Friday, July 27, 2007

Kalam's Presidency(Part II): Did the SC even allude to his lapse?

The Rameshwar Prasad Judgment (2006 2SCC 1) is cited by Kalam's critics to point out that it was perhaps a mild indictment of his hurried assent to the dissolution of the Bihar assembly. In my reply to Mr.Srinivasan's comments to my previous post, I have suggested that the SC held that the material on the basis of which the Union Council of Ministers advised Kalam was inadequate, and this retrospective wisdom was not available to Kalam when he assented.
Mr.Srinivasan subsequently wrote to me asking whether the Court can at all examine the advice tendered to the President, in view of the explicit bar in the Constitution. Let me explain. The Supreme Court said in the Rameshwar Prasad case as follows:

The plain reading of Article 74(2) stating that the question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any Court, may seem to convey that the Court is debarred from inquiring into such advice but Bommai has held that Article 74(2) is not a bar against scrutiny of the material on the basis of which the President has issued the proclamation under Article 356.

Justice Sawant, in Para 86 of Bommai states that :

"Although Article 74(2) bars judicial review so far as the advice given by the Ministers is concerned, it does not bar scrutiny of the material on the basis of which the advice is given. The Courts are not interested in either the advice given by the Ministers to the President or the reasons for such advice. The Courts are, however, justified in probing as to whether there was any material on the basis of which the advice was given, and whether it was relevant for such advice and the President could have acted on it. Hence when the Courts undertake an enquiry into the existence of such material, the prohibition contained in Article 74(2) does not negate their right to know about the factual existence of any such material. "

It is well settled that if the satisfaction is mala fide or is based on wholly extraneous or irrelevant grounds, the court would have the jurisdiction to examine it because in that case there would be no satisfaction of the President in regard to the matter on which he is required to be satisfied.

In other words, the President has to be convinced of or has to have sufficient proof of information with regard to or has to be free from doubt or uncertainty about the state of things indicating that the situation in question has arisen. Although, therefore, the sufficiency or otherwise of the material cannot be questioned, the legitimacy of inference drawn from material is certainly open to judicial review.

In the Bihar case, Kalam reached the conclusion solely on the basis of the Governor's reports, as advised by the Council of Ministers, and not on the basis of "otherwise" as required by Article 356(1).

How did the Supreme Court conclude that the dissolution based on the Governor's reports was unconstitutional?

Paragraph 158 of Rameshwar Prasad: "The Governor cannot assume to himself aforesaid judicial power and based on that assumption come to the conclusion that there would be violation of Tenth Schedule and use it as a reason for recommending dissolution of assembly.

We have already referred to the Governor report dated 21st May, 2005, inter alia, stating that 17 - 18 MLAs belonging to LJP party are moving towards JDU which would mean JDU may be in a position to stake claim to form the Government. The further assumption that the move of the said members was itself indicative of various allurements having been offered to them and on that basis drawing an assumption that the claim that may be staked to form a Government would affect the constitutional provisions and safeguards built therein and distort the verdict of the people would be arbitrary. This shows that the approach was to stall JDU from staking a claim to form the Government.

At that stage, such a view cannot be said to be consistent with the provisions of Tenth Schedule. In fact, the provisions of the said Schedule at that stage had no relevance. It is not a case of 'assumption', or 'perception' as to the provisions of Constitution by the Governor. It is a clear case where attempt was to somehow or the other prevent the formation of a Government by a political party - an area wholly prohibited in so far as the functions, duties and obligations of the Governor are concerned. It was thus a wholly unconstitutional act."

Now, my question is this : The Supreme Court reached this conclusion, after elaborately hearing the parties for a number of days, and after examining the facts of the case (as even Bommai was not an exact precedent), in all its details. It required a five-Judge Constitution Bench to analyse the finer Constitutional issues involved to reach the conclusion that it did. During the hearing of the case, the Supreme Court repeatedly said this was a virgin case. But is it fair to expect Kalam to arrive at the same conclusion or even assumption, on his own or after consultation with legal experts (which legal expert's advice he must lean on? The AG will of course echo the Government's view)? If he honestly believed that the Governor was keen to prevent the violation of 10th Schedule, could he be faulted?

Rameshwar Prasad was perhaps the first case when the SC held that the Governor has no role in judging the likely violation or otherwise of 10th Schedule. The Supreme Court also found that mere assumptions that there might be horse-trading if X or Y was allowed to achieve majority strength cannot be the basis for a Governor's decision. Logically it is sound, but can anyone move beyond assumptions in such cases, and provide hard proof of allurements? If the President/Council of Ministers felt hard proof was not possible, and it would be better to prevent allurements being offered (which was very likely), rather than seek legal remedies later, could they be faulted?
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