Neena Vyas

The urge of political parties to extract victories from electoral defeats has prevented them from thinking about how to protect high constitutional offices from allegations that rob them of their prestige.

In an increasingly contentious and fractured polity, it is time to remove some of the irritants. This has become all the more necessary when political parties have convincingly demonstrated they will go to any lengths to embarrass their rivals even if it means diminishing the prestige and authority of constitutional offices. The point-counterpoint allegations hurled recklessly against the presidential candidates in the ongoing electoral process is there before the people.

It is a matter of record that the two largest political parties expressed themselves against giving a second term to sitting Presidents — the Bharatiya Janata Party opposed a second term for K.R. Narayanan in 2002 and the Congress opposed another term for A.P.J. Abdul Kalam in 2007— pointing out that only Rajendra Prasad was given a second term. The Constitution is silent on this subject — it does not bar a second term. But there is nothing to prevent political parties from building a consensus and amending the Constitution to make clear that no President will get a second term.

Jawaharlal Nehru’s biographer, S. Gopal, records that the first Prime Minister was not at all keen on Rajendra Prasad getting a second term. He wanted the no-second-term precedent to be established straightaway. It did not happen because Nehru was outnumbered in the then Congress parliamentary party, with Maulana Abul Kalam Azad leading the charge in favour of Rajendra Prasad.

If Nehru had had his way or if parties had agreed on the no-second-term principle later, the country would have been saved the spectacle of President Kalam expressing his willingness to contest for a second term if there was “certainty” of a positive result in his favour. He became the target of retorts from seasoned politicians such as Sharad Pawar who pointed out that those who want to enter the electoral ring should not expect guaranteed results.

It is clear the Constitution does not conceptualise the President’s office as a rival centre of power. He is meant to act with the “aid and advice” of the government. But the President and the Governors enjoy wide discretionary powers when it comes to government formation, and this is at the heart of the tussle in the presidential election.

The coalition age is here. Elections often do not throw up a single party as the clear winner. This has happened at the Centre repeatedly since 1989 and frequently in the States. The President or the Governors, as the case may be, are then called upon to use their judgment while exploring government formation.

Their job is easy when a group of parties with a clear majority comes together, before or after the electoral process, to stake claim of majority support. Trouble arises when that is not the case.

The intensely competitive political environment has sometimes led to ugly and unsubstantiated charges of partisanship on the part of the President or the Governors. Agreed guidelines could prevent avoid this. After all, political parties did agree on a moral code of conduct to be followed during the electoral process, and this has worked well although it does not have any statutory backing (later it was upheld by the Supreme Court but has not yet been enacted as law).

The country could have done without some of the situations witnessed in the last few years. After the Lok Sabha election in 1996, the BJP emerged as the single largest party and President Shankar Dayal Sharma “appointed” Atal Bihari Vajpayee Prime Minister. The government lasted just 13 days. In other words, a government that had no legitimacy and no majority support in Parliament ruled the country for 13 days. An angry delegation of MPs of the United Front (a coalition of parties) and the Congress, which decided to give outside support to the Front, marched to Rashtrapati Bhavan to demonstrate their majority. The President’s decision came in for sharp criticism as it became clear to one and all on the very first day of the Vajpayee government that parliamentary arithmetic favoured the United Front.

Ensuring transparency

President Narayanan did not repeat that mistake. In 1998, when the BJP once again emerged as the single largest party, Mr. Narayanan insisted on asking Mr. Vajpayee to produce letters of support to establish his majority.

After days of suspense — the All India Anna Dravida Munnetra Kazhagam took its time giving the letter — Mr. Vajpayee took the oath of office as Prime Minister. Mr. Narayanan also ensured transparency by issuing regular communiqués, spelling out what he was doing and why.

However, in the States Governors had apparently not learnt the lessons from the 13-day government episode. In 2005, the decision by Jharkhand Governor Syed Sibtey Razi to invite Jharkhand Mukti Morcha leader Shibu Soren to form the government after the Assembly election came to grief. In fact, soon after the results were out, it was the BJP that managed to get enough support to go just past the majority mark. Mr. Soren had to make way for the BJP’s Arjun Munda in a matter of days.

In a somewhat similar case, Bihar Governor Vinod Chandra Pande invited Nitish Kumar of the Janata Dal (United) to form a government after the results of the 2000 Assembly elections. When Mr. Kumar was given the oath of office he was far short of the majority mark of 163; he had the support of only 146 MLAs. The Nitish Kumar government resigned within seven days, before facing a vote of confidence, making way for Rabri Devi of the Rashtriya Janata Dal.

There is also the episode involving Bihar Governor Buta Singh in 2005. As no clear majority emerged after the Assembly election he recommended President’s Rule. Had this been done in a transparent manner, no one could have faulted him. But the charge that was levelled — and it stuck — was that he suggested this only when it became clear that Mr. Nitish Kumar was about to get the numbers to claim a majority. President’s Rule was imposed in haste with the proclamation signed by President Kalam while he was on a visit abroad. This invited widespread criticism, notwithstanding Mr. Buta Singh’s excuse that he had tried to prevent horse-trading.

Some of these unconstitutional governments — in that they did not enjoy a majority in Parliament or the Assembly even for a day — need not have been in office at all if the President or the Governor, as the case may be, had used their discretionary powers in a more transparent manner in accordance with a set of agreed guidelines. The ugly attacks on high constitutional offices could have been avoided.

However, it seems the urge of political parties to extract victories from electoral defeats has prevented them from sitting down to think about how to save high constitutional offices from the kind of allegations that have already robbed them of their prestige and authority.

The polity is badly fractured leading often to election results that do not throw up a clear winner. Political parties are not able to resist the temptation to influence use of gubernatorial discretion to their own advantage. In this situation some accepted norms and guidelines for government formation could help to reduce the friction in the political arena. After the contentious presidential election — and clearly parties had their eye on the 2009 Lok Sabha election — the time may not be far off when similar accusations of partisanship are hurled at Rashtrapati Bhavan.