In Tamil Nadu, political uncertainty has turned quickly into a bigger constitutional controversy. This occurred when Governor Rajendra Arlekar refused to invite actor-turned-politician Vijay to form a government even though his party is currently the single largest party in the Tamil Nadu Assembly.
Vijay’s party, the Tamilaga Vetri Kazhagam (TVK), won 108 seats in the recent Tamil Nadu Assembly elections, which is 10 seats short of a majority (118). No one else has made a strong case for being invited to form a government; however, the Governor has reportedly told Vijay that he must show that he has support from 118 MLAs before he will be invited to form a government. The Governor’s refusal to act has sparked an immediate outcry and raised old constitutional questions about the discretionary powers of Governors in parliamentary democracies.
This constitutional controversy has now gone beyond Tamil Nadu and has turned into a national debate about constitutional convention, democratic mandate and whether or not governors can delay forming a government after a definitive electoral result.
Why Vijay’s claim has become constitutionally significant
In the context of Vijay’s party being the largest in the Tamil Nadu Assembly, it marks a significant political change in Tamil Nadu. Traditionally, Tamil Nadu has been ruled alternately by the two largest political parties, the Dravida Munnetra Kazhagam (DMK) and the All India Anna Dravida Munnetra Kazhagam (AIADMK). The election showed that Tamil Nadu voters are willing to support a party that has only been formed for two years.
Vijay has had to go back to the Governor without being invited to be sworn in as Chief Minister after repeatedly being in contact with him to arrange an invitation and receive an actual invitation to be sworn in. Critics argue that the Governor’s insistence on obtaining written majority evidence before being sworn in is contrary to established parliamentary convention, whereby the Assembly floor should be the test for majority support and not the Raj Bhavan.
The distinction between Assembly floor test and Raj Bhavan is significant, as the basis of India’s constitutional scheme is the confidence of the legislature. The test for the government proving its majority should be made publicly known through the Assembly, not through private political calculations.
What constitutional experts and Supreme Court rulings say
The arguments surrounding this issue have resulted in different interpretations by constitutional experts. Former Attorney General Mukul Rohatgi says that the Governor is required by the Constitution to invite the party with the most members to form the government and establish their ability to govern after proving their majority through a floor test in the Assembly. He says that the role of the Governor is limited and does not include determining whether 118 members of the Assembly will support the formation of government.
Senior Advocate Neeraj Kishan Kaul takes a different approach and says that Article 163 gives governors discretionary powers to act in the event of a hung Assembly. He echoed Rohatgi but added that the Supreme Court’s landmark decision in SR Bommai had established that the majority of members forming the government must be established by the Assembly floor test.
Senior advocate and Congress leader Abhishek Manu Singhvi strongly condemned the slow pace of action, arguing that there is a political expectation and a constitutional obligation for the governor to invite the largest party or coalition before inviting any other parties if no other party’s coalition has been created with majority of votes.
The issue about the calling of the first assembly meeting in the state and the precedent established by previous interventions by the Supreme Court in Goa, Karnataka and Maharashtra where the governor called on either a single largest party or a coalition created after the election and were then ordered to held an immediate vote of confidence in an assembly by the courts, has all resurfaced as items of debate.
Political negotiations intensify behind the scenes
There is behind the scenes intense political negotiation taking place in Chennai. There are reports that TVK is talking with several other parties, including Congress, Left parties and VCK, in order to create a coalition with enough votes to hold a majority.
Additionally, there are reports of potential conversations between DMK and AIADMK, which adds to the uncertainty of the current political climate. The BJP has now also effectively been drawn into the debate, in that many leaders of the opposition party accused the governor of acting under pressure from the central government.
Several leaders are asking that Vijay be given the opportunity to take the oath of office as Chief Minister with the understanding that his majority will be established after the floor test in the Assembly.
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A constitutional controversy with national implications
The Tamil Nadu situation represents a larger institutional issue that has continued to arise in Indian politics, i.e., the lack of a common process for forming a government in a hung Assembly. Although there are many constitutional conventions in place, each state’s governor interprets those constitutional conventions differently based on factors related to the political party’s circumstance.
The core issue central to the current discussion is a basic democratic question: Should the single-largest party receive the first opportunity to form a government, as a matter of course, or can the governor independently evaluate the stability of the various alliances prior to extending their invitation to form a government?
Vijay is currently waiting to be informed of when he can take the oath of office. However, the issue has already become a national discussion on issues of federalism, constitutional morality, and the balance of governor’s discretion and electoral mandate.
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