The Rediff Special/S Sahay

Thank You, Rashtrapatiji

By returning the advice of his council of ministers to reconsider the recommendation that President's Rule be imposed in Uttar Pradesh and that the state assembly be dissolved, President K R Narayanan has reassured the nation that he is no more a rubber stamp, that he takes his constitutional oath to 'preserve, protect and defend the Constitution and the law' seriously.

There have been Presidents and Presidents. There was, for instance, Mr Fakhruddin Ali Ahmed who blindly signed the proclamation of Emergency imposed by Mrs Gandhi 'in his name' and reportedly took a sleeping tablet afterwards, inviting the jibe that had he taken the sleeping tablet before he signed the proclamation, there would have been no Emergency in the country.

At the other end of the spectrum was Giani Zail Singh who gave sleepless nights to Rajiv Gandhi by letting it be known that further cornered, he could dismiss the prime minister. Ultimately, Rajiv Gandhi had to beg for forgiveness.

Indian parliamentary democracy is based on the Westminister Model. Like the British monarch, the President has to act on the advice of his Cabinet, except when it comes to the appointment of the prime minister and the dissolution of Parliament.

The President's right to return a piece of advice to the Cabinet for reconsideration, but once only, is now constitutionally recognised. In returning the Gujral government's advice to impose President's rule in UP, the President has used this very right.

However, there is an added dimension to the Indian situation. The Constitution allows the central government to impose President's rule in a state in the event of the constitutional machinery breaking down in the state or to put it differently, when the government of the state is not being carried on in accordance with the provisions of the Constitution.

Who is to decide that this has happened? The wording of Article 356 is 'if the President on receipt of report from the governor of a state or otherwise, is satisfied that a situation has arisen...'

In the S R Bommai case, the Supreme Court ruled by a majority that, up to a point, the President's decision was subject to public review. The court would not go into the sufficiency of evidence but it could certainly examine total lack of evidence or mala fide exercise of power.

The court further held that the President could not dissolve a state assembly until the President's proclamation had been approved by Parliament.

The third clarification was that the judiciary was free not only to annul the President's decision in suitable cases but also to give required relief.

While making its recommendation to the President, the Cabinet is stated to have relied on the governor's report that there were doubts about the accuracy of the voting figures, especially in the manner it was procured, that there had been violence in the House and that there had been horse trading. Now, it is very well known that the governor, Mr Romesh Bhandari, is a friend of the Samajwadi Party leader, Mr Mulayam Singh Yadav and for this very reason, an enemy of the BJP. He is also governed by his own interests and depends for survival on the United Front government, which along with the Congress is arrayed against the BJP.

If Mr Bhandari were a true constitutional functionary, he would have paid some heed to the Bommai ruling, in which Mr Justice K Ramaswamy stated in no uncertain terms that the office of the governor is a vital link and channel of impartial and objective communication of the working of the Constitution by the sate government to the President of India. He has to ensure protection and sustenance of the constitutional process of the working of the Constitution in the state playing an impartial role.

'As the head of the executive he should truthfully with a high degree of Constitutional responsibility inform the President that a situation has arisen in which the Constitutional machinery had failed....' I leave it to readers to judge for themselves how truthful Mr Bhandari has been and the kind of Constitutional responsibility he has shown.

Mr Justice Ramaswamy further observed that 'the exercise of power under Article 356 should under no circumstances be for a political game to the party in power in the Union Government. It should be used sparingly and with circumspection that the government of the state functions with responsibility and in accordance with the provisions.'

If those words made no impression on Mr Gujral, nothing else will. It is said that his inclinations were not to impose President's rule, but faced with Mr Kesri's threat that support to him could be withdrawn he meekly submitted to the position taken by the Congress, the CPI-M and Mr Yadav.

Mr Gujral has shown that principles can be sacrified, but not the gaddi. The home minister, Mr Indrajit Gupta, and the representatives of the regional parties have shown greater concern for Constitutional niceties, but to no avail.

The Gujral government knew fully well that the Presidential proclamation in Uttar Pradesh would be of doubtful validity. It was reportedly so advised by the attorney general and the law ministry. Yet knowing that it would be declared unconstitutional, if taken to the apex court, Mr Gujral decided to recommend the dissolution of the assembly. Why? So that the BJP may not claim majority in a House that was kept under suspended animation and thus stake the right once again to form the government.

At the time of writing, the Union Cabinet's reaction to the President's decision is not known. If it sends back its original recommendation to the President, it will bring catastrophe on itself. If it withdraws the recommendation, it shall have redeemed itself up to a point.

In any case, Mr Gujral is in a terrible mess. Mr Kesri has gained an upper hand as never before. I would be surprised if Mr Gujral comes out unscathed this time.

I come from Bihar, and like Mr Kesri, I am a non-resident Bihari. But, both, I take it, remember the Bhojpuri saying Abra ke maugi, sab ke bhauji. (A weak man's wife is everybody's sister in-law.) Mr Gujral has reduced himself to that position.

S Sahay is a former editor of The Statesman.

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