And it is finally here! Months of campaigning, strings of slogans, a dozen backlashes, a few additions and subtractions, and a few other coalitions, and it is finally here! India has elected its new government.
All these were merely a set of trailers to the final showdown which is the formation of the government. Despite the fact that this time India has re-elected Prime Minister Narendra Modi led NDA government, a series of events will take place until the same individual is sworn in again as Prime Minister.
The Buck Stops Here
Article 75(1) of the constitution provides,
“The Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister.”
Going by the accord, post the declaration of the results of the election, the President has the authority and the officialdom to invite the single largest party that is the voted majority party to form the government at the center for the next five years. However, in the case of hung assembly, there is scope for a lot of debates, prejudices and bias and usually creates a Catch-22 situation. If no party or pre-poll alliance secures a majority to form the government, it may result in a hung Parliament. The president plays a crucial role in government formation in the case of a hung Parliament. The president may invite the leader of the single largest party or pre-poll alliance to form the government. The option of the single largest party is usually not feasible when it is evident that it will not get support from any other party. The options usually available to the president are the following:
To invite the pre-poll alliance that has managed to garner a majority in the Lok Sabha. It also includes the leader who is able to attain authority through the command of a sufficient number of MPs in the Lok Sabha.
The final resolve would be inviting the Post poll alliance to form the government at the centre.
Before venturing into an analysis of the current scenario, let us see certain instances that had a huge impact in shaping the election process and its aftermath in the present world.
The Rulemaker- The Sarkaria Commission
Sarkaria Commission was set up in June 1983 to examine the relationship and balance of power between state and central governments and to suggest changes within the framework of the Constitution. This commission put forth the guidelines for the discretionary powers of the governor who derives power and follows the protocol set forth for the President of India. These guidelines for the governor were drawn out in the form of recommendations in the backdrop of the case of Rameshwar Prasad v. Union of India in 2005. The Commission report details the options before the governor in the situation where no single party has obtained an absolute majority.
The order of preference for the Governor in such case was:
An alliance of parties that was formed prior to the elections;
The single largest party staking a claim to form the government with the support of others, including independents;
A post-electoral coalition of parties, with all the partners in the coalition joining the government;
A post-electoral alliance of parties, with some of the parties in the alliance forming a government and the remaining parties, including independents, supporting the government from outside.
These were certain valuable insights by the Sarkaria Commission report and although, this primarily dealt with the guidelines for the Governor’s discretionary powers, it finds its applicability in that of the discretionary powers of the President in the instance of a hung parliament or hung assembly.
There has been a chain of past instances where the President’s discretionary power has played a paramount role in establishing the central power in India.
The Groundbreaker- S.R. Bommai v. UOI
S.R. Bommai was the Chief Minister of the Janata Dal government in Karnataka for seven months, before it was summarily dismissed by the Governor in April 1989 because it had lost its majority. Article 356 was used to dismiss his government on April 21, 1989. The premise was the loss of majority of the Bommai government because of large-scale defections. Bommai was refused a chance to test his majority in the Assembly even though Bommai had presented a copy of the resolution passed by the Janata Dal Legislature Party.
The first and most important question which the Supreme Court had to determine was whether the Presidential Proclamation under Article 356 was justiciable and if so, as to what extent.
The second contention was whether the President has unfettered powers to issue Proclamation under Article 356(1) of the Constitution.
According to the Constitution Bench ruling, it was held that the power of the President to dismiss a State government is not absolute. Such power can only be exercised and implemented by the President only after ratification by both Houses of Parliament. This also meant that the proclamation was justiciable.
However, what is the relevance of this case to the current scenario?
“The House is the place where the democracy is in action. It is not for the Governor to determine the said question on his own or on his own verification. This is not a matter within his subjective satisfaction. It is an objective fact capable of being established on the floor of the House.”
- S.R. Bommai v. Union of India
This judgement played a crucial role in setting a limit to the discretionary power of the President and therefore, the Governor. It adjudged that there was a constant watchdog in the form of the judiciary to target and control the wide powers of these two supreme heads in the country. This case was instrumental in establishing that majority can only be proven on the floor of the Assembly and it should not be a subjective opinion of the Governor.
The Idealist- K R Narayan
Kocheril Raman Narayanan, the 10th President of India, inherited the presidential office in 1997 at a time when the Head of State was firmly imprinted in the public perception as a "rubber stamp" figure. President Narayanan was a brilliant example of a man who made his office rather than have his office make him. In the tricky area of Prime Ministerial appointment in a hung Parliament situation, he established procedures and principles that were based on sound reasoning. Up until 1996, Presidents followed the practice of calling the leader of the single largest party in the Lok Sabha to form a government. This mechanical approach led in 1996 to the farce of Atal Bihari Vajpayee being invited to a form a government that collapsed in 13 days. Mr. Narayanan rejected the notion that the single largest party or coalition necessarily had the first claim to office. Instead, the competence of the Prime Ministerial claimant had to be judged by whether or not the person enjoyed the confidence of the House. Thus, he set a new precedent whereby it became mandatory for a person staking a claim to the Prime Minister's office to produce letters of support from alliance partners.
President of India, Mr. Ram Nath Kovind (L) with Prime Minister Elect, Mr. Narendra Modi (R).
The Brunt Bearers
This was one election the exit polls got wrong. Contrary to predictions, the Congress emerged as the single largest party instead of the BJP in a hung verdict in Goa, 2017. The party won 17 seats, and the BJP trailed with 13 in the 40-member assembly. Nine seats went to the others - three for the Maharashtrawadi Gomantak Party or MGP, three for the Goa Forward Party and 3 Independents. Finally, the election was won by the BJP-Maharashtrawadi Gomantak alliance which won 24 seats in the 40-seat assembly. This was a coalition government, and this had to be justified in the floor of the house by proving the majority.
“I am a very straight forward person and I go by the book. The BJP has requisite numbers. They have more than 30 and that is enough.”
– Najma Heptualla, Governor of Manipur
This was the case in Manipur where there was a hung assembly in the year 2018. Here, the Congress had emerged as the single largest party with 28 seats. But the BJP with 21 seats got the support of other parties after the poll and reached the figure of 31 in the 60-member Assembly.
The 2018 Karnataka Legislative Assembly election was held on 12 May 2018 in 222 constituencies in the state. The election led to a hung assembly, with the BJP emerging as the largest party, with 104 seats, but failing to win a majority. While B.S. Yedyurrappa went ahead with the intention of making the government and requested the governor to allow him to form a government, even without the required numbers. The Governor, nevertheless, allowed him to take oath as the Chief Minister. However, this win was short lived as the Supreme Court struck down 2 weeks of time provided by the governor for the floor test to just 2 days. He was forced to resign. After his resignation current Chief Minister Shri. H.D. Kumaraswamy was sworn in on 23rd May 2018 with absolute majority support from Congress total of 117. This again was a coalition government.
With all these precedents to set a trend, there lies the biggest ever test of democracy ahead of us. On May 30, 2019, India will complete yet another milestone of a peaceful transition of power from one government to another. While the Prime Minister may remain the same this time, a large number of ministers will change, the Lok Sabha will be recast, and a new dispensation will begin governing India.
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About the Author
Ananya Satish is a budding lawyer and is currently pursuing B.A. LLB from National Law University, Odisha. She is a passionate speaker and has participated in many Model United Nations Conferences and debate competitions in the school level and has also has many citations in her name. Ananya also enjoys the law school tradition of mooting and has developed a keen interest and passion for the same. She is an avid reader and has a taste for classics and crime fiction. She is a trained Bharatanatyam dancer and aspires to pursue legal journalism post law school.