Lawyers representing members of the dissolved the House of Representatives who have challenged the dissolution of House of Representatives pleaded before the constitutional bench of Supreme Court that President Bidhya Devi Bhandari had no right to dismiss Nepali Congress President Sher Bahadur Deuba's claim for prime ministership.

Senior Advocate Mukti Pradhan argued before the bench that only the prime minister appointed under Article 76 (5) had the power to recommend dissolution of the HoR. He said the president's decision not to appoint any of the two claimants the PM was prima facie wrong. He said the president deprived Deuba of a chance to seek a vote of confidence as per the spirit of Article 76 (5).

Arguing before the bench, Advocate Sunil Pokharel said the phrase 'present a ground on which he or she can obtain a vote of confidence' used in Article 76 (5) did not give the president the right to be satisfied in terms of issuing an ordinance as was the case with Article 88 of the Interim Constitution of Nepal.

Pokharel said the president should have appointed Deuba the prime minister as he had the support of majority members of the House of Representatives and it was the jurisdiction of the HoR to test whether or not Deuba had the majority support.

He said provisions of sub-articles of Article 76 were mainly related to the formation of a new government and the issue of HoR dissolution contained in Article 76 (7) was an exception, but Prime Minister KP Sharma Oli, who was supported to help form a new government, tried to dissolve the HoR invoking Article 76 (7). He said Oli, who was leading a minority government under Article 76 (3), didn't have the obligation to seek a vote of confidence, but the PM appointed under Article 76 (2) and 76 (5) had to seek the trust vote.

Justice Ananda Mohan Bhattarai asked Pokharel whether or not a PM appointed under Article 76 (3) had the option of not continuing as the prime minister.

Pokhrel said that a prime minister had the right to say that s/he did not want to continue as PM, but the political party that had the mandate to govern did not have the right to refuse to lead the government.

Advocate Tika Ram Bhattarai said the president had no right to reject the claims of both the prime ministerial aspirants. He said there were provisions of impeachment that could be invoked against the president for not carrying out constitutionally mandated job. He argued that Article 76 (5) required the evidence of support of HoR members, not that of political parties.

Petitioner's lawyers are left with two-and-a-half hours to present their arguments following which defendants would present their arguments.

Four amici curiae will also have a chance to present their arguments.

A version of this article appears in the print on June 26 2021, of The Himalayan Times.