O P I N I O N S

PERSPECTIVE

Protector of Constitution
President is not just a titular head
by P.S. Ramamohan Rao
THE last presidential election witnessed an interesting debate on the President of India’s role and responsibilities. The main issue was whether the President should be a political veteran serving as a mere titular head of state or an eminent person above the dust and din of politics, sworn to protect the Constitution.

Illustration by Kuldip Dhiman

• Wit of the Week

OPED

Musharraf’s exit
People’s confidence in the system restored
by Kuldip Nayar
Efforts at the popular level take time to fructify. But when they do, the outcome is unbelievable. The peaceful exit of Pakistan President Pervez Musharraf is a tribute to the long struggle that the lawyers, the women, the activists and the legislators have fought against dictatorship. The victory is significant because it restores people’s confidence in their rule.

Profile
Chiranjeevi: From films to politics
by Harihar Swarup
Telugu superstar Chiranjeevi will now be seen in a new role. Ending over an year-long speculation, he has announced his entry into the weird world of politics but he is not quite bidding farewell to films. He will be open to educational films only. Chiranjeevi’s career has been influenced by mighty film-star-turned politicians such as N.T. Rama Rao, M.G. Ramachandran and Jayalalitha.

On Record
Centre succumbed to pressure: Jaitley
by Faraz Ahmad
Arun Jaitley is the modern, suave, articulate face of the BJP, fielded by the party whenever it has to score a major point over its opponents. However, since Rajnath Singh assumed the party presidentship, Jailtey
has been pushed slightly into the background. But Jaitley has familial ties with Jammu through marriage and therefore on the Jammu issue he is the BJP’s pointsman.

PERSPECTIVE

Protector of Constitution
President is not just a titular head
by P.S. Ramamohan Rao

THE last presidential election witnessed an interesting debate on the President of India’s role and responsibilities. The main issue was whether the President should be a political veteran serving as a mere titular head of state or an eminent person above the dust and din of politics, sworn to protect the Constitution.

According to the Indian Constitution, the President is elected by an electoral college consisting of the elected members of both Houses of Parliament and elected members of all the State Assemblies (Article 55). The Government of India’s executive power, vested in the President (Article 53), is to be exercised with the “aid” of and in accordance with the “advice” of a Council of Ministers (Union Cabinet) headed by the Prime Minister (Article 74).

In the states, the Governor is appointed (not elected) by the President and holds office during his pleasure (Articles 155 and 156). A Council of Ministers (Cabinet) with the Chief Minister at the head “will aid and advise him in the exercise of his functions except in so far as he is by and under the Constitution required to exercise his functions or any of them in his discretion” (Article 163(1)).

The subject matter or the manner of exercise of his discretion is left to his own decisions and can’t be challenged even in a court (Article 163 (2)). Of course, some areas of discretion are enumerated in the Constitution itself. But in respect of Article 356 regarding President’s rule or Article 200 reserving legislation, impinging on the position of the High Courts, for consideration by the President, his discretion and independence from the Cabinet are recognised by implication.

The ambit of constitutional authority of the President and Governor was definitively spelt out by the Supreme Court in Shamsher Singh’s case which was decided through two separate but concurrent judgements in 1974. In his judgement, Justice V.R. Krishna Iyer declared the law to be “that the President and Governor…exercise their formal constitutional powers only upon and in accordance with the advice of their ministers save in a few well known exceptional situations” in which action, independent of the advice of the Cabinet is compelled by the “peril to democracy”.

Selectively, he cited such situations as choice of the Prime Minister (Chief Minister) subject to the paramount consideration of the choice commanding majority in the House; dismissal of a government which refuses to quit on loss of majority in the House; and dissolution of the House to obtain a fresh mandate from the people.

In November 2004, a five-member Supreme Court Bench further expanded the scope of the Governor’s discretionary authority in the case of MP Special Police Establishment vs State of MP and others. This case arose out of the Governor’s sanction under section 197 Cr PC to prosecute two ex-ministers of MP under Section 13 (1) (d) read with Sect 13 (2) of the Prevention of Corruption Act and criminal conspiracy (Section 120 B IPC) on the basis of a report from the Lok Ayukta, though the Cabinet advised him to the contrary.

The judgement, delivered by Justice S.N. Variava relied on the Shamsher Singh case as also the Antulay case (1982) in which the court held that in a case requiring the Governor’s sanction to prosecute the Chief Minister, the Governor would have to “as a matter of propriety, necessarily, act in his own discretion”. He ruled that “in cases where a prima facie case is clearly made out and sanction to prosecute is refused or withheld, democracy itself will be at stake”.

Worthy of mention in this context is the proposal of the Drafting Committee of the Constituent Assembly for direct election of the Governor by the people. It specified discretionary jurisdiction relating to law and order; summoning and dissolution of the State Assembly, superintendence and control of elections and appointment of members of the State Public Service Commission and the Advocate General. However, the Constitution, as finally adopted, opted for the appointment of Governor by the President and yet invested him with an implied but limited discretionary jurisdiction which was denied to the President.

The different construction and wording of Articles 74 and 163 seem to create the anomaly that the Governor, a mere appointee of the President and remaining in office at his pleasure, has a wider discretionary authority than the President himself who is elected by an electoral college which represents the nation as a whole by transcending political parties. It appears incongruous and undemocratic that the Prime Minister whose electoral mandate is much narrower than that of the President should be all powerful.

Their oaths of office under Articles 60 and 159 respectively require the President and the Governor to preserve, protect and defend the Constitution and the law. Under Article 61, the President can be impeached if he acts in violation of the Constitution. Therefore, should the President act on the advice of her Cabinet in any matter even if it appears to her either in her own judgement or on the basis of expert advice, contrary to the Constitution? Is the mere return of the advice for reconsideration enough? What if the Cabinet reiterates its position? Of course, the President could threaten to resign but how many times can she resort to this ultimate moral weapon? Consequently, there is need to empower the President with a discretionary jurisdiction covering the following areas:
Where her oath comes in conflict with the Cabinet’s advice and there is “peril to democracy” as pointed out by the Supreme Court.
Where the Centre is an interested party in a matter relating to a state and when it is governed by a different political dispensation.
While the President will be bound by the Cabinet’s advice in regard to implementation of the government’s legislative policy and concomitant executive functions, she should have freedom in matters relating to administrative action unconnected with policy in which the Cabinet’s advice smacks of partisan political interest.
Appointments to constitutional offices which by their nature are required to be independent and politically neutral.
Inclusion of persons under cloud in the Council of Ministers and/or their continuance in office. The British Monarch exerts moral influence in this regard.

The writer is a former Governor of Tamil Nadu.

Wit of the Week

I was able to show that even Indian grapplers are no pushovers on
the world stage. We can give better results if we are provided with
better facilities.

— Sushil Kumar who won bronze for wrestling in Beijing Olympics

From sweat to blood, we’ve shed everything for this moment. All we need is a dream and we must work towards it. Everything will follow.

— Vijender Kumar who won bronze in boxing

I am here. I will not run away. I am not a panchhi who will run away from Pakistan…I feel relaxed now because there is no hurry of going to office on time.

— Pervez Musharraf who quit as Pakistan President

We don’t want to come to an area where we perceive that we are unwanted...I can’t bring our managers and their families to Bengal if they are going to be beaten.

— Ratan Tata in Kolkata

Not only do I think I’m a desi, but I’m a desi. I became an expert at cooking dal and other ethnic dishes, though somebody else made the naan.

— Democratic presidential candidate Barack Obama in San Francisco

It’s a big joke that though I have 17 MLAs in the Jharkhand Assembly, these ministers (all the nine Independents including Chief Minister Madhu Koda) start to boss me around. Ise kehte hain maal nawab ka, aur mirza khele Holi.

— JMM Supremo Shibu Soren

The situation is pathetic today. Former President A.P.J. Abdul Kalam told me that as youth, students and general public don’t have a good opinion about politics and our political leaders, people like me should join politics. That was the turning point and I decided to take the plunge.

— Telugu superstar Chiranjeevi

I am a peripatetic poet…You can’t possibly continue to be young if you
are bogged down by what is happening around you. You have to find
avenues to enthuse yourself and writing is just one of those things that
one likes to do.

— Union Science & Technology Minister Kapil Sibal

OPED

Musharraf’s exit
People’s confidence in the system restored
by Kuldip Nayar

Efforts at the popular level take time to fructify. But when they do, the outcome is unbelievable. The peaceful exit of Pakistan President Pervez Musharraf is a tribute to the long struggle that the lawyers, the women, the activists and the legislators have fought against dictatorship. The victory is significant because it restores people’s confidence in their rule.

Unfortunately, India’s National Security Adviser M.K. Narayanan remarked even before Musharraf submitted his resignation that the latter’s exit would create “a vacuum” for radical extremists to exploit. But the general opinion in India is not what Narayanan says. Foreign Minister Pranab Mukherjee has corrected him with the statement that the Musharraf issue is an internal matter of Pakistan. He has even clarified that the peace process between the two countries will not stall.

Mukherjee may be right. But no solution of Kashmir is possible until the new government — the general elections are due in January-February — takes over in New Delhi. In Pakistan itself, the coalition has yet to settle down to be able to take far-reaching decisions. The manner in which both Kashmir and Jammu have exploded indicates that the six-month period between now and the general election may be too long. Still there is no alternative because the governments on both sides have to be stable.

It is more than a year when Maulana Fazl Rehman asked me at Delhi whether Musharraf would go. This was the time when the debate on his giving up the khaki dress was raging in Pakistan. I told him that Musharraf would go, but not the fauj. I wish to be proved wrong.

No doubt, democratic forces have won. But this may turn only to be a pyrrhic victory if they do not send back the army to the barracks. The resignation of Musharraf is the demolition of the army’s first line of defence. Many more bankers need to be pulled down. People have to make sure that democracy, which is beginning to take roots in Pakistan, is not uprooted again. The popularly elected governments of Zulfikhar Ali Bhutto and Nawaz Sharif were ousted through the military coups. Where is the guarantee that it would not happen again?

I asked a similar question from Zulfikhar Ali Bhutto when he was at the helm of affairs after the creation of Bangladesh. He assured me that his men would come on the streets and face the Army tanks. It did not happen that way when General Zia-Ul-Haq first detained him and later hanged him.

 The only way to keep the military out is to strengthen the institutions and to build up people’s faith in them. At present, the military in Pakistan has the last word. It has extended its stronghold even on trade and commerce. Corporations by ex-military hands dominate the 70 per cent of the Pakistan’s business and the real estate. Government contracts first go to them. No democratic government can connive at this state of affairs. The military’s rule is to defend the country, not to administer it.

Institutions are important for a democratic polity. Musharraf demolished them to establish his personal rule. I am sure, the two main political parties — the Pakistan People’s Party (PPP) and Nawaz Sharif’s Muslim League — will take immediate steps to make at least the judiciary independent. That means reinstall the judges dismissed by Musharraf.

Once this happens, the message will go round that people have asserted themselves to have the judiciary restored to its original prime glory. The differences between Zardari and Nawaz Sharif on this point can endanger the polity itself.

Yet the important point which remains is how to delete from the legal lexicon “the Doctrine of Necessity” which was used by Chief Justices to justify the military take-over in the past. It began with Chief Justice Munir, who invented the doctrine to legalise the coup of General Mohammed Ayub and continued in the case of General Pervez Musharraf who ousted the elected Prime Minister Nawaz Sharif. The reinstated judges, including the Chief Justice, should announce that the Doctrine of Necessity was wrongly expounded and that they would have nothing to do with it.

The exit of the military dictator in Pakistan may have an effect in Bangladesh. The army at Dhaka would have to quit sooner or later after holding free and fair elections. Democracy is the culture which the subcontinent has come to imbibe. Fundamentalists have their own agenda, but they cannot replace democracy with some outmoded thoughts because people in Bangladesh are a liberal lot.

Even before Musharaff resigned, some of us who lighted candles on the night of August 14-15, expected that something like that would happen. This time some 50 people came at midnight at the Wagah border, with lighted candles in their hands. Despite our efforts — and prayers — it did not happen all these years. It was apparent that democracy had returned to Pakistan.

Before August 14, we got the message that co-chairman of PPP Asif Zardari, Muslim League’s Nawaz Sharif and Information Minister Sheri Rehman would join us at the Wagah border to light candles. Apparently, the consultations on the impeachment of Musharraf kept them away. Choudhary Manzoor, a confidante of Zardari, led the group to the border.

Now that the ice has been broken, we shall make efforts to have the prime ministers of the two countries shaking hands at the zero point in the presence of some others. This meeting, if it takes place, would demolish the wall of enmity that has come up on the border after the partition.

Were the Ministry of External Affairs to tear a leaf from the BSF and adopt an attitude of cooperation, the contact between the people on two sides would increase and lessen bias and prejudice. Visas should be issued liberally. In fact, there is deterioration. Now even the duration of SAARC visa which facilitates the travel of MPs and top journalists has been cut to one year. The number of places has been restricted. In India they can visit only three places, while Pakistan, is still more liberal and allows visits to eight cities. The wings of Intelligence agencies will have to be clipped because at present they are the final authority.

That the border should be made soft has been the demand on both sides for years. Apparently, that does not seem to be possible at present. At least, the travel from one side to the other should be made easy. Now that the Pakistan government
has made some gesture to allow people to go to the zero point even at midnight should be seen by New Delhi an opportunity to liberalise visas. But it is more cussed than Islamabad.

Profile
Chiranjeevi: From films to politics
by Harihar Swarup

Telugu superstar Chiranjeevi will now be seen in a new role. Ending over an year-long speculation, he has announced his entry into the weird world of politics but he is not quite bidding farewell to films. He will be open to educational films only. Chiranjeevi’s career has been influenced by mighty film-star-turned politicians such as N.T. Rama Rao, M.G. Ramachandran and Jayalalitha.

The question that is being asked is whether he can recreate the magic of NTR, who stormed to power within nine months of floating the Telugu Desam Party in 1983. While Telugu Desam may claim the legacy of NTR, Chiranjeevi may prove to be a strong contender. Significantly, film stars from South have chosen politics after attaining stardom. Tamilian celluloid heroes — MGR and Jayalalithaa — have garnered much political capital out of their respective film careers. They are Chirvanjeevi’s role model.

What motivated Chiranjeevi to take to politics? It was a home guard in Khammam and an IT couple in Hyderabad that motivated him to join politics. In Chiranjeevi’s words, “I received a letter from a home guard in Khammam, just before he
committed suicide”. He expressed his anguish that he could not see me enter the arena of politics.

There was another letter from an IT couple. In the words of Chiranjeevi: “They too ended their lives for reasons unknown. But before they did so, they wrote to me, saying that they were sorry they could not vote for him in the election”. He says, “one would think of one’s personal problems at such time. But here, they were thinking about me and why I was not in public life”. Former President A.P.J. Abdul Kalam too inspired him to join politics.

Chiranjeevi was called by different names at different stages in his life. At the high school level, he was called K.S.S.V. Prasad. During his college days, he was known as Prasad. His home name was “Shankar Babu”.

He had a dream one night in which Lord Hanuman called him Chiranjeevi. He narrated the dream to his mother. She advised him to change his screen name to Chiranjeeevi. Incidentally, in mythology, Lord Hanuman is also called Chiranjeevi.

From a tiny village in coastal Andhra Pradesh to stardom in tinsel town and then to politics has been a long journey for 53-year-old Chiranjeevi. The first half of 90s peaked Chiranjeevi’s career graph to soaring heights for every movie released becoming huge box office hits. After the success of so many movies, his fans lapped up the title of Megastar which is used even to this day.

Owing to phenomenal success of his movies, expectations about his films box-office were very high. In April 2002, the master movie Indra was released in more than 200 theatres in Andhra Pradesh. The movie opened to packed theatres and went on to become one of the biggest hits of Chiranjeevi’s career.

It truly reinvented the star in him and rejuvenated all his fan clubs. Amitabh Bachchan described him as the “King of Indian Cinema”. Chiranjeevi was honoured with the Padma Bhushan in 2006.

On Record
Centre succumbed to pressure: Jaitley
by Faraz Ahmad

Arun Jaitley is the modern, suave, articulate face of the BJP, fielded by the party whenever it has to score a major point over its opponents. However, since Rajnath Singh assumed the party presidentship, Jailtey has been pushed slightly into the background. But Jaitley has familial ties with Jammu through marriage and therefore on the Jammu issue he is the BJP’s pointsman.

The Tribune, therefore, decided to meet him with the long-term issues agitating people’s mind over the whole controversy and the role of the BJP and the RSS in it. Excerpts of the interview:

Q: Muslim/separatist appeasement by the UPA government is going to be your main election plank for the next general elections?

A: I don’t think the issue at the moment relates to the Muslims in India at all. No Muslim in India has opposed the grant of pilgrim facilities to the Amarnath yatris. No Muslim in India has said that the Ram Setu should be demolished. It is the UPA government which has been unable to handle this issue. On the Ram Setu issue, it has come under pressure of its DMK allies. And on the Amarnath pilgrims facilities, it has come under pressure of the separatist groups.

Therefore, it would be appropriate to say that a weak government can succumb to any pressure. It succumbs to pressure when it is soft in dealing with terrorism. Today it is soft in its approach in dealing with separatists.

Q: Have you managed to get the RSS on board on this issue?

A: Well, the RSS has a strong perception on issues of India’s national interest. These are issues on which most nationalists of India think on the same lines.

Q: Aren’t you subtly and implicitly pushing Jammu, Kashmir and Ladakh region towards trifurcation of the state which was articulated during the NDA rule?

A: The NDA and the BJP were never in favour of trifurcation. Incidentally, the problem of Jammu and Kashmir at the moment is not because of allotment of land to the Shrine Board. That is only a false pretext that the separatists have built up.

There have been two falsehoods on the basis of which the entire separatist movement in J&K has been revived. The first falsehood was that Hindu colonisation would take place in Baltal. The second is that there is an economic blockade on
way to Srinagar. Both are palpably false. This was only to be used temporarily
for a limited purpose, as far as the land is concerned. There was never any
economic blockade.

The Government of India completely failed to counter this propaganda when it started. The mainstream political parties failed to counter this propaganda when it started. As a result, the separatists almost had an exclusive monopoly in shaping public opinion according to their desires.

Q: There appears to be some subtle unannounced changes in your party organisation.

A: These are all fictional camps. They don’t exist on the ground. Advaniji is the principal leader of the party today. He is our prime ministerial candidate. And therefore all of us including Rajnathji are working in that direction.

Rajnathji is the president of the party and therefore in the next generation he is the first among equals. He has a primacy as far as the organisation is concerned because of being the president. And that position is accepted by one and all. All respect him in that position.

Q: The basic principle of criminal jurisprudence is let a hundred people escape if it helps save the life of one innocent person from being wrongly charged or convicted. Yet today hundreds of Muslim youth are languishing in various prisons, but with the state not coming up with any evidence against them in a court of law. Can the state fight terrorism like this or will this agitate more misguided youth to plunge into this bloodbath?

A: I don’t think a situation like this under the Indian legal system can sustain where a person can be jailed without charges. If he is in jail without a charge-sheet, he has to be set free forthwith. That is the legal position. People are languishing in jails because there are charge-sheets against them and bails are being denied to them.

People get out of jail only if they are granted bail or acquitted by court. That’s how the system works. There are no generalities that you can put them behind jail without a charge. Such a question is based on a non-existent hypothesis.