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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  • Thanks for the clarifications about Art.74(2). I believe that Art.74(2) has been significantly defanged by the Bommai judgment because to establish the bona fide or malafide, the examination of underlying evidence is crucial. However having gone into that inquiry, it is not clear to me as how the “advice” will be separated from its underlying basis.

    That aside, I am not convinced about your assertions in the last para, that it is permissible to proceed on the basis of assumptions about the “likelyhood” of “allurements”. Then any coalition government can be dismissed on the basis.

    Even conceding if those assumptions were true, the allurements of portfolios and posts though are anathema to a healthy system, but clearly are not illegal.

    When the UPA Government was formed, the DMK made a big fuss about not getting some portfolios that were “promised” for its ministers. As proof, its chief even displayed in a press conference, a signed letter by Janardhan Reddy, the Congress Negotiator, with the promised portfolios. Within a day the portfolios it demanded were allocated. By this logic, should the UPA Government pack up and go?

  • My knowledge of the Indian constitutional law is quite limited. But I am surprised that the President did not seek independent legal advice prior to dissolving the Bihar assembly. Is it not common to seek such advice? If not, are there any prohibitions against seeking such independent advice?

  • Dear Mr.Srinivasan,
    DMK was part of the UPA’s pre-poll alliance. There is a difference between negotiations between pre-poll allies on ministry formation, and the post-poll would be allies. In Bihar, the post-poll allies were likely to be formed with the help of splinter groups. Even if the allurements of office were justified, suit cases also would have played a role, to woo potential splitters. As Governor, Buta Singh claimed to have had inputs from intelligence sources, which could not have been substantiated to satisfy the Court.

  • Independent legal advice is a cliche. Who will decide which legal expert is independent? If this plea is accepted, then the President who consults an independent legal expert, should also make public the nature of the independent legal advice he received and from whom. What if the ‘independent’ legal advice is objectively challenged by other ‘neutral’ observers? If UPA’s A-G is not independent, then whom should the President consult to get the independent legal advice? Is there a panel of independent legal experts, who offer advice on such issues? Even the Supreme Court’s judgment is criticised for bias and lack of objectivity. But at least the judgment has the force of law. Therefore, for the President to rely on a single or a group of independent legal experts, who had argued on various sides previously depending on their convenience, to decide his course of action is clearly an extra-constitutional step. The President may seek to satisfy himself by consulting legal experts. But he cannot selectively do so, by choosing some and avoiding some on the basis of perceptions of the degree of their “independence”, and base his decision entirely on such advice, without revealing its basis. That would be introducing an element of bias and arbitrariness.

  • Let me re-phrase my earlier questions regarding the President seeking independent legal advice and make some additional comments that might be helpful in clarifying some of the issues in my earlier post. At the outset, let me clarify that I am not suggesting that provision of independent legal advice would be a pancea for such tricky situations as the Bihar dissolution. Even if the President had independent legal counsel, the President’s decision would be subject to review by the courts.

    (a) Does the Rashtripati Bhavan have a legal office? If not, is there any other Government of India department that provides legal advice to the Rashtripati Bhavan?

    (b) No legal system can function without the concept of independent legal advice. To further clarify, in the Bihar situation, President’s counsel would be required to advice the President on the relevant law and provide a non-binding recommendation based on the application of the law to the facts at hand. The final decision would still reside with the President.

    (c) All communications between the President and his counsel should be confidential. It is impossible to conceive of a legal system where attorney-client communications would not be privileged.

    (d) This is a question for Indian lawyers on this blog. I am not convinced that seeking independent legal advice by a sitting President is clearly extraconstitutional (or at least I am not able to reach that conclusion for the reasons suggested by V.Venkatesan below). Are there any precedents that deal with this issue?

    (e) Lastly, an additional question – also another technical legal question. Could the President seek advice directly from the Supreme Court? In the US, this would not be possible. But I am aware of certain civil law jurisdictions where the top-tier court is permitted to advice the government on such matters.

  • The President can seek advisory opinion from the Supreme Court under Article 143 only with the advice of the Council of Ministers. Clearly, while returning a Cabinet recommendation for reconsideration once, he will be acting on his own. He cannot, therefore, ask the Supreme Court under Article 143, to clarify whether he could do so in the case of Bihar. That would take time, and the immediate objective of the recommendation would be defeated.

    The office of the President, and its functions, to carry credibility , must be transparent. Therefore, the kind of legal advice that the President gets from independent sources – whom he meets every day, and what was discussed – should not be kept under wraps. The basis of his decision must be explained, and it should be a reasoned decision. It was K.R.Narayanan who began this tradition, unfortunately it has not been followed in each and every case.

  • I agree that the President’s actions must be transparent and logically defensive. However, the President should be able to seek legal advice on a confidential basis (attorney-client privilege is very important and no legal system can function properly without such communications being confidential – see http://www.stanford.edu/dept/legal/about/attorney_client.html). In other words, the President should be able to seek legal advice on a confidential basis from his lawyer but any actions taken on the basis of such advice should be transparent and the President should be required to outline his reasoning (it would not be sufficient for the President to simply assert that he is acting on advice of his lawyer).

    Thank you for your input regarding Article 143.

  • I write to raise a specific query. I think the questions raised about the President’s need to get legal advice raise very important issues which have been considered carefully in the U.S. but have not, to my knowledge, received similar scrutiny in India.

    I was struck by the following statement in Mr. Venkatesan’s response:

    “The President can seek advisory opinion from the Supreme Court under Article 143 only with the advice of the Council of Ministers.”

    I am not sure that the position is as unequivocal as that. I want to leave aside the issue of questions involving President’s rule where time may be a consideration (though one should note that the Supreme Court may indeed be able to act with alacrity if the situation so demands).

    On other issues, is the President really bound by the Cabinet’s decision on whether or not to refer a question to the SC under Article 143? Imagine the following situation: the Cabinet recommends that the President act in a certain way on a particular constitutional issue. She entertains doubts about the correctness of the advice, and wants to seek the SC’s advice. Cabinet doesn’t think that a reference to the Court should be used, and advises against it. Is the President precluded from going forward with the reference?

    Let’s take this further: will the SC, in deciding whether to act on the reference, first check whether the reference was made after taking the Cabinet’s approval? Should the Court refuse to accept a reference under Article 143 if there is no evidence of prior Cabinet approval? Recall that the text of Article 143 imposes no such requirement, and indeed suggests that the President has considerable discretion in deciding when she invokes it, even for factual questions that have not yet arisen.

    However, I am not sure if this issue has been focused upon earlier, or has been considered in the context of an actual situation. I’d be interested in hearing responses on this issue.

  • I must concede that in a situation where the President goes to the SC under Art.143, it would invent a new power center in our constituition which will not be in keeping with its letter nor spirit.

    If the President on his own goes ahead and invokes Art.143 privilege, the Council of Ministers can ask him to withdraw the reference. He can reject the advice and the Council may advise him again. That would strand him out on a dead end.

    However if the Council of Ministers advise him to take an action or sign a law that is blatantly unconstituitional, he may reject the advice and sent it for reconsideration. But on further insistence, if he is so strongly against it, he should resign. Neither should he hold on his own nor should he pull the court to mediate between him and the Council of Ministers. That is a sure recipe for constituitional paralysis.

    The Supreme Court as final arbiter, should be able to strike down unconstituitional laws/actions and provide remedy. I am not sure in Bagehot’s 3 rights , the right to encourage, the right to be consulted, and the right to warn includes a right to litigate.

    I might add these are a real layman’s impressions and not grounded on substantial scholarship.

  • I agree with Srinivasan, in that the distinction between ‘advice’ and the ‘material on the basis of which advice is tendered’ is mere sophistry and is an invention of the Supreme Court to expand its powers of judicial review.

    Anonymous: Former Presidents have sought independent legal advice, from people other than the AG. R. Venkatraman’s autobiography ‘My Presidential Years’ reveals that he regularly used to do this. The same book also reveals that this wasn’t the first time Buta Singh had tried to pull something like this. He had had done the same thing twice during R. Venkatraman’s tenure. It would have been interesting to have had this evidence before the SC when it was deciding Rameshwar Prasad.

    Arun: It would appear that the President exercises no individual discretion under Art. 143. I don’t think Samsher Singh v. State of Punjab, (1974) 2 SCC 831 specifically addressed the President’s discretion under Art. 143 but it did enumerate the few Arts. under which the President can exercise his own discretion. All the references I can think of have been initiated on Cabinet advice.

  • Both Mr Srinivasan and ROTB raise important problems with construing Art. 143 as vesting individual discretion in the President.

    Yet, as several jurists have pointed out, Shamsher Singh has important shortcomings for the manner in which it (and specifically, Justice Krishna Iyer’s judgt) suggets that our Constn is a straightforward copy of the British Parliamentary system, and the President is like the British monarch. This is clearly not the case, as a mere reading of the powers of the President would show.

    I would argue that a textual interpretation of the provisions of the Constn relating to the President, and that of Article 143 in particular, does allow for an expansive interpretation of the powers of the President.

    I can think of other equally serious scenarios where the Cabinet tries to force the President to perform unconstnl acts (something which, given recent govts at the Centre, is not an unthinkable scenario even in our times). In such a scenario, I would argue that the Presidetn can try and act as a guardian of the Constn by seeking the opinion of the SC and act positively to defuse a potential constnl crisis.

  • I agree with ROTB completely. The President can invoke such discretionary power under Art. 143 to resolve crises but he can equally use it to create them and become a real lump in the government’s throat. Anytime the government wants his signature on some major albeit controversial decision, he can easily put a cog in the wheel by referring the matter to the SC. That way he can not only ensure a gridlock but also provide a good stick to the opposition to beat the government with.

    In Rameshwar Prasad, the court followed the reasoning in Bommai, and stated along the same lines that material on which advice is based is open to judicial review and the decision must be objective and based on relevant material. Applying this to government dismissal where the grounds are limited and well-defined is one thing but to do so in the case of a hung assembly where the criteria are far more nebulous is quite another. The contradictions in the judgment seem to highlight the acute shortcomings of this approach. Quoting J. Sawant, it reiterated the now-settled distinction between ‘advice’ and ‘material upon which the advice is based’. Broadly speaking, this might work when facts and opinions are clearly separable. The trouble is that in public administration, materials are often really assessments by some official and also involve a subjective view not really being all that different in nature from advice after all. The problem greater than the revelation of this material itself is really determination of objectivity (or the lack of it) which is where I find this approach to be at its weakest. With various sources at hand, both official and otherwise, that may be of variable reliability and sometimes in conflict, officials have to decide which aspects to take into account and which ones to exclude and how to apportion weightage to each of them, a subjective effort to some extent which evolves with experience and time. By altering any of them, one can construe a variety of meanings and implications from these reports. It is quite possible for the court or any other impartial observer looking at the same question to reasonably come to a conclusion very different from of the government in the same instance. The ultimate choice of interpretation that the government settles upon which is not open to the courts’ inquiry may well influence the course of action that the government takes, the outcome of which is publicly known. The judicial exercise is therefore necessarily based on an incomplete understanding of the views and concerns that were key to the executive judgment.

    Also, as everyone knows, officials or administrators anywhere for that matter, make a number of decisions every day many of which involve making choices without good reason because supportive data or analysis is either unavailable, inadequate or its implications too ambiguous at best. While courts are expected by the very nature of the profession to demand proper evidence before pronouncing on any question, it is not feasible for executive authorities to practice similar evidence-based administration on every count where the need for decisive action outweighs the benefits of a more deliberate approach. This is considered acceptable particularly in the case of elected officials because they are voted to office precisely to make choices on behalf of the people who get to decide periodically whether those choices are in accordance with the latter’s aspirations. In this case, striking down the proclamation on the ground that the governor’s report comprised of extraneous considerations raises the obvious query: what are the proper considerations for the dissolution of the assembly in such an instance? Do any objective criteria exist for the determination of appropriate timing? A conclusion of failure to form a government is no indication that a changed political situation might not arise at a future time whence the reverse might come true. A failed effort for government formation is also no guarantee that a repeat election would produce a different result. I would therefore argue that no objective measure exists or can be proposed and the decision must rest completely on a subjective political assessment of the situation and the balance of probability, the wisdom of which can be assessed only post facto. The court’s reliance on the details of the governor’s report missed this point entirely and the approach it took imposes such an onerous burden on future governments should they choose to disband the legislature in a similar instance that it would be highly improbable that they would be able to fulfill such a requirement and an adverse verdict, like the sword of Democles, hangs above the heads of any cabinet/President who dares to act. The court, in refusing to stop the election on account of its determination, seems to have realized and even tacitly acknowledged its limitations but this was an attempt to have it both ways – blame the government for acting on the basis of a questionable report and then claim that no new solution needs to be imposed as the problem is being solved appropriately anyway.
    If at all anyone ought to be embarrassed by this verdict, it ought to be the court for its untenable reasoning rather than the President.

  • Given the varying interpretations of the Presidential powers to consult the Supreme Court under Article 143, it seems that there is already sufficient wiggle room for a President to cause delays by invoking Article 143. If our parliamentarians were on the ball, they would pass legislation to clarify how Article 143 should function. I do, however, think that there should be certain situations (as outlined by Arun in his prior postings) where the President should be able to consult the Supreme Court without any prior consent of the Cabinet.

  • Arun: I agree that there is nothing in the text Art. 143 to prevent it from being read the way you suggest. Art. 143 could then be used as a pressure valve to defuse political tensions. However, as pointed out, the scope of such a power would have to be clearly defined, to prevent it being used for political ends. Art. 143 already has an inbuilt safety mechanism for this purpose- the SC can refuse to answer a reference if it feels that the advisory jurisdiction is being misutilised.

    It could be said that Art. 74(1) bars such a reading, but even today, that Art. is still read is permitting the exercise of individual discretion. I think certain other provisions such as Art. 72 (pardons) could also benefit from the President exercising his own discretion.