Law Minister Mr. Salman Khurshid openly defied the Election Commission’s (EC) restraining order on his advocacy of a sub-quota for minorities during the Uttar Pradesh election campaign. The Law Minister was undeterred by the EC. Sticking to his stand he reiterated he would ensure the rights of the Muslim community even if the Election Commission were to "hang" him.

The EC as a Constitutional body accountable to the President complained to Rashtrapati Bhawan by writing in a letter:

“The Election Commission of India finds it necessary and unavoidable to turn to you at this juncture for immediate and decisive intervention.”

President Pratibha Patil forwarded the complaint to the Prime Minister asking for “appropriate action”.

President Patil’s response
was totally inappropriate.

Regardless of how the PM reacts it is against the principles of natural justice to seek redress from someone subject to such obvious conflict of interest. The Law Minister is the PM’s colleague in the Union Cabinet which is chaired by him. The misconception that the President is bound by the advice of the cabinet according to the 42nd Amendment of the Constitution introduced during the Emergency by a paranoid and dictatorial PM is not relevant here.

Never mind the perverse Amendment that needs to be scrapped, even under its provisions the President is not obliged to seek the PM’s advice in this matter. The President may be bound by the advice that is tendered by the cabinet. In this case it is not the cabinet proffering advice. It is the President being obliged to give direction regarding the complaint received from a Constitutional office directly accountable to the President related to a dispute arising between the EC and a cabinet minister. 

President Patil is the only officeholder in the nation under oath to “preserve and protect” the Constitution and Law. All other officials including the PM and ministers are under oath to abide by the Constitution and to maintain official secrecy where required. Does the President’s oath of office have any relevance? If it does, there is an even graver episode involving the Law Minister that has escaped appropriate Presidential intervention.

The Law Minister in an election rally indicated that the Batla House encounter between terrorists and the police was faked and deserved a judicial inquiry. He told the audience: "When I showed her the pictures of the Batla House encounter, Soniaji wept bitterly and asked me to go to the prime minister so that something could be done," He added that the government was set to appoint an enquiry panel headed by a former chief justice to examine the genuineness of the encounter but had to abort its plans in view of the ensuing 2009 general election.

Clearly, by shooting over the shoulder of Mrs. Sonia Gandhi the Law Minister was strengthening the view expressed by the Congress General Secretary, Mr. Digvijay Singh. Mr. Singh had earlier said that the Batla House encounter was faked and it deserved a judicial inquiry. However, Mr. Singh’s opinion, as that of any citizen, is on a different footing from the same view being endorsed by Mr. Salman Khurshid. Despite his high office Mr. Singh is not a member of the cabinet. He is free to question the cabinet’s view. How that affects discipline within the ruling party is a problem that concerns the Congress and not the public. Mr. Khurshid as a cabinet minister endorsing Mr. Singh’s view is an altogether different matter. 

It might be recalled that Home Minister Chidambaram has on more than one occasion stated categorically that the Batla House encounter was genuine, and that it occurred between the police and terrorists. The Prime Minister publicly endorsed the Home Minister. It is therefore the view of the cabinet, which has collective responsibility, that the Batla House encounter was genuine. Mr. Khurshid as the Law Minister and member of the cabinet therefore also stands committed to that view. However, in his election rally he ran totally counter to his own officially held view. By opposing that view he did not simply commit indiscipline. The implications could be much graver. 

Terrorism is akin to fighting a war against the state. In the Batla House encounter two terrorists and one highly decorated police officer were killed. Article 121 of the Indian Penal Code that deals with Treason under the heading: “Waging, or attempting to wage war, or abetting waging of war against the Government of India” goes on to state: “Whoever, wages war against the Government of India, or attempts to wage such war, or abets the waging of such war, shall be punished with death, or Imprisonment for life and shall also be liable to fine.”

The question arises: Did the Law Minister commit treason by opposing what he officially believed to be a genuine encounter between the police and terrorists? This is a question that the legal advisers of the President might address. One does not know how the President will react to the dispute between the EC and the Law Minister, or to one between the Law Minister and the Home Minister.

At the start of this year I had predicted that the next Presidential election due in a few months will be fought by candidates promising pro-active roles by exercising the powers assigned to the office by our written Constitution. If that does not happen, given the cavalier fashion in which law and convention are flouted by this government, democracy in India will be dead. I do not believe that will happen. I believe that the system will be restored. It will have to conform to the intentions of the Constitution’s founding fathers. President Patil has the historic opportunity to start the ball rolling.