Once the votes for the 16th Lok Sabha are counted, the president will have to invite the leader of a political party to form the Union government. When a general election returns a single party with an absolute majority, the president has no choice but to call upon the leader of that party to form the government. But if no party wins such a majority, the president has to make an informed judgement call and select the leader of a party to form a government. Textbooks on constitutional law state that this person would normally, but not invariably, be the leader of the single largest party.
However, the circumstances may rule out an invitation to the leader of the single largest minority. For instance, when it is clear that other parties will not support him. It is in such a situation that the president’s discretion becomes crucial. He must assess the situation emerging from a House divided by several parties and, after consultations with the leaders of parties and other politicians, and after seeking such advice as he deems necessary, choose a person who he believes can form a government that has a reasonable prospect of enduring. The president must be seen to have acted fairly, without any predilection, and to stand above the dust and din of politics. At times, this can be a very difficult choice for the president.
Former president R. Venkataraman proposed a simplistic rule of invitation in the order of the strength of the political parties in a hung Parliament. He maintained that this would be the most prudent and uncontroversial course of action. In his view, once the leader of the largest party is invited, the president should not look for the quantum of support for him or her; the supporters of such a leader should demonstrate their backing in the House itself. Venkataraman claims to have applied this rule for two hung Parliaments, after the elections of 1989 and 1991.
No party secured an absolute majority for the ninth Lok Sabha in 1989, and the Congress under Rajiv Gandhi was the largest minority party, with 193 MPs. After Rajiv Gandhi declined to form government, the president invited V.P. Singh, leader of the second largest party, the Janata Dal.
In 1991, too, no single party had an absolute majority and the Congress emerged as the single largest party. Venkataraman invited P.V. Narasimha Rao to form the government. Rao won an immediate confidence motion in the Lok Sabha. Though the BJP and the Left parties were opposed to his government, they abstained as they were reluctant to face another election.
Venkataraman’s view is not a prescription for all situations. Inviting the leader of the single largest minority party in a divided house without ascertaining his support in Parliament would be highly chancy. In the two cases of 1989 and 1991, it was reasonably clear that the other parties would not, at least immediately, outvote the minority government. Venkataraman was therefore on fairly safe ground in his decisions.
In cases where other parties in combination have declared their opposition to the largest party, it would be futile for its leader to even meet Parliament. This was demonstrated when then president Shanker Dayal Sharma invited Atal Bihari Vajpayee to form the government in 1996 because he was leader of the single largest party in the 11th Lok Sabha. In a 535-member House, the BJP and its allies were 194 against the United Front’s 177 and the Congress’s 136. There was no prospect of either the United Front or Congress lending support to the BJP. Within 13 days of forming government, Vajpayee had to withdraw his motion of confidence in the Lok Sabha as defeat stared him in the face.
The 12th Lok Sabha election in 1998 presented a hung Parliament once again. This time, then president K.R. Narayanan carefully ascertained which party would be able to secure the confidence of the House. Thereafter, his decision was really a formal one, taken after political adjustments had been made by several parties. After discussions over four days with leaders across parties, including with Sonia Gandhi, who said that the Congress would not stake a claim as it did not have the requisite numbers, Narayanan found that the number of MPs supporting a BJP government, including the AIADMK, came to 264. Given that the TDP had conveyed its decision to remain neutral, the president asked Vajpayee to form the government and advised him to secure a vote of confidence within 10 days of being sworn in, which he did. The 13th Lok Sabha presented no problem as the election results gave the BJP-led NDA a clear majority.
The 14th Lok Sabha election again presented a hung Parliament. The election results, out on May 13, 2004, revealed that the pre-poll alliance of the NDA had secured 187 seats, the Congress and its pre-poll allies 216 seats. The Congress was the single largest party with 145 seats, the BJP came next with 138 seats. After the election, the Congress was assured of outside support from the Left parties, which had 61 seats. With the support of 277 members, the Congress could command the confidence of the Lok Sabha. On May 17, 2004, then president Adbul Kalam invited Sonia Gandhi to form the government, after it was reasonably clear that she would get sufficient support from other parties. It is another matter that she then declined to head the government and the Congress chose Manmohan Singh as its prime minister. Significantly, this time, apparently because of a clear majority assured to the Congress by its allies and outsiders, the president did not ask the prime minister to obtain a vote of confidence within a stated time.
In the 15th Lok Sabha, the Congress emerged as the largest party with 198 seats and backing from other political parties, while the BJP had 112 seats. Then president Pratibha Patil invited the Congress to form the government.
Thus, except for Shanker Dayal Sharma’s invitation to Vajpayee in 1996, the president’s invitation has come only after political adjustments had ensured that the largest party, or the political formation supporting the largest party, would command a majority in Parliament for a substantial period of time.
Given this history, the president may find that there are really no rules to guide his discretion in the difficult case of a hung Parliament. All that can be said is that experience, shrewd judgement, sound and disinterested advice from colleagues and experts with some knowledge of the basic concepts of parliamentary government may help him choose the right prime minister. The proof of that will be the stability of the government, at least for a reasonable period of time.
The writer is senior advocate of the Supreme Court and former solicitor general of India