Wednesday, January 28, 2009

Guest Post: Manoj Mitta replies

[I feel privileged to introduce Manoj Mitta to our readers. A senior editor with the Times of India, New Delhi, he holds the distinction of having broken the highest number of legal stories in the country during the past decade. Here he responds to my posts on his recent story.]

Guest Blogger: Manoj Mitta

Why there was no need for Manmohan Singh to resign

If it is alright for Pranab Mukherjee to officiate for Manmohan Singh during his illness, then Gulzarilalal Nanda could well have filled the void in 1964 and 1966 without going through the formality of taking oath as Prime Minister. Or so says my friend V Venkatesan while disagreeing with my explanation of how the cabinet is carrying on despite the Prime Minister’s temporary absence. In reality, Nanda is no precedent to today’s situation because both his stints followed the incumbent’s death, not illness. That makes all the difference.

For, contrary to Venkatesan’s impression, the Constitution does make a distinction between a casual vacancy and a temporary absence, even if it did so in the context of the President. Article 65 (1) says in the event of a vacancy in the office of the President by reason of “his death, resignation or removal or otherwise,” the Vice President shall act as President till a new one is elected. And Article 65(2) says when the President is unable to discharge his functions owing to “absence, illness or any other cause,” the Vice President shall discharge his functions till the President resumes his duties.

Given the calibrated approach displayed by the Constitution in the case of the President, there is little reason to suggest that similar flexibility cannot be adopted in the case of Prime Minister in the absence of provisions corresponding to Articles 65(1) and (2). Since there is no vacancy just now in the office of the Prime Minister, there was no need for Mukherjee or anybody else to be sworn in as Manmohan Singh’s successor upon his hospitalisation. Instead, on the analogy of Article 65(2), somebody could well officiate for Manmohan Singh till he recovered enough to resume his duties.

Such an interpretation would also save the constitutional system a great deal of stress. For, if the PM were to resign for any reason (whether due to an illness or otherwise), then the entire council of ministers would have had to go with him. Whoever had been sworn in as PM for the interim period or otherwise, would also have had to get a team of ministers sworn in along with him or after him. This is because when an ordinary minister resigns, there will be a vacancy only in his ministry. But if the PM resigns, then the whole government collapses.

The term of the council of ministers is co-terminus with that of the PM’s. This does not however detract from the fact that the PM is first among equals in what is known as the “cabinet government.” Though other cabinet ministers are appointed on his advice, they are not subordinates who can be overruled by the PM. As Article 74 says, it is the council of ministers that aids and advises the President, and as Article 75 says, it is again the council of ministers that is collectively responsible to Lok Sabha. The only special provision that is there for the PM is the one that casts a duty on him to be a conduit between the President and the council of ministers.

5 comments:

tarunabh said...

I rather agree with Manoj's position. Who is the Prime Minister is essentially a political question - will we expect the interim PM to also demonstrate that she has the confidence of the Lok Sabha? Will the entire cabinet need to be sworn in again?
The two essential questions one needs to ask are (1) whether constitutionally, there is any function that only the person designated as PM can perform and cannot delegate. (2) Is this function potentially of such urgency that there must always be a PM able to perform it.

Almost all excecutive powers relating to the departments under the PMO can be delegated to other ministers or officers (as it seems to have been done in this case). PM-specific functions such as prerogative to appoint ministers etc tend to be of a non-urgent nature. One example of a potentially urgent power is the nuclear button - I am not sure of the legal authority for such power, and whether it is non-delegable.

The constitution may have wisely left the issue as a political question - constitutions cannot possibly envisage all situations, and political conventions need to evolve to fill in the gaps. There may not be much merit in legalising all political questions.

Anonymous said...

How do we know:

Great response there! And i tend to agree with Manoj Mitta here.. :-

V.Venkatesan said...

Manoj & Tarunabh:

The question whether Constitution-makers deliberately did not provide for the Acting Prime Minister (unlike the Acting President in case of President's illness) still remains unanswered. You assume that it could have been unintentional, and the answer lies in politics. In my view, the Constitution makers were not unaware of this problem.

U.K., which does not have a written Constitution, still grapples with this problem. (See Andrew Vennard's article in Public Law (2008). Though Vennard suggests enactment of provisions for Acting PM, Nanda precedent shows it is possible to have an Acting PM for short durations, without our Constitution explicitly saying so.

My point about Constitution making no distinction between death and illness is only with regard to the PM, as I have already acknowledged that the Constitution provides for Acting President.

Supposing we have a provision for Acting PM, then it is inevitable that the Acting PM is sworn-in along with the entire council of ministers. Could anyone call it a Constitutional stress?

The question is whether the PM's incapacity is for a longer period. Both the degree of incapacity and the duration may have to be defined. If what you are suggesting is conceded, then it will lead to absurd situations. Remember the consequences of MGR's long absence in the U.S. for treatment. He continued to be the CM, despite full incapacity. He did not resign. Surely, his absence must have been considered as abdication, and the Governor appointed someone else till the ADMK chose another leader.

Take another instance. If a PM suffers complete incapacity, but does not resign. Is there a way out? Will the country not have another PM if the doctors say he might recover after a month or two months? Should the country be run on medical opinion which may be debatable, rather than on facts?

Tarunabh, Nanda did not seek a vote of confidence on both the occasions, even though it was not clear at the time he was sworn in exactly how many days the Congress will take for choosing the next leader. And vote of confidence was not unknown then. It was the Madras Assembly which witnessed the first vote of confidence moved by Rajaji in a hung assembly. The Congress had majority, so the President trusted Nanda too has majority. Now also Manmohan Singh having proved his majority, the President will have to satisfy herself, whoever the Congress chooses will enjoy the majority, rather than ask the new leader to prove majority.

Just see who is in control: President took the R Day salute, while the Defence Minister is in-charge of something, and Pranab Mukherjee is given only responsibility for chairing Cabinet meetings and ceremonial duties. It is not clear who is in control of governance as such: there are several members who want to enjoy the fruits of PM's absence. It is not an ideal situation.

Manoj Mitta said...

Venkatesan,you are still not appreciating the distinction Art 65 makes between vacancy and absence. In the event of vacancy (caused by death or resignation), the vice president will be sworn in as acting president. And in the event of absence or illness, the vice president will merely discharge his functions. This means the VP does not have to be sworn in as acting President. It is on this analogy that Pranab Mukherjee is discharging some of the functions of the PM (by, say, presiding over Cabinet meetings) without taking oath as acting PM.

V.Venkatesan said...

I do appreciate the distinction between acting and discharging which Art.65 seeks to make. My short question is why should we adopt this provision in the case of a PM who was fully incapacitated for a week, and will remain partly incapacitated for 3 weeks. If the Constitution-makers wanted a similar provision in the case of the PM, nothing prevented them from providing it. But they consciously avoided it because they understood the office of the PM differently from that of the President.

Can anyone say with certainty that Pranab was fully officiating/discharging the functions of the PM? He was essentially sharing it with others. Does the constn. envisage the diffusion of PM's functions in his absence? What if the PM's illness prolonged, or let us imagine if a PM slipped into coma for several days without resigning. Then also, Art.65(2)will help?

The issue may appear academic, but there are clear lessons to be learnt from Nanda's precedent. Here was a PM who acted as PM (it could be death or illness or whatever reason because the constn. is silent on this)with the entire powers and resp. of PM after taking oath, even though the Constn. does not provide for an automatic succession as an interim or acting PM. Is this precedent not more relevant than Art.65(2)? Why should we shy away from the interim PM and his team taking oath? After all, a PM with full powers, responsibilities and duties is good for the country, rather than the uncertain arrangement we have now with at least three power-centres seeking to share the PM's functions.