LOOKING GLASS - 4

 Dateline October 9, 2005:   

Tony Correia-Afonso on Constitutional Propriety

[In the Indian State of Bihar, often troubled by lawlessness and corruption, the central Congress Government of Dr. Manmohan Singh upon the advice of the Governor of Bihar, Mr. Buta Singh (also a Congressman) recommended the dissolution of the Bihar Assembly.

No prizes for guessing that the Bihar Government was not an ally of the Congress Party in Delhi.

So on May 23, 2005, while on a visit to Moscow, the President of India is reported to have signed the Bihar Assembly dissolution order upon the advice of the Indian Cabinet. Fresh Elections are due to commence on October 18, 2005.

It had all the trimmings of a resolution in haste. If you don't like someone, what better time to dislodge him than midnight? As expected, relief was sought from the Supreme Court of India (SC) by anti-Congress forces.

A five-judge Constitution Bench consisting of Justices Y K Sabharwal, K G Balakrishnan, B N Agarwal, Ashok Bhan and Arijit Pasayat issued the following order: “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 March 7, 2005 whereunder it was kept under suspended animation”.


On GoaNet, well respected Goan intellectual Mr. Tony Correia-Afonso wrote the following on October 8, 2005

Constitutional Propriety


The Supreme Court has rightly held that the dissolution of the Bihar Assembly was unconstitutional. On assuming office, the President of India takes a solemn oath to uphold the Constitution. The same Constitution as currently amended enjoins him to accept any recommendation of the Cabinet for the issuance of any Ordinance or Proclamation such as the one dissolving the Bihar Assembly.

When, as in the present case, the Cabinet's recommendation involves the commitment of an unconstitutional act, which obligation of the President should take precedence i.e. accepting the recommendation or upholding the Constitution? It is a serious issue on which constitutional pundits could well ponder and the President would be well advised to seek the opinion of the Supreme Court on the issue.

Tony Correia-Afonso
Benaulim, Goa.

TGF comment: TGF wonders Why the learned Tony Correia Afonso thinks the SC was right in holding that "the dissolution of the Bihar Assembly was unconstitutional" ?

TGF notes that while the PILs sought to quash the "notification to dissolve the Bihar Assembly",  the SC ordered NO such thing.

It has merely made a ruling and yet allowed the election process to proceed. In other words, it has  allowed the effect of the "unconstitutional"  dissolution act to continue.

Unless this was a Judicial Review of  Presidential action,  the SC ruling makes curious sense.

In any event, the full text of the SC ruling is yet to be made public. That might be worth waiting for.

It is TGF's understanding that the SC is not an advisory body. It merely rules on Cases  as Presented and Argued before it.

Mr. Correia Afonso's thought that the President should seek advice from the Supreme Court is interesting. Might this not open the door to unconstitutional interference by the SC, and destabilize the delicate Separation of Powers that exists between the Judiciary and Executive? Besides, the President (through the machinery of Government) has an entire Law Department from which to seek advice.

Interesting is it not that one of the most lawless of Indian States brings attention to the Rule of Law?

How does this concern Goa? Well, since 1961, Goa has inherited the fruits and flies of Indian politics replete with the arm twisting power plays and corruption involved.

It was Salazar and the Portuguese before 1961. Since then, it has been Goa's cross to deal with the Delhi based political parties and their crony State Governors.

Almost concomitantly , Goan resources are being depleted, rivers and water tables polluted, the use of their civilian Dabolim airport restricted by the Indian Navy, access to their Anjediva Island church curtailed, and their green rice fields converted into concrete jungles decorated with unlimited garbage in plastic wrappers.

No wonder, Goan journalist Fred Noronha finds it strange that anyone would think of Goa as different from any other place in India.

TGF
October 9, 2005

Tony Correia-Afonso  responds on  Oct 9, 05 - 10:02 PM

TGF has commented that the Supreme Court has permitted an "unconstitutional act" by allowing the Bihar elections to proceed despite having declared the dissolution of the Assembly as being "unconstitutional". The reason is that under the Representation of People Act no one (not even the SC) can interfere with the election process once it has been initiated by the Election Commission.

Although, under normal circumstances, the SC can only give judgments on cases brought before it, there is a special provision in the Constitution under which the President can make a reference to it to seek its opinion on constitutional issues.

To be continued

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