Trust the House
Over the past two days, Tamilaga Vettri Kazhagam (TVK) leader C. Joseph Vijay has met the Tamil Nadu Governor twice, staking his claim to form the next government in the state. Governor Rajendra Vishwanath Arlekar, however, has reportedly refused to act without written proof of support from at least 118 MLAs — the majority mark in the 234-member Legislative Assembly.
This demand is misconceived. The Constitution may no doubt be silent on the precise mechanics of government formation, but constitutional silence is not a void. It is filled by convention, and by law as declared by the Supreme Court. Both are unambiguous: the majority must be proven on the floor of the House, not in the Governor’s office.
The Sarkaria Commission (1988) laid down a clear order of preference for inviting a party to form government. First is a pre-poll alliance holding the largest numbers. Second, and this is directly applicable here, is the single largest party staking a claim with outside support. TVK has won 108 seats, comfortably ahead of the DMK and AIADMK alliances. It has since also secured the backing of the Indian National Congress, which won a further five seats. Therefore, the constitutional path is clear. The Governor must invite Vijay to form the government and set a reasonable timeline for him to prove his majority in the Assembly.
The Supreme Court has said as much, repeatedly. In Rameshwar Prasad v. Union of India [2006] the Court held that “after elections, every genuine attempt is to be made which helps in installation of a popular Government.” It quoted with approval Justice P.B. Sawant’s opinion in SR Bommai v. Union of India [1994]: the floor of the House is “the constitutionally ordained forum” for testing a ministry’s strength. A Governor’s private assessment of majority is, in Justice Sawant’s words, “an anathema to the democratic principle.” He added, “The assessment of the strength of the Ministry is not a matter of private opinion of any individual, be he the Governor or the President. It is capable of being demonstrated and ascertained publicly in the House. Hence when such demonstration is possible, it is not open to bypass it and instead depend upon the subjective satisfaction of the Governor or the President. Such private assessment is an anathema to the democratic principle, apart from being open to serious objections of personal mala fides…”
Bommai may not have directly concerned government formation, but Justice Sawant’s opinion squarely endorses the Sarkaria Commission’s framework. And Rameshwar Prasad puts the matter beyond doubt. Whether a party commands a majority is an objective fact; it is one capable of being established openly, on the floor of the House, and nowhere else. And as Justice Jeevan Reddy observed in Bommai, the House is where democracy is in action. It is not a formality to be bypassed by a Governor counting letters in his office.
The TVK may yet secure broader support and force the Governor’s hand. But that would not redeem his conduct. In withholding an invitation to form government on the basis that the majority has not been privately demonstrated to his satisfaction, the Governor has acted against both democracy and the rule of law.