The general election results would be out on May 23. It is generally expected that it would be a hung house and the BJP is expected to be the single largest party. It is also expected that the regional satraps would play a crucial role in providing numbers for government formation. President Ramnath Kovind would be tested in case any of the pre poll alliances is unable to touch the magic figure of 272. There are no rules laid down for the president to follow in case of a hung house. However, the Prime Minister (PM) invited by the President must command a majority in the Lok Sabha. How to determine that prima facie, before the majority is tested on the house is the issue. The then President Dr. Shankar Dayal Sharma shall go down in history for having invited Atal Bihari Vajpayee (with 161 + 25 allies) whose government could not last more than 13 days. How long would Rajiv Gandhi (with 197 MPs) last as PM in case he had accepted the invitation of the then President R. Venkatraman in 1989 after he lost elections is anybody’s guess. It was absurd to invite Rajiv Gandhi after an electoral defeat on the spacious ground, of Congress being the single largest party. In 1996 when Vajpayee was first invited, any student of politics would have understood that there was no chance for the BJP to get support from more than 75 MPs. With all their failings, the third front stood a better chance of managing a majority with Congress’s support.
An invitation to form the government enables the invitee to lure support and the invitation could be used to capture a majority by foul methods as the state instrumentalities like CBI, IT, ED could be unleashed on those unwilling to shift. How BJP would gather more than 75 MPs to master a majority in the house may have been known only to (late BJP leader) Pramod Mahajan! The manipulating of the peoples mandate by undemocratic methods has been seen when various state governments are formed at different times in history. Goa is a shining example of that.
The Goa case of 2017 and the Karnataka case of 2018 shows that the single largest party cannot be the criteria to get the President/Governor’s invite. Atal Bihari Vajpayee (1996) and Rajiv Gandhi (1989) have also given clear indication in that direction. The Goa Governor (2017) can be acquitted as the single largest party didn’t lay their claim until the mandate was manipulated to show a majority. However, the Karnataka Governor (2019) had clearly shown his partisan character of manipulating the mandate until the Supreme Court intervened by a midnight hearing.
The then President K.R.Naryanan brought in the concept of the letters of support i.e. the parties (not MPs) give letter of support in favour of whom they propose to be the PM to form a prima facie view over who could master the majority in the house. The majority in any case has to be tested on the floor of the house. In a country where there is an anti defection law under which the party comes before the candidate, the letter of support from the party would be fair to formulate a opinion over majority .We are in coalition politics era and the approach of President Naryanan appears to be just and fair as post poll numbers managed by parties decide as to who shall form the government.
Academically viewing the situation would be quite different. In 1967, when Congress lost power in the Hindi heartland, then Home Minister Y.B Chavan required three former Chief Justices of India M.C. Mahajan, P.B. Gajendragadkar, former Attorney General M.C. Setalvad and the Maharashtra Advocate General H.M. Seervai to report on how to understand the mandate of the people. Justices Setalvad and Mahajan and Seervai opined that in case the party in power failed to secure absolute majority in the newly elected legislature, the leader of that party should not be invited to form the government even if it were the single largest party. However all agreed that it is the governor’s responsibility to endeavour to find out as a result of his soundings over who could command over a stable majority. Setalvad Quoted Sir Ivor Jennings, “It is expected that when a Government is defeated either in parliament or at the polls, the Queen should send for the Leader of Opposition.” This rule is a result of long practice though it has hardened into a rule comparatively recently and Setalvad opined ‘based on the principle that the wishes of the electorate must be respected’. The rule should be followed even when the single largest party in the newly elected house is still a party which was the governing party before the election though it has failed to obtain the absolute majority.’
In 2014 the BJP had an absolute majority on its own, though the allies provided additional strength. In case the PM is unable to master a majority after these polls, by academic and moral standards it is a defeat of the government. A PM who suffered defeat must not come back. But who is concerned of such niceties? But in coalition politics, the coalition that commands a majority in the house is entitled to get the invite from the president and which coalition has the numbers would depend upon which parties and independents support whom. But one thing is extremely clear the incumbent PM should not be invited to form the government once his party loses majority in the electoral contest even if it emerges as a single largest party without written letters of support from supporting parties and independents.
(The writer is a practising lawyer)
