Monday, 25 May 2020

President Is The Key

Updated: February 4, 2012 1:22 pm

Gujarat Lokayukta Case

BJP ON WRONG TRACK!

The Gujarat High Court has upheld the Governor’s right to appoint the Lokayukta in the state. Last year after the Governor made the appointment the Gujarat government challenged the appointment because it had not been consulted by the Governor. Now the court has upheld the appointment. In other words the Governor has the authority to act on his own without consulting the cabinet in relation to matters under jurisdiction of the Lokayukta. The Lokayukta deals with corruption which deals with violation of due law and process.

The BJP government has criticised the decision saying that it violates the federal structure and very spirit of the Constitution. The BJP is mistaken. The judgment regarding the Governor’s powers is fully in keeping with the provisions of the Constitution. Where the BJP has erred is in not attacking the government for subverting the system as revealed by this judgment.

The President of India is the ultimate authority under oath to preserve and protect the Constitution and law. All other ministers are required under oath to abide by the Constitution. BJP leader of the Opposition in the Rajya Sabha Mr Arun Jaitley told a TV channel that the Governor as the appointee of the central cabinet should not be allowed to infringe on the powers of the state government because that vitiates federalism. What he should have questioned is why and how the Governor can be the appointee of the central cabinet.

According to the Supreme Court ruling in the Dr Raghulal Tilak case (1979), the Governor in no manner can be “subordinate or subservient” to the Union cabinet. Therefore, the Governor is accountable to the President who formally appoints him. If the Governor is not subservient to the cabinet he must obviously function under orders of the President who appoints him and to whom he is accountable. As the final protector and preserver of the Constitution and law throughout the nation the President appoints his nominees to the states to likewise preserve and protect the Constitution and law under his direction.

That being so, if the Lokayukta is to be appointed solely by the Governor in the state, why should not the Lokpal be appointed solely by the President at the Centre? The issue about the President’s unused powers is like an elephant in the room. Politicians and jurists may look from side to side or up and down to overlook the sight, the elephant will not disappear. Its presence will continue to make a mockery of the system and ruin governance. Until the President plays the role indicated for the office in the Constitution disputes such as the one between Gujarat government and the Governor, the Chief Election Commissioner and the Law Ministry, the Army Chief and the cabinet, will recur with increasing frequency.

RESOLVING ARMY CHIEF’S CRISIS!

Unless the dispute between the government and the Army Chief General VK Singh regarding his correct age is quickly resolved the consequences can be far reaching and very damaging. The morale and unity of the armed forces could be affected creating serious long term implications for national security. It is astounding how this dispute was allowed to have festered for so long, and how it was allowed to erupt in the public instead of being quietly settled behind closed doors.

Regardless of whether the government was too inept or the General was too rigid, this is not the time to start a blame game.

A petition related to the dispute comes up before the Supreme Court on January 20th. It would be highly desirable if the dispute is settled amicably with immediate effect.

General VK Singh has moved the Supreme Court through a petition challenging the government’s decision regarding his age. The government is relying mainly upon an undertaking given in writing by the General that he would abide by the government’s version about his age. According to some army sources that undertaking was qualified and did not indicate blanket acceptance of the government’s decision. The General has his own formidable array or documents to prove his contention about his age. The confusion is compounded by the fact that the records related to the case maintained by the Military Secretary and the Adjutant General differ from each other! All such bureaucratic bungling can be addressed later. The immediate need is to resolve the crisis amicably and swiftly. How might that be accomplished?

There is only one practical solution that suggests itself. In his petition to the Supreme Court General VK Singh has made it clear that he would not take advantage if the Court vindicates him. He would retire as determined by the government later this year. He was concerned only with protecting his honour. In the light of this, after keeping the Prime Minister in the loop, President Mrs. Pratibha Patil as the Supreme Commander of the Armed Forces should intervene in this matter which affects national security. The President could summon General VK Singh as well as Defence Minister Mr AK Anthony to settle the issue. The government could be persuaded to accept the General’s age as claimed by him. The Army Chief could seek voluntary retirement and demit office on the appointed date this year. That could defuse the crisis immediately and amicably. Lessons to be learnt about how and why this crisis was at all allowed to linger on may be drawn later.

EC VERSUS LAW MINISTER!

Last fortnight, Union Law Minister Mr Salman Khurshid affirmed that the Election Commission (EC) was fully autonomous. This belated acknowledgment did not resolve the issue. Earlier the contentious issue about the functioning of the EC had resurfaced. The Chief Election Commissioner (CEC) Mr SY Quraishi had questioned Mr Khurshid on several issues. During the exchanges through the media between the Law Minister and the CEC, Mr Khurshid said that “every institution is under some control” and the Election Commission was under the Law Ministry’s control. He was wrong, of course. The EC is under the control of law, not of the Law Ministry.

Mr Khurshid went on to clarify that for administrative purposes such as sanctioning foreign trips the CEC required clearance from his Ministry.

Did not the mere reference to such administrative control betray political propensity to exert pressure if required?

Mr Quraishi observed that it was important for the EC to maintain the perception of impartiality in order to function effectively. The statement of the Law Minister eroded that perception. Consequently, the CEC wrote a letter pointing this out to the Prime Minister (PM). The PM responded by assuring the CEC in a letter that the government respected the Constitutional status and “functional autonomy” of the Election Commission. Sources in the EC ask what precisely is meant by “functional autonomy”.

And that brings us to the nub of the problem that continues to bedevil Indian politics and continues to be evaded alike by Indian politicians and jurists.

One cannot say whether Indian politicians are dumb or dishonest. But their continued silence over questions repeatedly raised in these columns provokes that question. How can the letter and spirit of the Constitution regarding the “functional autonomy” of the EC, and indeed of all Constitutional bodies, be observed except by making these directly accountable to the President as is indicated in our written Constitution? Thereby the cabinet and the government would not exercise control over these bodies because there could arise frequently a conflict of interest. Only the President who is above the day to day functioning of the executive would exercise such control.

The problem with allowing the President to exercise his responsibility in this matter is that it would open the door to all the functions that devolve on the office according to our written Constitution. And that would spell goodbye to our Westminster system of governance as we know it. This systemic problem will recur with increasing frequency. This space will be used to raise this question with repeated doggedness. Unless people recognize that our political system has failed and needs urgently to be reformed by reclaiming our Constitution both in letter and in spirit the crisis of governance will not abate.

By Rajinder Puri

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