Sounds of silence

Where does the buck stop? The Supreme Court judgement explaining why it struck down the dissolution of the Bihar Assembly suggests that its effective resting place is with the state governor. Although the Court makes a few references to the Council of Ministers, the finger of responsibility doesn’t point higher up the chain of command. I find that strange and troubling. It’s also inexplicable. And I’m delighted that Fali Nariman, undoubtedly our most eminent constitutional lawyer, seems to agree.

Let’s start with the claim that the Supreme Court has exonerated the Council of Ministers. In truth, that’s not so. The Court explicitly says that the Council should have verified Buta Singh’s report before accepting it as gospel truth. So there is a sense in which the Government is faulted. But it’s not indicted and it’s not held morally responsible. It should have been.

You could argue the Government shares as much blame as the Governor. After all, the Cabinet is not simply a forwarding agency that passed on Mr Buta Singh’s recommendation to the President. It was expected to apply its own mind and judgement. That is what verifying the report amounts to. But did it do so? If it did, then clearly it accepted Mr Buta Singh’s evidence and conclusion, made them its own and then, on that basis, recommended dissolution to the President. If it didn’t, it was, at the very least, guilty of negligence, even deliberate dereliction of duty.

Now look at the facts. At the time it was well known Nitish Kumar was poised to stake a claim to form a government and Laloo Yadav didn’t want that to happen. Second, the cabinet was summoned close to midnight. Third, the recommendation to dissolve was faxed to the President in Moscow at 2.00 in the morning. None of this suggests normal functioning. It’s a cabinet acting in haste. So how can it be excused blame?

But if the Government — with the Prime Minister at its head — has to share the blame for the unconstitutional dissolution of the Bihar Assembly, what about the President? Can he be — indeed should he be — exculpated? I think not.

Writing in The Tribune on the 29th of May, Fali Nariman said it was the President’s duty “to ensure that the advice given to him was not driven by petty party considerations, as had been alleged by the Opposition, but by higher considerations of State policy, as was asserted by the Council of Ministers”. Then, Mr Nariman pointedly added: “This he could only do after he had fully informed himself of the contentions on both sides of the fractured political spectrum. But the President denied himself this opportunity. In this he erred, he gravely erred”.

What this means is that Dr Kalam signed the proclamation whilst in Moscow at 2.00 in the morning without a real chance to seek legal advice or talk to the protagonists and opponents of the decision. Rather than defer the matter for a day — or till he returned home — to acquaint himself with the full situation, he chose to act in unnecessary haste.

Yet the Supreme Court seems to have overlooked this. It also seems to have forgotten that the President could have, at least once, returned the recommendation for dissolution for reconsideration. His predecessor, Mr Narayanan, did so on two separate occasions.

I find these silences in the judgement strange, troubling and inexplicable. If we are to ensure history doesn’t repeat itself we must clearly and fairly admonish those at fault. The argument they were misled by Mr Buta Singh does not wash. They had no business to be misled. In fact, their duty was to stop him misleading and not fall into his trap, assuming he was setting one.

Because we respect the high offices of Prime Minister and President it’s our solemn duty to point out their lapses. That alone is how their dignity — and the high standards expected of them — can be protected and preserved. To gloss over their faults might seem a kindness to the incumbents — and both are honourable men — but it would lower the sanctity of the Prime Minister and President of India.

So where does this leave the Supreme Court judgement? Quite frankly, it’s inconsistent and incomplete. It doesn’t take its own logic far enough. There’s a little maxim the rest of us understand only too well which the good judges perhaps lost sight of — the buck stops at the top.

A word about last week. Several people have told me verse 9.11 from the Quran is not what Ashok Massey claims it is. He’s wrong and therefore, when I quoted him, the quotation was wrong as well. I stand corrected.