Governance despite hung Houses

In the national agenda of BJP and its allies, one of the programme is to have a review of the Constitution in the light of its functioning d...

In the national agenda of BJP and its allies, one of the programme is to have a review of the Constitution in the light of its functioning during the last fifty years. There is a well known saying that a bad law could be made good, if it is administered in a good manner and that a good law could prove to be bad if it is administered or used badly. Just as defective law may require an amendment to make it effective, a good law also requires to be amended if it is found to have been used badly, on account of subsequent events which calls for an amendment. It is in this background that a review of the constitutional provisions has to be made.

Article 74 of the Constitution states that there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions. Article 75 provides for appointment of Prime Minister by the President. Articles 163 and 164 are corresponding provisions regarding Council of Ministers for the state and appointment of achief minister. There are no guidelines as to who could be appointed as prime minister or chief minister. But these provisions were incorporated on the basis that it will be done according to well established democratic norms under modern democracies. The Constitution did function on such healthy lines for more than three decades. Thereafter, the problems began on account of several political parties coming into existence, making caste, religion, language, region as the basis with the object of securing a few seats and on that basis bargaining for ministership, or other public offices.

The specific problems to be dealt with in this regard are: i appointment of Prime Minister/Chief Minister and thereafter asking him to take vote of confidence, which is just like putting the cart before the horse which is resulting in a non-functioning government till the Vote of Confidence is passed, and its fall, if not passed; ii spending of considerable time for the debate on vote of confidence which serves nopurpose as by such debate no one can be persuaded to vote in favour or against the motion, as it stands predetermined by party affiliation read with 10th Schedule; and iii instability created by floor crossing by ingenious methods utilising the loop holes in the 10th Schedule to the constitution and in a few cases by the governors acting in a partisan manner.

In order to solve these problems, the basic law of Germany is worthy of emulation with necessary modification. According to Article 631 of German Constitution, a person to be appointed as Federal Chancellor has to be elected first by the parliament without debate, with majority of votes of the members. The president has to appoint the person so elected as the Chancellor. According to Article 67, lack of confidence in the Chancellor could be passed only by simultaneously electing the successor to the office.We can find solutions to the problem by amending the Constitution on the following lines.

After every general election the leader should beelected first on the floor of the legislature without any debate, making it obligatory for the President/Governor to appoint the leader so elected as prime minister or chief minister as the case may be.

The procedure for election of the leader should be based on the method of elimination, in that if there are more than two candidates and in the event of none of them getting 51 percent or more votes, the candidate who has secured least number of votes should be deleted and a fresh voting should be taken among the remaining candidates.

The leader should be a member of the Lok Sabha or legislative assembly as the case may be. Once elected by majority and appointed as prime minister or chief minister, any resolution for his removal should be coupled with the proposal to elect a new leader with a provision for a joint debate and joint voting.

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Amendment of the Constitution on the above lines removes the difficulties faced by the President, removes instability and also avoids problem created for or by thegovernors.

The writer is a former chief justice of Punjab and Haryana High Court.