Author: Pratap Bhanu Mehta
Publication: The Indian Express
Date: January 26, 2006
URL: http://www.indianexpress.com/archive_full_story.php?content_id=86594
Introduction: In some ways, the UPA govt emerges
worse than Buta Singh in the SC verdict
The Supreme Court's landmark judgment in Rameshwar
Prasad will bring some clarity to the norms governors should abide by before
recommending dissolution of assemblies. But whether it will put all controversies
to rest concerning this case, or be a catalyst for a higher political morality
remains to be seen. Predictably, the UPA government is clutching at every
straw in the judgment that will exonerate it of culpability. But read in totality,
every single argument that leads the court to rightly indict Buta Singh, should
also lead to finding the Centre more culpable. It's a little bit of a mystery
why the court does not pursue its own logic more fully.
The heart of the case against Buta Singh is
this. He acted out of mala fide and did not simply commit an error of judgment.
His over-riding purpose in recommending the dissolution of the assembly was
to prevent the formation of a government. It appears that Buta Singh was hoist
by his own petard in this matter. His letter to the president clearly suggests
that Nitish Kumar may be in a position to form a government. The ground on
which Buta Singh claims to have acted was that he was preventing the formation
of a government by fraudulent means. This, incidentally, makes the dissenting
judge's claim that no one had actually staked a majority a non sequitor. Clearly
Buta Singh was acting under the apprehension that there was someone in the
position to cobble together a majority.
Just as an aside it was worth speculating
what Buta Singh's legal position would have been if he had simply concluded
that, as best he could ascertain, no one was in a position to form a stable
government. That might still have been a subjective and debatable judgment,
but at least Buta Singh would not have provided evidence that could so easily
prove his mala fide.
But the question to ponder is this. How does
the Court decide that Buta Singh did not simply make an error of judgment
but was mala fide? Part of the answer is: he used a patently irrelevant argument
on which to base his decision. But why is acceptance of a non-sequitor, not
evidence of the Centre's mala fide? The court seems to be telling the Centre
that they should have done a better job of independently verifying the facts
before acting upon the governor's recommendations. But by the court's own
logic, this case does not actually turn upon facts. The court has, rightly,
made the argument that allegations of inducement or horse trading are neither
here nor there: in the case of fractured verdicts, all kinds of negotiations
are not only expected, they are desirable. So the Centre's fault was not that
it did not verify the facts independently. It is rather that it relied on
an irrelevant argument, just as Buta Singh had done. The governor's letter
said that he is acting to prevent the formation of a government by fraudulent
means. The "fraudulent means" argument is a red herring. The verification
of facts would have been irrelevant, the principle the Centre was acting upon
was incorrect.
Moreover the Centre, in some ways, comes off
even worse than Buta Singh. After all, as one of the dissenting judgments
in favour of Buta Singh points out, Buta Singh had actually written to the
Centre as early as April about his apprehensions of horse trading, even before
the formation of a government was imminent. So the Centre knew a few weeks
in advance about the basis of the governor's recommendations. It did not use
that time to check out whether that basis would be tenable in law or fact.
Why? Another piece of evidence to suggest that Buta Singh's action was mala
fide is the timing of his recommendation, the undue haste he showed in May.
But undue haste in coming to a decision can be foisted even more easily on
the Centre and the president than on Buta Singh. In short, every argument
used to indict Buta Singh of mala fide rather than simply an error of judgment
applies to the accepting authority even more than the recommending one. The
Congress may be relieved that the explicit strictures on its conduct are not
as serious, but there is no doubt that it is egregiously culpable in the mala
fide act.
This judgment will force governors not to
substitute their unfounded apprehensions for the exercise of genuine public
reason. It clearly lays down certain guidelines that governors will have to
follow. For instance, governors will now have to verify facts personally from
MLAs rather than rely on reports. But the judgment will by no means lay to
rest all controversies over dissolution. Although the judgment relies on Bommai,
it goes further than Bommai in one respect. In Bommai, there was a division
of opinion whether judicial review would extend to an inquiry into the truth
and correctness of the basic facts relied upon in support of action under
Article 356, or whether it would be limited to procedural aspects. This case
emphatically confirms that all materials placed before the president that
formed the basis of advice are open to judicial scrutiny.
But here is one possible uncertainty for the
future. The Centre will now be forced to independently verify the basis of
a governor's recommendations; in that sense, the office of the governor has
been considerably diminished. But imagine a scenario where a governor recommends
the dissolution of an assembly on what appears to be reasonable and legally
sustainable. It is always open to the Centre to reject the recommendation
of a governor. But would such a rejection be equally open to judicial scrutiny?
If we think the quality of the report should determine the Centre's final
recommendation, then surely every turning down of a governor's report should
also be justiciable.
This will create some intriguing judicial
cases in the future. The point is that it high time we recognised that merely
codifying more rules governing the conduct of constitutional officials through
legal judgments will not solve all our problems: it will only shift them to
different sites within the system. It is an illusion to think that any system
can function without the exercise of discretionary judgment, and the exercise
of judgment requires virtue, not simply more rules. Congress's biggest culpability
is that it is hiding behind the shield of legal formalism and not answering
to the tribunal of constitutional morality.
The writer is president, Centre for Policy
Research, New Delhi
