Sanjoy Ghose

| @advsanjoy | April 21,2020

The pandemic has brought with it questions of constitutional importance –  one of which is what happens if the Prime Minister of a country is incapacitated? These questions arose in the UK when Prime Minister Boris Johnson was hospitalized (now mercifully recovered) and have often arisen in the USA. The answer the author points out depends on which country you are living in.

 

The interregnum

 

It was a time when the nation was coming to terms with an attack from China. The Prime Minister, a giant leader, had succumbed. Not since the Father of the Nation has any Indian politician clearly spelt out a successor.  So who would step into these enormous shoes? History shone upon a person who was hardly a political heavyweight, who would go on to hold India’s highest office not once but twice. Born in Sialkot, he was the first of India’s three persons, born in present-day Pakistan, to occupy the office of Prime Minister[i].  While he may have hoped the two-week tenure would become permanent, that honour fell upon the diminutive Shastri[ii].  Nanda would again go on to serve as our Prime Minister when Shastri would die under suspicious circumstances at Tashkent.  Deft backroom management by the grouping which would go on to be known as the “Syndicate”, led by the irrepressible Kamaraj, ousted Nanda’s permanency dreams yet again[iii].  This time it was Nehru’s quiet-natured daughter, who had already been rehabilitated by the party as Information and Broadcasting Minister in Shastriji’s cabinet.  The “goongi gudiya” was to be a front, the Syndicate would rule from the background.  We all know how that worked out!

Luckily, India would only have to grapple with the death in the harness of a head of government only one more time.  This was when Mrs Gandhi fell to the bullets of the badminton buddies of her grandson.  This time the initiative was taken entirely by the President.  Giani Zail Singh ventured into what many constitutional jurists have termed as the “dark matter of the constitution[iv] to enforce the swift appointment of son Rajiv Gandhi as Prime Minister within hours, without awaiting the formalities of the selection of a successor.  The tool of appointment of an “interim Prime Minister” was also abandoned for reasons which would never be known in history.

In recent times when Dr Manmohan Singh underwent coronary artery bypass surgery in 2009, though no acting Prime Minister was named, it was Pranab Mukherjee who took charge over some Prime Ministerial responsibilities and also presided over Cabinet meetings while Prime Minister Singh recovered.

With the COVID afflicted British Prime Minister in intensive care, suddenly the question of succession is dominant in the public discourse in that country.  The Canadian Prime Minister and many top leaders of governments across the world, including the royalty, have also had their trysts with this virus.

Would it then be too academic and farfetched to take a quick peek into our constitutional law to better understand how India’s Basic Law addresses such an emergency?

 

The English and their succession

 

As India’s Constitution is not native sprung through a people’s revolution, but is given to “we the people” through an orderly devolution involving enactment of the Independence of India Act by the Parliament at Westminster, the influence of English traditions and conventions on India’s constitution cannot be overemphasized.

So, let us start at the very beginning.  Walter Bagehot, the commentator on Britain’s unwritten constitution, places the Monarch right at the centre of the constitutional scheme. The Queen is the head of the ‘dignified part’ of the constitution, while the prime minister is at the head of the ‘efficient part’ of the government, insists Bagehot. However, though the sovereign is titular, he concedes that she has three valuable rights.  The Right to be consulted, the Right to warn and the Right to encourage.  While the Constitution is silent on the matter of selection of the Prime Minister in the exercise of the queen’s ‘royal prerogative’, he insists that in doing so the Ruler is required by convention to call upon the leader of the majority party of the House of Commons to form the government. However, Bagehot remotely hints that upon the death of a Prime Minister, the Queen has the freedom at least to choose a successor from rival contenders.  Ivor Jennings, in his seminal work “Cabinet Government”, also points to situations when who is the leader of the majority party were not so clear.  He gives the example of Queen Victoria in 1868 preferring Mr Gladstone for the top pick over Lord Russel.  Jennings also concedes that, upon death or resignation of the Prime Minister, the Queen had a little room to play.  This room is even larger when the retiring or deceased premier has no designated “second-in-command” ready to step into his shoes”.  He cites the example of George V who, in 1923, had to choose between Lord Curzon and Mr Baldwin.  In 1908, in contrast, Mr Asquith, who had acted as Sir Henry Campbell-Bannerman’s deputy during his illness, was the obvious choice as a successor.

Jennings cites the 1957 instance when Queen Elizabeth, upon Sir Anthony Eden’s resignation on grounds of ill-health, consulted Winston Churchill and Lord Salisbury and went ahead to appoint Macmillan, opening her to criticism that she ought to have waited for the Conservative Party to have formally elected a leader.  Jennings concludes that in the matter of death or resignation of a Prime Minister, the Queen’s free choice is born on account of “complications in the political system”.

While the history of the British Monarchy has mirrored the struggle to put in place norms of royal succession, the succession of the Prime Minister has received scant attention. Succession to the throne is regulated not only through descent but also by Parliamentary Statute. British Parliament, under the Bill of Rights, 1689 and the Act of Settlement, 1701, also laid down various conditions which the Sovereign must meet. The Succession to the Crown Act, 2013, is the latest which replaces the system of male primogeniture (eldest male heir succeeding), with absolute primogeniture. The official line of succession, as of today, recognises 18 persons who could succeed the Queen, one after the other.

So far as the First Minister, as the Prime Minister is referred to, is concerned, the presumption has been that the Monarch would always be there to exercise her “royal prerogative” and give the nation a replacement.  This system works well when the underlying assumption is that there is a functional Parliament which would ensure that the pick is indeed the choice of the House.  What happens in circumstances of a national calamity as one which Britain faces with a Prime Minister in Intensive Care and a Parliament in lockdown?  Many are asking as to who would control Britain’s nuclear arsenal, should the Prime Minister’s situation worsen.

There is no statute or protocol in the United Kingdom which addresses how a successor to an incapacitated premier has to be put in place.  Perhaps, as in the former colony across the Atlantic pond, having a “Vice” and “deputy” would have helped. However, even this may not be an ideal solution. The office of ‘Deputy Prime Minister’ was created for the first time by Winston Churchill in 1942 for his War Cabinet.  During the Conservative-Liberal Coalition Government, this post had been last resurrected and Nick Clegg appointed to it.  Surely in a situation where the Prime Minister was incapacitated, the Conservatives would not be too happy with the Deputy Prime Minister, from a smaller coalition partner taking over!

Prime Minister Boris Johnson was, on April 6, 2020, moved to the intensive care unit of a London hospital. Before being moved, Johnson asked Foreign Secretary Dominic Raab, First Secretary of State, to deputise “where necessary“. So far, Raab’s mandate only extends to chairing government meetings. If, however, Johnson were incapacitated on account of worsening health, the Queen could appoint Raab as an interim Prime Minister until the Conservative Party elected a new leader, whose tenure as prime minister would then have to be formally approved by the Queen.

 

Across the Atlantic: The United States

 

The Advisor to India’s Constituent Assembly, BN Rau, travelled far and wide to obtain inputs in the process of drafting the Indian Constitution.  Justice Frankfurter of the US Supreme Court was one such stop.  While the Indian Supreme Court, speaking through Krishna Iyer, has settled the Thames-Potomac debate and held that the Yamuna banks are fertilized by the former, a peek across the Atlantic might be useful.

The United States has probably the most well-defined line of succession for a person to assume the powers and duties of the office of President of the United States if the incumbent President becomes incapacitated, dies, resigns, or is removed from office. Presidential succession in the US can be traced to Article II, Section 1, Clause 6of the American Constitution. In terms thereof, the official line of succession recognises 17 officials, from the Vice President, the Speaker of the House of Representatives, and right down to members of the Cabinet. The current line of succession stands adopted under the Presidential Succession Act, 1947, enacted by the Congress.

Nine Vice Presidents have succeeded to the presidency intra-term, eight due to the President’s death, and one due to a scandal afflicted President’s resignation from office, the last such succession happening in 1974. The most dramatic transition was of LBJ with his mid-air swearing-in as President on the flight from Dallas with Jackie Kennedy looking on in her blood-stained clothes, just hours after Oswald felled JFK.  The American system has captured the popular imagination, being frequently featured in movies and TV shows such as the “Designated Survivor”!

 

India

 

The Indian Constitution was built on the foundations of the 1935 Government of India Act.  The British imprint is unmistakable.  The Queen is replaced by an indirectly elected President.  The Prime Minister and the Cabinet System through a Council of Ministers is replicated.  Art 75 gives the President the authority to appoint a Prime Minister and on his advice the rest of the Council of Ministers.  The Council of Ministers is to be “collectively responsible to the House of the People”.

The Indian Constitution does not formally provide for a Deputy Prime Minister.  However, several notable leaders such as Sardar Patel, Morarji Desai, Charan Singh, Jagjivan Ram have served on this post.  The last to do so was Advaniji.  The most controversial to do so was Devi Lal, as he insisted that his oath should include a reference to the post which was not permissible. Historically, however, Indian Prime Ministers have been loath to appoint deputies.  In Nehru’s case what was a whisper, in Indira’s case was well documented.  She never hid the fact that Morarji was not exactly her favourite fall back lieutenant!

Article 63 of the Indian Constitution provides for a Vice- President of India, while Article 65 empowers the Vice-President to act as President in “the event of the occurrence of any vacancy in the office of the President by reason of his death, resignation or removal, or otherwise”. According to the President (Discharge of Functions) Act, 1969, in the event of the occurrence of vacancies in the offices of both the President and the Vice-President, such functions shall be discharged by the Chief Justice of India or, in his absence, the senior-most Judge of the Supreme Court of India.  In 1969, when President Zakir Hussain died in harness, Vice President Giri became acting President only to resign to contest for the post of President.  It was then that Chief Justice of India Hidayatullah served as the acting President – the first and only judge to do so.

Interestingly, there are no such provisions to deal with the incapacitation of the Prime Minister. In the event of any vacancy occurring in the office of the Prime Minister or on account of his incapacity, the President of India, like the good old Queen in the true traditions of the Westminster System, would have to figure out a solution!

 

[The author is an advocate practising in the High Court of Delhi and in the Supreme Court of India. The author acknowledges the research inputs by Advocate Naman Jain]

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[i] Inder Gujral (Jhelum) and Manmohan Singh (Gah), being the other two.

[ii] Jawaharlal Nehru passed away on 27.05.1964, at 2 pm. Nanda was sworn in as Nehru’s stand-in and was in office from 27.05.1964 to 09.06.1964 when Shastri was sworn in.

[iii] On 11.01.1966, Lal Bahadur Shastri died in Tashkent at 2.02 am. Within 15 minutes the news had reached Delhi and Nanda was once more sworn in at 3.15 a.m. Indira Gandhi took office on 24.01.1966.

[iv] Paras 12 and 13 of Justice Chelameswar’s opinion in the Puttaswamy case, K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1

 

Banner Image: Artist’s depiction of the Constitutional Convention. Painted by Junius Brutus Stearns, 1856. Image credit: Teaching American History

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