THE Indian voter has spared President Pratibha Patil the onerous responsibility of using her own discretion to appoint the prime minister in a 'hung' parliament, that is one in which no political party or alliance commands a majority.

The verdict was clear and incontestably in favour of the Congress and Prime Minister Manmohan Singh. But for days preceding the polls the omniscient aired their views on the constitutional position in the event that a hung parliament was elected in response to equally intelligent questions by the TV anchors.

Confused by the chatter, I turned to British and Indian precedents and to the 1973 Constitution of Pakistan as it was originally enacted. It had a remarkable provision which was crafted precisely to remove from the president any discretion in the appointment of the prime minister and to confer that power exclusively on the National Assembly.

Article 91 read thus

“(1) The National Assembly shall meet on the thirtieth day following the day on which a general election to the Assembly is held, unless sooner summoned by the president.

“(2) After the election of the speaker and the deputy speaker, the National Assembly shall, to the exclusion of any other business, proceed to elect without debate one of its Muslim members to be the prime minister.

“(3) The prime minister shall be elected by the votes of the majority of the total membership of the National Assembly Provided that, if no member secures such majority in the first poll, a second poll shall be held between the members who secure the two highest numbers of votes in the first poll and the member who secures a majority of votes of the members present and voting shall be declared to have been elected as prime minister....

“(4) The member elected under clause (3) shall be called upon by the president to assume the office of prime minister....”

Article 131 conferred a similar power on the provincial assembly.

It was modelled on Article 63 of the basic law of the Federal Republic of Germany (1949) with one difference. Failing to secure a majority within a specified period the federal president is empowered to dissolve the Bundestag and order fresh elections.

Another useful provision in Pakistan's constitution worthy of emulation was Article 96(1) and (2) which read thus

“(1) A resolution for a vote of no-confidence may be passed against the prime minister by the National Assembly.

“(2) A resolution referred to in clause (1) shall not be moved in the National Assembly unless, by the same resolution, the name of another member of the Assembly is put forward as the successor.”

This was also modelled on Germany's constitution. Its Article 63 says, “The Bundestag may express its lack of confidence in the federal chancellor only by electing a successor with the majority of its members and requesting the federal president to dismiss the incumbent. The federal president must comply with the request and appoint the person elected.” It is called the “constructive vote of no confidence”.

It was inspired by the experience of the Weimar Republic between the two world wars when government after government was toppled but the topplers were bitterly divided on who

should succeed the toppled chancellor.

Absence of such a curb facilitates defections. India had a bitter taste of this in 1990 when the National Front Government headed by Prime Minister V.P. Singh was toppled by his deputy Devi Lal in complicity with Chandra Shekhar and the Congress (I) led by Rajiv Gandhi. They had the censure motion passed by the house — but there was no agreement for quite some time between Chandrashekhar and Devi Lal on who should be prime minister. This unedifying spectacle was but a repeat of the toppling exercises in the states of North India 20 years earlier in 1969.

What is the moral? Surely not that the constructive vote of no-confidence is worthless. It is useful; but as a limited curb. It is no cure to a polity that is hopelessly divided between warring factions either on ideology or simply on the control of power. That is very true also of the other German innovation that was adopted in Pakistan's constitution. It has begun to win support even in Britain.

The constitutions of India and Pakistan are modelled on the Government of India Act 1935. It contained an 'Instrument of Instructions to Governors'. The test it prescribed for appointment of premiers was “the person who in his judgment, is most likely to command a stable majority in the legislature”. India's constitution-makers accepted the instrument but dropped it at the last moment.

Article 31(3) of Pakistan's constitution of 1956 directed the president to appoint as prime minister one “who, in his opinion, is most likely to command the confidence of the majority” in the house. President Iskandar Mirza's abuses prompted Zulfikar Ali Bhutto to divest the president of this power. His object was two-fold to curtail the powers of the president and to ensure the stability of his government. In India too people have begun increasingly to clamour for stability as the election results revealed on May 16.

There is also a steady critical watch on the president's exercise of his prerogatives whether in regard to the appointment of the prime minister or on the dissolution of the Lok Sabha on his advice. President N. Sanjiva Reddy's misbehaviour in July 1979 in appointing a defector as prime minister and dissolving the house on his advice have induced alertness. It is only since 1996 that Indian presidents have struck a fair balance between rubber-stamp presidents like Fakhruddin Ali Ahmed and unscrupulous power-grabbing ones like Dr. S. Radhakrishnan. Since 1996 presidents have acted properly as constitutional heads of state.

In India as in Pakistan, excesses and aberrations sprang from murky politics and bitter divisions. The two admirable constitutional provisions can regulate the polity up to a point and deserve praise for that. But no constitution and no law can ensure presidential rectitude or governmental stability if the politics are rotten to the core. Only an alert, assertive people can cure that disease.

The writer is a lawyer and an author.