President, Constitution and Democracy

An exchange of electioneering polemics has brought to the forefront an issue of first-class significance which no party interested in the maintenance of the present democratic system, despite all its faults, can afford to sleep over.

On May 12 Indira Gandhi told the press at the Calcutta airport that he CPI-M was trying to knock together all the Opposition parties “to get a President elected who can oust me”.

Two days later, Jyoti Basu, refuting Indira Gandhi’s charge, said that it would be “a very bad day for India” if any President chose to dismiss the Prime Minister. Basu was reported to have added: “According to the Indian Constitu-tion, the President was guided by the advice of the Council of Ministers as was the Governor in the sphere of the State. How can the President on his own remove a Prime Minister?”

The question posed by the West Bengal Chief Minister is legitimate; at the same time, the Constitution as it stands today has a loophole—obviously overlooked by its authors and subsequently by Parliament in the last thirty years—which can be made use of by a President on his own to dismiss and appoint Prime Ministers without offending the letter of the law. In fact, this is the subject which is being keenly discussed for the last two months and more among the constitutional pundits attached to the Establish-ment and also those belonging to the Opposition. Had Jyoti Basu been posted by his party leadership or his aides in New Delhi, he would not have made that statement—unless of course it was meant to put the Prime Minister off the Opposition trail.

To understand the implications of this controversy, it is necessary to refer to the relevant sections of the Constitution:
Article 53(1) of the Constitution lays down: “The executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution.”

Article 74(1) says: “There shall be a Council of Ministers with the Prime Minister at the head to aid and advice the President who shall, in the exercise of his functions, act in accordance with such advice.”
Article 75 says: “(1) The Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister.”
“(2) The Ministers shall hold office during the pleasure of the President.”
“(3) The Council of Ministers shall be collectively responsible to the House of the People (Lok Sabha).”

Finally, Article 85(1) lays down: “The President shall from time to time summon each House of Parliament to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session.”
In common parlance, shorn of judicial verbiage, all these provisions taken together mean that while all the Ministers would be appointed by the President on the advice of the Prime Minister, the President is under no such obligation when appointing the Prime Minister. The only consideration he has to bear in mind while appointing the Prime Minister or other Ministers is that collectively the Council of Ministers shall be responsible to the Lok Sabha; that means they have to command a majority in the House. Since, however, the Council of Ministers can do without calling a session of Parliament for six months, there is no way Parliament can bind the President’s hand in dismissing a Prime Minister and appointing somebody else instead in that intervening period.

A near-precedent was set by President Sanjiva Reddy in 1979 when, after the resignation of the Janata Government, he appointed Charan Singh as the Prime Minister. The discretion was entirely the President’s and he was not constitutionally obliged to explain how he came to the conclusion that Charan Singh would command a majority in the Lok Sabha. President Reddy only offered his advice to the newly-appointed Prime Minister—not a constitutional mandate—to test out his strength by convening a session of the Lok Sabha at an early date. Charan Singh took some time to do so; once appointed Prime Minister, he was entitled not to call a session of the Lok Sabha earlier than a day short of six months. And when he called the Lok Sabha session, he tendered his resignation on the very morning before the session met—having realised that he did not have a majority—and advised the President to dissolve the Lok Sabha and call a general election. Since he was not technically defeated in the Lok Sabha, he was entitled to carry on as head of the caretaker Government until the Lok Sabha elections were announced in the second week of January. What the Charan Singh interlude proved was that the President could on his own appoint a new Prime Minister and he could carry on as the Prime Minister for six months and before the expiry of the six-month period, he could get the Lok Sabha dissolved and carry on for another month-and-a- half (for the election process to be completed). So, for seven-and-a-half months the President can have his own nominee as the Prime Minister without the latter having to face Parliament, and all this could be done perfectly legitimately under the Constitution.

Indira Gandhi’s fears that a new President ready to help the Opposition might dismiss her do not seem as fantastic or as unconstitutional as Jyoti Basu’s reactions seem to make out. This is a serious lacuna which all parties having a stake in democracy should agree to rectify. It is extraordinary that after the Charan Singh episode, nobody in the Lok Sabha—neither the Congress-I nor the Opposition—thought it necessary to bring in a constitutional amendment to ensure that the President cannot resort to patently undemocratic removal of the Prime Minister.

The Opposition in its passion to oust Indira Gandhi from Prime Ministership must not let the President act as the dictator. As the Constitution stands today, her dismissal and the appointment of a new Prime Minister would be perfectly constitutional on the President’s part. In a sense this will be virtually a constitutional coup, undermining the very essence of parliamentary democracy. Those who have been loud in their denunciation of Emergency as an authoritarian step—as it certainly was—would do well to remember that Emergency was perfectly valid under the Constitution. In upholding a step as being good under the Constitution, let not democracy be destroyed. A Presidential puppet as the Prime Minister may be valid under the Constitution but will cut at the very roots of Indian democracy. Let this be kept in mind as political parties engage themselves in the next few weeks in choosing a new President of our Republic.

(Mainstream May 22, 1982)