Not since Indira Gandhi has there been as systematic an assault on constitutionally sacrosanct processes as Prime Minister Modi has mounted in just four years in power. Gandhi’s attack was imperiously upfront. Modi’s is insidious, even as he pays homage to Ambedkar and Patel, and claims that the only holy book he follows is the constitution.
The long list of institutions that the prime minister has sought to subdue has been widely noted. Not enough attention has been paid to his contempt for rules, conventions and precedents that are an integral part of constitutional practice.
One cardinal principle of Westminster-style democracy is the collective responsibility of the cabinet. It is as the head of the council of ministers that the PM derives his or her authority, not independent of it. He or she is ‘primus inter pares – first among equals’ in the cabinet – not a CEO; nor is the government a Reliance Group company. Not yet.
Collective responsibility implies that decisions have to be taken jointly. Even for decisions taken individually, the council as a whole is vicariously responsible.
The business of the government is conducted in accordance with a twin set of rules drawn up under Article 77(3) of the constitution called the Rules of Business – Transaction of Business and Allocation of Business. One regulates the way business is conducted internally. The other determines which ministry does what. They are framed under the constitution, so they are more than just ‘procedure’. They have the force of law.
Why are the Rules of Business so sacrosanct? They ensure that:
- every minister in the council knows their remit and the turf limits they cannot cross;
- within the government the supremacy of the cabinet (not the PM) is clear;
- all decisions go through an iterative consultation process before they reach the cabinet;
- all stakeholders, especially the ministries of finance and law, are consulted and this process is fully documented;
- differences of opinion are ironed out and, if not, a specific ruling of the cabinet obtained;
- the examination is thorough and that the minister takes full ownership of submissions being made.
It is a process designed to check arbitrariness of decision making.
A deviation from these rules can be condoned in exceptional cases, but it cannot be presumed and must be based on a detailed justification. Since the power to condone lies with the PM, it follows that the possibility of the prime minister himself being the violator of the Rules was not thought of when the Rules were framed.
Yet, it is that possibility that PM Modi has made frighteningly real. There may have been many instances where he has neglected to follow constitutional practice. But nothing highlights this more dramatically than the Rafale deal as announced by the prime minister on his visit to Paris in April 2015.
We know that in the competitive tendering process, completed in 2012, Dassault emerged as the vendor of choice for the supply of 126 fighter aircraft of which 18 aircraft were to be purchased outright and the balance 108 manufactured in India by HAL based on a transfer of technology (TOT) agreement. The deal was not concluded during the UPA regime; negotiations between Dassault and HAL continued through till March 2015. A work-share agreement was signed in March 2015 and this was expected to be followed by a final contract, soon thereafter.
As the foreign secretary clarified in a press briefing before the PM’s departure, purchase decisions do not normally form a part of the agenda at the level of heads of governments (HOG). The Rafale deal was not meant to be either.
However, the two HOGs took everyone by surprise by announcing a completely new deal – one that did away with the TOT-based manufacture in India, and replaced it with the outright purchase of just 36 aircrafts. This was a decision, not just a declaration of intent. Taken at that level, such a decision is not expected to be revised or reviewed by any other authority. It is final.
This was a decision of which neither the MoD nor the MEA had any prior knowledge. There were no prior consultations within the government, or if there were, neither the minister(s) nor secretaries concerned had any inkling of it. The Air Force was unaware that their requirement of 126 aircrafts was to be scaled down drastically, and the Ministry of Finance had no opportunity to examine the financial implications of the new deal.
It is clear that this decision was taken by the prime minister on his own and not by the cabinet. The cabinet came into the picture only afterwards with no chance to alter or reject it. It was a fait accompli.
Such a suo motu decision is unconstitutional ab initio, because the PM cannot arrogate to himself the powers of the cabinet without a specific and explicit resolution authorising him to do so. Post-facto legitimation cannot remove the inherent defect.
An added element of illegitimacy is that procurement of capital equipment for defence forces is exclusively the remit of the Raksha Mantri. The PM cannot, by virtue of being first among equals, take over the functions of the minister to whom the business is allocated. Yet, that is exactly what he did. He is not a ‘super’ minister, just ‘prime’.
The point is not just that the PM exceeded his authority. It is that he disregarded the principles by which the executive is meant to function in a parliamentary system. The primacy of the cabinet was subverted and an alien presidential mode of functioning introduced in which the cabinet is subordinate to the prime minister. That is unconstitutional.
In the last four years, the PM has made a virtue out of his arbitrariness. To his fan club, this is a sign of his virility – a style justified by his massive electoral victory. Even members of the ‘steel frame’, such as the cabinet secretary and the defence secretary, have failed in their duty to point out this flagrant violation of constitutional processes. The great Sardar standing tall in splendid isolation at the Sardar Sarovar must be cringing.
Amitabha Pande is a retired secretary to the government of India.