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Energise Parliamentary Democracy Remove Weaknesses That Have Crept Into Its Functioning

Updated: February 11, 2012 12:46 pm

The Constitution came into force on 26-1-1950. Democracy is one of the elements of the basic structure of the Constitution. The experience arising out of the working of the Constitutional democracy for six decades has shown that certain weaknesses have crept into the working of the Constitution which should be removed with the object of energising our democratic system. On the occasion of Republic Day of 2012, I consider it appropriate to point out some of them which go to the root of the matter.

Appointment of Prime Minister or Chief Minister

In this regard the most important matter is appointment of Prime Minister for the Union of India and Chief Minister for each of the states on whom the good governance at the Union and the states concerned depends. It should be on democratic principles. Article 74 of the Constitution states that there shall be a council of ministers as Prime Minister its head to aid and advise the President in the exercise of his functions. Article 75 provides for appointment of Prime Minister by the President and other ministers on the recommendation of the Prime Minister. Article 75 (3) expressly provides that council of ministers shall be responsible to the House of the People (Lok Sabha). As far as the states are concerned, Articles 163 and 164 are corresponding provisions regarding appointment of Chief Minister and Council of Ministers. Article 164(2) expressly provides that council of ministers shall be responsible to the legislative assembly.

Articles 75(1) and Article 164(1) do not specify as to who is eligible to be appointed as Prime Minister/Chief Minister. However, as under our Constitution we have adopted democratic system which presupposes that a person elected by the people and commanding majority in the House of the People should be appointed as Prime Minister and similarly a person to be appointed as Chief Minister must be a person elected by the people and who commands majority in the legislative assembly. However, on account of the fact that there is no specific provision regarding the eligibility for being appointed as Prime Minister/Chief Minister, weakness has crept into the matter in that as persons who are not elected to the House of the People or to the Legislative Assembly are at times being appointed. This anomaly should be removed in the interest of democracy.

Another question which arises in the context of appointment of Prime Minister under Article 75 and of Chief Minister under Article 164 is whether the word ‘minister’ used in clause (5) of Article 75 and clause (4) of Article 164, which enables a person who is not a member of the legislature for being appointed as a minister for a maximum period of six months only, includes the Prime Minister or the Chief Minister as the case may be. This question first came up for consideration in a petition in which the validity of appointment of Tribhuvan Narayan Singh as the Chief Minister of Uttar Pradesh, though he was not a member of the legislature, was questioned. This question was considered by the High Court of Allahabad on the concession made by the advocate for petitioner that the word minister used in Article 164(4) includes the Chief Minister. In view of this, the High Court held that appointment of TN Singh who was not a member of the legislature as Chief Minister was valid. He and his council of ministers ceased as he was not elected within six months.

The same was confirmed in appeal by the Supreme Court in 1971 (1) SCC 616 on this basis word ‘minister’ in Article 164(4) includes Chief Minister as was conceded by the writ petitioners before the High Court. In view of this, in several cases persons who are not members of the legislature came to be appointed as Chief Ministers. After more than two decades thereafter, the crucial question relating to the appointment of Prime Minister, under Article 75 came up for consideration when the appointment of HD Deve Gowda as Prime Minister was challenged on the ground that he was not a Member of Parliament. This question was considered and decided by a bench of two judges, Chief Justice AM Ahmadi and Justice Sujatha V Manohar. And as can be seen from the judgment the bench proceeded on the assumption that the expression minister includes Prime Minister and therefore as a minister could be appointed without being a Member of Parliament for a period of six months, a Prime Minister could also be appointed, though he was not a Member of Parliament.

In doing so, Article 145(3) of the Constitution was overlooked which makes it mandatory that for interpretation of the provisions of the Constitution, the minimum number of judges to sit for deciding it was five. Article 145(3) was not brought to the notice of the court and as a result the two-judge bench interpreted Article 75 and upheld the appointment of HD Deve Gowda as Prime Minister though he was not a Member of Parliament. This is how the practice which is inconsistent with the principles of democracy and also regarding the correct interpretation of Articles 75 and 164 has led to the appointment of a person who is not a Member of Parliament being appointed as Prime Minister and a person who is not a member of the State Legislature being appointed as Chief Minister.

As already pointed out, the crucial question is whether the word ‘minister’ used in Articles 75(5) and 164(4) does or does not include Prime Minister/Chief Minister having regard to the fact that the clause speaks of only a non-member minister who is not elected within a period of six months ceases to be a minister, whereas in the case of a person who is not a member of Parliament/State Legislature appointed as Prime Minister/Chief Minister, if not elected within a period of six months, all the elected members of the cabinet would also cease to hold office as it happened when TN Singh was not elected.

In the absence of this important difference between a minister and a Prime Minister/Chief Minister brought to its notice, the Supreme Court proceeded on the assumption that just as a non-member could be appointed as a minister, a non-member could also be appointed as Prime Minister. Subsequently, when Bhupinder Singh Hooda who was not a member of the Haryana Legislative Assembly was appointed as Chief Minister, the constitutional validity of his appointment has been challenged before the Supreme Court by Adhivaktha Parishad and 13 senior advocates of different parts of the country pointing out to this difference in writ petition [C] No. 168/2005. The Supreme Court admitted the same recording that judgment in HD Deve Gowda’s case requires reconsideration. The said matter is still pending before the Supreme Court.

These facts indicate that a weakness has crept into the working of the Constitution by the most important matter of appointment of a person who is not a person elected by the people as Prime Minister/Chief Minister as the case may be. This weakness should be removed in the interest of democracy either by a Constitution Bench of the Supreme Court reconsidering the judgment in HD Deve Gowda’s case or by the Parliament itself by adopting the principle that only a member of the House of People could be appointed as Prime Minister and consequently only a member of the State Legislative Assembly could be appointed as the Chief Miniister as this matter goes to the very root of our democratic system. Earlier the weakness is removed, the better it is for our democracy which implies that only a person elected by the people can become Prime Minister or Chief Minister.

In this regard, it is significant to note that though there are two houses of Parliament it is only the House of the People which is elected by the people directly and council of states is indirectly elected by the members of the legislature of the states and 12 of its members are nominated by the President. Article 75(3) expressly states that the council of ministers shall be responsible to the House of People. Similarly, Article 164(3) expressly states that the Chief Minister and his council of ministers shall be responsible to the legislative assembly. The Constituent Assembly, which was fully aware of the existence of two Houses in the Parliament and two houses in several states, expressly stated that in the case of Centre, the Prime Minister and the council of ministers shall be responsible to the House of People and in the case of states, the Chief Minister and his council of ministers shall be responsible to the legislative assembly. The very fact that the Constituent Assembly did not state in case of Union that council of ministers shall be responsible to the Parliament and similarly in the case of states the Constituent Assembly did not state that the council of ministers shall be responsible to the State Legislature, it is implicit in it that a person to be appointed as a Prime Minister/Chief Minister must be a member of the House of the People/Legislative Assembly respectively.

When the aforesaid provisions namely Articles 75(3) and 164(4) say that a person who is not a member of the legislature can become minister and he shall cease to be a minister at the end of six months if before that he is not elected to the legislature, it follows that the Constitution only provided that a person who is not a member of the legislature can be appointed only as a minister and if for any reason he is not elected to the legislature within a period of six months, he shall cease to be a minister. It means that if in a given case, the Chief Minister and thirty-nine ministers are there and two of the ministers are not members of the legislature, what happens at the end of the six months if they are not elected to the legislature? Those two ministers will cease to be ministers.

Take another case where Chief Minister is not elected and thirty-nine members are the elected legislators who have become ministers and at the end of six months if the Chief Minister is not elected to the legislature, the entire cabinet ceases to hold office as happened in TN Singh’s case. This shows the difference between the minister and Chief Minister. Therefore, the clear intention of the Constitution is that a person to be appointed as Prime Minister should be a member of the Lok Sabha and a person to be appointed as Chief Minister should be a member of the state assembly.

But unfortunately political expediency or supremacy of politics has displaced constitutional supremacy. In order to energise the democracy, the appointment of a person who is not a member of the House of the People or Legislative Assembly as Prime Minister or as Chief Minister respectively should be ruled out.

Calling upon the appointed Prime Minister/Chief Minister to take vote of confidence within the time prescribed by the President or the Governor

We have also experienced that there are cases in which the President or the Governor appoints a person as Prime Minister/Chief Minister on being satisfied that he commands majority in the Lok Sabha/Legislative Assembly respectively and administers an oath of office and also appoints ministers on his advice, calls upon the Prime Minister or Chief Minister appointed, to take vote of confidence within a specified time by him. This is wholly unauthorized by the Constitution. Once a person is appointed as Prime Minister by the President or as Chief Minister by the Governor, the President/Governor as the case may be becomes functious officio.

If in a given case, any political party considers that a person who is appointed as Prime Minister or Chief Minister does not enjoy majority in the house, it is open for them to demand that he should seek vote of confidence. Further, there should be a clear difference between vote of confidence and vote of no confidence. As far as the vote of confidence is concerned, whenever it becomes necessary, it should be taken without any debate. The practice of a debate for vote of confidence is not a good practice and a waste of time as it is intended only to test whether the leader has the majority. Whereas in the case of vote of no confidence, a debate becomes necessary in support of the reasons for bringing in a no-confidence resolution.

 

Necessity of simultaneous election to State Legislatures and the Lok Sabha

From the date of commencement of the Constitution, the first four general elections to the Lok Sabha and elections to the state legislatures were held together. But in 1971, for political reasons, the elections to the Lok Sabha was separated. As a result, enormous expenditure is being incurred on holding separate elections. The 14th Lok Sabha is in office, though it should have been the 12th Lok Sabha. Similar consequence has ensued in respect of states. The explanation for this however has been that in the elections to the assemblies, the local issues would get prominence and, therefore, it was necessary to have the elections to the state legislatures and the Lok Sabha separately. The argument is ingenious but not convincing.

The Indian electorate are quite mature and they are capable of distinguishing elections to the state assembly and to the Lok Sabha, even if held together as was done in the first four general elections. It is in national interest and also in the interest of the candidates that elections to the state legislatures and the Lok Sabha should be held together. This will not only avoid enormous election expenses and waste of national resources, but also paralyse administrative machinery both at the Centre and in the states on account of general elections in one or more states every year in which ministers at the Centre and the states get involved. It is also a fact that on account of frequent election, people are fed up, which has resulted in lower percentage of voter turnout.

Fixed election period

Another problem the nation has been facing on account of premature dissolution of the state legislatures or the Lok Sabha for political reasons is that the elections are held sometimes during utmost cold winter and sometimes during extreme hot weather thereby causing considerable hardship to the electorate, and the party workers as also to the leaders of political parties. Therefore, it is necessary that the period of election for the assemblies and for the Lok Sabha should be fixed in the Constitution without giving any room for manipulation. It should be during the months of February and March, as during that period in almost all parts of the country there would be congenial climate and should be only once in five years.

Premature dissolution of elected legislature

The nation has suffered political and administrative instability by way of holding premature general elections on account of political manipulations and animosity by the abuse of power under Article 356 and premature dissolution of elected legislatures of the states as also of the Lok Sabha. Apart from this, the election expenses incurred both by the state and the candidates has resulted in enormous waste of our national resources.

If a commission is appointed to find out how much loss the nation has suffered financially right from the date when the power under Article 356 was misused first time in the year 1959 in Kerala and thereafter more than hundred times, the figures will be astounding. This will show our economy has greatly suffered because of electoral politics. Our country cannot afford to indulge in such wasteful expenditure. Therefore, it is essential that the Constitution should be amended to ensure that the elected state legislative assemblies as well as the Lok Sabha cannot be dissolved prematurely and that they would get dissolved only after the term for which they were elected. This would also make it obligatory to hold general elections to both the Lok Sabha and legislative assemblies of the states together.

Problem arising out of no bar from contesting from more than one constituency

In the absence of any bar on the candidates to contesting from more than one assembly or Lok Sabha seat or for contesting in assembly seat as well as the Lok Sabha seat, experience has been that after election if one has won from more than one constituency, one is required to resign for one seat, retaining only one seat. On account of this, state has to bear the expenses of another election. Therefore, there should be a bar on the candidates to contesting from more than one constituency in the elections to the Lok Sabha or the state assembly, as also on contesting simultaneously for the Lok Sabha and the state assembly.

The fact that the present practice has been going on for a few decades, should not deter us from making necessary changes for the better to be in conformity with the dignity and honour of the President. The state procedure should be followed in the states under Article 176. This would also avoid unsavoury situations in the state assemblies as is happening when the Governors are made to read the speech prepared by the Chief Minister as his own address and the opposition protest or disturb.

These loopholes or weaknesses in the working of the parliamentary democracy should be removed to energise our democratic system.

By Justice M Rama Jois

(The author is a Member of Parliament and former Chief Justice of Punjab and Haryana High Court and former Governor of Jharkhand and Bihar.)

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