My Word
Will India's Government
Survive November?
by Rajinder Puri
November 16, 2005
By this day next week the full Supreme Court judgment on the Bihar
assembly dissolution should be out. It matters little what detailed
arguments the judgment will rely on. By waiting for the full judgment
before responding the Government merely bought time. The details of the
judgment – whether it is unanimous or divided – will make no substantive
difference. Under President’s rule the Union Government passed an
unconstitutional order that was signed for implementation by the
President. Sacking Buta Singh will not suffice. The decision rested with
the union government. So whose head will roll?
India is
facing its moment of truth. It is not a crisis of government. It is a
crisis of system. The system must change for the Constitution to
survive.
The Prime Minister could resign. The President could resign. Both could
resign. Neither may resign. This columnist’s views on the subject may be
known to readers. Before the verdict an article stated the columnist’s
position regarding the President’s role and responsibility. After the
verdict, it was written the PM must first resign or be dismissed by the
President. After that the President himself must resign. Next, the
Vice-President as acting President must explore options of finding a
successor. If unsuccessful he must dissolve the House. If constitutional
propriety remains the criterion, nothing that happened subsequently
persuades a change of opinion.
The question now is: what could in fact happen?
Immediately after the first brief judgment the President and PM met.
Next day in Chandigarh after the Congress Working Committee meeting the
PM accompanied by Mrs. Sonia Gandhi addressed the press. He acknowledged
that the Union cabinet had to accept its responsibility for passing the
unconstitutional order. This indicated that the PM had decided to
resign. The Congress party spokesmen stated that the response by the
government to the verdict would be given after the full judgment became
available. The Bihar elections were under way. The government’s decision
to buy time made tactical sense. The full judgment is expected after the
Bihar polling ends. Will the PM stick to his initial response or
backtrack?
In Patna on November 8 the PM criticized Governor Buta Singh while
speaking to the media. He described the Governor’s recommendation to
dissolve the assembly as “unfortunate”. Referring to the Supreme Court
judgment he said the Governor should maintain the dignity of his post.
“I don’t like this controversy about the Governor’s role,” he said. “It
is an unfortunate development.” Unfortunate it was. But equally
unfortunate was the cabinet’s decision to accept the Governor’s
recommendation, then attach a newspaper clipping dated a day after the
recommendation was received to bolster its case, and then, at midnight,
fax it to the President in Moscow for his signature. Does not this smack
of complicity and conspiracy compounding Mr Buta Singh’s folly? So, do
the PM’s remarks on Mr Buta Singh betray a change of mind? We should
know next week.
And what about the President? He is a genuine victim of the
constitutional confusion created by politicians and legal luminaries
alike. It matters little whether he did or did not send the order for
reconsideration to the cabinet. Awakened at midnight during a foreign
trip he would have been justified in thinking there was an emergency
situation. He signed the order. Hypothetically, had he refused to sign
the unconstitutional order would not the media and the entire political
class have been at his throat, accusing him of staging a constitutional
coup? Now the President is in the unhappy situation of having breached
his oath to protect the constitution. How will he react? That is
anybody’s guess. But judging from what is known of President Kalam’s
character and temperament, this scribe believes he will resign. The
President’s unhappiness and perplexity become apparent from two
unrelated incidents.
First, he recommended to the Home Minister a blanket pardon for several
mercy petitioners facing the death penalty. The President also expressed
his support for abolishing the death penalty. The latter suggestion met
with criticism from several quarters including retired Chief Justice
Lahoti. It is reasonable to expect diverse opinions on the subject. It
was only a suggestion. For it to become law Parliament must decide. But
what about the President’s indication that all the mercy petitioners who
approached him should be spared the death penalty? Isn’t the right to
pardon among the President’s prerogatives? The matter is still pending
before the government. How it is resolved will determine what, if any,
power the President can exercise. By raising the issue at this time was
President Kalam testing the waters?
The other event was more intriguing. On November 9 the President
addressed a seminar in the presence of the Chief Justice and the Lok
Sabha Speaker. He expounded on the relationship between the executive,
the judiciary and the legislature. His remarks attracted media attention
and sparked a minor debate. The President said that while all three
pillars of democracy should be independent, the executive was not fully
independent but was curbed by constraints created by the legislature and
judiciary. The media seized on this remark and concluded that he was
obliquely criticizing the judiciary. Legal luminaries jumped into the
fray. None of them appeared to grasp the real import of the President’s
speech. The President’s remark was unfortunate inasmuch that it caused
confusion and diverted attention from the thrust of his speech.
Earlier in the same speech the President said:
“For a democratic
system to function in a healthy atmosphere, it is necessary to chalk out
specific areas of domain for each of these pillars with least
encroachments on it from any other. The basic concept of the separation
of powers would mean (a) the same persons should not form part of more
than one of the three organs of the Government, (b) that one organ
should not control or interrupt with the working of another, and (c)
that one organ of Government should not exercise the functions of
another.”
The President reinforced his remarks by quoting 17th century English
philosopher John Locke:
“It may be too great a temptation to humane
frailty, apt to grasp at power, for the same persons who have the power
of making laws, to have also in their hands the power to execute them,
whereby they may exempt themselves from obedience to the laws they make,
and suit the law, both in its making and execution, to their own private
advantage.”
Who are the persons in our present political system forming part of more
than one of the three organs of Government? They are the ministers. They
legislate, and they execute. This scribe has pointed out in the past the
same anomaly – to suggest that accountability of government becomes
notional when those who execute also control the legislature through its
majority. That makes Parliament unfit as an instrument to check
government excess. The President focused on the impediments that the
anomaly placed on the executive’s functioning.
What therefore was the President driving at? To understand this it would
be helpful to appraise his remarks in the light of our Constitution.
Article 53 of the Constitution says: “The executive power of the
Union shall be vested in the President, and shall be exercised by him
either directly or through officers subordinate to him in accordance
with this Constitution.”
That’s pretty clear, isn’t it? President Kalam doesn’t appear to be confused. This scribe doesn’t feel he is
confused. Only legal experts seem confused and confusing.
If the President does decide to resign he should do so in a manner that
compels a reappraisal of our system. If both the President and Prime
Minister resign they would keep their reputations intact and have a
public life after resignation. Alternatively, one or both could cling to
office. That would preserve chair but destroy reputation.
India is
facing its moment of truth. It is not a crisis of government.
It is a
crisis of system. The system must change for the Constitution to
survive.
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The Prime Minister could resign. The President could resign. Both could
resign. Neither may resign. This columnist’s views on the subject may be
known to readers. Before the verdict an article stated the columnist’s
position regarding the President’s role and responsibility. After the
verdict, it was written the PM must first resign or be dismissed by the
President. After that the President himself must resign. Next, the
Vice-President as acting President must explore options of finding a
successor. If unsuccessful he must dissolve the House. If constitutional
propriety remains the criterion, nothing that happened subsequently
persuades a change of opinion. 