The Governor’s call: Dissecting the Tamil Nadu showdown

The recent Tamil Nadu elections threw up a fractured verdict, bringing the role of Governor Rajendra Arlekar under scrutiny.

The recent Tamil Nadu elections threw up a fractured verdict. In a stunning debut, C Joseph Vijay’s Tamilaga Vettri Kazhagam (TVK) emerged as the single largest party with 108 seats, bringing the role of Governor Rajendra Arlekar under scrutiny. One would have expected the Governor to invite the TVK to form the government, especially as there was no pre-poll alliance.

Instead, his insistence that the party demonstrate majority support of 118 legislators before being invited sparked intense debates. The larger constitutional question is whether a Governor is obliged to invite the leader of the single largest party to form the government or whether he can use his discretion. There is, however, no established precedent. 

The Sarkaria Commission (1983) observed that the Governor should invite the party or coalition “with the widest support base” to form the government, subject to a floor test in the House. In S R Bommai v. Union of India (1994), the Supreme Court held that the majority of a government must be tested on the floor of the House and that the Governor must invite either a party with a clear majority or the single largest party/group to form the government. In Rameshwar Prasad (2006), the Court reiterated the primacy of floor testing. Thus, the Governor is expected to use his qualitative judgment while exploring every constitutional avenue for the formation of a democratically elected government.

Justice M N Venkatachaliah (2002) suggested that when the single largest party is invited to form the government, the chief minister should be given 30 days to seek a vote of confidence on the floor of the House. The Punchhi Commission later argued that a pre-poll alliance should be treated as a single political entity. It largely endorsed the Sarkaria Commission’s four-step order of preference: first, a pre-poll alliance; second, the single largest party; third, a post-poll coalition; and finally, a post-poll alliance. 

History shows that governors have not followed a uniform course of action. Ultimately, a majority can only be proved on the floor of the House. Can a Governor legitimately decide whether a government will be stable or not? During the recent Tamil Nadu stalemate, several permutations and combinations were possible, triggering a fierce contest of arithmetic, alliances and survival. Eventually, Vijay became the first non-DMK, non-AIADMK chief minister since 1967. 

Similar scenarios have arisen in the past. In 1952, the Indian National Congress was reduced to a minority in the Madras Legislative Assembly, winning 152 of 375 seats. Opposition parties subsequently formed a post-poll alliance called the United Democratic Front (UDF). However, the Governor of Madras refused to invite the UDF to form the government. Instead, he nominated C Rajagopalachari to the Legislative Council and invited him to head the government. The controversial move set a precedent in which the Governor ignored a majority coalition in favour of the single largest party.

The 2017 Assembly elections in Goa and Manipur also produced hung verdicts. In both states, Mridula Sinha in Goa and Najma Heptulla in Manipur, the governors declined to invite the single largest party, the Congress, to form the government. Instead, they invited the BJP, which had formed a post-poll alliance with regional parties. The Goa matter reached the Supreme Court, which allowed the government to be formed but reduced the 15-day deadline for proving majority to just two days. Manohar Parrikar became the chief minister despite the Congress being the single largest party. In Manipur, although the matter did not reach the courts, a similar process led to N Biren Singh becoming the chief minister. In both states, the Governors’ actions attracted considerable criticism.  

In 2018, Karnataka witnessed a hung assembly. Governor Vajubhai Vala invited the BJP leader B S Yediyurappa to form the government and granted him 15 days to prove his majority. However, in an extraordinary midnight hearing, the Supreme Court reduced this period to 24 hours. Unable to muster sufficient support, Yediyurappa resigned before the floor test. The Congress-JD(S) coalition subsequently formed the government.

Political exigencies and constitutional practice have often expanded the Governor’s role and powers. Constitutional experts remain divided on the extent of this discretion. Articles 164(1) and 164 (2) provide the Governor with a limited degree of constitutional discretion, shaped by circumstance. Such powers must be exercised in a bona fide rather than mala fide manner. While the Constitution does not prescribe specific criteria for inviting a party to form the government, the Governor cannot disregard constitutional conventions, practices, commission recommendations and judicial precedents.

(Vinod is a professor and Pournamy is an assistant professor at the Department of International Studies, Political Science and History, Christ deemed to be University, Bengaluru)

(Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.)