Rajiv Gandhi, an unconstitutional Prime Minister of India
[In a parliamentary system of government, the executive, Council of Ministers headed by the Prime Minister, is accountable to the elected representatives of the people. This can be ensured only when the leader elected by the political party or the alliance of political parties constituting the majority of the elected representatives is appointed Prime Minister. Head of the State, King/Queen in Britain and President in India, cannot appoint a Prime Minister of his or her choice, Yet, in 1984, the then President of India did exactly that. Appointment of Rajiv Gandhi without first his being elected leader of Lower House of the Parliament was unconstitutional.]
A about 9:20 AM on October 31, 1984, two security guards fired 33 bullets at the Indian Prime Minister Indira Gandhi. 23 bullets entered her frail body. She must have died on the spot though doctors declared her dead at 2:20 PM and Doordarshan (TV channel owned by Govt of India) made a formal announcement more than 10 hours later of the assassination of one Prime Minister (Indira Gandhi) and the appointment of a new prime minister (Rajiv Gandhi) in the same news bulletin
In the second volume of his memoir, The Turbulent Years: 1980-96 (published, January 2016), former Indian President Pranab Mukherjee (Finance Minister in the Indira Gandhi Cabinet) has given an insider’s account of, inter alia, political developments between 9:30 AM when he received the news and 7 PM when the announcements were made. Here is a summary of the account given by him. (Pranab Mukherjee has given a detailed account to reply to his critics who claim that after Indira Gandhi’s assassination, he wanted to be Prime Minister. Nevertheless, his account is important as it throws light on how the Congressmen and the then President of India acted in violation of the Constitution.)
On that fateful day, when the security guards were firing deadly bullets at Indira Gandhi, Rajiv Gandhi had just begun addressing a meeting at Ramnagar in West Bengal. Finance Minister Pranab Mukherjee and Railway Minister Ghani Khan Chowdhary were also present on the dias. At about 9:30 AM, Mukherjee received a wireless message from police that ‘lndira Gandhi assaulted. Return to Delhi immediately. Immediately they left for Kolaghat from where they went to Calcutta in a helicopter. From Calcutta they flew to Delhi in a special plane of the Indian Airlines. Besides Rajiv, Mukherjee and Chowdhary, others in the plane were Uma Shankar Dikshit (West Bengal Governor), his daughter- in-law Sheila Dikshit, Lok Sabha Speaker Balrani Jakhar, Rajya Sabha Deputy Chairman Shyainlal Yadav, Secretary Generals of the Lok Sabha and Rajya Sabha and several officials of the Parliament. Lok Sabha and Rajya Sabha teams were returning after cancelling the All-India Speakers’ Conference which was being held in Calcutta. A little after 1 PM Rajiv who received the update on wireless in the cockpit broke the news that ‘she is dead.’
After the leaders had got over the shock, they started discussing the issue of succession. (It is an old saying that ‘King is dead. Long live the King.’) Mukherjee recalled precedents; after death of a Prime Minister (Nehru in 1964 and Shastri in 1966), the senior-most minister Gulzari Lal Nanda was shown in as the interim PM (pending election of a leader by the Parliamentary party). However, in view of (in Mukherjee’s words) ‘an extraordinary situation when an incumbent Prime Minister had been assassinated’ the idea of interim PM was dropped and it was decided that Rajiv Gandhi should take over as full-fledged Prime Minister. Mukherjee conveyed the decision to Rajiv who asked whether he would be able to manage it. When Mukherjee assured him that he would, he agreed to succeed his mother. On Mukherjee’s advice, Rajiv Gandhi went inside the cockpit and to relay a message to Delhi that Rajiv Gandhi’s appointment as PM and Indira Gandhi’s assassination would announced simultaneously.
At Delhi airport, Cabinet Secretary C. T. Krishnaswamy Rao advised Mukherjee to take over as interim PM as had been done in the past but Mukherjee apprised him of the decision already taken. Indira Gandhi’s Principal Secretary P. C. Alexander supported the decision but raised the question how Rajiv would be elected leader of the Congress Parliamentary party (CPP). Mukherjee told him that “there was no time to convene a meeting of the CPP, and that the Congress Parliamentary Board (CPB), the highest policy-making of the party, could meet and take the decision which could later be ratified by the CPP. All those present agreed with this proposal. Rajiv’s consent was also obtained.”
At that time only two – Mukherjee and PV Narasimha Rao (who had rushed from Hyderabad to Delhi) – of the eight members of the CPB were present in Delhi. They signed a resolution electing Rajiv Gandhi as leader of the CPP. They also prepared a letter to the President to convey that the CPB “has nominated Shri Rajiv Gandhi as Leader of the Congress Party in Parliament. You are therefore requested to invite Shri Rajiv Gandhi to form the Government.” As party general secretary G.K. Moopanar signed the letter.
When the letter was being prepared, President Giani Zail Singh was returning from Oman. Mukherjee writes that some Congress leaders suggested that in the absence of the President, Rajiv Gandhi should be shown in by the Vice President. Mukherjee opposed it on the ground that “this power lay with the President unless, in his absence, he had delegated it to the Vice President. There had been no such delegation by Giani Zail Singh. Therefore, if the Prime Minister was sworn in by the Vice President, it would have been unconstitutional. Moreover, politically, it would have conveyed the wrong message.”
When the President’s plane landed at Delhi, Arun Nehru (as advised by Mukherjee) entered the plane to apprise the President of the decision before he alighted. From the airport Zail Singh proceeded to the All India Astute of Medical Sciences (AIIMS) where Indira Gandhi’s body was still lying. He returned to Rashtrapati Bhavan with Rajiv Gandhi.
At the Rashtrapati Bhavan, Mukherjee, Narasimha Rao and PC Alexander met Vice President R. Venkataraman. When told of the decision, he replied: ‘As you like.’ Mukherjee asked Rajiv Gandhi to wait in the Ashoka Hall. When the Congress leaders met Zail Singh, he told them that he had already decided to invite Rajiv to form the government. He formally invited Rajiv Gandhi to form the government. Immediately, Rajiv sent a letter to the President giving a list of 4 persons to be shown in with him at 6:45 PM.
At the time suggested by Rajiv Gandhi, he was shown in as PM. The Rashtrapati Bhavan issued a press release officially announcing Indira Gandhi’s death and formation of a new government headed by Prime Minister Rajiv Gandhi. Doordarshan telecast both the news.
Mukherjee writes that before requesting the President to invite Rajiv Gandhi, he had consulted several Congress chief ministers who had gathered at the AIIMS. All of them supported the idea.
As a senior Congress leader in 1984 and as President of India later, Mukherjee did not consider Rajiv Gandhi’s appointment as PM, without his being first elected as leader of the CPP, unconstitutional. No one ever questioned the constitutional validity of what had been done. Those considering the appointment constitutional may cite certain provisions of the Constitution:
Article 74: There shall be a Council of Ministers which 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.
Article 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.
Article 75 (2): The ministers shall hold office during the pleasure of the President.
Thus, going literally by these provisions, President is within his powers to appoint anyone as PM of India. However, India being a parliamentary democracy, President has no power to appoint a person simply because he wants that person to be PM. True, the Constitution has not mentioned the term ‘Parliamentary democracy’ anywhere but the basic characteristic of the Parliamentary system of democracy is contained in Article 75 (3) for the Union government and Article 164 (2) for the State governments.
Article 75 (3): The Council of Ministers shall be collectively responsible to the House of the people.
Article 164 2): The Council of Ministers shall be collectively responsible to the legislative assembly of the State.
The other essential features of the parliamentary system, not mentioned in the Constitution, are found in the conventions, developed mainly in Britain where the parliamentary system evolved, and to some extent in our own country.
The members of the Constituent Assembly (CA) debated extensively the powers of the President, his relationship with the Council of Ministers and the importance of conventions.
On December 10, 1948, member K. T. Shah moved a resolution in the CA that the President should be given real and wide executive powers and called “Chief Executive and Head of the State”. Dr. B. R. Ambedkar, K. M. Munshi, Alladi Krishnaswami Iyer and others strongly opposed it on the ground that India would have British parliamentary system of government. (C.A.D. Vol III, p. 32)
Opposing direct election of the President, Dr. Ambedkar said that for a nominal head, direct election was unnecessary. He opposed the proposal to provide a secretariat to the President on the same ground. (In course of time, President acquired a secretariat of his own. It is headed by a full-fledged Secretary to the Government of India.)
When a member H. V. Kamath asked whether in the event of the President refusing to act according to the advice of the Council of Ministers, could he be impeached? Dr. Ambedkar’s blunt reply was that there was no doubt about that. (C.A.D. Vol X, p. 268-72)
The President of the CA, Rajendra Prasad emphatically suggested that the Constitution should have specific provision that the President was bound by the advice of the Council of Ministers. Opposing the suggestion, Dr. Ambedkar said that there was a proposal to add an “Instrument of Instructions” to the Constitution to ensure that. However, this proposal was dropped as being unnecessary. Dr. Ambedkar said that since India was adopting the parliamentary system of government, it was also adopting the British convention that head of the state must act according to the advice of the Council of Ministers.
About the importance of the conventions, Rajendra Prasad said in his last speech in the CA on November 26, 1949 that “Many things which cannot be written in a Constitution are done by conventions. Let me hope that we shall show those capacities and develop those conventions. The way in which we have been able to draw this Constitution without taking recourse to voting and to divisions in Lobbies strengthens that hope.”
Despite these clarifications, doubts and debates continued in the early years of the Republic. On April 12, 1955, in a landmark judgement in the case of “ Rai Sahib Ram Jawaya Kapur And Ors. vs The State Of Punjab” 1955 ( AIR 1955), the Supreme Court tried to settle the issue. The court said:
“In India, as in England, the executive has to act subject to the control of the legislature; but in what way is this control exercised by the legislature ? Under article 53(1) of our Constitution, the executive power of the Union is vested in the President but under article 75 there is to be a Council of Minister with the Prime Minister at the head to aid advise the President in the exercise of his functions. The President has thus been made a formal or constitutional head of the executive and the real executive powers are vested in the Ministers or the Cabinet. The same provisions obtain in regard to the Government of States..”
Despite such a clear interpretation of the provisions by the Supreme Court, the final interpreter of the Constitution, the debate continued for a few years. On November 28, 1960, President Rajendra Prasad stated that ‘since the Constitution nowhere says that the president was bound to act on the advice of the Council of ministers, it was wrong to consider powers of the President of India as equal to those of the British Queen and that the Indian constitution was based on the British constitution.’ He suggested examination of the position of the President under the Constitution.
It was an about turn by Rajendra Prasad who as President of the CA had stated that “Although there is no specific provision in the Constitution itself making it binding on the President to accept the advice of his ministers, it is hoped that the conventions under which in England the king always acted on the advice of his ministers could be established in the country also and the President would become a constitutional President in all matters.”
Subsequently, Prime Minister Nehru stated in the Parliament that there was no doubt that the President was only a constitutional head.
Noted scholar K. M. Panikkar (The Foundations of New India, 1963, p. 153) has rightly said though we have a written constitution, it is best on unwritten conventions of British parliamentary system.
The real problem is that very often a plain reading of law does not reveal the whole truth. We cannot understand the parliamentary system of government without understanding the conventions.
The Constitution nowhere says that if the government loses a motion of confidence, it must resign but responsibility to the lower house means that it must resign. Similarly, the Constitution does not say that when a money bill is lost in the lower house, the government should resign. However, in such a case a government has to resign because that amounts to loss of confidence in the government.
The Constitution nowhere says that the Prime Minister has to be leader of the majority party or a coalition of parties and commanding majority in the lower house. However, there cannot be a Prime Minister unless he is the leader of the majority party.
Since the Council of Ministers is not accountable to the President, it has to have support of the party or coalition of parties enjoying majority in the Lok Sabha. That’s why there is a convention that the party or coalition parties enjoying majority in the Lok Sabha should first elect a person as leader and the President should invite the leader to form the government.
In England, there is a well-established convention that the leader of the party claiming to form a government must first elect a leader. The same applies to the Indian Parliamentary system. After Nehru’s death, a healthy convention was sure to be developed by first appointing the senior most minister as the interim Prime Minister and appointment of regular Prime Minister only after the parliamentary party in majority elected its leader. The precedence was followed after Shastri’s death. There is no merit in Pranab Mukherjee’s argument that the idea of an interim Prime Minister was dropped in view of ‘an extraordinary situation when an incumbent Prime Minister had been assassinated.’
Giani Zail Singh was 100% wrong if he believed that he had power to appoint a person a feature as as Prime Minister. No President with the knowledge of the Indian Constitution should have said what Giani Zail Singh said and a strong President would have refused to appoint Rajiv Gandhi as regular Prime Minister.
The resolution of the CPB could not be a substitute of the resolution of the CPP.
All the Congress leaders and the President Giani Zail Singh acted in utter violation of the parliamentary system of government. Going by Mukherjee’s account, only the then Cabinet Secretary believed that what was being done was not correct but the Congress leaders simply ignored his advice.
Appointed in violation of the parliamentary system of government, Rajiv Gandhi served as Prime Minister for 5 years. No doubt, the CPP would have unanimously elected him leader but not waiting for that was constitutionally wrong.