Prime Minister's absence: Who is in control?

Even as it appears our debate on this issue is fast turning out to be academic, it refuses to die down. Read this story from Telegraph for an insight into how India was governed (or should I say non-governed) for the past one week. I feel it strongly vindicates my position that Gulazarilal Nanda is the correct precedent to follow in cases of prolonged incapacity of a Prime Minister. Andrew Vennard's article, 'Prime Ministerial succession' in Public Law (2008)(a subscription wall prevents online access to the article) cites Rodney Brazier about what he thinks as the correct position: If the PM suffered from ill health, the appropriate course of action is for the PM to inform the Sovereign and his parliamentary party of his illness and desire to resign, followed by the above procedure suggested by him in relation to the death of the PM. (Constitutional Practice (1999),p.17). Vennard adds that it may be appropriate for a PM who had advance warning of an illness that was likely to be permanent. Vennard's study shows that no Prime Minister in U.K. has suffered from an illness or an accident that has rendered them unconscious, mentally impaired, severely debilitated, or otherwise incapacitated during their term in office. More important, his study shows that there is no Constitutional convention for the incapacity of the Prime Minister, nor have any attempts been made to plan for this eventuality.

In his article, Vennard argues that the effectiveness and the accountability of the government is clearly promoted by having a recognised leader. The argument that a Cabinet chairperson looking after the PM's functions is sufficient does not appeal to Vennard. He recalls that in 1956 Rab Butler chaired the Cabinet for several months during Anthony Eden's illness. But he notes that although Eden was abroad in Jamaica, it was possible for Butler to remain in contact with Eden and to take instructions from him, or even recall Eden if necessary. Just contrast this with how our Prime Minister was completely inaccessible for governance for a week. He warns that the role of the PM is not confined to chairing the Cabinet, and that situations could develop which would require decisive leadership. If presented with such scenarios, an individual whose role is limited to chairing the Cabinet may find that he is unable to command sufficient authority. Recalling that Eden's absence occurred when Britain was in the process of disengaging from the Suez conflict, Vennard questions whether Eden was correct in taking leave on health grounds, when the situation was grave. Eden ultimately resigned shortly after he returned from his leave of absence.

Manmohan's absence when the country has just recovered from the Mumbai attack points to the inherent dangers to our security, and the potential risks of PM's absence, when such a crisis recurs.

Vennard's suggestion is to provide for an Acting PM. In the absence of a Deputy PM who could take over as the Acting PM, he says, the Cabinet Ministers should be empowered to appoint one of their number as Acting PM. Vennard does not include India in his comparative study. But India, in my view, appears unique in that it enables a Prime Ministerial succession with all the flexibility that is required for an interim period, without compromising or diluting his authority, powers or functions. Sadly, our leaders have not realised the inherent potential of Article 74 to address the situations like the one we are currently facing.

Guest Post: Manoj Mitta replies

[I feel privileged to introduce Manoj Mitta to our readers. A senior editor with the Times of India, New Delhi, he holds the distinction of having broken the highest number of legal stories in the country during the past decade. Here he responds to my posts on his recent story.]

Guest Blogger: Manoj Mitta

Why there was no need for Manmohan Singh to resign

If it is alright for Pranab Mukherjee to officiate for Manmohan Singh during his illness, then Gulzarilalal Nanda could well have filled the void in 1964 and 1966 without going through the formality of taking oath as Prime Minister. Or so says my friend V Venkatesan while disagreeing with my explanation of how the cabinet is carrying on despite the Prime Minister’s temporary absence. In reality, Nanda is no precedent to today’s situation because both his stints followed the incumbent’s death, not illness. That makes all the difference.

For, contrary to Venkatesan’s impression, the Constitution does make a distinction between a casual vacancy and a temporary absence, even if it did so in the context of the President. Article 65 (1) says in the event of a vacancy in the office of the President by reason of “his death, resignation or removal or otherwise,” the Vice President shall act as President till a new one is elected. And Article 65(2) says when the President is unable to discharge his functions owing to “absence, illness or any other cause,” the Vice President shall discharge his functions till the President resumes his duties.

Given the calibrated approach displayed by the Constitution in the case of the President, there is little reason to suggest that similar flexibility cannot be adopted in the case of Prime Minister in the absence of provisions corresponding to Articles 65(1) and (2). Since there is no vacancy just now in the office of the Prime Minister, there was no need for Mukherjee or anybody else to be sworn in as Manmohan Singh’s successor upon his hospitalisation. Instead, on the analogy of Article 65(2), somebody could well officiate for Manmohan Singh till he recovered enough to resume his duties.

Such an interpretation would also save the constitutional system a great deal of stress. For, if the PM were to resign for any reason (whether due to an illness or otherwise), then the entire council of ministers would have had to go with him. Whoever had been sworn in as PM for the interim period or otherwise, would also have had to get a team of ministers sworn in along with him or after him. This is because when an ordinary minister resigns, there will be a vacancy only in his ministry. But if the PM resigns, then the whole government collapses.

The term of the council of ministers is co-terminus with that of the PM’s. This does not however detract from the fact that the PM is first among equals in what is known as the “cabinet government.” Though other cabinet ministers are appointed on his advice, they are not subordinates who can be overruled by the PM. As Article 74 says, it is the council of ministers that aids and advises the President, and as Article 75 says, it is again the council of ministers that is collectively responsible to Lok Sabha. The only special provision that is there for the PM is the one that casts a duty on him to be a conduit between the President and the council of ministers.

The nation forgets Gulzarilal Nanda

I am disappointed that two major newspapers (read edits of Mail Today and Business Standard here and here) have opted to buy my friend Manoj Mitta’s thesis that there is a lacuna in Article 74. (Read my earlier post here). Both the newspaper editors, and Manoj seem to have forgotten that Gulzarilal Nanda was a full-fledged Prime Minister twice for 13 days each, once after Prime Minister Jawaharlal Nehru died, and second, when Prime Minister Lal Bahadur Shastri died in office. Wikipedia entry on Nanda is partly incorrect in that it calls him interim Prime Minister. I repeat, he was a full-fledged Prime Minister, as there is no mention of an interim PM in our Constitution. Secondly, an absence from office should be construed as such: there cannot be temporary absences. Those who elected Nanda to the office of the Prime Minister twice knew that he was filling an interregnum, still chose him to succeed Nehru and later Shastri. Going by the current political practice, they could have asked Nanda to officiate without being sworn-in as the PM. But that did not happen. They went strictly by the Constitution. In my view, the Constitution makes no distinction between absences caused by death or illness. An absence has to be filled by a full-fledged Prime Minister. If the party which supports him feels he or she should be replaced after an interregnum, so be it and let him or her resign, and his replacement chosen to be sworn-in as the next PM. Let us not distort the mandate of the Constitution, in order to find justifications for the insecurities of the contemporary political leaders.