।। Two Classic Books on Our Constitution।। The Kalyan Singh Case।। ।। ।। ।। ।। ।। ।।
21st February 1998 was a Saturday. The Allahabad High Court opens on two Saturdays in a year and this was one of them. In the afternoon, Kalyan Singh was dismissed by the Governor on the ground that he had lost the confidence of the house, without affording the opportunity of holding the floor test. I was arguing a case in a court and when I came back to the chambers after the court was over, I was told that there were many calls from the office of the Chief Minister, and I was asked to wait for the call. Around 5pm there was a call. I was informed of the developments and was asked if something can be done.
My answer was in the affirmative.
In SR Bommai v. Union of India 1994 (2) SCR 644: AIR 1994 SC 1918: 1994 (3) SCC 1 (the SR-Bommai case), the majority had held that the question whether the Chief Minister had lost the confidence of the House is to be determined by the House and not by the Governor. There was no interim order in the case and by the time it was decided, the term was over, and no relief was granted.
There were rumours that Jagdambika Pal may be sworn in as the Chief Minister. It was important to get the interim order otherwise there was no point of taking any legal action. But the time was short: could we file a writ petition before Jagdambika Pal takes oath; would the court grant an interim order in the case?
On an earlier occasion, in October 1997, there was recommendation to dismiss the Kalyan Singh’s government and impose president’s rule. I was asked to appear in the case in Lucknow. Vikram Nath J. - now a judge of the Supreme Court - was junior in my father’s chambers. We travelled in a car in the night intervening 21-22 October 1997, to Lucknow to argue a WP. He held an emergency light, and I read the SR-Bommai case loudly on our way to Lucknow. The writ petition became in-fructuous as the then President KR Naraynan returned the recommendation for reconsideration. The central government did not pursue it.
Vikram Nath J. can type very well. I called him over. I dictated and he typed the writ petition on the computer. Chief Justice was not available on that day, so after the writ petition was ready, we went to the residence of the Acting Chief Justice (RS Dhawan J. elder brother of Senior Advocate of Rajeev Dhawan) around 8:00pm for nomination of the bench. He was having his dinner. At about 8:30 pm, he entertained us, and we informed him of the developments. He, after talking to the judges, nominated the bench around 9pm.
We reached the residence of the senior judge of the bench, where the matter was to be heard at around 9:20pm. The case was taken up at 9:40pm in the Judge’s drawing room. After hearing us, we were asked to go out, so that they may discuss and pass orders.
The news of filing of the writ petition had spread. Lawyers and newsmen thronged the place: It was difficult to move in the Judges’ colony. However, before any order could be passed, the Counsel for Jagdambika Pal also appeared at 11:30pm and requested that he should also be heard. The bench heard us again. He informed the bench that the new Chief Minister took oath around 10:20pm. We took a sigh of relief. He was sworn after our wit petition was filed. His advocate mainly requested for time to produce the record to justify the action of the Governor.
The next day had begun. The Judges again requested us to go out and at about 1:45am, we were informed of the order: one of the judges was inclined to pass interim order but as the other judge wanted to give time, the case was ordered to be taken up at 9am on the same day namely 22nd February. It was Sunday and this was the first time that the Allahabad High Court sat on a Sunday.
The case started in Court number 36. It was the same court, where Mrs. Gandhi was unseated; though at that time, it was differently numbered. We thought it was good omen: it is a courtroom, where history was made and may be made again.
The basic argument of the other side was, "It is war. The Court should not enter into a political thicket."
The other side wanted to delay, as Jagdambika Pal was to prove his majority by 24th February. Had this date passed: the writ petition would have become infructuous.
The case was heard on 22nd till 6pm and then again on 23rd till lunch. The bench retired and assembled at 3:30pm to pronounce the order. The court stayed the operation of the order dismissing the Kalyan Singh Government and restored the status before the dismissal order was passed.
The same night, we were taken on a state plane to Delhi but were not permitted to land on the pretext that ice was being formed, and it was dangerous to land. We went to Lucknow and again to Delhi on 24th morning.
We were lucky that the bench of the Supreme Court was not formed on 23rd night as the fate of the case depended on a letter given by Kalyan Singh to the Governor stating that he had the majority. It was known to us but not to anyone in Delhi.
The case was taken up on 24th February. The court did not stay the order of the High Court but ordered for composite floor test on 26th February to see, who had the majority in the House. Kalyan Singh proved his majority. The case was finally decided on 27th February. BJP completed the term though Kalyan Singh was changed as the chief Minister.
Framers of our Constitution envisaged a document with checks and balances of power. The case not only proved their vision right but also established that the Governor has no unfettered discretion and his decision in dismissing or choosing a chief minister is subject to judicial scrutiny. The case paved a way for successfully challenging such orders.
The case had other consequences. Twelfth Lok Sabha elections were also being held at the same time. Because of the High Court order, there was 2.5% swing in favour of BJP. It became the largest party, and NDA formed the government in the centre and Atal Bihari Bachpai became the Prime Minister for the second time. As soon as NDA was invited to form the government, Romesh Bhandari resigned.
It was a case, where new records were established: it was decided within a week (Six days); the case was partly argued in the night; the Court opened on a Sunday; a composite floor test was conducted; and it was the first case ever, anywhere in the world, when a deposed head of a state was reinstated by the court order. And with that, we, along with the judges, entered into record books.
It also showed the importance of use of new technologies and time management: without 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 achieved what we did. We could do so, as we were fully equipped.
The case had some other interesting facts. There were many counsel from the other side but the most important counsel, was Vineet Saran J. (now retired as a judge of the Supreme Court). He was also a junior in my father’s chamber though at the time, he had set up an independent practise. So essentially, the case was fought in the High Court through juniors of the same chamber.
Let's go back to the first constitutional cases argued by me. This was during the darkest but constitutionally important period of our democracy namely - the Internal emergency.
#IndianConstitutionExperience #KalyanSinghCase
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