himself of the rival contentions of the respective leaders of political parties. If the vice-president had ultimately after discussion and due deliberation arrived at the conclusion that there were circumstances justifying the dissolution of the Bihar Assembly, the ultimate order of dissolution when signed by the vice-president (during the absence of the President) would have been lawful and would have been unchallengeable in court.
There is precedent for this. Years ago, in 1965, the Kerala assembly was dissolved by the vice-president, who was discharging the functions of the President in the latter's absence in India. The state of Kerala was then (as was the state of Bihar in May 2005) under President's Rule, which had been imposed by a presidential order under Article 356. It was the vice-president (in the absence of the President) who exercised the governor's power of dissolution of the state assembly since Kerala was under President's Rule. There was a challenge to the dissolution order in the High Court of Kerala-but it was rejected by a division bench of that court. An appeal was not carried to the Supreme Court. The decision is in the law reports.
The moral of the story is that we must familiarise ourselves with the provisions of our Constitution. Our politicians should study it like priests and holy men pore over the Bible and the Bhagwad Gita! Believe me, our Constitution contains a mine of useful information, if only we know where to look for it. Knowledge of the Constitution's provisions will help us resolve many practical problems of governance.
The writer is a senior Supreme Court advocate and a member of the Rajya Sabha.