Twill be recorded for a precedent/ And many an error by the same example/Will rush into the State.
Every word of Portia’s famous lines in Shakespeare’s Merchant of Venice applies to the Supreme Court’s order in Jagdambika Pal vs Union of India & Ors. [(1999) 9 Supreme Court Cases 95]. The respected law reports properly published it as “Records of Proceedings”. It is not a judgment. It is an ad hoc order to tick over on a crisis. It was given on February 24, 1998, by Chief Justice M.M. Punchhi and Justices S.C. Agrawal and K.T. Thomas, without much argument at the Bar on constitutional issues. That did not inhibit this three-member bench from inventing a doctrine unknown to constitutional law, “a composite floor test”.
This has been much touted in debates on the recent succession contest in Tamil Nadu following the death of Chief Minister J. Jayalalithaa.
The order, made to tide over a crisis, runs into a mere four paragraphs, of which the first is relevant. It reads thus: “On hearing them (counsel), the order which commends to us is as follows: (i) A special session of the Uttar Pradesh Assembly summoned/convened for 26.2.1998, the session commencing forenoon. (ii) The only agenda in the Assembly would be to have a composite floor test between the contending parties in order to see which out of the two contesting claimants of chief ministership has a majority in the House. (iii) It is pertinently emphasised that the proceedings in the Assembly shall be totally peaceful and disturbance, if any, caused therein would be viewed seriously . (iv) The result of the composite floor test would be announced by the Speaker faithfully and truthfully.” (Emphasis added, throughout). We all know what happened on February 18, 2017.
Whoever gave their Lordships this bright idea of a “composite floor test”? It is unknown to constitutional law. The order does not constitute a precedent. The Constitution makes a clear distinction between judgments and orders. Orders are made either at the end of a judgment, in order to give effect to its findings on law and on facts, or they are made on an application pending the hearing of the case in situations of urgency; equities are balanced and an order follows. Article 141 of the Constitution says: “The law declared by the Supreme Court shall be binding on all courts within the territory of India.” The law is declared in a judgment, after hearing the parties fully. It is not declared in an order or a decree of the court. Article 142 refers to the enforcement of orders and decrees of the Supreme Court.
The order in Jagdambika Pal’s case did not declare the law. This, apart from the fact that the bench—a three-member one at that—did not consider precedents and gave no reasoned judgment but invented a doctrine by its own ipse dixit .
The framers of the Constitution had an option. They could have adopted Article 63(1) of the Basic Law of the Federal Republic of Germany, which was promulgated on May 23, 1949, while the Constituent Assembly of India was still at work. It provides for election: “The Federal Chancellor shall be elected by the Bundestag without debate upon the proposal of the Federal President.” He makes the initial choice; the Bundestag (lower House of Parliament) ratifies it or rejects it. Article 90(2A) of the Constitution of Pakistan provides for election of the Prime Minister straightaway without a “proposal” from the President.
The framers of India’s Constitution followed the British model. Article 75(1) of the Constitution simply says that “the Prime Minister shall be appointed by the President”. There is an identical provision in respect of the Chief Ministers in Article 164(1). They are based on an understanding of the recognised conventions of the British parliamentary system. That was made clear in the Constituent Assembly and has been recognised by the Supreme Court ( Ram Jawayar Kapur vs The State of Punjab AIR 1959 Punjab 549 and S.C. Advocates on Record Association vs Union of India (1993) 4 SCC 441 at page 656, paragraph 353).
The Chairman of the Drafting Committee of the Constituent Assembly, Dr. B.R. Ambedkar, explained the correct constitutional position authoritatively in the 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. With regard to the Prime Minister it is not possible to avoid vesting the discretion in the President. The only other way by which we could provide for the appointment of the Prime Minister, without vesting the authority or the discretion in the President, is to require that it is the House which shall in the first instance choose its leader, and then on the choice being made by a motion or a resolution, the President should proceed to appoint the Prime Minister.”
Mohammed 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: “ 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). Debates on Chief Ministers do not take into account the fact that the principles they propound will apply to the Prime Minister one day.
As a matter of fact, the Drafting Committee had drawn up two Instruments of Instruction for the Guidance of the President and the Governors. The Instrument for the President (Schedule III-A) was referred to in the draft Article 62. Paragraph 2 said: “In making appointments to his Council of Ministers, the President shall use his best endeavours to select his Ministers in the following manner, that is to say, to appoint a person who has been found by him to be most likely to command a stable majority in Parliament as the Prime Minister, and then to appoint on the advice of the Prime Minister those persons (including so far as practicable members of important minority communities) who will best be in a position collectively to command the confidence of Parliament.
“`In all matters within the scope of the executive power of the Union, the President shall in the exercise of the powers conferred upon him be guided by the advice of his Ministers.”
This was fully in accordance with the practice in Britain, Canada and Australia. It was unwisely dropped at the very last moment on October 11, 1949, a little over a month before the Constitution was adopted. Had it been adopted, it would have spared us all the rancorous debates between 1969 and 1979. The subject has been most ably analysed by Justice M.M. Ismail of the Madras High Court in his book The President and the Governors in the Indian Constitution (Orient Longman, 1972). Justice Ismail was a great judge of high integrity and erudition. A Tamil scholar, he had translated the Ramayana. It is a measure of the depths to which Indira Gandhi could stoop that she transferred him, without cause, to another High Court. He resigned and the judiciary lost one who was an ornament to the institution.
The instrument enjoined the President to act on an honest belief, based on his soundings, as to the likelihood of the nominee’s ability to command a majority in the House. Actual proof is not required. Parades of legislators and the furnishing of lists are not required either. In the S.R. Bommai case (1994) 3 CCC 1, four of the nine Judges pronounced emphatically in favour of floor tests. Justice S.C. Agrawal was one of them. He was also on the three-member bench in the Jagdambika Pal case which did not refer to the Bommai case. None of those nine judges spoke of “composite floor test”, nor did the three judges who did spell out its essentials.
We have a strange tendency to set about reinventing the wheel every time a “constitutional crisis” arises, as if it had no precedent and no guidance was to be found in works of authority on constitutional law. India has known three successions after the death of a Prime Minister in office—Jawaharlal Nehru in 1964, Lal Bahadur Shastri in 1966 and Indira Gandhi in 1984— not to forget Tamil Nadu Chief Minister M.G. Ramachandran’s death in 1987.
Ivor Jennings’s classic Cabinet Government (third edition) says: “The Queen has a real discretion only where the retiring or deceased Prime Minister has no accepted second-in-command ready to step into his shoes. In 1923, as we have seen, George V had to choose between Lord Curzon and Mr Baldwin. In 1908, however, Mr Asquith, who had acted as Sir Henry Campbell-Bannerman’s deputy during his illness, was the obvious and inevitable successor. In 1935 Mr MacDonald was the leader of a coalition government in which the Conservatives had an immense majority. When he resigned (and it appears that he was forced to do so by the pressure of his Conservative colleagues) George V had no alternative but to send for Mr Baldwin, the Conservative leader, who was already in effective control of the Cabinet. … When Mr Chamberlain resigned in 1940, however, the King’s choice was really determined by the Labour Party. It was necessary to appoint a Prime Minister who could secure the support of the Labour leaders and form a ‘truly national’ government. They were not prepared to serve under Mr Chamberlain or any of the ‘men of Munich’. Mr Churchill had attacked the Munich policy, had not been considered responsible for the disaster in Norway (though as First Lord of the Admiralty he had accepted his share of collective responsibility), and was acceptable to the Conservative party as well as to the Labour Party. Effectively, the King had no choice. If there is a Deputy Prime Minister he has a sort of claim, not necessarily conclusive but nevertheless strong, to the succession. ” Jayalalithaa did not name Sasikala as her successor. She knew she was in poor health.
To continue: “Clearly the leader of the House and the temporary chairman of the Cabinet have claims, but they are far from conclusive, as Lord Curzon discovered. The Queen has a discretionary prerogative, and her selection cannot be forced by action by the Prime Minister. On the other hand, her task is to form a government which the party majority will follow; and the claims tend to harden into claims of right as the Leader of the House or the acting chairman of the Cabinet becomes more and more clearly acceptable to his party.”
In the instant case, O. Panneerselvam was head of a caretaker government on his leader’s death. His choice in that capacity none questioned since he had occupied the post earlier too. But this did not impart finality to his claims, especially since the party split.
His initial resignation was proper. So was Governor Ch. Vidyasagar Rao’s action in taking time for a final choice. As that eminent authority Professor A. Berriedale Keith held, “resignation is in law not a cessation of tenure of office” and “a Prime Minister and his colleagues by constitutional practice remain at their posts, pending the moment when a new Ministry is constituted and is prepared to take over; should the Prime Minister die in office, the rest of the Ministers likewise remain in office until the new government is constituted.” The T.V. anchors and some of their invitees, even less educated than their hosts, should have saved their disquiet for another occasion.
Caretaker governments This is what Professor Geoffrey Marshall and G.C. Moodie said on similar cases: “The operations of government are regularly suspended in large part for about three weeks from the announcements of a general election until after the result of it is known. Those periods of suspension have not caused the heavens to fall, and it is difficult to see why a longer period during which coalition negotiations were held after the return of a hung Parliament would invite catastrophe. The period itself is scarcely crucial: in 1979, for example, the suspension lasted five weeks from the fall of the Callaghan government to the return of its Conservative successor, and during that time the Labour government acted as a caretaker administration, introducing a minimalist Budget and Finance Bill after discussions with the Opposition. And in 1945 Churchill formed a caretaker Conservative government on the break-up of the war coalition which governed for two months until the overseas election results were declared. A closer analogy is in the six-week interregnum between the 1923 general election and MacDonald’s appointment in 1924. In all three cases necessary administration continued. The other situation of suspension occurs when a Prime Minister wishes to resign so as to make way for a successor from his government. For example, the Wilson-Callaghan transfer in 1976 took three weeks, and the Wilson government remained throughout effectively as a caretaker.
“Thus a Prime Minister whose authority is in question by virtue of a dissolution or his impending retirement (whether voluntary or otherwise) had been entirely able to preside over routine matters of government. … indeed caretaker governments have worked well in Britain, although we have not tended to recognise caretaker governments as such, rather as Monsieur Jourdain spoke prose most of his life without knowing it” (Rodney Brazie, Constitutional Practice , pages 44-45).
They opined: “There was until recently one situation in which the Monarch might be called upon to exercise a degree of discretion but even this has now in practice been removed as the result of party political developments that took place between 1957 and 1965. …
“This situation arose when a Prime Minister died in office or resigned for personal reasons, that is to say, when a vacancy occurred which was not accompanied by any change in the position of the parties. Even then, there might sometimes be no room for choice, as when Sir Anthony Eden succeeded Sir Winston Churchill. But when Sir Anthony retired in his turn in 1957, the Queen was not presented with any one obvious successor. Under such circumstances it was normally assumed that, although the Monarch would probably seek advice in order to discover what persons would be acceptable to the party in power, yet for the final choice she alone was morally and constitutionally responsible. It was clear, however, that an unwise or ill-advised Monarch might conceivably act in a manner which could be construed as partial, in that it appeared to reflect a royal preference for one particular group within the party. It is true, and important, that a party in a majority is able to reject any selection of which it does not approve—if it is prepared to undergo the internal conflict this would probably entail. A royal ‘mistake’ is not final; but it could still harm the Monarch’s own reputation. To prevent this there must exist rules capable of serving as effective guides to action.”
A senior Labour leader, Tony Benn, recorded:
“This afternoon to the Commons and talked to Frank Barlow, the Secretary of the PLP [Parliamentary Labour Party], who told me in detail the arrangements that had been made in the event of Harold Wilson dying. The news will be conveyed to a meeting of Ministers at Number 10, which will include the heads of all Departments, i.e. Ministers of Cabinet rank, as well as Cabinet Ministers themselves. Though there is no Deputy Prime Minister, George Brown is Deputy Leader of the Parliamentary Labour Party and will therefore have Harold’s party responsibilities.
“Bowden as leader of the House would be responsible for informing the House. As soon as Ministers know, letters or telegrams will be sent to every Commons Member of the Parliamentary Labour Party. A meeting will be summoned within twenty-four hours if the House is sitting or within forty-eight hours during a recess. No Lords will be present. At this meeting, nominations will be received and ballot papers will be duplicated on the spot. Four tellers will be appointed and the party will proceed immediately to a vote.
“It will be the usual exhaustive ballot procedure and if the first vote does not give an overall majority to one of the candidates there will be an adjournment for fifteen or twenty minutes in the same room to give candidates the opportunity to withdraw. There will then be another ballot and so on, until a new Leader of the Parliamentary Labour Party is appointed. The press will not be admitted until that is decided. The announcement will be made in a statement by Frank Barlow, as Secretary to the Parliamentary Labour Parry, and will be conveyed to Sir Michael Adeane at Buckingham Palace. The Queen has been told that she is not to summon anybody to form a government until she has heard who the new Leader is.” (Tony Benn, Out of the Wilderness: Diaries 1963-1967 ; page 263.)
In Tamil Nadu, as elsewhere in our country, such rules simply do not exist. The caretaker Chief Minister’s authority was challenged and the All India Anna Dravida Munnetra Kazhagam (AIADMK) split. The Governor took a call on February 16, 2017, and swore in Edappadi K. Palaniswami as Chief Minister.
In 1984 there was little doubt as to Rajiv Gandhi’s succession on his mother’s assassination. Indira Gandhi had groomed him for four years following Sanjay Gandhi’s death in 1980. Pranab K. Mukherjee paid heavily for his loud musings on the plane ride back from Calcutta (Kolkata) because none doubted the ambitious streak in him. It came into full play in 2012 with inspired articles in the press in his support.
Succession troubles A split, however, was very evident in 1964 and 1966. On both occasions Morarji Desai threw his frayed Gandhi cap into the ring from the word go. On both occasions, he lost. Those were times when a foreigner enjoyed greater access to the high and mighty across the political divide. Michael Brecher was one of them. His book Succession in India is based on interviews with the entire gang of operators. In 1964 and in 1966, the arch hypercritic Gulzari Lal Nanda became acting Prime Minister and sent feelers for permanence amidst copious tears and profuse fealty to his high Gandhian principles like Moraji, but without the tears.
On both occasions Congress president K. Kamaraj acted with aplomb. In 1964, the Congress Working Committee (CWC) led the way. It authorised Kamaraj to take the soundings by consulting members of the CWC, office-bearers of the Parliamentary Party, Chief Ministers and “such other Congress MPs as he may desire to meet”. The Parliamentary Party asserted itself. But it was Kamaraj who presided over it on the crucial day. At the end of a “perfunctory” exercise in soundings, Kamaraj told the CPP: “Lal Bahadur Shastri”. Morarji felt tricked. The ritual of acceptance by Parliamentary Party was performed after this necessary exercise. Congress culture had triumphed. It came to envelop all the Jana Sanghis, Socialists and Communists. It reflected, after all, our dear desi culture.
In 1966 there was a straightforward election. On January 19, 1966, 350 Congress MPs voted in favour of Indira Gandhi; 169 were for Moraji. It was the trickery in the “election” of V.P. Singh as leader of the Janata Dal, after Devi Lal stepped down as arranged, which drove Chandra Shekhar to vow to topple him. He did so only to be ousted before long by a Rajiv Gandhi who had deceived President R. Venkataraman— characteristically.
Trickery never pays. It remains to be seen how the partisans in Tamil Nadu’s contest will behave. The only sure test was the traditional vote of confidence in the Assembly. That happened on February 18. O. Panneerselvam lost but in questionable circumstances. However, constitutional norms, let alone the text, must not be tweaked to secure a favourable result. It is hard to question the procedure that was followed by the Governor, harder, still, to be pleased with the result. The Chief Minister is an avowed henchman of V.K. Sasikala, who is serving time in jail on her final conviction by the Supreme Court on February 14, for amassing the people’s money by defrauding them.
It remains to be seen how the people will react as that verdict sinks into their consciousness. Politically, Tamil Nadu is split. None can confidently assert whether public opinion will accept the new Chief Minister. As Winston Churchill said in the House of Commons on June 2, 1931: “No government which is in a large minority in the country, even though it possess a working majority in the House of Commons, can have the necessary power to cope with real problems”.
