Article 74: Filling the Void

(Guest Post by Tejas Popat)
V Venkatesan in his latest post and one in 2009 talks about
contingencies when the Prime Minister or a Chief Minister is unable to
discharge his/her constitutionally mandated duties. In this regard, in the
older post, he states that our Constitution does not provide for an officiating
Prime Minister because:
  1. It would be
    impossible to vest enormous power in someone who is just officiating.
  2. He/she might not
    enjoy the confidence of the House.
I will humbly differ.

Vesting of enormous power

It would not be trite to state that any of the
ministers of the Council would be incompetent to responsibly exercise the
powers of the Prime Minister. Also, not any minister from the Council would be
the Prime Minister. It would only be one among the senior and experienced
minister who would be called upon to ultimately occupy the post in the interim.
Therefore, the fact that the incoming minister would not be competent enough
should not be a serious concern. Constitutionally, both the Prime Minister and
any member of the Council of Ministers have to meet similar requirements and
take the same oath.

Enjoying the confidence of the House

He also states that “An officiating PM cannot enjoy
the confidence of the House, even if the Constitution had sanctioned it.” Here,
a look at history may be useful. In the draft Constitution, Schedule
provided for ‘Instructions to Governor of States in Part I of the First
Schedule.’ Enlisted at point 2 was an instruction which read,

“2. In making appointments to his Council of ministers
the Governor shall use his best endeavours to select his ministers in the
following manner, that is to say, to appoint in consultation with the person
who in his judgment is most likely to command a stable majority in the
Legislature those persons (including so far as practicable members of important
minority communities) who
will best be in a position collectively to command the confidence of the
. In
so acting, he shall bear constantly in mind the need for fostering a sense of
joint responsibility among the ministers.”

Later, in the Constituent Assembly, on 30
December 1948
, Dr. Ambedkar said,
“It will be seen that we have in the Draft
Constitution introduced one schedule called Schedule 4 which contains the
Instrument of Instructions to the Governor as to how he has to exercise his
discretionary powers in the matter of administration. We have analogous to
that, decided to move an amendment in order to introduce another schedule which also
contains a similar Instrument of Instructions to the President. One of the
clauses in the proposed Instrument of Instructions will be this:
making appointment to his Council of Ministers, the President shall use his
best endeavours to select his Ministers in the following manner, that is to
say, to appoint a person who has been found by him to be most likely to command
a stable majority in Parliament as the Prime Minister, and then to appoint on
the advice of the Prime Minister those persons, including so far as
practicable, members of minority communities, who will best be in position
collectively to command the confidence of Parliament.””
Nothing of this ever came through. It has
been suggested that these Instrument of Instructions were introduced to act as
a check on the discretionary power of the President and the Governor.
As to their absence in the Constitution, S.
Chatterjee in his book (Governor’s Role in the Indian
Constitution) states:

however, the Instrument of Instructions were removed from the Constitution on
the clear assurance given by Ambedkar and other members of the Drafting
Committee that the President could act only on the aid and advise of his
Council of Ministers.”

Hence, they were omitted for a reason which
does not immediately concern us. However, The Instrument of Instructions makes
it clear that any persons forming part of the Council should equally be
able to command the confidence of the House. Hence, the concern that the Prime
Minister is sui generis and therefore
irreplaceable, at least temporarily would not be in line with the Instrument of
Further, the Prime Minister in choosing the
Council would be aware that in case of a contingency, one of the members of the
Council he chooses would replace him in the chair. As far as those not in the
Council, the same would not be true. Hence, in a contingency, the President
would then be justified exercising his discretion and calling of the member of
the Council to be the interim Prime Minister. And, as I stated above, such a
choice would not be made blindfolded. Hence, while our Constitutional set-up
does not explicitly provide for a ‘No. 2’ it certainly gives some guidance to
the President. All of this would equally apply to a contingency at the State
level, like the one which V Venkatesan points out.

(The author is a student at the National
University of Juridical Sciences, Kolkata. He would like to thank Sharath Ninan
Mathew for his comments and suggestions.)

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