President Pranab Mukherjee may have had serious apprehension that the ordinance on convicted legislators cleared by the UPA Cabinet would be challenged in the Supreme Court even if it had got presidential assent. He was perhaps worried about the prospect of the Supreme Court striking the ordinance down especially in the current climate of growing resentment against the political class.
Sources said Mr. Mukherjee had also some worry that the presidential authority would have received a setback in the event the apex court of the country had struck down the ordinance the UPA government was trying to bring.
Mr. Mukherjee was said to have considered all these eventualities and had conveyed his apprehensions to the UPA Cabinet ministers who had met him to discuss the ordinance last week after the main Opposition had raised a red flag.
Sources said the President was also mindful of the fact that the 44th amendment to the Indian Constitution brought about by the Janata government in 1978 had taken away some of the powers of the President. Prior to 1978, the President’s assent to an ordinance could not be challenged legally in the way it could be after the 1978 constitutional amendment. Apparently, the main Opposition had raised this issue with Mr. Mukherjee and this key question had remained unresolved.
The President even asked Home Minister Sushil Kumar Shinde and Law Minister Kapil Sibal for the minutes of the all-party meeting on the ordinance to figure out whether the issue of the constitutional amendment of 1978 had been discussed by the political parties.
It appears this critical issue had not been settled between the Congress and the BJP while discussing the possibility of the ordinance, which the main opposition party was supporting initially. BJP leader Arun Jaitley had been raising the issue of the need for a constitutional amendment at a later stage.