Saturday, October 08, 2016

Article 74: Filling the Void

(Guest Post by Tejas Popat)

V Venkatesan in his latest post and one in 2009 talks about contingencies when the Prime Minister or a Chief Minister is unable to discharge his/her constitutionally mandated duties. In this regard, in the older post, he states that our Constitution does not provide for an officiating Prime Minister because:
  1. It would be impossible to vest enormous power in someone who is just officiating.
  2. He/she might not enjoy the confidence of the House.
I will humbly differ.

Vesting of enormous power

It would not be trite to state that any of the ministers of the Council would be incompetent to responsibly exercise the powers of the Prime Minister. Also, not any minister from the Council would be the Prime Minister. It would only be one among the senior and experienced minister who would be called upon to ultimately occupy the post in the interim. Therefore, the fact that the incoming minister would not be competent enough should not be a serious concern. Constitutionally, both the Prime Minister and any member of the Council of Ministers have to meet similar requirements and take the same oath.

Enjoying the confidence of the House

He also states that “An officiating PM cannot enjoy the confidence of the House, even if the Constitution had sanctioned it.” Here, a look at history may be useful. In the draft Constitution, Schedule 4 provided for ‘Instructions to Governor of States in Part I of the First Schedule.’ Enlisted at point 2 was an instruction which read,
“2. In making appointments to his Council of ministers the Governor shall use his best endeavours to select his ministers in the following manner, that is to say, to appoint in consultation with the person who in his judgment is most likely to command a stable majority in the Legislature 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 the Legislature. In so acting, he shall bear constantly in mind the need for fostering a sense of joint responsibility among the ministers.”
Later, in the Constituent Assembly, on 30 December 1948, Dr. Ambedkar said,
“It will be seen that we have in the Draft Constitution introduced one schedule called Schedule 4 which contains the Instrument of Instructions to the Governor as to how he has to exercise his discretionary powers in the matter of administration. We have analogous to that, decided to move an amendment in order to introduce another schedule which also contains a similar Instrument of Instructions to the President. One of the clauses in the proposed Instrument of Instructions will be this:
"In making appointment 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 minority communities, who will best be in position collectively to command the confidence of Parliament."”
Nothing of this ever came through. It has been suggested that these Instrument of Instructions were introduced to act as a check on the discretionary power of the President and the Governor.

As to their absence in the Constitution, S. Chatterjee in his book (Governor’s Role in the Indian Constitution) states:
“Subsequently, however, the Instrument of Instructions were removed from the Constitution on the clear assurance given by Ambedkar and other members of the Drafting Committee that the President could act only on the aid and advise of his Council of Ministers.”
Hence, they were omitted for a reason which does not immediately concern us. However, The Instrument of Instructions makes it clear that any persons forming part of the Council should equally be able to command the confidence of the House. Hence, the concern that the Prime Minister is sui generis and therefore irreplaceable, at least temporarily would not be in line with the Instrument of Instructions.

Further, the Prime Minister in choosing the Council would be aware that in case of a contingency, one of the members of the Council he chooses would replace him in the chair. As far as those not in the Council, the same would not be true. Hence, in a contingency, the President would then be justified exercising his discretion and calling of the member of the Council to be the interim Prime Minister. And, as I stated above, such a choice would not be made blindfolded. Hence, while our Constitutional set-up does not explicitly provide for a ‘No. 2’ it certainly gives some guidance to the President. All of this would equally apply to a contingency at the State level, like the one which V Venkatesan points out.

(The author is a student at the National University of Juridical Sciences, Kolkata. He would like to thank Sharath Ninan Mathew for his comments and suggestions.)
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