Appointing a PM

Constitutional law is not at all a science, but applied politics, using the word in its noble sense.

Justice Felix Frankfurter

THE electorate has made President Pratibha Patils task easy by its clear verdict, returning to power the Congress-led United Progressive Alliance government headed by Manmohan Singh. It has thus rendered irrelevant the options that were so freely aired in the days before the verdict. The pattern is a familiar one ipse dixit and references to dubious, if not discredited, authorities abound. Given the state of our politics, hung Lok Sabhas a nd State Assemblies might well face us in the years to come. Are we then to lapse into the chatter that was so amusingly aired on television? The time has surely come to impart clarity and seriousness to the discussion.

The first step is to throw out of the pantheon four false gods that have been receiving uncritical obeisance so far. Foremost among them is the report of the Sarkaria Commission on Centre-State Relations. The commission was appointed on July 27, 1983, by Prime Minister Indira Gandhi without any consultation with the opposition or with non-Congress Chief Ministers such as Ramakrishna Hegde and N.T. Rama Rao. The proposal to set up this body was announced on March 24, 1983. Justice R.S. Sarkaria, a former judge of the Supreme Court, was to be its chairman. Later, B. Sivaraman, a former Cabinet Secretary, and S.R. Sen were appointed members. Not one of them, the judge included, was well versed in constitutional law.

Its terms of reference required it to examine and review the working of the existing arrangements between the Union and States in regard to powers, functions and responsibilities in all spheres and recommend such changes or other measures as may be appropriate. It had to bear in mind the social and economic developments that had taken place over the years and to bear in mind the unity and integrity of the country.

That it failed in this task was bad enough. The report, submitted on October 27, 1987, was centrist with a few sops to the States. Their grievances were hardly addressed.

But what business had these worthies to take the bit between the teeth and run off on a frolic of their own to lay down the rules of the parliamentary system. That was done in a chapter on the Role of the Governor (pages 111-138). Never before has any official body wreaked such havoc and with such baleful consequences for over two decades in a mere 28 pages. It covered six topics under the use of discretion in an attempt to respond to criticism of the role of the Governor. They are (i) in choosing Chief Minister; (ii) in testing majority (iii) in dismissal of Chief Minister; (iv) in dissolving Legislative Assembly; (v) in recommending Presidents Rule; (vi) in reserving Bills for Presidents consideration.

None of the six topics concern the Governors office as a link in Centre-State relations. It is another matter that the Centre, using pliant Governors, subverted the office. The Governor became, in Ramakrishna Hedges famous words at a seminar on Centre-State relations in Bangalore on August 5, 1983, a glorified servant of the Union.

The Sarkaria report overlooked the dicta of the founding fathers, a ruling of the Supreme Court, and the provisions of the Constitution. The Governor is both a constitutional head of State as well as the repository of certain responsibilities in which he is explicitly enjoined to act at his discretion (Article 239(2)) or report to the President (Article 356(1)).

G.S. Pathak, a noted jurist said in a speech on April 3, 1970, when he was Vice-President of India: In the sphere in which he is bound by the advice of the Council of Ministers, for obvious reasons, he must be independent of the Centre. There may be cases where the advice of the Centre may clash with the advice of the State Council of Ministers (emphasis added throughout). In such cases, the Governor must ignore the Centres advice and act on the advice of his Council of Ministers. This is the clear, incontrovertible legal position. This part of his duties and functions, the main part, does not belong to Centre-State relations at all.

In Hargovind Pant vs Dr. Raghukul Tilak (AIR 1979 S.C. 709), decided on May 4, 1979, by a Constitution Bench of five judges, the Supreme Court had to consider specifically the constitutional position of the Governor. It ruled:

It is no doubt true that the Governor is appointed by the President, which means in effect and substance the Government of India, but that is only a mode of appointment and it does not make the Governor an employee or servant of the Government of India. So also it is not material that the Governor holds office during the pleasure of the President.

His office is not subordinate or subservient to the Government of India. He is not amenable to the directions of the Government of India, nor is he accountable to them for the manner in which he carries out his functions and duties. His is an independent constitutional office which is not subject to the control of the Government of India. He is constitutionally the head of the State in whom is vested the executive power of the State and without whose assent there can be no legislation in exercise of the legislative power of the State.

The Sarkaria trio overlooked also B.R. Ambedkars authoritative exposition in the Constituent Assembly on December 30, 1948: Under a parliamentary system of government, there are only two prerogatives which the king or the head of the state may exercise. One is the appointment of the Prime Minister and the other is the dissolution of Parliament.

Mohammad Tahir asked: On a point of order, how will it explain the position of the Governors and the Ministers of the State where discretionary powers have been allowed to be used by the Governors?

Ambedkar replied: The position of the Governor is exactly the same as the position of the President and I think I need not over-elaborate that at the present moment because we will consider the whole position when we deal with the State Legislatures and the Governors (Constituent Assembly Debates; Volume VII; page 1158).

Since the rules on the appointment of the Prime Minister and Chief Ministers and on the dissolution of the Lok Sabha and State Assemblies are exactly the same, would one be justified in applying the Sarkaria dicta to the President as well? If not, would we not be treating them differently contrary to the clear intention of the framers of the Constitution?

It was the Sarkaria report that invented the distinction between pre-poll and post-poll alliances. Worse, it provided an opening for toppling State governments, knowing full well that this perversion, unwarranted by the Constitution, would be used by the Centre as it did in 1984 in Andhra Pradesh and Kashmir. Nonetheless, the report gave it a sanction in 1987.

In paragraph 4.11.10 on page 128, the report says that during the period the Assembly remains prorogued, a Governor may receive reliable evidence (e.g. one or more letters signed by, or a no-confidence motion proposed by, a majority of members, with signatures authenticated by the Secretary of the Assembly) that the ministry has lost its majority. Should the Governor in this situation on his subjective satisfaction dismiss the ministry without giving it a chance to prove its majority on the floor of House?

The single quotation marks embracing the word majority reflect scepticism; the reference to a no-confidence motion reflects crass ignorance. Motions are tabled in the Assembly and never sent to the Governor. Very nobly the trio adds: Arid legality apart, as a matter of constitutional propriety, the Governor should not dismiss the government but advice the Chief Minister to summon the Assembly as early as possible. If he refuses, the Governor should summon it.

First, the Governor has, of course, no such right in the absence of the Chief Ministers advice. Secondly, where was the need for this opening? Thirdly, had the trio ever heard of such a practice anywhere in the world? They could not have because it does not exist. They, of course, knew nothing of constitutional practice. Finally, would they have prescribed it for the Prime Minister vis-a-vis the President? Dismissal of a ministry goes beyond considerations of propriety. It concerns legality.

Like others, this writer too has mentioned the report in the past but while mentioning its deficiencies. A lot of material went into it. It is, however, high time it was exposed as utterly unworthy of reliance or citation. The public notice issued by the commission invited memoranda on Centre-State relations alone. Whoever taught its members these ideas on the Constitution? Sarkaria was appointed as Commission of Inquiry during the Emergency in 1976, after the dismissal of the Tamil Nadu government, to fix Chief Minister M. Karunanidhi. His conduct of the inquiry was anything but fair. He was hand-picked also to serve as Chairman of the Press Council in which capacity he publicly criticised any move to have a Freedom of Information Bill. The United States had one after 200 years, he said; the implication was pathetic. So was the outlook it reported.

The report of the Committee of Governors on The Role of Governors was published in 1971 by the Presidents Secretariat. In his address to the Conference of Governors, held on November 20, 1970, President V.V. Giri invited their attention to some of their functions; to wit the choice of Ministers, the summoning and dissolution of State Assemblies, and Presidents Rule. It comprised five Governors Bhagwan Sahay, a distinguished civil servant as chairman; B. Gopala Reddi; V. Viswanathan; S.S. Dhavan, a former High Court judge; and Ali Yavar Jung as members. The report is not a pretentious document, unlike the Sarkaria report. But it is no authority on these issues, either. The report does not lay down any rigid guidelines for the Governors, it says. It was asked to formulate norms and constitutions.

The report of the Administrative Reforms Commission on Centre-State Relationships (June 1969) also has a chapter on Role of the Governor with a recommendation on what he should do if the Chief Minister loses majority or the Speaker misbehaves.

The Bharatiya Janata Party regime emulated Indira Gandhi and appointed a body of hand-picked members of varying degrees of credibility without any reference to the opposition. The body was headed by former Chief Justice M.N. Venkatachaliah, who had by wilful inaction, ignoring repeated warnings from the Attorney General, facilitated the demolition of the Babri Masjid as this writer documented (The Statesman, January 18-19, 1995, reproduced in Citizens Rights, Judges and State Accountability; OUP, 2002; pages 56-65). Sarkaria was a member of this body, The National Commission to Review the Working of the Constitution. To its report (2002), one member, Sumitra Gandhi Kulkarni, appended a brief note which said that the commission failed both the people and the government by not delivering a top quality effort. She signed the report, nonetheless, albeit with grave concerns.

The late C.R. Irani also signed the report with some reservations. We have not had the opportunity to examine the whole of the revised final draft thoroughly because of time constraints, he wrote. But he mentioned, with the same candour, how a paragraph relating to minority rights in educational institutions would extinguish their rights. He recorded with his usual thoroughness, on page 269, how that paragraph had crept into the draft of the final report. It was deleted. Significantly, it was on the same lines as Atal Bihari Vajpayees plea that Article 30, relating to the minorities right to establish and administer educational institutions of their choice, be extended to the majority community as well. This report is seldom cited, understandably.

These four reports provide convenient short cuts. They yield opinions for quick reference, regardless of their incompetence. Surprisingly, no one refers to the report of the Centre-State Relations Inquiry Committee (1971) set up by the Government of Tamil Nadu on September 22, 1969. It was headed by the former and distinguished Chief Justice of the Madras High Court Justice P.V. Rajamannar and had men like A. Lakshmanaswami Mudaliar and P. Chandra Reddy as its members. It contained useful material but unwisely counselled emulation of the U.S. Constitution. Why not take the sure road to sound constitutional interpretation, on the basis of the text, the Constituent Assembly debates, the Supreme Courts rulings and the well-settled conventions of the parliamentary system?

Article 75(1) of the Constitution says that the Prime Minister shall be appointed by the President. Clause (3) adds: The Council of Ministers shall be collectively responsible to the House of the People. Ergo, the Prime Minister must command a majority in the House at the time of the vote of confidence. The question is, how is the President to determine initially which party leaders will make good his claim later to majority support? The framers of the Constitution were not unmindful of this problem. Ambedkar said that the discretion belonged to the President. He was quite alive to the possibility of a multi-party system working our Constitution. When a member suggested that Ministers must belong to the majority party, he said, on December 31, 1948, that it would be perfectly possible and natural that in an election Parliament may consist of various numbers of parties, none of which is in a majority. How is this principle to be invoked and put into operation in a situation of this sort where there are three parties, none of which has a majority? The impression that the Constitution envisaged a two-party system is false.

While Jawaharlal Nehru was Chairman of the Union Constitution Committee of the Constituent Assembly, Vallabhbhai Patel presided over its Committee on the Provincial Constitution. At a joint meeting of the two committees, on June 7, 1947, Patel said that they had opted for the parliamentary system of Constitution, the British type of Constitution.

He told the Constituent Assembly on July 17, 1947, that a Schedule according [sic] to the traditions of responsible Government will be framed and put in (Constituent Assembly Debates; Volume IV; pages 648-649). In October 1948, the Assemblys Drafting Committee decided that it would be desirable to append to the Constitution an Instrument of Instructions for the President just as there is one for the Governors. Accordingly, a draft schedule III-A was prepared. As late as on May 23, 1949, Ambedkar, its chairman, told the Assembly in effect, in response to the query by Rajendra Prasad, its President, that the Instrument would be there.

However, on October 11, 1949, a little over a month before the Constitution was adopted, T.T. Krishnamachari, another member of the Drafting Committee, announced that draft schedule III-A was being dropped. It has now been felt that the matter should be left entirely to convention rather than be put into the body of the Constitution. Time has exposed the falsity of his argument that codification was unnecessary and superfluous and that the directions to the President and the Governors really should arise out of conventions that grow up from time to time, and the President and the Governors or their respective sphere will be guided by these conventions (Constituent Assembly Debates; Volume VIII; pages 215-216 and Volume X; pages 114-116).

Though dropped as superfluous, the Instrument was drafted by and reflected the considered opinion of some of the ablest lawyers of the day. Its provisions were not rejected as being unsound. Paragraph 2 of the Instrument of Instructions to the President is of crucial importance. It enjoined him to appoint a person who has been found by him most likely to commend a stable majority in Parliament as the Prime Minister (for the text of the Instrument, vide The Framing of Indias Constitution by Shiva B. Rao; Volume IV; pages 84-86). It can yet be inserted in the Constitution with suitable changes.

Two points must be noted. The President acts on a balance of probabilities (likely), on a preponderance of party strength and he must be assured of the stability of the government. Some Governors have abused this test to reject claims to form a government by the political opponents of their masters in New Delhi. Stability is not to be probed into in any depth in a partisan manner. What is required is prima facie proof of cohesion, a demonstrable will to pull together in governance. That is all.

Three textbooks propound the same concept. S. de Smiths Constitutional and Administrative Law speaks of a ministry with a reasonable prospect of maintaining itself in office (page 176). E.C.S. Wade and A.W. Bradleys Constitutional and Administrative Law favours that person who is in the best position to receive the support of the majority (pages 236-237). O. Hood Phillips and Jacksons Constitutional and Administrative Law is more precise: A ministry that can hold a majority in the House (page 320). From 1969 up to the end of 1970, Indira Gandhi presided over a minority government with the support of the socialists, the Communist Party of India and the Communist Party of India (Marxist).

In four cases, the Supreme Court has ruled that in interpreting the Constitution of India the conventions of the British parliamentary system are relevant. Ram Jawaya Kapur vs The State of Punjab (AIR 1955 S.C. 549) was the first. In U.N. Rao vs Indira Gandhi (AIR 1971 S.C. 100), the court said: It was said that we must interpret Article 75 (3) according to its own terms regardless of the conventions that prevail in the United Kingdom. If the words of an article are clear, notwithstanding any relevant convention, effect will no doubt be given to the words. But it must be remembered that we are interpreting a Constitution and not an Act of Parliament, a Constitution which establishes a parliamentary system of government with a cabinet. In trying to understand one may well keep in mind the conventions prevalent at the time the Constitution was framed.

In Samsher Singh vs State of Punjab & Anr. ((1974) 2 SCC 831), a seven-member Bench approved the rulings in those cases (page 842). Justices V.R. Krishna Iyer and P.N. Bhagwati delivered a joint concurring opinion. Ours is primarily an Indo-Anglican version of the Westminister model a blended brew of the British parliamentary system and the Government of India Act, 1935 not the Potomac, but the Thames fertilises the flow of the Yamuna, they said (page 861).

They held: We declare the law of this branch of our Constitution to be that the President and Governor exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well-known exceptional situations. Without being dogmatic or exhaustive, these situations relate to (a) the choice of Prime Minister (Chief Minister), restricted though this choice is by the paramount consideration that he should command a majority in the House; (b) the dismissal of a government which has lost its majority in the House, but refuses to quit office; (c) the dissolution of the House where an appeal to the country is necessitous, although in this area the head of state should avoid getting involved in politics and must be advised by his Prime Minister (Chief Minister), who will eventually take the responsibility for the step. We do not examine in detail the constitutional proprieties in these predicaments except to utter the caution that even here the action must be compelled by the peril to democracy and the appeal to the House or to the country must become blatantly obligatory (page 885).

The last in this series is Supreme Court Advocates on Record vs Union of India ((1993) 4 SCC 441) in which the court upheld the force and relevance of conventions. We are of the view that there is no distinction between the constitutional law and an established constitutional convention and both are binding in the field of their operation. Once it is established to the satisfaction of the court that a particular convention exists and is operating, then the convention becomes a part of the constitutional law of the land and can be enforced in the like manner (Justice Kuldip Singh on page 656, paragraph 353).

The distinction between the law and the convention is gone. Jeffrey Goldsworthys volume shows how constitutions have been interpreted by the courts in many countries. In the Patriation Reference (Re: Resolution to Amend the Constitution (1981) 1 SCR 753), the Supreme Court of Canada blazed a trail by taking due note of a convention and enforcing it.

Together, the three works under review illuminate the nuances of the subject. Colin Turpin and Adam Tomkins tome is a weighty textbook that rejects the largest single party test. Rodney Brazier has formulated the conditions which the head of state can legitimately impose on a Prime Minister in a hung House. In the 20th century, five elections failed to yield a clear majority in the British House of Commons twice in one year, in January and December 1910, 1923, 1929 and February 1974. Three elections, in 1950, 1964 and October 1974, returned governments with single-figure majorities. By April 1976, the Labour government elected in October 1974 was reduced to a minority, and so it remained until it was forced to face the electorate in May 1979. (Vide also Governing without a Majority: Dilemmas for Hung Parliaments in Britain by David Butler; Palgrave Macmillan, 1986; and The Back of the Envelope: Hung Parliaments, the Queen and the Constitution by Peter Hennessy and Simon Coats; University of Strathclyde, 1991).

Surely our own record in the last 40 years should help us put all those shibboleths of the Sarkaria report and the rest behind us. The issue arose in 1967 when hung State Assemblies were elected. The question was raised in the Lok Sabha on April 5, 1967, a propos the Rajasthan ministry. Union Home Minister Y.B. Chavan promised to seek legal opinion. In a letter dated May 17, 1967, to three former Chief Justices of India (Justices M.C. Mahajan, A.K. Sarkar and P.B. Gajendragadkar), former Attorney General M.C. Setalvad, and the then Advocate-General of Maharashtra, H.M. Seervai, he posed these queries:

Three distinct views have been expressed on this matter. One view has been that the leader of the largest party in the legislature should be invited to form the government irrespective of the consideration whether or not such a party commands a stable majority.

Supporters of this view have also suggested that the Governor should use his influence to secure advice to summon the newly elected legislature as early as may be possible so that the extent of the support to the ministry may be tested in an open constitutional forum.

The second view has been that if the party in power had failed to secure an absolute majority in the newly elected legislature, the leader of that party should not be invited to form the government even if it were the largest single party in the legislature and that, instead, the Leader of the Opposition or the leader of the next largest party should be invited to form the government. The reasoning behind this view is that the electoral verdict should be regarded as, in effect, disqualifying the party in power for holding office for a further term.

The third view is that the Governor should make the endeavour to appoint a person who has been found by him, as a result of his soundings, to be most likely to command a stable majority in the legislature.

Only Setalvad and Seervai cited authorities. The judges gave ipse dixit of little value with an air of confident authority. Setalvad, Seervai and Mahajan plumped for the second course. There was no endorsement of the first course by anyone and complete agreement on the third, an obvious counsel but of little practical value.

There is one good rule that Ivor Jennings formulated in Cabinet government: It is an accepted rule that when a government is defeated, either in Parliament or at the polls, the Queen should send for the Leader of the Opposition.

The overriding rule, of course, is that if, meanwhile, a viable coalition is drummed up with a credible majority, it has to be invited. The test is not necessarily an arithmetical majority but a preponderance that renders any challenge futile. The Indian innovation of a minimum common programme is well founded. Braziers conditions reinforce it. There must be agreement between all the parties in the coalition. Proof to be made public that a coalition government would be viable, there would have to be a copper-bottomed agreement between the prospective coalition partners, including the name of the proposed Prime Minister, disposition of Cabinet offers, an agreed Queen Speech, and a guarantee that the coalition would not seek a dissolution within a stated minimum time.

That agreement would have to be published. The Indian equivalent to the Queens speech, outlining the governments agenda, is the minimum common programme (now called, inaptly, the common minimum programme).