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MAKING OF THE PRESIDENT, 2012
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Introduction Madam Chairperson, Excellencies, Ladies and Gentleman. This is the fourth in the sries of talks delivered by me in the last three years on the subject of electoral reforms and the working of the constitution. (Reconciling Coalition Dharma, Good Governance and National Security (2009) was turned into an Occasional Paper, No. 9 of the IIC; Is the Constitution being constitutionally Undermined? (2010); Judicial Activism: Panacea, Bane or Boon (2010) In the last case it was my contention that the judiciary had been relatively inactive, mostly restricting themselves to lamenting on the decline in governance and other such remarks. Had they taken matters in hand the country would not be facing the prospect of the parliament and state legislatures being over-filled with legislators with serious and heinous criminal cases against them. The umber has been rising steadily with each election. The judiciary must feel responsible, while there is time, for a fair portion of the blame for the existing state of affairs. In a manner of speaking serious criminals are and will be heading ministries in practically every state and the centre as well as enacting legislation, or, more importantly, preventing enactment of essential legislation that debars them from contesting elections under Representation of People Act (1951) or other legislations to curb despoliation by various mafia type vested groups. The recent UP elections give an indication of the seriousness of the situation.
Raja Bhayia another known legislator with several criminal cases him has been made a minister in the new SP government in UP and given charge, of all ministries, Prisons. Look at the iron grip in the largest state after SP got an overwhelming majority In one of the earlier talks I had mentioned that the number of criminals presently in the Electoral College has reached such proportions that should a call be given for all legislators with criminal cases against them to unite, they can easily vote in an arch- criminal as the next president. CONTRARY TO THE COMMONLY HELD BELIEF THE PRESIDENT OF THE REPUBLIC OF INDIA IS NOT A FIGUREHEAD. HE/SHE CANNOT be deemed to be a RUBBER STAMP. ALTHOUGH SUCH TENDENCIES BECAME THE NORM WHENEVER THE PERSON SELECTED OWED THE APPOINTMENT TO THE RULING CABAL, OR IN CASES WHERE THE INCUMBENT FELT A DEBT WAS OWED FOR THE SELECTION. PRIME EXAMPLE OF PRESIDENT FAKHRUDDIN ALI AHMED SIGNING THE DECLARATION OF EMERGENCY POST-HASTE AS DEMANDED BY MRS INDIRA GANDHI IN DECEMBER 1975. THE CASE OF DR. KALAM WAS QUITE DIFFERENT, WHEN HE SIGNED THE ORDER TO DISSOLVE THE BIHAR ASSEMBLY AT MIDNIGHT WHILE ON TOUR IN MOSCOW. IT MIGHT BE RECALLED THAT THE DISSOLUTION WAS CARRIED OUT IN 2005 BY THE GOVERNOR’S COUP TO PREVENT NDA FROM FORMING THE GOVERNMENT NEXT MORNING BY TESTING THEIR MAJORITY ON THE FLOOR OF THE HOUSE. LATER, AFTER BEING CRITICISED STRONGLY FOR SIGNING THE ORDER WITHOUT DUE DILIGENCE, IN INDECENT HASTE, DR. KALAM EXPRESSED REGRET AT HIS DECISION, AND SAID IT WAS A LEARNING CURVE. EVIDENTLY, BEING OUT OF THE COUNTRY AND NOT HAVING ACCESS TO ALL THE FACTS AND INDEPENDENT ADVICE, HE FELT PRESSURED INTO SIGNING, THINKING THE EMERGENT SITUATION WARRANTED IMMEDIATE ACTION. BY HINDSIGHT IT TURNED OUT TO BE A BIG MISTAKE ON THE PART OF THE CENTRAL GOVERNMENT AND ITS PARTISAN GOVERNOR BECAUSE IN THE ELECTIONS THAT FOLLOWED THE PEOPLE OF BIHAR RETURNED NITISH KUMAR AND NDA WITH A THUMPING MAJORITY; AND HAPPILY, BIHAR HAS TURNED THE CORNER SINCE THEN. AS FOR NITISH KUMAR, HE HAS NOT LOOKED BACK AND THE MISCHIEF MAKERS THAT ORCHESTRATED THE EXERCISE HAVE PAID A HEAVY PRICE. CONGRESS AS WELL AS MR. LALU PRASAD HAVE BEEN PRACTICALLY WIPED OUT IN BIHAR AS VIABLE POLITICAL FORCES. THE PRESIDENT OF INDIA HAS ENORMOUS DISCRETIONARY POWERS IN AREAS THAT HAVE BEEN LEFT UNDEFINED. EXAMPLES ABOUND: PRESIDENT ZAIL SINGH SAT ON THE CONTROVERSIAL POSTAL BILL TILL IT LAPSED.
DURING THE LATTER PART OF RAJIV GANDHI’S TENURE AS PM, THERE WERE FEARS THAT MR. ZAIL SINGH WAS GOING TO DISMISS THE GOVERNMENT ON SEVERAL CORRUPTION ISSUES: CZECH PISTOLS CASE, HDW SUBMARINE CONTRACT KICKBACKS, AND BOFORS. ALTHOUGH IT NEVER MATERIALISED THE THREAT WAS TAKEN VERY SERIOUSLY BY THE GOVERNMENT OF THE DAY. EXTRACT: The judge’s Drama Many year ago, when I petitioned President Zail Singh for permission to prosecute former Prime Minister Rajiv Gandhi for abetting corruption in the Bofors deal, the President sought the opinion of retired Chief Justice of India YV Chandrachud. The judge, after studying my petition, opined that the prima facie case did exist. However, in the interest of stability and national interest he advised the President against granting me permission. The President complied with the advice. Had the permission been granted, the court would have admitted my petition. A Prime Minister facing a corruption case in court would have given Parliament the opportunity to address the issue. The end result of the scandal may not have been as harmful to the national interest as it became. After his retirement, President Zail Singh confessed to me that he had erred by not accepting my petition. THE CORRUPTION CASES TODAY ARE OF AN ORDER OF MAGNITUDE HIGHER THAN THOSE ON THE EARLIER OCCASION. THE GOVERNMENT IS NOT IN THE ‘LEAST’ WORRIED ABOUT PRESIDENTIAL INTERVENTION, BECAUSE THE ‘LADY’ PRESIDENT OWES HER ELEVATION TO THE LADY WHO HAS BEEN RUNNING THE COUNTRY BY REMOTE CONTROL, OVER THE HEAD OF THE PRIME MINISTER AND THE COUNCIL OF MINISTERS
THIS ASPECT IS VERY IMPORTANT FOR THE RECOMMENDATIONS THAT WILL BE MADE AT TH END OF THE PRESENTATION. THOSE WHO WISH TO GO MORE INTO THE CIRCUMSTANCES UNDER WHICH A PRESIDENT CAN ACT ON SUCH OCCASIONS CAN SEEK CLARIFICATION DURING THE INTERACTIVE SESSION. PRESIDENT NARAYANAN REFUSED TO SIGN THE RECOMMENDATIONS FOR THE ELEVATION OF JUDGES TO VACANCIES IN THE SUPREME COURT TILL A DALIT WAS ALSO APPOINTED TO THE HIGHEST COURT. IT IS SAID THAT IT WAS AT HIS INSTANCE THAT THE FORMER CHIEF JUSTICE OF INDIA MR. BALAKRISHNAN – WHO PERHAPS WAS NOT THE MOST ILLUSTRIOUS OF CHIEF JUSTICES AND IS CURRENTLY UNDER INVESTIGATION ACCORDING TO SOME REPORTS – WAS ELEVATED TO THAT BODY. THIS IS ANOTHER CASE OF DEBASEMENT OF THE HIGH OFFICE. THE POLITICAL LEADERS OF LATE WISH TO GO FURTHER BY BRINGING RELIGION INTO THE ELECTION OF THE PRESIDENT. ELABORATE HOWEVER IN WEAK COALITION GOVERNMENTS THE PRESIDENT, ESPECIALLY IF THE PERSON IS OF HIGH PERSONAL STANDING, CAN KEEP THE GOVERNMENT ON TENTERHOOKS ON SEVERAL CRITICAL ISSUES. IF NOT SATISFIED WITH ANY MATTER PLACED BEFORE HIM THE PRESIDENT CAN ALWAYS REFER THE MATTER TO THE SUPREME COURT FOR JUDICIAL OPINION OR EVEN FOR A CONSITUTION BENCH ON THE MATTER. THE PRESIDENT CAN HOLD UP THE CLEARNCE FOR THE NAME OF A GOVERNOR PLACED BEFORE HIM. THE MOST CRUCIAL DISCRETIONARY POWER OF THE PRESIDENT MANIFESTS ITSELF IN THE CASE OF HUNG PARLIAMENT. ALTHOUGH THERE IS A CONVENTION THAT THE FIRST PERSON TO BE CALLED TO FORM A GOVERNMENT AND PROVE HIS/HER MAJORITY ON THE FLOOR SHOULD NORMALLY BE THE ONE FROM THE PARTY HAVING THE LARGEST NUMBER OF ELECTED REPRESENTATIVES, HOWEVER THERE ARE VARIANTS. SIMILARLY, IT IS ENTIRELY UP TO THE PRESIDENT TO ALLOCATE THE TIME AVAILABLE TO THE LEADER SO ASKED FOR PROVING HIS/HER MAJORITY ON THE FLOOR. IT COULD BE AS LITTLE AS 48 HOURS OR SEVERAL DAYS. THE PRESIDENT’S JUDGMENT IN THIS REGARD CAN BE ENTIRELY SUBJECTIVE. NOBODY CAN QUESTION IT. THERE ARE OTHER AREAS AS WELL WHERE THE PRESIDENT, SHOULD THE INCUMBENT SO CHOOSE, NOT PLAY BALL WITH THE GOVERNMENT. IN A MORE RECENT CASE THE PREIDENT OF INDIA COULD HAVE – IN FACT SHOULD HAVE – SUMMONED THE DEFENCE MINISTER AND THE ARMY CHIEF ON THE UNSEEMLY ISSUE OF THE CHIEF’S AGE THAT DRAGGED ON INTERMINABLY IN THE MEDIA AND DIRECTED THEM AS THE COMMANDER-IN-CHIEF TO SETTLE THE ISSUE IN-HOUSE. THERE IS NO WAY THAT THE ARMY CHIEF COULD HAVE DEMURRED AFTER A PRSIDENTIAL DRESSING DOWN TO THE INDIVIDUALS CONCERNED. BUT THEN THE MANNER OF SELECTION OF THE PRESIDENT INCUMBENT HAD LEFT MUCH TO BE DESIRED. REMEMBER THAT THE PRESIDENT HAS SOVEREIGN IMMUNITY SHOULD LAW AND ORDER BREAKDOWN THE PRESIDENT CAN EXERCISE SEVERAL OPTIONS. THE FACT THT WHENEVER OPPOSITION PARTIES OR GROUPS OF INDIVIDUALS WHO FEEL SERIOUSLY AGGRIEVED OFTEN LINE UP AT THE RASHTRAPATI BHAVAN TO EXPRESS THEIR GRIEVANCES PERSONALLY TO THE PRESIDENT IS INDICATIVE OF THE FACT THAT THE PEOPLE OF INDIA FEEL THAT THE PRESIDENT IS IN A POSITION TO SEEK AN EXPLANATION FROM THE GOVERNMENT, TO ADMONISH IT, OR EVEN TO ADMINISTER SOME CORRECTIVE. THIS REPOSITION OF FAITH IN ITSELF ADDS TO THE PRESTIGE OF THE OFFICE WHICH WOULD AUTOMATICALLY BE ENHANCED WERE THE PERSON OCCUPYING THE HIGHEST OFFICE BE ONE, WHOSE PERSONAL STATURE IS OF A VERY HIGH ORDER. INDIAN PRESIDENTIAL ELECTION 2007 – REDUCED TO A ZERO SUM GAME That the downslide in the Indian polity, which has been going on for many years, is fast reaching its nadir is borne out by the manner in which the selection of the President has been conducted by the political class and, furthermore, the style in which electioneering is being orchestrated. A quick glance first at the selection procedure. The Selectors Cabal
We The People of India (The Largest Democracy in the World) had absolutely no role to play in the selection process. The political class was and remains totally immune to the voice of the overwhelming law-abiding, non-agitating, non-rabble rousing majority. Technically, since the party cabals have taken over, the people of India, at this stage of the election, are as removed from the process of electing the president as would be an astronaut sitting on the moon watching the process without in any way being able to affect it. In other words just about thirty people (the cabalists), perhaps each one having several skeletons in his or her cupboard, and many of whom are known to have subverted and continue to subvert the legal process, will decide the outcome, completely disregarding the views of one billion plus Indians. Reduced to its essentials this is the stark reality, which the people of India, the Election Commission and the Courts must face. The system worked reasonably well the way it was designed when the legislators who form the Electoral College were people of standing and when such a large percentage of them were not criminals, bootleggers, mafia dons, tax-dodgers, smugglers of people, currency, goods and the like. Evidently, something needs to be done before the next presidential election barely four months away. Under these circumstances the selection of the President in July 2012 is an important landmark. Before the political parties again politicize the highest office in the land and end up by degrading it to their own level (as was the case in 2007) the Indian public or “We the People” must act decisively to prevent a similar outcome. India has thrown up non-political, iconic figures who are not only role models but enjoy respect even across India’s frontiers. There are many such names. They include Mr. Sreedharan of Delhi Metro fame, Azim Premji of Wipro, Narayan Murthy of Infosys, and Mr. Justice JS Verma a former highly respected Chief Justice of the Supreme Court amongst others. Were a national referendum to be taken each one of them would easily garner well over 50 percent of the national vote. The figure could actually go up to 70 or 80 percent. The question then arises that if India is blessed with people of such high distinction, moral fiber, public esteem, proven competence in their chosen fields, enjoying international respect then why are the People of India deprived of their services for occupation of the highest office in the land? It is time that ‘we the people’ took the process away from the political bahubalis and coteries and made it a truly democratic one. There is still time to do so. To achieve the desired results and to prevent political chicanery from vitiating democracy at the apex the following action needs to be started immediately by all concerned. Media to start highlighting the possibilities open to the public through public pressure on each one of the legislators having an electoral college vote;
To conclude allow me to suggest Madam Chairperson (the talk was chaired by the Director, India International Centre, Dr. Kavita A Sharma) that this august institution, the IIC remains in the vanguard towards this laudable aim. Seminars, lectures, discussions and several meetings with education institutions as frequently as possible in April, May, June right up to July. The crescendo so created should reverberate across the land and the seas to the NRIs as well.
Thank you for your attention.
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