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VOTE FOR MY PANEL ON 13
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SEPTEMBER- ELECTION DAY.
RADHIKA SETH 2
FOR PRESIDENT
ANUBHAV SINGH 1
FOR SECRETARY
AMIT RANJAN 1
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1 introduction salient features of the constitution the constitution of india is unique in many ways. it has several special features that distinguish it from other constitutions of the world. (1) size of the constitution it is the lengthiest constitution ever given to any nation. it is a very comprehensive document and includes many matters which could legitimately be the subject matters of ordinary legislation or administrative action. this happened because the government of india act, 1935, which was after all basically a statute, was used as a model and an initial working draft and large portions of it got reproduced in the constitution. the size, complexities and the diversities of the indian situation also necessitated several special, temporary, transitional and miscellaneous provisions for certain regions of the country or classes of people. (2) types of constitution written or unwritten: constitutions may be written like the u.s. constitution or unwritten and based on conventions like the british. indian constitution is written even though conventions also play a part insofar as they are in keeping with the provisions of the constitution. it originally contained 395 articles and 8 schedules. it presently contains 395 articles (total number-444) divided into 22 parts and 12 schedules. rigid or flexible: constitutions may be called rigid or flexible on the ground of the amending procedure being difficult or easy. federal constitutions are usually classified as rigid because of their difficult amending processes. indian constitution may be said to be a combination of rigid and flexible inasmuch as certain provisions of the constitution can be amended like ordinary legislation by simple majority in the houses of parliament, other provisions can be amended by a special majority. indian constitution: whether federal or unitary? (3) parliamentary or presidential system of government india is a republic (i.e. the supreme power rests in all the citizens entitled to vote- the electorate, and is exercised by representatives elected, directly or indirectly, by them and responsible to them) and the head is the president in whom all the executives power vests and in whose name it is to be exercised. he is also the supreme commander of the armed forces. however, unlike the u.s. president, indian president is only a nominal or constitutional head of the executive; he acts only with the aid and advice of the real political executive which is the council of ministers. the ministers are collectively responsible to the popular house of parliament i.e. the lok sabha. thus, following the british "westminster" pattern, the constitution of india has basically adopted, both at the union and state levels, the parliamentary system of government with ministerial responsibility to the popular house as against the u.s. system of presidential government with separation of powers and a nearly irremovable president as the chief executive for a fixed term. in the u.s. system, the president chooses his team of ministers from among the citizens at large and the ministers are not
freedom, for example, can be challenged in the supreme court or high court. the constitution also lays down the machinery and mechanism for the enforcement of these rights. in the u.s. constitution, the fundamental rights were expressed in absolute terms. but there can be no absolute individual rights. for, the rights of each individual are limited at least by similar rights of other individuals. the supreme court of the united states had to find out and identify the legitimate restrictions on fundamental rights. our founding fathers, however, decided to incorporate the restrictions within the relevant provisions themselves. (8) directive principles the directive principles of state policy inspired by the irish precedent, are a unique feature of our constitution. most of the socio-economic rights of the people have been included under this head. even though said to be not enforceable in courts of law, these principles are expected to guide the governance of the country. they are in the nature of ideals set by the founding fathers before the state and all the organs of the state must strive to achieve them. in recent years, the directive principles have increasingly assumed greater relevance and importance not only for the legislatures but also in the eyes of the courts. (9) fundamental duties the 42nd amendment to the constitution inter alia added a new part to the constitution under the head fundamental duties. it lays down a code often duties for all the citizens of india. inasmuch as there can be no rights without corresponding duties and rights of citizens have no meaning without respect for political obligations of the citizens towards the state, it is unfortunate that the code of fundamental duties of the citizens has not so far been accorded the importance it deserves. (10) citizenship in keeping with their aim of building an integrated indian fraternity and a united nation, the founding fathers provided for 'one single citizenship' despite the federal structure. in federal states like usa and switzerland, there is a dual citizenship, viz., the federal or national citizenship and the citizenship of the state where a person is born or permanently resides. unlike the u.s., there was to be no separate citizenship of the union and of the states and all citizens were entitled to same rights all over the country without any discrimination subject to a few special protections in case of the state of jammu and kashmir, tribal areas etc. (the constitution of jammu & kashmir provides for citizenship of the state). the population is divided into two classes: citizens and non-citizens. non-citizens or aliens do not enjoy all rights granted by the constitution. indian citizens exclusively possess the following rights: (1) some of the fundamental rights viz. articles 15, 16, 19, 29 and 30. (2) only citizens are eligible for offices such as those of the president [article. 58]; vice president [article. 66]; judge of the supreme court [article. 124] or a high court [article. 217]; attorney general [article. 76]; governor [article. 157]. (3) the right to vote [article. 326]; the right to become a member of parliament [art. 84] and state legislature [article. 191]. it may be noted that the rights guaranteed by articles. 14 and 21 are available to aliens also. the enemy aliens, however, suffer from a special handicap. they are not entitled to the benefit of article. 22. the constitution does not lay down a permanent or comprehensive provision relating to citizenship in india. part 2 of the constitution simply describes classes of person who would be deemed to be the citizen of india at the commencement of the constitution, the 26th january 1950. the
parliament, under article. 11, has enacted the indian citizenship act, 1955, which provides for the acquisition and termination of citizenship subsequent to the commencement of the constitution. (11) independent judiciary the constitution of india establishes an independent judiciary with powers of judicial review. the high courts and the supreme court from a single integrated judicial structure with jurisdiction over all laws - union, state, civil, criminal or constitutional. unlike the u.s., we do not have separate federal and state court systems. the entire judiciary is one hierarchy of courts. it not only adjudicates disputes and acts as the custodian of individual rights and freedoms but also may from time to time need to interpret the constitution and review legislation to determine its vires vis-a-vis the constitution. (12) union and its territories the constitution of india does not protect territorial integrity of states. part 1 of the constitution comprising articles. 1 to 4 provides a self-contained mechanism for effecting changes in the constitution of states or union territories of the union of india. there are at present 28 states and 7 union territories in the union of india. (13) special status of jammu and kashmir by virtue of article. 370 of the constitution, the state of jammu & kashmir enjoys a special status within the indian union. it is the only state possessing a separate constitution which came into force on 26th january,
- however, it is included in the list of states in the first schedule of the constitution of india. the jurisdiction of parliament is limited to matters in the union list and only some matters in the concurrent list. the provisions of indian constitution did not automatically apply to jammu and kashmir. they were gradually made applicable (some in modified form) under article. 370. art. 370 was incorporated in the constitution in pursuance of the commitment made by pandit jawaharlal nehru to maharaja hari singh in october 1947 at the time of signing the instrument of accession of jammu and kashmir to india. article 370(1) stipulates, "notwithstanding anything in this constitution- (a) the provision of article 238 in part 7 (which was subsequently omitted from the constitution by the 7th amendment in 1956) shall not apply in relation to the state of jammu and kashmir; (b) the power of parliament to make laws for the said state shall be limited to those matters in the union list and the concurrent list which, in consultation with the government of the state, are declared by the president to correspond to matters specified in the instrument of accession governing the accession of the state to the dominion of india as the matters with respect to which the dominion legislature may make law for that state; and such other matters in the said lists, as with the concurrence of the government of the state, the president may by order specify; (c) the provisions of article 1 of this constitution shall apply in relation to that state; (d) such other provisions of this constitution shall apply in relation to that state subject to such exceptions and modifications as the president may by order specify." (14) panchayati raj and nagar palika institutions the constitution 73rd amendment act, 1992 and the 74th amendment act, 1992 have added new parts 9 and 9 - a to the constitution. under these two parts, 34 new articles (243 to 243-zg) and two new schedules ( 11 and 12 ) have been added. these amendments do not apply to the states of
liberty of thought, expression, belief, faith and worship; equality of status and of opportunity; and to promote among them all fraternity assuring the dignity of the individual and the unity and integrity of the nation: in our constituent assembly, this twenty-sixth day of november 1949, do hereby adopt, enact and give to ourselves this constitution." (the words 'socialist' and 'secular' have been added to the preamble by the 42nd amendment act, 1976. also, 'unity of the nation' was amended to read 'unity and integrity of the nation'). the objectives of the preamble are: justice, liberty, equality and fraternity. the ultimate goal is that of "securing the dignity of the individual and unity and integrity of the nation." the preamble sets out the aims and aspirations of people, and these have been translated into various provisions of constitution. the people will continue to be governed under the constitution so long as it is acceptable to them and its provisions promote their aims and aspirations. following the course of indian history and pattern of indian politics, it may be said that, unlike the western society, it is the elite of indian society rather than people themselves who have set the tone for reformation of society. for example, in field of legislative activity, enactment of a law is not brought about as a culmination of urges of people reflecting changes in socio-economic order, but a measure which was enacted and adopted by constituent assembly which took the lead in projecting a system to be identified with aims and aspirations of people (though constituent assembly was not directly elected by people, it doesn't necessarily mean that it didn't project the feeling of people). the constitution though not ratified by people, came into force in
besides the fact that the preamble provides it is the people of india who have enacted and given to themselves the constitution, the successful working of the constitution and its continued acceptance by people over the years, leads to no other conclusion that the binding force of constitution is the sovereign will of people of india. if at any stage of history, the people find that constitution is not serving the needs of society, they may set in motion a machinery which provides for a system suited to aims and aspirations of people. it may, therefore, be rightly observed that the 'sovereignty' lies with the people of india - preamble declares that source of authority under the constitution is the people of india (sovereignty, is not located in parliament, as it is bound by constitution.... which in a sense may appear to be sovereign as it is supreme law. however, it is the people who have given ... constitution). thus, the source of the constitution are the people themselves from whom the constitution receives its ultimate sanction. the constitution has not been imposed on them by any external authority, but is the work of the indians themselves. utility of preamble preamble represents the quintessence, the philosophy, the ideals, the soul or spirit of the entire constitution of india. it had the stamp of "deep deliberation", was "marked by precision": it was "an epitome" of the broad features of the constitution which were an amplification or concretization of the concepts set out in the preamble (madhlokar, j. in sajjan singh verses state of rajasthan ). the preamble does not grant any power but it gives a direction and purpose to the constitution. the utility of the preamble is as follows: utility of preamble ( 1 ) it contains the enacting clause which brings the constitution into force. (2) it indicates the source of constitution.
(3) it declares the basic type of government and polity which is sought to be established in the country. (4) a statement of objectives of the constitution - which the legislation is intended to achieve (example implementation of directive principles). it epitomizes principles on which the government is to function. (5) it serves as a challenge to the people to adhere to the ideals enshrined in it ('justice, liberty, equality, fraternity, etc.). (6) it is a sort of introduction to the statute and many a times very helpful to understand the policy and legislative intent. it is a 'key-note' i.e. key to the minds of the framers of the constitution. (7) several decisions of the supreme court pointed out the importance and utility of it. by itself, it is not enforceable in a court of law, yet it states objects and aids legal interpretation of the constitution, where language is ambiguous..... construction which fits the preamble may be preferred (however, the preamble cannot override the express provisions of an act). amendment of preamble in berubaris ' case , the supreme court held that preamble is not a part of constitution and thus not a source of any substantive powers and doesn't import any limitations. however, in keshavanand's case the court held that preamble is part of constitution and it is of extreme importance; and constitution should be read and interpreted in the light of grand and noble vision expressed in preamble. in fact the preamble was relied on in imposing implied limitations on amendment under the art. 368. held that since preamble is part of constitution, it can be amended, but 'basic features in it can't be amended. as edifice of our constitution is based upon these features and if they removed, it will not be the 'same' constitution. amending power can't change the constitution in such a way that it ceases to be a 'sovereign democratic republic. it may be noted that in exercise of the amending power under art. 368, the constitution (42nd) amendment act, 1976 amended the preamble inserting the terms 'socialist', 'secular' and 'integrity.'
(3) a territory separated from an existing state reorganized into a full state. however, article. 2 deals with admission, etc. of new states, which may be formed of the foreign territories... article. 2 does not refer to the territories forming part of the existing states (article. 3 provides for that). article. 2 confers full discretion on the parliament as to what terms should be imposed on the new states so admitted into the union. the expression "by law" indicates that a legislative action on the part of the parliament is required for the admission of a new state. therefore, the acquisition of a foreign territory by india automatically makes the said territory a part of the indian territory under article. l(3)(c), but they said territory can be admitted as a 'state,' into the union, by the process of law, enacted by parliament under article. 2. article. 3(a): formation of new states article. 3(a) empowers the parliament to form new states, by law. it may do so by any of the following modes - (1) by separation of territory from any state, (2) by uniting two or more states, (3) by uniting parts of states (4) by uniting any territory to a part of any state. while article. 2 relates to admission or establishment of new states which are not part of the union, art. 3 provides for the formation of or changes in the existing states including union territories. it is important to note that "foreign territories" which become part of india on acquisition may: (1) either be admitted into the union; (2) constituted into new states under article. 2; or (3) merged into an existing state under art. 3(a) or 3(b); or (4) formed into a union territory. the constitution of india does not guarantee the territorial integrity of any state of the union (in re berubari case). parliament may even cut away the entire area of the state to form a new state. when a new state is formed by uniting two or more states, the states cannot unite in some matters and not to unite in respect of other matters. it may also be noted that there is nothing in the constitution which would entitle a new state, after its formation or admission into the union, to claim complete equality of status with a state existing at the commencement of the constitution, or formed thereafter under article. 3. article. 3(b) to (e): alteration of areas, boundaries or names of states the parliament may, by law, (b) increase the area of any state, (c) diminish the area of any state, (d) alter the boundaries of any state, and (e) alter the name of any state. the parliamentary legislation is subject to the condition laid down in proviso to art. 3. proviso to article 3 - "no bill for this purpose shall be introduced in either house of parliament except on the recommendation of the president, and such a bill has to be referred by the president to the legislature of that state for expressing its views thereon". the state legislature is required to express its view within a specified time period as directed by the president. he may extend the time so specified. the parliament, however, is not bound to accept these views. once the bill has been referred to the concerned state legislatures, and thereafter duly introduced in parliament, subsequent amendments seeking to make provisions different from those contained in the original bill at the time of its introduction, are not required to be referred again to the state legislatures (if the amendments are germane to the subject matter of the original proposal or are not a direct negation
thereof). also, no fresh recommendation of the president is necessary for the consideration of the proposed amendment to the bill (babulal parate verses state of bombay) explanation 1 to article. 3 - the term "state" in clauses (a) to (e) of article. 3 include a "union territory". but the term "state" used in proviso to article. 3 does not include a union territory (the reason being that the union territories are under the administration of the president himself). explanation 2 to article. 3 - the power conferred on parliament by clause (a) of article. 3, to form a new state, include the power to form a new union territory also. article. 4: supplemental matters article. 4(1) directs the parliament, in case it makes a law under article. 2 or 3, to include therein necessary provisions (supplement, incidental and consequential) for the amendment of first and fourth schedules of the constitution. the first schedule specifies the number of states which are members of the union and their respective territories. the fourth schedule specifies the number of seats to which each state is entitled to in the council of states. article. 4(2) said that laws relatable to article. 2 or 3 do not amount to constitutional amendments for the purposes of article. 368. thus, such laws may be passed by the parliament by simple majority procedure (subject to the requirements laid down by proviso to article. 3) and without going through the special majority procedure prescribed by article 368. cession of territory to a foreign state the powers given to parliament to reorganize states cannot be availed of by it to cede any indian territory to a foreign country. this was held so in an advisory opinion in the below-mentioned case.
amendments; etc. (kuldip nayar verses uoi ). deviations from federal characteristics: unitary features of indian constitution in the following matters, it is pointed out, the indian constitution modifies the strict application of the federal principle:- (1) legislative relations - under the art. 249, parliament is empowered to make laws with respect to every matter enumerated in the state list, if it is necessary in the national interest. similarly, legislation for giving effect to international agreements (article. 253). in case of inconsistency between the laws made by parliament and laws made by legislature of states, the laws made by parliament whether passed before or after the state law in matters enumerated in concurrent list, to the extent of repugnancy prevail over the state law. in case of an overlapping between the matters of three lists i.e. union, state and concurrent list, predominance has been given to the union (article. 246). previous sanction of the president is required for introduction of certain bills in the state legislatures (viz. art. 304). (2) administrative or executive relations - all planning is at the union level (via planning commission), the states only implement the plans formulated by the union. further, there is all- india services. the executive power of every state has to be exercised as to ensure compliance with the laws made by parliament. article. 365 authorises the president to hold that a situation has arisen in which government of a state cannot be carried on in accordance with the provisions of constitution, if the state fails to comply with or give effect to any directions given in exercise of the executive power of the union. (3) financial relations - the states depend largely upon financial assistance from the union (through grants-in-aids). power of taxation (which is exercisable by the states in comparatively minor fields, the more important such as income-tax, wealth-tax, excise-duties other than those on certain specified articles and customs, being reserved to the union) conferred by various entries under list ii on the states is also severely restricted. (4) parliament's power to form new states and alter boundaries of existing states - the very existence of the state thus, under article. 3, depends upon the sweet will of union. (5) appointment of governors - the governors of states are appointed by president and answerable to him. they hold the office at the pleasure of the president. they thus act in a manner suitable to the president even at the cost of the interest of the states of which they are governors. there are provisions in constitution under which the governor is required to send certain state laws for the assent of president and the president is not bound to give his assent. (6) emergency provisions - under emergency, the normal distribution of powers between the centre and states undergo a vital change (in the favour of the centre). under article. 356, the state legislature can be dissolved and president's rule can be imposed either on the governor's report or otherwise when there is a failure of the constitutional machinery in a state. (7) single and uniform citizenship - for the whole country. (8) uniform and integrated judicial system - for the whole country. ( 9 ) inter-state council - if at any time it appears to the president that the public interests would be served by the establishment of a council charged with the duty of- (a) inquiring into and advising upon disputes which may have arisen between states; (b) investigating and discussing subjects in which some or all of the states, or the union and one or more of the states, have a common interest; or (c) making recommendations upon any such subject and, in particular, recommendations for the better co-ordination of policy and action with respect to that subject, it shall be lawful for the president to
establish such a council, and to define the nature of the duties to be performed by it and its organization and procedure (article. 263). (10) freedom of trade and commerce — for the whole country. the comprehensive provisions of part 13 seek to make india a single economic unit for purposes of trade and commerce under the overall control of the union parliament and the union executive. thus, in certain circumstances, the constitution empowers the centre to interfere in the state matters and thus places the states in a subordinate position or converts the union into a unitary state, which violates the federal principle. the similar views were expressed in state of w.b. verses union of india case (discussed later). criticism of wheare's views the term "quasi-federal" as suggested by wheare is very vague as it does not denote how powerful the centre is, how much deviation there is from the pure 'federal model', etc. it may be that centre has been assigned a larger role than the states but that by itself does not detract from the federal nature of constitution, for it is not the essence of federalism to say that only so much, and not more power, is to be given to the centre. the federalism varies from place to place, and from time to time depending on factors like - historical, geographical, economical and political. indian constitution is sufficiently federal, and it is no less federal than american federalism. the framers of indian constitution kept in view the practical needs of country designed on federal structure not on the footing that it should conform to some theoretical or standard pattern, but on the basis that it should be able to subserve the need of the vast and diverse country like india. conclusions: indian federalism is 'unique' india adopted a federal structure as the different parts of the country were at different stages of development and it would have been difficult to control from one centre; and to ensure minorities their due place. however, the indian federalism is unique because of its mode of formation i.e. from union to states (creation of autonomous units and then combining them into a federation), and not vice versa. it is to be noted that term 'union of states' (article. 1) and not 'federation' is used in the constitution. also, the units have no right to secede (as in a confederation). the constitution of india is neither purely federal nor purely unitary, but is a combination of both. it is a union of composite states of a novel type. neither the parliament not the state legislation is 'sovereign' because each being limited by the constitutional provisions affecting the distribution of powers. the constitution enshrines the principle that in spite of federalism, the national interest ought to be paramount. thus, the indian constitution is mainly federal with unique safeguards for enforcing national unity and growth. the scope of application of federal principle in india is shown by the scope of state legislatures. however, indian federation is not defective; the defect is political because there is a conflict between opposition-party ruled states and the central government. also, federalism is not dead in india, as evidenced by the fact that new regions are demanding statehood and union has yielded, thus states like manipur, tripura, goa, etc. have been created. moreover, in spite of conflicts, the opposition-party ruled states do exist.
the government of any state or other authorities have to be transferred to the president. article. 53(3) further lays down that though executive power is vested in the president, it will not prevent parliament from conferring functions on authorities other than the president. but powers which are expressly conferred on the president by the constitution cannot be transferred by parliament to any other authority. position of president: relation between president and council of ministers all executive functions are executed in the name of president, authenticated in such manner as may be prescribed by rules to be made by president (article 77). the president has wide administrative powers (to appoint and dismiss officers, ministers, etc.), military powers, diplomatic and legislative powers. the president, however, must exercise powers according to the constitution. art. 53(1) which vests the executive power of the union in the president provides that the power may be exercised by the president either directly or through officers subordinates to him. for this purpose, ministers are deemed to be officers subordinate to him. article 74(1) provides that there shall be a council of ministers with prime minister at the head, to aid and advise president in exercise of his functions. article 74(2) lays that question whether any, and if so, what advice was tendered by minister to the president shall not be inquired into in any court. thus, relation between president and council of ministers are confidential. prior to the 42nd amendment, there was no clear provision in the constitution that president was bound by ministerial advice. this amendment amended article 74 which makes it clear that president shall be bound by the advice of council of ministers. however, by 44th amendment, president has been given one chance to send back advice to the council of ministers for reconsideration. however, president shall act in accordance with advice tendered after such reconsideration.^6 article 75(1) says that prime minister shall be appointed by president and other ministers shall be appointed by president on the advice of prime minister. article 75(2) lays that minister shall hold office during the pleasure of president. article 75(3) lays down that council of ministers shall be collectively responsible to the lok sabha. clause (1a), added to article. 75(1) by the constitution 91st amendment (2003), provides that the size of the council of ministers including the prime minister shall not exceed 15 per cent of the total number of the members in the lok sabha. it may be noted that the ministers are nominees of the prime minister. the constitution does not contain any restriction on the prime minister's choice of his colleagues. in practice, his choice is governed by considerations like party standing, capacity, educational skill, willingness to carry out a common policy, regional representation, representation of backward or scheduled classes, minorities, etc. before a minister enters upon his office, the president shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the third schedule [article. 75(4)]. the salaries and allowances of ministers shall be such as parliament may from time to time by law determine and, until parliament so determines, shall be as specified in the second schedule [article. 75(6)]. the salaries and allowances of ministers act, 1952, has been passed for this purpose. prime minister he is the leader of the majority party in the lok sabha. according to article. 74(1), he is the head of the council of ministers. he is primes inter pares ('first among equals') in council of ministers. his main function is to aid and advise the president in the exercise of his functions. in this way, he is the real or chief executive.
the prime minister's office is his personal secretariat. under the allocation of business rules, 1961, it occupies the status of a department of the government of india. 'cabinet' is the core of the council of ministers. the prime minister is the chairman of the planning commission. recently, he has been made the chairperson of the 'tiger conservation authority'. deputy prime minister the post of deputy prime minister is not prescribed in the constitution. however, seven deputy prime ministers have been made so far (example sardar patel - first', l.k. advani - last). such appointment depends on the discretion of the prime minister and the communication is sent to the president of india. he occupies the position of prime minister in assisting him in his absence. his office is meant to reduce the workload of the prime minister. he, however, lacks the powers of the prime minister. the supreme court has ruled that the deputy prime minister is just a minister and he takes the same oath as a minister does. president's discretion: a limited one (council of ministers to aid and advise president) alladi krishna ayyar, a member of the drafting committee of the constituent assembly, observed that the word "president" used in the constitution "merely stands for the fabric responsible to the legislature". what he means by the term 'president' is the union council of ministers which is declared to be collectively responsible to the house of people i.e. lok sabha. the role of the president as a figurehead is reflected in his indirect election. it may also be noted that the constitution nowhere uses the terms like "discretion" and "individual judgment" for the president which were used for the governor-general under the government of india act, 1935. according to dr. ambedkar, "under the draft constitution, the president occupies the same position as the king under the english constitution. he is the head of state but not of the executive. he represents nation but does not rule the nation. his place in the administration is that of a ceremonial device on a seal by which the nation's decisions are made known. he can do nothing contrary to the advice of council of ministers nor can do anything without their advice." it is the council of ministers which makes decisions relating to the administration of the affairs of the union and its decisions are binding on the president. except in certain marginal cases, president shall have no power to act in his discretion in any case:- (1) council of ministers is collectively responsible to lok sabha [article. 75(3)]. thus, for the policy decisions of the government, the council of ministers is answerable to parliament; the president is not responsible to parliament for the acts of government. it will be anomalous to hold that the ministers are answerable for the acts and policies of the government in the making of which they only give advice, while the final decisions are taken by the president. if the president ignores the advice of ministers enjoying the confidence in lok sabha, it may resign and thus create a constitutional crisis. the president must then find another prime minister who, with his colleagues, can secure the support of the lok sabha. if the outgoing prime minister has the support of the lok sabha, it will not be possible for the president to have an alternative government. it is obligatory on the president to have always a council of ministers. (2) if he dismisses any ministry having support of lok sabha, they may bring impeachment proceedings against him... this serves as a deterrent against the president assuming real powers.
majority in the lok sabha. (c) thirdly, if two or more parties form a coalition before the election and secure absolute majority in the election, the acknowledged leader of such a coalition should be invited to form the government. in 1977, mr. morarji desai, the leader of the janta party, a coalition of several parties who fought election on the common platform, formed the government. similarly, in 1989, mr. v.p. singh, the leader of the janta dal (a national front, consisting of several local and national parties) was invited to form the government. (d) fourthly, the president should invite the leader of the coalition or alliance formed after the election, to form the government. in 1996, after the sixth general elections, mr. deve gowda, who was elected the leader of the united front (consisting of 13 parties), formed after the election, was invited and appointed the prime minister by the president. the united front secured the requisite majority with the help of 'outside' support form the congress party. it may be noted that the president had first invited the bjp party, the single largest party in the sixth general elections, to form the government. on the bjp government's failure to prove the majority, the president invited the leader of the united front, a post-poll alliance; there was no pre-poll alliance which had secured absolute majority in the election. it may be noted that before appointing any leader of a party/ alliance as pm the president on the basis of documentary evidences (i.e. affidavits, signature-list, etc.) should be reasonably satisfied that the person concerned has the majority support with him in lok sabha. such ascertainment becomes necessary in view of the fact that after being sworn in as pm he may use unfair means to garner the lacking support and the very use of such means to remain in power is anathema to the spirit of the constitution. the president should follow the conventions in the order in which they are mentioned above. however, many scholars do not favour a distinction between a pre-poll and post-poll alliance. according to them, such distinction is superficial as can a minority alliance be given chance just because it is pre-poll and vice versa. above all, the "sole test" is the possibility of commanding the majority in the lok sabha. and this is what the president is required to ascertain; he should not be concerned about the political manipulations or horse-trading. under the indian system, the gaining of political power through formation of several political parties is legal, hence a mere attempt to get more political power for a party is not unconstitutional. moreover, the president has to remain above the party politics. but, some scholars are of the view that the ruling party should not be just able to command the majority in the house, it should be able to justify its policy in the parliament. therefore, the leader of the coalition/alliance formed after the elections should be given chance in the last, because such a coalition is not formed on any common principles and policies but solely with the object of getting into power. more so, when the coalition is formed with the help of the defectors from the ruling party and other parties join it simply to topple the government. it is submitted that the "sole test" view appears to be correct. neither a pre-poll alliance nor a post-poll alliance guarantees a stable government (the failure of national front /janta dal, on both occasions, is a case in the point). a pre-poll alliance can create as many problems for the ruling party as a post-poll alliance. in 1998 elections, the bjp got support from the parties like aiadmk (ms. jayalalitha) and trinmul congress (mamta banerjee) - a pre-poll alliance. but, every second day, the bjp were involved in negotiating with ms. jayalalitha or ms. banerjee. thus, the president should first invite the leader of the single largest party and ask him to prove his party's majority on the floor of the house. if the single largest party fails to get the majority support, then, the president should invite the second largest party to prove its majority on the floor of the house. it does not matter that the second largest party proves its majority via a pre-poll or post-poll alliance with the other parties. however, the president may look into certain factors like whether there is any condition attached to the support given by one party to the other, or whether the support is unconditional. the 'unconditional' support is to be preferred. some scholars have suggested that in case of no clear majority in favour of any party, the president should send a message to the lok sabha under article. 86(2) to select its leader (i.e. pm). it is, however, submitted that such a course is contrary to the spirit of the constitution as it is repugnant to the party-based system of democracy and a leader chosen by the house may never enjoy the majority support of it. here, it may also be noted that the direction given by the
supreme court to hold a 'composite floor test' in the u.p. assembly to choose its chief minister is open to question due to similar reasons. barring a few exceptions [for example in 1979, the president instead of inviting the leader of the largest single party, the janta party headed by mr. jagjivan ram, invited the leader of the coalition formed after elections, mr. charan singh, the leader of the janta (s), to form the government; the president's action, unjustified as it was, failed, as mr. charan singh could not garner the majority support because one of his coalition partner - congress (1) withdrew its support to his government], the presidents of india have followed the conventions and thus, upheld the sanctity of the constitution and ensured that they remain above the party politics. mere formality. similarly, if on the death or resignation of a prime minister, the ruling party elects a new leader, president has no choice but to appoint him as prime minister. however, if no single party gains majority and a "coalition government" is to be formed, president can exercise a little discretion and select the leader of any party who, in his opinion, can form a stable ministry. however, even in such a situation, his action should be guided by certain conventions like'). it may be noted that the president may first invite a person and appoint him the prime minister and then ask him to prove his majority or seek a vote of confidence in the lok sabha within a reasonable time. in such a case, the action of the president in proroguing the lok sabha on the advice of the new council of ministers (headed by prime minister charan singh) and giving them time to seek a vote of confidence is not only proper but entirely constitutional (dinesh chandra verses chaudhury charan singh ). in this case, it was argued that it is only after a member of the lok sabha secures the vote of confidence of the lok sabha that he should be appointed as the prime minister. the court rejecting this argument said that it is the president and not the lok sabha that select the prime minister. the court held that the president exercised his discretion to dissolve the lok sabha after considering the advice of the council of ministers (though it did not secure the vote of confidence of the house) in a difficult and extraordinary situation. incidentally, charan singh was the only prime minister who remained in office for a while without obtaining a vote of confidence from, and without ever facing, the lok sabha. (5) dismissal of a minister/or cabinet - though ministers hold office during the pleasure of president [art. 75(2)], but president is bound to exercise his pleasure r^ accordance with prime minister's advice. thus, it is a power o prime minister against his (undesirable) colleagues (it is, however, necessary to realise the idea of collective responsibility). 'collective responsibility'' implies that council of ministers is responsible (to the lok sabha) as a body for the general conduct of the affairs of the government. the entire council of ministers is made collectively responsible to the house and that ensures the smooth functioning of the democratic machinery. the council of ministers work as a team and all decisions taken by the cabinet are the joint decisions of all its members. no matter whatever be their personal differences of opinion within the cabinet, but once a decision has been taken by it, it is the duty of each and every minister to stand by it and support it both in the legislature and outside. lord salisbury explained this principle of collective responsibility thus: "for all that passes in the cabinet each member of it who does not resign is absolutely irretrievably responsible, and has no right afterwards to say that he agreed in one sense to a compromise while in another he was persuaded by his colleagues." thus, as soon as a ministry loses the confidence of the house or is defeated on any question of policy, it must resign. if a 'no-confidence motion' is passed against any one minister, the entire council of ministers. must resign. if any minister does not agree with the majority decision of the council of ministers, his option is to resign or accept the majority decision. if he does not, the prime minister would drop him from his cabinet and thus ensure collective responsibility. 11 this is a great weapon in the hands of the prime
