Discretion, hung Houses and the President-Prime Minister relationship

Detail

1. The rule first: the President acts on advice

• Article 74(1): there is a Council of Ministers with the Prime Minister at its head. It "aids and advises" the President. The President "shall … act in accordance with such advice". [3]
• Proviso to Art. 74(1): the President may ask the Council to reconsider its advice, either in general or on a specific matter. The President must then act on the advice given after that reconsideration. [3]
• The 42nd Amendment (1976) made the advice binding.

• The 44th Amendment (1978) added this "reconsider once" proviso.

• Article 74(2): no court can ask whether any advice was given to the President, or what that advice was. [3]

• Samsher Singh v. State of Punjab (1974): a seven-judge bench held that the President and the Governor are constitutional heads. They act on ministerial advice in all executive matters, except in a few narrow situations.
• Discretionary powers (powers the President uses on their own judgment, not on ministerial advice) therefore exist only in the gaps that the advice rule leaves open.

2. Where discretion lies

Situation	What the President can do	Limit
Returning advice (Art. 74(1) proviso)	Send the Cabinet's advice back once for reconsideration	Must accept the advice if it is sent again
Suspensive veto (Art. 111)	Return an ordinary bill to Parliament	Must sign if Parliament passes it again, with or without changes
Pocket veto	Keep a bill without deciding on it	Art. 111 sets no time limit for the President
Choosing a PM (Art. 75(1))	Decide whom to invite when no one has a clear majority	The floor test decides the final outcome
Ministry that has lost confidence	Dismiss a ministry that refuses to resign	Confidence must be clearly lost
Dissolution (Art. 85(2)(b))	Decide whether to dissolve the Lok Sabha when a PM who has lost the majority asks for it	May first look for another government

• Returning advice in practice: President K.R. Narayanan returned two Cabinet recommendations for President's rule (Art. 356: the Union takes over a state's government when it cannot run according to the Constitution):
• Uttar Pradesh, 1997: returned to the I.K. Gujral Cabinet, which then dropped the proposal.

• Bihar, 1998: returned to the A.B. Vajpayee Cabinet.

• Discretion grows with instability:

• The President has the most discretion "during political crises, like when no party holds a clear majority" (Class 8 NCERT).
• The four Lok Sabha elections of 1989, 1991, 1996 and 1998 produced no single-party majority (NCERT: four elections from 1989 to 1998).

3. Hung Houses in practice

• Hung Parliament: a Lok Sabha in which no party and no pre-poll alliance (parties that agreed to work together before voting) has a majority, which is 272 of 543 seats.
• Floor test: a vote of confidence on the floor of the House. A simple majority of members present and voting decides whether the ministry keeps the House's support.

1979: Sanjiva Reddy

• Morarji Desai resigned, and Reddy appointed Charan Singh PM in July 1979.
• Charan Singh resigned without facing the House in August 1979.
• Reddy dissolved the Lok Sabha on Charan Singh's advice.
• He passed over Jagjivan Ram's claim to form a government.
• Critics said that a PM who had never won a floor test should not be able to get the House dissolved.

1989: R. Venkataraman

• He first invited Rajiv Gandhi, as leader of the largest party (Congress). Rajiv Gandhi declined.
• He then invited V.P. Singh of the National Front, which had outside support from the BJP and the Left.

1996: Shankar Dayal Sharma

• He invited Vajpayee, as leader of the largest party (BJP).
• Vajpayee could not gather support and resigned after 13 days.
• H.D. Deve Gowda of the United Front then became PM.

1998: K.R. Narayanan

• The BJP and its allies had 251 seats, 21 short of a majority.
• Narayanan asked Vajpayee to do two things:
• give letters of support from the parties backing him;

• win a confidence vote within ten days of being sworn in.

• This set a new standard: the President asks for written proof of support, not just a claim.

1999: K.R. Narayanan

• Vajpayee lost a confidence vote by one vote (269-270) in April 1999.
• Narayanan checked whether anyone else could form a government. No one could, so he dissolved the Lok Sabha.

The usual order of invitation

1. A pre-poll alliance with a majority.
2. The largest single party that can win enough support.
3. A post-poll coalition (parties that join together after the results). - In every case, the floor test is the final judge, not the Governor's or President's private view. - Sarkaria Commission: - Indira Gandhi set it up in 1983 as a three-member body headed by Justice R.S. Sarkaria to review Centre-state relations. - It suggested rules to guide a Governor in choosing a Chief Minister. [4] - Its order of preference was approved by the Supreme Court in Rameshwar Prasad v. Union of India (2006). [5]

• Floor-test rule: the Supreme Court has held that an immediate floor test is the best answer when there is doubt about majority support. [5]
• S.R. Bommai (1994) set this rule.

• Shivraj Singh Chouhan (2020) applied it again.

• Limit on calling a floor test: in Subhash Desai (May 2023), the Court ruled on the Maharashtra crisis of 2022. [5]

• A Governor's decision to call a floor test is open to judicial review (a court can check whether a government action is lawful).
• The decision must rest on objective material, not on extraneous reasons.
• The Court refused to bring back Uddhav Thackeray's government, because he had resigned instead of facing the floor test.
• (For Governors, see state-government-governor and emergency-provisions.)

2024 Lok Sabha election

• The BJP won 240 seats, short of 272 on its own.
• The NDA (its pre-poll alliance) had a clear majority, so the House was not hung.
• But the BJP again depends on its allies, so coalition politics has returned.

4. Caretaker government

• Caretaker government: a ministry that stays in office after it resigns, loses its majority or sees the House dissolved, until the next ministry takes over.
• Why it exists:
• Art. 74 says there "shall be" a Council of Ministers.
• In U.N.R. Rao v. Indira Gandhi (1971), the Supreme Court held that the Council must exist at all times, even after the Lok Sabha is dissolved.

• So the President can never govern without ministers.

• Limits:

• By convention, a caretaker ministry avoids major policy decisions and new appointments.

• During elections, the Election Commission's Model Code of Conduct (a set of rules that bars new schemes and announcements meant to win votes) adds further limits.

• Examples:

• Charan Singh (August 1979 to January 1980): he never faced Parliament as PM.
• Vajpayee (April to October 1999): his ministry ran the Kargil conflict (May to July 1999) while acting as caretaker.

5. The President-Prime Minister relationship

• Article 78: the Prime Minister has three duties. [2]
• (a) Tell the President about all decisions of the Council of Ministers on the administration of the Union, and all proposals for legislation.
• (b) Give any information on these matters that the President calls for.

• (c) If the President requires it, place before the full Council any matter that one minister decided but the Council has not considered.

• Art. 78 makes the PM the only official channel between the Council and the President. [2]

• Right to be informed: this right is the President's main tool of influence. Presidents often write to the PM.
• Moments of friction:
• Rajendra Prasad and Jawaharlal Nehru (1951): Prasad objected to the Hindu Code Bill. He questioned whether the provisional Parliament had the authority to pass it. In the end, he did not block it.

• Zail Singh and Rajiv Gandhi (1986-87):

  • Zail Singh kept the Indian Post Office (Amendment) Bill, 1986 unsigned. This is the best-known use of the pocket veto.
  • He also complained that the PM was not keeping him informed under Art. 78.

• When the President disagrees with advice (for example, on a President's rule proclamation):

• First, the President discusses the advice and tries to persuade the Cabinet to drop it.
• Then, the President may return it once under Art. 74(1).
• Finally, if the Cabinet sends the same advice again, the President must sign.

Prelims Hooks

• The proviso to Art. 74(1) (send advice back once for reconsideration) was added by the 44th Amendment, 1978. The 42nd Amendment, 1976 first made ministerial advice binding.
• Art. 74(2): courts cannot ask what advice ministers gave the President.
• Art. 78: duty of the PM, not the Council, to tell the President about decisions and to supply information on request. The state-level version is Art. 167, the duty of the Chief Minister.
• U.N.R. Rao v. Indira Gandhi (1971): a Council of Ministers must exist even after the Lok Sabha is dissolved. This is the legal basis of the caretaker government.
• Samsher Singh (1974): the President and Governor act on ministerial advice. They are constitutional heads only.
• 1998: Narayanan asked Vajpayee for letters of support and a trust vote within ten days. 1997 (UP) and 1998 (Bihar): Narayanan returned recommendations for President's rule.
• Trap: Charan Singh (1979) is the only PM who never faced Parliament. Vajpayee's 1996 government lasted 13 days.
• Trap: Rameshwar Prasad (2006) approved the Sarkaria order of invitation. Bommai (1994) set the floor-test rule.
• Pocket veto: Zail Singh, Indian Post Office (Amendment) Bill, 1986.
• 2024 Lok Sabha: BJP 240 seats with an NDA majority, so the House was not hung.

Mains Points

• Discretion grows with instability:
• From 1989 to 1999, Presidents had to decide whom to invite, whether to ask for letters of support, and when to dissolve the House.
• The 1998 rule of "letters of support plus a time-bound floor test" moved the decision from the Rashtrapati Bhavan to the House.

• Use this to argue that conventions and clear rules reduce the risk of partisan use of discretion.

• Codify the order of invitation:

• The Sarkaria order, approved in Rameshwar Prasad (2006), and the Bommai floor test exist only as conventions and case law.
• Writing them into law or a binding protocol, for both President and Governors, would make outcomes predictable.

• Subhash Desai (2023) shows that the courts will step in when a constitutional head acts on extraneous grounds.

• The caretaker problem:

• An outgoing ministry must govern, as in Kargil in 1999, but it has no fresh mandate.
• Conventions and the Model Code of Conduct balance continuity of government against democratic accountability.

• There is a case for a written caretaker convention, like Westminster-style cabinet manuals.

• Art. 78 as a working relationship:

• The President's influence comes from the right to be informed, consulted and to warn.
• Prasad-Nehru and Zail Singh-Rajiv Gandhi show that this weakens when the PM withholds information.
• Regular briefing is a constitutional duty, not a courtesy.