Hyderabad: The Constitution does not have clear guidelines on who the President at the Centre or the Governor in a state must invite to form the government in the event of a hung House, making it a tricky affair. The Constitution also does not specify norms on how to treat newly-elected legislators who defect even before the House is formed.
Both these issues have come into the limelight following the defection of two new legislators, and the Governors in Goa and Manipur inviting the BJP, which was not the largest party, to form government.
The then President R. Venkataraman had created a precedent by inviting the Congress — the single largest party after the 1989 elections — on two occasions before inviting V.P. Singh and, when his government fell, Chandrasekhar to form the government.
Only when Rajiv Gandhi rejected the offers both the times did Venkataraman invite V.P. Singh and Chandrasekhar. When President Shankar Dayal Sharma followed the precedent in 1996 by inviting Mr Atal Behari Vajpayee to form the government, the Congress and non-BJP leaders criticised him. They said Sharma had not verified the numbers to ensure stability of the government before inviting Mr Vajpayee.
President K.R. Narayanan started exploring an alternative to ensure stability by insisting that he be shown the numbers. In Goa and Manipur, the Congress is criticising the Governors for not inviting its leaders though it emerged as the largest party in the two states.
The issue was discussed by the Constituent Assembly when the Constitution was being drafted to bring specific guidelines for the President and Governors on the matter.
But chairman B.R. Ambedkar said there should be no such guidelines, and the draft note was dropped. After more than 70 years of framing the world’s largest written Constitution — that has been amended more than 100 times — there are still no specific guidelines for the heads of state.
Even on the anti-defection law, where the Speaker decides on defections, there are no specific provisions made out on how long the Presiding Officer can sit on a ruling.
The defection of Mr Shyam Kumar Singh of the Congress and Mr Robindro Singh of the Trinamul to the BJP in Manipur before the House was formally formed is being criticised.
The anti-defection law is silent on when it comes into effect — from the time the legislator is elected or after the legislator takes oath in the Assembly as member of the House that it is constituted by the Governor. There are arguments supporting both sides. Section 2(1)(A) of the anti-defection law, 1985 mere states that if a member of a political party voluntarily gives up his membership, he is liable for action.
This could mean that a candidate, who takes his oath on the Constitution at the time of filing his nomination papers subscribing his affiliation to a particular party, is bound by this Section after getting elected as legislator. This has to be decided by the Speaker, who belongs to the ruling party and normally toes the line of the party bosses in such issues.
