Thursday, May 03, 2007

President Kalam's tenure: An unexplored episode

President A.P.J.Abdul Kalam finds himself in the midst of a debate whether he should seek a second term in office. I was one among those who was unhappy with the then NDA Government for having reduced Rashtrapati Bhavan as an award for a person’s outstanding accomplishment in science in 2002. Many were critical of the choice because President Kalam was the first President without a political or legal background, and without even a stint as Vice-President; therefore, there were genuine doubts about his suitability for the high office. As his term comes to a close this July, it is perhaps time to look back, and examine whether the skeptics including me were correct. I must acknowledge that Kalam –as the Constitutional head - not only brought freshness of approach to politics, but proved to the skeptics that his non-political and non-legal background could actually be assets in breaking with the past baggage of Rashtrapati Bhavan. Here, I intend to deal with just one episode, though there are a few firsts with which he must be credited with including, for instance, the first time use of Article 111, when he returned the Office of Profit Bill to Parliament for reconsideration. On the question of dissolution of Bihar assembly which invited the Supreme Court’s strictures, I felt his office had reasonable arguments why he could not have returned the recommendation for reconsideration of the Cabinet without any material or ground to his knowledge at that time.
The event which interested me most, however, was his acceptance of the then Prime Minister, Atal Behari Vajpayee’s recommendation to dissolve the Lok Sabha six months prior to completion of its tenure in February 2004. Not many knew that Kalam did not accept the recommendation immediately. He mulled over it, consulted the then Attorney-General, Soli Sorabjee, went through the materials, including the Supreme Court’s judgments concerning the President’s powers sent to him by Sorabjee, before making up his mind. No other President prior to him had taken this responsibility more seriously than him. Yet, contemporary history seems to have deprived him his due place, probably because of the wrong legal advice tendered to him. The media too blacked out this episode as of no interest, or consequence, even though I had sought to bring the details into the public domain during the Lok Sabha elections.
President Kalam’s query to Vajpayee was whether he should resign, following the recommendation to prematurely dissolve the Lok Sabha. The question, on the face of it, appeared innocuous, as well as na├»ve. Perplexed, Vajpayee promised Kalam that he would get back on this issue. Why should Vajpayee resign, when he enjoyed majority in the Lok Sabha, was the response of Kalam’s critics in the NDA and within the legal community. If he resigned, then it would be an invitation for attempts to form an alternative Government, and the dissolution recommendation would not be binding on the President, so went another argument. Others including the Law Minister, Arun Jaitley argued that if the Prime Minister who enjoyed a majority in the Lok Sabha had given the dissolution recommendation, then it is binding on the President, and the Prime Minister, who still enjoyed majority support in the dissolved Lok Sabha, need not resign.
Unconvinced with this informal advice from the Government, President Kalam sought a specific legal opinion from the AG. The opinion he sought was clear and unambiguous: whether as President, he was bound by Vajpayee’s advice to dissolve the Lok Sabha. The opinion he sought was much more specific and embarrassing to the then Government than the one he posed to Vajpayee whether he should resign, following the submission of dissolution-recommendation. AG not only confirmed to me the President’s official request –in writing to him– but to another legal journalist, Mr.Manoj Mitta, whom I sounded. (He later wrote an edit page article in Indian Express on this.) Our inference at that time was that a President would seek such an opinion whether he was “bound” by the advice, only when he wanted to reject it. Rashtrapathi Bhavan sources, however, had a different story at that time: That Kalam, being a scientist, has always posed several questions and sought answers, before he took any decision. Therefore, too much should not be read in the opinion he sought from the AG. Whatever the truth, from Sorabjee’s own account of the episode – he not only gave a written and oral advice, but cited a few Supreme Court’s judgments, with enough reading material for Kalam to read and understand himself, that he was “bound” by the advice – it is clear that Kalam had taken his decision very seriously, rather than mechanically endorse the Government’s recommendation as his predecessors would have done. ( I have my reservations on whether President K.R.Narayanan must have done more than what he did, during the shameful Gujarat pogrom of 2002. He must have done more, brought much more pressure on the Government of the day, to get the State Government dismissed, and impose President’s rule. But this would require a separate post to elaborate)
Sorabjee referred to the Supreme Court’s judgment in the U.N.R.Rao v.Indira Gandhi case (AIR 1971 SC 1002), to underscore the legal basis for the argument that the Council of Ministers need not resign along with the Cabinet’s advice to the President to dissolve the Lok Sabha. However, this judgment was not relevant in satisfying the President. U.N.R.Rao had appealed in the Supreme Court against the Madras High Court’s judgment rejecting his plea to declare that Indira Gandhi, after the dissolution of the Fourth Lok Sabha had no constitutional authority to hold office of and to function as Prime Minister. His contention was that under the Constitution as soon as the Lok Sabha was dissolved, the Council of Ministers ceased to hold office, as Article 75(3) provides that “the Council of Ministers shall be collectively responsible to the House of the People (Lok Sabha)”. Once the Lok Sabha was dissolved under Article 85(2), he argued that it would not be possible for the Council of Ministers to be responsible to the Lower House. In that event, he suggested that the President could exercise the Executive Power of the Union either directly or through officers subordinate to him as provided in Article 53(1) of the Constitution.
The Supreme Court, rejecting Rao’s appeal, held that Article 74(1) – which says “There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions’ – is mandatory, and, therefore, the President cannot exercise the executive power without the aid and advice of the Council of Ministers. However, Article 75(3) must be read as meaning that it applies only when the Lok Sabha does not stand dissolved or prorogued, the court ruled. It is obvious that this judgment was not relevant in answering Kalam’s query to the Prime Minister. Kalam wanted to know whether the Prime Minister should resign and continue as the caretaker prime minister, and not whether the President himself could run the affairs of the Government without the aid and advice of the Council of Ministers. Although Indira Gandhi’s Government did not resign along with the dissolution of the Lok Sabha in 1970 and 1977, it is reasonable to suggest that the President, on both the occasions, was prima facie satisfied –along with the rest of the nation - about the bona fide ( in ital.) reasons for the dissolutions, and did not simply accept the Cabinet recommendation because her Government enjoyed majority support in the Lok Sabha. On December 27, 1970, when the President, V.V.Giri dissolved the Fourth Lok Sabha on the recommendation of the Council of Ministers, Prime Minister Indira Gandhi, told the nation in a broadcast that a new election was necessary, a year ahead of schedule, because “we are concerned not merely with remaining in power, but with using that power to ensure a better life for the vast majority of our people and to satisfy their aspirations for a just social order. In the present situation, we feel we cannot go ahead with our proclaimed programme and keep our pledges to our people….Time will not wait for us. The millions who demand food, shelter and jobs are pressing for action. Power in a democracy resides with people. That is why we have decided to go to our people and to seek a fresh mandate from them.”
What seemed to have influenced Indira Gandhi’s timing of elections was a Supreme Court verdict, delivered only 12 days earlier, invalidating the presidential proclamation that had abolished privy purses of the princes by derecognising the former rulers. This judgment, coming on top of the earlier ones throwing out a succession of laws concerning bank nationalisation, led to intense criticism among Indira Gandhi’s supporters that the higher judiciary, determined to protect private property and vested interests, had become an obstacle to social justice, and therefore, there was need to muster enough support in Parliament to overcome the judicial hurdle to progressive legislation. By contrast, India under Vajpayee was purportedly shining and feeling good, and the ruling combine was enjoying a comfortable majority in the Lok Sabha to enact any legislation it wanted. Vajpayee made no effort to take the nation into confidence about his compulsions for dissolution, as Indira Gandhi did in 1970.
The dissolution of Fifth Lok Sabha –whose tenure was extended by a year -in 1977, prelude to holding of general elections, was necessitated to lift the Internal Emergency, proclaimed in 1975, and to revive democracy. As such there was sufficient bona fide ( in ital.) reason to justify dissolution. Indeed, the Constitution makers intended no distinction between Governments enjoying majority support in the Lok Sabha and the ones which have seemingly lost it, while discussing the draft Article in the Constitution dealing with the President’s power to dissolve the Lok Sabha. It is instructive to go through the relevant debates in the Constituent Assembly when it discussed draft Article 69 (corresponding to Article 85 of the Constitution of India, dealing with the President’s power to summon, prorogue and dissolve the Lok Sabha) on May 18, 1949. Moving an amendment, an eminent member of the assembly, Professor K.T.Shah suggested the following addition to the Article: “on the advice of the Prime Minister, if such dissolution is earlier than the completion of the normal term as provided in section 68(2); provided that the reasons given by the Prime Minister for such dissolution shall be recorded in writing.” B.R.Ambedkar, while rejecting Shah’s amendment, said: “If the object of Prof.K.T.Shah is that the Prime Minister should not arbitrarily ask for dissolution, I think that object would be served if the convention regarding dissolution was properly observed.” Ambedkar pointed out, citing the British convention, that the King was not necessarily bound to accept the advice of the Prime Minister who wanted a dissolution of Parliament.
He explained: “the President of the Indian Union will test the feelings of the House whether the House agrees that there should be dissolution or the affairs should be carried on with some other leader without dissolution. If he finds that the feeling was that there was no other alternative except dissolution, he would as a Constitutional President undoubtedly accept the advice of the Prime Minister to dissolve the House.”. Ambedkar added after rejecting Shah’s proposal for a written request from the Prime Minister: “There are other ways for the President to test the feeling of the House and to find out whether the Prime Minister was asking for dissolution of the House for bona fide ( in ital.) reasons or for purely party purposes. I think we could trust the President to make a correct decision between the party leaders and the House as a whole.” It is thus open to history to judge whether President Kalam erred in accepting the Cabinet advice to dissolve the 13th Lok Sabha in the face of clear indications that the Government was doing so to favour the ruling party and in the absence of any clear explanation from the Prime Minister stating the bona fide ( in ital.) reasons for dissolution.
In his advice to the President, Soli Sorabjee had referred to the Supreme Court’s Constitution Bench judgment in the Samsher Singh v State of Punjab (AIR 1974 SC 2192) case to drive home the point that he was bound by the Council of Ministers’s advice to him. Here, I am giving below the relevant paragraph in Justice Krishna Iyer’s concurrent Judgment in that case to suggest why Sorabjee might well be wrong. (Paragraph 156)
“We declare the law of this branch of our Constitution to be that the President and Governor, custodians of all executive and other powers under various Articles, shall, by virtue of these provisions, exercise their formal Constitutional powers only upon and in accordance with the advice of their Ministers save in a few well known exceptional situations. Without being dogmatic or exhaustive, these situations relate to (a) the choice of Prime Minister (Chief Minister), restricted though this choice is by the paramount consideration that he should command a majority in the House; (b) the dismissal of a Government which has lost its majority in the House but refuses to quit office; (c) the dissolution of the House where an appeal to the country is necessitous, although in this area the Head of State should avoid getting involved in politics and must be advised by his Prime Minister (Chief Minister) who will eventually take the responsibility for the step. We do not examine in detail the Constitutional proprieties in these predicaments except to utter the caution that even here the action must be compelled by the peril to democracy and the appeal to the House or to the country must become blatantly obligatory.”
Even as per Samsher Singh, Kalam must have been well within his powers to refuse a dissolution in 2004, because, Vajpayee’s recommendation was not accompanied by the obligatory appeal to the country, or to the House, explaining the rationale for premature dissolution.

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