The Constitution has adopted the Cabinet form of representative democratic government as in the UK, a form of government tersely described as based on the 'Westminster model' which is a constitutional monarchy.
The President of India is the head of the State. He represents the nation. He is conferred with a large repository of powers. All actions are taken in his name. What is true of the President at the Centre is generally true of the Governors at the State level.
There shall be a President of India. The executive power of the Union shall be vested in the President, so also the supreme command of the Defence Forces of the Union- Arts 52 and 53. Similarly there shall be a Governor for each State. The executive power of the State shall be vested in the Governor-Arts 153 and 154.The executive power is co-extensive with the legislative power-Arts 73 and 162.Executive power is the residue after the exercise of legislative power and judicial power-cf Ram Jawayya's case (AIR 1955 SC 549).
A literal reading of the provisions of the Constitution shows that the President is endowed with and enjoys a mélange of powers. All this appears quite impressive. However, as Dicey says in his Law of the Constitution referring to Blackstone's Commentaries talking of the Sovereign and the royal prerogative, it has but one fault: the statements it contains are the direct opposite of the truth. The executive in England is, in fact, in the hands of a committee called the Cabinet. If there be any one person in whose single hand the power of the State is placed, that person is not the Sovereign, but the Prime Minister. That is so in India also.
The truth is that the President/Governor is only a metaphor for the Council of Ministers on whose advice alone they can act except in very narrow areas clearly defined and confined-Arts 74 and 163. The machinery of government set up by the Constitution follows in essentials the British model- the Westminster form of Government. "Not the Potomac but the Thames fertilizes the flow of the Yamuna if we may adopt a riverine imagery," observed Krishna Iyer, J. picturesquely in Samsher Singh (AIR 1974 SC 2192) bringing out the essence of our system of Government.
The Constitution has adopted, as already stated, the 'Westminster model' which is a constitutional monarchy where the King reigns but does not rule and his relations with the Ministry headed by the Prime Minister are governed by well recognised conventions. This is the Parliamentary system of government as contrasted with the Presidential. It is well settled that parliamentary system of government is not government by Parliament but it is government by Cabinet subject to the control and criticism of Parliament. Indeed IIbert in his Parliament remarks that the Cabinet legislates with the advice and consent of Parliament.
Articles 74, 75, 77 and 78 (re: the Union) and Articles 163,164, 166 & 167 (re: the States) capture and embody the essence and nuances of the parliamentary system. This is succinctly expressed in Chief Justice B.K. Mukherjea's judgement in Ram Jawaya (AIR 1955 SC 549): "Our Constitution, though federal in its structure, is modelled on the British parliamentary system..... The President is the formal or constitutional head of the Executive and the real executive powers are vested in the ministry.... We have the same system of parliamentary executive as in England and the Council of Ministers consisting, as it does, of the members of the legislature is, like the British Cabinet "hyphen which joins, a buckle which fastens the legislative part of the State to the executive part.".....The Cabinet enjoying, as it does, the majority in the legislature concentrates in itself the virtual control of both legislative and executive functions ; and as the Ministers constituting the Cabinet are presumably agreed on fundamentals and act on the principle of collective responsibility, the most important questions of policy are all formulated by them."
Exercise of powers by President/Governor
The constitutional position regarding exercise of powers by the President and the Governor is settled and clear. They have to exercise their powers and discharge their functions on the basis of Ministerial advice. It is now well established that the position of the President and the Governor is akin to that of the constitutional monarch in Britain. He is generally bound by the advice of his Ministers except where it is otherwise prescribed constitutionally. He can do nothing contrary to their advice nor can he do anything without their advice. Art 74 and Art 163 deal with the functioning of the President and the Governor respectively.
Moving the Draft Constitution in the Constituent Assembly on 4.11.1948, Dr. Ambedkar posed the question as to what is the form of government that is envisaged in the Constitution and what is the form of the Constitution and proceeded to say: "There is placed at the head of the Indian Union a functionary who is called the President of the Union. The title of this functionary reminds one of the President of the United States. But beyond identity of names there is nothing in common between the form of Government prevalent in America and the form of Government proposed under the Draft Constitution. The American form of Government is called the Presidential system of Government. What the Draft Constitution proposes is the Parliamentary system. The two are fundamentally different.... Under the Draft Constitution, the President occupies the same position as the King under the English Constitution. He is the Head of the State but not of the Executive. He represents the nation but does not rule the nation. He is the symbol of the nation. His place in the administration is that of a ceremonial device on a seal by which the nation's decisions are made known.... The President of the United States is not bound to accept any advice tendered to him by any of his Secretaries (who are in charge of different departments). The President of the Indian Union will be generally bound by the advice of his Ministers. He can do nothing contrary to their advice nor can he do anything without their advice...." (CAD Vol.VII p.32- quoted in Samsher Singh's case, AIR 1974 SC 2192: (1974) 2 SCC 831). If there is any office under the Constitution comparable to the US President it is the Prime Minister (CAD Vol VII p.998 on 13.12.1948).
In the debate regarding Draft Art 61 which is Art 74 (on 30.12.1948) it was stated that these articles "should not be interpreted literally because they embody conventions of the Cabinet system of government evolved in Great Britain as a result of a long struggle between the King and Parliament. At every stage of the struggle the King yielded some power, but was anxious to preserve his prestige. Therefore, at the end of the struggle, the King gave up all his power but preserved all his forms. Therefore, it is said here that there shall be a Council of Ministers with the Prime Minister at the Head to aid and advise the President in the exercise of his functions. That does not mean, that normally, the function of the Prime Minister is to aid or advise the President in the exercise of his functions. In fact, the position is altogether opposite or the reverse. It is the Prime Minister's business with the support of the Council of Ministers to rule the country and the President may be permitted now and then to aid and advise the Council of Ministers. Therefore, we should look at the substance and not at the mere phraseology which is the result of conventions." (CAD Vol. VII p.1155)
"There is no case which can arise where the President would be called upon to discharge his functions without the advice of the Prime Minister or his Cabinet...Under a Parliamentary system of Government there are only two prerogatives which the King or Head of State may exercise. One is the appointment of the Prime Minister and the other is the dissolution of Parliament....The position of Governor is exactly the same as the position of the President..." (Dr. Ambedkar on 30.12.1948 CAD Vol.VII p.1158)
Art 163 makes a slight difference in the position of the Governor, viz., that he is not bound by the advice of the Ministers in matters where he is by or under the Constitution to act in his discretion. The discretionary power of the Governor is restricted by the express language of Art 163 which does not confer on the Governor a general discretionary power to act against or without the advice of the Council of Ministers. The exposition in the Constituent Assembly Debates is clear. Speaking on Draft Article 143 which is Art 163, Sir Alladi Krishnaswami Ayyar said in the first place the general principle is laid down in Art 143, namely, the principle of Ministerial responsibility that the Governor in the various spheres of executive activity should act on the advice of his Ministers. Certain specific functions are to be exercised in his discretion as expressly provided in some articles.
As Dr. Ambedkar stated, "The article will have to be read in conjunction with such other articles which specifically reserve the power to the Governor. It is not a general clause giving the Governor power to disregard the advice of his Ministers in any matter in which he finds he ought to disregard." (CAD Vol VIII p. 501, on 01.06.1949). The functions which are specifically required by the Constitution to be exercised by the Governor in his discretion are specified in Arts.239 (2), 371 A (2)(b),(d) and (f);and Para 9(2) of the 6th Schedule.
As the Supreme Court observed in U.N.R.Rao vs. Indira Gandhi (AIR 1971 SC 1002) we must remember that it is interpreting a Constitution establishing a parliamentary system of government with a Cabinet. In trying to understand one may well keep in mind the conventions prevalent at the time the Constitution was framed.
The position that in the discharge of their functions the President and the Governors have a discretion to disregard the advice of their Council of Ministers is inconsistent with the express conferment of discretionary power on the Governors under Art 163(2), for, if Governors have a discretion in all matters under Art 163(1), it would be unnecessary to confer on them an express power to act in their discretion in a few specified matters. It negatives the view that President/Governor has general discretionary power to act against Ministerial advice. (H.M. Seervai, Constitutional Law of India 4th Ed. p.2037). The area of discretion is clearly defined and confined.
The only functions which the Head of State can, as per settled constitutional law and conventions, exercise in his discretion are: appointment of the Prime Minister/Chief Minister; dismissal of the Government when it has lost its majority in the House but refuses to quit; dissolution of the Lower House of the Legislature; granting sanction to prosecute a Minister; and in the case of a Governor making a report under Art 356 regarding failure of the constitutional machinery in the State; apart from those expressly conferred by the Constitution like Arts 103/ 192.
This does not reduce the Head of State to a mere figurehead or rubber stamp. He will still have the 'right to be consulted, the right to encourage and the right to warn' (Bagehot- The English Constitution pg 111) and 'the right to offer on his own initiative suggestions and advice to the Ministers even where he is obliged in the last resort to accept the formal advice tendered' (de Smith & Brazier- Constitutional & Administrative Law p. 114).
Acting on Ministerial advice does not necessarily mean immediate acceptance of the Ministry's first thoughts. He can state all his objections to any proposal and ask his Ministers, if necessary, to reconsider the matter. It is only in the last resort that he must accept their final advice (Sir B.N. Rau).
This principle and the right of the Head of State to influence his Council of Ministers is embodied in Arts 74(1) read with 78 and 163(1) read with 167.
The purport of all this is clear from a passage in the Memorandum submitted by Prime Minister Asquith to King George V in 1913 and expressed tersely and precisely ".......a constitutional monarch in this country is entitled and bound to give his Ministers all relevant information which comes to him; to point out objections which seem to him valid against the course which they advise; to suggest, if he thinks fit, an alternative policy. Such instructions are always received by Ministers with the utmost respect and considered with more respect and deference than if they proceeded from any other quarters. But, in the end, the Sovereign always acts upon the advice which Ministers after full deliberation and (if need be) reconsideration, feel it their duty to offer. They give that advice well knowing that they can, and probably will, be called upon to account for it by Parliament." This has been quoted in the Constituent Assembly Debates on 2.6.1949 (CAD Vol VIII. p.542).
These conventions have been adverted to, reiterated and accepted by the Supreme Court as part of constitutional law and hence legally enforceable. Reference may be made to some of the decisions- S.C. Advocates-on-Record Association vs. Union of India (II Judges Case) (AIR 1994 SC 268); S.R.Bommai vs. Union of India (AIR 1994 SC 1918).
Sir Alladi Krishnaswami was one of the principal architects of our Constitution and one of the most eminent constitutional lawyers in the country. Both the first President and the first Prime Minister sought his views on the constitutional position of the President vis-à-vis the Prime Minister. In response, he said that it has been tersely put by writers on Constitutional law that the King from having to be advised by the Prime Minister has become an adviser to the Ministry. In the felicitous language of Prof. Walter Bagehot, the King has no alternative to signing his death warrant if the Parliament chooses to pass a measure in that behalf. He further stated that "Art 74 is all pervasive in its character and does not make any distinction between one kind of function and another. It applies to every function and power vested in the President, whether it relates to addressing the House or returning a Bill for reconsideration or assenting or withholding assent to the Bill..... The expression 'aid and advise' in Art 74 cannot be construed so as to enable the President to act independently or against the advice of the Cabinet....." In Art 111 dealing with the power to remit a Bill for reconsideration, "the President is not intended to be a revisional or appellate authority over the Cabinet. A Bill might have been introduced either by a private member or a member of the Cabinet. It may be rushed through in the Parliament. The Cabinet might notice an obvious slip or error after it has passed the Houses. This power vested in the President is as much intended to be exercised on the advice of the Cabinet as any other power."
It is also relevant to refer to the 20th report of the Governors' Committee. "Even in the sphere where the Governor is bound to act on the advice of his Council of Ministers, it does not necessarily mean the immediate and automatic acceptance by him of such advice. In any relationship between the Governor and his Council of Ministers, the process of mutual discussion is implicit, and the Governor will not be committing any impropriety if he states all his objections to any proposed course of action and asks the Ministry to reconsider the matter. In the last resort, he is bound to accept its final advice, but he has a duty, whenever necessary, to advise the Ministry if he thinks that the Ministry is taking an erroneous step and to suggest to it to reconsider the proposed course of action. In the process of advice and consent, there is ample room for exchange of views between the Governor and Council of Ministers even though he is bound to accept its advice."
All this has been referred to with approval by the Supreme Court in Samsher Singh. As Seervai points out, "it is enough to say that Samsher Singh's case (AIR 1974 SC 2192) has finally established, it is submitted rightly, that the President is the constitutional head of government obliged to act on the advice of his Council of Ministers." (H.M. Seervai, Constitutional Law of India 4th Ed. p. 2035).
Samsher Singh was referred to a larger Bench to delineate the constitutional position of the President/Governor. It was necessitated by a couple of earlier rulings which really represented a drift and not the trend of judicial opinion in that behalf. The issue was whether the constitutional requirement of the satisfaction of the President/Governor means his personal satisfaction. The Court unequivocally reiterated the settled legal position that the President/Governor is only the constitutional head, the real power being vested in the Council of Ministers on whose aid and advice the President/Governor exercises his powers and functions. The satisfaction required by the Constitution is not the personal satisfaction of the President or Governor but the satisfaction of the President or Governor in the constitutional sense in the cabinet system of government, that is, the satisfaction of his Council of Ministers. In Constitutional Law, the 'functions' of the President and Governor and the 'business' of Government belong to the Ministers and not to the Head of State, that 'aid and advice' of Ministers are terms of art which in law mean, in the Cabinet context of our constitutional scheme, that the aider acts and the advisor decides in his own authority and not subject to the power of President to accept or reject such action or decision, except , in the case of Governors, to the limited extent that Art 163 permits and his discretion, remote controlled by the Centre, has play.
As Justice Krishna Iyer put it in his inimitable style in Samsher Singh ,"The omnipotence of the President and of the Governor at the State level is euphemistically inscribed in the pages of our Fundamental Law with the obvious intent that even where express conferment of power and functions is written into the Articles, such business has to be disposed of decisively by the Ministry answerable to the Legislature and through it vicariously to the people, thus vindicating our democracy instead of surrendering it to a single summit soul whose deification is incompatible with the basics of our political architecture".
This underscores the ideas of representation and responsibility, the twin attributes of a parliamentary system. And the legal position was laid down: We declare the law of this branch of our Constitution to be that the President and Governor, custodians of all executive and other powers under various articles, shall, by virtue of these provisions, exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well known exceptional situations.
The basic tenets /features of the parliamentary system (cabinet government) are: 1) Primacy of the Prime Minister; 2) Accountability of the Government (executive branch) to the lower House of the legislature; 3) Collective responsibility.
It has been said that he Cabinet is the keystone of the political arch in the Westminster model, but the Prime Minster is the keystone of the Cabinet arch. It is the Prime Minister through whom accountability and collective responsibility can be enforced.
Primacy of the Prime Minister
Ernest Barker, a great political scientist and commentator says that the Cabinet is the core of the British constitutional system. It is the supreme directing authority; the 'magnet of policy' which co-ordinates and controls the whole of the executive government and integrates and guides the work of the legislature. In a parliamentary system of government based on the Westminster model the Cabinet is the keystone of the political arch, as Lowell put it, but according to John Morley the Prime Minister is the keystone of the Cabinet arch. However, Ivor Jennings said that it would be more accurate to describe him as keystone of the Constitution which is as precise a definition as it is picturesque. It is said that the Prime Minister is central to the formation of the Cabinet, central to its life and central to its death. The Government is the master of the country, the Prime Minister is the master of the Government. He is 'the focal point of public attention and governmental power'. Bagehot said that the Cabinet is 'a hyphen which joins, a buckle which fastens the legislative part of the state to the executive part'. But Crossman in his Introduction to the 1963 edition of Bagehot's 'The English Constitution' emphasising the growing importance of the institution of the Prime Minister said that 'the hyphen which joins, the buckle which fastens' is one single man, that is, the Prime Minister.
That sums up the pre- eminent position of the Prime Minister in our governmental set up. The primacy of the Prime Minister in the parliamentary system of Government is beyond doubt. It is the Prime Minister who rules and governs. The President, like the Crown in U.K, is only the nominal, ceremonial head who represents the nation. The position of the Governor in the States is no different except as regards matters which he has to exercise in his discretion. The area of discretion is clearly defined and confined by the Constitution. (Reference to the President will include reference to the Governor and the Prime Minister will mean the Chief Minister also).
The Prime Minister's functions and powers are wide and varied. His position rests on his leadership of the Cabinet/ Government, in Parliament and in the ruling party, on his being the main channel of communication with the Head of State, his control over Cabinet, in selecting Ministers, assigning them portfolios and even compelling them to resign, in setting the agenda for Cabinet meetings and taking decisions. He also decides and seeks dissolution of the Lower House of Parliament and a fresh mandate. Some critics in England have, therefore, rightly said that what obtains now is not so much the Cabinet system of Government but the system of Prime Ministerial Government. "If the Cabinet discusses anything, it is the Prime Minister who decides what the collective view of the Cabinet is...... no Minister could make a really important move without consulting the Prime Minister, and if the Prime Minister wanted to take a certain step the Cabinet Minister concerned would either have to agree, argue it out in Cabinet or resign." (See Mackintosh: The British Cabinet.)
There is no better delineation of the Prime Minister's position than what Jennings says in his Cabinet Government: "Given a solid party backing and confidence among party leaders, a Prime Minister wields an authority that a Roman Emperor might envy or a modern dictator strive in vain to emulate." It is said that he has even the power of destroying his creator- the House of Commons. For, if the Government is defeated in the Commons he can, instead of resigning, advise the Queen to dissolve the House and go in for a fresh election. The position, however, is held to be slightly different under the Indian Constitution in that the President must explore the possibility of having an alternative Government in place and if that is not feasible, dissolve the House and set in motion the process of seeking a fresh mandate. Dissolution is a power in the hands of a Prime Minister to appeal from the legal to the political sovereign.
Apart from being fortified by these conventions about the parliamentary system of government which are part of constitutional law, the office of the Prime Minister (and of the Chief Minister of a State) has been formally mentioned in the Constitution which explicitly says that he is the Head of the Council of Ministers. Dr. Ambedkar speaking in the Constituent Assembly (See: CAD Vol VII p. 1159-60) emphasised the concept of collective responsibility as an over-arching principle of the parliamentary system and said that the Prime Minister is the only sanction through which collective responsibility could be enforced. That requires the enforcement of two principles- that no person be nominated to the Cabinet except on the advice of the Prime Minister and that no person be retained as Minister if the Prime Minister wanted him to be dismissed. "The Prime Minister is really the key stone of the arch of the Cabinet and unless and until we create an office and endow that office with statutory authority to nominate and dismiss the Ministers, there can be no collective responsibility." The Constitution recognises the pivotal position of the Prime Minister in the constitutional scheme.
It is also important to remember that a Cabinet enters office and goes out with the Prime Minister. A change of the Prime Minister by resignation or death entails a change of Cabinet. It has been rightly observed that while the party system gives the Cabinet its homogeneity, it is the position of the Prime Minister which gives it solidarity. The Prime Minister is the leader of the nation and also its voice. One of his major tasks is to formulate the policy and coordinate the working of the Government and give it a general direction. The Prime Minister must know what is happening and ensure that all Departments of Government work as an integrated whole.
P.N.Haksar, a distinguished civil servant with a rich experience in the working of government speaks of three elements required "to give a concrete shape to the social purpose of the Indian State"- the Prime Ministerial leadership, a vibrant political party and an efficient civil service and we may add an independent and upright judiciary. Thus the Prime Minister is required "to use his perch to manufacture a sense of moral direction and policy clarity behind his ideas and preferences." This basic requirement of Prime Ministerial leadership remains and has to remain unchanged and unaffected – whatever the nature of government-whether it is a single party or a coalition or a minority government which is not unknown.
The compulsions of coalition politics cannot be allowed to dilute the authority and importance of the Prime Minister. Otherwise it will result in a breakdown of a meaningful working of the parliamentary system of government. It is imperative to realize, recognize and adhere to the concept of prime ministerial authority and primacy. The Prime Minister should always have the last word on who is to be in the Cabinet and how the portfolios are to be allotted. It is he who should give a direction to the policy and working of the government. This cannot be dictated by party bosses or the allies supporting the Government. Parties can support from outside without joining the government, it can even be a minority government with outside support whenever necessary. Any interference in this regard from any quarters will sap the Prime Minister's authority and weaken the system of government to which we are committed constitutionally. It will retard the nation's development and progress and also bring down the country's image among the comity of nations.
The Constitution Bench judgment in Manoj Narula (2014) 9 SCC 1, it is submitted, lays down the correct legal position. It has been held that the choice of who should be appointed to the Council of Ministers is entirely with the Prime Minister or the Chief Minister. No directions can be issued in this regard. It is a legitimate constitutional expectation that the Prime Minister/Chief Minister would choose appropriate persons. While interpreting Article 75(1) a disqualification cannot be added. It is legitimately expected that the Prime Minister living up to the trust reposed in him would not choose a person with criminal antecedents. This is what the Constitution suggests and that is the constitutional expectation from the Prime Minister. Rest has to be left to his wisdom.
Similar to the pre eminent position of the Prime Minister in the Westminster model parliamentary system, another essential feature of the system is the accountability of the government (the executive branch) to the Lower House of the Legislature.
It is implicit in this requirement that the Prime Minister must be a member of the Lower House, the Lok Sabha. The Supreme Court in S.P.Anand vs. H.D.Deve Gowda (1996) 6 SCC 734 and Janak Raj Jai vs. H.D.Deve Gowda (1997) 10 SCC 462, held that a person not being a member of either House can be appointed Prime Minister and he could be elected to Parliament within six months. It did not consider it mandatory that the Prime Minister must be a member of the Lower House. These decisions were rendered on the basis of the language of Article 75(5) holding that all Ministers are the same and that the Constitution makes no distinction between the Prime Minister and other Ministers.
It is submitted that these decisions do not appear to be correct and cannot be said to reflect the true constitutional position. While Article 75(5) treats all ministers alike, the judgments miss to notice the pre-eminent position of the Prime Minister in the scheme of things. All Ministers are appointed on the advice of the Prime Minister. With the Prime Minister's departure, either by resignation or death, the entire ministry goes out of office. It is not so in the case of other Ministers. The Prime Minister is central to the life of the Cabinet. Hence the Ministry enjoying the confidence of the majority of the House means the Prime Minister commanding such majority. It is inconceivable that the Prime Minister can enjoy the confidence of the majority without being a member. There may be some difference even between the position of the Prime Minister and Chief Ministers. While there can be President's rule in the State, there is no such thing at the Centre. Moreover, these questions cannot be decided on the plain language without a reference to and understanding of the conventions underlying the constitutional provisions and prevalent at the time the Constitution was framed. (See: U.N.R.Rao vs. Indira Gandhi AIR 1971 SC 1002 @ 1003).Furthermore the decisions in Deve Gowda's cases were by a two Judge Bench. Such matters of great moment were not referred to and decided by a Constitution Bench. These decisions fall foul of Art 145(3).
The constitutional requirement is that the Government is responsible to the Legislature and must enjoy the confidence of the majority of the House. The crucial question is what is the test of this majority support and how often is that to be determined.
When a party or combination or alliance of parties has the requisite number to constitute a majority in the House, the position is quite simple. A government headed by the leader of such a party or alliance is to be installed in office as Prime Minister. If, however, there is some uncertainty about the numbers supporting a leader who appears capable of forming a viable government, the President may swear him in as Prime Minister and require that he seek a vote of confidence and establish his majority in the House within a specified period. That may be both legitimate and requisite. The Supreme Court has held with reference to such directions: "Our Constitution knows of no such hybrid thing as a 'Prime Minister subject to a condition of defeasance.' Conditions (like the Prime Minister seeking a vote of confidence within a particular time) imposed by the President, may create considerations of political morality or conventional propriety but not of constitutional validity."[Har Sharan Verma v. Charan Singh (1985) 1 SCC 162]
Once a Government takes office it is important to note that the Government being responsible to the Legislature and enjoying the confidence of the House need not be on a minute-to-minute basis. Minority governments are not unknown or impermissible. When a Government is in office and has won the vote of confidence (if there is any doubt when the Government is installed) then the issue of responsibility to the House and enjoying majority support therein is between the Government and the House. Thereafter the President asking the Prime Minister to seek a vote of confidence is wholly unnecessary and improper. It is politically wrong and legally untenable. It eats into the vitals of the - functioning of a parliamentary democracy. The annual budget presented and passed in the House is perhaps the most emphatic expression of the confidence of the House in the Government. It is well settled that defeat of every motion or even a Bill does not require the Government to resign. It is only when a motion of no- confidence is voted or when a finance bill or any measure involving substantial issues of governmental policy is defeated that the Government has to resign. If it is felt that the Government does not enjoy the confidence of the House, it is for the Opposition to move a no- confidence motion and unseat the Government by successfully carrying the motion.
Implicit in these well established conventions is the idea that minority Governments can function, that a Government need not be seen or shown to enjoy the confidence of the majority of the House at every moment and on every issue. No day-to-day Presidential surveillance of this is contemplated or warranted. The President is not to act like the Opposition and require the Prime Minister to seek and win a vote of confidence. Any such directions by the President to the Prime Minister being clearly unconstitutional are liable to be ignored and not acted upon. The constitutional role and position of the Head of State cannot be converted to that of the Opposition. Otherwise the whole concept of our parliamentary democracy based on the Westminster model will run the risk of being perverted. Instances of such directions are not uncommon these days. They undermine the parliamentary system –its ethos and working. The system cannot be allowed to suffer a loss of identity. The nuances of parliamentary democracy are political. "The responsibility of Government to Parliament is a political relationship. As such it is not a matter of precise definition and lawyers must resist the temptation to lay down rules for it."(E.C.S. Wade & G. Philip, Constitutional & Administrative Law by A.W. Bradley, 5th Edn. p. 97)
The President, like the British Monarch, has 'the right to be consulted, the right to encourage, the right to warn' and 'the right to offer on his own initiative, suggestions and advice even where he is obliged in the last resort to accept the formal advice tendered to him.' These conventional rights of being kept informed adequately have been given constitutional recognition in Articles 78 and 167. However these rights cannot extend to the President's active participation and interference in governance. It is the Prime Minister and his Government that has to govern. Any inroad into this is not good for the health of the system. Such inroads and interference may appear to be an instant solution or panacea seemingly wholesome and welcome. But it is really not. 'A faint crack develops in the foundation of our Government,' to adapt the language of Robert Bork. Nightfall does not come at once, nor does break-down of systems. In both cases there is a twilight when everything remains seemingly unchanged. It is at such times that we have to be aware of change in the air- however slight- lest we are unwittingly overtaken by the imperceptible change.
Another fundamental feature of the parliamentary system is the concept of collective responsibility of the Council of Ministers for all actions of the government. As has been rightly quipped, "It matters not what we say, but we must all say the same."
The concept of collective responsibility predicates 1) All loyal to the policies of Government- solidarity; 2) Government as a whole to resign if defeated or if the Prime Minister resigns; 3) Cabinet and Government business to be confidential- confidentiality; 4) Protection of Ministers against personal responsibility.
The doctrine of collective responsibility has been stated in absolute terms by Lord Salisbury: " For all that passes in Cabinet every member of it who does not resign is absolutely and irretrievably responsible and has no right afterwards to say that he agreed in one case to a compromise, while in another he was persuaded by his colleagues...It is only on the principle that absolute responsibility is undertaken by every member of the Cabinet, who after a decision is arrived at, remains a member of it, that the joint responsibility of Ministers to Parliament can be upheld and one of the most essential principles of parliamentary responsibility established." Dr. Ambedkar also emphasised the need and importance of collective responsibility in our parliamentary system of government.
In India the concept of collective responsibility is constitutionally recognized and codified in Articles 75(3) and 164(2) which lay down that the Ministry shall be collectively responsible to the Lower House of the Legislature. As regards individual responsibility of a Minister it would be indirectly enforced through Articles 75(2) and 164(1) which envisage that a Minister holds office during the pleasure of the President/Governor. This doctrine is one of the foundational elements of the working of the Cabinet and the parliamentary government.
Articles 77 and 166 deal with the conduct of Government business. The Rules of Business are framed under Articles 77 and 166 for the more convenient transaction of the business of the Government and allocation of such business among Ministers. The scheme of these Articles is for the purpose of discharging executive functions. But the Council of Ministers is collectively responsible to the legislature. The Rules lay down how matters are to be dealt with and by whom, how decisions are to be taken. They also speak expressly of collective responsibility.
In Bachhittar Singh vs. State of Punjab (AIR 1963 SC 395) a Constitution Bench noted the concept of collective responsibility as also the primacy of the Chief Minister in the scheme of things and the Rules in that regard and held that an order passed by the Chief Minister even though on a matter pertaining to the portfolio of a particular Minister would be deemed to be the order of the Council of Ministers and it would be the Chief Minister's advice to the Governor for which the Council of Ministers would be collectively responsible.
In Sanjeevi Naidu vs. State of Madras (AIR 1970 SC 1102) a Constitution Bench stated that the Governor was authorised to make rules for the more convenient transaction of government business, that it is of the essence of joint responsibility that every individual Minister and the Cabinet is responsible to the legislature for every action taken in any of the Ministries, this responsibility is political and not personal.
All the Constitution Bench judgments speak of the parliamentary system of government envisaged by the Constitution and recognise the primacy of the Prime Minister/ Chief Minister and the doctrine of collective responsibility both of which are cardinal features of the parliamentary system. All the Supreme Court cases dealing with this are based 'on the root authority in R. vs. Sibnath Banerjee (AIR 1945 PC 156)' as observed in Samsher Singh vs. State of Punjab (AIR 1974 SC 2192).
Some change in UK
The Sovereign's prerogative of dissolution, of course, to be exercised on the advice of the Prime Minister and the Prime Minister's right to seek dissolution and get a general election which have been long and well established in UK have now been consigned to constitutional history there with the passing of the Fixed- Term Parliaments Act 2011. Under the new enactment the term of Parliament is fixed. Even the dates of the successive general elections are determined - the first Thursday of May every five years. The first poll thereafter was held on Thursday, May 7, 2015. The Prime Minister can provide by a statutory instrument that the scheduled poll be delayed by up to two months (justifiable in case of some emergency). An early general election would be possible at any time only if the House of Commons by a majority of at least two thirds of its total membership votes for that or if the House passes a vote of no-confidence in the Government which vote is not reversed within 14 days. This gap of 14 days is to provide for the possibility of a new Government taking office without the need for an election. These are the only exceptions to the pre-fixed polling dates.
This is a major, far reaching constitutional reform seeking to ensure stability. It is, perhaps, too early to comment on its wisdom or efficacy.
Whether reform needed in India
The moot question is whether India should now seriously consider some reform without tinkering with the Constitution. The malady of hung legislatures and the uncertainty of coalition politics and governments are very well known. Many a time the whole system is brought to a halt - the Prime Minister/Chief Minister is reduced to less than a figurehead and parliamentary democracy becomes farcical. Everything other than national/public interest is the controlling factor.
The term of the Lower House is fixed by the Constitution as five years unless dissolved earlier. Such earlier dissolution is occasioned generally by bringing down a Government by passing a no- confidence motion or by the Government advising and securing dissolution. The National Commission to Review the Working of the Constitution (headed by Justice Venkatachaliah) recommended in 2002 that the Leader of the House should be elected along with the Speaker in like manner and the person so elected be appointed the Prime Minister and that the motion of no-confidence against the Government should be proposed by at least 20% of the total membership of the House and it should be accompanied by a proposal of an alternative leader to be voted simultaneously. This is on the lines of the German Constitution and was also suggested by Shri Nani Palkhivala in September 1979- while delivering the Madras University Convocation Address.
It is of interest and significance to know that that this has also been adverted to by Dr.Ambedkar in the Constituent Assembly. Participating in the debate on Draft Art 61 (which is Art 74) on 30.12.1948, he said that the only other way by which appointment of the Prime Minister could be provided for without vesting the authority or the discretion in the President, "is to require that it is the House which shall in the first instance choose its leader, and then on a choice being made by a motion or resolution, the President should proceed to appoint the Prime Minister." However, it was then felt desirable to leave the matter to the discretion of the President (See: CAD Vol.VII p. 1158). But with our past experience this may be highly desirable.
The only requirement for a person to be appointed Prime Minister is that he should command the support of the majority of the House. Instead of only the members of the majority party electing the leader who will be the Prime Minister as at present, the entire House should elect the leader who would then be appointed the Prime Minister. Further if he is to be voted out the House should elect an alternative leader who can form a Government and the legislature can complete its full term. It would then be difficult for even the majority party to dislodge the Government and bring about uncertainty and chaos. The Prime Minister and the Government would be able to function effectively without various groups attempting to have their pound of flesh or pull the carpet from under the leader's feet. In keeping with the principle that the Government is responsible to the Lower House and can be in office only as long as it enjoys its confidence the election of the Prime Minister by the whole House would be quite apposite.
This can be achieved without amending the Constitution –by evolving conventions about the entire House electing the person to be appointed Prime Minister and by appropriately amending the relevant Rules of Procedure and Conduct of Business as regards a no-confidence motion. The basic postulate of the parliamentary system- accountability and Ministerial responsibility- would be kept inviolate while imparting greater stability to the Government. It may be pre eminently worthwhile to consider these reforms.
Judicial Review-an auxiliary precaution
Constitutional functions like imposition of President's rule, emergency, removal of Governors, grant of pardon are all exercised based on Cabinet advice. The President/Governor, that is in effect the Cabinet, is the sole judge of the sufficiency of facts and propriety of the action. Yet, while the advice is constitutionally immune from scrutiny, the material which formed the basis for such advice is open to examination- whether such material was relevant and was such that on its basis a reasonable man could have come to the conclusion. It is to be examined whether the facts were verified- whether it was bonafide. Governor's report and President's action is open to scrutiny. Legal malafides, irrationality, extraneous considerations are all grounds of challenge to a Presidential proclamation- though approved by Parliament- it is not legislative unlike an Ordinance (which is not susceptible to such challenge).
Doctrine of pleasure has also been hedged in by constitutional limitations. It is not a licence to act arbitrarily. Discretion conferred on a public authority in absolute and unfettered terms will necessarily have to be exercised reasonably and for public good. The distinction between the need for a cause vis-a -vis need to disclose the cause is important and has to be borne in mind. It is imperative that a valid cause must exist. Judicial scrutiny is for the limited purpose whether the reasons bear rational nexus to the action. Absence of reasons or bad reasons can destroy a possible nexus and vitiate the order on the ground of malafides. Thus the court will interfere for absence of reasons or irrelevant reasons or where the exercise of power is vitiated by self denial or wrong application of the full amplitude of power or the decision is arbitrary, discriminatory, malafide. See B.P.Singhal v Union of India (2010) 6 SCC 331. Non-assent to Bills, it is submitted, is also justiciable even though it may be on limited grounds. Government formation-choice and appointment of Ministers as also appointment of judges is open to judicial review on the narrow ground of eligibility alone as contrasted with suitability – Manoj Narula v Union of India (2014) 9 SCC 1; High Court of Madras v. R. Gandhi (2014) 11 SCC 54.
All seemingly wide and unfettered powers of the Head of State are tempered by constitutional limitations -express or inherent in the very nature of constitutionalism- to be exercised in accord with public law principles and subject to judicial review and correction depending on the nature of the functions.
James Madison, one of the Framers of the American Constitution, had said in The Federalist - "If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions." Judicial review is one such auxiliary precaution.
Having said all this, it needs to be stated that the President has the constitutional right and duty to intervene in public affairs of seminal importance and give of his wisdom and experience privately without any fanfare. As he represents the Nation he can use that representative position to temper the excesses, if any, of the elected representatives. There is always the dialogue between the Prime Minister and the President (constitutionally mandated by Art 78). The extent of such dialogue would depend upon the personal equations between the two and their personalities. As late President Venkataraman said, the President is like an emergency lamp which becomes active when power fails and becomes dormant when power is restored.
How must a President as the constitutional Head of State express his disapproval of any Governmental action was answered by a former Chief Justice of Pakistan in the context of whether the President could refuse assent to a Bill validly passed by the National Assembly (when Pakistan had a Constitution like ours and was experimenting with parliamentary democracy). Justice Munir said something like this: "If you think it is a matter of great importance, and you cannot in all conscience accept the measure presented to you, you can and you must (if you are true to your oath) refuse to assent – but having refused assent, you must then resign; the system must go on; people will know why you resigned, and will sort things out with their Governments." This, in essence, delineates the position and functioning of the President (and the Governors).
In the ultimate analysis the power and position that a Prime Minister enjoys depends upon his personality. As the Earl of Oxford and Asquith said: The office of the Prime Minister is what its holder chooses to make it. The influence that a President or Governor will have on the Ministry will also depend upon the personality of the occupant of that exalted office.
"Constitutions are easily copied, temperaments are not." No system, however good, is self-executing. It would depend on the men who work the system. It is, therefore, imperative to develop and abide by a constitutional culture.
Views are personal.