CHENNAI: There are no specific guidelines found in the Indian Constitution on the formation of a government after elections, as the framers largely felt that the Governor being the head of the State will go by the spirit of the Constitution and adopt political morality free from bias.
Article 164(2) stipulates that the Council of Ministers shall be collectively responsible to the Legislative Assembly of a State. This only means that even if the Chief Minister and other Ministers are appointed by the Governor (Article 164) and they hold office during the pleasure of the Governor, in actual terms, the Cabinet continues so long as it enjoys the confidence of the Legislative Assembly.
Once the Assembly is constituted, the House headed by the Speaker will run the it, including dealing with the confidence or lack of confidence motion brought in for or against the government run by the Chief Minister and his colleagues.
But what happens during the period between the declaration of election results and before the constitution of the House? Whom should the Governor invite to form the government? Who will run the show? Answers to these questions are mostly in the realm of Constitutional practice and judicial precedents.
Ever since the Congress party lost its monolithic position as the only ruling party both at the Centre and State (1967 in the case of Tamil Nadu), it started playing politics with the State governments that are led by the opposition parties. The ‘Aya Ram, gaya Ram’ game started making rounds to destabilise opposition parties and their governments. This enhanced the Governor’s discretionary power right from the inception of the government till it completes its full term.
Since 1967, several states, including Tamil Nadu, began witnessing unsavoury situations when it came to government formation and facing confidence (or lack of it) motions in the House. Fearing that they could be kidnapped, the elected members were taken to faraway places and lodged in five-star accommodation till the voting was completed.
If no party was able to get a clear majority, the Governors were started making different demands. First, the elected MLAs were paraded before the lawns of the Raj Bhavan (now Lok Bhavan), which were called as “Lawn Test”. Even if physical count taken in the Raj Bhavan is found to be true, ultimately, the majority claim has to be proven before the Legislative Assembly and not on the lawns of the Lok Bhavans.
The efficacy of the “floor test” was upheld by a larger bench of the Supreme Court in the SR Bommai case of 1994. In the present context in Tamil Nadu, the Governor ought to have called the party that has the largest strength in the House to form the government and prove its majority in the House within a given time.
Since Rajendra Vishwanath Arlekar is the regular Governor of Kerala, and the people of that State had given a clear majority to the Congress party, there will be no problem for him to invite the coalition it heads to form the government. But in Tamil Nadu, he is only holding additional charge and his approach also seems to be casual rather than Constitutional. The scenes that played out in Lok Bhavan on May 6 clearly show that he not only did not invite the leader of the political party with the highest number of winning candidates, he also did not treat him and his fellow leaders in a proper manner. It appears as if they were not even offered proper seats. Instead, their letter staking claim was received and they were signalled to leave without proper exchange of pleasantries.
The report submitted by the Justice Kurian Joseph Committee, which was appointed by the Tamil Nadu government to study the issue of Union- State relations, made the following recommendations regarding the role of Governor in inviting an elected leader to form a government:
The following principles, applicable after general elections, the resignation of a Ministry, or the passage of a no-confidence motion, shall be incorporated into the “Instrument of Instructions for Governors” (vide Recommendation 4):
1. When no party commands majority, the Governor shall invite a leader to form the government strictly in the following order of preference:
A pre-poll alliance with a clear majority;
The single largest party with assured support;
A post-poll coalition in which all partners join the Ministry;
A post-poll alliance with some members offering outside support.
2. The Governor shall not rely on personal judgment, informal communication, or extraneous sources to assess majority support.
3. All rival claims shall be tested only on the floor of the Legislative Assembly, ordinarily within seven calendar days, extendable only in the rarest cases for recorded reasons.
4. No artificial delay, deferment, or manipulation of the floor test schedule shall be permitted.
Since MK Stalin, the president of the DMK, which has second highest strength in the House, has clearly stated that his party would not prevent the TVK from forming the government, the only option open to Governor Arlekar is to invite TVK president C Joseph Vijay to form the government and prove his majority in the House within a reasonable time. Any other move to procrastinate decision-making will frustrate the will of the electors, and will result in unpleasant happenings.
(The writer is a retired judge of the Madras High Court)