The dissolution debate

The dissolution of the 13th Lok Sabha eight months ahead of the expiry of its term on the basis of a Cabinet recommendation raises questions of propriety.

in New Delhi

THERE is a healthy convention set by K.R. Narayanan as the President, to explain through a press communiqu the rationale of every important decision taken by him at his discretion. This ensured increased transparency in the President's decisions and encouraged public debates on their merits. Narayanan's successor, A.P.J. Abdul Kalam, followed the precedent by issuing a brief press communique from the Rashtrapathi Bhavan on February 6 on the dissolution of the 13th Lok Sabha.

The communique recalled the meeting Kalam had with Prime Minister Atal Bihari Vajpayee at Rashtrapathi Bhavan on January 27, when the latter conveyed the advice of the Union Cabinet to dissolve the Lok Sabha on February 6, after completing the constitutional requirements relating to the passing of the votes-on-account (Railways and general) 2004-05 and the Finance Bill, 2004 and other exigencies of government business by February 5. The Prime Minister, the communique said, met the President again on February 5 and apprised him of the proceedings in Parliament.

The President accepted the Cabinet recommendation on February 6 and signed the order dissolving the Lok Sabha in exercise of the powers conferred upon him by Article 85(2)(b) of the Constitution.

The communique, however, seemed to hide more than what it revealed. No doubt, Article 85(2)(b) empowers the President to dissolve the Lok Sabha before the expiry of its term, but while exercising this function, is he bound by Article 74(1) which directs him to act in accordance with the advice tendered by the Council of Ministers? Under this provision as amended in 1978, the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.

There is a view, as espoused by legal commentator Rajeev Dhavan, that the President's power to dissolve the Lok Sabha is discretionary. It is generally recognised that the President is not bound by the advice of the Council of Ministers to dissolve the Lok Sabha if it is clear that it has lost majority support in the House. Faced with hung Parliaments, former Presidents Neelam Sanjeeva Reddy in 1979, R. Venkataraman in 1991, and Narayanan in 1998 and 1999 exercised their powers under Article 85(2)(b) not solely on the basis of the advice tendered by the outgoing Cabinet, if there was any. Recent political history reveals that in the appointment of the Prime Minister, the President is not bound by Article 74(1) and that he must use his discretion, considering all the circumstances before him.

The exception with regard to the appointment of the Prime Minister from the ambit of Article 74(1) is something that has evolved over the years in the light of the nation's political experience. The Constitution does not explicitly envisage such an exception. Again, the Constitution does not make a distinction between the advice of a Council of Ministers that enjoys majority support in the Lok Sabha and one that has seemingly lost it.

Therefore, to argue that the President is bound by Article 74(1) while exercising his function under Article 85(2)(b) may not help address the problem at hand. As the President's press communique reveals, he "accepted" the Cabinet recommendation "as the necessary financial and other business had been completed by Parliament". The President, in other words, could have rejected the recommendation if in his view they had not been "completed" by Parliament. It shows that Kalam implicitly accepts the argument that his power to dissolve the Lok Sabha is discretionary and not bound by the Cabinet's advice.

However, the President, it appears, was not at all intrigued by the Union Cabinet's move to skip the Budget session of Parliament and along with it the tumultuous debates and discussions over the government's proposals. Had he been, he would have asked the government to provide him with the text of the decision of the Council of Ministers in favour of the premature dissolution of the Lok Sabha. What Kalam got from the Prime Minister on January 27 was a "Cabinet authorisation certificate" recommending dissolution. This certificate was essentially prepared to lend the dissolution decision a semblance of legitimacy, as it was felt that only a decision by the entire Cabinet, and not by the Prime Minister, would be binding on the President.

Curiously, the government chose to be eloquently silent on the necessity to seek a premature dissolution of the Lok Sabha. Briefing the media about the Cabinet's decision on January 27, Information and Broadcasting Minister Sushma Swaraj said the decision to recommend the dissolution was held back on account of Republic Day and also because a foreign dignitary was on a state visit, without clarifying how these solemn occasions could have been harmed if the decision was conveyed to the President earlier. Probably, the government felt guilty of ignoring certain republican values and conventions symbolically associated with the celebration of Republic Day and the denigration of institutions such as Parliament, whose business would stand drastically curtailed because of the illogical and totally unjustifiable decision to cut short the life of the Lok Sabha.

Kalam was also apparently oblivious of the fierce protests of Opposition members during the presentation of the Interim Budget in the Lok Sabha on February 3. The Opposition challenged the constitutional validity of the decision to convene a session of the House without the customary address by the President to both Houses of Parliament, as it was the first session of the new year. The winter session of Parliament was adjourned sine die on December 23 but not prorogued to facilitate the government to convene the session again. The Communist Party of India (Marxist) Member of Parliament Somnath Chatterjee pointed out that the government could convene a session any time until it was not prorogued, except in the case of the first session of the new year. But the ruling coalition, unconvinced by such espousal of constitutional niceties, went ahead with its mission to give the 13th Lok Sabha a hurried burial.

Sushma Swaraj claimed to the media on January 27 that the Prime Minister had explained to the President the circumstances in which the government was seeking the votes-on-account. She said a vote-on-account was taken last in March 1998 when Vajpayee had formed the government, since there was little time then to present a full-fledged Budget. Implicitly, as there is no similar situation now, the logic of seeking a vote-on-account is inexplicable and President Kalam apparently missed the obvious distinction between 1998 and now.

Sushma Swaraj recounted that the process to advance the Lok Sabha polls had begun earlier this year when the constituents of the National Democratic Alliance (NDA) authorised the Prime Minister to decide on early Lok Sabha polls. Later the Bharatiya Janata Party's National Executive in Hyderabad decided to hold early elections. After this, the Prime Minister asked both Finance Minister Jaswant Singh and Railway Minister Nitish Kumar to prepare to seek votes-on-account from Parliament. Sushma Swaraj said that since both the Rajya Sabha and the Lok Sabha had not been prorogued, the government had decided to reconvene the winter session after the Houses were adjourned sine die on December 23, 2003. But this chronological narration of events preceding the dissolution drama is no substitute to a proper, official explanation of why the government thought it inevitable to reduce the life of the 13th Lok Sabha, despite enjoying a comfortable majority. By keeping an enigmatic silence on this issue, the government and the Rashtrapathi Bhavan have exposed themselves to the charge of violating the letter and spirit of the Constitution to suit the interests of the ruling coalition.

Even as the government chooses to be reticent on the need for the premature dissolution, it is possible to find reasons elsewhere. As early as December 30, Deputy Prime Minister L.K. Advani admitted that the BJP favoured early polls as its recent successes in the Assembly elections in Rajasthan, Madhya Pradesh and Chhattisgarh, coupled with the feeling of economic well-being prevailing in the country, have created an atmosphere conducive to an NDA victor. Clearly, there cannot be any greater admission by the government that purely partisan interests influenced the decision. By holding early polls, the NDA has ceded to itself a clearly perceived advantage over the Opposition, which would militate against the imperative of holding free and fair elections on an even field, so recognised by the Supreme Court as constituting the basic structure of the Constitution.

If the Lok Sabha was not prematurely dissolved, the Election Commission could have had the final say in scheduling the elections any time during the last six months of its tenure, after seeking the views of all political parties and making an assessment of all relevant factors. The premature dissolution would inevitably limit this function of the Election Commission, thus bringing into question its responsibility to hold free and fair elections.

In his address to the BJP's National Executive, Vajpayee claimed that a new government would be in place by April so that the party could march even more confidently towards the goal of making India a developed nation by 2020. Contrast this with the party's claim after its chintan baithak (brainstorming session) held near Mumbai last June that the party did not favour early polls because it wanted to complete the development agenda set before the government by utilising its full term.