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How is a Prime Minister appointed when there is a hung Parliament?

Out of 14 Lok Sabhas elected since Independence, only eight have run their full term of five years. Virtually every pre-poll survey has predicted that none of the three fronts, the United Progressive Alliance, the National Democratic Alliance, and the Third Front will secure a majority in the 15th Lok Sabha.

In fact, every general election from 1989 to the Lok Sabha has thrown up a fractured verdict. It is under these circumstances, when the Lok Sabha election does not produce a conclusive result because none of the parties or pre-poll formations secures a clear majority in the election, that the Constitution of India has empowered the President of India to decide in her or his discretion whom to invite to become the Prime Minister and form a government.

Article 75 (1) of the Constitution of India reads: “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.”

Normally, the choice of Prime Minister will be decided by the party position in the House of the People. However, if the party position is not clear, the President will have to decide in her or his ‘discretion’ whom to invite to become the Prime Minister. In the exercise of such discretion, constitutional conventions play an important role in guiding the President.

Constitutional conventions are rules of political practice that are regarded as binding by those to whom they apply. They are rules for determining the mode in which the discretionary powers of the crown (or of Ministers as servants of the crown) ought to be exercised (Dicey, Law of the Constitution, 10th edition, page 422). However, they are not laws as they are not enforced by courts or by the Houses of Parliament (Collin Munro, Laws and Conventions Distinguished, 91 LQR- 218 (1975) @ 218). Conventions grow from longstanding accepted practices or by agreement in areas where the law is silent and such a convention will not breach the law but fill the gap. It is because the Constitution provides no guidance on who should be appointed Prime Minister that the conventions are adopted. Some of the characteristics of conventions are that, in most cases, they can be in general terms and circumstances because their application is uncertain and debatable, and that they are also not outlined in any document but develop over time and grow out of practice.

Even though our Constitution is bulky, certain aspects are left to conventions. One of them is the appointment of Prime Minister by the President. Most of our constitutional conventions are derived from the United Kingdom. However, the British precedents offer no specific answers to the problems raised by elections in India. In the case reported in S.P. Anand vs H.D. Deve Gowda (1996) 6 SCC 734, the Supreme Court has held that the British convention that the Prime Minister should be a member of either House, preferably the House of Commons, is not in our constitutional scheme.

The basis of political conventions in Britain in forming a Ministry is that the Queen’s government must go on and that the party that commands the widest support in the House of Commons must be called upon to form the government. When the first minority Labour government was formed, the Conservative Prime Minister, Stanley Baldwin, could not get an absolute majority even though his party returned as the largest minority, with Labour second and the Liberals third. The results clearly indicated that the electorate did not want a Conservative government but not decisively since no other party was returned with a majority. Since the Liberals had opposed the Conservatives on the major issues in the elections, it was thought that a coalition between Conservatives and Liberals would involve political cynicism. Labour, the second largest party, was called upon to form the Ministry, which carried on the government with discriminating Liberal support until 1924.

British constitutional history records that the crown has consulted the outgoing Prime Minister on some occasions, but it is not an invariable rule. Queen Elizabeth II went to hospital to see Harold Macmillan, who had resigned as Prime Minister, to ask him about his successor.

However, these considerations are not suited to a country like India with its diversity and plurality where the regional parties are making an impact on our political scene. In Halsbury’s Laws of England (4th edition, Volume 8, pages 540-541, paragraph 828), there is a reference to the part played by the sovereign in choosing the Prime Minister when there is no clear majority in the House of Commons: the sovereign must appoint as Prime Minister that member of the House of Commons who commands the confidence of the House.

In India, when the election results produce a hung Parliament, with no political party or pre-poll alliance getting an absolute majority, the task of the President bristles with difficulties since there are no established conventions that provide a clear answer. In the 1989 Lok Sabha election, no party secured a majority. The Congress with 194 seats was the single largest party in the House. So President R. Venkataraman first invited Congress party leader Rajiv Gandhi, who declined to form a government. Thereafter, the President invited the leader of the National Front, V.P. Singh, to form the government.

President Venkataraman applied what is called the “arithmetic test/objective test” of summoning the parties in order of their numerical strength. On May 15, 1996, President S.D. Sharma, going by the formula evolved by his predecessor, appointed A.B. Vajpayee as Prime Minister. The government fell within 13 days of its appointment.

This shows that being the leader of the single largest party does not necessarily mean that he or she will command majority support in the House. It is only the leader of the party or the leader of the group or formation who is able to secure the support of the House who should be invited to form the government.

However, the ascertainment of this support is not that easy since the relevant conventions are vague. The framers of our Constitution proposed instruments of instructions to guide the President and also Governors. Paragraph two of the proposed instructions to the President enjoined him to “appoint a person who has been found by him most likely to command a stable majority in Parliament as the Prime Minister.” However, the proposed instructions were dropped at the final stage of the proceedings of the Constituent Assembly (on October 11, 1949) because it was felt that they explicitly permitted the President to act on probabilities and were likely to mislead the President.

Since there appear to be no clear winners in the 15th Lok Sabha election, the role of the constituents of the Third Front will be crucial in deciding who will be the next Prime Minister. It is also a big question whether there will be post-poll unity among the constituents of the Third Front in the choice of the prime ministerial candidate. There is also a possibility of a candidate sponsored by the Third Front getting the support of either the UPA or the NDA.

President Pratibha Patil will have to act in her own ‘discretion’ and naturally she will take various factors into consideration. The primary factor will be her assessment of who as Prime Minister and which body of Council of Ministers will enjoy the confidence of Parliament in terms of Article 75 (3) of the Constitution, which reads: “The Council of Ministers shall be collectively responsible to the House of the People.” This leads to the question of which of the three groups — the UPA, the NDA, and the Third Front — will get the first chance from the President.

The following appear to be the options:

(a) If there is no single party with an absolute majority, the President may look for the leader of a pre-poll alliance that has a majority.

(b) If there is no such pre-poll alliance that has a majority, the President may invite the leader of the pre-poll alliance who is supported by a sufficient number of Lok Sabha MPs to command an absolute majority.

(c) It is only when options A and B are ruled out that the President may invite the leader of a post-poll alliance. The President will make sure that the groups or parties agree to some common programme or policies. The post-poll alliance must elect its leader before the President invites it to form the government.

(d) When options A, B, and C are ruled out, the President may send a message to the House asking it to elect its leader (to seek a vote of confidence). The Constitution Review Commission, headed by a former Chief Justice of India, M.N. Venkatachelliah, recommended this option.

(e) If the House also fails to elect its leader, the President may explore the possibility of installing a ‘National Government,’ in which all major political parties in the Lok Sabha may be represented. Such a government would only be a caretaker government for carrying out the day-to-day administration until the mid-term elections to the Lok Sabha are conducted.

(f) If there is no possibility of installing a ‘National Government,’ the President may call a mid-term election. But with around 714 million voters, conducting elections in India is prohibitively expensive. Further, there is no guarantee that after such a mid-term election there will not be a hung Parliament again!

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