New Delhi | Constitutional law experts are divided over the alleged delay in inviting the TVK to form the government in Tamil Nadu, with some saying that the governor is entitled to enquire whether it prima facie has the majority while others suggesting that he does not have an option but to invite actor-turned-politician Vijay-led single largest party.
The TVK won 108 seats in the 234-member Assembly in the April 23 polls and emerged as the single largest party. Though the Congress party, with five MLAs, has extended support to TVK, the single largest party is still short of as many seats to touch the magic number of 118, the majority mark.
TVK founder Vijay has met Governor Rajendra Vishwanath Arlekar twice in the last 24 hours requesting to be invited to form the government. However, no invitation has been extended so far to the new party to form the government.
"The governor is entitled to enquire and require TVK to prima facie satisfy him about majority support, whether from outside or inside the government. The government should be stable.
"There should be no difficulty in obtaining letters of support from allies. If he fails, there will be a stalemate," constitutional law expert and senior advocate Rakesh Dwivedi said.
He further said the state may face the president's rule and hence, the TVK must file letters of support or supporting leaders should join him before the governor in staking claim.
However, senior advocate and Supreme Court Bar Association president Vikas Singh termed the TVK not getting invited to form the government as "inappropriate".
"It is definitely appropriate for the governor to call the single largest party to form the government because it is not the case that the other two parties combined have a majority. So, he has to give an opportunity to the largest party if it has staked its claim to form the government…
"I think it is highly inappropriate for the governor not to call the single largest party for the purpose of forming the government here," he said.
Echoing the same sentiments as Singh, senior advocate Ajit Sinha disapproved of the TVK not getting an invitation to form the government. He said Vijay should be immediately invited to form the government and establish a majority on the floor of the Assembly within a stipulated time period of 10 to 15 days.
"The governor is bound to invite the single largest party to form the government and the fate of the government has to be decided on the floor of the House," he added.
Senior advocate Vikas Pahwa said, "At the outset, the governor, while acting under Article 164 of the Constitution, does possess a limited area of constitutional discretion in situations where no party commands an undisputed majority in the Assembly."
He said the settled constitutional position is that the governor's primary obligation is to ensure the formation of a stable government enjoying the confidence of the House.
"Ordinarily, the single largest party is invited first to stake claim and demonstrate majority support on the floor of the Assembly within a reasonable time. However, the Constitution does not create an absolute or mechanical rule compelling the governor to invariably invite the single largest party irrespective of surrounding circumstances," Pahwa said.
Another senior advocate Amit Anand Tiwari said the governor is not required to invite a party solely on the basis that it is the single largest political formation.
"The governor can inquire and satisfy himself whether that single largest party can form the government or has the majority on the floor of the House. So, this satisfaction lies with the governor and this discretion cannot be questioned," Tiwari said.
This can be questioned only by showing that the single largest party will be able to prove majority on the floor of the House, he added.
"In the TVK's case, as far as my understanding goes, it has not said that it has the support of other MLAs," he said, adding that the party is still short in numbers and hence the governor has to satisfy himself before asking the party to form the government.
Pahwa said if the governor has credible material indicating that the single largest party may not be in a position to command majority support, he may legitimately seek proof of numbers or letters of support before extending an invitation.
"Such an exercise, if undertaken bona fide and within constitutional parameters, cannot per se be termed unconstitutional," he said.
Pahwa, however, said, "Any prolonged delay, perceived inaction or selective approach by the governor can certainly invite constitutional criticism, particularly in light of Supreme Court judgments emphasising constitutional neutrality, expedition and floor test democracy. The Supreme Court has repeatedly held that questions of majority must ordinarily be tested on the floor of the House and not determined subjectively in the Raj Bhavan."
If the governor indefinitely withholds an invitation despite a viable claim by the single largest party, such conduct may become vulnerable to judicial scrutiny on grounds of arbitrariness or constitutional impropriety, he added.
