By Dipak Kurmi
The foundational essence of the Indian gubernatorial office was perhaps best articulated by B.R. Ambedkar, who envisioned the Governor not as a partisan agent but as a representative of the people as a whole, carrying out administration in their name. This vision, which the Supreme Court of India notably reiterated in the NabamRebia case of 2016, underscores a role defined by sagacity and neutrality rather than political calculation. However, the contemporary political landscape, particularly the unfolding crisis in Tamil Nadu following a fractured mandate, suggests a troubling departure from this ideal. When the Bharatiya Janata Party was formed in 1980, it staked a claim to being a party with a difference, yet the conduct of Governors appointed under its tenure has increasingly mirrored the controversial legacies of their predecessors. This perceived erosion of respect for the text and spirit of the Constitution highlights a burgeoning crisis in constitutional morality, where the unwritten maxims that provide flesh to the dry bones of the law are being systematically ignored in favor of partisan convenience.
Tamil Nadu Governor RajendraVishwanathArlekar’s recent decision to withhold an invitation to the leader of the single largest party represents a grave deviation from settled democratic norms. While the Indian Constitution is the lengthiest in the world, it remains intentionally silent on the specific mechanics of government formation in a hung assembly, relying instead on what John Stuart Mill called the unwritten maxims of the constitution. Article 164(1) simply provides that the Chief Minister shall be appointed by the Governor, while Article 164(2) establishes the crucial principle of collective responsibility to the Legislative Assembly. This structural design confirms that the ultimate authority to validate a government rests with the elected representatives on the floor of the House, not within the subjective satisfaction of the LokBhavan. The Governor’s role is that of a constitutional facilitator, meant to set the democratic process in motion rather than to act as a gatekeeper who preemptively adjudicates the viability of a claimant.
The mandate delivered by the Tamil Nadu electorate is both clear and unprecedented, favoringfilmstar-turned-politician C. Joseph Vijay’s TamilagaVettriKazhagam (TVK), which secured 108 seats. In a 234-member Assembly, this rejection of the incumbent DMK and the opposition AIADMK signals a profound shift in the state’s political consciousness. Despite the TVK being the single largest party and securing the support of five Congress MLAs, taking their effective strength to 113, the Governor has remained unmoved. Historical conventions, which William Anson termed constitutional customs, dictate that the leader of the single largest party be given the first opportunity to prove their majority. This convention was famously upheld in 1996 when Atal Bihari Vajpayee was invited to form the government with only 161 seats, and again in 2018 when Karnataka Governor VajubhaiVala invited B.S. Yediyurappa despite a competing post-poll alliance. The current refusal to apply these same standards to the TVK suggests a double standard that undermines the predictability of Indian constitutional law.
The legal jurisprudence surrounding this issue was firmly established in the landmark S.R. Bommai case of 1994, where the Supreme Court emphasized a hierarchy for government formation involving pre-poll alliances, the single largest party, and post-poll coalitions. In the present instance, the TVK occupies a formidable position as both the single largest party and the leader of a post-poll arrangement with the Congress. By delaying the invitation, the Governor is inadvertently creating a vacuum that encourages unethical political maneuvering. Reports suggesting that the DMK and AIADMK might explore an alliance to circumvent the TVK’s rise are particularly concerning from the perspective of constitutional morality. Since both parties were rejected by the voters in favor of a third alternative, a coalition between them would constitute a negation of the democratic will and a cynical exercise in power-sharing that ignores the clear signal sent by the electorate.
The limits of gubernatorial discretion were further clarified by the Justice Punchhi Report on Centre-State Relations in 2010, which warned that the power provided under Article 164 is significantly circumscribed. Discretion is not a license for arbitrariness; as the Supreme Court noted in RaghukulTilak (1979), it must be dictated by reason, activated by good faith, and tempered by caution. When the LokBhavan communicated on May 7 that the Governor was not satisfied with Vijay’s claim, it revealed a fundamental misunderstanding of parliamentary mathematics. A government does not require an absolute majority of the total House strength to survive; it merely needs a simple majority of those present and voting. Political history is replete with minority governments that survived through the abstention of opposition parties, thereby lowering the effective majority mark. By demanding absolute certainty before an invitation is issued, the Governor is imposing a standard that the Constitution itself does not require for the daily functioning of a ministry.
The Supreme Court’s 2006 ruling in Rameshwar Prasad remains a potent reminder that Governors must refrain from using their positions for partisan ends. In that case, the court slammed the misuse of power intended to prevent a particular party from staking its claim, a scenario that seems to be repeating in Chennai. The Governor’s primary duty is to be a sagacious counselor—to be consulted, to warn, and to encourage—rather than to be an active protagonist in the formation of the executive. Miguel de Cervantes’ witty observation in Don Quixote that a good governor should stay at home with a broken leg captures the ideal of a non-interfering constitutional head. When the Governor steps out of this faint, moon-like presence to block the democratic sequence, he risks transforming the LokBhavan from a house of constitutional wisdom into a theater of political intrigue, thereby damaging the very administration he is meant to protect in the name of the people.
The path forward for Tamil Nadu lies in a strict adherence to the settled conventions of the Westminster system that India adopted. The burden of proving a majority belongs to the assembly floor, which provides a transparent and objective forum for the exercise of democratic choice. By ignoring the TVK’s claim, the Governor is not merely stalling a party; he is stalling the constitutional process itself. If the TVK fails to secure the necessary votes, the consequences are settled by the House; but to deny them the opportunity to try is to substitute the will of one appointed official for the mandate of millions of voters. Ultimately, constitutional morality requires that the rules of the game remain consistent, regardless of which party stands to benefit. The current impasse serves as a stark reminder that without the “flesh” of convention to clothe the “dry bones” of law, the skeleton of the Constitution becomes a rigid instrument of obstruction rather than a living document of governance.
(The writer can be reached at dipakkurmiglpltd@gmail.com)
