#dnaEdit: To intervene or not

The Supreme Court appears to have exhausted its patience with the confused signals emanating from the Lieutenant-Governor and the Centre on government formation in Delhi. It had repeatedly postponed hearing on the Aam Aadmi Party’s petition pleading for dissolution of the Delhi legislative assembly and instead chose to give opportunities to the L-G, the Centre, and two other affected parties, the BJP and the Congress, to file replies on a constitutionally viable solution to the impasse. In their replies, the Congress and the BJP shied away from directly answering the court’s question on whether they would form the government. The BJP,  instead, put the onus on L-G Najeeb Jung, saying it would wait for an invite from him. Jung, who took his orders from the UPA government until May 16, and the NDA government since, has inexplicably vacillated in inviting the BJP to form the government till date. The Supreme Court’s observation on Tuesday that President’s Rule cannot proceed indefinitely in a democracy has stemmed from this inaction on Jung’s part. Not surprisingly, Jung’s submission that the President has now given his assent to his plan to invite the single largest party, the BJP, to form the government, has not mollified the court.

The Centre’s response that the apex court could not impose deadlines on government formation and that its earlier acquiescence on “exploring possibilities” for government formation could not be construed as a promise has apparently irked the judges. The judges’ decision to go ahead with the hearing on the AAP’s petition on merits indicates that the Supreme Court feels betrayed by the “time-buying” tactics. However, Section 50 of the Government of NCT of Delhi Act, 1991, clearly gives the Centre one year’s time to decide on revoking or extending the presidential proclamation on keeping the assembly in suspended animation. This period expires only on February 15, 2015. The President also has the option of extending this proclamation for two more years with the approval of both Houses of Parliament. While the statute would forestall any judicial intervention on what is clearly an executive turf, the landmark judgment in the SR Bommai case allowing for judicial review of imposition of Article 356 gives the apex court a window to intervene.

The AAP’s main contention is that the BJP cannot form a government in Delhi without engineering defections, resignations or abstentions among AAP and Congress MLAs. The executive which has long complained of judicial intrusion into its turf can be expected to fight tooth and nail the Supreme Court hearing AAP’s petition any further, now that the President has signalled his assent to the L-G. But it must ensure that all constitutional proprieties are upheld and the minority government does not become one surviving on illegitimate practices. However, the unsavoury prospect of horse-trading has already surfaced with the AAP releasing a sting video of its MLA being allegedly bribed by a BJP office-bearer. Interestingly, the 3-2 majority judgment in the 2006 Rameshwar Prasad vs Union of India rejected the Bihar governor’s fears of horse-trading as a rationale for dissolution of the legislative assembly in the absence of concrete evidence. The court noted the possibility of legitimate defections and ruled that the Constitution tasked the Speaker, and not the Governor, to arbiter defections. However, the two dissenting judges on the Bench noted that governors could not remain mute witnesses to unethical, undemocratic practices in government formation. If the AAP sting video is accepted as evidence, the Supreme Court might decide to revisit its 2006 judgment.