'It shows he is independent and wise'
Archana Masih and Syed Firdaus Ashraf in Bombay
K R Narayanan is being seen as the first Indian President to have
taken a stance of such political importance. "This is surely
an unprecedented move," says constitutional expert Nani
Palkhivala.
Former Presidents have withheld bills -- Rajendra Prasad, India's first President
was not in favour of the Hindu Code Bill; similarly, Zail Singh
had his reservations about the Postal Bill -- but such an instance
has never occurred before.
"The President has behaved in accordance with the Constitution
and his conscience. Kalyan Singh has proved his majority and has
the legal right to govern the state," says Bombay high court
lawyer M A Rane.
Yet, the President is bound by the advice of the prime minister
and his council of ministers. If the Cabinet decides to stick
to its decision, the President has no choice but to give it his assent.
According to Article 74 of the Constitution: There shall
be a council of ministers with the prime minister at the head
to aid and advise the President who shall, in the exercise of
his functions, act in accordance with such advice:
Provided that the President may require the council of ministers
to reconsider such advice, either generally or otherwise, and
the President shall act in accordance with the advice tendered
after such reconsideration.
2. The question whether any, and if so what, advice was tendered
by ministers to the President shall not be inquired into in any
court.
"To dismiss a majority government is not right," says
another leading Delhi lawyer, who spoke on condition of anonymity.
"As an elder statesman, the President has
asked for a reconsideration of the decision."
The situation in UP, he said, in no way represented a breakdown in the law
and order situation that justified the dismissal of the state government.
"There was lawlessness and violence in the state assembly.
This was not representative of the situation in the state. If
this government is dismissed, then each time legislators want
to bring down a government they can hammer each other up,"
the senior Supreme Court lawyer told Rediff On The NeT..
Supreme Court
Bar Association president and eminent lawyer Kapil Sibal agreed. He told Rediff On The NeT, "Kalyan
Singh had proved his majority in the assembly, and there was no way President's
rule could have been imposed in the state."
What made the argument in favour of imposition weaker still, say lawyers, is that all reports agree that the ruling BJP did not begin the violence within the assembly precincts and that, rather, it was the Opposition parties -- the Congress, the Bahujan Samaj Party and the Samajwadi Party -- that triggered it off. Therefore, for the same parties to turn around and argue a breakdown of law and order could not stand.
Argues Supreme Court lawyer Kamini Jaiswal, "The Opposition
members indulged in violence, then walked out, after they realised that they were outnumbered.
If they were not therefore present during the voting, that is not the BJP's
fault."
Jaiswal welcomed Narayanan's decision to ask the Cabinet to reconsider its decision to impose President's rule in the state. "The President
is not obliged to rubberstamp all Cabinet decisions, he can always
ask the Cabinet to reconsider a decision. And I feel that by doing
so in this case, he has hinted that the country cannot be run on the wishes of
one old man, Sitaram Kesri."
Citing the example of Gujarat where there was violence
in the assembly when Shankarsinh Vaghela faced a vote of confidence, Jaiswal said, "A similar situation arose
in Gujarat, but the federal government did not take any action then. Its decision to do so in this case
only shows that the federal government is targeting the BJP, and that is
not good for democracy."
"Constitutionally," said Supreme Court lawyer Lalit Bhasin, "the governor
has to consider all the pros and cons before writing his report
to the federal government. He cannot just ask for the dismissal of the government
because there was a breakdown in law and order. Instead, the governor could if he felt it was needed have given them one more chance to prove their
majority, instead of sending his report recommending dismissal."
Only 90 days in office, the President's recommendation has been
applauded. A recommendation, a divided United Front government
could not ignore and was compelled to revoke later in the evening.
"It shows that he is independent and wise. It even indicates
that he can take tough decisions which will have an effect on
the country," says Rane.
Another lawyer termed Narayanan as ''a breath of fresh air.'' "It
is," he said, "with such checks and balances that democracy survives."
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