As A.P.J.Abdul Kalam’s eventful tenure came to an end, he seems to have generally got a very good press in terms of editorials and commentaries. Pratap Bhanu Mehta, while lauding him for crossing the class barrier, refers to his occassional lapses of Constitutional judgment, which apart from his other such blemishes, did not affect his image. His Indian express article is here.
What Mehta mentions in passing gets a specific reference in Swapan Das Gupta’s article. Both obviously refer to his infamous assent, given while he was in Moscow, to the dissolution of Bihar assembly in 2005, which invited Supreme Court’s strictures against the Governor, Buta Singh, because of which the latter had to quit office. Kalam, at that time, had described the Supreme Court judgment holding the dissolution as unconstitutional as a learning process. But what was his own defence of the assent?
Rashtrapati Bhavan spokesperson whom I had the privilege of talking to while writing on his first-ever use of Article 111 to return the Office of Profit Bill to Parliament for reconsideration, had this to say:
Kalam was just about to go to sleep, (at 2 a.m.) when he was shown the communication from New Delhi seeking his signature on the decision to dissolve the Bihar assembly. Did he have any option, but to sign? There were only two options: one is to give his assent. The second one is to return it to the Cabinet for reconsideration. There is no third option to the President. He could not have delayed it, or asked New Delhi to wait till he returned home.
If he has to return it for reconsideration, then he has to cite specific grounds why the Union Cabinet’s advice has to be reconsidered. The proviso to Article 74, inserted by 44th Amendment in 1978, says:
“Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.”
The word “reconsider” implies that there ought to be some grounds for reconsideration, some reasons, which according to the President, are weighty enough, to take this extraordinary step of reconsideration. Therefore, the words “generally or otherwise”, if you apply the principle of ejusdem generis, are not vacuous words. The President who wishes the Union Council of Ministers to reconsider its advice must necessarily cite the relevant grounds or reasons for doing so, and not just for the sake of it, ask the Council of Ministers to do so.
Given this understanding, was there any reason or ground for asking the Council of Ministers to do so? The Governor, having waited for nearly six months for the political process to realign, had run out of patience, and given a report advising President’s rule. Was there any ground to doubt at that time, that his report was born out of malice? There was no representation to Kalam pointing to the political situation. No one staked any claim to the Governor seeking a chance to form a Government and prove the majority. The realignment which was purportedly taking place had not yet taken shape, and things were in a flux. Had there been one definite step – of even staking a claim then there was reason to hold that the advice could have been returned for reconsideration. Only a few newspaper reports had appeared pointing to Nitish Kumar’s chances of forming a Government, with splinter groups from other parties. There was no clarity in the situation. Could Kalam have returned the advice asking the Union Cabinet to “await” this, what then appeared as a never ending political drama? Can waiting for political impasse to be resolved by itself be construed as “reconsideration” in the light of a few newspaper reports?
Swapan Das Gupta writes:
The first, and relatively unpublicised occasion was his demand that the Vajpayee government resign after dissolving Parliament in 2004 and be substituted with a non-partisan caretaker regime. This was a gesture of improvisation that may have been grounded in the principle of fairness but it lacked constitutional sanction. It was a piece of adventurism that Kalam wisely didn’t persist with. (Swapan Das Gupta is factually wrong here, as I have explained in my previous post)
The second occasion was when he accepted Governor Buta Singh’s report on the constitutional breakdown in Bihar after the first 2006 Assembly election in Bihar. Kalam was probably misled by Prime Minister Manmohan Singh’s personal plea of immediacy and hurriedly signed the proclamation in Moscow. Subsequently, the Supreme Court declared the move illegal, although it refrained from being critical of Rashtrapati Bhavan. A humiliated Kalam vowed to be doubly cautious in future and to never accept the government’s advice without an independent application of mind. He learnt from his mistakes.
It is for the history to judge whether, given the circumstances, Kalam was correct on these two occasions.
:
On the Bihar assembly dissolution question, the general criticism against Kalam appears in most cases strengthened by the Supreme Court’s ruling which declared unconstituitional. However my take on that it is even without taking it into account, the Government injected immediacy he succumbed to was not a healthy precedent. The art. that Mr.Venkatesan has reproduced does not require the President to act on the council of Ministers then and there itself. The interpretation that Mr.Venkatesan provides would make the President bound to the “Sign NOW (as in NOW)!! or Else tell me why not !!”. This sadly lends weight to the legend about Fakhrudin Ali Ahmed signing the emergency declaration from his bathtub.
It may be warranted on dire occasions like an impending nuclear / air strike by Pakistan to evacuate Lutyens Delhi, but not a state assembly dismissal, because a few MLAs are about to defect. It is upto the President to make this distinction.
It would be perfectly legitimate for the President to get briefed on any additional queries that he may have on the issue before deciding to sign or send it for reconsideration . This is not the first time a Government ended up on the wrong side of the law on Art.356. So Kalam had ample reasons to be doubly cautious before the verdict to ask probing questions to get clarified about the nature of the emergency involved and the reasons behind. The fact that he did not do is very uncharacteristic of his inquisitive nature and thorough approach. It would be interesting if Mr.Venkatesan could shed some light on whether Kalam had any question after reading the communique at all or was he satisfied with it in its entirety.
In response to Mr. Srinivasan’s contention, the question is how does the President know that a problem might exist before he has been given reason to believe so? As Mr. Venkatesan points out, all he could have known at that point was that a hung assembly existed and as the report stated, illegitimate means were being used to induce MLAs to break away from their respective parties. No government had actually been formed and no evidence existed of the imminence of such a possibility or even of the prospect that one could realistically be formed given the arithmetic. Knowing these facts and the government’s assessment that a reference to the people might lead to a different composition that favored the formation of an elected government, is it too much to expect him not to have been swayed by this logic? True, he could have perhaps delayed things a little but perhaps he is not the sort of person who prefers to sit on matters of state where the course seems obvious and straightforward.
The majority judgment in the Rameshwar Prasad case which formed the basis of media opinion that this was an ‘embarrassment’ to Mr. Kalam has a fundamental flaw in it. As Mr. Venkatesan puts it, the message of the court and its consequence was this: “Dissolution in the context of no claims by any party is fine; but a dissolution would always suggest that it has nipped in the bud the possibility of a realignment of political parties in the future if the state of suspended animation of the Assembly continued for some more time. Precisely, how long can the Governor wait before recommending dissolution? There are no answers in the majority judgment. “ (see his detailed exposition of the meaning and outcome of the judgment in the Feb 11, 2005 issue of the Frontline at http://www.hinduonnet.com/fline/fl2303/stories/20060224003103400.htm). None of this is to suggest that political calculations might not have been behind the government’s move but even if he were aware of such motives, I doubt whether that knowledge alone would have been sufficient to make out a case demanding reconsideration in a situation where no superior alternatives were apparent to the government’s course.
My contention is not that Kalam should have sent it for reconsideration without any knowledge of the facts. I argue that he should have taken some time digesting the reports, going over previous cases in which Art.356 was imposed, consult his in-house legal advisor before signing the proclamation.
It is naive to expect that the Government representation would also provide him the reasons to disbelieve its advise. Kalam’s error was not to do an independent check, which by the way K.R.Narayanan did twice once with UP and another time with Bihar.
The Bihar assembly dismissal was a pure question of timing. If the timing had been a week before or a week after, we would not be talking about this case. How did the Government come to the conclusion that the time had run out for the political realignments to take place? If the majority opinion did not have any yardstick, did the Government have one either?
What material evidence was placed before the court to prove “illegitimate” means were used to cobble a majority ? Was that provided to Kalam ? I am aware that these are matters of advise rendered by the Council of Ministers which are beyond judicial inquiry, but the devil is in that detail.
Why on that fateful Moscow morning 2:00 AM and not say 4 hours later?
These are not arbitrary questions and these go to the heart of the Government case’s truthfulness.
Put together these questions lend a profound weight to the opinion that the Government had no problem in waiting so long to see an alignment of its choice to happen, but rushed in when a different alignment against its political interests was about to happen.
Dear Mr.Srinivasan,
Kalam’s defence is that he did not have any additional queries on the issue before deciding to sign or send it for reconsideration.
How do we assume that Kalam did not do independent check on the Bihar situation? When he gave his assent, he had before him Governor Buta Singh’s second report. The first report, sent about a month earlier also carried similar assessment. It is reasonable to assume that Kalam was already familiar with the situation, and was aware of his options.
K.R.Narayanan’s approach was based on different circumstances. So, it is not fair to compare Kalam with KRN.
Government depended on Governor’s reports that time had run out. The Governor might be biased, or flawed. It is possible to fault the Government for failing to do an independent check, and doubt Governor’s bona fides. But the Government could have also felt that there was no occasion to doubt the Governor’s bona fides. The President had no material or facts before him to suggest that the Governor’s report might be mala fide.
It is true that the Supreme Court found the material submitted to the President by the Council of Ministers (it is not beyond judicial scrutiny) as insufficient as there were just allegations and newspaper reports in the Governor’s report.
I agree that Kalam could have questioned the adequacy of the material shown to him, as there was no evidence that horse-trading was likely to happen or that horse-trading ipso facto was anathema to democracy, even if the rules of the game were strictly observed. But this retrospective wisdom, following the Supreme Court’s judgment in the Rameshwar Prasad case, was not available to Kalam at that time.
In my view, timing of Kalam’s assent is of no significance. Even if it is four hours later or earlier, same question could be asked.
Actually, the Rameshwar Prasad judgment is riddled with contradictions. I intend to write another post on that unanimous judgment of Justice Sabbarwal’s five-Judge Bench.