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Constitutional expert Chintan Chandrachud tells the stories of 10 extraordinary and dramatic legal cases, from the 1950s to the present day, that have all but faded from public memory. The book has a cast of characters that includes the who’s who of the Indian legal system. It also paints an unexpected picture of the Indian Judiciary—the courts are not always on the right side of history or justice, and they don’t always have the last word on matters before them. An extract of one of the chapters of the book—Rameshwar Prasad v Union of India:

The next case considered in this book offers a heady combination of high political drama and significant questions of constitutional law. The Rameshwar Prasad case, and the circumstances surrounding it, involves no less than two state elections, midnight phone calls to Moscow, two Supreme Court decisions (one of them under five pages, the other close to five hundred), resignations and near-resignations, and hideaways in Jamshedpur.

Lalu Prasad Yadav had administered Bihar for nearly fifteen years by the time the state assembly elections came around in February 2005. He did so directly as chief minister of the state for roughly the first half of that period. For the second half, he governed the state by proxy through his wife, Rabri Devi, who assumed the position following his resignation prompted by corruption charges. Anti-incumbency was running high, and internal rebellions within Yadav’s Rashtriya Janata Dal (RJD) were expected to impact its electoral fortunes.

Aside from the incumbents, at least four other political parties had credible aspirations of securing a substantial number of seats in the assembly. They were the Bharatiya Janata Party (BJP) and the Janata Dal United (JDU)—both part of the National Democratic Alliance (NDA), the Lok Janshakti Party (LJP) and the Congress. The Bihar Legislative Assembly had 243 seats, making 122 the magic number required to secure an absolute majority in the assembly and form a stable government. However, that number proved elusive. The elections yielded a hung assembly, with no party or alliance within striking distance of the magic number. The NDA secured ninety-two seats, while the RJD, the LJP and the Congress secured seventy-five, twenty-nine and ten seats respectively. Six other political parties secured at least one seat, and seventeen independent candidates were elected.

The governor of a state assumes heightened responsibility in circumstances where there is a hung assembly, as he has the authority to invite those that are most likely to cobble a majority to form the government. The role of Buta Singh, Bihar’s governor, therefore became crucial following the election results. Singh was ‘no novice to politics’ and had aligned with different political forces over the years—including as home minister in Rajiv Gandhi’s Congress government and communications minister in Atal Bihari Vajpayee’s NDA government. Singh held a series of meetings with political parties in the days after the election results were declared. However, he concluded that no party or alliance was in a position to mobilize a majority in the assembly. This was predominantly because the LJP, which could effectively play the role of kingmaker between the NDA on the one side and the RJD-Congress combination on the other, chose not to extend support to either.

 

Singh therefore wrote to the President of India recommending that President’s rule be imposed in Bihar, with the assembly being kept in a state of ‘suspended animation’ (this meant that although the assembly would not be dissolved, it could not transact any business). The idea was that this course of action would leave more time and space for discussions and political realignments. The President accepted this recommendation, resulting in Bihar effectively being administered by the United Progressive Alliance (UPA) government in New Delhi.

The process of political realignments envisaged by the governor was then well and truly set into motion. First, the group of seventeen independent MLAs declared their support for the NDA. Three other parties, each holding a small number of seats, followed. This took the NDA close to securing a majority in the assembly. However, in order to attain a majority, it became clear that the NDA would still require the support of some LJP or RJD or Congress MLAs. Rumours ran rife, as over a dozen MLAs from the LJP—sequestered in resorts just outside Jamshedpur—were apparently being ‘induced’ to pledge their support to the NDA.

Nitish Kumar
The people of Bihar delivered a decisive verdict in the election of October-November 2005. NDA got a majority and Nitish Kumar was sworn in as CM

As these events were playing out, Singh sent two further reports to the President. The first was sent on 27 April 2005. The governor warned that the BJP and the JDU were making concerted efforts to win over MLAs from the LJP through ‘various means’. This ‘unprincipled and opportunistic realignment’ was undesirable and would distort the mandate of the electorate, the governor said. The governor concluded with the warning that in order to avoid any further horse-trading, there may be no choice but to organize a fresh round of elections in Bihar.

Singh’s next report to the President was sent about four weeks later, on 21 May 2005. By that stage, the governor observed, one LJP MLA had already moved across to the JDU, with a large group of seventeen to eighteen MLAs expected to follow suit upon being offered allurements. The governor therefore recommended that the assembly be dissolved and fresh elections be called in the state.

The UPA government formally received the governor’s report the next day. The rumour on the street was that the BJP and the JDU were on the brink of staking claim to the government. The UPA government had just concluded its one-year anniversary celebrations, and an emergency cabinet meeting was called at 11 p.m. that evening to consider Singh’s report. The cabinet swiftly accepted the governor’s recommendation and forwarded it to President A.P.J. Abdul Kalam for his assent. The President’s assent was required for the dissolution of the assembly and the calling of fresh elections. As it happened, Kalam was in Moscow that evening as part of a four-nation official visit to Russia, Iceland, Switzerland and Ukraine. Kalam was woken up in the middle of the night in his room at the Kempinski Hotel with a request to sign on the dotted line. The UPA presumably wanted to avoid the formation of a BJP-JDU government at all costs.

Ordinarily, a government may have waited for the President to return from his foreign trip or, at the least, left more time for the President to consider the file. Absent this luxury, Kalam had three options, each of which raised its own complications. He could return the file to the UPA government for reconsideration, although he would be obliged to sign if the file were sent back to him. Alternatively, he could have waited until he returned to Delhi—but this would have involved a delay of eight days. In that time, it was likely that the government would be formed in any event. The third option was simply to sign the file, in spite of any misgivings about whether it was appropriate to dissolve the assembly in the circumstances. In a decision that he would live to regret, Kalam chose option three.

The Bihar Assembly was dissolved within hours, and pandemonium broke loose. Ram Vilas Paswan, the president of the LJP, expelled seven of his colleagues for anti-party activities. The BJP organized dharnas and road blockades in the state following the announcement. Describing the dissolution as a ‘fraud on the Constitution and murder of democracy’, it organized a fairly successful statewide strike in protest the next day. Senior leaders from the NDA demanded early elections in a meeting with the Election Commission. Now that the assembly had been dissolved, the NDA didn’t want the UPA to govern Bihar through President’s rule and wanted fresh elections called at the earliest opportunity.

Together with its political strategy, the NDA’s legal strategy was also set into motion. Four writ petitions were filed in the Supreme Court by candidates who had been elected to the dissolved assembly—one each by members of the BJP and the JDU, the third by a ‘rebel’ LJP member and the fourth by an independent candidate. They contended that the President’s proclamation dissolving the assembly was unconstitutional, as the President could not dissolve an assembly that had not yet been convened—not least on the basis of a governor’s report that was grounded in mere suspicions of horse-trading.

One of the early skirmishes involved the issue of whether, as the petitioners contended, the court could issue notice to the governor seeking his participation in the proceedings. The court concluded that it could not do so (since Article 361 of the Constitution states that the governor cannot be held answerable to a court for the exercise of his powers), but that it could nevertheless scrutinize his reports and the proclamation issued by the President. According to the Supreme Court, the governor enjoyed immunity, but his decisions and reports did not. President Kalam keenly followed the proceedings in the Supreme Court, and was not pleased with the way his decision was presented to the court. Kalam noted that the court had not been fully apprised of his discussions with the government, and the sequence of events that had taken place when he was in Moscow.

This case offered a good example of how the courts often struggle to keep up with the pace of politics. On 3 September 2005, the Election Commission announced dates for fresh elections in Bihar. Elections would take place in four phases, with voting to commence on 18 October and to conclude on 19 November. By that stage, though the writ petitions had been filed, the hearing at the Supreme Court had not even begun. This presented a quandary for the court. If it decided that the dissolution of the assembly was unconstitutional, what remedy could it offer the petitioners if the next elections were already under way or concluded? Could it re­constitute the dissolved assembly despite the people’s fresh mandate and the time and money spent on the next elections? Matters would be more complicated if the fresh mandate was vastly different from the mandate within the dissolved assembly, as the court would effectively be reinstating a government that had lost its popular legitimacy.

Ultimately, the Supreme Court swiftly concluded the hearing by 29 September 2005, over a period of six days. Political parties were left in suspense on the last day of the hearing, as the bench observed, ‘We want to allay impressions and conjectures and surmises about the time when the verdict would be delivered. Considering the nature of the cases, we will not be able to give judgment before October 18. We may come out with a short judgment, if necessary, before 18 October and the detailed judgment will follow. Otherwise, there would be one main judgment.’ This was interpreted as suggesting that the court would pronounce its decision early if the dissolution was held unconstitutional, and would do so later if the dissolution was upheld.

As it happened, the Supreme Court issued a brief order one week later, the last day before the court closed for the Dussehra break, with detailed reasons to follow. The timing of the decision aligned with the expected outcome. The court held that the President’s proclamation dissolving the Bihar Assembly was unconstitutional. However, more surprising than the outcome was the remedy. Despite the unconstitutionality of the proclamation, the court chose not to reinstate the assembly since election preparations were afoot. As the next elections had already been planned and considerable resources had been expended, no legal remedy was made available to those that filed the proceedings. (One op-ed at the time described this as akin to the court issuing a ‘conviction without a sentence’.) However, what the BJP and the JDU were denied in terms of legal remedies was compensated through the political traction that they secured upon the court’s endorsement of their position. Conversely, the court’s decision as seen as a rebuke to the governor and the President, and by implication, the UPA government.

As would have been expected, the NDA demanded the removal or resignation of Governor Buta Singh following the court’s decision. Four days after the court’s decision, Singh travelled to Delhi (ostensibly on a personal trip to visit ailing relatives). However, there was widespread speculation that Singh used the opportunity to meet with leaders from the UPA government and the Congress party to consider an appropriate response to the court’s decision. Media reports suggested that the leadership seriously considered asking the governor to resign. However, following deliberations, it was determined that Buta Singh would not be asked to resign and would continue in office at least until the Supreme Court issued the detailed reasons for its decision. The Congress leadership arrived at this conclusion after considering the possibility of Singh’s resignation being perceived as an admission of responsibility, which would not bode well for the party’s fortunes in the forthcoming elections in Bihar.

The people of Bihar delivered a more decisive verdict in the election of October-November 2005. The JDU and the BJP collectively gained fifty-one additional seats from their performance in the February elections, most of which were at the expense of the RJD and the LJP.

This gave the NDA a comfortable majority in the assembly. Governor Singh had to ‘swallow his pride’ and invite the NDA to form the government. Nitish Kumar was sworn in as chief minister. Governor Singh’s position remained vulnerable to any criticism that could be forthcoming from the Supreme Court’s reasoned decision.

The court’s reasoned decision came about two months later, on 24 January 2006, two days before Republic Day. It was argued on behalf of the four MLAs that the President lacked the authority to dissolve the assembly in circumstances where the first meeting of the assembly had not yet taken place. The logic of the argument was simple—it is impossible to dissolve an assembly that has not yet come into existence.

Chief Justice Sabharwal rejected this argument on the basis that no provision of the Constitution stipulated that an assembly could only be dissolved after its first meeting. The argument would also yield unintended consequences, for it could imply that there would be a constitutional stalemate in the event that no political party came forward to stake a claim to the government following an election. If no political party staked a claim to form the government, the assembly could not be convened, and therefore could also not be dissolved to enable fresh elections to be called.

While the court rejected the argument that the President could never dissolve a legislative assembly before its first meeting, it held that the decision to dissolve the assembly was unconstitutional in that instance. The dissolution was based exclusively on Governor Buta Singh’s reports. The governor lacked any credible material in support of his conclusion that an attempt was being made to win over opposition MLAs through bribes and other allurements.

Chief Justice Sabharwal also observed that the governor’s primary task was simply to ascertain whether a political party or alliance could form a stable government. There were well-established conventions as to the pecking order the governor should follow in inviting parties or alliances to stake a claim to form the government when a single party did not secure an absolute majority. For example, the largest pre-poll alliance would take priority, followed by the single largest party, thereafter followed by the largest post-poll alliance. The governor’s role, according to the chief justice, was not to ensure good governance or promote transparency in politics. Those were tasks that were better performed by the opposition and the electorate than the governor.

The court also made some damning remarks about the role of the governor through this episode. According to the chief justice, the governor misled the council of ministers, resulting in them advising the President to issue a proclamation dissolving the assembly. The presidential proclamation could not be justified on the ‘suspicion, whims and fancies of the Governor’. The court did not stop with the conduct of the governor, but went as far as imputing ulterior motives: ‘The action of the governor was a mere pretence, the real object being to keep away a political party from staking a claim to form the government.’

The Supreme Court’s decision was not unanimous, with two of the five judges on the panel dissenting from the majority view. According to Justice Pasayat, the governor was not obliged to remain a silent spectator in the face of attempts to form a government through dishonest means. He would have granted a wide margin of discretion to the governor: ‘However suspicious [the] conduct of the governor may be, and even if it is accepted that he had acted in hot haste it cannot be a ground to term his action as extraneous.’ For Justice Balakrishnan (who would later become chief justice), a government formed by foul means could hardly be described as a democratically elected government. In his view, the majority’s decision was antithetical to, rather than in furtherance of, democratic values.

The Supreme Court’s decision provoked serious deliberations within the Congress party and the UPA government. Any ideas of filing a petition in the court seeking a review of its decision were shot down on the basis that there was a risk the court would further reprimand the governor, or worse still, the government. Damage control was the order of the day. Given the court’s remarks about the role of the governor, Buta Singh’s position appeared untenable. Widespread expectations were that he would either resign or be removed by the government.

However, Singh remained obdurate in the initial moments following the decision. When asked about his intentions following the court’s decision, Singh indicated that he would take the Republic Day salute in Patna.

The UPA government was increasingly concerned that if it attempted to remove him or compel him to resign, there was a risk that he would turn against the government. Singh ‘knew too much’, and there was ‘no way of knowing what Singh could do, or how he could be controlled after demitting office’. It had long been suspected that the RJD (which was a member of the UPA) had pressured the UPA government to dissolve the assembly on the eve of an attempt to form the state government. The UPA government hardly wanted this confirmed in excruciating detail by one of the protagonists of this episode.

Much to the relief of the government, Singh resigned after taking the Republic Day salute on 26 January 2006.

While the Supreme Court did not go so far as to directly censure President Kalam, there were murmurs as to whether he would accept moral responsibility for what was, in the final analysis, a judgement striking down his proclamation dissolving the Bihar Assembly.

Kalam seriously contemplated resigning, going as far as discussing his resignation with his brother and his close advisers. He even kept a letter of resignation ready. It was Prime Minister Manmohan Singh who persuaded the President not to resign, stating that it could result in the UPA government itself toppling.

A governor and a state government were casualties during this episode. The President—in particular, among India’s most respected and popular Presidents—escaped only narrowly.

Lead pic: Lalu Prasad Yadav ruled Bihar for around 15 years till the 2005 Bihar polls/Photo: UNI

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