India After Independence: 1947-2000 (10 page)

Another area of debate relates to the President’s role in the dismissal of state governments and imposition of President’s Rule. Recently, in February 1998, in the midst of the Lok Sabha elections, the Governor of U.P., Romesh Bhandari, dismissed the BJP-led government of Kalyan Singh and swore in another man as chief minister. The High Court reinstated Kalyan Singh and the governor sent a report to the Centre recommending dissolution of the Assembly and imposition of President’s Rule. The Cabinet, after long deliberation, accepted the governor’s report and Prime Minister I.K. Gujral recommended it to the President. But President Narayanan returned it for reconsideration to the Cabinet, in a clear expression of disagreement. The Governor of U.P. accordingly resigned and Kalyan Singh continued as chief minister of U.P. with his ragbag coalition of defectors, criminals, and others.

President Narayanan clearly had to exercise a difficult choice here. There were claims and counter-claims about the extent of support enjoyed by the Kalyan Singh ministry, there were defections and return-defections and allegations of monetary and other inducements. Nonetheless, the President decided that since the U.P. ministry had demonstrated its majority support, however unfairly acquired, on the floor of the House, he had no right to dismiss it. His critics argue that demonstration of majority support is not the only criteria on which to decide whether the constitutional machinery in a state has broken down and support achieved through intimidation or inducement can be questioned.

It is to be noted that the 44th Amendment has given him the authority to ask the council of ministers to reconsider its advice, but if the council reiterates its position, the President must accept the advice. But, as seen in the case of President Narayanan and the U.P. issue, the President’s sending back the advice for reconsideration is taken very seriously and is unlikely to be ignored.

In other areas, the powers of the President are quite clearly defined. When a bill is presented to him, under article 111, he may withhold his assent and, if he desires, return it to parliament for reconsideration. If both Houses again pass it and send it back to him, he is obliged to give his assent. In the case of money bills, however, he has no discretion. In any case, he has no absolute power of veto.

The 44th Amendment in 1978 also made it explicit that the President can declare an Emergency only after receiving in writing the decision of the Cabinet advising him to make the proclamation. During the period of Emergency as well, he is to act on the advice of the Cabinet. It is very clear that almost all his powers, including those of appointing various high functionaries such as judges of the higher courts, governors, ambassadors,
the Attorney-General, the Comptroller and Auditor-General of India, etc., are to be exercised on the advice of the Cabinet. The same is true of his powers as Supreme Commander of the armed forces, and of his powers to issue ordinances when parliament is not in session.

The President is elected for five years, is eligible for re-election, and can be removed through impeachment for violation of the Constitution. He is elected by elected members of both houses of parliament and of state legislative assemblies by a method of proportional representation through single transferable vote. Each MP or MLA has a single transferable vote, with a value corresponding to the population represented by him.

If the President dies in office, or is unable to perform his duties because of absence, illness or any other cause, or is removed or resigns, the Vice-President is enjoined upon by Article 65 to act as the President. This has happened on two occasions when Presidents—Dr Zakir Hussain and Fakhruddin Ali Ahmed—died in office and Vice-Presidents V.V. Giri and B.D. Jatti had to step in. For this reason, the choice of Vice-President has to be made with great care. In normal times, the main function of the Vice-President, who is elected for five years by both houses of parliament, but is not a member of any legislature, is to act as the chairperson of the Rajya Sabha.

The real executive power vests under the Constitution in the council of ministers headed by the prime minister. The President appoints as prime minister the leader of the party that has a majority in the Lok Sabha or, if no party has a clear majority, a person who has the confidence of the majority of the members of the Lok Sabha. Other ministers are selected by the prime minister and appointed by the President. Ministers may be appointed without being members of parliament, but they must become members of any one house either by election or nomination within six months. The council of ministers is collectively responsible to the Lok Sabha and has to resign as soon as it loses the confidence of the Lok Sabha.

The prime minister is, in Nehru’s words, the ‘linchpin of Government’
¹³

Almost all the powers formally vested in the President are in fact exercised by the prime minister, who is the link between the President, the Cabinet, and the parliament. The position of the prime minister in India has acquired its pre-eminence at least partly from the fact that the first prime minister, Jawaharlal Nehru, who retained his office for almost seventeen years, had such enormous prestige and influence that some of it rubbed off on to the office itself. Indira Gandhi was also so powerful after her election victory and the Bangladesh war in 1971 that the prime
minister’s position within the political system acquired enormous weight. The prime minister has full powers to choose ministers as well as recommend their dismissal. This gives the prime minister enormous powers of patronage.

The Constitution does not mention different categories of ministers such as cabinet ministers, ministers of state and deputy ministers, except in article 352 where the cabinet is defined as the council consisting of ministers of cabinet rank. In effect, however, the cabinet rank ministers who meet regularly in cabinet meetings chaired by the prime minister, are the most important as all important decisions are taken in cabinet meetings.

The Constitution does not allow the possibility of breakdown of constitutional machinery and direct Presidential rule at the Centre as it does in the states. There must always be a council of ministers. Even when a vote of no-confidence is passed and the council of ministers resigns, they are asked by the President to continue till the new one is in place.

A new constitutional controversy arose with the refusal of the BJP-led government, which was voted out of office on 17 April 1999, to act in the spirit of a caretaker as has been the convention. Despite protests by opposition parties, the government rejected any notion of caretaker status with the argument that there is no such provision in the Constitution. However it is arguable that this stance ignores well-established practice and is self-serving. The Chief Election Commissioner’s advice to the government that it should act keeping in mind that the country is already in election mode even though the statutory period of restraint has not yet begun also fell on deaf years. (Though the Lok Sabha was dissolved in April 1999, fresh elections were delayed till September and October due to the monsoon and revision of electoral rolls.) The government at one stroke transferred eight secretary-level (the highest rank in the bureaucracy) officials, including the Home Secretary, who is responsible for law and order, on 3 May 1999, after the Lok Sabha had been dissolved. This, despite the fact that one of the most important conventions evolved for ensuring fair elections is that officials are not transferred once elections are announced. Sadly, the letter of the Constitution is being used to defy constitutional practice.

The Indian parliament has two houses—the upper house being called the Rajya Sabha or the Council of States and the lower house the Lok Sabha or the House of the People. The Rajya Sabha has 250 members, of whom 238 are elected by elected members of the state legislative assemblies or Vidhan Sabhas via a system of proportional representation by means of single transferable vote, while another 12 are nominated by the President, on the advice of the government, to represent different fields such as
education, social work, media, sports, etc. Every two years, one-third of the members of the Rajya Sabha retire; but individual members’ terms are for six years, so that the Rajya Sabha is a permanent body. The Vice-President of India is the chairperson and a deputy chairperson is elected by Rajya Sabha members from amongst themselves.

The Lok Sabha is directly elected by the people for five years. It may be dissolved before its term is over. In case an Emergency is in force, the Lok Sabha can extend its term for one year at a time but not beyond six months after the Emergency has ended. In practice, only once has the Lok Sabha’s term been extended for a year in 1976 when Prime Minister Indira Gandhi had declared the Emergency.

All Indian citizens, eighteen or above, are eligible to vote. The winning candidate is the one that is first past the post, that is, the one who gets the maximum number of votes. There is no rule that the winner must get at least 50 per cent of the votes, as is the practice in many other countries, though many thoughtful observers have been urging that this system is adopted to ensure the representative nature of the candidate elected and encourage candidates to look beyond vote-banks to wider sections of voters. There is no proportional representation.

Constituencies are territorial and single-member, and divided among states roughly in proportion to the population. A certain number are reserved for Scheduled Tribes and Castes in proportion to their population in that particular state. This means that if, say, in Andhra Pradesh, 40 per cent of the population is Scheduled Castes and 10 per cent Scheduled Tribes, then in 40 per cent of Lok Sabha seats in Andhra Pradesh only Scheduled Caste candidates can contest and in another 10 per cent only Scheduled Tribe candidates can contest. All the voters residing in that constituency would elect these candidates—there are no separate electorates as there were before independence.

In recent years, pressure has built up for reservation of one-third of constituencies for women and a bill on those lines was also introduced in parliament in 1998, but it remains caught up in the web of claims and counter-claims of caste and religious groups who are demanding reservation within reservation, on the ground that else only upper-caste, elite, Hindu women will corner the seats reserved for women. Whatever the final outcome, the controversy has demonstrated clearly the self-propelling dynamic of the principle of reservation.

However desirable the objective, once the principle is accepted, it is virtually impossible to prevent further claims to the same benefits by other groups. The practice of reservation has also shown that it is almost impossible to reverse. The Constitution had envisaged reservations as a short-term measure lasting ten years; no government has ever seriously considered not extending them every ten years, and it is now nearly fifty years! On the contrary, demands for and acceptance of reservation have only increased. Even the question—whether reservation, which per se perpetuates certain group identities, can become a barrier to the concept of citizenship as embodied in the Constitution—is difficult to ask in the
prevailing political climate. Disadvantaged groups, and certainly their leaders, are easily convinced that reservation is the panacea for all ills, perhaps because it enables rapid upward mobility for some visible and vocal sections of the groups or because a bird in hand is considered to be better than the invisible one in the bush of the future.

The maximum number of seats in the Lok Sabha is 552. Of these, 550 represent territorial constituencies, and two go to nominated members from the Anglo-Indian community. Members must be at least twenty-five years of age. The Lok Sabha is chaired by the speaker, and in his absence by the deputy speaker, both of whom are elected by members from amongst themselves. By convention, the speaker’s post goes to the majority party and the deputy speaker’s to the Opposition. But again, in recent days, fractured verdicts, unstable coalitions, claims of rival groups within and outside the government, have upset established conventions. There were fairly well-established conventions that the election of the speaker and deputy speaker would be kept free of contest to assure their non-partisan image and the speaker should be a person of considerable ability and influence capable of asserting his authority in the House. But in 1998, the BJP-led government first backed out of a promise to support a Congress nominee, P.A. Sangma, as a consensus candidate and then had elected an unknown face, Balayogi, to please its alliance partner, the Telugu Desam party. This is unfortunate, for the Constitution has entrusted great responsibility to the speaker: within and in all matters relating to the Lok Sabha, the speaker’s word is final.

The parliament has extensive legislative powers and bills may be introduced in any house. To become law, bills must be passed by both houses, and then receive presidential assent. The President may, however, send the bills back to parliament or the government for reconsideration. If they are passed again, the President cannot withhold assent. Money-bills, however, must be introduced first in the Lok Sabha, and on the President’s recommendation. They go to the Rajya Sabha, and if not returned with suggestions in fourteen days, are taken as passed. Recommendations of the Rajya Sabha may or may not be accepted by the Lok Sabha in the case of money-bills.

The Constitution thus clearly envisaged parliament as an institution with great dignity and accorded privileges to its members commensurate with that position. Unfortunately, in recent years, the conduct of some members and parties who have disturbed even the President’s address, indulged in unnecessary walkouts, shouting, even physical scuffles, has lowered the dignity of the parliament and delayed necessary legislative business. This has led to a popular disgust with members of parliament and a common feeling that parliament is just a big waste of taxpayers’ money.