Under Article 75(1) of the Constitution of India, the Presidential prerogative power has been given which provides that "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."[1]The prerogative power is described as the inherent power of the Head of the State which emanates from the nature of his office which is the appointment of the Prime minister.

This power of the president has been recognized in the Constitution Debate on December 30, 1948, by Dr. B.R. Ambedkhar has pointed out that:
With regard to the appointment of Prime Minister it is not possible to avoid vesting the discretion in the President. The only other way by which we could provide for the appointment of the Prime Minister without vesting the authority or the discretion in the President, is to require that it is the House which shall in the first instance choose its leader, and then on the choice being made by a motion or resolution, the President should proceed to appoint the Prime Minister. Therefore, one way is as good as the other and it is therefore felt desirable to leave this matter in the discretion of the President. [2]

It is also to be noted from the parliamentary system that the President is the head of the State whereas the Prime Minister is the Head of the Government and also of the Council of Ministers. Our Constitution of India does not provide as to whether the Head of the Government should be appointed from the upper house or lower house of the legislature. However, the collective responsibility of the council of ministers to the lower house of the people presupposes that the prime minister would be from the Lok Sabha.

Thus, there are limitations on the discretion power of the president if a party securing majority in the Lok Sabha and has a recognized leader, which is reinforced under Article 75(3) of the Indian Constitution which states that "The Council of Ministers shall be collectively responsible to the House of the People."[3] Such appointment was supported by Shri N. Gopal Swami Ayyangar in the Constituent Assembly on July 28, 1947, pointing out that the president should appoint a Prime Minister who will be the leader of the party because of the support of party itself or of the other groups in the House of the People as to command fairly stable majority. [4]

Therefore, the historical evolution of the appointment of the Prime Minister by the president can be explained through the practice followed by the president during his office. He exercises this power either after the elections or when there is a vacancy in the office of the Prime Minister. These vacancies in the country which are elaborated further had aroused in 1964 and 1966 when there was a natural death of the Prime Minister, in 1979 and 1990 when there was a resignation and in 1984 when there was an assassination. Therefore, there are various incidents where the president has played its discretionary role in appointing the Prime Minister in the past.

Death of the Prime Minister:

In 1964, the instance for real exercise of the power to appoint Prime minister came into existence during the presidentship of Shri. Radhakrishnan because of the death of Prime Minister Jawaharlal Nehru which led to the end of his government. The ruling party congress could not recognize its leader and therefore, the president exercised his discretion power independently of the Emergency Committee's identical recommendation and appointed Prime Minister Shri G.L Nanda because he was the senior most cabinet member and not the leader of any of the party of the two houses.

In 1966, Mrs. Indira Gandhi was a member of the Council of State, she was appointed as the Prime Minister by the president. After, her appointment the question aroused as to whether the Head of the Government should be appointed from the Lok Sabha which led to rejection of the Bill providing the amendment that it is mandatory to be the member of the Lok Sabha.[5] However, Constitution of India does not make it mandatory that the Prime Minister must belong to the Legislature at the time of his appointment.

However, he is required to enter the Legislature within six months of his appointment as a Prime Minister. The same event was in June 1991, when the Prime Minister Shri Narasimha Rao was appointed by the President, who was not a Member of Parliament and was required by the Constitution to enter Parliament within six months of his appointment as Prime Minister.

Assassination:

In 1984, the role of president was emphasized in the appointment of the Prime Minister when Mrs. Indira Gandhi was assassinated and thus, President Shri Zail Singh appointed 44th Prime Minister Rajiv Gandhi by proving his majority on the floor of the house. Similarly, in 1989, when no party won the majority in the Lok Sabha, President Shri Venkataraman invited Congress (I) which was a largest party to form the government and this was refused by the party.

The president gave opportunity to V.P. Singh, a leader of the National Front and Bhartiya Janta party coalition to from the government. These appointments of providing the opportunity to explore the possibilities of forming an alternative government were departed from the earlier practice of the president to name a Prime minister as in the case of demise of the Jawaharlal Nehru.

Resignation:

The president also has its discretionary powers on the appointment of the Prime Minister when the government resigns because of the anticipation of its defeat in the floor of the house and the majority party of the Lok Sabha splits. In 1979, there was a move of no confidence motion against the Prime Minister Shri Moraji Desai by the leader of the Congress (S) Shri Y.B Chavan. There was a resignation of a leadership by the prime minister without facing the vote of no confidence on the anticipation that there was a large-scale defection from his ruling party.

Meantime, president provided an opportunity to Mr. Chavan Singh to form an alternative government, but he failed to prove his majority in the house and Moraji again claim to form a stable government. Thus, there aroused the question that whether the President can invite a leader for re-appointment, who has already resigned from the office of the Prime Minister ship owing to no confidence motion lying before the House.

However, in this situation the president chose the unprecedented practice of inviting both the candidates to explore the possibilities of forming the government and submission of the list of ministers who are in support of their leadership. This step of president led to formation of the Chavan Singh's leadership because of his list of supporters being more than that of the Morarji and thus he was invited to seek confidence motion and to form the government.

There were several critics from such discretionary powers of the president powers of appointing the Prime minister which provided an opportunity to the Prime Minister designate to seek votes in the Lok Sabha. As it has been stated that as long as the prime minister enjoys the support in the house he does not have to seek vote of confidence in the lower house.

It was also criticized that the president has advocated as a speaker of the house by inviting the leaders to provide list of its supporters. Others criticizes that it's the advice of the Prime Minister which is binding on the president and not a vice versa as after the President had exercised the prerogative and appointed the Prime Minister, he does not have the power to advice or give directions to the Prime Minister on discharging his duties.

Therefore, the evolution of presidential powers with reference to appointment of the Prime Minister has been depended on the practice been followed by each president in its tenure. However, the constitutional provisions clearly states that the president has the discretionary powers to appoint the Prime Minister regardless of his membership are there in either of the houses of the parliament.

Moreover, there are also events where the Prime Minister has been appointed without his membership in the parliament, but he must seek confidence motion within six months of the appointment in the house of the legislature. Thus, the president has practiced its discretionary powers in the past with respect to the powers attained from the constitution provisions and in some cases, it has provided the opportunity to the prime minister designate to form an alternative form of government.

End-Notes:

1. Article 75(1), Constitution of India, 1949.
2. Constituent Assembly Debates (New Delhi, Lok Sabha Secretariat), Vol.7, December 30, 1948.
3. Article 75 (3), Constitution of India,1949.
4. Constituent Assembly Debates (New Delhi, Lok Sabha Secretariat), Vol. 4, July 28, 1947.
5. Lok Sabha Debates (New Delhi : Lok Sabha Secretariat), 53(32), April 1, 1966, c. 9140.