NIGHT DRAMA THAT SUCCEEDED

Kalyan Singh was the Chief Minister of Uttar Pradesh and Romesh Bhandari was the Governor. He,  illegally dismissed the Kalyan Singh Government on 21^st February, 1998.  A writ petition was filed the same night and he was reinstated. This is the only time that the a deposed head of a State was put back in saddle by the court. Here is the account of the same. 

Raj Bhavan Lucknow, where impugned order was passed - courtesy official website of the Raj Bhavan

The writ petition at the Allahabad High Court was filed in the name of Dr. NKS Gaur, an MLA from Allahabad North and Minister of Higher Education in UP, but for the sake of convenience, the case is referred as 'the Kalyan-Singh case'.  

During my tenure as a judge, it has been matter of speculation/ complaint how I became Additional Advocate General and why was this case entrusted to me. This is explained in Appendix-I to this article. In order to complete the picture, Romesh Bhandari's perspective is mentioned in Appendix-II.

The Allahabad High Court reinstated Kalyan Singh as the Chief Minister of Uttar Pradesh on 23rd February, l998. It may not be the most important case decided by the Allahabad High Court but undoubtedly the most dramatic one. Here is the prelude to the dismissal order passed by the Governor on 21st February, 1998. 

Prelude

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.  It was successfully challenged before Lucknow bench of the Allahabad High Court in HS Jain Vs Union of India {1997(1) LCD 140}.  However, the operation of the order of the Full Bench was stayed in appeal (CA No. 16880 of 1996) by the Supreme Court. It was dismissed on 22.08.2000 as infructuous. However, the question involved therein was left open. 

Subsequently, there was a mutual understanding between the BJP and the BSP to share the chief-ministership for six months each.  In the first spell, Mayawati became the Chief Minister on 21^st 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 asked Kalyan Singh to prove his majority.  He did so 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’.

Governor’s Order

The present drama began at 1.30 pm on 21^st February 1998.  It is described by the Governor in his order as follows: 

 ‘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 order at about 2:45pm. He met the Governor at 5:00pm 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. 

Preparation―Writ Petition 

It was by chance that I argued the Kalyan-Singh case.  This is how it happened.  

The Allahabad High Court works on two Saturdays in a year. But no lawyer enjoys working on Saturday. Even I didn’t.  21^st of February 1998 was one such Saturday and the High Court was open.  I was supposed to go out of station but had to be there for a part-heard case that was going on.  

The part-heard case was a dispute between the High Court employees and the State Government with the High Court siding with its employees.  Obviously, it was a difficult case and especially, as it was being heard by an equally difficult bench presided over by Justice BK Roy.  In that court, no counsel was willing to argue it on behalf of the State.  

I was appointed Additional Advocate General, when Mayawati was the Chief Minister and continued during the time when Kalyan Singh was the Chief Minister. I had no option but to argue it on behalf of the State. (See Appendix-I as to how I became Additional Advocate General). I had requested for the adjournment of the part heard case for the Saturday but it was refused. Had I gone out of station, which I would have but for that part-heard case, I couldn’t have argued the case. 

On 21^st February 1998, I was on my legs till the end of the day and came back to the High Court chamber at 4 pm.  On my way to the chamber, I was informed that there were few telephone calls from the Chief Minister's office and I should wait for the call. 

I came to know the reasons for the calls at 4:45pm. The Chief Minister was likely to be dismissed without being given any opportunity of the floor test and 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 (the SR Bommai’s case). (See Appendix-I as to how I came to be instructed in the case). 

In the SR Bommai case, Justice Jeevan Reddy 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 to hold a floor test for Kalyan Singh; could we file a writ petition in such a short time. That was the million-dollar question.   

Filing of WP in the Night

This writ petition was against the State Government. I, being the Additional Advocate General for the State, could not appear in the same. Therefore, the first thing 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 was 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 the SR Bommai’s case earlier; nonetheless, thought it better to refresh the memory (see Endnote-1). The petition had to be in the light of the same. Vikram Nath (see Endnote-2). was one of my colleagues; he could type well. I requested him to come over and I dictated the writ petition. He typed the petition directly on the computer. It is also easy to make corrections on the computer. It saved time. The final print out was taken out at 7:30 pm and was sworn.  The rest of the prints were taken out subsequently.  

On 21^st February, 1998, 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 Endnote-3). Justice Birendra Dikshit was assigned to take his place. The court day was over. All Benches were changing from Monday, namely 23^rd February 1998. An entirely different bench was to hear similar matters. This petition could not be entertained unless assigned to any Bench by the Chief Justice.  He was not in Allahabad and Justice RS Dhawan, the senior most Judge was in-charge. 

We (my colleague Vikram Nath and myself) reached the residence of Justice Dhawan at 8:30pm and waited for some time as he was having his dinner. I requested him to assign a Bench to hear this matter.  He realised the urgency and  assigned it to the same Bench, where it would have gone, had it been 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 was exactly said but it was something to this effect, 

'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. He 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 hand written. It merely stated that the Writ Petition be presented before the Bench today at their convenience.

Hearing-Residence

We reached the residence of Justice Birendra Dikshit around 9:20pm. The counsel for the State of UP and the Union of India were already there. We had informed them earlier. However, Justice Seth was not there. Justice Dikshit informed us that he had spoken to Justice Seth and he would be coming at about 9:30pm. At that time Justice Dikshit was of the view that the petition was pre-mature and should not be entertained at that stage.  We requested him to take the decision after the Bench was formed.  

Justice DK Seth came at about 9:40pm.  By this time we filed another supplementary affidavit indicating that Kalyan Singh’s Government had been dismissed and the Governor is going to administer oath to Jagdambika Pal at about 10:30pm.  The objection of Justice Dikshit was no longer relevant; the petition was no longer premature.

The hearing of the case on merits started in the drawing room of Justice Dikshit’s residence. Around 10:20pm 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 pm that the Private Secretary was called and some order was dictated. 

During dictation, at about 11:30pm, 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 but the Court heard the arguments of the Counsel.  Thereafter we were again requested to leave the room at about 00:30am. 

The news of filing the petition had spread. A crowd of about 200 persons 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 1:45am 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 9:00am of 22^nd February, 1998. 

Justice Seth held that it was a fit case in which a stay order should be granted but as Justice Dikshit had fixed 9:00am he agreed to adjourn it till then. 

Hearing-Sunday

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 10:00am. SP Gupta Sr. Advocate and Vineet Saran (see Endnote-4) 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. 

Such cases do not happen in lawyers' lives. These are part of military operation. Even after the order was passed taking up the case on February 22, 1998, we could not sleep: the tension was mounting. During the course of the argument SP Gupta repeated many times 'It is war. The Court should not enter into a political thicket'.

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, ie unless he was defeated on the floor of the House. 

Kalyan Singh's government was dismissed after filing of the petition and Jagdambika Pal was sworn in as the new Chief Minister. In such a situation 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 judges in the Allahabad High Court rise at 3:45pm but the Court continued and rose at 4’0 clock and indicated that they will assemble again to hear further arguments. The Court reassembled at 4:20pm and the arguments resumed. 

SP Gupta, the counsel for the respondent continued his arguments till 6:00pm and then 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 of the case, some orders be passed that day. The Counsel for the respondents closed their arguments at 12:50pm.  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 number 36.  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.

Court number 36 is in the corner of the High Court building. We were informed that the court was likely to reassemble at 3:30pm. We tried to reach the court but found it difficult to move in the corridor. 

A crowd of about 5000 waited to hear 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. 

We waited for the orders of the court. The court had to repeat the orders twice. The entire record was before the court. The petition could be disposed off finally but the court passed only interim orders as the respondents opposed it.  There was reason for their opposition.  

The Supreme Court in some cases has observed that the relief that is to be granted finally, may not be granted as an interim relief.  The respondents were relying on it. They simply ignored the fact that the records were before the court and it had finally heard the matter.  The Court should have finally decided the case.  

The interim order stayed the operation of the order dismissing the 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 also be available on the same day after some time. The short order was made available immediately but detailed order was supplied later.  

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 but his mobile did not respond. We rang up his residence. We were told that he was 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 in office late in the night only after some drama, when the Governor passed an order to comply with the High Court’s order. 

Order of the High Court

The main argument on behalf of the petitioner was based on the SR-Bommai case: Once Kalyan Singh had asserted that he had the majority of the House; it was not open for the Governor to decide whether Kayan Singh had the majority or not; and this question could only be decided on the floor of the House.  

The counsel for the respondents tried to distinguish the SR-Bommai case on the ground that it related to the proclamation issued by the President under Article 356 of the Constitution on the report of the Governor; whereas, in the Kalyan Singh's dismissal,  the Governor had passed the orders himself under Articles 163 and 164 of the Constitution.  

Allahabad High Court

The High Court did not accept the respondents' submissions. It gave detailed 33-page order justifying the interim order after holding that the SR Bommai case was 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 22^nd February, 1998, a few hours later.  It can not be ruled out that power has been exercised for purpose not warranted by law.'

In the SR-Bommai-case, the Supreme Court had held that it was 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 and observed, 

'The very fact that the floor test by Jagdambika Pal having been fixed on 24^th 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.'

Precedent- Mulayam Singh Yadav

The Governor in his order has cited the precedent relating to dismissal of Mulayam Singh Yadav in the previous assembly when Mayawati withdrew her support.  At that time, Mulayam Singh Yadav was not given opportunity of a floor test. A writ petition was filed against dismissal of Muylayam Singh Yadav's government.  The division bench of the Allahabad High Court at Lucknow had dismissed the writ petition.  

In that case, 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 happened, when Mayawati's 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, it was under exceptional circumstances that Mulayam Singh's government was dismissed; dismissal of his government was in tune with the SR Bommai case. 

The facts of Mulayam Singh's case were not similar to the present case. The counsel for Jatgdambika Pal rightly never relied on this incident or this division bench decision.  I use moderate language: the Governor was confused and had mixed up the facts. 

Incidents at New Delhi

We knew that the matter 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, that we (my colleague Vikram Nath and myself)  could take. We found there were other passengers in the plane―Officers and lawyers from the other camp. They requested us, to drop them at Lucknow.  We agreed to this. One of the officers suggested that we should stay at Lucknow in the night and then 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 officers again requested us to make the night halt but the hint from the Chief Minister was clear: we were to proceed for Delhi and we did so immediately. 

We reached Delhi but could not land there. The pilots told us that ice was being formed and it was dangerous to land. We did some loud thinking: was it fishy? We laughed it off and came back to Lucknow. 

In Lucknow, we were told that the SLP filed by Jagdambika Pal may be taken up on the next day. Yet, we were told to be ready 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, that was filed. Time was short. We could not communicate.

We couldn’t sleep this night as well. The tension and the uncertainty gripped us. We again took the plane in the morning and reached Delhi on 24^th morning and went to the house of Soli Sorabji who was appearing from our side. Arun Jaitely was also there.  

We came to know that Jagdambika Pal had filed the SLP before the Registrar of the Supreme Court at 10:00pm on 23^rd February 1998 with the request that a bench be formed immediately. But it could not be formed. The matter was taken up at 10:30am on 24^th February 1998, before a specially constituted Bench comprising of Chief Justice MM Punchhi, Justice SC Agrawal and Justice KT Thomas.  

Before the Supreme Court

The arguments 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 was right in holding that he was not in majority. 

The Supreme Court refused to look into the judgement of the High Court or the assertion made in the Writ Petition and wanted to know if the Governor had mentioned it in his order.

The Governor had not mentioned it in his order. It was very cleverly written. He has written his autobiography titled as 'As I Saw It'. There is a chapter on this incident in the autobiography. Excerpts of this are appended in Appendix-II to this article. It shows his side of the story of the incident.  

The Governor had mentioned in the order that ‘Shri Kalyan Singh had sought time to prove his majority.’ But the Chief Justice observed that this was different from saying that ‘he (Shri 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 not 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 the letter given by Kalyan Singh to the Governor and the fact that this was not denied before the Allahabad High Court: Soli 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 be horse trading if Kalyan Singh is asked to prove the majority and not if Jagdambika Pal is asked to do so?’ 

‘Simple’ answered Kapil Sibbal, ‘Kalyan Singh has no majority where as Jagdambika Pal has’. All smiled. He was trying to put the 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 to be conducted on the next day i.e. 25^th February’98. But it was a holiday.

The Court summoned/ convened the session of the Assembly for 26^th February 1998.  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 had the majority in the House.  

The order was wrong.  It was not in tune with the SR Bommai case.  There was no justification for such an order: it should have been simply as to whether Kalyan Singh had the confidence of the house or not.

The order was also unique.  In no case in the past, had such a floor test been held.    We were unhappy with the composite floor test. However, Kalyan Singh proved his majority by 225 votes to 196 votes. In retrospect, perhaps it was correct. Coalition governments have come to stay. May be similar floor test will be conducted in future. 

The case was again taken up on 27^th February 1998 before the Supreme Court. Kalyan Singh had proved his majority on the previous day.  The appeal of Jagdambika Pal was to be dismissed. The Supreme Court did so, observing ‘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 also  closed the litigation by 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 the most dramatic case of the Indian Judiciary.

Twelfth Lok Sabha elections were also being held at the same time in February 1998. It was reported that there was 2.5% swing in favour of the BJP because of the order granted by the High Court. In the Lok Sabha election BJP was the largest party and NDA formed the government. As soon as BJP was invited to form the government at the centre, Romesh Bhandari resigned as the Governor of Uttar Pradesh.  

Conclusion

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 Endnote-5) .We could do it as our office was computerised and we always believed in office management. We had invested huge amount of money and time in our office and in one case it paid back.

We had a 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 new records were established: it was decided within a week (Six days); the case was partly argued in night; the Court opened on Sunday; and of course a composite floor test was conducted. 

It was in the beginning of the 20^th Century that Holmes had said ‘Great Cases like hard cases make bad law’ (Northern 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 modified it to ‘(Great case like) hard cases make great judges'. This case not only proves that but is also is a tribute to the independence and integrity of the Indian Judiciary.  

Endnote-1: Normally every lawyer reads cases as they are reported. I had done the same. Interestingly on 21^st 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 9:00pm Kalyan Singh filed a writ petition in Lucknow. No interim order was granted. Some other lawyer had filed the writ petition. I was informed about at midnight and was requested to proceed to Lucknow immediately. I alongwith my collegue Vikram Nath started for Lucknow in the night. It was on the way to Lucknow that we read the decision again in the car. Later on this petition was not pressed as the Central government decided not to suspend/ dissolve the Assembly on reconsideration. The reconsideration was done on the request by the President.  

Endnote-2: Since then Vikram Nath has also been elevated as the Judge of the Allahabad High Court on 24.09.2004.

Endnote-3: Justice Basu informed me later that he was holding court in Lucknow. He was wrongly shown at Allahabad.

Endnote-4: Vineet Saran was also my colleague in the chamber but had left and established independent practice. He has also been elevated as the Judge of the Allahabad High Court on 14.02.2002.

Endnote-5: 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. 

APPENDIX-I 

How I became Additional Advocate General and why Kalyan Singh's case was entrusted to me.

I became permanent Judge of the Allahabad High Court on 05.02.1999.  During my tenure as a Judge, the Kayan-Singh case came back to me on different occasions, in different ways. It has been a matter of speculation as to how I became Additional Advocate General and why was I engaged as a lawyer in the case, when BJP had its own battery of lawyers.  I would like to clarify this.

My father was an office bearer and is an RSS sympathiser. He was detained under MISA during emergency. This has been mentioned in the post 'INDEPENDENT INDIA'S DARKEST PERIOD'. BJP had come in to power in Uttar pradesh in 1991 State elections. At that time, he became Advocate General of Uttar Pradesh. 

In the year 1997, when the BJP shared power with the BSP, my father did not accept any post and suggested if I could be accommodated on any post. This is how I became Additional Advocate General of Uttar Pradesh, when Mayawati was the Chief Minister. I continued on the post, when Kalyan Singh took over. 

I had never met Kalyan Singh before I was engaged in this case but in his secretariat, there were four IAS officers and three of them were from science faculty of the Allahabad university, where I also studied. Allahabad university is a unique in the sense that it has different faculties at different places The science faculty is known as Muir college and it has its own campus and charm. 

The Principal Private Secretary of Kalyan Singh was Anurag Goel. He was senior to me by three years and was my brother's class-fellow. He was a good table tennis player. I was also a table tennis player and had played table tennis with him in the  university days. I knew him before hand.  

Two other IAS officers, DK Mittal and GC Chaturvedi in the secretariat of Kalyan Singh were a year junior to me in the science faculty. They knew me well.  

It appears that at that time, some lawyers were contacted but they doubted whether petition could be filed in such a short time and if any relief could be obtained from the court. It is at this stage that the officers who knew me well suggested that I should be engaged to file the writ petition.  I knew SR-Bommai-case well and thought that there was a fair chance of obtaining relief from the court. I decided to plunge into it and rest is history. 

APPENDIX-II

In order to have complete picture, it would be appropriate that perspective of Romesh Bhandari may also be seen. He has written his autobiography titled 'As I Saw It'. In this book there is a chapter on this incident. Here are the relevant excerpts from this chapter. 

Chapter XIV 21st February, 1998

If anyone were to ask me which is the most tortuous period I have spent in my career, barring personal ones, I would without doubt say that it was the time from the morning of 21^st February 1998 to 1:00pm on 24^th February 1998. 

...

Kalyan Singh arrived in Raj Bhavan at 5:00pm. ... they had already sent a telegram to the President stating that Kalyan Singh should be given the opportunity to test his strength on the floor of the House. 

...

By around 7 P.M., some top leaders in Delhi had been informed that the President had written a letter to the Prime Minister expressing the view that Kalyan Singh be given the opportunity of verifying his Assembly strength through a test on the floor of the House and pointing out that as the last round of election in UP were to be held the next day, Kalyan Singh should not be dismissed.

This development placed me perhaps in the most awkward situation anyone could find himself in. Enquiries from 7 Race Course Road revealed that no communication was being sent to me from the office of the Prime Minister in respect of the letter from the President. There was no advice or guidance which was forthcoming from that side. I had another look at the Constitution. The responsibility of appointing a Chief Minister is exclusively that of the Governor. In such matters, a reference to the Prime Minister is not necessary. The Council of Ministers and the President do not come into the picture as this was not a case of recommending imposition of President's rule under Article 356. The responsibility, therefore, not only rested squarely on the shoulders of the Governor, but it is the Governor alone who would be answerable for whatever decisions he took. 

...

Before taking a decision, I thought I would consult a couple of lawyers who had been dealing with constitutional matters. I requested RN Trivedi, a former Advocate General and SC Mishra, President of Allahabad Bar Association to see me. I spoke to them separately. I placed my dilemma before them and pointed out that this was a unique situation which no Governor had ever faced in the past. Whatever I did, would be subjected to severe criticism.

...

Both the lawyers agreed with me that the discretion was entirely that of the Governor, he must act as he thinks fit, and, the decision that the Governor would take, cannot be questioned. At the same time, both were of the view that in my own interest it would be advisable that I adopt the safest course, particularly as the President had reportedly written to the Prime Minister. Even these lawyers were aware of this matter.

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I decided that I would place my conscious above my own personal benefits. I would face the consequences, whatever they be. When an individual is endowed with responsibilities, he must discharge them as his mind dictates him to do. If this entails personal harm or risk, it has to be faced. It was only at 9 O'Clock in the evening that I took a final decision. I sent a letter to Kalyan Singh that he was being dismissed. I invited Jagdambika Pal to form a Government, and asked him to prove his majority on the 24^th February. 

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Dr. N.K.S.Gaur, the Minister for Higher Education, had rushed to Allahabad. A late night sitting of a two-member bench of the Allahabad High Court was convened. The Order by Justice Seth was issued well after midnight. Justice Dixit had insisted that the version of the other side must also be heard. That is why a time had been fixed for 9:00am the next day. I would like legal experts to also now opine in regard to the validity and legality of the assertion by Kalyan Singh that he was still Chief Minister! All the documents are there to be seen. I marvelled at the organisational capabilities of the BJP and how quickly they reacted to situations.

...

In spite of reports I was getting that Justice Dixit was giving a patient hearing, when I read the papers of the 23^rd morning, and how critically they were of my decisions, I was mentally prepared for a negative decision. In the afternoon of the 23^rd, I received a call that the two Judges had stayed the dismissal. Around 4:00pm, I was  told that Kalyan Singh had gone to the Secretariat to take charge. Jagdambika Pal in the meantime, continued to stay in his office. We had two Chief Ministers functioning in the Secretariat. It was a comical sight, and at the same time so tragic. 

The Chief Justice of India was approached on the night of the 23^rd February to give an immediate hearing. The Registrar fixed the hearing in the morning of 24^th February, that is the next day, where as the lawyers of the BJP had been able to arrange a late night sitting of the Allahabad High Court within hours of the dismissal of the Kalyan Singh Government.

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My dismissal orders had been stayed, but the substantive issue as to whether these were valid or not, remained to be determined. There was nothing I could do. By the time that the Court would hear the matter, the entire issue would be over! I ordered that the High Court judgement should be complied with in consultation with the Legal Rememberancer. Around 11:00pm. Raj Nath Singh of the BJP telephoned to say that Jagdambika Pal was still sitting in the CM's Office. I called Jagdambika Pal and advised him to go home. He would have to await the verdict of the Supreme Court.

I reported these developments to the President. 

The Chief Justice of India Justice Punchi heard the petition himself alongwith two of his colleagues. Their judgement was in a way a very unique one.

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In spite of all that was being done, I was more than certain that Kalyan Singh would succeed. The incumbency factor would override any other allurements or promises. How relevant the saying is that “a bird in hand is better than two in bush”. The judiciary had ensured Kalyan Singh's victory even though this is not what they would have thought when delivering their judgements.