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EDITORIAL

ANOTHER ESCAPADE

This time it is the Ramgarh police station facilitating escape of five foreign militants. Going by the track record of frequent escapades or attempt to do it in the State, it appears that there is least regard for the security concerns at......more

C.T.B.T.

The much-hyped CTBT that was used for arm-twisting India and other countries by Uncle Sam stands killed for the time being by none other than its most ardent initiator. American Senate has refused to ratify it thereby humbling overzealous Clinton administration which had staked its reputation for seeing the CTBT through. As per the United ....more

An entry from the
presidential copybook

By Arun Shourie
In making his havai pulao, the Sheikhchili always uses ....more

MEN AND MATTERS
Kashmir puts off
Delhi leaders

From B L Kak
Lost in all the fuss and focus on ‘star’ constituencies in the five-phase poll was a distinction of the dubious variety. The distinction....more

Why a defeat became
a debacle?

By M. J. Akbar
Sweet are the uses of adversity. Mrs Sonia Gandhi deserves to be congratulated on her foresight. She rejected all....more

EDITORIAL

ANOTHER ESCAPADE

This time it is the Ramgarh police station facilitating escape of five foreign militants. Going by the track record of frequent escapades or attempt to do it in the State, it appears that there is least regard for the security concerns at all levels. In the instant case officials like everyone to believe that the escapees are not militants but only strayed into Indian territory and that they have since served their term and were awaiting deportation. Four Pakistanis and one Afghan cannot be casual visitors to this side of the border by any reckoning. For all one knows and the manner in which insurgency has ruled the roost during the decade, they must have been militants on way to reach their contacts in the State and it is not essential that while infiltrating every foreign militant would carry weapons. Many questions crosses one's mind asto why such type of escapades continue to recur.

First, how is it that these five foreign nationals remained in the police lock-up. They should have been in the high security jails until deportation proceedings were completed. There are another six foreign detenues in the same police station out of which four are stated to be insane while the other two were not woken up by the successful escapees due to their personal hostility towards them. The second question relates to the four insane. If they are indeed declared as such, their obvious place for lodging is the mental hospital under proper police guards. This leaves another two foreigners in the lock up at Ramgarh. Before they also escape, it is high time that they are transferred to high security jail at Kot Bhalwal which is meant for mostly foreign militants. The third question is the obvious connivance of police personnel of Ramgarh police station. The connivance could have been motivated from outside as well for handsome consideration. It is so because none of the remaining five police personnel woke up even after hearing cries of the guards who faced the combined wrath of all the five escapees. It seems enough time was allowed to them before the escape news reached Jammu and that too not from the concerned police station but from other sources. No further proof is needed for active connivance. As those in the lock up did not have any money, it is certain that enough of it came from outside to facilitate their escape. It means those who have despatched them (ISI) this side feverishly worked for their escape. That escapees had a duplicate key and sharp-edged weapons proves beyond doubt that they were no ordinary people who inadvertently crossed the border.

Fourth question is how these foreign nationals were allowed the liberty of coming out of the lock up and cooking their own meals. This proves the mili-bhagat between cops and the militants. Again, if they were not militants and their escape not pre-arranged, they would have adopted softer means rather than killing the SPO and seriously injuring another gurad besides taking away the SLR. Fifth, even as per Jammu Police Chief there have been several complaints against the Ramgarh Police Station personnel from local people. The question is why no action was taken on such complaints. There is obvious laxity at many rungs. What were the nature of such complaints? It must not be forgotten that Ramgarh is just stone's throw from international border with Pakistan. The police team at Ramgarh should have been properly selected. If such are the personnel at border post, one shudders to think how it can be like in the interior. The fifth question is the presence of Border Police in the vicinity. Even Army and other forces were supposed to be an extra alert due to coup in Pakistan. Yet they have succeeding in escaping. Such is the meticulous planning for their escapade. One really does not know when things would look up. If they go to the other side during extra alert, nothing prevents them to infiltrate at the time and place of their chosing. This is definitely not acceptable and unless these escapees are nabbed, the presumption is that they have crossed over to the other side which again brings into focus rampant complacency at all levels.

As usual, only a low level enquiry is ordered for the escapade of foreign nationals from police lock-up. Since there are many questions and ponderables which stretch beyond the police hierarchy, only high level probe can unearth the mystery of the well-planned escape. Mind you all. Escapees are not only foreign nationals but also murderers of police personnel. The gory episode demands more serious and rational probe so that those who facilitated the escape as also those behind the conspiracy are duly identified and punished besides evolving suitable mechanism as regards detention of foreigners so near the border police station.

C.T.B.T.

The much-hyped CTBT that was used for arm-twisting India and other countries by Uncle Sam stands killed for the time being by none other than its most ardent initiator. American Senate has refused to ratify it thereby humbling overzealous Clinton administration which had staked its reputation for seeing the CTBT through. As per the United Nations guidelines under whose auspices the CTBT was initiated several yeears back, the treaty to become international law and binding should have been ratified by 44 countries. These countries are the one which are either nuclear haves or possessing nuclear capabilities. It may be mentioned that treaty has been signed by 154 countries but ratification by only 44 having nuclear know how was mandatory. It is interesting to know that out of these 44, only 26 countries have ratified the Treaty so far. Those who have not ratified include Russia, China and America besides other countries who have serious reservations on it even after signing it.

As per American laws any such treaty that has serious ramification on American security concerns has to be ratified by 100 Member American Senate (Upper House) by two-third majority. In the instant case, the voting in favour of ratification was 48 and against ratification 51. This means even simple majority could not be mustered. This is largely attributed to the fact that Senate has majority Republican Senators when compared to Democrats. Again, there have been some leaks from the CIA that Russia has carried out some secret tests which could not be monitored by America. Senators are also concerned about the massive spying by China on American nuclear secrets which gives rise to the apprehensions that China could one day pose serious threat to American security and thus ratification of CTBT must be rejected. This is despite the fact that President Clinton personally requested for deferment of vote in the Senate until the next President takes over. The next presidential election is due in November next year. President as also his Foreign Secretary pleaded with the Senators to see reason and vote for the ratification of the treaty in the larger national interests. But Republican Senators have an eye on next year's presidential election and for future security concerns of American that is very salable theme for American voters. Vajpayee Government is thus minus one major ticklish issue. It is a good augury for the new Government.

An entry from the presidential copybook

By Arun Shourie

In making his havai pulao, the Sheikhchili always uses asli ghee! The counting was almost half over. One figure had come to hold as a constant: whatever the number for which leads were announced, 55 per cent of them would be running in favour of the NDA. I drew attention to this in a radio discussion, and remarked that this would give the NDA 295 to 297. A Congressman, sitting next to me, nodded in agreement. But even the next day, official spokesmen of the Congress(I) were declaring that the Congress would be the single largest party.

The line was floated first as the last bout of polling came around. I felt that it had been advanced, as so much else, on the advice of some advertising agency! "It will give a final push to the campaign," the advice would have gone. "The voter who supports us, but who feels there is no point in voting as we are not going to win in any case, will conclude, ‘Yes, there is a good chance, the Congress may win.’ He will go out and vote."

When Congress spokesmen persisted in this line even when the polling was over, I felt that they were doing so in the expectation, by then widespread in the media also, that we were heading for another hung-House, and that peddling this possibility would keep some of the parties from committing themselves to the NDA.

But midway through the counting, with that "55 per cent of leads" having become a near-constant, Sheikhchilis are getting high on their havai pulao, I concluded....

But then an even stranger thing happened. I chanced upon a very eminent person who had been called for consultations in the stratosphere. It turned out that in the vicinity of the President himself this possibility was being taken seriously, and the proposition was being advanced that the President should not recognise the NDA, and instead proceed to invite the single largest party to form the Government. Outside, the Congress spokesman -- this time in his role as some sort of an authority on matters constitutional! -- was announcing this as the one and only route which was proper for the President to take.

An advertiser’s artifice had become pulao. And with just one more stir of the ladle that dream dish had become the constitutional imperative!

How wrong those who urged this line were, how much embarrassment they would have caused the President had that outcome come to prevail and had the President acted on their counsel!

Happily the result took care of the line. It even silenced the Congress spokesman -- though that respite is just momentary, surely. For more enduring relief we have to wait upon those within the Congress who have been smarting!

But the danger that such fly-by-night constitutional experts will advance similar propositions when it suits them is far from over: opportunities for them to urge their nonsense once again, this time as lawyers "merely arguing the case on behalf of my client," can arise with hung Assemblies in states at any time. We should therefore cut out and keep handy what the position is in law.

Two sets of documents are particularly useful. The first of these is the unanimous judgment of the Full Bench of the Allahabad High Court in H. S. Jain v. Union of India [1997(15) LCD-140]. The second comprises the two letters that the President sent to Mr. Atal Behari Vajpayee on 10 and 15 March 1998 when he invited the latter to form a Government, and the press communiqué which the President’s office issued on 15 March, 1998 setting out the steps by which and the reasons on account of which he had invited Mr. Vajpayee to form a Government.

The case in the Allahabad High Court came about as a result of the fantastic manner in which the then Governor of UP, Romesh Bhandari had gone about his task. The judges unanimously struck down as wholly unconstitutional the devices by which he and the then central Government brought UP under Governor’s Rule. Among other issues, they examined the matter at hand: namely, whether the Governor is bound to invite the largest single party to form the government.

It so happened that the BJP was the single largest party. All secularists argued then that the fact that the BJP was the single largest party did not entail that the Governor must invite it to form the Government.

The Court held that the Governor was indeed not bound to invite a party just because it was the single largest party. The Governor, they ruled, is to invite that party or group of parties which is most likely to command the confidence of the House. If the party that happens to be the single largest party has an absolute majority in the House, then the Governor is bound to invite it. But if on its own it is in a minority, and there is some rival combination of parties which is liable to command the confidence of the House, the Governor would be right in inviting this combination rather than that single largest party. The Court held accordingly that Governor had been right in not inviting the BJP to attempt to form the Government -- it was the largest party, no doubt, but prima facie it had not been able to make a case that it would be able to command the confidence of the House.

It was the next step of the Governor which the Court found to be wholly unconstitutional. In arriving at this conclusion, the Court clarified some important constitutional questions, and it advanced a course which is vital.

The case of the central Government and of the Governor was that it is the prerogative of the Governor to decide -- at his discretion -- whom he will invite to form the government, that in the case at hand there was no possibility of forming any government which would have commanded the confidence of the state Assembly, and that, therefore, they had brought the state under Governor’s Rule.

The judges nailed the claim to discretion -- a claim which, as we shall see in a moment, is often advanced as if the discretion were absolute, unfettered, "full discretion," as the phrase goes. The person who is invited to form the government, they pointed out, has to have the confidence of the House, not of the Governor. The Governor has no discretion, for instance, if the single largest party or combination of parties has an absolute majority in the House: the Governor is in duty bound to invite the leader of that party or combination of parties to form the government.

When no party or combination has an absolute majority, the Governor has a more substantial role. But "discretion" is the wrong word. What he has to do is strictly circumscribed: his task is solely to assess prima facie who is liable to command the confidence of the House. That remains the criterion, the Court emphasised: the confidence that the person is to command is that of the House, and not that of the Government.

The Governor and central Government argues that different parties had remained adamant, and that there had been no combination which could have secured endorsement of the House, and that, therefore, they had brought the state under Governor’s Rule. The Court ruled that they had been remiss: they are obliged to explore "all means" for forming a viable government, and they had not done so.

In particular, they said, when the parties are not able to agree on who should head the new government, the Governor should convene a meeting of the House, inform it through a message of the impasse which has been reached, and direct it to elect a leader. As the person has to seek a vote of confidence from the House in any case, this is the right and democratic solution. Members should also be told that in the event of their not being able to settle on a leader, other remedies would become inevitable -- including the possible dissolution of the House.

The Court drew attention to several constitutional authorities who had advanced this course -- even those writing in the specific context of British parliamentary practice. It recalled the specific provision in the Japanese Constitution: Article 6 of that Constitution provides, "The Emperor shall appoint the Prime Minister as designated by the Diet."

Article 67 of the German Constitution has been commended often: that instead of expressing no-confidence in the sitting Prime Minister, to remove him members should be required to express confidence in some one else. The need for such a provision has been reinforced by experiences of the kind that preceded this election: Mr. Vajpayee was voted out, but those who voted him out could not agree on an alternative. Article 68 of that Constitution is just as salutary. It prescribes that if the House is not able to agree on a leader within 21 days, it shall stand dissolved, and new elections will be held. That kind of a provision would constitute a compelling inducement to members to abandon intransigence.

The two letters the President sent Mr. Vajpayee on the last occasion and the press communiqué his office issued explaining his decision show even more graphically how wrong the proposition was that the Congress advanced. In his letter of 10 March, 1998, the President wrote, "In so far as yours is the single largest party in the Lok Sabha and the largest pre-poll alliance, I request you to let me know whether you are able and willing to form a stable government, which can secure the confidence of the House." The President’s communication explicitly recognised pre-poll alliances as an entity. The NDA is much, much more of a pre-poll alliance than was the case of the grouping last time: all constituents had pledged themselves before the elections to a common programme as well as a common leader.

Mr. Vajpayee wrote back the same day, accepting the invitation. The President engaged in further consultations. He finally invited Mr. Vajpayee on 15 March, 1998 to form the Government. The President’s office issued a detailed press communiqué that very day setting out the procedure he had followed, and the criteria which had weighed with him.

The first sentence was the kind of over-statement the Allahabad High Court had disabused us of: "In the identification and appointment of a Prime Minister," the communiqué began, "the President exercises full discretion." The next sentence tempered the claim, but just about: "He does, however, have before him the well-established norm that the person selected to be Prime Minister should be able to secure the confidence of the House." That is not just a "norm", it is the imperative.

The subsequent paragraphs put the "largest single party" claim to rest. "When no party or pre-election alliance of parties is in a clear majority, the Head of State has, in India and elsewhere, given the first opportunity to the leader of the party or combination of parties that has won the largest number of seats, subject to the Prime Minister so appointed obtaining majority support on the floor of the House within a stipulated period of time," the communiqué stated. Implicit in this proposition were three important acknowledgments: when a party or pre-election alliance has a clear majority, its leader is bound to be invited; second, that the alliance was formed before the elections is an important consideration in its favour over something that is knocked together after the results; third, the requirement that the new Prime Minister prove his majority within a specified time would be prescribed when and if the party or pre-poll alliance does not have an absolute majority.

The communiqué pushed the "single largest party" type of claim further down in the next sentence: "This procedure is not, however, an all-time formula because situations can arise when MPs not belonging to the single largest party or combination can, as a collective entity, outnumber the ‘single largest’ claimant."

"The President’s choice of a Prime Minister," the communiqué explained, "is pivoted on the would-be Prime Minister’s claims of commanding majority support."

The communiqué then went on to set out in detail the constellation of that Lok Sabha, the letters of support and the list of supporting MPs which had been asked for and received, the steps by which other possibilities had fallen by the wayside.

That in spite of the position in law being so clear, Congress spokesmen should have been pushing the contrary line can surprise no one: their record throughout the elections would have led us to expect nothing else. But that, in spite of the rationale and steps having been so clearly delineated by the President’s office itself, and that too so recently, that the alternative could have been entertained in the vicinity of the President -- that certainly was a surprise to me.

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