Invoke extraordinary measures

As a general rule the President is bound to act according to ministerial advice. However, one of the well-recognised exceptions to this rule is in the matter of dissolution as authoritatively laid down by the Supreme Court in its landmark decision in Shamsher Singh. The President is not expected to grant the request for dissolution automatically. In the matter of dissolution of Parliament the President acts in his discretion which, of course, has to be exercised according to sound principles and established conventions. As observed by the Calcutta High Court in Choudhury Charan Singh’s case “…A clear distinction must be drawn between the existence of the prerogative to refuse a request for a dissolution and the question whether in any particular set of circumstances the Sovereign would regard it as the best interest of the nation to refuse a dissolution…”.

It is impossible to define in advance the circumstances in which the President may decline a request for dissolution. It depends on the individual situation and the President’s fair and impartial assessment of the same. However, there are circumstances in which the President would be justified in refusing dissolution.

For example, a request for dissolution from a Prime Minister whose ministry is defeated will carry little or no weight. Again, when a motion of no confidence is anticipated and the defeat of the government appears imminent and almost inevitable the President may well defer action on the request till the fate of the government is decided on the floor of the House. According to some constitutional authorities in the UK, the Sovereign in England, “could properly refuse a dissolution if he were satisfied that (a) the existing Parliament was still `vital, viable, and capable of doing its job’, (b) a general election would be detrimental to the national economy and (c) he could rely on finding another Prime Minister who could carry on his government for a reasonable period with a working majority.” The same considerations would govern the President’s discretion in the matter of dissolution.

It cannot be overemphasised that dissolution of Parliament is a measure of last recourse. It can be resorted to when there is no possibility of formation of an alternative government and “an appeal to the country is necessitous… and has become blatantly obligatory”. Our Supreme Court has pointed out in the context of imposition of President’s Rule that “the frequent dissolution of the legislature, has the tendency to create disenchantment in the people with the process of election and thus with the democratic way of life itself.” Indeed, “No Constitution can stand a diet of dissolutions.”

Therefore the primary duty of the President is to make every effort to explore whether a political party singly or with others can form a government with reasonable prospects of stability. In making these efforts the largest political party may be called first but it need not be invited to form the government. This view has been taken by a Full Bench of the Lucknow Bench of the Allahabad High Court. The Court noticed in that case that there was a gap of 35 seats to gain the requisite majority in the House, which was not a small gap, and the largest political party, i.e. the BJP, had not satisfied the Governor that it had the support of other political parties whereby it would have a majority in the House. No assurance was forthcoming that the BJP would enjoy the confidence of the House. The Full Bench judgment is sound in principle and has also been vindicated by the events leading to the fall of the first BJP ministry at the Centre in a few days.

It is of vital importance that the President must be convinced that the political party which stakes its claim will be able, singly or in combination with other political parties, to form a government with reasonable prospects of stability that will continue to have that support during the life of Parliament.

Past experience has shown that letters and assurances from political parties extending support to the political party which was to form the government have proved hollow and lacked sincerity. Therefore some mechanism must be devised to ensure the continuance of support pledged by different political parties.

One way would be to require an express and unqualified written undertaking to be given to the President regarding continued support. The undertaking should be filed in Parliament and breach of the undertaking should be treated as a breach of privilege of the House with all attendant consequences. However, if the undertaking is overtaken by subsequent overriding and unforeseen events the political party can apply to the President to whom the undertaking is given to be relieved from it. If the President is of the view that in the changed circumstances it will be unfair to compel the political party to abide by its undertaking and the same also would not be in the national interest, he may relieve the political party. Otherwise, the political party is bound by its undertaking and would be in contempt of Parliament if it withdrew support.

This is analogous to the situation where parties who give undertakings to a court which they have to comply with it upon pain of contempt but from which they can be relieved by the court in a given set of facts and circumstances if it is fair and equitable to do so.

Once the undertaking is filed its terms will become public and a political party will be hard put to resile from its undertaking. In this context, the passage from Rodney Brazier’s Constitutional Texts is interesting. “…those party leaders who were wanting to form a majority coalition (so as here to remove the need for dissolution) would have to make public an agreed and watertight package concerning the majority government in waiting.”

The suggestion about the undertaking and the consequences of its breach may appear novel. But extraordinary situations require extraordinary measures.