T.R. Andhyarujina

The most challenging constitutional function of the President is to decide who should be Prime Minister when there is a hung Parliament. The events of 1989-1992, when President R. Venkataraman had the onerous task of appointing three Prime Ministers, provide guidance on how to decide on the choice of Prime Minister should the 15th general election produce a hung Parliament.

The most important function of the President under the Constitution is in the appointment of a Prime Minister when no party in Parliament has a majority. President R. Venkataraman, who died on January 27 this year, had the onerous task of appointing three Prime Ministers in two hung Parliaments during his tenure between 1989 and 1992. As the next general election looms close and there may be a hung Parliament, it is instructive to examine the basis on which he appointed the three.

President Venkataraman evolved a rule that in a Parliament where no party had a majority, political parties in order of their strength should be given the opportunity to form a government and the President was not to consider the viability of a government so formed. According to him, that was to be left to the Lok Sabha. He believed that this was supported by British Constitutional practice.

He applied this rule in 1989 when he appointed V.P. Singh the Prime Minister as he was the head of the second largest party group, the Janata Dal/National Front — after Rajiv Gandhi as leader of the largest party, the Congress party, on his suggestion declined to form the government. Likewise, following the outcome of the next general election in 1991, he appointed P.V. Narasimha Rao Prime Minister when the Congress party secured the largest strength but not a majority in the Lok Sabha. In between, in November 1990, he called upon Chandra Shekhar who defected from the Janata Dal to form a minority government with the support of the Congress party.

This view of President Venkataraman cannot be a prescription for all situations. Inviting the leader of the single largest minority party in a divided house without ascertaining the likely support to it in Parliament would be highly chancy. In the two cases of the appointment of V.P. Singh and P.V. Narasimha Rao, it was antecedently reasonably clear that the other parties would not, at least immediately, outvote the minority government. President Venkataraman was therefore on fairly safe ground in his decisions.

In cases where other parties in combination have declared their opposition to the largest party, it would be futile for the leader of the largest party to even meet Parliament and only to be defeated straightaway. This was demonstrably shown when President Shankar Dayal Sharma invited A.B. Vajpayee to be the Prime Minister in 1996 because he was the leader of the single largest party in the 11th Lok Sabha without the support of any major party. Mr. Vajpayee had to withdraw his motion of confidence in the Lok Sabha and resign within 13 days when defeat stared him in the face.

Later Presidents have not subscribed to the view of President Venkataraman. President K.R. Narayanan correctly added a qualification to calling the party with the largest strength at the time of the 12th Lok Sabha in 1998, which also presented a hung Parliament.

After sounding all parties, he called upon Mr. Vajpayee of the BJP to form the government. He rightly said at that time that the rule of giving the first opportunity to the leader of the largest number of seats “is not an all-time formula because situations can arise when MPs not belonging to the single largest party or combination can as a collective entity outnumber the single largest claimant.”

Similarly, President A.P.J. Abdul Kalam called upon Sonia Gandhi to form the government in 2004 after the 14th Lok Sabha election only after he had ascertained the support other political parties would give to the Congress party, which had secured the largest number of seats but not a majority.

However, President Venkataraman was on sound ground when he declined to heed the advice given in 1989 to him by several leading constitutional experts that the Congress should not be given an opportunity to form a government because it was “rejected by the electorate” by not getting a majority of seats. He correctly referred to the practice in the United Kingdom where an outgoing Prime Minister was reappointed by the monarch even when his party did not secure a majority in the election.

In November 1990, Mr. Singh resigned as Prime Minister when the BJP withdrew its support to the Janata Dal/National Front, leaving the President once again the difficult task of finding a party to form the government in a hung Parliament. The situation became highly complicated when Chandra Shekhar defected from the Janata Dal with more than one third of its members and held himself out to form the government. President Venkataraman consulted the Congress party and the BJP, both of whom declined to form a government. He then got an assurance from Rajiv Gandhi that the Congress party would give unconditional support to the Chandra Shekhar government.

He was faced with a dilemma: not being able to dissolve the house as the outgoing Prime Minister, Mr. Singh, had not asked for dissolution of the house; and not finding a person who could form the government except the Chandra Shekhar faction of defectors with the support of the Congress. He recorded in his memoirs that in desperation, he decided to “take a plunge for good or bad and to entrust the government to Chandra Shekhar and trust in God to save the Constitution.”

Within three months, Rajiv Gandhi withdrew his support to the government on the flimsy excuse of the Haryana police keeping surveillance on him. Thereupon Prime Minister Chandra Shekhar resigned and advised that the Lok Sabha be dissolved. Eminent constitutional experts told President Venkataraman that he was not bound by the advice of Mr. Chandra Shekhar. He disagreed with them and referred to the British practice of the monarch not rejecting the advice of the Prime Minister to dissolve the House even when he was defeated.

President Venkataraman therefore dissolved the Lok Sabha and fresh elections followed. This was the most dubious decision of his tenure. First, he could not have called upon Chandra Shekhar to form a government by rewarding defectors. Secondly, his view that a President could only dissolve the Lok Sabha if an outgoing Prime Minister had advised dissolution was unduly restrictive of the powers of the President in a crisis.

The events of 1989 to 1992 show that in the choice of a Prime Minister in a hung Parliament, the President must have independence, foresight, the confidence of all parties, and a basic knowledge of constitutional conventions to make a difficult decision on his or her own — an unenviable task for a constitutional head of state.

(The writer is a Senior Advocate of the Supreme Court and former Solicitor-General of India.)