The presidential ‘overreach’
Dasu Krishnamoorty
The Hindu is angry with the veena-playing and Thirukkural-quoting President Abdul Kalam for turning a ceremonial post into an arena of political activism. In a very unorthodox editorial (President) full of undisguised rancour, the newspaper advised the President on what is constitutionally proper and drew a Lakshman Rekha for him to respect and avoid any future constitutional ‘overreach.’ The President has intruded into parliamentary domain, the editorial protested. The essence of the Hindu’s pique is, "The question the President has raised about the "soundness and impropriety of law" of the retrospective nature of the Bill’s exemptions and the suggestion that there can be India-wide application of the generic and comprehensive criteria (thus treading on the toes of legislative assemblies of States and Union territories) are questionable, if not unsound." The President’s office later made the position clear.
In the cause of objectivity, I tried to see if there were other editors, columnists and readers who were as upset as the Hindu was. Nearly, everyone seemed to be on the side of the ‘activist’ President whose fault was, in the eyes of the Hindu, to try to match a former President in activism. Forget for a while that K. R. Narayanan and N. Ram jointly crafted a new tradition of a newspaper interview replacing the half a century-old convention of R-Day-eve address to the nation.
The reference of a bill to the President for assent implies he has the power to say yes or no. He did what he did after consulting the best legal and judicial brains in the country. Several presidents did it earlier, indicating that Kalam was not trying to be a pioneer in saying no. The Congress has conceded that the President has every right to raise questions about any bill sent to him by Parliament. Mukund Padmanabhan of the Hindu wrote (29 June 02), "The ‘power’ to return, which is essentially a demand that Parliament or Cabinet reconsider its decision is an important discretionary power." Other newspapers too agreed that Dr. Kalam had acted under powers Article 111 of the Constitution conferred on him. Noted Supreme Court lawyer K. K. Venugopal (Express) thought, "Article 111 of the Constitution expressly reserves to the President the right to return a Bill, for reconsideration by Parliament. This is the first time that President Abdul Kalam has exercised this prerogative."
The Hindu dragged the President into the vortex of this controversy saying that the Rashtrapati was pitting "his constitutional and political wits" against key decisions made by the Cabinet, not to mention Parliament. I leave it to Shekhar Gupta (Editorial) to repudiate this charge: "This is an extremely dangerous and risky approach. And it is not merely because this President is not a politician. Never was, and never will be. Do those who advocate presenting him an arrogant fiat accompli understand the implications if he, rather than go along and subject himself to humiliation as he did with Buta Singh in Bihar, decides to listen to his conscience, and walk away, leaving it probably for a lesser person to put his rubber stamp, a dhobi mark on what is, arguably, one of the most self-serving pieces of legislation passed by our political class?"
All the Hindu bile can be traced to its dread that the Bharatiya Janata Party would return if there was no bill. That is the meaning of the allegation that "through his ill-advised overreach President Kalam seems to have played into the hands of the main opposition party" which has demanded that the Election Commission expedite all pending complaints against the MPs within a week. It’s a snide remark that implies Kalam is beholden to BJP because it made him the president. Did Shekhar Gupta have this remark in mind when he said, "Now, there is a suggestion that it (the Election Commission) is inclined towards the BJP?" Or, is the Hindu peeved that the BJP had ignored Narayanan for a second term and favoured Kalam?
For similar activism, the Hindu had paid front page tribute to K.R. Narayanan on his death. Its editorial hailed the former President for not flinching from doing what he considered right — "whether it was joining a queue of citizens to cast his vote or creatively interpreting and exercising presidential discretion or speaking his mind on issues that mattered. Not all of this went down well with those brought up on the notion that heads of state were figureheads." If Citizen Narayanan could be exempted from being a figurehead, why not Kalam, who also did not flinch from doing, what he thought, was right?
India Today (1 Feb, 1999) carried a story that showed that Narayanan was not a figurehead. There was a controversy about Narayanan sending a communication to the government on affirmative action regarding appointment of judges. IT editorial said, "The point, while well taken, skirts the basic issue. President Narayanan didn`t stop at suggesting that the judiciary should represent a cross-section of society. He, in effect, admonished senior judges for overlooking "eligible" candidates. The conclusion is obvious: the President was charging the selection college with caste bias. It is a grave charge and one that is calculated to offend. It is also a transgression of the President`s prerogative." And, who does not know who the eligible candidates are?
There is one sentence in the Hindu editorial that hardly hides its frustration. "But substantively and contextually, his (President’s) action amounts to throwing a spanner in the politics of the country." The whole world knows that the bill is self-seeking legislation intended to save MPs who stood the risk of disqualification, resulting in a fundamental shift in the balance of power at the centre. The President has no brief to manage power equations. His emphasis is on the impropriety of lawmakers trying to repeal a previous provision that did not permit MPs to hold on to offices of profit. Sonia Gandhi’s resignation vindicates the ethical and moral basis of that provision. The President was only seeking to reverse the trend of unprincipled politics. No amount of editorial tautology can deprive the President of his advisory role.
Look at the implications of retrospective effect as Venugopal had pointed out: "A Constitution Bench of the Supreme Court had held in P. V. Narasimha Rao’s case (1998) that the finding on disqualification will relate back to the date on which the disqualification set in. In the present case, the peculiar position is, that the question whether the 54 or 56 posts relating to the 45 organizations found in the Table in the Parliament (Prevention of Disqualification Act, 1959 are offices of profit is foreclosed by the very inclusion of the said posts in the Act, which declares that certain offices of profit shall not result in disqualification."
The newspaper published 30 letters in the first three days of the editorial in its internet edition. Only two readers endorsed the paper’s view. One reader packed a lot of common sense in a single sentence. He asked: Is he (the President) expected to correct only the spelling mistakes or punctuation marks in a bill? The comparison with British monarchy, which is on the verge of disappearance, is anachronistic and betrays a shop-soiled mindset. Britain has no written constitution that can serve the purpose of comparison. The Indian president is elected and plays a greater constitutional role than the British monarch.
Contextually, the problem is really simple. This face-off could have been avoided if the Prime Minister had met the President before sending him the bill after Parliament had passed it. Granted that the ruling coalition was anxious to spare the country political turmoil, the methodology used to realize that goal was questionable. Attempts to issue an ordinance, to pass the bill in unseemly haste and to cover only such posts as MPs are already holding - show lack of political finesse and the President has done nothing beyond returning the bill and raising a few questions. Don’t forget that petitions are pending against several MPs with another constitutional authority, the Election Commission. However, all this fuss is totally unnecessary because the government is within its rights to return the bill to the President for assent, which he must endorse according to the Constitution. The Hindu’s barbs against the President could have waited for another occasion. The paper should agree that the President has no desire to repeat Bihar.