Despite the Constitution being a comprehensively written document, ambiguities remain, which have been resolved by smart interpretations

The selection of a Prime Minister is a relatively smooth affair in case the results of a general election are decisive. In such cases, the Prime Minister virtually selects himself. But this is not always the case. There have been instances post a general election, as also a mid-term poll, where Presidents have had to undertake strenuous exercises before making the final selection. Some such cases — where the decision-making was not so smooth and conventions were not followed — will be recalled in this column.

India’s Constitution is one of the longest in the world. Its drafting took almost three years and was debated extensively before being finalised. Despite being a comprehensively written document, ambiguities remain, resulting in varying interpretations, sometimes leading to controversies.

Article 74 of the Constitution is modelled on Section 9 of the Government of India Act, 1935, which lays down the basis of a Cabinet system (Council of Ministers) with the Prime Minister as the head of the Cabinet to aid and advise the President.  Article 75 lays down that the Prime Minister shall be appointed by the President. Obviously, it is left to the latter to take a decision and appoint the former. As per the Constitution, the Prime Minister and the Council of Ministers are responsible to the House of the People. Article 75(3) says such a person chosen as the Prime Minister has to have the confidence of the House.  Though not mentioned explicitly in the Constitution, ultimately, it becomes the weightiest factor in the selection process with the President.

In the case of a single political party or a pre-poll alliance having majority, who have chosen a leader, the decision-making is uncomplicated and smooth. Complications arise in cases where claims of relative strengths conflict and overlap. For such situations, too, over a period of time, conventions and precedents have evolved, facilitating the decision-making process.

Presidents have adopted varying yardsticks for different situations, which are now part of our Constitutional history. After the sixth general election in March 1977, Morarji Desai of the Janata Party had become the Prime Minister. He had to resign mid-term on July 15, 1979, on account of certain intra-party stress factors, even though he continued to be the leader of the Janata Party. The next day, the then Deputy Prime Minister Ch Charan Singh broke away from the Janata Party and formed his own party. As per the convention, the then President Neelam Sanjeev Reddy invited Leader of the Opposition YB Chavan to form the Government. Expressing his inability, Chavan suggested to the President that a combination of parties had emerged led by Ch Charan Singh, which could form the Government. The President at this stage set a precedent when he asked for lists of supporting MPs, both from Morarji Desai as well as Ch Charan Singh. Ultimately supported by the Congress, Charan Singh was sworn in as the Prime Minister on July 28, almost two weeks after Morarji Desai’s resignation. He was supposed to prove his majority during the Monsoon Session of Parliament but had to resign on August 20 for want of support from the Congress.

While resigning, he had advised the President to dissolve the House for a fresh election. Strictly following the convention, the advice of a Prime Minister, who had failed to win the confidence of the House, was not binding on the President. In this case, President Neelam Sanjiva Reddy, instead of making an offer to Jagjivan Ram, then Leader of Opposition, dissolved the House and Ch  Charan Singh continued as the care-taker Prime Minister for almost five months till the seventh general elections were held in December 1979. It has been often observed that this decision was propelled by the previous history of the President and Jagjivan Ram from their days together in the Congress at the time of its split in 1969.

The precedent of obtaining lists of MPs in support was later repeated in 1999 by President KR Narayanan, when one of the claimants was unable to furnish the requisite numbers, leading to the post-Kargil war general elections in September 1999.

Earlier in November 1989, after the ninth general election, as no party had secured an absolute majority, President R Venkataraman invited Rajiv Gandhi in his capacity as the leader of the largest party in Parliament to form the Government. After his refusal, VP Singh, with letters of support from the Left Front as well as the BJP, formed the Government. As the latter withdrew their support on October 23, 1990, VP Singh was asked to prove his majority in the House. Having lost the vote 142 to 346, he had to resign on November 7, 1990. The Congress was once again asked to form the Government, but they instead supported Chandrasekhar’s breakaway group. Accordingly, Chandrasekhar was sworn in as the Prime Minister. Later, in March 1991, after the withdrawal of support from the Congress, he resigned, advising dissolution of the Lok Sabha, which was accepted by the President.

At least on one occasion, the principle of making the first offer to the largest party appeared to be embarrassingly impractical. In 1996, the then President Shankar Dayal Sharma had invited Atal Bihari Vajpayee to form the Government, as the BJP was the largest party with 161 seats, its allies having 34, thus making it a total of 195.

On the other hand, the United Front had a total of 318, including the Congress’ support. Embarrassingly, also for the President, Vajpayee failed to secure the vote of confidence and had to resign within 13 days of being sworn as the Prime Minister. Obviously, while extending the invitation to Vajpayee, his capacity to win confidence of the House had not been considered.

Ultimately, what matters is the satisfaction of the President that his choice would be able to win the confidence of the House. Based on this principle, after Indira Gandhi’s assassination, Giani Zail Singh as President had invited Rajiv Gandhi to be the Prime Minister in 1984, even though at that time, he had not been formally elected as the leader of the party.

In 2004, the difference between the Congress (145) and the BJP (138) was very small, but the then President, APJ Abdul Kalam had invited the Congress to form the Government not only because it was the largest party but also because it had the largest pre-poll support (UPA) in numbers.

The modalities of the selection process were looked upon in detail by the Sarkaria Commission, which had recommended that the President should invite the leaders of the parties in the following order, (i) Leader of the largest pre-poll alliance of parties, (ii) Leader of the single largest party, (iii) Leader of the post-poll alliance.

Later, the Commission, to review the working of the Constitution chaired by former Chief Justice of India MN Venkatachaliah, had suggested that in certain ambiguous situations, the President could send a message to the Lok Sabha to choose a leader, who would then be appointed the Prime Minister. Such a procedure would do away with the requirement of a vote of confidence in the House. Ever since our independence, despite our initial lack of experience in running democratic institutions, it is heartening that we have, as the world’s largest democracy, evolved in a manner to set an example to the rest.

(The writer is a former Governor of Meghalaya and Uttarakhand and a former Commissioner of Police, Delhi)