The second part of A.G.Noorani's review article in Frontline chronicles the hung Parliament situations at the Centre and how the Presidents addressed them. What is relevant for our understanding is how he draws the necessary lessons for future Presidents, when faced with hung verdicts in elections. Referring to 1969 split in the Congress, he says that the then President V.V. Giri rightly did not ask her to prove the majority of her group in the Lok Sabha. That innovation came later. But it is not clear whether he disagrees with this innovation. I am also not convinced how he defends K.R.Narayanan's decision to ask Vajpayee to seek a vote of confidence in 1999, after AIADMK withdrew support. Clearly, the situation was similar to the 1969 split. True, Narayanan innovated. But if V.V.Giri was correct in 1969 in ignoring the split in the Congress, clearly Narayanan could have done the same, and the Opposition would have been left with the option to move a no-confidence motion. That decision of Narayanan unnecessarily helped the BJP to emerge as a martyr, having lost the trust vote by one, and enabled the NDA to return to power in the 1999 elections.
This is how Noorani sums up his article:
1. There is no rule that requires the largest single party to be invited as a matter of course. It comes into play only if the ruling party loses its majority and others have to be sounded out. Even so, any coalition established thereafter acquires an overriding claim provided it can prima facie demonstrate majority support. There is in law no distinction between a pre-poll and a post-poll alliance.
2. Indian precedents sanctify written assurances of support to the leader of a coalition, plus assurances of stability by way of a minimum common programme, even if it is drawn up later. Some proof of cohesion is necessary.
3. There is no rule of proving majority support within a time stipulated by the President except where there is an acute crisis of confidence that mandates transparency by all, the President included.
4. In the last resort, a minority government must not be ruled out. The House will be the judge.
The article is useful for a discussion of the Sri Lanka’s Supreme Court ruling on August 16, 1993, in Major Montague Jayawickrema and another vs M.A. Bakeer Markan and another.
Related Post:
Is there an ideal method?
Showing posts with label Choice of Prime Minister. Show all posts
Showing posts with label Choice of Prime Minister. Show all posts
Tuesday, June 16, 2009
Saturday, June 6, 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.
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.
Wednesday, May 20, 2009
President's communique on PM's appointment
Today, President Pratibha Patil followed the precedent set by her predecessor, Narayanan in October 1999, by appointing Manmohan Singh as the Prime Minister, without requesting him to prove his majority in the Lok Sabha, even though the Congress Party is in a minority. She said in her press communique:
"The President having satisfied herself, on the basis of the various letters of support received, that the Congress-led UPA alliance, which is also the largest pre-election alliance, is in a position to command majority support of the newly constituted 15th Lok Sabha and to form a stable government, appointed Dr. Manmohan Singh as the Prime Minister and requested him to indicate the members of the new Council of Ministers."
The above communique is worded exactly as that issued by Kalam in 2004. I am thankful to Manoj Mitta for pointing out a factual error (see the comments section) in my earlier post, which I have now corrected. In the earlier post, I inadvertently credited President Pratibha Patil of having set the new precedent, whereas the credit goes to President Narayanan, who in his October 1999 decision, appointed Vajpayee as the PM after the general elections, without asking him to seek vote of confidence. The NDA had secured only 268 in Lok Sabha, and was assured of outside support by Telugu Desam Party. Kalam followed the Narayanan's precedent in 2004.
Narayanan's October 1999 decision was an improvement over his 1998 decision.In 1998, he was satisfied with Vajpayee's majority strength at the time of appointment, on the basis of letters of support. But he followed the precedent set by his predecessor, R.Venkataraman in 1991, and requested Vajpayee to seek a vote of confidence in 10 days.
In the comments section, Manoj observes that it may be unfair to criticise Narayanan for asking Vajpayee to seek vote of confidence because he did so, after the AIADMK delayed letters of support in 1998. The chronology of events in 1998, however, suggests that Narayanan asked Vajpayee to seek a vote of confidence, after the AIADMK and its allies sent in their letters of support, and Chandrababu Naidu telephonically informed Narayanan about his decision to remain neutral. In his press communique, Narayanan expressed satisfaction that Vajpayee had majority, and would offer a stable Government, yet asked him to seek a confidence vote, which I think, was inexplicable. This story gives the history of confidence motions moved by PMs since 1979.
Having said that, however, President Pratibha Patil's communique does indicate two things: one, she accepted the Manmohan Singh's claim because the Congress-led UPA alliance was the largest pre-election alliance, and two, it is in the position to command majority support in the Lok Sabha and form a stable Government. If these two ingredients were not present in the present situation, she might probably have hesitated to accept his claim. That is, if the pre-result apprehensions of a fractured mandate were indeed true, she would have been left with no guidance, if she assumed that this was the correct approach.
In my view, President Patil's reliance on both the factors was flawed. Manmohan Singh deserved an invitation, not because the Congress-led UPA alliance was the largest pre-election alliance, but it emerged as the largest post-election alliance. That is, if there is a choice to be made between pre-election and post-election alliances, the President ought to consider only the post-election alliance, and ignore the pre-election alliance. It is because the pre-election allies too have to submit letters of support like the post-election allies. Therefore, the distinction between them is not valid. If the letters of support indicate that Manmohan Singh will be able to offer a stable Government, and his claim is not disputed by others, then the President ought to appoint him as the Prime Minister without a request to prove his strength.
Secondly, the Prime Minister-so-appointed need not convince the President that he will be in a position to command majority support. He may not be in a position to do so, but that need not disqualify him from staking his claim, as long as his rivals do not question his claim. That is, his ability to form a stable Government does not depend on his majority support in the Lok sabha, but on whether there is any serious challenge to his ability to do so from his rivals. Her communique failed to make this clear. The criticism of President Pratibha Patil's explanation for appointing Manmohan Singh as the PM should also apply to Kalam's explanation which was almost identical in 2004.
Manoj Mitta also points out that the precedent of asking the Prime Minister to seek a vote of confidence was set by Sanjiva Reddy in 1979. I am aware of this. In fact, in the States, the precedent was set way back in 1952 by Rajaji, when he was appointed as the Chief Minister of the then Madras State. I did not refer to 1979 precedent because it was set after the ruling party split, and a faction led by Charan Singh with Congress' support staked claim to form the Government. I am equally critical of Sanjiva Reddy's action in appointing Charan Singh as the PM, let alone my criticism of his request to him to seek a confidence vote, which the PM did not fulfil, before resigning.
I relied on the 1991 precedent, because the facts and circumstances in 1991, 1998, 2004 and 2009 were similar, except that it was Narayanan who began the system of seeking letters of support from the allies after the results. Under somewhat similar circumstances in 1991, when the Lok Sabha had nearly 36 vacancies as elections were not held in J&K, Punjab and elsewhere, and the Congress had won 244 seats, (nine short of majority) President Venkataraman did not seek letters of support from the PM, Narasimha Rao, but asked him to seek a confidence vote, which under the peculiar circumstances of 1991 elections, was unnecessary, because it was clear that Rao's claim to form the Government was not disputed by others.
[I am thankful to Manoj Mitta and Tarunabh for raising questions on factual accuracy of my earlier post, which I have suitably edited after their comments]
"The President having satisfied herself, on the basis of the various letters of support received, that the Congress-led UPA alliance, which is also the largest pre-election alliance, is in a position to command majority support of the newly constituted 15th Lok Sabha and to form a stable government, appointed Dr. Manmohan Singh as the Prime Minister and requested him to indicate the members of the new Council of Ministers."
The above communique is worded exactly as that issued by Kalam in 2004. I am thankful to Manoj Mitta for pointing out a factual error (see the comments section) in my earlier post, which I have now corrected. In the earlier post, I inadvertently credited President Pratibha Patil of having set the new precedent, whereas the credit goes to President Narayanan, who in his October 1999 decision, appointed Vajpayee as the PM after the general elections, without asking him to seek vote of confidence. The NDA had secured only 268 in Lok Sabha, and was assured of outside support by Telugu Desam Party. Kalam followed the Narayanan's precedent in 2004.
Narayanan's October 1999 decision was an improvement over his 1998 decision.In 1998, he was satisfied with Vajpayee's majority strength at the time of appointment, on the basis of letters of support. But he followed the precedent set by his predecessor, R.Venkataraman in 1991, and requested Vajpayee to seek a vote of confidence in 10 days.
In the comments section, Manoj observes that it may be unfair to criticise Narayanan for asking Vajpayee to seek vote of confidence because he did so, after the AIADMK delayed letters of support in 1998. The chronology of events in 1998, however, suggests that Narayanan asked Vajpayee to seek a vote of confidence, after the AIADMK and its allies sent in their letters of support, and Chandrababu Naidu telephonically informed Narayanan about his decision to remain neutral. In his press communique, Narayanan expressed satisfaction that Vajpayee had majority, and would offer a stable Government, yet asked him to seek a confidence vote, which I think, was inexplicable. This story gives the history of confidence motions moved by PMs since 1979.
Having said that, however, President Pratibha Patil's communique does indicate two things: one, she accepted the Manmohan Singh's claim because the Congress-led UPA alliance was the largest pre-election alliance, and two, it is in the position to command majority support in the Lok Sabha and form a stable Government. If these two ingredients were not present in the present situation, she might probably have hesitated to accept his claim. That is, if the pre-result apprehensions of a fractured mandate were indeed true, she would have been left with no guidance, if she assumed that this was the correct approach.
In my view, President Patil's reliance on both the factors was flawed. Manmohan Singh deserved an invitation, not because the Congress-led UPA alliance was the largest pre-election alliance, but it emerged as the largest post-election alliance. That is, if there is a choice to be made between pre-election and post-election alliances, the President ought to consider only the post-election alliance, and ignore the pre-election alliance. It is because the pre-election allies too have to submit letters of support like the post-election allies. Therefore, the distinction between them is not valid. If the letters of support indicate that Manmohan Singh will be able to offer a stable Government, and his claim is not disputed by others, then the President ought to appoint him as the Prime Minister without a request to prove his strength.
Secondly, the Prime Minister-so-appointed need not convince the President that he will be in a position to command majority support. He may not be in a position to do so, but that need not disqualify him from staking his claim, as long as his rivals do not question his claim. That is, his ability to form a stable Government does not depend on his majority support in the Lok sabha, but on whether there is any serious challenge to his ability to do so from his rivals. Her communique failed to make this clear. The criticism of President Pratibha Patil's explanation for appointing Manmohan Singh as the PM should also apply to Kalam's explanation which was almost identical in 2004.
Manoj Mitta also points out that the precedent of asking the Prime Minister to seek a vote of confidence was set by Sanjiva Reddy in 1979. I am aware of this. In fact, in the States, the precedent was set way back in 1952 by Rajaji, when he was appointed as the Chief Minister of the then Madras State. I did not refer to 1979 precedent because it was set after the ruling party split, and a faction led by Charan Singh with Congress' support staked claim to form the Government. I am equally critical of Sanjiva Reddy's action in appointing Charan Singh as the PM, let alone my criticism of his request to him to seek a confidence vote, which the PM did not fulfil, before resigning.
I relied on the 1991 precedent, because the facts and circumstances in 1991, 1998, 2004 and 2009 were similar, except that it was Narayanan who began the system of seeking letters of support from the allies after the results. Under somewhat similar circumstances in 1991, when the Lok Sabha had nearly 36 vacancies as elections were not held in J&K, Punjab and elsewhere, and the Congress had won 244 seats, (nine short of majority) President Venkataraman did not seek letters of support from the PM, Narasimha Rao, but asked him to seek a confidence vote, which under the peculiar circumstances of 1991 elections, was unnecessary, because it was clear that Rao's claim to form the Government was not disputed by others.
[I am thankful to Manoj Mitta and Tarunabh for raising questions on factual accuracy of my earlier post, which I have suitably edited after their comments]
Friday, May 15, 2009
Options before the President
With a hung Parliament being forecast by all the exit polls, the focus is now on the President, Pratibha Patil. There is a consensus veering around among the observers that she must ask for letters of support in respect of a claimant, and only if the numbers reveal a reasonable prospect of the Government surviving the floor test in the new House, she must invite the claimant to form a Government. But things are not as straight-forward as it may seem to be. Let us imagine that NDA with its post-poll allies is able to convince the President of the support of 250 MPs through letters of support. But the Congress, with its pre and post-poll allies is able to muster only 240, but is assured of the Left's abstention (let us again imagine that Left has 35). Is the President bound to follow the precedents set by her predecessors and invite the NDA, knowing fully well that opposition to it outnumbers its supporters? The Left may not be willing to give a letter of support to the Congress, though its abstention during the confidence vote could signal its support.
Let us understand the sequence of events in 1998 as evident from my article here. First, President K.R.Narayanan invited Vajpayee because as he said, BJP was the single largest party, and he headed the largest combination of pre-election allies. Since Vajpayee satisfied the first two conditions, the President did not find it necessary to know whether there is a post-election coalition which is a claimant. Secondly, he asked Vajpayee whether he would be able and willing to form the stable government which could secure the confidence of the Lok Sabha. He did not ask Vajpayee whether he could win the trust vote in the Lok Sabha. Thirdly, he sought letters of support from Vajpayee to sustain his claim that he had support of 252 members. Please note he did not want to be convinced that Vajpayee could secure the support of 272 members. On March 12, 1998 when he met the President, he had proof of support of only 237 Members of Lok Sabha; therefore, he did not stake his claim, but left it to the President's discretion. More important, the President took into consideration the Telugu Desam Party's stand - ascertained in a telephonic discussion with its leader N. Chandrababu Naidu - that the party would remain neutral during the vote of confidence. The President did not even seek a letter of support from Trinamul Congress. Once the AIADMK-led alliance's decision to extend support to Vajpayee became known, the President invited Vajpayee to form the Government. Vajpayee was still short of the magic figure of 272; still, he was able to convince the President that he would be able to secure the confidence of the House.
Narayanan issued a detailed communique each time there was a political crisis. On March 15, 1998,he explained how he was convinced of Vajpayee's capacity to form a stable Government. Thus he explained why he had to dissolve the Lok Sabha in 1999. Narayanan's successor, President Kalam did not follow this tradition, while prematurely dissolving Lok Sabha in February 2004. It is hoped that President Patil will revive the tradition of explaining her decisions during the process of appointing a new Prime Minister, after the election results.
UPDATE: With the certainty of Manmohan Singh returning as the PM, the President has been spared of this Constitutional dilemma.
Let us understand the sequence of events in 1998 as evident from my article here. First, President K.R.Narayanan invited Vajpayee because as he said, BJP was the single largest party, and he headed the largest combination of pre-election allies. Since Vajpayee satisfied the first two conditions, the President did not find it necessary to know whether there is a post-election coalition which is a claimant. Secondly, he asked Vajpayee whether he would be able and willing to form the stable government which could secure the confidence of the Lok Sabha. He did not ask Vajpayee whether he could win the trust vote in the Lok Sabha. Thirdly, he sought letters of support from Vajpayee to sustain his claim that he had support of 252 members. Please note he did not want to be convinced that Vajpayee could secure the support of 272 members. On March 12, 1998 when he met the President, he had proof of support of only 237 Members of Lok Sabha; therefore, he did not stake his claim, but left it to the President's discretion. More important, the President took into consideration the Telugu Desam Party's stand - ascertained in a telephonic discussion with its leader N. Chandrababu Naidu - that the party would remain neutral during the vote of confidence. The President did not even seek a letter of support from Trinamul Congress. Once the AIADMK-led alliance's decision to extend support to Vajpayee became known, the President invited Vajpayee to form the Government. Vajpayee was still short of the magic figure of 272; still, he was able to convince the President that he would be able to secure the confidence of the House.
Narayanan issued a detailed communique each time there was a political crisis. On March 15, 1998,he explained how he was convinced of Vajpayee's capacity to form a stable Government. Thus he explained why he had to dissolve the Lok Sabha in 1999. Narayanan's successor, President Kalam did not follow this tradition, while prematurely dissolving Lok Sabha in February 2004. It is hoped that President Patil will revive the tradition of explaining her decisions during the process of appointing a new Prime Minister, after the election results.
UPDATE: With the certainty of Manmohan Singh returning as the PM, the President has been spared of this Constitutional dilemma.
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