Friday, January 30, 2009

Prime Minister's absence: Who is in control?

Even as it appears our debate on this issue is fast turning out to be academic, it refuses to die down. Read this story from Telegraph for an insight into how India was governed (or should I say non-governed) for the past one week. I feel it strongly vindicates my position that Gulazarilal Nanda is the correct precedent to follow in cases of prolonged incapacity of a Prime Minister. Andrew Vennard's article, 'Prime Ministerial succession' in Public Law (2008)(a subscription wall prevents online access to the article) cites Rodney Brazier about what he thinks as the correct position: If the PM suffered from ill health, the appropriate course of action is for the PM to inform the Sovereign and his parliamentary party of his illness and desire to resign, followed by the above procedure suggested by him in relation to the death of the PM. (Constitutional Practice (1999),p.17). Vennard adds that it may be appropriate for a PM who had advance warning of an illness that was likely to be permanent. Vennard's study shows that no Prime Minister in U.K. has suffered from an illness or an accident that has rendered them unconscious, mentally impaired, severely debilitated, or otherwise incapacitated during their term in office. More important, his study shows that there is no Constitutional convention for the incapacity of the Prime Minister, nor have any attempts been made to plan for this eventuality.

In his article, Vennard argues that the effectiveness and the accountability of the government is clearly promoted by having a recognised leader. The argument that a Cabinet chairperson looking after the PM's functions is sufficient does not appeal to Vennard. He recalls that in 1956 Rab Butler chaired the Cabinet for several months during Anthony Eden's illness. But he notes that although Eden was abroad in Jamaica, it was possible for Butler to remain in contact with Eden and to take instructions from him, or even recall Eden if necessary. Just contrast this with how our Prime Minister was completely inaccessible for governance for a week. He warns that the role of the PM is not confined to chairing the Cabinet, and that situations could develop which would require decisive leadership. If presented with such scenarios, an individual whose role is limited to chairing the Cabinet may find that he is unable to command sufficient authority. Recalling that Eden's absence occurred when Britain was in the process of disengaging from the Suez conflict, Vennard questions whether Eden was correct in taking leave on health grounds, when the situation was grave. Eden ultimately resigned shortly after he returned from his leave of absence.

Manmohan's absence when the country has just recovered from the Mumbai attack points to the inherent dangers to our security, and the potential risks of PM's absence, when such a crisis recurs.

Vennard's suggestion is to provide for an Acting PM. In the absence of a Deputy PM who could take over as the Acting PM, he says, the Cabinet Ministers should be empowered to appoint one of their number as Acting PM. Vennard does not include India in his comparative study. But India, in my view, appears unique in that it enables a Prime Ministerial succession with all the flexibility that is required for an interim period, without compromising or diluting his authority, powers or functions. Sadly, our leaders have not realised the inherent potential of Article 74 to address the situations like the one we are currently facing.

4 comments:

Dilip said...

VV,

Was the PM inaccessible for a week? I thought lot of political leaders were calling upon him during the time. Surely, during the coming weeks, I do not see why he will not be accessible if a situation that requires his attention arises.

You seem to define incapacity solely based on how long the PM keeps away from office. But for high political office, usually other factors are also taken into account such as mental incapacity and reversibility - PMs are often out of their office for election campaigning, foreign or domestic tours; so long as he is accessible, he can easily provide instructions should the situation warrant it. On both counts, I do not see that much of a case exists - he was under anesthesia for less than a day and perhaps sedation for a couple of days afterwards. If he had caught a flu, taken leave from work, stayed home, taken a sedative and went to sleep for 2-3 days, it would not have been all that different.

As Tarunabh pointed out, many responsibilities can be delegated to others and others can easily substitute for him at official functions. Even if there is no provision for an interim PM, we could probably adopt a set of procedures through a parliamentary enactment to resolve the four matters that Vennard points out: (1) the procedure for declaring the death of the PM as well as the procedure for declaring the onset and remission of any capacity (2) the office holders entitled to act and the procedure for their appointment (3) the functions and authority which may be exercised as well as any restrictions (4) the timetable for the appointment of a permanent successor.

V.Venkatesan said...

Dilip,
Of course, the PM was accessible to only the doctors and his close relatives for a week. His capacity as the PM will be only partially (we don't the degree) restored in the next three weeks. My intention in writing the post is not necessarily to focus on the current situation, but to raise the broader issue - whether the course adopted during the current short-lived incapacity of the PM could be a precedent. If we can justify the current practice on certain principles, then the same principles must be relevant if a similar incapacity of the PM arises in a different situation. You tend to compare the present situation with less serious kinds of absences like flu, travel or sedation with which I have no quarrel at all. Similary (if I read you correctly) you dismiss the chances of a PM suffering a prolonged incapacity as imaginary, and for which we need not worry about the current vacuum becoming a valid precedent. As the Telegraph story shows there was indeed a vacuum and had there been a serious crisis, say, war or a Mumbai-like terror attack, then we might have probably felt the risks of PM's prolonged absence for a week or partial absence for a month.

You also construe PM's functions as being mainly ceremonial which could be delegated to others in his absence. It is this view which the Const. Assembly considered and rejected, because the office of the PM is too important to contemplate even temporary absences of an incumbent. Otherwise, they could have provided the equivalent of Article 65(2) in the case of the PM, if it was felt his functions could be easily delegated to others. We can debate whether the current absence of the PM can be called as such, but to suggest that this can be a precedent for prolonged absences will mean we are ignoring the remedy provided in the Constitution itself in Art.74. An office can become vacant either through the death of the incumbent or through his absence. By absence I don't mean physical absence in Delhi while he is travelling, but complete inaccessibility for the purpose of office work for a prolonged period.

Political experience shows that formal designation of anyone as No.2 or Deputy who will automatically step into the PM's office in his prolonged absence is inexpedient; therefore, a full-fledged PM can occupy the seat for an interim period through political consensus. If Pranab is not acceptable, other names could have been considered.

Dilip said...

VV,

I agree that 'complete inaccessibility for the purpose of office work for a prolonged period' should disqualify an individual from remaining PM notwithstanding other factors. We could of course debate whether the current situation would amount to that but in principle, in considering the idea of choosing a full fledged PM, we would have to take into account some of the factors that Vennard points out. The process of choosing a new PM itself will take some time - for a full-fledged replacement, he recommends a maximum of 28 days. So one principle could be that a new PM ought to be appointed if the period of absence exceeds the period that finding a replacement could be reasonably expected to take. This balancing could still leave things unclear but it is better than not having anything at all.

One problem with this approach is that it would not take any account of the cost of instability that might ensue should the current occupant return. After all, as Vennard points out, the replacement would be under no obligation to relinquish the post and the ensuing tussle could paralyze the government. This could happen even after long periods - remember the battle for the Delhi CM's post between Madan Lal Khurana and Sahib Singh Verma - but it is likely to be worse if you were to appoint a new PM when the current incumbent was away for a week or so. So is a full-fledged PM in charge of a cabinet wracked by dissension preferable to the current arrangement with divided responsibilities? This suggests that if the PM's absence or incapacity happens to not be irreversible, an additional grace period might be advisable before choosing a replacement.

I agree that the PM's post is not ornamental but we need to separate what it is legally essential from what is politically advisable for him to do. For certain things such as cabinet appointments or removals, his involvement is perhaps absolutely necessary. But for other things, even though it may be a good idea for the PM to chair the cabinet meeting when the issue is discussed and announce the decision him/herself publicly, the matter is more one of political prudence than by reason of anything the constitution has to say.

When the World Trade Center was hit on 9/11, President Bush immediately signed an executive order to shoot down any civilian commercial aircraft if the pilot refused to carry out an order from the ground to change course, an extraordinary decision fraught with grave consequences. If a similar order became necessary in India, is it wise for the PM to personally approve it? Sure. Is the PM absolutely required to sign off on it? Probably not - for whatever reason (tours, illness, etc.), if he is not present and the situation warrants it, Pranab Mukherjee or Chidambaram could probably do it with the approval of the CCS though from a political perspective, it may not be an ideal situation.

One should also remember that in the event of a crisis, what is seen as being acceptable in peace time may no longer be viewed as such. The very situation could be sufficient to force political leaders to act decisively and with haste. When Chamberlain resigned on the eve of the German invasion of the Netherlands and Belgium, the critical situation compelled all parties into quick agreement and the choice of the new PM and appointments to the war cabinet were finalized within 24 hours (the manner of the Sovereign choosing the PM was different then but the point, I think, still holds). But this again is determined by political exigency rather than legal requirement.

captainjohann said...

Sir,
1.Why cannot a replacement be appoointed? What is the political problem?
2.When we are nuke power quick action is required and an officiating PM is mandatory.
by the way NO ONE INDIVIDUAL IS INDISPENSABLE IN ANY COUNTRY.