Opinion Fractured mandate first-aid

But what of the Constitution? The letter of the Constitution empowers the president to appoint almost anyone as prime minister; but since his cabinet will have to be responsible to the Lok Sabha,the president is expected to appoint only a person who is likely to be acceptable to the House. 

Where no party or pre-poll alliance commands an absolute majority,the role of the president in choosing the PM becomes most difficult and delicate. Past precedents have been both good and bad. Sometimes,very dubious and hardly dignified methods have been used to arrive at the final choice — for example,signed or unsigned lists of members pledging their support to a leader,letters of support from party leaders; signatures being disputed,the physical presentation of members for a head count has also been used. And some of the wisest presidents have taken the right decisions after independent consultations and careful consideration.  

The president,in the post-May 16 scenario,will be well-advised to rise to the occasion and act at once on the election results without giving time for post-poll reallocation of forces,possibly through the buying and selling of members or perhaps the tactics of temptation and blackmail. Since,in any case,it is necessary in the end for the Union cabinet to have the confidence of the Lok Sabha,and since it is the responsibility of the president to find out who can command such confidence,one logical,above-board and perfectly constitutional solution may be that instead of getting involved in political controversies — say,through appointing some one and then asking him to seek a vote of confidence within the specified number of days — the president can ask the House itself to elect its leader and appoint whosoever thus elected as PM. This can be done through the president simply sending a message to the Lok Sabha under Article 86(2). This device,if adopted,shall keep the president above all partisan controversies and the need for a vote of confidence shall also be obviated.  

After all,there is no provision for a vote of confidence either in the Constitution or in the Rules of Procedure. The precedents have been somewhat extra-constitutional and not in keeping with the philosophy and principles of parliamentary democracy. Under this polity,it is not really necessary that the government always have the majority of members behind it. What is imperative is that the majority of members should not be against it. That is the justification for there being provision for a no-confidence motion,and none for a confidence motion. That is what makes minority governments legitimate as well.  

If the device of sending a message to the House and,in effect,having the PM elected by the House sounds too untravelled a course — even though the 2002 National Commission on the Constitution also recommended it — the president has the following traditional options to be adopted in strict order of priority. 

First,the leader of the single largest party/ pre-poll alliance may be invited. In case the leaders of the largest party and the largest pre-poll alliance are different,then whosoever has larger numbers with him or her should be invited. It is not at all necessary for the president to be satisfied in advance about the leader having a majority of members with him because (a) it is not the job of the president to go head-counting,(b) the question of government having legitimacy has to be settled only on the floor of the House through a no-confidence motion,if necessary,(c) minority governments also are legitimate — and have even been stable. Besides,philosophically,given that the lynchpin of our electoral system is first-past-the-post,the largest number of votes cast should matter.  

Second,if that fails,the leader of the second-largest party or alliance should be invited.

Third,if both the first and second options fail,the leader of the largest post-poll alliance may be given an opportunity to try his hand at forming a government. This sequence of options would also be in keeping with the recommendations of the Sarkaria Commission (1986) and the National Commission on the Constitution (2002). The basic principle is that if the election results are not able to throw up a rightful claimant,the matter should be left to be determined on the floor of the House — with no effort made to prejudge,pre-empt or prejudice the will of the House. 

If all three options fail to provide a stable government,there would be no alternative to going for fresh polls and again seeking a clearer mandate from the people. But,it needs iteration that before adopting this drastic remedy,the possibility of forming a stable government through election of the leader by the House must be tried and exhausted.  

It is important that these priorities are accepted as established before the results become known on May 16. Also,these priorities must be faithfully applied,irrespective of which party benefits or suffers. This is necessary because constitutional law demands a reasonable degree of predictability. It is also necessary for limiting and regulating the use of discretionary powers and for keeping the office of the president above any unsavoury controversy. The president owes it to the pristine glory and high dignity of her office that she should not only go by some pre-set principles under the Constitution in an immaculate and impartial manner but she should also be widely seen to be doing so.

The writer is a former secretary-general of the Lok Sabha,and author of a two-volume study on ‘Parliamentary Procedure’ and a six-volume ‘History of Parliament’

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