The unwritten rule on government formation in a hung legislature — supported by precedent — is quite clear. The party that secured the highest number of seats would be invited first to form the government.
The winners formed the government in the states they won convincingly. In Goa and Manipur, the loser stole the election.
The five state elections (Uttar Pradesh, Uttarakhand, Punjab, Goa and Manipur) had a common feature: it was a vote against the incumbent government. The BJP lost Punjab but won UP and Uttarakhand convincingly. The Congress lost Uttarakhand but won Punjab convincingly. The Samajwadi Party lost Uttar Pradesh. Goa and Manipur delivered indecisive verdicts.
The winners formed the government in the states they won convincingly. In Goa and Manipur, the loser stole the election. The unwritten rule on government formation in a hung legislature — supported by precedent — is quite clear. The party that secured the highest number of seats would be invited first to form the government. If there was a pre-poll alliance and that alliance had secured the highest number of seats, the alliance parties would be invited to form the government. By that rule or convention, the Congress should have been invited to form the government in Goa (17/40 seats) and in Manipur (28/60 seats). Obliging the loser
The BJP was brazen and unapologetic. The governors of the two states were happy to oblige the BJP which came second both in Goa (13/40) and in Manipur (21/60). That is why I say the election in the two states was stolen. The precedents that deserved to be followed involved the Congress and the BJP. In the 1989 election, the Congress slipped badly, but it was the single largest party with 197 seats. The Janata Dal was a distant second with 143 seats. The President, R Venkataraman, invited Rajiv Gandhi, the leader of the single largest party, to form the government. Rajiv Gandhi politely declined, taking the view that the verdict was against the Congress government. He set a fine example. Thereafter, the President invited V P Singh to form the government, and the rest is history. All three key players — R Venkataraman, Rajiv Gandhi and V P Singh — played according to the rulebook. The President did not act in haste, the process took a few days, but no calamity fell on the nation during that period.
There was a sequel after about nine months. The Janata Party split, V P Singh resigned, and the President began the search for a new government. Once again, he invited Rajiv Gandhi. Once again, Rajiv Gandhi declined and suggested that Chandra Shekhar, the leader of the break-away group of the Janata Dal, may be invited and the Congress would support him. Always the cautious player, R Venkataraman took a letter from the Congress promising support to Chandra Shekhar and then invited the latter to form the government. The next precedent was even more compelling. In the 1996 election, the BJP emerged as the single largest party (161 seats), but it was quite apparent that the BJP could not cobble together a coalition or prove its majority in the Lok Sabha. The Congress (140 seats) offered outside support to a non-BJP government. Yet, Mr A B Vajpayee, as the leader of the single largest party, got the invitation. His government lost a vote of confidence on the 13th day.
Mr H D Deva Gowda got the next invitation. Convention, now law The only exception to the rule — or convention — that the leader of the single largest party should get the first invitation to form the government is in the case of a pre-poll alliance. A pre-poll alliance can be regarded as one political group or entity and, if it emerged as the single largest group, it would earn the right to form the government. The case of a post-poll alliance is different. A post-poll alliance can indeed be formed, but it will get the right to form the government only when the single largest party or a pre-poll alliance has failed in its attempt to form a government.
Besides, the principles set out above are no longer mere conventions or moral prescriptions. The principles are the law according to Mr Fali Nariman, an acknowledged expert on constitutional law. Five-, seven-and nine-judge benches of the Supreme Court have affirmed these principles. Reference may be made to the Rameshwar Prasad (2006) case and the Nabam Rebia (2016) case. Mr Nariman rued “why the Supreme Court’s order on Tuesday (March 14) completely missed this point”.
Mischief at large Goa was an egregious case. The incumbent BJP government had suffered a crushing defeat. Six of the eight ministers, including the Chief Minister, had lost their seats. The politically correct thing to do was to sit in the Opposition. Marshalling its seemingly limitless resources, in a matter of hours, the BJP inveigled small parties into its net, and staked claim the day after the results were officially declared. An obligated Governor was too happy to recognise an opportunistic post-poll alliance that included the Goa Forward Party (GFP) that had run a robust anti-BJP campaign and fought the election as an undeclared ally of the Congress! The GFP got its reward — all three GFP MLAs were sworn in as ministers!
Manipur was a similar case. The Congress government had been defeated but the Congress was the single largest party. Therefore, the Congress should have been invited. Of course, aberrations have occurred in the past, but that cannot be a reason to commit the mischief again. The BJP’s victories in UP and Uttarakhand were sufficient to seal its place as the dominant political party in India today. There was absolutely no need to bring Goa and Manipur into the BJP column. By stealing the elections, the BJP has diminished India’s reputation as a democracy.