Friday, March 31, 2006


Kalyan Singh was Chief Minister of UP. He was illegally removed by the Governor only to be reinstated by the Allahabad High Court. This is an account of that saga. 

Raj Bhavan Lucknow picture courtesy official website of  the Raj Bhavan UP 
The Allahabad High Court has reinstated Kalyan Singh as the Chief Minister of Uttar Pradesh. It is not the most important case decided by the Allahabad High Court; but undoubtedly the most dramatic one. Here is the prelude on 21st February 1998, the day the Kalyan Singh Government was dismissed.

General elections in the State of U.P. were held in October – November 1996, but no alliance had the requisite majority to form the Government. BJP and its allies were the largest party, yet they were not called upon to form the Government. A decision was taken to extend President’s Rule, which was successfully challenged before a Full Bench (H.S. Jain Vs. Union of India 1997(1) LCD 140) of the Allahabad High Court though the operation of the order of the Full Bench has been stayed and the matter is still pending before the Supreme Court.

There was a mutual understanding between the BJP and the BSP. Mayawati became the Chief Minister on 21st March 1997. She handed over the reins to Kalyan Singh after the expiry of six months. He was sworn in as the Chief Minister on 21st September 1997. Later on Mayawati withdrew her support to the Government. The Governor wanted Kalyan Singh to prove his majority, which he did on 21st October 1997 with the help of a break-away group of 22 MLAs from the Congress who named themselves `Loktantrik Congress’ and a group of BSP MLAs calling themselves ‘Loktantrik BSP’.

The present drama began at 1.30 pm on 21st February 1998. This is what the Governor says in his order,
‘12 members of the Loktantrik Congress came to see me around 13:30 hours this afternoon. Sri Rajaram Pandey of the breakaway Janata Dal accompanied them. Ms. Mayawati, President of BSP, Shri Kokeb Mukherjee, leader of the Legislative party of the BKKP and Shri Ahmed Hassan of the Samajwadi party. Shri Pramod Tewari of the Congress Legislative party joined them. Shri Jagdambika Pal intimated that the Loktantrik Congress had withdrawn support from the Kalyan Singh Government and staked the claim to form a Government under his leadership… I received a telephone call from Shri Harikishen Singh Surjeet, General Secretary of the CPM that all CPM MLAs will support Shri Jagdambika Pal. I also received a telephone call from Shri Alok Bharati of the CPI that their one member will support Shri Jagdambika Pal…

Under this situation I have now to take a difficult decision. Do I permit a Government which is clearly in minority to test its strength on the floor of the House and thereby provide opportunity for horse trading… or swear in Shri Jagdambika Pal? …Taking all factors into account, it is my view that more stable Government is possible with lesser chances of horse trading by my inviting Shri Jagdambika Pal to form a Government and prove his strength on the floor of the House.’

Kalyan Singh was informed about this at about 2.45 p.m. He met the Governor at 5.00 p.m. along with a letter saying that his Government has got the majority of the House and requested for the floor test in the Assembly. But this was denied and Jagdambika Pal was asked to prove his majority. This letter was to prove crucial before the Supreme Court.

The Allahabad High Court is closed on every Saturday except for two Saturdays in a year. 21st of February 1998 was one such Saturday. The High Court was open. No lawyer enjoys working on Saturday. Even I don’t. I was supposed to go out of station but had to be there for a specially fixed matter (see End Note-1). It was chance that I argued Kalyan Singh Case. Had I gone out of station, which I would have but for that specially fixed matter, I wouldn’t have argued it. I was on my legs till the Court rose. It was 4 p.m. I, on my way to office, was informed that there were few telephone calls from the Chief Minister and I should wait for his call. It was at 4:45 p.m. that I came to know the reasons for his calls. He was likely to be dismissed without being given any opportunity of the floor test. We were required to do something in the matter. May be a writ petition for direction to follow SR Bommai Vs Union of India 1994 (3) SCC 1 (SR Bommai’s case). Justice Jeevan Reddy in this case had held,
‘…Whether the Chief Minister had lost the confidence of the House is not a matter to be determined by the Governor or for that matter anywhere except the floor of the House… Democracy… means… such question should be decided on the floor of the House. The house is the place where democracy is in action. It is not for the Governor to determine the said question on his own or on his verification. This is not a matter within his subjective satisfaction. It is an objective fact capable of being established on the floor of the House.’
But could we get a direction from the court; could we file a writ petition in such a short time. That was the million-dollar question.

This case was against the State Government. I could not appear. I was the Additional Advocate General for the State (see End Note-2) The first thing therefore, was to get the permission of the State Government to appear against it. This was granted and communicated by fax. Dr. Narendra Kumar Singh Gaur is the Minister for Higher Education in Kalyan Singh’s Government. He was available in Allahabad. We decided to file the petition in his name. I had read S.R.Bommai’s case earlier; nonetheless, thought it better to refresh the memory (see End Note-3); the petition had to be in light of the same. I requested one of my colleagues Vikram Nath to come over. I dictated and he typed the Petition on the computer. It is easy to correct it there. It was at 7:30 p.m. when the first print out was taken and the main petition was sworn. The rest of the prints were taken out subsequently.

All Benches were changing from Monday the 23rd February 1998. On that day there was the Bench of Justice Palok Basu and Justice DK Seth dealing with similar matters. Justice Palok Basu had not come to the Court (see End Note-4). Justice Birendra Dikshit was assigned to take his place. The court day was over. From Monday an entirely different bench was to hear similar matters. This petition could not be entertained unless and until assigned to any Bench by the Chief Justice. He was not in Allahabad and Justice RS Dhawan, the senior most Judge was in-charge. I reached his residence at 8:30 pm and waited for some time in his drawing room; he was having his dinner. I requested him to assign a Bench to hear this matter. He, realising the urgency, assigned it to the same Bench where it would have gone in case it was taken up during the Court hours, namely the Bench of Justice Birendra Dikshit and Justice DK Seth.

The case was to be taken up at an odd time. Justice Dhawan rang up Justice Dikshit to inform him about this. I thought of going out of the drawing room. But Justice Dhawan insisted that I should stay while he spoke to him. He wanted that I should know what was happening. There was no secret. I don't remember what he said but it was something of this kind,
'Brother Dikshit there is an urgent matter and I am assigning this case to a bench of yours and brother Seth's.'
There was some response from Justice Dikshit which I could not hear. Then Justice Dhawan said,
'Mr Yatindra Singh, the Additional Advocate General will come to your residence and explain. It is up to you to hear it just now or at another time.'
There was some pause. Justice Dhawan asked me when could I reach the residence of Justice Dikshit. I heard him conveying,
'Mr. Singh says he can be at your residence within 20 minutes.'
It was then that Justice Dhawan wrote down the order on the Writ Petition at about 9.00 pm. It was had written. It merely stated that the Writ Petition be presented before the Bench today at their convenience.

We reached the residence of Justice Birendra Dikshit around 9:20 pm. The counsel for the State of UP and the Union of India were already there. We had informed them earlier: Justice Seth had not yet arrived. Justice Dikshit informed me that he had spoken to Justice Seth and he would be coming at about 9.30 pm. We requested Justice Dikshit to hear the matter who, at that time, was of the view that the petition was pre-mature and should not be entertained at that stage. We requested him to form the Bench and then take a decision. Justice DK Seth came at about 9:40 pm. By this time we filed another supplementary affidavit indicating that Kalyan Singh’s Government had been dismissed (see End Note-5) and the Governor is going to administer oath to Jagdambika Pal at about 10:30 p.m.

The hearing of the case on merits started in the drawing room of Justice Dikshit’s residence. Around10:20 pm we were requested to leave the room as the Judges wanted to discuss the matter among themselves. The discussion went on for about 45 minutes. It was at 11:00 p.m. that the Private Secretary was called and some order was dictated. It was during the dictation at about 11:30 p.m. that Vijay Bahadur Singh, Advocate came and requested the Bench to hear him. He said that he had instructions from Jagdambika Pal the new Chief Minister and Chief Secretary had also instructed him on behalf of the State of UP to make submissions in the matter. He requested the Court to adjourn the case. The Court again heard the arguments of the Counsels. Thereafter we were again requested to leave the room at about 00:30 am. The news of filing the petition had spread. A crowd of about 200 waited outside the residence to hear the outcome. The day had passed. It had become 22nd February 1998. The Court again called us in at about 1.45 am and informed us that they had passed the orders. Justice Birendra Dikshit acceded to the request of Vijay Bahadur Singh and granted time to show the relevant material as well as reasoning of the Governor before passing any interim order. He granted time till 9:00 a.m. of 22nd February’98. Justice Seth held that it was a fit case in which a stay order should be granted but as Justice Dikshit had fixed 9:00 a.m he agreed to adjourn it till then.

It is for the first time in the history of the Allahabad High Court and may be for the first time anywhere in the Country that the Court opened on a Sunday and the Bench sat and heard the matter at length. The Court session began at 10:00 am. SP Gupta (see End Note-6) Sr. Advocate and Vineet Saran filed their power of attorney on behalf of Jagdambika Pal the new Chief Minister and Vijay Bahadur Singh filed an application for special appearance on behalf of the State of UP.

The strategy on behalf of the Respondents appeared to be, not to finish the case but to linger it on, hoping that the petition would become infructuous. Great emphasis was laid on the prayer claimed in the writ petition. The writ petition was filed before Kalyan Singh’s Government had been dismissed. The prayer in substance was that Kalyan Singh’s Government may not be dismissed except in accordance with law, namely till he was defeated on the floor of the House. It was during the hearing that his government was dismissed and Jagdambika Pal was sworn in as the new Chief Minister. The Court always has power to restore the position as it existed at the time of the presentation of the writ petition. But in order to avoid any technical plea we filed an amendment application during the course of the day. Some time late in the afternoon the Court requested SP Gupta to take some rest and asked me to finish my arguments in case I have anything to say.

Normally the Court gets over at 3.45 pm but the Court got up at 4’0 clock and indicated that they will assemble again to hear further arguments. The Court reassembled at 4.20 pm and the arguments resumed. The Counsel for the respondents continued his arguments till 6.00 pm. But then again requested to adjourn the case for the next day, as he was tired. The court accepted his request.

The case was again taken up at 10.00 am on 23rd February 1998. I made mention in the morning that considering the urgency some orders be passed that day. The Counsel for the respondents closed their arguments at 12.50 pm. I finished my rejoinder in ten minutes. The Court rose for lunch and indicated that they will reassemble to deliver the order.

The arguments were heard in court no. 36. It is in the corner of the High Court. We drew some solace from the fact that it was the same court where Justice JML Sinha had delivered his famous judgement unseating Indira Gandhi the then Prime Minister. A crowd of about 5000 awaited the delivery of the order. Special police force was deployed outside the High court building. It was almost impossible to enter the courtroom. I couldn’t have entered the courtroom. I was, in fact pushed inside the court. My gown was torn.

The Court reassembled at 3.30 pm. We waited for the orders of the court. The court had to repeat the orders twice. It only passed interim orders. The Court did not dispose of the petition finally as the respondents had opposed it (see End Note-7). The interim order stayed the operation of the order dismissing Kalyan Singh Government and restored the status before it was passed. The order that was pronounced was of few lines. The court indicated that they have passed a detailed order that would be available to the parties on the same day. The short order was made available immediately but detailed order was made available late after the mid-night.

We got a call from BBC as soon as we came out of the court. They were first to know the result. We rang up Kalyan Singh. His mobile did not respond. We rang up his residence. We were told he is at the General post office crossing, protesting against the illegal dismissal. I informed the person attending the phone about the Court’s order. He said,
'I am sending the message and will request Kalyan Singh to talk to you.'
I replied,
‘Don’t request him to talk to me. Request him to speak to the Governor and occupy the Chair of the Chief Minister immediately.’
Kalyan Singh had been removed. He was restored only after some drama, late in the night; the Governor passed an order to comply with the High Court’s order.

The main argument on behalf of the petitioner was, once Kalyan Singh had asserted that he has the majority of the House it was not open for the Governor to decide whether he had this majority or not. This could only be done on the floor of the House. This was on the basis of the SR Bommai’s case. The counsel for the respondents tried to distinguish this case on the ground that it related to the proclamation issued by the President under Article 356 of the Constitution. This is done on the report of the Governor whereas in the present case the Governor passed the orders himself under Articles 163 and 164 of the Constitution. The High Court did not accept this submission. It gave detailed 33-page order justifying the interim order. The court rightly held that SR Bommai’s case is applicable. The Court observed,
'Prima facie it appears that the decision (of the Governor) is based on materials which in our view cannot form material for the Governor to form such an opinion in such a serious and touchy issue in such hot haste on the eve of Lok Sabha elections scheduled to be held on 22nd February, 1998, a few hours later. It can not be ruled out that power has been exercised for purpose not warranted by law.'
Romesh Bhandari resigned as the Governor of Uttar Pradesh as soon as BJP was invited to form the government at the centre.

SR Bommai’s case had held that it is only in exceptional circumstances that the floor test could be avoided. The only ground for not permitting the floor test for Kalyan Singh was the alleged horse-trading. The High Court did not accept it. The court observed,
‘the very fact that the floor test by Jagdambika Pal having been fixed on 24th February, 1998 presupposes that floor test is possible and there was no exceptional circumstances rendering it impossible. Thus, if the floor test was possible in absence of any exceptional circumstances, it was not open to the Governor to evade floor test, though demanded by Kalyan Singh, which fact has not been denied and finds mention in the order itself. It was incumbent on the Governor to summon the house for a floor test.’

The Governor had cited the precedent of Mulayam Singh Yadav in his order. He was not given opportunity of a floor test in the previous assembly when Mayawati withdrew her support. But the facts were not similar. Mulayam Singh had refused the floor test within the time given by the then Governor and then in the meantime that shameful act in the Guest House occurred, when Mayawati clothes were torn and an attempt was made to set her on fire. It was then that the then Governor had dismissed Mulayam Singh’s Government. This case was a case with exceptional circumstances, as contemplated and in tune with SR Bommai’s case. I use moderate language. The Governor had mixed up his facts (see End Note- 8).

We knew this would not end in the High Court. Sheila Goel filed a Caveat at 4:30 PM before the Supreme Court. I was told in the evening that I should immediately proceed to Delhi. There was a plane at Allahabad, which my junior Vikram and I could take. We found there were other passengers in the plane - Officers and lawyers from the other camp. They request us, to drop them off at Lucknow. W agreed to this. One of them suggested, that we stay the night at Luknow and proceed to Delhi the following morning. On reaching Lucknow we debated whether we should stay or leave for Delhi. The person at the Airport informed us,
‘Chief Minister Kalyan Singh has said that the plane is at our disposal and we could leave for Delhi immediately.’
Some again request us to make the night halt but the hint from the Chief Minister was clear. We were to proceed for Delhi. This we did immediately. We almost reached Delhi but could not land there. The pilots told us,
‘Ice is being formed. It is dangerous to fly.’
My colleague did some thinking aloud. Was it fishy? We laughed it off and came back to Lucknow. There we got confirmation that the SLP filed by Jagdambika Pal would not be taken up in the night but at 10:30 am on the next day. Yet, we were told to be ready. We might have to leave - just in case we were needed in Delhi. This was important; we were the only ones who knew the facts as well as what had happened in the court. Our Delhi Lawyers did not even have the copy of the writ petition, which had been filed. Time was short. We could not communicate.

We reached Delhi on 24rd morning. Jagdambika Pal had filed the SLP before the Registrar of the Supreme Court at 10:00 pm on 23rd February 1998 with the request that a bench be formed immediately. But it could not be formed. The matter was taken up at 10.30 am on 24th February’98, before a specially constituted Bench comprising of Chief Justice MM Punchhi, Justice SC Agrawal and Justice KT Thomas.

The arguements started right on the dot. The Chief Justice’s court was packed. The Court heard Kapil Sibal, Counsel for Jagdambika Pal for sometime. Then the Chief Justice inquired from Soli Sorabjee, if Kalyan Singh had ever claimed majority in the House before the Governor. For the Court thought that in case he never asserted his majority but merely sought time to prove his majority then the Governor has rightly held that he was not in majority. The Supreme Court refused to look into the judgement or the assertion made in the Writ Petition and wanted to know if the Governor had mentioned it in his order.

The Governor, unfortunately, had not mentioned it. It was a very cleverly written order. The order mentioned that
‘Shri Kalyan Singh had sought time to prove his majority.’
The Court remarked,
'But this is different from saying that he [Kalyan Singh] had claimed that he had majority at that time.’
Soli had no answer. It was not his fault. There had been no time for briefing. We had never anticipated this question.

It was good that we were there. We knew the facts and what had happened before the Allahabad High Court. It was at this stage that I pointed out to the counsels: the letter given by Kalyan Singh to the Governor and the fact that this was not denied before the Allahabad High Court, they informed the court accordingly.

Justice Agarwal remarked,
‘Mr. Sibal if the Chief Minister claimed majority then how could the Governor decide that question and that too on information received on the telephone.’
There was silence for sometime. Then Justice Thomas queried,
‘How does the Governor say that there would horse trading if Kalyan Singh is asked to prove the majority and not if Jagdambika Pal is asked to do so?’
Kapil Sibbal answered,
‘Simple, Kalyan Singh has no majority where as Jagdambika Pal has’.
All smiled; he was trying to put cart before the horse.

The Court after some deliberations thought that it was a fit case in which the democracy must take its course peacefully and floor test be held as soon as possible. The Court wanted the floor test could be conducted on the next day i.e. 25th February’98. But it was a holiday. The Court summoned/convened the session of the Assembly for 26th February’98. The only agenda in the Assembly was to have a composite floor test between the contending parties in order to see which out of the two contesting claimants for the post of Chief Minister has a majority in the House.

This was also unique. In no case in the past had such a floor test been held. Kalyan Singh proved his majority by 225 votes to 196 votes. We were unhappy with the composite floor test. But in retrospect I think it was correct. Coalition governments have come to stay (see End Note-9). Maybe in all future cases similar floor test should be conducted.

The case was again taken up on 27th February’98 before the Supreme Court. Kalyan Singh had proved his majority on the previous day. The Supreme Court held
‘We are of the view that the impugned interim order of the High Court directing the Kalyan Singh Ministry to be put back in office should be hereby made absolute.’

There was no justification in keeping this litigation pending. The court closed the chapter after observing,
‘In these circumstances, keeping any attendant issues alive in the form of the writ petition before the High court would now be not conducive to political peace and tranquillity, as also overall harmony.’
Thus ended one of the most dramatic cases of the Indian Judiciary.

This case has not only justified the faith of our founding fathers in theory of checks and balances but has also shown the importance of new scientific technologies and office management (see End Note-10). We had good case but were short of time. Time management was essential. Had it not been for computers, the petition could not be typed and corrected. Without Fax machine all information could not be received. And without mobile phones we could not have utilised the time spent in travelling or while waiting/arguing the case. It was a case where records were made. It was decided within a week (Six days); the Court opened on Sunday, and of course a composite floor test was conducted.

It was in the beginning of the 20th Century that Holmes had said ‘Great Cases like hard cases make bad law’ 9Northern Securities Vs US 193 US 197. But this all changed by the end of the 20th Century. It is no longer true. Ronald Dworkin has amended it ‘(Great case like) hard cases make great judges. This case not only proves that but also is a tribute to the independence and integrity of the Indian Judiciary.

End Note-1: This specially fixed matter was a dispute between the High Court employees and the State Government. Obviously it was a difficult case. No one was willing to argue it on behalf of the State Government.

End Note-2: I became a permanent Judge of the Allahabad High Court since publication of the first edition. Since then two other advocates one opposing me Vineet Saran and the other with me Vikram Nath also became judges of this court.

End Note-3: Normally every lawyer reads cases as they are reported. I had done the same. Interestingly on 21st October 1997 despite Kalyan Singh winning the confidence vote the Governor had recommended to suspend/dissolve the house. It was so approved by the then Central government. The same night at 9:00 PM Kalyan Singh filed a writ petition in Lucknow. No interim orders were granted. Some other lawyer was handling this case. I was informed about at midnight and was requested to proceed to Lucknow immediately. It was on the way to Lucknow in the night that I, along with my junior Vikram Nath studied this case in the car. Later on this petition was not pressed. The Central government on reconsideration (as requested by the President) decided not to suspend/dissolve the Assembly.

End Note-4: After publication of the first edition Justice Basu informed me informally that he was holding court in Lucknow. He was wrongly shown in Allahabad.

End Note-5: It was in fact dismissed at 9:00 p.m.

End Note-6: Such cases do not happen in lawyers' lives. These are part of military operation. During the course of the argument SP Gupta mentioned,
'It is war. The Court should not enter into a political thicket.'

End Note-7: I think there was reason to oppose this. The Supreme Court in few cases had said that the relief, which is to be granted finally, may not be granted as interim relief. The respondents were relying on it; forgetting the records were before the court and it had finally heard the matter. The Court should have finally decided this case.

End Note-8: A writ petition was filed against dismissal of Mulayam Singh Yadav's government. The division bench of the Allahabad High Court at Lucknow dismissed it. The counsel for Jagdambika Pal rightly never relied on this incident or the division bench decision.

End Note-9: Many think that we should change over to the presidential form of government.

End Note-10: Mary Altman & Robert Weil say, ‘Concepts of management are difficult to introduce into the legal profession. Lawyers... have certain characteristics... which make them unsuitable... for management structure’. Their book, ‘How To Manage Your Law Office’ tries to change all that.

Tags: Raj Bhavan Uttar Pradesh, Lucknow, Allahabad High Court, Allahabad High Court, Romesh Bhandari, Kalyan Singh,  

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