COLUMN: Legally Tenable but Morally Untenable

The decision of the Supreme Court not to stall the swearing in ceremony of Manohar Parrikar but direct a floor test by Thursday was anticipated by those who are aware of past precedents on the matter. When no single party gets a clear majority in the Assembly (one desists from using the word Hung Assembly as one is not sure who is being hung!), several conventions have evolved on the right step to take.

The claim that the single largest party has the first right to make an attempt to form a government was a convention that was adopted by both President Venkataraman when Rajiv Gandhi was invited to form a government (which he politely declined) and by President Shankar DayalSharma when Vajpayee was invited to form a government, which lasted for just 13 days as it was unable to prove its majority and resigned.

Subsequently, Presidents have been more cautious in applying this norm. President Narayanan, initiated the practice of asking a potential Prime Minister to prove to him that he had a majority by marshaling letters of support that added up to a majority. The BJP led NDA government under Vajpayee came to power through this route in 1998. What is true at the national level also holds good for the states. Governors have in the past been more controversial in exercising their discretion and their decisions have often been mired in controversy. This time around the Goa Governor has been at the centre of a controversy on the way she dealt with an electoral mandate that produced no clear winner. The Supreme Court stand would make the Manipur Governor's job much easier.

What is important to record is that parliamentary conventions would require the Governor to call the leader of that party/alliance who they believe enjoys a majority in the House. When the majority involves apost-election coalition it could well be that the Governor fixes a time frame within which the Chief Minister is required to prove that they enjoy majority support. Merely, being the single largest party does not give a party the right to claim that they must be invited first to form the government.

The embarrassment that the President had to face when he invited Vajpayee to form the government in 1996 and the government resigned in 13 days as it could not prove its majority would be fresh in the minds of decision makers. In an Assembly with no clear majority, the convention clearly needs to be that the party/alliance which is able to secure written support from a majority of the legislators should have the first right to form a government. This precedent has in that sense been followed in Goa and will hopefully also be followed in Manipur. If a leader is able to demonstrate to the Governor through letters of support, that he/she enjoys a majority, healthy constitutional practices would mandate that such a leader be called to form the government with a condition that they prove their majority within a specified period of time. Thus, constitutionally and legally the decision of the Goa Governor seems within the framework of the law and the constitution. In Manipur too one expects a similar process to be followed.

There is of course another question that still needs to be addressed - the moral question. Politics and governance should not merely be about the law but also about moral principles. In Goa, the BJP was in power and in the election its numbers in the legislature have fallen. More specifically, its Chief Minister lost his own seat. This raises a question of ethics. Is it right for a government whose Chief Minister was defeated and had a much reduced strength in the Assembly seek to return to power. Let's look at its two key allies. The MGP had broken off from the BJP and fought the election as part of another alliance.

Post elections, you set aside your campaign rhetoric and speeches and tie up with the party you spoke strongly against. The Goa Forward Party led a campaign that was critical of the BJP and now is an ally in government. The BJP has clearly lost the moral edge and its promise of being a party with a difference sounds shallow and hollow after the political gymnastics one saw in Goa.

On the other hand, in Manipur one could argue that there was clearly an anti-establishment vote against the ruling Congress which has been in power for three terms. Having fallen short of a majority, the Congress should have preferred to sit in the Opposition like its leader Rajiv Gandhi did in 1989. The coalition that the BJP has been able to stitch together (which by itself raises several ethical questions if one were to look at the rainbow of political colours that the BJP's allies bring to the coalition), if it crosses the half way mark needs to be given the first opportunity to form the government and prove its majority.

Events in the last few days have raised important legal questions on government formation when no party secures a clear majority. It would be more important to also debate the moral question that the opportunistic alliances that have been crafted would raise. For short term gain, should political parties ignore ethical norms - the journey clearly should be as important as the destination.

(Dr Sandeep Shastri is a political scientist)