With exit polls suggesting a hung House and the possibility of a minority government coming to office, constitutional lawyers say defections are now more difficult but not impossible.
The tenth general elections in 1991 resulted in a hung Parliament. P V Narasimha Rao became the leader of a 251-member Congress party to form a minority government in a 528-member House. Within two years, his government was faced with a no-confidence motion, which the Rao government won by 14 votes. How, it became clear later, when Speaker Shivraj Patil disqualified four MPs from the Ajit Singh faction of the Janata Dal for backing the Rao government in violation of the Anti-Defection Law framed in 1985.
Can this happen today? In 2003, Parliament approved a Constitution Amendment Bill, which bars defectors from holding any office as a minister or any other remunerative post for at least the duration of the remaining term of existing legislature or until the next elections, whichever is earlier.
After 1985, if a third of the legislature party decided to defect, it was treated as legal. In 2003, defection itself became illegal with the deletion of para III of the Anti-Defection Law.
If a minority government is sworn into office following the election results on 16 May, it cannot expect to make up the deficiency in numbers by splitting parties through bribes in the form of ministerships or money and getting MPs to switch parties after they have taken oath. To do this, MPs would have to resign their seats.
Constitutional lawyer Rajeev Dhawan adds that while there are limits on defectors, there are enough loopholes in the law to beat these constraints. Senior Supreme Court lawyer KK Venugopal also says that the Anti-Defection Law applies only from the time an MP becomes a Member of Parliament, not from the time he is elected. However, once he takes oath, it is impossible for him to switch parties without resigning his seat.
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Another judicial reform around the same time made it mandatory to limit the size of the government to 15 per cent of the size of the legislature, subject to a minimum of 12. So there are limitations on what — and how much — a party can offer MPs as the price of their support.
If the outcome of an election is such that a presiding officer cannot decide who should be given the chance to form a government, the SR Bommai judgment in 1994 clearly establishes that the only way to do this is through a test on the floor of the House. The Bommai ministry in Karnataka was dismissed under Article 356 of the Constitution, without being given a chance to establish its majority.
In that case, Justice PB Sawant said that the actions of the President as well as the Governor smacked of mala fides. A duly constituted ministry was dismissed on the basis of material which was neither tested nor allowed to be tested.
In the light of the Bommai judgment, constitutional expert PP Rao argues that a floor test is the only way of determining which group is most representative of the will of the people, not blindly calling upon the single largest party.
Rao says this route was tried by President Shankerr Dayal Sharma in the case of the Atal Bihari Vajpayee-led government in 1996, which lasted just 13 days and was defeated on the floor of House, leading to HD Deve Gowda becoming prime minister with the help of the Congress and causing a series of unstable governments coming to power till 1998.
Sharma’s successor, KR Narayanan, diverted from this precedent — if no party or pre-election coalition had a majority, then a person would be appointed prime minister only if he was able to convince the President (through letters of support from allied parties) of his ability to secure the confidence of the House.
Narayanan gave Vajpayee 10 days to collect letters of support for the National Democratic Alliance (NDA). Thirteen months later, when Jayalalithaa withdrew support to the NDA, it was he who advised Vajpayee to go for fresh elections.
Therefore, on May 16, defection as a route to getting a majority is ruled out. A floor test is a necessary but not the deciding element that President Pratibha Patil will weigh in calling upon individuals to form a government if the Lok Sabha is divided into three distinct groups.