Saturday, June 06, 2009

Appointing a PM: Is there an ideal method?

The near-clear mandate of 2009 meant that the President is free from the dilemma of whom to appoint as the PM. But the dilemma is worth addressing, if only because it is by no means certain that we will be free from fragmented legislatures either at the Centre or in the States in the future. A.G.Noorani in this review of three recent books on British Constitution (of which one is a comparative study)attempts a serious critique of the Sarkaria Commission report, the Report of the Committee of Governors, (1971), the Report of the Administrative Reforms Commission on Centre State Relations (1969) and the M.N.Venkatachaliah Commission (NCRWC). Noorani dismisses all these reports, as being incompetent. He then takes up Art.75(3). He refers to Ambedkar's view in the CAD that Ministers could belong to different parties. (I think L.K.Advani's view that the 2009 mandate favours a return to two-party system is debatable) . Noorani reveals his disagreement with T.T.Krishnamachari, a member of the Drafting Committee, who was responsible for the dropping of the Instrument of Instructions for the President (Draft Schedule III-A). Noorani claims that time has exposed the falsity of the argument that codification was unnecessary and superfluous, and that the directions to the President and the Governors really should arise out of conventions.

According to Paragraph 2 of the Instrument, the President should appoint a person who has been found by him most likely to command a stable majority in Parliament as the Prime Minister. Noorani believes that it can still be inserted in the Constitution with suitable changes. Noorani interprets the word "likely" to suggest that the President acts on a balance of probabilities, on a preponderance of party strength and he must be assured of the stability of the government. But he also cautions that stability is not to be probed into any depth in a partisan manner and that what is required is prima facie proof of cohesion, a demonstrable will to pull together in governance. He later clarifies it to suggest that the test is not necessarily an arithmetical majority but a preponderance that renders any challenge futile. (italics supplied by Noorani)

Watch this space for a discussion of his second part of the review article in Frontline, next fortnight.

3 comments:

Becki said...

I was searching for information on the proper methods of citing Indian case law when I stumbled upon your blog. I'm an American attorney currently working as a Legal Fellow in India for a non-profit human rights organization. I was wondering if you could point me in the right direction on how to find information regarding the proper ways to cite court decisions and statutory law. Apparently there are many ways to cite cases, but I am hoping that you might know where I can look to find a more common or uniform way of citation.

Thanks in advance.

SRIDIP NAMBIAR said...

It would be helpful if this blog analyses the current political situation in Kerala involving the Governor, who recommended prosecution of a minister, against the advice of the cabinet and the advocate general.

Media reports here quote Mr. V.R. Krishna Iyer stating that the cabinet is supreme and that the governor can be impeached for his action. Apart from the various political angles given to the issue, it would be worthwhile to examine the facts in the light of Mr. A.G. Noorani's observations.

tarunabh said...

on citations: indian cases are cited as suggested in the respective reports. the most important reports are All India Reports (AIR) and Supreme Court Cases (SCC). this might help: http://www.nalsar.ac.in/IJIPL/content_guide.pdf

on kerala, this might be interesting: http://www.indianexpress.com/news/in-lavalin-gavai-has-sc-ruling-on-his-side/474586/
also, this previous post touches upon it tangentially: http://lawandotherthings.blogspot.com/2009/05/allahabad-high-court-hearing-on.html