How will the President pick India's next PM if there is no clear mandate?

Despite the setting up of a number of commissions to address the issue of choosing the next man to run the country, several grey areas persist

About 40 years ago, the then President of India, Neelam Sanjiva Reddy, appointed Charan Singh as the Prime Minister of India, days after Morarji Desai failed to prove majority in the Lok Sabha. Singh belonged to the same party as Desai, which had more than half its members in the Lok Sabha at that time. This was the first instance of the President using his discretionary power to appoint a PM when another had lost confidence of the House.

Then, in 1996, Shankar Dayal Sharma invited Atal Bihari Vajpayee, leader of Bharatiya Janata Party (BJP), the single-largest with 163 seats, or 33 per cent of the Lok Sabha, to take oath as PM. But failing to prove majority in the floor test, Vajpayee had to resign as PM in 13 days.

Come 2018, exactly a year ago, the Karnataka assembly election resulted into a fractured mandate, with BJP winning 104 seats, nine short of majority in the 224-member legislature. Though the legislature party leader BS Yeddyurappa was invited by the Governor to take oath and prove majority within 15 days, the Supreme Court intervened, and hearing a writ petition, reduced the time to prepare for the floor test to just one day. Yeddyurappa resigned before the floor test, paving the way for the post-poll coalition of Congress and the Janata Dal (Secular) to lead the state government. 

The reason for spelling out these examples is the variety in which, across federal levels and successive generations, governors and presidents have handled a hung assembly or parliament. The methods have been arbitrary, ranging from illogical use of discretion by President, to judicial activism that surprised the status quo of the time. 

From no mention in the Constitution, to recommendation of several commissions, to the outcomes from judicial interventions, some conventions have been arrived upon. These give the highest preference to a pre-poll alliance of political parties, followed by the single-largest party, followed by post-poll alliances who stake claim with full or outside support of constituent parties. But how did we arrive at this point? 

The Indian constitution, or the Westminster model of parliament that the country has adopted, surprisingly says nothing about legitimate formation of government after election results are declared. The Indian Constitution does not say a word on “how” a PM (or a chief minister) should be elected. What it says in very limited words are the following two lines: 

Constitution silent on method of PM’s appointment

Article 75 (1): “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.” 

Article 75 (3): “The Council of Ministers shall be collectively responsible to the House of the People.”

This shows, quite contrary to intuition, that the Constitution does not define “majority” or the “half-way mark” as any “requirement” for choosing a prime minister. Neither does it give credence to terms such as “hung assembly” or “fractured mandate”. But it also says that the council of ministers, or the cabinet led by the PM, is “collectively responsible” to the Parliament. 

Put it another way, achieving a full majority was never enshrined in the Constitution. And the President became the de facto institution to “appoint” the prime minister, without any rule. As all governments till 1979 were majority governments—the case where a single party won more than half of the seats—the leader of that party became the PM. The President used his discretion for the first time to elect Charan Singh as PM in 1979. 

P D T Acharya, former secretary general of the Lok Sabha secretariat, maintains that the two aforementioned sub-provisions under Article 75, when read together, ensure that the Prime Minister so appointed by the President commands majority in the House. 

“Article 75 ensures that the President will appoint only such person, who will be command majority in the House. President’s discretion is bound by constitutional principles that ensure majority,” he told Business Standard. 

After that, the instances of not having clear majority, and the use of discretion (by President or the Governor) only grew, and more so in states than the Centre, due to their sheer number. This led the Indira Gandhi government to form a commission under Justice R S Sarkaria to look into the matter. 

The Sarkaria Commission recommended a set of rules for the Governor of a state to elect the Chief Minister, in a logical order, where alliance formed before the polling was given precedence over single-largest party, which was in turn favoured over a post-election alliance.

Order of preference: Sarkaria Commission

1. An alliance of parties formed prior to the elections. 
2. The largest-single party staking a claim to form the government with the support of others, including “independents.”
3. A post-electoral coalition of parties, with all partners in the coalition joining the Government.
4. 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. 

But states still remained under the control of the Centre through the use of “President’s rule” weapon. This was followed by the Supreme Court delivering the S R Bommai judgement, which reiterated the role of Governor and the importance of “single largest” party in case there is not majority.

Critical of the commission’s view, constitutional expert Shubhankar Dam, professor of law and governance at University of Portsmouth in the UK, said that no such sliding scale can take care of all possibilities that can happen in the Indian electoral scenario. He therefore thinks that President’s good judgement is enough when it comes to appointment of PM, provided the President discharges her/his duties properly. 

“All the possibilities simply cannot be foreseen. Codifying limited possibilities to restrict the discretion of the President is unlikely to help,” he told Business Standard. 

The Manmohan Singh government too delved into this matter, and set up the Punchhi Commission. Following the Sarkaria Commission’s line of thought, it too gave an order of preference the Governor should exercise. It recommended the consideration of a “pre-poll” alliance as a single-party when it comes to electing a CM. Its order was similar to the older Commission, but clearer. The Punchhi commission, in addition, also recommended that the government of the time should amend the Constitution to include clear rules for appointment of CM by the Governor. Had it been implemented, it would have had implications on the discretion of the President in appointing the PM as well. 

Order of preference: Punchhi Commission

• The party or combination of parties which commands the widest support in the Legislative Assembly should be called upon to form the Government.

• If there is a pre-poll alliance or coalition, it should be treated as one political party and if such coalition obtains a majority, the leader of such coalition shall be called by the Governor to form the Government.

• In case no party or pre-poll coalition has a clear majority, the Governor should select the Chief Minister in the order of preference indicated below: 

• The group of parties which had pre-poll alliance commanding the largest number
• The largest single party staking a claim to form the government with the support of others
• A post-electoral coalition with all partners joining the government
• A post-electoral alliance with some parties joining the government and the remaining including independents supporting the government from outside

In the current situation, the BJP-led National Democratic Alliance has fought the election under the leadership of current PM Narendra Modi. The pre-poll coalition (NDA) includes parties such as Shiv Sena, Shiromani Akali Dal, All India Anna Dravida Munnetra Kazhagham, Janata Dal (United), among others. 

If the seats won by the pre-poll coalition emerges as the highest number among other such pre-poll alliance groups, the President is most likely to call the NDA to take oath and prove the confidence of the Lok Sabha in coming days. However, if any other pre-poll alliance, such as the one forged by the Congress, Telugu Desam Party, Nationalist Congress Party and the DMK gains an edge over the NDA, the President will most likely appoint the leader of this Opposition front as the PM, with a requirement to prove majority within a stipulated time. 

However, there is no codified rule that stops the President from inviting the single-largest party to form the government even if another pre-poll alliance group is stronger than the former. For example, if BJP turns out to be the single-largest party as the exit polls predict, and the Opposition alliance garners more seats together than BJP alone, the President can still invite BJP to form government. 

This might be recalled from the recent actions of Governors during state assembly elections in 2017. In both Goa and Manipur, the Congress had emerged as the single largest party, ahead of the BJP. Yet, the Governors in both the cases invited the post-poll coalition of BJP and a regional party to take oath as ministers, trumping the recommendations of the two Commissions. This had happened in Jammu & Kashmir in 2002, and Jharkhand in 2005, and Delhi in 2013, too. Such a decision happening after the results on May 23 cannot be ruled out.

Judicial intervention is a point in case, in this regard. For the first time in 2018, the apex court reduced the time awarded by the Governor to the single largest party to prove confidence in the assembly in Karnataka. Though this cannot be taken as a precedent, as it was not a substantive ruling. 

B R Ambedkar, chairman of the drafting committee of the Constitution, made it clear in the debates that preceded its completion: “With regard to the Prime Minister, it is not possible to avoid vesting the discretion in the President,” he said in December 1948. He meant that this level of discretion has to be vested under the President’s powers, and that there needs to be trust in the institutions of the President and the Prime Minister.

“The Prime Minister is really the keystone of the arch of the Cabinet and unless and until we create that office and endow that office with statutory authority to nominate and dismiss Ministers there can be no collective responsibility,” he said later in the debate.