President Has Discretion To Invite A Party To Form Government

The present situation is one where the President has the maximum discretion to act according to his wisdom under the Constitution. Though the Constitution has made the President a rubber stamp in almost all matters, these are exceptional times where he has freedom in the choice and appointment of a person as Prime Minister.

When a council of ministers is defeated in a vote of confidence in Parliament, the President is entitled to exercise his own judgment. He has to see whether another party or group of parties can form a stable government. He may call the leader of that party to be Prime Minister.

 

What shall the President do if the defeated Prime Minister, heading the council of ministers, recommends the dissolution of the Lok Sabha? According to some jurists, like Durga Das Basu, the President shall have no discretion to reject the advice of the Prime Minister for dissolution.

This is because of the 42nd amendment to the Constitution made in 1976 by which it was provided that the President shall act in accordance with the advice of the council of ministers. According to this amendment, the President may require the council of ministers to reconsider such advice but the President shall act in accordance with the advice after such consideration. He can do no more than ask the Prime Minister to reconsider the advice.

But there is an opposing view which holds that a defeated Prime Minister has no moral or constitutional authority to recommend dissolution of the House. According to R K Jain, president of the Supreme Court Bar Association, the President must call the leader of the largest party or group in the House who he thinks can form a stable government.

In any case, if no stable government can be formed, the President would be within his rights to dissolve the House, which would lead to a fresh election.

This, in fact, has happened a couple of times in the past. In 1991, when the V P Singh ministry fell, the breakaway Chandra Shekhar group formed a ministry with Congress support. When it withdrew support, the Prime Minister advised the President to dissolve the House, which the then President R Venkataraman did.

In 1979, the Morarji government lost vote of confidence and Charan Singh formed the government with outside support of the Congress. When the Congress withdrew support, the then President N Sanjeeva Reddy accepted the advise to dissolve the House. In 1969, the minority government of Indira Gandhi also recommended dissollution, which was accepted. Thus, there is now a constitutional convention, apart from legal compulsion to accept the advice.

If the President chooses another Prime Minister, he has to call a session of the House within reasonable time to prove the support to his ministry. This has to be done on the floor of the House, according to the Constitution bench of the Supreme Court in the 1994 judgment in S R Bommai vs Union of India. The President cannot go by lists of supporters or a parade of them, which was the practice in the past.