INDIA’S own record since 1969 has not been unproductive of norms that provide sound guidance, bar a couple of mistakes that themselves provide good lessons.
In the general elections of 1952, 1957 and 1962, Jawaharlal Nehru comfortably rode back to power. In 1967, the Congress won a mere 283 seats in a House of 522. Prime Minister Indira Gandhi had to face powerful leaders in the opposition parties and wit hin the Congress. She decided to split the Congress. The parliamentary party split into two on November 13, 1969 – the Congress (R) led by Indira Gandhi, which later became the Congress (I), and the Congress (O) led by S. Nijalingappa.
President V.V. Giri rightly did not ask her to prove the majority of her group in the Lok Sabha. This innovation came later. It is always open to the Opposition to table a vote of no-confidence. The Sarkaria report’s obscene suggestion that a mailbox be installed at the gates of Raj Bhavans to receive letters withdrawing support to the Ministry serves only to show up its authors for what they were. The winter session of Parliament was due to meet just four days later when the Swatantra Party and the Jana Sangh moved an adjournment motion in the Lok Sabha on India’s humiliation at the Rabat conference of Muslim countries. The Congress (O) supported them. Indira Gandhi survived the vote (by 306 to 104 votes) with the support of the Communist Party of India, the Communist Party of India (Marxist), the Socialist Party, the Dravida Munnetra Kazhagam, the Akali Dal and independents.
She returned to power with a massive majority in 1971, imposed the Emergency on June 26, 1975, and announced her decision to go to the polls on January 18, 1977. Five days later, the Janata Party was launched. The Congress (O), the Jana Sangh, the Bharatiya Lok Dal and the Socialist Party decided to fight the elections unitedly as the Janata Party. Jagjivan Ram’s Congress for Democracy joined them. The Janata Party won 298 seats and the Congress 153 in a House of 542. No proof of majority support was demanded.
In the wake of the Janata Party’s split in 1979, some precedents were set in a singularly murky situation. The disease of splits in the States in 1969 in the United Fronts – the Samyukta Vidhayak Dals – had infected the Centre. On July 15, Morarji Desai resigned as Prime Minister, because the party had lost its majority, but not as leader of the party. The next day Charan Singh resigned as Deputy Prime Minister and formed a new party, the Janata (Secular). On July 18, President N. Sanjiva Reddy properly invited Y.B. Chavan, the Leader of the Opposition, to form a government. On July 22, Chavan reported failure but said: “There has emerged a combination of parties and groups which… would be able to provide a viable and stable government.”
Charan Singh claimed to be the leader of that combination. On July 23, the President wrote to him and to Morarji Desai asking both “to let me have the names of members of the Lok Sabha who are willing to lend their support to you as their leader in order to satisfy myself whether you have the necessary majority in the Lok Sabha within two days”. On July 24, Indira Gandhi’s Congress (I) extended support to Charan Singh.
RISKY LISTS PROCEDURETwo lists were submitted, both of doubtful integrity. Sanjiva Reddy found that Charan Singh’s list showed a majority of 24. On July 26, he wrote to Charan Singh inviting him to form a government on these novel terms: “I trust that in accordance with the highest democratic traditions and in the interest of establishing healthy conventions, you would seek a vote of confidence in the Lok Sabha at the earliest possible opportunity, say by the third week of August 1979.” The word “establishing” made clear his decision to set a precedent.
Two factors made this necessary. One was President Reddy’s own lack of credibility, which prompted him to issue an unusual press note on July 21 denying that he had political ambitions of his own. The other was the inherently risky lists procedure. When Morarji resigned, Chavan was rightly invited. He declined but made a pact with Charan Singh. This combination should have been invited without demur, leaving Morarji free to challenge it in the House. This is the procedure approved by all authorities, Ivor Jennings included. The President had only to form the prima facie view on majority support in the Lok Sabha. Sanjiva Reddy chose instead to “satisfy myself” about it with rival lists. A bad precedent was set, with grave consequences.
Charan Singh was sworn in as Prime Minister on July 28. The Lok Sabha met on August 20 after the Congress (I) withdrew its support. He advised dissolution. On August 22, the President dissolved the Lok Sabha in violation of the fundamental rule that a Prime Minister facing a motion of no-confidence has no right to advise dissolution of the House. The proper course was to proceed with the debate. On the Prime Minister’s defeat, the Leader of the Opposition, Jagjivan Ram, should have been asked to form the government.
One pronouncement of the times bears recalling today. On August 7, 1979, George Fernandes alleged a well-organised and smartly orchestrated exercise mounted by the Rashtriya Swayamsewak Sangh-Jana Sangh forces for the total takeover of the Janata Party. In an obvious reference to A.B. Vajpayee and L.K. Advani, he wrote: “The carefully cultivated self-abnegation postures of some RSS-Jana Sangh leaders were but a flimsy facade for the power grabbing….” A little over a decade later, he became their staunch ally.
Sanjiva Reddy’s precedent was followed in the States thereafter and at the Centre a decade later. In the 1980 and 1984 general elections to the Lok Sabha, the Congress (I) was voted to power with a clear majority. The 1979 precedent ripened into an established convention contested by no one. The 1989 elections yielded a divided verdict – the Congress 184 seats, the National Front led by the Janata Dal 145, the Bharatiya Janata Party (BJP) 82, and the Left Front 55. President R. Venkataraman, nonetheless, invited Rajiv Gandhi to form a government. He had sense enough to decline. Had he accepted Venkataraman’s rule of largest single party – all else regardless – he would have exposed the President and himself to ridicule. On December 1, 1989, the President announced: “I have invited Shri V.P. Singh… to form a government and take a vote of confidence in the Lok Sabha within 30 days of assuming office.” The President had received declarations of support in writing to the National Front from the BJP and the Left.
RULE OF SINGLE LARGEST PARTYOn October 23, 1990, the BJP informed the President of its withdrawal of support to the National Front government. Mentioning this and citing the respective strengths of the political parties in the House, a Rashtrapati Bhavan communique noted the government’s loss of majority and said: “The President has, therefore, advised the Prime Minister to prove his majority in the House of the people. The Prime Minister has agreed to do so before 7 November.” This was the first instance a government at the Centre was asked to seek such a vote because it was perceived to have lost majority support. The winter session of Parliament was to commence shortly thereafter in November, anyway.
On November 9, 1990, the President issued a communique that revealed the course he later adopted. He had asked the Congress (I), once again, to form a government. It declined, offering “unconditional support” to Chandra Shekhar instead. Thereafter, he sounded out the BJP and the Left Front.
Both declined; Chandra Shekhar “produced evidence of support to his group” of 50-odd defectors from the Janata Dal and from other parties. “The President is satisfied prima facie that the group… has the strength to form a viable government.” Chandra Shekhar was invited to form the government “and prove his majority in the House… on or before 30 November 1990”.
Rajiv Gandhi did not keep his promise to the President not to withdraw support. (“Why one year – It [his support] may extend to the life of Parliament.”) Chandra Shekhar resigned in ignominy on March 6, 1991, but, unlike V.P. Singh, advised dissolution since Rajiv Gandhi had withdrawn his support. On Rajiv Gandhi’s tragic assassination, P.V. Narasimha Rao was elected leader of the Congress (I) parliamentary party on June 20, 1991. The electorate once again gave an unclear verdict. The Congress won 225 seats in a House of 520, the BJP 118, the Janata Dal 55, and the Left 47. Narasimha Rao was straightaway appointed as Prime Minister on June 20 but was asked “to establish your majority in the Lok Sabha within four weeks”. Narasimha Rao’s motion of confidence was carried by 241 votes to 111 on July 15, 1991. The National Front and the Left abstained since neither wanted fresh elections. Two years later, on July 28, 1993, Narasimha Rao defeated a motion of no-confidence by 265 votes to 251– with the support of the Jharkhand Mukti Morcha (JMM) members. He lasted a whole term of five years.
From 1996 began the phase of hung Parliaments, recurrent political crises, and repeated presidential interventions. Both the Sanjiva Reddy stipulation of 1979 on the initial appointment and the Venkataraman one of 1990 after loss of confidence were followed. There was no protest from any of the affected parties.
Sadly, President Shankar Dayal Sharma stumbled badly after the 1996 general elections. The BJP won 161 seats in a House of 543 (of which only 537 had gone to the polls) and 20.7 per cent of the popular vote. Allies promised another 34 seats (the Shiv Sena 15, the Akali Dal 8, the Samata Party 8, and the Haryana Vikas party 3). The total of 195 fell short of the magic figure of 269 by as much as 74.
“A senior BJP functionary” gave the game away on May 10, 1996: “Once we are called upon to form the government, the attitude of newly elected MPs [Members of Parliament] towards the BJP might change and they may be willing to be ‘partners’.” Besides, none of them, he added, would be interested in another round of early elections. This is the danger of the arithmetical rule. The party first asked is able to lure support. The BJP staked a claim to form a government on May 11. Three days later, the United Front (comprising the former National Front and the Left) presented to the President a list of 11 parties, signed by their respective leaders, claiming a total strength of 171, fortified by the Congress’ vague resolution of support to “secular democracy” on May 12 and an explicit letter of support on May 13. Sharma knew that this letter was on its way to him. It reached him at 3-25 p.m. on May 15. At 2 p.m. he appointed Vajpayee as Prime Minister with full knowledge of the fact that he did not command a majority. With Congress support, the United Front was 318 strong. Vajpayee was sworn in on May 16.
He was “advised” to “secure a vote of confidence” by May 31. Facing certain defeat in the Lok Sabha on May 28, Vajpayee announced his decision to resign. H.D. Deve Gowda was appointed Prime Minister on June 1, 1996, on the same terms and secured a vote of confidence in the Lok Sabha.
On March 30, 1997, Congress president Sitaram Kesri wrote to the President withdrawing support to the Deve Gowda government and staked a claim to be appointed Prime Minister. If the practice of signifying support to the Prime Minister by letters to the President is followed, the beneficiary cannot complain if its withdrawal is also delivered to the same office. Parliament was due to meet on April 21. President Sharma declined to wait for three weeks. On March 31, 1997, he asked Deve Gowda to secure a vote of confidence by April 7 but relented enough to extend the term by four days. On April 11, Deve Gowda lost by 158 votes to 292 with eight abstentions.
Kesri wrote to the President on April 18 extending support to a new leader of the United Front other than Deve Gowda. I.K. Gujral was appointed Prime Minister on April 21 with a direction to seek a vote of confidence a mere two days later. The Congress and the United Front were also directed to inform the President of their accord on a coordination committee in order to dispel his doubts on the stability of the new set-up.
On November 28, 1997, Kesri wrote to President K.R. Narayanan informing him of the Congress’ withdrawal of support to the government and also staking its claim to form the government “and we are sure, given a chance, we would be able to prove our majority on the floor of the House”. Unlike Deve Gowda, Gujaral resigned that very day but without advising dissolution of the Lok Sabha. Constituents of the United Front informed the President that they would not support a Congress or a BJP government. On December 3, 1997, Advani made a revealing confession: “We needed 47 to split the Congress. We got around 40.” He, of course, never practised horse-trading. The 40 were a gift of Providence. Dissolution was inevitable. On December 3, the Council of Ministers advised dissolution.
In the March 1998 elections, the ruling United Front was defeated. The BJP won 179 seats and its allies 73 in a House of 543. It received 26 per cent of the popular vote singly and 37 per cent together with the allies. Three features stand out. This block of 252 was only 21 votes short of a majority. No alternative with a credible claim to a majority was anywhere in sight at that time. Differences within and between the Congress and the United Front surfaced no sooner than the counting of votes was over. Lastly, even had they united, the Congress and its allies were only 166 strong and the United Front 96, yielding a total of 262 to parties that had fought each other in the elections. The electorate had rejected both.
The President rightly asked Vajpayee, on March 10, “to let me know whether you are able and willing to form a stable government which can secure the confidence of the House”.
Yet, when Vajpayee called on him claiming the support of 252 MPs, the President asked him “to furnish documents in support of his claim from concerned political parties and individuals. He had agreed to do so.” Given the absence of any alternative in sight, this was an absurdly mechanical application of a rule applied in ambiguous situations. He also held consultations with other parties. On March 12, Vajpayee submitted letters of support from 240 MPs. Jayalalithaa, the general secretary of the All India Anna Dravida Munnetra Kazhagam, sent her letter pledging “total and unconditional support” to Vajpayee to the President on March 14.
An elaborate communique was issued by President Narayanan on March 15, 1998: “The number of MPs supporting the formation of a government by the BJP now comes to 264. The number – 264 – remains short of the halfway mark in the total House of 539. However, when seen in the context of the TDP’s [Telegu Desam Party] decision, as conveyed to the President by Shri Chandrababu Naidu, to remain neutral, the number of 264 does cross the mark.… The President has also advised Shri Vajpayee to secure a vote of confidence on the floor of the House within ten days of his being sworn in.” Where was the need or justification for this stipulation? The Opposition can always move a motion of no-confidence, surely.
K.R. NARAYANAN’S HISTORIC COMMUNIQUESworn in as Prime Minister on March 19, 1998, Vajpayee won a vote of confidence in the Lok Sabha on March 28 by 274 votes to 261. He, however, lost the vote of confidence on April 17, 1999, when Jayalalithaa withdrew her support. To his credit, Narayanan injected into the office of the President a sense of accountability to the nation and issued reasoned communiques after every major decision. His communique of April 26, 1999, is of historic significance (The Hindu, April 27, 1999, for the full text). It had a detailed recital of the consultations he had held with all major political parties after the vote and bears quotation in extenso on both the appointment of the Prime Minister and the dissolution of the Lok Sabha. The Prime Minister met the President at 8-40 p.m. on April 25, 1999. “The President conveyed to him that (a) the non-BJP parties had not succeeded in coming up with an alternative; and (b) no accretion in the number supporting the BJP-led alliance had been brought to his notice either. He gave the Prime Minister his assessment that the Twelfth Lok Sabha was not capable of yielding a government with a reasonable prospect of stability.
“The recourse to dissolution on the defeat of a minority coalition government arises when it appears to the President that a stable government cannot be formed without a general election. Dissolution is indicated if an alternative government with working majority which can be expected to carry on for a reasonable period of time is not feasible. The President informed the Prime Minister that in his perception the dissolution of the Twelfth Lok Sabha had therefore become necessary.
“The Prime Minister responded by saying that he would discuss the position in Cabinet the following day.
“The Cabinet met at 12 noon on April 26, 1999, and recorded a Minute recommending to the President that he may dissolve the Twelfth Lok Sabha so that a fresh mandate could be obtained from the people as early as possible. The Minute converged with the President’s own analysis of the situation.
“The President could not but observe that the ruling alliance had lost its majority because of a lack of cohesion within its ranks, and those who voted out the alliance showed the same lack of cohesion when trying to form an alternative government. In this situation, the President reached the conclusion that the time had arrived for the democratic will of the people to be ascertained once again so that a government can be formed which can confidently address the urgent needs of our people.”
At the outset the President declared his objectives: “In commencing these consultations, the President had two major objectives: (1) the need to avoid ordering a midterm election and (2) the importance of seeing whether a party, or a combination of parties, can provide a workable, viable alternative government with the prospect of stability for a substantial period of time if not for the remaining term of the Twelfth Lok Sabha.”
The general elections in September-October 1999 returned Vajpayee to power once again as head of the National Democratic Alliance (NDA) coalition of 21 parties. He was invited to form a government by President Narayanan on October 11, 1999, without being required to provide the President with prima facie proof of majority support in the House or on assurance that he would seek a vote of confidence within a stipulated time, as before. Having won 296 seats in a House of 538, the NDA’s ability to form a government was beyond dispute. The President’s decision was implicitly accepted by all.
The communique issued by President A.P.J. Abdul Kalam on May 19, 2004, appointing Manmohan Singh as Prime Minister simply noted: “The President, having satisfied himself on the basis of these letters [of support] that the Congress-led alliance did enjoy majority in the newly constituted 14th Lok Sabha and therefore was in a position to form a government which would be stable, appointed Dr. Manmohan Singh as the Prime Minister….” It did not state, as before, that he was advised to prove his majority support in the Lok Sabha by any particular date. Parliament met, as usual, only a few weeks later in its monsoon session.
The President acted correctly. The government having lost its majority, the Opposition was entitled to be asked to form a government unless the losers had drummed up a new alliance with a credible majority in the meanwhile. In 2004, the Congress won 145 seats, the BJP 138 and the Left 61. The United Progressive Alliance had 222 members, the NDA had 189. The Left supported the UPA.
The test was precisely what the Instrument of Instructions prescribed. Who was “most likely to command a stable majority”? The test was based on relative strengths and on probabilities in which stability was a relevant factor. The majority and stability had to be proved to the President only prima facie. The Lok Sabha alone was the final judge of both.
To sum up: 1. There is no rule that requires the largest single party to be invited as a matter of course. It comes into play only if the ruling party loses its majority and others have to be sounded out. Even so, any coalition established thereafter acquires an overriding claim provided it can prima facie demonstrate majority support. There is in law no distinction between a pre-poll and a post-poll alliance.
2. Indian precedents sanctify written assurances of support to the leader of a coalition, plus assurances of stability by way of a minimum common programme, even if it is drawn up later. Some proof of cohesion is necessary.
3. There is no rule of proving majority support within a time stipulated by the President except where there is an acute crisis of confidence that mandates transparency by all, the President included.
4. In the last resort, a minority government must not be ruled out. The House will be the judge.
OPEN TO JUDICIAL REVIEWThe President or the Governor’s decision is very much open to judicial review as Sri Lanka’s Supreme Court ruled on August 16, 1993, in Major Montague Jayawickrema and another vs M.A. Bakeer Markan and another.
Elections to the provincial councils were held on May 17, 1993. The court quashed the orders of appointment of Chief Ministers by the Governors of the North-Western and Southern councils. Three recognised political parties were in the fray: the United National Party (UNP), the Democratic United National Front (DUNF) and its ally, the People’s Alliance (P.A.) led by Sirimavo Bandaranaike’s Sri Lanka Freedom Party (SLFP). None of the parties gained an absolute majority. In the North-Western provincial council, the UNP won 25 seats, the P.A. 18, and the DUNF 9. In the Southern provincial council, the UNP won 27 seats, the P.A. 22 and the DUNF 6. Though the P.A.-DUNF alliance was in majority in both provinces, in both the UNP was asked to form the government. The UNP, then in power at the Centre, followed the Indian example and got its own party installed in power no matter how improperly.
Article 140 F(4) of the Constitution of Sri Lanka reads: “The Governor shall appoint as Chief Minister the member of the provincial council constituted for that province, who, in his opinion, is best able to command the support of majority of the members of that council. Provided that where more than one half of the members selected to a provincial council are members of one political party, the Governors shall appoint the leader of that political party in the council as Chief Minister.” Since none of the three political parties had won more than half of the seats, the proviso was inapplicable.
G.M. Premachandra (DUNF) and Amarasiri Dodangoda (P.A.) filed petitions in the Court of Appeal on May 24 against the Governors of the North Western Province, Montague Jayawickrema, and of the Southern Province, M.A. Bakeer Markar, challenging the appointment of the Chief Ministers. The Court of Appeal referred the issue of the law to the Supreme Court for its ruling.
In both provinces, secretaries of the allied parties had submitted to the Governors, on May 19, declarations of agreement to work together backed by affidavits by all their councillors. As against this, both the UNP appointees submitted letters claiming majority support but did not explain how that was achieved nor did they identify the councillors whose additional support gave them a majority.
The Supreme Court heard and decided the two cases together. Its judgment constitutes a precedent of high persuasive value in our courts since the constitutional scheme is almost identical. The Supreme Court said: “We have no doubt whatsoever as to the purpose for which Article 154 F(4) gave the Governor a discretion. By the exercise of the franchise, the people of each province elect their representatives for the purpose of administering their affairs. The Governor is given discretion in order to enable him to select as Chief Minister the representative best able to command the confidence of the council, and thereby to give effect to the wishes of the people of the province. The discretion is not given for any other purpose, personal or political.”
The court ruled that this was not a “political question”. The Governor’s decision cannot be based on policy but on an objective verifiable criterion for assessment of support in the council. It quoted extensively from rulings of India’s Supreme Court. It ruled: “The exercise of the powers vested in the Governor of a province under Article 154 F(4), excluding the proviso, is not solely a matter for his subjective assessment and judgment; it is subject to judicial review by the Court of Appeal. In applications for quo warranto, certiorari and mandamus, the Court of Appeal has power to review the appointment, inter alia, for unreasonableness, or if made in bad faith, or in disregard of the relevant evidence, or on irrelevant considerations, or without evidence.”
The petitions were remitted back to the Court of Appeal for trial in the light of the Supreme Court’s ruling. The Court of Appeal’s judgment on October 8, 1993, underlines the implications of the Supreme Court’s judgment. The Governors’ orders were quashed as being “unreasonable and illegal”. Writs of mandamus were issued to them “to appoint a Chief Minister of the province according to law”. The net result is clear. First, the power of appointment of the chief executive, whether at the centre or in the provinces, is strictly regulated by conventions established over the years. Secondly, those conventions, ascertainable from recognised authorities, have the force of law. Lastly, the power of appointment is not exempt from judicial review.•
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