Whom should President Pratibha Patil call on May 17, after the final results of the elections to the 15th Lok Sabha are out: the single largest party? Or the single largest alliance?

lf, as speculation suggests, no single party meets the 272-mark in the 545-member Lok Sabha, the President may have to exercise her judgement and also seek legal advice.

By implication, this means that the President is prohibited from calling to form a government, anyone but the single largest party, on the basis of the argument that it is the single largest party that is most representative of the will of the people even if it is in a minority.

But a stable government may be provided by a coalition of parties. In fact, a minority government of the single biggest party might not last.

However, courts have questioned this premise in the past, suggesting this path is not without pitfalls.

The President’s powers exercised at the Centre are replicated in the states in the governors in government formation.

In 2005, then Bihar governor Buta Singh satisfied himself that no government could be formed as the elections in Bihar threw up a hung House. Anticipating that there may be horsetrading if the single largest party (which was in a minority) was asked to form a government, he elected not to call anyone at all.

Rather than allowing an unstable government, Singh invoked Article 356 of the Constitution to impose President’s Rule on Bihar and asked the parties to return to the electorate for a fresh election.

This was slammed by the Supreme Court in a judgment, albeit with a dissenting view, 3:2 in 2006. “It is a clear case where attempt was made to, somehow or the other, prevent the formation of a government by a political party — an area wholly prohibited insofar as the functions, duties and obligations of the governor are concerned. It was thus a wholly unconstitutional act,” the Supreme Court Bench ruled, while two judges said there was nothing wrong in what the governor had done.

But there are other orders in other situations. All that the Constitution spells out is what the President/Governor is prohibited from doing: using their discretionary powers to prevent a government from being formed.

As to how a government should be formed, the President is guided only by precedents.

The first such, quoted by constitutional expert HM Seervai, relates to the first minority Labour government in England in the 1920s.

Conservative Prime Minister Stanley Baldwin went to the elections on the issue of protective tariffs. The Conservatives were returned as the largest minority with Labour second and Liberals third. The electorate showed that it did not want a Conservative government but no other party was returned with a majority, either.

A pact between the Conservatives and the Liberals would have been politically cynical. So, Labour as the second largest party was called to form the government with what today, India would call issue-based support from the Liberals, till 1924.

In India, a similar situation arose in 1967 in Kerala. The Congress was reduced to a minority and a combination of different shades of Communist and non-Congress parties returned in Kerala. The coalition of parties in Kerala were asked to form the government.

In a judgment in 1996, the Allahabad High Court said that the single largest party although in a minority needs to satisfy the Governor that it would be “in the position to win the confidence of the House”.

All that the President of India and the Governor in the state needs to establish is that in opting to call a coalition of parties, they have gone through a proper process of consultation.

This means when the biggest constituents in the United Progressive Alliance (UPA) and the National Democratic Alliance (NDA) meet the President, they must have a signed list of MPs, supporting their claim, or some such similar arrangement.

What might be different from previous occasions is that following this elections, one group of parties might meet the President to say that they will support neither of the two biggest parties.

In that case, the President can call a session of the House and send a message to it asking it to elect any one among them as the Prime Minister, under Article 86 (2) of the Constitution.

So if you’ve been elected to the Lok Sabha, you could have a stab at the job too!

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