| 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 ï¿½ whether it is unanimous or divided ï¿½ will make no substantive difference. Under Presidentï¿½s 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 columnistï¿½s views on the subject may be known to readers. Before the verdict an article stated the columnistï¿½s position regarding the Presidentï¿½s 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 governmentï¿½s 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 Governorï¿½s recommendation to dissolve the assembly as ï¿½unfortunateï¿½. Referring to the Supreme Court judgment he said the Governor should maintain the dignity of his post. ï¿½I donï¿½t like this controversy about the Governorï¿½s role,ï¿½ he said. ï¿½It is an unfortunate development.ï¿½ Unfortunate it was. But equally unfortunate was the cabinetï¿½s decision to accept the Governorï¿½s 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 Singhï¿½s folly? So, do the PMï¿½s 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 anybodyï¿½s guess. But judging from what is known of President Kalamï¿½s character and temperament, this scribe believes he will resign. The Presidentï¿½s 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 Presidentï¿½s indication that all the mercy petitioners who approached him should be spared the death penalty? Isnï¿½t the right to pardon among the Presidentï¿½s 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 Presidentï¿½s speech. The Presidentï¿½s 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:
ï¿½For 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.ï¿½
The President reinforced his remarks by quoting 17th century English philosopher John Locke:
ï¿½It 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.ï¿½
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 ï¿½ 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 executiveï¿½s 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: ï¿½The 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.ï¿½ Thatï¿½s pretty clear, isnï¿½t it? President Kalam doesnï¿½t appear to be confused. This scribe doesnï¿½t 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.