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It's best to go by the book

Under the Constitution, the PM's post is inviolable. So he can't be brought under the lokpal. Lalit Mohan Gautam writes.

india Updated: Aug 07, 2011 23:14 IST
Lalit Mohan Gautam

Deputy prime minister Sardar Vallabhbhai Patel had said in the Constituent Assembly: "Both these [Provincial and Union Constitutional] committees met and they came to the conclusion that, it would suit the conditions of this country better to adopt the parliamentary system, the British type of Constitution, with which we are familiar." So to understand the intricacies of the office of the PM, the concept of responsible government and the limits to powers, privileges and immunities of the Members of Parliament in the context of the ongoing debate over the Lokpal Bill, one should look for guidance from the British parliamentary democracy system and its precedents.

British political theorist Harold Laski attributed parliamentary democracy to the two world wars that centralised power and in which the British PM became a 'dictator by consent'. The framers of the Indian Constitution were aware of these developments in Britain. They, however, realised and appreciated the central and inviolable position of the PM in the working of the Westminster model of democracy. That is precisely why they incorporated all the powers and prerogatives of the British PM in the Indian Constitution.

So can such an important office be brought under the lokpal? This question can be answered satisfactorily by looking into the Indian Constitution: First, the position of the PM vis-à-vis the two branches of government, namely the executive and the legislature; second, the PM's irremovability; and his claim to popular mandate.

The Constitution's Article 77(1) says, "All executive action of the Government of India shall be expressed to be taken in the name of the president." This article is qualified by an earlier provision, Article 74(1), which stipulates: "There shall be a council of ministers with the prime minister at the head to aid and advise the president who shall, in exercise of his functions, act in accordance with such advice." A combined reading of these two provisions makes it clear that the president is only a signing authority, the real executive power vests in the PM. Since he also leads both the houses of legislature to do their business, the executive and legislature converge in him. The 'separation of powers' principle does not apply with full force in the parliamentary form of government.

By bringing this delicate and high post of the PM under the purview of a lokpal, we would be introducing an alien element into the time-tested Westminster model of government.

The second facet that distinguishes the PM is his near-impossible removability. A PM resigns only when he loses the majority in the Lok Sabha. There are two other possibilities by which he can demit office. First, he can voluntarily resign on grounds of ill health; and, second, when the party or the coalition of parties in power replaces him with another leader. In fact, Article 75(2) of the Constitution states: "The ministers shall hold office during the pleasure of the president." The PM is not mentioned.

In his commentary on constitutional law, political scientist DD Basu posed a theoretical question: what would happen if a prime minister who has lost the confidence of the Lok Sabha refuses to resign? The president can dismiss him under Article 75(2), whether he is elected or not. In this context, we should not forget the verdicts of 1977 and 1989.

Civil society representatives also want the speeches and votes given by MPs in Parliament - their 'behaviour' - to be under the lokpal's jurisdiction. This is an extraordinary suggestion. Then why should government measures be debated at all in Parliament? The significance of a debate in Parliament is the possibility of a reasoned argument influencing the members and the prevailing idea in the House.

(Lalit Mohan Gautam teaches law in University of Delhi. The views expressed by the author are personal.)