Never has an Indian Presidential election been so open and unpredictable as it will be this July. There is no party, political alliance or potential group that has the numbers of assured victory for its candidate. That is why voices have been raised for a consensus candidate. Others seek a contest for the President’s election. Various party leaders are confabulating among themselves.

More than a dozen names of likely candidates have surfaced. Among these dozen names, Mr. APJ Kalam’s name has also figured. It is a tribute to his standing that for the first time since Dr. Rajendra Prasad a second term for a President is being seriously considered. Undoubtedly Mr. Kalam was rated highly by the public. Undoubtedly he has personal integrity. But nevertheless I am compelled to strike a discordant note and consider his suitability as India’s next President questionable unless some prior assurances are given.

As I have pointed out earlier the next President’s choice is crucial. The political situation the nation faces is unique. Governance has collapsed, the rule of law is in a shambles, and all political institutions are tottering. The nation faces a grave systemic crisis. The next President can be the catalyst for desired systemic change. For that reason the role of the next incumbent must necessarily differ radically from preceding Presidents.

The next President must be pro-active and capable of ensuring that the Constitution and law are scrupulously obeyed. Despite his high reputation Mr. Kalam’s first term exposed a conspicuous inability to carry out this role. If the same errors are repeated during the next Presidency the consequences for Indian democracy could be fatal.

There were two serious lapses committed by President Kalam during his tenure. I wrote at length about them when these occurred. The first lapse followed the dissolution of the Bihar assembly by Mr. Buta Singh when he was the Governor. In a highly controversial move Mr. Buta Singh recommended the dissolution of the assembly in a note to the Union Cabinet. The cabinet forwarded the Proclamation to dissolve the Bihar assembly to President Kalam for signing while he was on a trip to Moscow. The Proclamation reached the President at midnight. The President signed it and the dissolution took effect. Subsequently the decision was challenged in court. The Supreme Court ruled the Proclamation unconstitutional. The SC judgment censored mainly the Governor. But there was oblique criticism in the judgment of the Union Cabinet and the President too. It should be recalled that an earlier SC ruling had clearly stated that in no manner was any Governor subservient to the Union Cabinet. That rendered the Governor accountable to the President personally.

In the Bihar case the SC judgment recalled Justice Sawant's earlier ruling against the dissolution of the Karnataka and Nagaland assemblies. Justice Sawant had ruled:

"The President's satisfaction has to be based on objective material. The objective material must vindicate that the government of the State cannot be carried on in accordance with the provisions of the Constitution. That is a condition precedent before the issue of the Proclamation."

The SC pointed out that no objective material had been placed before President Kalam in Moscow to justify his signing of the Proclamation to dissolve the Bihar assembly. The implied SC censure of President Kalam became clearer further in the judgment which went on to observe that the President was not immune from the court’s scrutiny.

The judgment stated.

"The personal immunity from answerability provided in Article 361(1) does not bar the challenge that may be made to their (the President’s and the Governor’s) actions. Article 361(1) does not take away the power of the Court to examine the validity of the action including on the ground of malafide."

However one may excuse President Kalam for this lapse because of extenuating circumstances. The midnight decision forced on him by the Union Cabinet on an emergency basis while he was in foreign land could have persuaded him to act as he did. But the second lapse committed by President  Kalam was inexcusable.

The second lapse occurred when President Kalam signed the Office of Profit Bill to make it law. Earlier the Rajya Sabha MP Mrs. Jaya Bachchan was discovered holding an office of profit. This violated existing law. She was removed from Parliament and subsequently got re-elected after quitting from the office of profit. Later it transpired that almost 50 MPs in both Houses cutting across parties were also holding offices of profit. Had they all been expelled the UPA government would have lost its majority in Lok Sabha and be forced to resign.

Thereafter Parliament quickly amended the existing Office of Profit law in such manner that the erring MPs could retain their membership. Parliament forwarded the new Bill to President Kalam for signing. There were obvious defects in the Bill to make it constitutionally vulnerable. The President expressed his concerns and sent the Bill back to Parliament for reconsideration. Parliament re-sent the Bill to the President without alteration. While agreeing with the concerns expressed by the President it asked him to sign the Bill anyway and promised to address his concerns later by making corrections in the law after it was enacted.

President Kalam hesitated. But his former secretary Mr. PM Nair in his book, The Kalam Effect has revealed that he criticized the former President for delay in signing the Office of Profit Bill after Parliament returned it without changing the original version. Mr. Nair claimed in his book that President Kalam had no choice when the bill came to him a second time. This was an entirely flawed view. He referred to Article 111  of the Constitution by which if the President returns the Bill once for reconsideration to Parliament 'the Houses shall reconsider the Bill accordingly, and if the Bill is passed again by the Houses with or without amendment and presented to the President for assent, the President shall not withhold assent therefrom'.

What Mr. Nair overlooked was that Parliament itself accepted inadequacies in the Bill. It acknowledged the President's concerns as being valid. It assured him that those concerns would be addressed and Parliament would rectify the law through a Committee set up for the purpose.

Did Mr. Nair forget that the President is under solemn oath to preserve and protect the Constitution? Was it appropriate for him to sign a Bill when Parliament itself acknowledged that it was defective? Could not the President indicate to Parliament that signing the Bill after revision would have been the right course? 

Article 111 does not specify any time frame for the President to sign the Bill. Need one recall that President Zail Singh deliberately sat over the controversial Postal Bill and allowed it to die? The bottom line is: If Parliament compels the President should he violate his oath of office to protect the Constitution and Law or prefer to resign? President Kalam described the Office of Profit Bill’s signing as his toughest decision. Regrettably, he was not sufficiently tough.

Subsequently an MP, Mr. Dinesh Trivedi, petitioned the Supreme Court against the amended Office of Profit law. The Court prevaricated without decision until Parliament’s term ended. After the new Parliament was elected the Court gave a verdict that Parliament has the right to enact laws. It was an extraordinarily perverse judgment. The issue was whether Parliament has the right to convert a Bill which it considered defective to be made law. Thereby a Parliament consisting of many members illegally occupying their posts was allowed to run its full term because of an opportunistic government, a tardy Supreme Court and a President too weak to counter his Secretary. As a result the government which ought to have demitted office continued to govern through its full term. Surely this will earn from future historians deep contempt for our democratic system.

As the nation approaches the forthcoming Presidential election political parties should recall these episodes during President Kalam’s tenure. Will India’s fragile and damaged democracy survive the repetition of a similar experience? Let political parties choose their Presidential candidates with care. Let the candidates tell the nation how they would exercise the responsibilities and powers assigned to them by the Constitution. In the light of our past experience does not the nation have a right to know?
 
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