Context:

• The role of the Governor has once again come under scrutiny following Tamil Nadu Governor Rajendra Vishwanath Arlekar's prolonged delay in inviting the leader of the single largest party — Tamilaga Vettri Kazhagam's (TVK) C Joseph Vijay — to form a government after the state assembly election results.
• The issue raises critical questions regarding constitutional conventions, gubernatorial discretion, federalism, democratic morality, and judicial precedents governing government formation.

Constitutional Position of the Governor:

• B. R. Ambedkar had described the Governor as a “representative not of a party, but of the people as a whole of the state.”
• This statement was later quoted by the Supreme Court in the landmark Nabam Rebia Judgment case (2016).
• The constitutional expectation is that the Governor should function as a neutral constitutional head rather than a political actor.

Constitutional Provisions on Government Formation:

• Article 164(1): It merely states that the Chief Minister shall be appointed by the Governor.
• Article 164(2): The Council of Ministers is collectively responsible to the Legislative Assembly, not to the Governor.
• Interpretation: Thus, the Governor’s role is limited to identifying who is most likely to command majority support in the Assembly.

Importance of Constitutional Conventions:

• Why Conventions matter?
  • Constitutional conventions are unwritten, non-legal rules, practices, and traditions that guide the functioning of government institutions, bridging gaps in the written constitution.
  • The Constitution does not explicitly provide a detailed mechanism for every political contingency, especially fractured mandates. Hence, constitutional conventions evolve over time.
• Thinkers on Constitutional conventions:
  • John Stuart Mill described conventions as “unwritten maxims of the Constitution”.
  • William Anson called them “constitutional customs”.
  • Ivor Jennings argued that conventions provide “flesh which clothes the dry bones of the law”.
• These conventions become essential for maintaining democratic continuity and constitutional morality, which refers to adherence to democratic values, conventions, and constitutional spirit beyond legal text, ensuring legitimacy and fairness in governance.

Tamil Nadu Political Situation:

• Electoral verdict: In the 234-member Tamil Nadu Assembly,
  • C Joseph Vijay-led TVK emerged as the single largest party with 108 seats.
  • No pre-poll alliance secured a majority.
  • Indian National Congress later extended support to TVK.
  • Left parties and smaller parties also indicated support.
• Under established convention, the Governor should ordinarily have invited the single largest party leader claiming majority support to form the government and prove majority on the floor of the House.

Supreme Court Judgments on Governor’s Role:

• Nabam Rebia case (2016): The judgment emphasised constitutional neutrality of Governors and restricted arbitrary discretionary powers.
• S. R. Bommai case (1994):
  • The judgment established that the majority must be tested on the floor of the House. Constitutional machinery cannot be assessed subjectively by the Governor.
  • The judgment also discussed the hierarchy (in case no political party enjoys a clear majority/ hung assembly) of pre-poll alliances, post-poll alliances, and the single largest party.
  • In the present case, TVK qualifies both as the single largest party and as the nucleus of a post-poll alliance.
• Rameshwar Prasad case (2006): The judgment warned Governors against partisan misuse of office.
• Raghukul Tilak case (1979): The judgment held that gubernatorial discretion must be reasonable, in good faith, non-arbitrary, and constitutionally restrained.

Historical Precedents Supporting the Convention:

• Vajpayee government (1996): Atal Bihari Vajpayee was invited to form the government despite the BJP lacking a majority because it was the single largest party in the Lok Sabha. The government later resigned after failing to prove its majority.
• Karnataka example (2018):
  • B. S. Yediyurappa was invited (and was given 15 days to prove the majority) by the then Governor Vajubhai Vala to form the government despite a post-poll alliance between Congress and JD(S).
  • The SC ordered an expedited floor test (within 36 hours), and the government eventually collapsed.

Core Constitutional Issues Raised:

• Politicisation of the Governor’s office: The Governors increasingly behave as partisan actors rather than neutral constitutional authorities.
• Erosion of constitutional morality:
  • Delaying invitation to the largest claimant despite evident support is viewed as undermining democratic ethics and constitutional conventions.
  • Any possible alliance between rival parties like DMK and AIADMK merely to prevent TVK from forming government despite the electorate rejecting both, will be portrayed as political opportunism, that is,
    • Ethically questionable
    • Contrary to democratic spirit
    • Violative of constitutional morality
• Threat to federalism: Frequent gubernatorial interventions deepen Centre-State tensions and weaken cooperative federalism.
• Misunderstanding of majority principle:
  • The Governor reportedly demanded “absolute majority”.
  • However, confidence motions require a simple majority of members present and voting.
  • A government survives through a simple majority of members present and voting, not necessarily 50% plus one of total House strength.
  • This means, abstentions reduce the effective majority mark.

Recommendations:

• Codification of conventions: India should evolve clearer statutory or constitutional guidelines regarding government formation in hung assemblies.
• Implement Sarkaria and Punchhi commission recommendations:
  • For example, the Punchhi Commission recommended limiting gubernatorial discretion under Article 164.
  • A transparent order of preference for inviting parties should be institutionalised.
• Ensure political neutrality of Governors: Governors should function as constitutional umpires rather than agents of ruling parties at the Centre.
• Mandatory time-bound floor tests: The SC’s evolving jurisprudence on immediate floor tests should become standard constitutional practice.
• Strengthening constitutional morality: Public offices must operate not merely within constitutional text but also within democratic ethics, conventions, and spirit.

Conclusion:

• The Tamil Nadu episode highlights the recurring constitutional tensions surrounding the office of Governor in India.
• These controversies underline the urgent need to depoliticise the gubernatorial office and reinforce constitutional morality, federal balance, and democratic conventions.
• As constitutional scholar Ivor Jennings observed, conventions give life to constitutional text; without adherence to them, democratic institutions risk losing legitimacy and public trust.