March 9, 1998

With a hung House more than likely, the spotlight is on the President and the options before him.

By Sumit Mitra

When people discuss Kocheril Raman Narayanan, the 78-year-old President of India, the attribute that is frequently bandied about is: cautiousness. His reputation of prudence even surpasses his impressive record as a scholar, diplomat and politician. On November 28 last year, only four months after Narayanan had assumed office, his legendary poise was put to the test by the Congress' withdrawal of support to the United Front (UF) government and resignation of Prime Minister

Inder Kumar Gujral. A more impulsive President would probably have dissolved the Lok Sabha right away. But Narayanan waited for six days, meeting all political heavyweights, even bit actors, parleying with a battery of legal and constitutional experts, and exploring every possible way to avert a mid-term poll. Finally, only after being convinced that "the people of India needed a reprieve from political instability", he ordered a general election on December 4.

This week, as results of the polls pour in, the President's famous cautiousness is all set to face another gruelling test. His life will, of course, become simpler if any of the pre-poll alliances -- BJP and allies, Congress and allies or the UF -- cross the half-line at 272 to stake a decisive claim. If that doesn't happen -- and that's a small if -- the President will have to tear every strand of his silvery hair to find a ruling combination that -- in the measured prose of the Rashtrapati Bhavan under him -- "is lawful, viable and enjoys a reasonable prospect of stability".

For the new grouping to be lawful, there can be no floor-crossing by less than a third of a party's strength, which is the required threshold under the anti-defection law. To be viable, the combination should not be so motley that it is unable to make and administer laws. Viability also demands a cushion of at least 15-20 seats over 272. To pass the stability test, the constituents must enter into an iron-clad contract of mutual support. A tough prescription indeed.

Is he obliged to invite the single largest group?

The Constitution, comprising 395 articles and 12 schedules, nowhere deals with political parties, except in the Tenth Schedule relating to provisions against defection. The Constitution says the prime minister shall be appointed by the President, and the council of ministers "shall be collectively responsible to the House of the People (Lok Sabha)". Responsibility to the Lower House implies commanding a majority. In a hung Lok Sabha, the single largest party or group has a better chance to command a majority. Which explains the convention of the first offer going to the single largest party. After the 1989 elections, President R. Venkataraman invited V.P. Singh to form the government only after Rajiv Gandhi had refused the first offer extended to him. In 1996, BJP leader A.B. Vajpayee similarly got the first call as the leader of the single largest party.

Will Narayanan honour this convention by giving the single largest grouping a go? "Yes, he will," says constitutional expert Fali S. Nariman, "if he (Narayanan) wants to be above controversy." However, Nariman has a qualifier: "There are no absolutes in this ... The overriding factor is who, in the mature judgement and opinion of the President, will be able to command a majority." But if the BJP alliance falls short of a majority even by a narrow margin, and Vajpayee is invited to assume office and then face a trial of strength in the Lok Sabha, can the President expect a lawful, viable and stable government to emerge?

If the 13-day rule of the BJP is taken as an example, there is little chance of its doing better this time round. In its 1996 tenure, the BJP showed an impressive deftness at using television as a medium to mould post-poll public opinion in its favour. The idea was to use the televised speeches in Parliament, and the talk shows, to initiate a re-thinking about the BJP. A new alliance would emerge in the post-election weeks, it was hoped. But the BJP's fortnight-long stay in power could hardly create any popular pressure on the newly elected MPs to reconsider their stand of opposing the party. In the coming weeks, if the BJP and allies emerge as the single largest group and yet fall short of a majority, and if the party is called to pass the test of strength, it will once again begin a post-poll dialogue with the electorate through the media. Its chances of success in the second round will depend greatly on the deficit of seats from the half-way mark of 272. In 1996, it was 80 seats short of a majority. If it can narrow the gap to 30 or 40, the first call from the Rashtrapati Bhavan can bring to the BJP the advantage of dealing first.

However, the entire exercise revolves round the question of whether the President will call the single largest party (or entity) first. Not doing so will be -- as Nariman has said -- "controversial". It will no doubt mark a clear break from convention, but there is not much legal substance in this convention. Supreme Court lawyer and former additional solicitor-general Abhishek Manu Singhvi dismisses it as a British practice transplanted to India. "The established convention and practice in this regard is that the President of India, as the sovereign in England, should call that group, party or convention which in his opinion is most likely to form a stable government and, failing that, to call others in the line."

Says Singhvi: "The practice of calling the single largest group first has gathered sanctity because the text of the Constitution is silent on the subject." If the Constitution speaks, everything else has to fall silent. In the absence of a constitutional guideline, Narayanan is only likely to follow in his predecessor S.D. Sharma's footsteps by asking the single largest group to prove its ability to muster the required numbers. The alternative is a larger post-poll arrangement between the Congress and the UF, and a government of last resort, as Narayanan's predecessors found to their despair. These governments proved unviable and unstable.

Will he invite a post-poll alliance?

Speaking about conciliation with America, Edmund Burke said that all governments are founded on "compromise and barter". The words will have a ring of prescience if the Congress, 203 of whose 476 candidates have fought against the UF in the recent elections, start over again between them. "A post-poll alliance or coalition is as good as a pre-poll one," says Justice (retd) Bhaktawar Lentin of Antulay case fame. But that's the legal construction, based on a constitution whose authors were not familiar with the deals that could be cut in smoke-filled rooms after elections.

However, the President may still give a nod to a post-poll Congress-UF alliance if the BJP, with its allies, fails to muster a majority or near-majority, and if the Congress and UF leaders are quick enough to agree on two crucial issues -- the composition of the government and its leadership. That's easier said than done. Most of the UF partners are not willing yet to let the Congress into the cabinet room. And many Congress satraps are not only itching to return the compliment but would rather have the UF carved up to their liking.

Nevertheless, as Mumbai lawyer Iqbal Chagla says, "A post-poll alliance or coalition does not have the same sanctity or constitutional credibility as a pre-poll one." But "sanctity" can hardly be measured on a relative scale. It is preposterous to argue that the pre-poll BJP alliance, together with its 40 post-poll alliance MPs, will make a more sanctified team than 150 Congress MPs tied in a post-poll alliance with 130 UF members. Leading Supreme Court lawyer Kapil Sibal says that the President will be perfectly justified in disregarding the "stale and pernicious" convention of inviting the leader of the single largest party or group to form the government. "If the Congress meets the President with written assurance of support, or participation in the government, from each constituent of the UF, and if the Congress and the UF together command a majority, it will only be fair of the President to give the Congress the first call."

Sibal, who defended Justice G. Ramaswamy in his impeachment case in the Lok Sabha, is a Congressman, while Arun Jaitley, yet another leading light of the Supreme Court bar, has ties with the BJP. Jaitley is a strong advocate of the view that the President should first call the single largest group. "He (Narayanan must call the largest group first, unless there are good reasons for not doing so," he says. The difference in view between Jaitley and Sibal only underlines the strong expectation that has built up in the BJP circles that the party (and allies) will have the largest number, and the Congress belief that, together with the UF, it will occupy more than half of the seats in the 12th Lok Sabha. However, lawyers tend to overlook the essentially fractious nature of the Indian polity which makes inter-party arrangements, particularly the post-poll ones, inherently vulnerable to a clash of interests, followed by destruction. That's the fate the Charan Singh government met with in 1979, followed by the collapse of the governments of V.P. Singh (1990), Chandra shekhar (1991), H.D. Deve Gowda (1997) and Gujral (1997).

Jaitley says that the post-poll promises of support "and all that jazz of joint declarations" are not of much worth. "What is important is the President's conviction." But what can be the material basis of his conviction that the resultant coalition, after it is lawfully put together, will be viable and stable? In many western democracies, notably in the Scandinavian countries, governments survive after losing the majority because the opposition would not normally pull the rug from under the ruling party's feet before the end of its term. In India, toppling governments is a political blood sport. So a Congress-UF coalition, however justified in arithmetical terms, runs the risk of meeting its predecessors' fate.

Narayanan is a pacifist at heart. In his address to the nation on the eve of Republic Day, he quoted the ringing lines of Bhishma in the Mahabharat: "Leaders of the republic should unitedly pursue the interests of the republic as a whole, otherwise discord leads to ... disastrous consequences." For the Kurus and the Pandavas, Narayanan probably wanted the nation to read the Congress and UF.

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