But since I am not a counsel for any party in this case, I think it is not improper for me to discuss this question on my blog for academic purpose.
Unlimited Powers of Supreme Court
Sky is the limit to powers of Supreme Court to do justice to parties.. said one SC judgement.
But the Supreme Court does exercise restraint all the time and uses is powers as per established norms.
But Constitution has indeed placed all the residual powers in Supreme Court to decide things for which no norms are provided and....if it is necessary to do something.
When Supreme Court will say that it has no jurisdiction
If Right to "Do" or "Not to Do" something is given to some authority, then it will say that it has no jurisdiction, you go to that authority.
About power of Governors and Presidents to call largest party to form Govt
At one time, it was thought that Courts have no powers in this area. But in some cases, situations arose and Supreme Court has laid down certain "Do" and "Don'ts" regarding Process
But here in Delhi Assembly Case, this stage is already passed.
The Government was formed. And Chief Minister resigned without recommending dissolution of assembly... Now up to what time Governor can withhold his own decision to dissolve assembly and to call for next election?
That is a new question.
About Supreme Court's Power to Direct Speaker to dissolve assembly
A) Normally, while giving resignation, a Chief Minister has power to recommend dissolution of Assembly. And Governor is bound by it.
B) Here, Chief Minister resigns but he does not give any recommendations for dissolution of Assembly. It means, he had hope that someone else will form government.
C) Here the The Concept of Reasonable Time comes into play....
Law says that when something is to be done, but no time limit is prescribed, then it has to be done within reasonable time
If the Governor does not decide within Reasonable Time, Supreme Court has power to direct it to do it in a reasonable time.
But what is Reasonable Time?
This is question of fact in all cases. In this case it is not that Majority Member of Legislative Assembly want dissolution of Assembly
If majority MLAs really want dissolution, they can form Government, call a session of Assembly and can Impeach and remove Governor and can also pass recommendations to dissolve assembly
Here, situation is contra- Majority of Members of Assembly do not want re-election. They want to form Government and they want to wait for some time so that wisdom can come to them so that they can gather required number.
CONCLUSION
But how much time they can take? They cannot go on like this for whole of five years. They have to take decisions in reasonable time, or the Supreme Court can direct them to do in a reasonable time and it can lay down parameter for such future situations.
In reasonable time, MLAs and Governor, all have to take decision :To form Govt or to Go to election. They cannot keep standing in middle of road for too long.
This is as I understand the law.
Haresh Raichura
06/07/2014
This views are my personal and this is not a legal opinion. Many experts can have different views.
This is as I understand the law.
Haresh Raichura
06/07/2014
This views are my personal and this is not a legal opinion. Many experts can have different views.
