PROBLEM OF FORMATION OF MINISTRY IN CASE OF FRACTURED ELECTORAL VERDICT CHAPTER-4 PROBLEM OF FORMATION OF MINISTRY IN CASE OF FRACTURED ELECTORAL VERDICT The Constitution of India adopts the W estrninster model of parliamentary government. Although the model adopted by the Indian Constitution is a slightly modified version of the Westminster model of government, one of these important modifications being replacement of monarchy by a republican presidency. The President of India is elected and not a hereditary monarch, yet, the position of the President under the Constitution of India, corresponds to that of the King or the Queen in England. This concept was borrowed from the Constitution of Eire and the framers of the Constitution have tried to assimilate the position of an elected President with that of a hereditary Monarch. The President of India, under the constitutional scheme is the Head of State. The real executive power is vested in the Council of Minister headed by the Prime Minister. In the Westminster system where the Crown is the titular Head of State and the real executive power vests in the cabinet headed by the Prime Minister, the Crown appoints the Prime Minister, from amongst the members of Parliament, who is the actual Head of Government. The Prime Minister then selects his Cabinet, choosing its members from among the members of Parliament. The Prime Minister then recommends them to the Crown who then appoints the members of the cabinet. Led by the Prime Minister, the Cabinet is collectively responsible to the House of Commons. Theoretically, though, the Crown has unfettered choice in selecting the Prime Minister. Actually, but, it is now fettered by the convention that has 170 PROBLEM OF FORMATION OF MINISTRY IN CASE OF FRACTURED ELECTORAL VERDICT evolved in England since 1688, that the Queen must call a person who is capable of commanding the confidence of the House of Commons. 1 The party system originated in England in the 17 h century. Some attribute the origin of political parties in England to the period of Exclusion Crisis (1679- 1681) when the terms Whig and Tory were used as party levels. Others attribute this to the Glorious Revolution (1688-1689), when the Whigs had initiated the process of political organization by holding political clubs, by coordinating tactics and strategy, by employing electoral agents, by adopting a sophisticated propaganda campaign with visual, audio, and printed media. By their propaganda campaign, they tried to mobilize the polulace nationwide to support their platform through mass petition campaigns and political rallies. To counter the Whigs' challenge, the Tories also adopted many ofthe Whigs' organizational and propaganda techniques. The Whigs gradually transformed into and took the new name of "the Liberal Party" in 1832. The Tories, who had lost their clout during 1 1 much of the 18 h century, revived in later part of the 19 h century and became "the 1 Conservative Party". The later 19 h century Britain witnessed emergence of new political parties representing the working class. Such parties, including the Independent Labour Party, Social Democratic Federation and others later on joined and formed the Labour Party. The seeds of the party system were sown since 1688 and ever since, in one fonn or other, the Prime Ministers were appointed by the Crown on party lines considering which party has the majority in the House of Commons. This long practice of centuries had established a convention that the Queen must call the leader of that party which has a majority in the House of Commons. The reason is that the elections were conducted on party lines, and one party or the other had majority in the House of Commons. Thus if Crown chose some other person, rather than the leader of majority party in the House of Commons, the party in majority in the House of Commons would paralyse the government. Thus this convention crystallized and now it is a settled convention that the 171 PROBLEM OF FORMATION OF MINISTRY IN CASE OF FRACTURED ELECTORAL VERDICT Crown must invite the leader of the majority party in the House of Commons to form the ministry. This convention is based on the fundamental principle of cabinet govenunent that the cabinet must have the confidence of the majority in the House of Commons. This is an accepted rule and has been reasserted by constitutional authors. According to Bradley, where the elections result produces a clear majority for one party, the Sovereign has no discretion to exercise. The Crown must appoint that person as the Prime Minister "who is in the best position to receive the support of the majority in the House of Commons". 1 According to 0. Hood Phillips the Crown must appoint a "ministry that can hold the majority in the House. "2 Dicey says, "The party who for the time being command a majority in the House of Commons, have (in general) a right to have their leaders placed in office."3 According to Wade, "the support of the party which may be expected to command a majority in the House of Commons is a condition precedent to acceptance of the office".4 Wade while discussing development of the principle of collective responsibility fu11her says, "Accordingly there has been evolved since 1688 the rule of collective responsibility which rests upon convention alone." Jennings says, "The King must invite the most influential leader of the party or group commanding a majority of the House of Commons to form a Ministry." Jennings further says, "The Government is a body of party politicians selected from among the members of that party or group of parties which has a majority or can secure a majority in the House of Commons." 5 Harold J. Laski in his 'Reflections on the Constitution' says, the Cabinet remains, in ·essence, a committee of the party or parties with a majority in the See, Bradley, Constitutional and Administrative Law, 13th Edn., 2003. 2 0. Hood Phillips, Constitutional Laws of Great Britain, Sixth Edn., Sweet and Maxwell, London, 1946,p.34. 3 A. V. Dicey, The Law of the Constitution, Elibron Classics, 2000. 4 See, E.C.S. Wade, Constitutional and Administrative Law, Ninth Edn., Longman, London, 1977. 5 Ivor Jennings, Cabinet Government, Cambridge University Press, 1959, p. 20. 172 PROBLEM OF FORMATION OF MINISTRY IN CASE OF FRACTURED ELECTORAL VERDICT House of Commons. 6 J. A. G. Griffith, says, "The Prime Minister is the leader of the political party which can command a majority in the House ofCommons". 7 8 According to Rodney Brazier , the appointment by the Sovereign of a Prime Minister is an act done by virtue of royal prerogatives. In theory, the Queen could commission anyone she pleased to form a government. But in practice, such theory is entirely removed from reality, because of course today the royal discretion is subject to several limiting factors, the most important of which is that in making an appointment she should commission that person who seems able to command a majority in the House of Commons. Although the formal appointment of a Prime Minister is a prerogative act, the actual choice no longer normally lies with the Queen at all: in that sense the selection of a new Prime Minister does not depend upon any prerogative power. For, in most cases the identity of the politician who is to remain or is to become the Prime Minister is obvious. Therefore, the choice of the Prime Minister by the Crown has become almost automatic in nonnal circumstances. Where an election produces an absolute majority in the House of Commons for one party, the leader of that party is invited to become the Prime Minister or if already Prime Minister, he or she would continue in office. The Crown has no choice and must invite the leader of party or group commanding a majority in the House of Commons to fonn a ministry. The Crown can no longer impose his personal wishes as against the majority in the House of Commons, in the choice of his ministers. The party which commands the m~jority in the House of Commons is entitled to have its leader appointed as the Prime Minister. Under Article 75(1) of the Constitution of India, the President has the power to appoint the Prime Minister and under Article 164( 1) the Govemor has 6 See, Harold J. Laski, Reflections on the Constitution, University of Manchster Press, 19 51. 7 J.A.G. Griffith, Parliament: Functions, Practice and Procedures, Sweet and Maxwell, 1989, p. 20. 8 Rodney Brazier, Constitutional Practice, Clarendron, 1988, p. 6. 173 PROBLEM OF FORMATION OF MINISTRY IN CASE OF FRACTURED ELECTORAL VERDICT the power to appoint the Chief Minister of a State. However, apart from Article 75(3) and 164(2), which mention about the principle of collective responsibility of the ministers to the respective House, there is no other guidance provided as to whom the President or the Governor should appoint as the Prime Minister or the Chief Minister. However, since, the elections to the House of the People and the State Legislative Assemblies are contested principally by the political parties who set up their candidates at the election, this long standing convention has been duly accepted and followed in India. It is on account of this convention that the President and the Governor invite the leader of the political party which has obtained majority, to form the Government. The President appoints the Prime Minister and then the Ministers are appointed on the advice of the Prime Minister, who constitute the Council of Ministers. Similarly, the Governor appoints the Chief Minister and then the Ministers are appointed on the advice of the Chief Minister, who together constitute the Council of Ministers.