He is also the co-petitioner in the Public Interest Litigation filed in the Supreme Court with regard to the controversy related to millions of rupees hidden in Swiss bank accounts.
He spoke to rediff.com's Sheela Bhatt on how the Constitution should be applied once the election results are declared.
How fast does the government have to be formed once the results arrive?
There is no provision in the Constitution as regards to when the government has to be formed or how much time it should take in its formation after the election.
The Constitution only speaks about the constitution of the House as soon as the election results are out. The Election Commission is supposed to send the list of elected candidates. Normally, it is sent to the Speaker or the secretary general of the Lok Sabha, who is a permanent office-bearer.
The recognition of that list itself constitutes the new House. Once that list is 'sent and received', it is duly notified by office of the secretary general and the House stands constituted.
The 15th Lok Sabha will be constituted around May 20 when the list of newly elected members will be sent to the Lok Sabha by the Election Commission.
The Speaker of the Lok Sabha continues till the first sitting of the new House. It is in the morning of the first sitting he ceases to be the Speaker and a pro-tem Speaker takes over. Five years from the date of the first sitting of the newly-formed House its term is completed and the House stands automatically dissolved.
So far it has never happened. The House is dissolved by a Presidential order before the date of normal dissolution. Sometimes it is a few days, a few months or a few years.
The Constitution says unless dissolved earlier the term of Lok Sabha should be five years.
This year I expect that between May 16 and May 20, the list will be sent to the Lok Sabha and the new House will be constituted. But for the constitution of a new government there is no such provision. All that Constitution says is that President shall appoint the prime minister and, shall appoint other ministers on the advice of the prime minister.
The council of ministers so constituted who has the prime minister as the head shall be responsible to the Lok Sabha.
It means that the President is entitled to appoint anybody as the prime minister but normally the President would not appoint anybody because there is a provision that that person who is appointed to head the council of ministers has to have the confidence of the House.
So, the President has to appoint a person who in her opinion is likely to command the confidence of the House.
This time the possibility of a hung Parliament is high. Can you tell us, in that case, how things will move?
See, first, it is not necessary for the government to have support of 272 members. In parliamentary democracy it is not at all necessary to command support of the majority of members, always.
What is necessary is that the majority should not be against the government even if they are not for the government. This is a fine distinction in the Constitution. That is, it should not lose a vote of no-confidence.
There may be many members who may not vote for the government. People may abstain and save the government, people may remain present, but not vote against the government and can save or help the government. What is necessary is that the majority should not be against the government.
Look, 272 is not the magical figure.
It's not necessary for the President to count heads. She has to see that the person she invites is capable of commanding the confidence of the House.
If there is a clear majority of any party or if there is a clear majority of any pre-poll alliance, the President should invite the leader of that party or the alliance.
The President's role becomes crucial if neither any party nor any pre-poll alliance has a clear majority on May 16.
If the Congress becomes the single largest party and if the National Democratic Alliance emerges as the single largest pre-poll alliance on May 16, what should we expect?
As I said as far as the Constitution is concerned the President is at liberty to appoint anyone who in her discretion is likely to command the confidence of a majority of the members.
But Constitutional law must be predictable and the President must stay away from any controversy and stay away from any charges of being partial to any party. She should go by principles.
These principles to handle such situations are laid down by the Sarkaria Commission report and by the National Commission on the Working of the Constitution, 2002.
Both these bodies have laid down the principles that the President should invite the largest single party or she should invite the leader of the largest pre-poll alliance to form the government depending on the numbers.
Out of these two whoever has more numbers should be invited.
In the past, in most cases, the leader of the single largest party and the leader of the largest pre-poll alliance has been the same, but this time we don't know.
In the past, there is no precedent of the President inviting the leader of the single largest party overlooking the claim of the biggest pre-poll alliance.
If the leaders of these two formations are different, then the President should invite a person who has bigger numbers behind him/her. If the single largest party has more numbers than the pre-poll alliance, then the leader of the single largest party should be invited.
But if after the election, the single largest party somehow manages to get more numbers than the biggest pre-poll alliance, then? Past precedent also suggests that the leader of the single largest party should be invited to form the government.
Past precedents have been good, bad and dubious. Presidents have indulged in head counting, Presidents have received signatures of leaders of alliances which were seriously doubted. That is why the leader with the larger number of members should be invited to form the government.
If the single largest party is invited to form the government and they fail to muster support, then?
See, we are debating the President's priority. I am saying that the principles have been laid out. The President has to invite the leader of the single largest party or the largest pre-poll alliance, whichever has the bigger numbers.
If that invited leader fails to secure the confidence of the House, then the second largest block should be invited and only after these two (the single largest party and biggest pre-poll alliance) are given a chance, should the President invite the post-poll alliance.
The parties that fight each other at election time and go to people with different manifestos, but in their lust for power join each other after the election are clearly cheating the people.
Therefore, that has been put as the last option. If the last option also fails then the only alternative is to face a fresh election.
Is that the only alternative?
We have said in a report that since the prime minister has to have confidence of the House, the best alternative for the President is to request the newly-formed House itself to elect its leader and let her know in whom it has confidence.
This should be done only if the President is unable to decide who commands the confidence of the House. This suggestion will keep her above controversy.
Once in Uttar Pradesh [ Images ], on the orders of the Supreme Court, the leader was elected by keeping ballot boxes in the assembly.
Our Constitution has Article 86(2) which provides for the President to send a message to the House in regard to any law or any other matter. If the President sends such message, then the elected leader has no need to seek the confidence of the House.
Here, I will add another point. The rules of procedure and conduct of business in Parliament provides for a no-confidence motion, but it does not have a provision for a confidence motion. It is the extra-constitutional means that the President is asking to seek the vote of confidence. It is not provided in the Constitution!
Article 74 provides only for a no-confidence motion which says that the council of ministers shall be responsible to the House so a no-confidence motion can be put for vote. That is why I am explaining that the 272 number has no meaning.
A majority in Parliament is not necessary to run the government.
On what basis, will the President decide if any party or alliance has the bigger numbers?
On the basis of the election results. The list is sent by the Election Commission. That is the authoritative indication showing who has got what numbers.
So by that count, is the Nationalist Congress Party an ally of the Congress or not?
No! They have fought against each other (in Gujarat). Lalu Prasad Yadav's [ Images ] party is also not an ally of the Congress. The Election Commission won't count the NCP or Lalu as pre-poll allies of the Congress. They may be allies in the present government, but not in the election. The NCP and the Congress only had state level 'seat adjustments.'
This is the legal position. Pre-poll alliances are for fighting the election. Nitish Kumar's Janata Dal-United and the BJP are part of the pre-poll alliance because nowhere in the country are they fighting each other.
You can know it from the election results who are, legally speaking, 'pre-poll allies.' There is no legal meaning of the Third Front or Fourth Front.
Do you think horse trading will take place in a big way?
I am pretty certain that if the scenario is such that no party or the alliance commands the support of the House then there will be a large-scale house trading, merger of parties, shifting of alliances, buying and selling of members and buying and selling of even parties for cash and ministerships. It has happened in the past.
What can be done about it?
We can only keep talking and shouting! But nobody will listen to us. Those who are supposed to listen, the politicians have a vested interest in the corrupt system. Political parties are not interested in listening to the voice of sanity.
Do you foresee any major Constitutional crisis after May 16?
No, I don't. The President has enough options to exercise within the Constitution. I don't see any problem so long as there is a genuine will to be impartial and to go by the Constitution.