Presidents and conventions: History revisited

In my last post, I suggested that the long string of precedents after Rajendra Prasad’s second term as President, limiting the terms of Prasad’s successors to one, cannot be called a convention, because there has been no agreement on this across the political spectrum, and there is no good reason for the same. Still, I was intrigued by two questions. 1. Why and how Rajendra Prasad secured a second term in 1957? 2. Why did not Dr.Radhakrishnan get a second term in office in 1967? While Austin suggested that it was not clear what was the convention, there is reason to believe that Jawaharlal Nehru wanted to create a convention of limiting the term of the President to one. In 1957, Jawaharlal Nehru desired that the then Vice-President, Dr.Radhakrishnan succeeded Prasad as President. S.Gopal’s biography of Radhakrishnan cites the relevant correspondence to suggest that Prasad first wrote to Nehru in January 1955 indicating that he would like to retire as he had completed five years in office. Nehru replied to him to hang on till 1957, making no request to continue beyond his current term. So, Nehru took Prasad for granted, and did not conceal his expectation and desire that Radhakrishnan would succeed Prasad, whom he had found stuffy and slow-going, in Bagehot’s phrase a ‘consecrated obstruction’. In December 1956, when Nehru was in Washington, a concerted chorus in the press that it had been practically decided to invite Prasad to continue in office and that he had agreed was built up thanks to the then Education Minister, Abul Kalam Azad, who was uncomfortable with Dr.Radhakrishnan. Nehru’s clarification that he had not thought about the issue could not smother discussion. On March 23, 1957, Nehru discussed with Prasad as an old colleague, and urged the need for healthy convention. Prasad heard him out in silence, and made no commitment. A signature campaign was then started in support of Prasad among the MPs. In the six-member Congress Parliamentary Board which met in March 1957, Nehru was virtually isolated. Morarji Desai, the other CPB member, who, like Nehru, wished to back Dr.Radhakrishnan, was too ill to attend the CPB. Azad, another CPB Member managed to influence the remaining three fence-sitters, Jagjivan Ram, G.V.Pant and U.N.Dhebar (the then President of Congress) in the CPB in favour of Prasad’s continuance. Nehru, accepting defeat, ruefully commented: “What weight do I carry with the Parliamentary Board?’ Later, Nehru wrote a apologetic personal letter to Dr.Radhakrishnan stating: “in the circumstances as now existing …it would be difficult and unwise to lay stress on the convention we would like to develop. And so, they (many of Nehru’s colleagues) felt that in the wider interests of the country, in the balance, they should agree to the President standing again for election. If a year or more ago we had been wise enough to lay down this convention, it would have been easy now. But personal equations have arisen now, and have an important influence.”
But was there a good reason for this desirable convention? Nehru spoke out against the same persons continuing in places of high responsibility. But he himself was not averse to have three terms as Prime Minister (even though the posts of President and the PM are not strictly comparable). Dr.Radhakrishnan offered to quit as the Vice-President, to set up the convention that posts of honour should not be held for more than one term. And he did offer a good reason: “Removal of the unfortunate impression that men in high places do not voluntarily retire was in the larger interests of a young democracy”. But it was another matter that the CPB did not let Radhakrishnan quit, if only because it would show up Prasad in such a poor light. In 1967, Radhakrishnan was emerging as the only person acceptable to both the Congress and the Opposition for a second term. But he was determined to depart, and left several hints. S.Gopal says Indira Gandhi was not so keen to retain Radhakrishnan as to consider withdrawing her support to Zakir Husain, then Vice-President. Gopal says: Had the Congress at this time announced its choice of Radhakrishnan for a second term, all parties and groups in the opposition would have probably also given their assent. But the differences between Kamaraj and Indira Gandhi precluded a quick decision, and provided stray political elements with scope for intrigue. Meanwhile, the Opposition parties sponsored the Chief Justice of India Subba Rao as their candidate, sensing that Indira Gandhi would back Husain. Radhakrishnan still did not back out officially, blinded he was because of his affection for his friend, Kamaraj who promised that he would mobilise support for him. Radhakrishnan announced his withdrawal belatedly, after Subbarao agreed to be the candidate of the Opposition. So, even if there had been a good reason for the convention, it did not clearly evolve, because the participants did not subscribe to it in letter and spirit. (I am grateful to Mr.Arun Thiruvengadam and Mr.Srinivasan for their suggestions and comments on the earlier post, which motivated me to write this.)

Searing critique of an ongoing slum clearance drive in Delhi

Yesterday's edition of the Hindustan Times featured a biting indictment of the slum clearance policies of the Delhi government as well as recent orders issued by the Delhi High Court. Authored by Bela Bhatia of CSDS, Delhi and the noted economist and social activist, Jean Dreze , the piece focuses on an ongoing drive in Sanjay Basti, a squatter settlement in Timarpur, North Delhi. As they point out, the irony of the situation is that the residents of Sanjay Basti have a good case in law, but that will not help them avert their impending fate:

"About two weeks ago, a terse notice appeared on a few walls in Sanjay Basti, a squatter settlement in Timarpur, North Delhi. Posted by the Central Public Works Department (CPWD), it directs the residents to vacate by April 27, or face demolition soon after that. The notice does not explain the purpose of this forcible removal, or specify the area to which the order applies, or mention any relocation plan. Nor does it provide a contact number where further details might be sought — so much for the right to information.

... In common parlance, Sanjay Basti is a ‘slum’ or ‘encroachment’, but these pejorative terms fail to convey the real nature of this settlement. Most of the residents have been there for 20 years or more, and they have had time to transform their humble dwellings into real ‘homes’. Without much help or subsidies, they have made thoughtful use of every inch of space to improve their environment, often by recycling middle-class ‘waste’. Their houses are tidy and functional and, what is more, they have character. In this respect, this ‘slum’ compares favourably with the somewhat dull lower-middle-class quarters across the road, built at considerable public expense. As a form of low-cost urban housing, Sanjay Basti is not doing badly.

... ... ... In principle, Sanjay Basti is well protected from arbitrary demolition under existing policies and laws. The Delhi Laws (Special Provisions) Act, 2006, prohibits any slum demolition for the time being unless the land is required for a “specific public project”, which is conspicuous by its absence in this case. Indeed, persistent enquiries from countless offices failed to uncover any specific reason for the demolition of Sanjay Basti.

Further, the Delhi Master Plan 2021, which has statutory force, declares and mandates a policy of in situ upgradation or relocation as per strict specifications (provided for in the Plan itself) of all slums and “jhuggi-jhopri clusters”, and a continuance of these settlements in the interim. The impending demolition of Sanjay Basti violates this Master Plan as well as the Delhi Laws (Special Provisions) Act, 2006. For good measure, it is also contrary to the slum policy of the Municipal Corporation of Delhi (MCD).

These laws and policies, unfortunately, are being overridden by reckless High Court orders aimed at ‘cleansing’ the city of settlements of this kind. Indeed, Sanjay Basti is only the latest target in a long series of slum demolitions carried out under pressure from the Delhi High Court and its offshoots — notably the commissioners and monitoring committees appointed to oversee the progress of demolition orders.

These orders are based on the notion that slums are parasitical settlements that tarnish the urban environment. They overlook the fact that slums serve an essential economic purpose: they provide low-cost housing to masses of workers who ‘service’ the city, and for whom no provision has been made in urban development planning. For many of them, it would be impractical or expensive to commute long distances from the outskirts of the city. For instance, street vendors and roadside workers (barbers, tea-stall owners, cycle mechanics and so on) need equipment that would be difficult to carry back and forth. Similarly, it is the short distance between work and home that enables many women to work as part-time domestic helpers in the neighbourhood even as they continue to handle child care and other household tasks.

Slum demolition drives also overlook another important fact about squatter settlements in Delhi: they occupy very little space. Indeed, squatter settlements in Delhi cover barely one per cent of the total land area in the city. This point can also be appreciated by examining Google Earth’s high-resolution maps of Delhi. It is a striking fact that slums are virtually invisible on these maps. The reason is that squatter settlements are tucked away in the nooks and crannies of the city, too small to be visible on aerial maps — even detailed maps where single trees can be spotted.

On this one per cent of the total Delhi area live some three million people who keep the informal economy going and for whom no shelter provisions have been made. When the situation is seen in this light, the case for removal looks much weaker than when slums are regarded as an eyesore and a nuisance. Would it really be unwise to allocate one per cent of the land for in situ improvement of existing slums, and spare the trauma of forced eviction to millions of people, except possibly when essential public purposes are at stake?"

Hopefully, the Op-Ed will serve its desired purpose of getting the authorities involved to at least ensure that they comply with the requirements of existing law before proceeding to act. This particular instance also draws attention to the trend of cases highlighted by the recent editorial of the EPW which should lead to a close examination of the changing nature of PIL in India, and a proper assessment of its impact. (click here to link to the post which discusses this issue and also contains the link to the editorial).

A critique of the Maintenance of Parents Bill 2007

On Saturday, the Indian Express carried a critique of the UPA government's Maintenance and Welfare of Parents and Senior Citizens Bill 2007, which was introduced in the Lok Sabha in March. M. R. Madhavan, who works with the PRS Legislative Research at the Centre for Policy Research focuses on larger policy problems with the Bill, while also zeroing in on specific provisions that arouse his concern:

"The Maintenance and Welfare of Parents and Senior Citizens Bill, 2007, which was introduced in Lok Sabha in March, aims “to provide for more effective provisions for the maintenance and welfare of parents and senior citizens guaranteed and recognised under the Constitution and for matters connected therewith or incidental thereto.” While it is difficult to contest the objective of ensuring a comfortable life for senior citizens, a number of provisions in the Bill may not be easy to implement.

The Bill neatly sidesteps the directive in the Constitution (Article 41), which directs the state to provide public assistance in cases of old age. The Bill does state that, “The state government may establish and maintain such number of old age homes at accessible places, as it may deem necessary, in a phased manner, beginning with at least one in each district to accommodate in such homes a minimum of one hundred fifty senior citizens who are indigent”. Note the use of “may” instead of “shall” — there is no obligation on the state governments to establish these. Even without this clause, there was never any prohibition on them from providing old age homes. Also, one wonders why a Bill should specify details such as the minimum size of an old age home.

Instead, the Bill places the obligation of maintaining a senior citizen on his or her children, grandchildren or any legal heirs. The process and amount differs from the existing provision in the Code of Criminal Procedure (Section 125), under which a first class magistrate may order a person to provide a monthly maintenance to his parents (or wife, including divorced wife or children), limited to Rs 500.

The Bill provides that the children of a senior citizen have the obligation to maintain a senior citizen to the extent that he “may lead a normal life”. In case of a childless senior citizen, the obligation is on a relative who is in possession of the senior citizen’s property or who would inherit his property. The maximum monthly allowance is to be specified by state governments, subject to a limit of Rs 10,000.

Some of the definitions in the Bill are confusing. Senior citizens are defined as “any person being a citizen of India, who has attained the age of sixty years or above and includes parent whether or not a senior citizen”. This implies that every parent, including those below sixty years of age, would be considered a “senior citizen”. Relative “means any legal heir of the childless senior citizen who is not a minor and is in possession of or would inherit his property after his death.” How does one determine who would inherit the property? Does this mean that the senior citizen has to reveal the contents of his will, and does not have the freedom to change it later? If he is allowed to change his will, consider the case of the person who is initially named in the will, forced to provide a maintenance, and who finds on the death of the senior citizen that there is another will that disinherits him.

So what does a senior citizen do if he wants maintenance? He applies to the ‘Maintenance Tribunal’. The application may also be made by any other person or organisation authorised by him. However, the Bill clarifies that such an “organisation” means “any voluntary organisation registered under the Societies Registration Act, 1860, or any other law for the time being in force”. It seems to ignore the fact that the Societies Registration Act does not define “voluntary organisation”.

One might be tempted to believe that the purpose of permitting such organisations is to assist a senior citizen. However, the Bill makes it clear that “no party to a proceeding before a tribunal or appellate tribunal shall be represented by a legal practitioner”. That is, one may not use the services of a legally qualified person in obtaining one’s legal entitlements under this law.

Regarding the maintenance tribunal, the Bill states that “the state government may... constitute for each sub-division one or more tribunals... The tribunal shall be presided over by an officer not below the rank of sub-divisional officer of a state”. There are two points to note here. First, the use of “may”, leaving the state governments the option of not forming such tribunals. Second, the job is entrusted to the SDO, who has a number of other responsibilities.

To conclude, one is not arguing against the idea of providing a safety net for senior citizens. The point is that any law that provides for such a net should be implementable. Other than the various loopholes discussed, the big issue is whether parents would take their children to the tribunal, given various social pressures. A better approach may be to design a social security system, including financial products such as pension schemes and reverse mortgages that enable the elderly to live a dignified life."

This is a powerful critique of the Bill, which is scheduled to be debated during the current session of Parliament. To my mind, there is only one existing precedent for such a law, which is the Singaporean Maintenance of Parents Act. Significantly, that law is backed by governmental programmes of pension, healthcare and other forms of support for the elderly, which adds weight to Madhavan's core argument. Hopefully, these issues will be aired during the Parliamentary debates on this law.

President's second term: The Myth of conventions

In his well-argued piece in The Hindu, Mr.Harish Khare elaborates that there has been a convention to deny a second term to the President, and that this ought to apply to the incumbent President, A.P.J.Abdul Kalam, whose term expires in July. With due respect to Mr.Khare, I feel he is mixing up a precedent with a convention. This precedent was set and followed subsequently because of extraneous factors, and not because of any inherent merit in restricting a President to a single term. Mere precedents do not make a convention. For precedents to qualify as a convention, two more questions need to be asked. They are, as Sir Ivor Jennings says, did the actors in the precedents believe that they were bound by a rule; and whether there is a good reason for the rule. A single precedent with a good reason may be enough to establish the rule. A whole string of precedents without such a reason will be of no avail, unless the persons concerned regard themselves to be bound by it.

According to Mr.Khare’s own analysis, no incumbent President believed that there was a binding convention not to seek a second term. Even political parties had no consistent belief – if the BJP’s position is taken as an example. If his description of how the no-second term precedent came to be established is any guide, it clearly shows that Radhakrishnan was denied a second term only because of intra-party dynamics within the Congress, and not because of an informal agreement among all political players that it was desirable to restrict each President to a single term. Again, Fakruddin Ali Ahmed succeeded V.V.Giri, not because a second term to Giri was undesirable due to some reason, or that the Congress took a principled position on this, which was endorsed by all opposition parties. Successively, incumbent Presidents were denied a second term by political parties, not because of any inherent agreement among them, but because it did not suit the dominant political formation. A second term for K.R.Narayanan would have suited the Left and the Congress, but not the BJP. Therefore, the BJP used the argument of convention as a ruse to deny him a second term. A second term for A.P.J.Abdul Kalam appears to suit the BJP, probably because, he appears to be a lesser risk than any other candidate of the UPA-Left alliance.
The convention of no second term to any President is a myth, because there is no shared belief among the political parties that they are bound by this rule, and secondly, there appears to be no good reason for the so-called convention. There is a whole-string of precedents after Rajendra Prasad’s second term, but without good reason. Mr.Khare’s inability to cite a good reason for the convention, appears to be a gap in his otherwise, well-researched article.
Whether President Kalam deserves a second term or not must be based on his performance in his first term, and not because there exists this so-called convention.

Update: I found from Granville Austin's The Indian Constitution: Cornerstone of a Nation, the following which may be of interest: The Drafting Committee adopted a provision designed to limit presidential power by preventing the head of state from serving more than two terms in office. This article was taken word for word by B.N.Rau, the eminent member from the Irish Constitution. The C.Assembly adopted this provision in December 1948 without substantial debate. Yet in a version of the Draft Constitution printed on October 28 1949, the restriction of presidential terms to two had been omitted from the Constitution. The number of terms a President could serve was presumably a matter that could be left to convention. Austin calls this as an unpublicized change in the Constitution, which was apparently not debated by the Assembly and it would have been easily forgotten had it not been that fears subsequently arose that convention or conscience might not be enough to cause an incumbent President to relinquish his office. What, in fact was the convention? Austin says no one had made it clear; it appears that the subject had not been discussed.

Contrary to the general impression, Rajendra Prasad, in fact, held three terms: from January 24, 1950 to 1952, when he was elected President under the normal working of the Constitution. In 1950, he was elected President of India by the Constituent Assembly. He declined to step down in favour of Radhakrishnan, Vice-President as expected by Nehru in 1957. By 1960, the question was whether Prasad would seek a third term (that is fourth term, if one includes the pre-1952 term). Bhupesh Gupta, a Communist MP moved an amendment to the Constitution in April 1961 restricting a President to two terms, an effort that came to naught. Later Prasad himself cleared the air in the autumn of the year by announcing that he would not run. Austin alludes that the fear was that Prasad might violate an incipient convention, that is, not seeking reelection beyond two full terms (if one excludes the pre-1952 tenure). Thus, it appears, we can say there was a convention that a President should not seek reelection beyond two successive terms.

The EPW's suggestions for resolving the Mandal II Impasse

A recent issue of Outlook magazine had this interesting piece, which asserted that the EPW's influence on governmental policy-making is considerable. If true, this probably explains why EPW editorials, more than other newspapers, adopt a tone which presume that their views will be considered if not directly acted upon.

In its issue dated April 28-May 04, the EPW 's editorial titled 'Stay the Course' (pun very much intended) has some harsh words to say about the UPA government's handling of the issue of OBC quotas:

"Indeed, so distant is the government from statesmanship that it seems unable to prevail even on an issue supported by all political parties! But the government’s discomfiture is not the point. The real tragedy is that a just cause is being made to look like petty politics. "

The editorial then sets out EPW's position on the issue, providing cites to previously published articles and articulating the background rationale for its stand:

"Over the past year, this journal has been part of the significant strand of national opinion that supports OBC reservations in higher education as a progressive step that is long overdue (‘Merits of Mandal II’, April 15, 2006). We have highlighted the urgent need for reliable evidence on the social composition of elite higher education; the challenges posed by internally differentiated aggregative categories like the OBCs; the imperative of engaging with crucial yet unexamined concepts like merit; and, finally, the need to design affirmative action programmes adapted to the specificities of higher and professional education. We have also expressed our deep disappointment with the Moily Committee (‘Myopic Oversight’, November 4, 2006) for having squandered an invaluable opportunity to provide alternative views on the creamy layer and other critical issues.

The latest setbacks are no doubt the price paid for its inexplicable silences. In its eagerness to save face in the procedural battle over the Supreme Court’s stay order, the government risks losing the larger ideological war over social justice. Even if the special bench constituted by the chief justice of India were to offer it some relief on May 8, this will not undo the damage that the government’s case has already suffered in the eyes of public opinion. Repairing this damage is not easy, particularly since the urban middle classes are a biased “public”, being largely upper caste and devout believers of simplistic notions of merit."

The editorial then lays out its suggestions for what should now be done by the government:

"[A] damage control exercise [should] be initiated that seeks to strengthen the weakest aspects of the government’s case, namely, its inability to adequately address the key issues of evidence and merit. The government must demonstrate its commitment to the collection of reliable nation-wide data on social inequality and backwardness by forming an expert group for this purpose. This would reassure the courts and end the hypocrisy of an establishment that blocks the collection of such data while simultaneously using its absence to question policies of reservation. The group could include social scientists and members of the statistical bureaucracy, along the lines of similar groups on poverty or unemployment. The time to prepare for the Census of 2011 is already here, and the blunder of 2001 – when pleas to include caste were resolutely ignored by the National Democratic Alliance government – must not be repeated.

In a parallel move, another expert committee must be set up to design context-specific affirmative action policies for elite higher educational institutions. To ensure adequate authority and autonomy, this group must be constituted by the prime minister’s office along the lines of the Sachar Committee. The committee would ascertain the social composition of higher education, examine the meanings and measures of merit, and devise detailed plans for introducing reservations without compromising standards.

Since its findings will interest the courts, the committee must include an eminent jurist, along with responsible academics sympathetic to the cause of reservations. Among the biggest obstacles to reliable research in this area are the educational establishments themselves, which have generally denied access to relevant data. This cannot continue, and access must be ensured.

The main task of this committee will be to clarify the widespread confusion between claims based on absolute benchmarks of competence and those based on relative ranking. Once the necessary absolute benchmarks are met, can relative ranking be combined with other relevant criteria to regulate entry? What ethical-legal implications follow? Will standards suffer even if entry and exit benchmarks remain uniform? Such measures will harness the expertise of the intelligentsia, exploit the professional affinity for questions of evidence that it shares with the judiciary, and circumvent the latter’s allergy to the legislature. Above all, they will inject some credibility into a campaign strangely lacking in conviction. They may even decide whether the UPA government stays the course in the fight for social justice, or allows its course to be stayed."

Given how much this issue has provoked debate on this blog, I wonder how both contributors and readers will react to these suggestions.

President Kalam's tenure: An unexplored episode

President A.P.J.Abdul Kalam finds himself in the midst of a debate whether he should seek a second term in office. I was one among those who was unhappy with the then NDA Government for having reduced Rashtrapati Bhavan as an award for a person’s outstanding accomplishment in science in 2002. Many were critical of the choice because President Kalam was the first President without a political or legal background, and without even a stint as Vice-President; therefore, there were genuine doubts about his suitability for the high office. As his term comes to a close this July, it is perhaps time to look back, and examine whether the skeptics including me were correct. I must acknowledge that Kalam –as the Constitutional head - not only brought freshness of approach to politics, but proved to the skeptics that his non-political and non-legal background could actually be assets in breaking with the past baggage of Rashtrapati Bhavan. Here, I intend to deal with just one episode, though there are a few firsts with which he must be credited with including, for instance, the first time use of Article 111, when he returned the Office of Profit Bill to Parliament for reconsideration. On the question of dissolution of Bihar assembly which invited the Supreme Court’s strictures, I felt his office had reasonable arguments why he could not have returned the recommendation for reconsideration of the Cabinet without any material or ground to his knowledge at that time.
The event which interested me most, however, was his acceptance of the then Prime Minister, Atal Behari Vajpayee’s recommendation to dissolve the Lok Sabha six months prior to completion of its tenure in February 2004. Not many knew that Kalam did not accept the recommendation immediately. He mulled over it, consulted the then Attorney-General, Soli Sorabjee, went through the materials, including the Supreme Court’s judgments concerning the President’s powers sent to him by Sorabjee, before making up his mind. No other President prior to him had taken this responsibility more seriously than him. Yet, contemporary history seems to have deprived him his due place, probably because of the wrong legal advice tendered to him. The media too blacked out this episode as of no interest, or consequence, even though I had sought to bring the details into the public domain during the Lok Sabha elections.
President Kalam’s query to Vajpayee was whether he should resign, following the recommendation to prematurely dissolve the Lok Sabha. The question, on the face of it, appeared innocuous, as well as naïve. Perplexed, Vajpayee promised Kalam that he would get back on this issue. Why should Vajpayee resign, when he enjoyed majority in the Lok Sabha, was the response of Kalam’s critics in the NDA and within the legal community. If he resigned, then it would be an invitation for attempts to form an alternative Government, and the dissolution recommendation would not be binding on the President, so went another argument. Others including the Law Minister, Arun Jaitley argued that if the Prime Minister who enjoyed a majority in the Lok Sabha had given the dissolution recommendation, then it is binding on the President, and the Prime Minister, who still enjoyed majority support in the dissolved Lok Sabha, need not resign.
Unconvinced with this informal advice from the Government, President Kalam sought a specific legal opinion from the AG. The opinion he sought was clear and unambiguous: whether as President, he was bound by Vajpayee’s advice to dissolve the Lok Sabha. The opinion he sought was much more specific and embarrassing to the then Government than the one he posed to Vajpayee whether he should resign, following the submission of dissolution-recommendation. AG not only confirmed to me the President’s official request –in writing to him– but to another legal journalist, Mr.Manoj Mitta, whom I sounded. (He later wrote an edit page article in Indian Express on this.) Our inference at that time was that a President would seek such an opinion whether he was “bound” by the advice, only when he wanted to reject it. Rashtrapathi Bhavan sources, however, had a different story at that time: That Kalam, being a scientist, has always posed several questions and sought answers, before he took any decision. Therefore, too much should not be read in the opinion he sought from the AG. Whatever the truth, from Sorabjee’s own account of the episode – he not only gave a written and oral advice, but cited a few Supreme Court’s judgments, with enough reading material for Kalam to read and understand himself, that he was “bound” by the advice – it is clear that Kalam had taken his decision very seriously, rather than mechanically endorse the Government’s recommendation as his predecessors would have done. ( I have my reservations on whether President K.R.Narayanan must have done more than what he did, during the shameful Gujarat pogrom of 2002. He must have done more, brought much more pressure on the Government of the day, to get the State Government dismissed, and impose President’s rule. But this would require a separate post to elaborate)
Sorabjee referred to the Supreme Court’s judgment in the U.N.R.Rao v.Indira Gandhi case (AIR 1971 SC 1002), to underscore the legal basis for the argument that the Council of Ministers need not resign along with the Cabinet’s advice to the President to dissolve the Lok Sabha. However, this judgment was not relevant in satisfying the President. U.N.R.Rao had appealed in the Supreme Court against the Madras High Court’s judgment rejecting his plea to declare that Indira Gandhi, after the dissolution of the Fourth Lok Sabha had no constitutional authority to hold office of and to function as Prime Minister. His contention was that under the Constitution as soon as the Lok Sabha was dissolved, the Council of Ministers ceased to hold office, as Article 75(3) provides that “the Council of Ministers shall be collectively responsible to the House of the People (Lok Sabha)”. Once the Lok Sabha was dissolved under Article 85(2), he argued that it would not be possible for the Council of Ministers to be responsible to the Lower House. In that event, he suggested that the President could exercise the Executive Power of the Union either directly or through officers subordinate to him as provided in Article 53(1) of the Constitution.
The Supreme Court, rejecting Rao’s appeal, held that Article 74(1) – which says “There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions’ – is mandatory, and, therefore, the President cannot exercise the executive power without the aid and advice of the Council of Ministers. However, Article 75(3) must be read as meaning that it applies only when the Lok Sabha does not stand dissolved or prorogued, the court ruled. It is obvious that this judgment was not relevant in answering Kalam’s query to the Prime Minister. Kalam wanted to know whether the Prime Minister should resign and continue as the caretaker prime minister, and not whether the President himself could run the affairs of the Government without the aid and advice of the Council of Ministers. Although Indira Gandhi’s Government did not resign along with the dissolution of the Lok Sabha in 1970 and 1977, it is reasonable to suggest that the President, on both the occasions, was prima facie satisfied –along with the rest of the nation - about the bona fide ( in ital.) reasons for the dissolutions, and did not simply accept the Cabinet recommendation because her Government enjoyed majority support in the Lok Sabha. On December 27, 1970, when the President, V.V.Giri dissolved the Fourth Lok Sabha on the recommendation of the Council of Ministers, Prime Minister Indira Gandhi, told the nation in a broadcast that a new election was necessary, a year ahead of schedule, because “we are concerned not merely with remaining in power, but with using that power to ensure a better life for the vast majority of our people and to satisfy their aspirations for a just social order. In the present situation, we feel we cannot go ahead with our proclaimed programme and keep our pledges to our people….Time will not wait for us. The millions who demand food, shelter and jobs are pressing for action. Power in a democracy resides with people. That is why we have decided to go to our people and to seek a fresh mandate from them.”
What seemed to have influenced Indira Gandhi’s timing of elections was a Supreme Court verdict, delivered only 12 days earlier, invalidating the presidential proclamation that had abolished privy purses of the princes by derecognising the former rulers. This judgment, coming on top of the earlier ones throwing out a succession of laws concerning bank nationalisation, led to intense criticism among Indira Gandhi’s supporters that the higher judiciary, determined to protect private property and vested interests, had become an obstacle to social justice, and therefore, there was need to muster enough support in Parliament to overcome the judicial hurdle to progressive legislation. By contrast, India under Vajpayee was purportedly shining and feeling good, and the ruling combine was enjoying a comfortable majority in the Lok Sabha to enact any legislation it wanted. Vajpayee made no effort to take the nation into confidence about his compulsions for dissolution, as Indira Gandhi did in 1970.
The dissolution of Fifth Lok Sabha –whose tenure was extended by a year -in 1977, prelude to holding of general elections, was necessitated to lift the Internal Emergency, proclaimed in 1975, and to revive democracy. As such there was sufficient bona fide ( in ital.) reason to justify dissolution. Indeed, the Constitution makers intended no distinction between Governments enjoying majority support in the Lok Sabha and the ones which have seemingly lost it, while discussing the draft Article in the Constitution dealing with the President’s power to dissolve the Lok Sabha. It is instructive to go through the relevant debates in the Constituent Assembly when it discussed draft Article 69 (corresponding to Article 85 of the Constitution of India, dealing with the President’s power to summon, prorogue and dissolve the Lok Sabha) on May 18, 1949. Moving an amendment, an eminent member of the assembly, Professor K.T.Shah suggested the following addition to the Article: “on the advice of the Prime Minister, if such dissolution is earlier than the completion of the normal term as provided in section 68(2); provided that the reasons given by the Prime Minister for such dissolution shall be recorded in writing.” B.R.Ambedkar, while rejecting Shah’s amendment, said: “If the object of Prof.K.T.Shah is that the Prime Minister should not arbitrarily ask for dissolution, I think that object would be served if the convention regarding dissolution was properly observed.” Ambedkar pointed out, citing the British convention, that the King was not necessarily bound to accept the advice of the Prime Minister who wanted a dissolution of Parliament.
He explained: “the President of the Indian Union will test the feelings of the House whether the House agrees that there should be dissolution or the affairs should be carried on with some other leader without dissolution. If he finds that the feeling was that there was no other alternative except dissolution, he would as a Constitutional President undoubtedly accept the advice of the Prime Minister to dissolve the House.”. Ambedkar added after rejecting Shah’s proposal for a written request from the Prime Minister: “There are other ways for the President to test the feeling of the House and to find out whether the Prime Minister was asking for dissolution of the House for bona fide ( in ital.) reasons or for purely party purposes. I think we could trust the President to make a correct decision between the party leaders and the House as a whole.” It is thus open to history to judge whether President Kalam erred in accepting the Cabinet advice to dissolve the 13th Lok Sabha in the face of clear indications that the Government was doing so to favour the ruling party and in the absence of any clear explanation from the Prime Minister stating the bona fide ( in ital.) reasons for dissolution.
In his advice to the President, Soli Sorabjee had referred to the Supreme Court’s Constitution Bench judgment in the Samsher Singh v State of Punjab (AIR 1974 SC 2192) case to drive home the point that he was bound by the Council of Ministers’s advice to him. Here, I am giving below the relevant paragraph in Justice Krishna Iyer’s concurrent Judgment in that case to suggest why Sorabjee might well be wrong. (Paragraph 156)
“We declare the law of this branch of our Constitution to be that the President and Governor, custodians of all executive and other powers under various Articles, shall, by virtue of these provisions, exercise their formal Constitutional powers only upon and in accordance with the advice of their Ministers save in a few well known exceptional situations. Without being dogmatic or exhaustive, these situations relate to (a) the choice of Prime Minister (Chief Minister), restricted though this choice is by the paramount consideration that he should command a majority in the House; (b) the dismissal of a Government which has lost its majority in the House but refuses to quit office; (c) the dissolution of the House where an appeal to the country is necessitous, although in this area the Head of State should avoid getting involved in politics and must be advised by his Prime Minister (Chief Minister) who will eventually take the responsibility for the step. We do not examine in detail the Constitutional proprieties in these predicaments except to utter the caution that even here the action must be compelled by the peril to democracy and the appeal to the House or to the country must become blatantly obligatory.”
Even as per Samsher Singh, Kalam must have been well within his powers to refuse a dissolution in 2004, because, Vajpayee’s recommendation was not accompanied by the obligatory appeal to the country, or to the House, explaining the rationale for premature dissolution.

Reflecting on Sorabjee's response to the Speaker's public lecture

The previous post focused on Somnath Chatterjee's recent public lecture where he seemed to be providing a theoretical and intellectual framework to the current struggles between the Legislature/Executive and the Judiciary, and also counselled the judiciary on its future course of action.

Predictably, the Speaker's strong message has evoked an equally forceful response. Today's Indian Express carries an op-ed by Soli Sorabjee who has long been a defender of the Judiciary, even while he has occupied the position of a law officer of the government. While reacting specifically to the Speaker's comments, Sorabjee also reiterates positions he has canvassed over a considerable period of time, in academic articles and public lectures. His views in this column consist of a mix of the traditional arguments raised in defence of judicial activism in India, as well as newer points relating to the current context. At the same time, Sorabjee attempts a point-by-point rebutall of the views expressed by the Speaker. While the piece should be read in its entirety, I focus on the following portions:

"Remember that it is thanks to judicial creativity or if you like judicial activism, that certain freedoms like freedom of the press, the right to privacy, the right to travel abroad, the right to education, freedom from cruel and inhuman punishment or degrading treatment have acquired the status of fundamental rights. This is because of Supreme Court decisions that certain unspecified rights are implicit in the express enumerated guarantees in the Constitution and can be deduced therefrom. Would any person, including the speaker, seriously quarrel with this innovative judicial technique, which has enlarged the fundamental rights of our people?

... ... ...

Another assumption in the speaker’s lecture is that courts strike down legislation because of disapproval of legislative policy. Far from it. The Supreme Court did not strike down nationalisation of banks because of its disapproval of the policy of nationalisation. Indeed the court rejected the challenge that the legislation was not in public interest. The Act was struck down because of the omission to provide for compensation under the then existing constitutional provision. The Act was subsequently amended and nationalisation went through. The Supreme Court, in its judgment in the BALCO case, has authoritatively ruled that it is not permissible for courts to strike down a policy decision on the ground that it is unwise or unscientific or uneconomic or illogical or that there could be a better policy decision.

Proper research and statistics would establish that in a vast majority of cases the Supreme Court has upheld socio-economic legislation by invoking the doctrine of presumption of constitutionality of a law and also the unreal presumption that the legislature correctly understands the needs of its people.

... ... ...

Mention of ‘we the people’ in the Preamble and the will of the people in passing a law are certainly relevant considerations but are not decisive in constitutional adjudication of the validity of the law in question. What is controlling is the mandate of the Constitution. Suppose by an overwhelming majority a law is passed which outlaws strikes and demonstrations by government employees, or which sanctions gender discrimination by prohibiting employment of women in any section of the armed forces. Are courts bound to uphold such laws, which violate the fundamental rights of workers and women, on the ground that the will of the people must prevail? Such a stand makes a mockery of judicial review by an independent judiciary, which is a basic feature of our Constitution.

Enumeration of a list of erratic orders passed in PIL makes interesting reading but is not an answer to the legitimate exercise of judicial activism in several other cases. Many over-enthusiastic impermissible judicial orders passed by the high courts have been set aside by the Supreme Court, and exemplary costs have been imposed.

The undeniable fact is that in most cases, it is on account of the lethargy or continued inaction of the executive branch that the court is constrained to direct the executive to implement the laws made by the legislature, particularly when such inaction results in violation of fundamental rights. For example, violation of the rights of children working in hazardous occupations or of the fundamental right to live with dignity of the inmates of asylums and so-called care homes.

... .... ... Let us not forget that thanks to PIL, undertrial prisoners rotting in jails for inordinately long periods, inmates of lunatic asylums and care-homes, children working in hazardous occupations have secured relief. Juristic activism in the arena of environmental and ecological issues has led to accountability in the use of hazardous technology and has yielded salutary results. For example: court’s directions regarding the use of CNG. If this be judicial activism, so be it. The executive may bemoan the court’s directions compelling it to discharge its obligation of law enforcement. The citizens rightly rejoice, because thanks to activist judicial intervention, some semblance of governance and decency in areas affecting their lives has been achieved.

... ....Vigorous exercise of judicial review, in other words judicial activism, largely depends on the prevailing situation in the country, its laws or absence of laws, the level and quality of public administration and the availability of means of redress. It is not static. It cannot be strait-jacketed into a rigid formula. The extent and intensity of judicial review depend on the subject matter of the legislation. In case of socio-economic legislation, judicial activism should be minimal. Where legislation violates fundamental rights of equality, life and liberty, and freedom of expression, judicial activism is not an option but a necessity if the fundamental rights of the indigent and the exploited are to be made living realities.

Alas! We do not live in a perfect world in which there would be no occasion for the judiciary to order the executive to perform its duty of implementing the laws. In this imperfect state of affairs, if the judiciary sometimes exceeds its bounds by passing certain orders, the same should be corrected, but that is no reason for questioning the legitimacy of judicial activism and advocating judicial restraint to the point of judicial abnegation. All said and done judicial review is the heart and soul of our Constitution. "

In making these remarks, Sorabjee appears to be responding not only to the Speaker's lecture, but also to comments made by other politicians in the aftermath of the Thakur order, about the supposed anti-democratic nature of judicial review. Despite his forceful tone, Sorabjee does not, however, endorse judicial activism in general, and concedes that the role of courts in bringing about socio-economic reforms should be limited. But, he points clearly and forthrightly to the 'elephant in the room' that Chatterjee's lecture sought to ignore - that the fundamental problem in Indian governance is not so much that the judiciary is over-enthusiastic, but that the institutions which should be governing are, for a variety of reasons, unable to do so.

In the course of his comments, Sorabjee makes the oft-cited claim that PIL has been a panacea for the Indian populace. This claim in increasingly being contested, as it is becoming evident that many PIL orders have either been ignored or under-implemented. There is also the perception among social activists that the changing nature of PIL (which is increasingly being initiated by the middle class for causes that serve its interests) is causing it to become a tool against the interests of its original constituency: the poor, disempowered and oppressed communities among Indians. Those who disagree with Sorabjee's characterisation of PIL (or would seek to moderate his enthusiastic portrayal of it) would subscribe to the views espoused in this recent editorial in the EPW:

"Of late, the judiciary is giving the impression of stepping in to fill the vacuum by often forcing the executive to take action (against the privileged sons of politicians, as in the Jessica Lal case) or compelling Parliament to enact laws (for example, to curb sexual harassment at workplaces). This has encouraged the Indian urban middle class to repose its faith in the new-found concept of judicial activism, and to wish that the judiciary replaces the corrupt legislature and bureaucracy as the benevolent authority. But there is a catch in this wishful belief. Barring a
few recent cases of judicial intervention, which have had some positive effect on governance, the Indian judiciary on the whole has not displayed any spontaneous will to act on behalf of the common people. The success stories, cited above, were the results of long legal battles by the rich relatives of the victims, or campaigns by social activist groups.

Contrary to the image of a magnanimous judiciary, judicial activism is increasingly sliding into injudicious and irresponsible judgmentsheavily loaded against large sections of the poor and marginalised. To quote a couple of instances, thousands of workers have been uprooted due to court orders to shift polluting industries out of Delhi and slumdwellers are facing removal to far outside the city as a result of a Supreme Court declaration that they have no right to notice before eviction or rehabilitation thereafter. In the short-sighted pursuit of delivering justice to some segments, such judgments are creating new long-term injustices for vaster sections of the population. Further, the breathtaking eagerness with which the judiciary has over the past decade upheld draconian laws like the Terrorism and Disruptive Activities (Prevention) Act (in 1994), the Armed Forces (Special Powers) Act (in 1997) and the Prevention of Terrorism Act (in 2004) portends an ominous future for the democratic rights of Indian citizens."

This debate points to the dire need for comprehensive and meticulous quantitative studies of the actual impact and achievements of the PIL jurisprudence of the Supreme Court. For over three decades now, opponents and defenders of judicial activism have used isolated examples to either attack or glorify the phenomenon. The need for detailed studies which help answer at least some of the questions raised seems evident. The late Professor Sathe is known to have spent several years collecting the data for precisely such a project. One hopes that the project has not been given up after his passing.

An aside: One of the interesting parts of the Chatterjee-Sorabjee exchange is how they have both sought to draw support from the views and judgments of former Chief Justice J.S. Verma to buttress their own positions. The EPW editorial, by contrast, reminds its readers that Justice Verma is also to be remembered for his contribution in another landmark case:

"A dangerous example of such judicial mindlessness was the 1995 Supreme Court benchverdict in favour of Hindutva which put the seal of approval on the politico-religious philosophy of the saffron brigade. Surprisingly enough, J S Verma, the then chief justice who headed the bench that passed the verdict, was to lament in May 2002 following the Gujarat riots that his judgment was being “misused” by many for narrow interests. In a lecture in Jabalpur recently, justice Verma asserted the need for “greater expertise and self-restraint of the judiciary…eschewing personal predilections and emotive responses.” A belated realisation when the damage had already been done! "

The EPW editorial got its facts wrong on one small point : at the time when the decision in Dr. Ramesh Prabhoo v. Prabhakur Kunte (1995) (popularly known as the 'Hindutva' case) was handed down, Justice Verma was not yet the Chief Justice of India (his tenure as CJI lasted from March '97 to Jan '98). However, the editorial is right in noting that whatever may have been Justice Verma's motivations as the principal author of the decision, it was perceived by the Hindu right parties, and by those who backed them, as a victory for their political views.