President’s Power of Dissolution
This Article is written by Mr. Manthan Sharma, 8th Semester, B.B.A. LL.B (Hons.) student of Unitedworld School of Law, Karnavati University, Gandhinagar. This article discusses the President’s Power of Dissolution.
Introduction
The Constitution of India assigns President the power to dissolve Lok Sabha. Article 83(2) states that the tenure of Lok Sabha is five years and the expiration of the said period shall operate as a dissolution of the House. In case of a proclamation of emergency, the term can be extended by Parliament by law for a period not exceeding one year at a time and not extending in any case beyond a period of six months after the proclamation has ceased to operate. Article 85(2)(b) however, gives the power to the President to dissolve the lower house of Parliament before the expiry of five year period.
There are circumstances where the President or Governor had used such powers in contravention to the advice given by the Council of Ministers in the Indian democracy. In such a situation, the question is whether he has the power to decline the advice of the Council of Ministers and search for other possibilities of an alternative government. To understand this, let us examine various instances in this regard.
Rajendra Prasad’s letter to B.N. Rau, April 1948
In April 1948, Rajendra Prasad wrote to B.N. Rau that he did not find a provision laying down in so many terms that the President of the Union was bound to accept and act upon the advice of the ministers. A reply to that was given by Ambedkar and Alladi Krishnaswami Ayyar who expressed the view that the President who did not heed the advice of his ministers would in fact be thwarting the will of Parliament and violating the Constitution and for the same he was liable to be impeached.[1] It was clear that the responsibility of dissolution rests with the Prime Minister though he may consult some of his colleagues if he so likes.[2]
Also Read Sarla Mudgal and Ors. Vs. Union of India
Now, the question is whether the President can refuse the recommendation for dissolution made by the Prime Minister? What are the options that are available to the President in these situations? Whether the President is bound to follow the conventions prevailing in the Parliament? These questions may be determined with the help of similar instances that took place in India and other countries.
Prime Minister Chandra Shekhar, 1991
In 1991, the differences between Rajiv Gandhi and Chandra Shekhar prompted the latter to tender his resignation[3]. He advised the President to dissolve the House. The President hesitated to accept the advice of the Prime Minister though according to Article 74 he was bound to follow the same.
Mr. Gurnam Singh, Chief Minister of Punjab, 1967
In 1967, Chief Minister of Punjab, Gurnam Singh lost the majority and resigned and asked the Governor to dissolve the House[4]. The Governor refused the advice and asked him to explore the possibilities.
Shri M.P Sinha, 25 January 1968
The Ministry of Shri M.P. Sinha in Bihar was defeated on the floor of House on a motion of no-confidence[5]. The defeated Minister asked for the dissolution of the Assembly, but the Governor refused to accept his advice and invited Shri S.P. Sinha, the nominee of Shoshit Dal, to form the Government in the State.
Prime Minister Gujaral
During the tenure of Prime Minister Gujaral, their party lost the majority when the Congress party withdrew its support. The outgoing government did not recommend that Lok Sabha be dissolved and the fresh mandate be obtained from the people. President Narayan did not accept the advice of the Prime Minister and asked him to explore the possibilities of installing an alternative government.
Mr. Charan Singh’ Government
When Mr. Charan Singh’s cabinet resigned, its advice was not binding on the President. To say that the advice was binding is to say that a cabinet that has never lived with parliament has a right to demand its death.
The correct constitutional position is that upon the resignation of Mr. Charan Singh’s cabinet, the President had the following four options.[6]
- The President could have invited Mr. Jagjivan Ram to form a ministry in view of the fact that he was the leader of the opposition and of the largest single group within the Lok Sabha.
- The President could have asked Mr. Jagjivan Ram to prove his majority on the floor of the House by getting himself elected as the leader of the House, and upon his being chosen as such leader he could have been invited to form his ministry.
- The President could have sent to the Lok Sabha a thoughtful message – bringing home the critical nature of the situation and calling upon the House to elect its own leader. Any leader so chosen could then have been invited to form a ministry.
- The President could decide to dissolve the Lok Sabha.
The President could have taken the first three conditions into consideration rather than choosing the fourth option.
Prof. A. V. Dicey, in his book, also recognized the Crown’s right to dissolve Parliament even against the wishes of the Prime Minister. As he maintained:
“It would be perfectly constitutional for the king to dissolve Parliament against the advice of the Prime Minister if there exists fair reason to suppose that the opinion of the House is not the opinion of the electors. A dissolution in its essence is an appeal from the legal to the political sovereign ….”[7]
The President can use his discretion in accepting or refusing the Prime Minister’s advice for dissolution. This contention is supported by what Dr. Ambedkar had said in the Constituent Assembly on December 30, 1948:
“In the same way, the President of the Indian Union will test the feelings of the House whether the House agrees that there should be a dissolution or whether the House agrees that the affairs should be carried on with same other leader without dissolution. If he finds that the feeling is that there is no other alternative except dissolution, he would … undoubtedly accept the advice of the Prime Minister to dissolve the Lok Sabha … I think we could trust the President to make a correct decision between party leaders and the House as a whole”.[8]
CONCLUSION
It is wisely said that elections are the heartbeats of the democracy. The irregularity in this degrades the very concept of democracy. The life of the House does not depend upon the whims and fancies of its members.[9] The dissolution of the House when it had finished only half its term should have been the option of the last resort.[10] Whenever there is an extreme situation of dissolution of the House before the completion of its tenure, the President must take into consideration all the possibilities of forming an alternative government.
The President may ask the leader of the other party to prove the majority and form the government or he may inform the House about such a critical situation so that they themselves can choose their leader. But, directly dissolving the House on the sole will of the Council of Ministers may not be considered the correct position.
References:
[1] H.R Khanna, Making of India’s Constitution, Pg. 107, 2015
[2] JENNINGS, CABINET GOVERNMENT, 412-28 (III ed. 1969)
[3] Ajit Kumar Jha, August 25, 2019, available at (https://www.indiatoday.in/mail-today/story/chandra-shekhar-the-man-the-times-1591303-2019-08-25 )
[4] Patil S.H, ‘The Constitution, Government and Politics in India’, Vikas Publishing House, 2016
[5] Bhawani Singh, Governor : Role Identification and Sarkaria Commissions (Jaipur : Print Well, 1991) , Pg. 96
[6] Nani A. Palkhivala, We, The people, Pg. 218, 2012
[7] A.V. Dicey, Introduction to the Study of the Law of the Constitution (London : Macmillan and Co. Ltd., 1948)
[8] Constituent Assembly Debates (New Delhi : Lok Sabha Secretariat), 7(29), December 30, 1948
[9] Supra 5
[10] The Role of the President: In a Nutshell, India Backgrounder (New Delhi), October 8, 1979