The Government of India’s 79 Ministers have taken to their offices like bees to honey yet the 15th Lok Sabha that the people of India elected a fortnight ago is still three days from being convened.
In other words, people have been taking oaths and entering offices as Ministers even before they have taken their oaths or their seats in the 15th Lok Sabha which accords the Government its political legitimacy by its confidence!
Let posterity recall that the 15th Lok Sabha was made to needlessly wait from May 16 2009 until June 1 2009 and despite this the Government formed itself and entered office during that time. It cannot be something that helps the psychology or morale of our elected representatives nor be something conducive to the smooth working of the House.
It is all a terrible constitutional muddle which I doubt the PM or his party or Government, or even the Opposition, will admit to or want to clear up on their own but shall probably have to await a Constitutional Bench of the Supreme Court of India telling them what parliamentary law is in due course.
There are at least three Supreme Court lawyers, all highly voluble, among the higher echelons of Congress Party politicians; it is surprising that not one of them has been able to get the top Party leadership of Sonia Gandhi and Manmohan Singh to see the apparent breach of normal constitutional law in Parliament not having met more than 10 days after it was elected.
A Government has been formed, Ministers have entered their offices and have been holding press-conferences and taking executive decisions, wannabe-Ministers continue to be wrangling night-and-day for the plums of office — BUT THERE IS NO PARLIAMENT!
Today is the death-anniversary of Jawaharlal Nehru and last week was the death anniversary of Rajiv Gandhi.
Nehru, whatever his faults and infirmities, was an outstanding parliamentarian and a believer in the Westminster model in particular. He was intimately familiar with its unpoken customs and unwritten laws. He would have been completely appalled by the situation today where luminaries of the party that goes by the same name as the one he had led are paying obeisance to his memory 45 years after his death but have failed to see the absurdity in having a Government in office with no new Parliament ten days after a month-long General Election was over! (Incidentally, had he not left explicit instructions against any hero-worship taking place of himself too?)
Rajiv knew his grandfather and had acquired a sense of noblesse oblige from him. He too would have been appalled that the procedural business of government had been simply procrastinated over like this.
It surprises me that Dr Manmohan Singh, having been a post-graduate of Cambridge, having earned a doctorate from Oxford, and more recently having been awarded honorary doctorates from both Ancient Universities, should seem so unaware of the elements of the Westminster model of constitutional jurisprudence which guides our polity too.
It is too late now and the mistakes have been made. I hope his new Government will come to realise at some point and then keep in mind that our Executive receives political legitimacy from Parliament, not vice versa. An Executive can hardly be legitimately in office until the Parliament that is supposed to elect it has been sworn in.
As for our putative Opposition in the Parliament-yet-to-meet, it seems to have drawn a blank too, and eo ipso revealed its own constitutional backwardness and lethargy.
Sad to say, Parliament’s sovereignty has been diminished, indeed usurped, by the new Executive Government.
Here is a brief record for future generations to know.
India’s people completed their voting in the 15th General Elections on Wednesday May 13 2009.
The results of how they had spoken, what was their will, were known and declared by Saturday May 16 2009.
There was no legal or logical reason why the 543 members of the 15th Lok Sabha could not have been sworn in as new MPs by the close-of-business on Monday May 18 at the latest.
On Tuesday May 19 the 15th Lok Sabha could have and should have met to elect itself a pro tem or even a permanent Speaker.
The Speaker would have divided the new House into its Government Party and its Opposition.
There would have been a vote of confidence on the floor of the House, which in the circumstances would have been in favour of the Government Party.
Observing this to have taken place, the Hon’ble President of India as the Head of State would have sent for the leader of the Government Party and invited her to form the new Government.
In this particular case, the leader of the largest political party, namely Sonia Gandhi, would have been accompanied perhaps by the Leader of the Lok Sabha, Pranab Mukherjee, as well as her personal nominee for the position of PM, namely, Manmohan Singh.
Sonia Gandhi would have respectfully declined the invitation of the President to be the new Prime Minister, and she would have also explained that she wanted Manmohan Singh to have the position instead.
The President would have said “Very well, Dr Singh, can you please form the Government?”
He would have said, “Yes Madame President it shall be a privilege and an honour to do so”.
The President would have added, “Thank you, and I notice you are not a member of the Lok Sabha at the moment but I am sure you are taking steps towards becoming one.”
End of visit.
Manmohan Singh would have been sworn in as PM and would have gone about adding Ministers at a measured pace. Later, he would have resigned his Rajya Sabha seat and sought election to the Lok Sabha on the parliamentary precedent set by Alec Douglas-Home.
What has happened instead?
On May 18 2009, instead of 543 members of the 15th Lok Sabha taking their oaths as required by parliamentary law and custom, Dr Singh held a purported “Cabinet” meeting of the 14th Lok Sabha — a long-since dead institution!
Some of the persons attending this meeting as purported “Cabinet ministers” had even lost their seats in the elections decided a few days earlier and so had absolutely zero democratically legitimate status left. All these persons then submitted their purported resignations which Dr Singh carried to the President, stating his Government had resigned. The President then appointed him a caretaker PM and he, along with Sonia Gandhi, then went about “staking claim” to form the next Government — turning up at the President’s again with “letters of support” signed by some 322 persons who were MP-elects but were yet to become MPs formally by not having been sworn in.
The President appeared satisfied the party Sonia Gandhi and Manmohan Singh belonged to would command a majority in prospect in the Lok Sabha and invited him to be PM. Some major public wrangling then took place with at least one of his allies about cabinet berths — and that is the situation as of the present moment except that Dr Singh and several others have been sworn in as the Council of Ministers even though the new 15th Lok Sabha of 543 members has still not convened! It has been all rather sloppy and hardly uplifting.
Parliament is supposed to be sovereign in India.
Not the Executive Government or the largest political party or its leader.
The sovereignty of Parliament required Sonia Gandhi and Dr Singh to have realised
first, that the 14th Lok Sabha stood automatically dissolved when elections were announced;
secondly, that the 15th Lok Sabha could have and should have been sworn in by Monday May 18;
thirdly, that there should have been a vote of confidence in the Lok Sabha immediately which would have gone in favour of the Government Party;
fourthly, that only then should the Executive Government have been sought to be formed;
and of course fifthly, that if that Executive Government was to be led by someone who happened to be a member of the Rajya Sabha and not the Lok Sabha, parliamenary law and custom required him to follow the Douglas-Home precedent of resigning from the former and seeking election to the latter at the earliest opportunity.
Let future generations know that as of today, May 25, the 543 persons whom the people of India voted to constitute the 15th Lok Sabha still remain in limbo without having been sworn in though we already have an Executive Government appointed!
The sovereignty of Parliament, specifically that of the Lok Sabha, has come to be diminished, indeed usurped, by the Executive. It is the Executive that receives its political legitimacy from Parliament, not vice versa. Nehru and his generation knew all this intimately well and would have been appalled at where we in the present have been taking it.
We in India did not invent the idea of Parliament, the British did. Even the British did not invent the idea of a “Premier Ministre”, the French did that, though the British came to develop its meaning most. Because these are not our own inventions, when something unusual happens in contemporary India to political entities and offices known as “Parliament”, “Prime Minister” etc, contrast and comparison is inevitable with standards and practices that have prevailed around the world in other parliamentary democracies.
Indeed we in India did not even fully invent the idea of our own Parliament though the national struggle led by the original Indian National Congress caused it to come to be invented. The Lok Sabha is the outcome of a long and distinguished constitutional and political history from the Morley-Minto reforms a century ago to the Montagu-Chelmsford reforms and Government of India Act of 1919 to the Government of India Act of 1935 and the first general elections of British India in 1937 (when Jawaharlal Nehru briefly became PM for the first time) and in due course the 1946 Constituent Assembly. Out of all this emerged the 1950 Constitution of India, drafted by that brilliant jurist BR Ambedkar as well as other sober intelligent well-educated and dedicated men and women of his time, and thence arose our first Lok Sabha following the 1951 General Elections.
“What are Lok Sabha Members and State MLAs legitimately required to be doing in caring for their constituents? First of all, as a body as a whole, they need to elect the Government, i.e. the Executive Branch, and to hold it accountable in Parliament or Assembly. For example, the Comptroller and Auditor General submits his reports directly to the House, and it is the duty of individual legislators to put these to good use in controlling the Government’s waste, fraud or abuse of public resources. Secondly, MPs and MLAs are obviously supposed to literally represent their individual constituencies in the House, i.e. to bring the Government and the House’s attention to specific problems or contingencies affecting their constituents as a whole, and call for the help, funds and sympathy of the whole community on their behalf. Thirdly, MPs and MLAs are supposed to respond to pleas and petitions of individual constituents, who may need the influence associated with the dignity of their office to get things rightly done. For example, an impoverished orphan lad once needed surgery to remove a brain tumour; a family helping him was promised the free services of a top brain surgeon if a hospital bed and operating theatre could be arranged. It was only by turning to the local MLA that the family were able to get such arrangements made, and the lad had his tumour taken out at a public hospital. MPs and MLAs are supposed to vote for and create public goods and services, and to use their moral suasion to see that existing public services actually do get to reach the public.”
What about the Rajya Sabha? I said in the same article:
“Rajya Sabha Members are a different species altogether. Most if not all State Legislative Councils have been abolished, and sadly the present nature of the Rajya Sabha causes similar doubts to arise about its utility. The very idea of a Rajya Sabha was first mooted in embryo form in an 1888 book A History of the Native States of India, Vol I. Gwalior, whose author also advocated popular constitutions for the “Indian India” of the “Native States” since “where there are no popular constitutions, the personal character of the ruler becomes a most important factor in the government… evils are inherent in every government where autocracy is not tempered by a free constitution.” When Victoria was declared India’s “Empress” in 1877, a “Council of the Empire” was mooted but had remained a non-starter even until the 1887 Jubilee. An “Imperial Council” was now designed of the so-called “Native Princes”, which came to evolve into the “Chamber of Princes” which became the “Council of the States” and the Rajya Sabha. It was patterned mostly on the British and not the American upper house except in being not liable to dissolution, and compelling periodic retirement of a third of members. The American upper house is an equal if not the senior partner of the lower house. Our Rajya Sabha follows the British upper house in being a chamber which is duty-bound to oversee any exuberance in the Lok Sabha but which must ultimately yield to it if there is any dispute. Parliament in India’s democracy effectively means the Lok Sabha — where every member has contested and won a direct vote in his/her constituency. The British upper house used to have an aristocratic hereditary component which Tony Blair’s New Labour Government has now removed, so it has now been becoming more like what the Rajya Sabha was supposed to have been like.”
The Canadian upper house is similar to ours in intent: a place for “sober second thought” intended to curb the “democratic excesses” of the lower house. In the Canadian, British, Australian, Irish and our own cases, the Prime Minister, as the chief executive of the lower house has immense indirect power over the upper house, whether in appointing members or even, in the Australian case, dissolving the entire upper house if he/she wishes.
Now yesterday apparently Shrimati Sonia Gandhi, as the duly elected leader of the largest political party in the 15th Lok Sabha, accompanied by Dr Manmohan Singh, as her party’s choice for the position of Prime Minister, went to see the President of India where the Hon’ble President apparently appointed Dr Singh to be the Prime Minister of India – meaning the Prime Minister of the 15th Lok Sabha, except that Dr Singh is not a member of the Lok Sabha and apparently has had no intent of becoming one.
In 2004 Shrimati Gandhi had declined to accept an invitation to become PM and instead effectively recommended Dr Singh to be PM despite his not being a member of the Lok Sabha nor intending to be so. This exploited a constitutional loophole to the extent that the drafters of our 1950 Constitution happened not to have explicitly stated that the PM must be from the Lok Sabha. But the reason the founders of our democratic polity such as BR Ambedkar and Jawaharlal Nehru did not specify that the PM must be from the Lok Sabha was quite simply that it was a matter of complete obviousness to them and to their entire generation that this must be so— it would have been appalling to them and something beyond their wildest imagination that a later generation, namely our own, would exploit such a loophole and allow a PM to be appointed who is not a member of the Lok Sabha and intends not to be so.
Ambedkar, Nehru and all others of their time knew fully well that the history and intended purpose of the Lok Sabha was completely different from the history and intended purpose of the Rajya Sabha. They knew too fully well that Lord Curzon had been explicitly denied the leadership of Britain’s Tory Party in 1922 because that would have made him a potential PM when he was not prepared to be a member of the House of Commons. That specific precedent culminated a centuries’-old democratic trend of political power flowing from monarchs to lords to commoners, and has governed all parliamentary democracies worldwide ever since — until Dr Singh’s appointment in 2004.
When such an anomalous situation once arose in Britain, Lord Home resigned his membership of the House of Lords to contest a House of Commons seat as Sir Alec Douglas Home so that he could be PM in a manner consistent with parliamentary law.
Dr Singh instead for five years remained PM of India while not being a member of the Lok Sabha. Even if reasons and exigencies of State could have been cited for such an anomalous situation during his first term, there was really no such reason for him not to contest the 2009 General Election if he wished to be the Congress Party’s prime ministerial candidate a second time. Numerous Rajya Sabha members alongside him have contested Lok Sabha seats this time, and several have won.
As of today, Dr Singh is due to be sworn in tomorrow as Prime Minister for a second term while still having no declared intention of resigning from the Rajya Sabha and contesting a Lok Sabha seat instead. What the present-day Congress has done is elect him the leader of the “Congress Parliamentary Party” and claim that it is in such a capacity that he received the invitation to be Prime Minister of India. But surely if the question had been asked to the Congress Party under Nehru or Indira or Rajiv: “Can you foresee a circumstance ever in which the PM of India is not a member of the Lok Sabha?” their answer in each case would have been a categorical and resounding “no”.
So the question does arise why the Congress under Sonia Gandhi has with deliberation allowed such an anomalous situation to develop. Its effect is to completely distort the trends of relative political power between the Lok Sabha and Rajya Sabha. On the one hand, the Lok Sabha’s power is deliberately made to diminish as the chief executive of the Government of India shall not be from the Lok Sabha but from “the other place” despite the Lok Sabha having greater political legitimacy by having been directly elected by India’s people. This sets a precedent that might get repeated in India in the future but which contradicts the worldwide trend in parliamentary democracies over decades and centuries in precisely the opposite direction – of power flowing in the direction of the people not away from them. On the other hand, the fact this anomalous idea has been pioneered by the elected leader of the largest political party in the Lok Sabha while her PM is in the Rajya Sabha causes a member of the lower house to have unexpected control over the upper house when the latter is supposed to be something of an independent check on the former!
It all really seems an unnecessary muddle and a jumbling up of normal constitutional law and parliamentary procedure. The Sonia-Manmohan Government at the outset of its second term should hardly want to be seen by history as having set a poor precedent using brute force. The situation can be corrected with the utmost ease by following the Alec Douglas Home example, with Dr Singh being given a relatively safe seat to contest as soon as possible, if necessary by some newly elected Congress MP resigning and allowing a bye-election to be called.
So @LokSabhaSectt@rashtrapatibhvn please follow my timetable for #17thLokSabha: Th 23/5 Results declared Fri 24/5 EC certifies results Sat Sun 25 26/5 Members sworn in Mon 27/5 Speaker pro tem divides House; Prez invites new @PMOIndia to form a Gov’t Tue 28/5 Cabinet appointed
While we do not have such a ceremony literally, we do have its republican equivalent in the well-established constitutional custom of the President of India after a General Election inviting one person to be Prime Minister and to form the new Government.
It soon shall be your solemn duty to invite such a new Prime Minister of India to form the Government.
Given the results of the 15th General Elections to the Lok Sabha, that invitation may be extended only to the Leader of the winning coalition in the Lok Sabha, who is Shrimati Sonia Gandhi.
The outgoing Prime Minister, Dr Manmohan Singh, not having contested the Lok Sabha election, may not by you be invited to be Prime Minister at this stage.
What happened in 2004 was that Shrimati Sonia Gandhi declined to accept such an invitation and instead effectively appointed Dr Singh to be PM despite his not being a member of the Lok Sabha nor intending to be so.
This exploited a constitutional loophole to the extent that our Constitution did not explicitly state that the PM must be from the Lok Sabha.
What may have been passable as the hurried exploitation of a loophole in 2004 is surely not acceptable in 2009.
Why the founders of our democratic polity such as BR Ambedkar and Jawaharlal Nehru did not specify that the PM must be from the Lok Sabha was quite simply that it was a matter of complete obviousness to them and to their entire generation that this must be so — it would have been appalling to them and something beyond their wildest imagination that a later generation, namely our own, would exploit this loophole and allow a PM to be appointed who is not a member of the Lok Sabha and intends not to be so.
Ambedkar, Nehru and all others of their time knew fully well that Lord Curzon had been explicitly denied the leadership of Britain’s Tory Party in 1922 because that would have made him a potential PM when he was not prepared to be a member of the House of Commons.
That specific precedent (culminating a centuries-old democratic trend of political power flowing from monarchs to lords to commoners) has governed all parliamentary democracies worldwide ever since — until Dr Singh’s appointment in 2004.
In fact, when such an anomalous situation once arose in Britain, Lord Home resigned his membership of the House of Lords to contest a House of Commons seat as Sir Alec Douglas Home so that he could be PM in a manner consistent with parliamentary law.
I believe you are fully within constitutional law and precedent to invite Shrimati Sonia Gandhi to form the new Government of India after the 15th General Elections to the Lok Sabha. If she declines and instead requests again the use of the loophole to appoint Dr Singh as PM, I believe that parliamentary law and precedent requires him to resign from the Rajya Sabha and instead contest a seat in the Lok Sabha.
First published in The Statesman Jan 13 2006 Editorial Page Special Article,
By Subroto Roy
The Speaker does not like the fact the High Court has issued notices questioning the procedure he followed in expelling MPs from Parliament. Sonia Gandhi’s self-styled “National Advisory Council” has demanded control over disbursement of 100,000,000,000 rupees of public money. The Manmohan Singh Government plans to quietly ignore the Supreme Court’s finding that it had breached India’s Constitution in imposing President’s Rule in Bihar. All three issues have to do with application of India’s Separation of Powers Doctrine, i.e. the appropriate delimitation of Constitutional powers between our Legislature, Executive and Judiciary.
A constitutional crime was attempted in India during the Indira-Sanjay Gandhi political “Emergency” declared on 26 June 1975. On 10 November 1975 (a time of press censorship) a 13-judge Bench of the Supreme Court met to hear the Government plead for overrule of Kesavananda Bharati (A.I.R. 1973 S.C. 1461), a landmark Nani Palkhivala once called “the greatest contribution of the Republic of India to constitutional jurisprudence”. Within two days, the Government had failed in the Court, and Kesavananda held. What was upheld? That while India’s Parliament was sovereign and could amend the Constitution, the amending power may not be used to alter or destroy “the basic structure or framework of the Constitution”. And the Supreme Court decides for itself whether Parliament has exceeded its legitimate power to amend.
Basic structure Palkhivala’s description of what constitutes the “basic structure or framework” of India’s Constitution is excellent enough: “the rule of law, the right to personal liberty and freedom from arbitrary arrest and imprisonment, the right to dissent which implies the freedom of speech and expression and a free press are… a part of the basic structure of a free democracy, and it is these priceless human freedoms which cannot be destroyed by Parliament in exercise of its amending power. Thus Kesavananda’s case ensures that tyranny and despotism shall not masquerade as constitutionalism.”
Palkhivala argued that, if anything, the aspects of Kesavananda that needed to be set aside were those that had over-ruled Golaknath (A.I.R. 1967 S.C. 1643) which said Parliament should not be held to have the power to abridge any fundamental right, indeed any amended article which abrogates any fundamental right is invalid.
Dicey said “In the principle of the distribution of powers which determines its form, the constitution of the United States is the exact opposite of the English constitution.” Kesavananda Bharati showed the midway point between the two in constitutional jurisprudence anywhere in the world. We are like the Americans and unlike the British first in being a Republic, and secondly in having an explicit written Constitution. We are like the British and unlike the Americans in being a parliamentary democracy where the Executive Branch of Government, namely the Prime Minister and his/her Cabinet is elected from within the Legislative Branch of Government, namely, Parliament, and must at all times retain the confidence of the latter, specifically the Lok Sabha, the House of the People.
The American Executive Branch has a directly-elected President who chooses his administration, and it is commonplace for him to not have the confidence of the Upper or Lower House of the Legislature, to the point that one recent president had to undergo impeachment proceedings and barely survived. There is no constitutional crisis in America if the Legislature loathes the President and wishes him out. The American President and his Executive Branch stay in office until the last minute of his fixed term.
PM answers to Parliament
In our system, the Prime Minister answers at all times to Parliament. Parliament in India’s democracy has normally meant the House of the People — where every member has contested and won a direct vote in his/her constituency. India’s current Lok Sabha has set a constitutional precedent not seen in more than a hundred years anywhere in electing an Executive led by someone not a member. The British Upper House used to have an aristocratic hereditary component which Mr Blair’s New Labour Government has removed, making it more like what the Rajya Sabha was supposed to be — except that by now our Rajya Sabha has tended to become a place for party worthies who have lost normal elections, superannuated cinematic personalities, perpetual bureaucrats still seeking office, and others who really should be at home helping to raise the grandchildren. Parliament may not have fully recovered its health ever since that constitutional crime committed against the Republic known as the Indira-Sanjay “Emergency” (and at least one member of Sanjay’s coterie wields much power today).
Crimes and misdemeanours
The Supreme Court’s finding that the Government breached the Constitution by imposing President’s Rule in Bihar is a finding not of a constitutional crime but of a constitutional misdemeanour. (For reasons given already in these columns on 20 October 2005, it has nothing to do with the President, who merely embodies the sovereignty of our Republic.) For an Executive Order or Legislative Act to be found by a competent Court as being unconstitutional means merely that it does not have to be obeyed by citizens. In the Bihar case, the Supreme Court found this consequence irrelevant because new elections were already in process, the result of which would come from the most authentic democratic voice possible, namely, the same people who elect the House of the People in the first place. India’s Executive has been found to have committed a constitutional misdemeanour, for which it needed to apologise to the Court and Parliament (who are its constitutional co-equals) and then ask the latter to renew its confidence — in which event, life goes on. If confidence was not renewed, the Government would fall and a new Government would have to be formed. But we do not have yet the idea of a backbench revolt —mainly because all the front benches themselves have tended to be in such confusion and disarray with regard to parliamentary traditions, processes and functions.
The Supreme Court as the ultimate protector of the Constitution would be well within its prerogative to oversee whether a Parliamentary Speaker has acted appropriately. Consider a hypothetical case. Once elected, a Speaker is supposed to have no party-affiliation ever more for the rest of his/her life. Suppose, hypothetically, a controlled experiment found a Speaker systematically biased in favour of his/her own former party-members and against their opponents. Where but the Courts could such arbitrariness be effectively remonstrated against? Even if the incumbent Speaker impossibly imagines himself the personal embodiment of the Legislative Branch, he is not beyond the Constitution and therefore not beyond India’s Separation of Powers’ Doctrine.
The Opposition had alleged that the Speaker failed to follow procedure which required the culprits in the expulsion case be referred to the Privileges Committee. But beyond that the Opposition was too confused and guilt-ridden to pursue the matter during the dying moments of Parliament’s Winter Session. In the clear light of day, the issue has now ended up in the Courts. If the Supreme Court eventually rules the Speaker had in fact failed to follow Parliament’s own procedures (and hence breached Constitutional practices), the Speaker would need to apologise to the Courts and the House that elected him, and perhaps offer to fall on his sword.
Finally, for the “National Advisory Council”, a wholly unelected body, to demand a say for itself over spending Rs. 100 billion in State and Union Government budget-making, would be another constitutional misdemeanour — unless its members are merely on the personal staff of the Hon’ble Member representing Rae Bareili, who may of course introduce whatever legislation on money-bills that any other Lok Sabha Member may do.
First published The Statesman, 20 October 2005, Editorial Page Special Article
The last and only time a Head of State of India “resigned” was when Edward VIII (uncle of the present Queen of England) abdicated in 1936 because he wished to marry Mrs Wallis Simpson, a twice-divorced American, and the British Government under Stanley Baldwin felt this was unacceptable to the public and told him so. To his eternal credit, Edward VIII chose true love over the vainglorious trappings of a constitutional monarchy, gave up the kingship, and went with his new wife into a quiet voluntary life-exile in France as the Duke and Duchess of Windsor. India’s Presidents cannot act in state except upon advice of the Cabinet. That means they cannot even resign from office except upon advice of the Cabinet. A President may tragically die in office in which case the Vice-President would become the acting Head of State but there is no provision or precedent in India for a President to be made to resign except for Edward VIII’s abdication.
Richard Nixon resigned the office of the President of the United States in 1974 and more recently William Jefferson Clinton was brought under a lot of pressure to do so by the legislative impeachment proceedings against him. Nixon resigned (which made Gerald Ford President) because it had become impossible for him to stay in office having been proved to have lied to the people, and Clinton managed to stay on by the skin of his teeth for similar misdeeds. But the American system is different because the Head of State and Head of Government are united in the person of the President.
In our system, the Head of State embodies the sovereignty of India and does nothing more. Mountbatten as the first Governor-General imagined himself much more than that and caused damage to the subcontinent’s polity which has still to be repaired. But the first four Indian Heads of State, C. Rajagopalachari, Dr Rajendra Prasad, Dr S. Radhakrishnan, and Dr Zakir Hussain, were exemplary role-models. Unfortunately since their time the office of the President has suffered some of the shocks too that have been suffered by almost all our institutions. For example, retired Presidents really should vanish most gracefully into quietude to write their memoirs and help raise their grandchildren, yet we have had a former President say that an award received after retirement as President has been his most prized. It is not logically possible for such a thing to happen, since to become President of India is the ultimate honour for any citizen of our country. We elect someone among us to be a constitutional monarch for a period of five years and call that person President. Even if a former Indian President should receive the Nobel Peace Prize afterwards it would not mean his/her having embodied the sovereignty of our Republic was not the ultimate honour.
In our constitutional law, our Head of State cannot choose to resign any more than the sovereignty of India can be made to momentarily come to an end. If, to construct a hypothetical case, a President of India while in office became, heavens forbid, physically or mentally incapable of carrying out the duties of the office, the Government of India as represented by the Union Cabinet may well look to the Vice-President to fulfil the role of the Head of State temporarily but there would be no provision for the President to be made to demit office. The only precedent is that of Edward VIII where his personal love for Mrs Simpson compelled his abdication upon the advice of the Prime Minister.
Bringing ourselves back to Bihar, the Honourable Supreme Court’s finding of unconstitutionality is of grave import. On the positive side, what it indicates yet again is that India’s political institutions, no matter how battered and bloody they become by our self-inflicted wounds, still do work.
Furthermore, for the Honourable Court to have allowed the elections to go forward indicates how fine is the quality of our justice, for the Court has allowed the people of Bihar to speak again, and of course Mr Nitish Kumar and friends have been free to use at the hustings the Court’s finding in their favour. Certainly heads should roll and be seen to roll for all this. The Governor should have gone immediately but has not only not done so, he has let it be known that he was acting under orders himself. If so, the least that should happen is that the party-functionary responsible for this should be sacked.
For some press-commentators to demand that Sonia Gandhi should replace Dr Manmohan Singh reveals an appalling ignorance of constitutional norms; this is not a matter of a “High Command” replacing one acolyte by another as chief minister somewhere – if a Prime Minister resigns, so does the entire Cabinet he has appointed, and a new Government has to be sought to be formed. At the same time it is less than candid for the Leader of the Opposition to demand via the television cameras that the Prime Minister should resign, since the Opposition knows fully well that there is an institution called Parliament which can express its lack of confidence in a Government. And of course it also remains open for the Prime Minister himself to go to Parliament and seek to renew its confidence in his Government when the public confidence has thus come to be shaken.
In fact, the right course of action for the President is to summon the Prime Minister and say something like: “It would appear the Judicial Branch of the Government of India has found the Executive Branch to have breached the Constitution. Reference must now be made to the Legislative Branch, namely, to Parliament, to see if it still has confidence in the Executive. Please ask for a Vote of Confidence in the Lok Sabha as soon as possible.” Of course, Dr Manmohan Singh has been the first Prime Minister in Commonwealth history since Salisbury who has not been himself a member of the Lower House. Curzon had wished to be British prime minister after returning from India but was passed over in 1922 in favour of Baldwin in a decisive demonstration that a prime minister must be a member of the Lower House. That is why Alec Douglas-Home stopped being a member of the House of Lords in order to become British PM in 1963-64. India in the last thirty years has seen parliamentary traditions at the Union and State levels being ruinously weakened (or not even allowed to develop) being replaced all too frequently either by street-fighting or by discretionary bureaucratic decision-making by committee. The present moment is an opportunity for the rot to be stemmed. It may be too optimistic though to believe that it will be taken.
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