India a supposed be a democratic nation with well-established election processes and Constitutional positions with their respective roles and responsibilities.

President is highest Constitutional position as nominal head of the nation. However, the Presidential position is only ceremonial position and has very limited autonomous power. The person occupying this position is expected to follow, in most of the situation, advice of the Prime Minister (PM) with Council of Minister.

PM is the head of the Government and he selects the Council of Minister. He holds the most powerful position in the nation as Chief Advisor to the President.

The Constitution has clearly mentioned the procedure for appointment of Prime Minister and President. On the eve of this Presidential election, let’s review how President of India is elected and PM is nominated.

President Election

Article 54 of Indian Constitution elaborates the procedure for election of President.

The President shall be elected by the members of an electoral college consisting of

(a) the elected members of both Houses of Parliament; and

(b) the elected members of the Legislative Assemblies of the States.

Article 55 of the Indian Constitution further elaborates the calculation of Electoral College to ensure representation of all the regions of India. Further, it provides the methodology of voting process i.e proportional representation by means of the single transferable vote and voting by secret ballot.

The Election Commission is in charge of conducting the election process of the President position and it notifies the dates and rules in the election process. Like this year’s presidential election will be held with ballot paper (instead of Electronic Voting Machine used in the General election) and  Election Commission will also provide a particular pen with the ballot paper. (Source). The Election Commission ensures that the election is conducted through free and fair voting and the eligible voters don’t face any coercive situation during the process

Election Commission has declared that Political Parties are not allowed to issue a whip, using Anti-Defection Law or Dal Badal Kanoon mentioned in Schedule X of Indian Constitution, to their members during Presidential Election. This is important to avoid any undue pressure to the eligible voters.

Prime Minister Appointment

Prime Minister is the Chief of the Government and the Council of Minister. PM with the Council of Minister provide advice to the President and President should act in accordance.

Article 74(1) of Constitution provide following:

74. (1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice.

There is absolutely no Constitutional provision for direct election by the citizen to elect the Prime Minister. The General election for electing the Member of Parliament only elects the representatives of the respective constituencies. The Prime Minister is appointed by President. Article 75(1) of Indian Constitution provides for the appointment of Prime Minister. Following is the article mentioned in the Constitution:

75(1) The Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister.

The President has the discretionary power to appoint any ‘eligible person’ as Prime Minister, and further Council of Ministers as per the advice of PM. However, the PM and the Ministers have to become Member of Parliament (either Lok Sabha or Rajya Sabha) within 6 months of their appointment.

The discretionary power of the president to appoint a PM is explained by Dr. Ambedkar during the Constituent Assembly debate.

“In regard to the Prime Minister, the other thing is to allow the House to select the leader … the moment the Prime Minister is appointed by the President, it would be possible for the House or any Member of the House, or a party which is opposed to the appointment of that particular individual, to table a motion of no-confidence in him and get rid of him altogether if that is the wish of the House. Therefore, one way is as good as the other … ”(Source)

Hence, the nomination of PM as per the original plan of Constituent Assembly is expected to be subsequently ratified by the members of the Lok Sabha, and hence it is no different than the election of the PM by the Lok Sabha.

Further, Dr. Ambedkar elaborates that the Government can continue only if it enjoys the confidence of the house.

“The form of Government which this constitution lays down is what is known as the parliamentary system of Government, by which we understand that a government shall continue to be in office not necessarily for the full term prescribed by law, namely, five years, but so long as the Government continues to have the confidence of the majority of the House.”(Source)

What it means that the PM with Council of Minister forming the Government must have the confidence of the House throughout the existence of Government. How to measure the confidence of the House? Globally, the parliamentary democracy measures the Confidence of the House by simple voting by each member of the House.

The voting inside the Parliament is completely regulated by the rules of Parliament and Election Commission has no role in the process. Hence, the nominated PM (from majority party) just get the Party whip to coerce the party members for the favorable vote, and hence nomination continues without any free and fair voting. India has devised a unique voting process where there is no meaning of free and fair process because the votes are decided outside the parliament through party whip and Parliament just put the rubber stamp on that after counting.

This process can be explained further by giving a suitable example. During summer of 2004 when Congress unexpectedly went to became the largest single party in General Election, the most bizarre situation came. A member who was not a Member the Lok Sabha House was appointed as PM of India and the person was nominated by the Congress Party president Ms. Sonia Gandhi. In the memoir, Late President APJ Abdul Kalam recounted the incident saying “…she told me that she would like to nominate Dr. Manmohan Singh…”. (Source)

This was the most bizarre situation where party leader was nominating a Prime Minister to President position. And the Mr. Manmohan Singh won the Confidence vote inside the Lok Sabha with the help of Party whip and the rest is history.

However, the important question one should ask is that did Sonia Gandhi went as the Coalition Leader or representative of Manmohan Singh or as a boss of Manmohan Singh? Ms. Gandhi was of course leader of the single largest party and the coalition partners must have shown confidence on her leadership. But, this does not imply that Ms. Gandhi can nominate a person as Prime Minister, as explicitly noted by APJ Abdul Kalam.

The nomination process clearly seems to imply that she went to President as a boss of Manmohan Singh. This was the first time in the history of independent India that a person who was going to be PM did not claim his legitimacy in front of President. Instead, someone else went to meet President and nominate the PM.

Even under current circumstance, the boss of PM Modi is RSS. During PM Modi tenor, he had to give his report card to RSS Chief of his Govt performance and not in the Parliament. The Prime Minister claims his legitimacy from the BJP party order and not from the confidence of the House members. If RSS and BJP do not support him Modi through party whip, he will have to resign from PM position.

This whole scheme of nomination by a party president was never discussed in the Constituent Assembly while making the Constitution, as it was expected that the Lok Sabha will conduct free and fair voting process. Hence, Article 105(2) provides special power and privileges to the Member of Parliament

105(2). No member of Parliament shall be liable to any proceeding in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.

However, this provision has become void due to 52nd Constitutional Amendment, Anti-Defection Law passed in 1985, making the whole election process of Prime Minister null and void. The voting inside the house can not be challenged even in Supreme Court, but the member defying party order become answerable to extra-constitutional authority i.e. Political Party and it may result in loss of Parliamentary membership for the person.

Hence, the election of the President is still free and fair. However, the nomination of Prime Minister and subsequent ratification through the voting process by the Lok Sabha has become only a nomination process.

Author – S. Kumar