On May 4, Vijay’s Tamilaga Vettri Kazhagam (TVK) leapt to an astounding victory in Tamil Nadu in its first-ever electoral attempt. But the party didn’t leap quite high enough, falling short of a few crucial seats that would have given it an absolute majority in the 234-seat Tamil Nadu Assembly. The state is now faced with a hung assembly, and depends on Vijay’s ability to secure the support of a certain number of MLAs to form the government.
In the absence of a single party with a clear majority – as is the case now in Tamil Nadu – a hung assembly emerges. This triggers intense negotiations, coalition building and reliance on support from smaller parties or independents to form the government.
Usually, one party or a clear coalition wins a majority of seats in a legislative assembly and forms the government without much uncertainty.
A hung assembly is the stark opposite of this. No single party or pre-poll declared alliance secures the minimum number of seats required for a majority. In the Tamil Nadu Legislative Assembly, the majority mark is 118 out of 234 seats.
In a hung assembly, no party can govern on its own, and parties may attempt to form alliances after the results. Independent candidates or smaller parties can also become crucial kingmakers.
Once again in the spotlight in Tamil Nadu, albeit for different reasons than usual, is the governor. Governor Rajendra Vishwanath Arlekar has to invite the leader of the coalition with the highest number of seats or the party with the largest number of seats to form the government.
The usual procedure is that the Governor would invite the largest party or alliance to form the government and prove its majority on the floor of the House. Instead, he could also encourage a coalition that can demonstrate majority support.
If the majority is proven in the floor test, they come into power. A floor test is a process where MLAs present in the House vote to determine whether the government has the support of a majority.
If the party fails to prove a majority, the Chief Minister must resign, and the Governor may invite the next viable party or coalition to attempt forming a government.
If no party or alliance is able to form a stable government, the state may come under Article 356 of the Constitution (President’s rule), leading to Union government rule. Eventually, a fresh election would be conducted to resolve the deadlock.
What governs the process is more convention than laws set in stone. Guidelines recommended by some judicial commissions and interpreted through court rulings are also often relied upon.
The Sarkaria Commission of 1983 and the Punchhi Commission of 2010 drafted some important guidelines on the topic. However, neither were rid of ambiguity, especially regarding who the governor should invite in the event of a hung assembly — the pre-poll coalition with the largest number of seats, the single largest party, or a post-poll alliance with the largest number of seats. There are also a number of Supreme Court case laws on the topic.
The Sarkaria Commission, which was set up to examine centre-state relations, laid down one of the earliest frameworks for Governors in cases like a hung assembly. It suggested a clear order of preference while inviting a party to form a government.
First, a pre-poll alliance that commands a majority; next, the single largest party with support from others; then, a post-poll coalition where all partners are part of the government; and finally, a post-poll alliance that relies on outside support.
Decades later, the Punchhi commission revisited the issue. It broadly endorsed the Sarkaria framework but added that the Governors should act with constitutional neutrality and not as political agents. The commission also said that a floor test should be conducted as early as possible to determine the majority. Further, pre-poll alliances should be prioritised over post-poll arrangements, as they reflect a clearer electoral mandate.
Despite these recommendations, ambiguity remained, particularly over whether the single largest party or a numerically stronger post-poll coalition should get the first opportunity.
The Supreme Court has, over time, stepped in through key judgements to clarify the process.
In SR Bommai v Union of India (a case in 1994 filed by former Karnataka Chief Minister challenging the dismissal of his government and the misuse of Article 356), the Court made it clear that a government’s majority must be proven on the floor of the Assembly, not determined by the Governor’s personal judgement.
Later in 2006, in Rameshwar Prasad v Union of India, filed by the Bihar political leader challenging the controversial dissolution of the state Assembly before a government could be formed, the Court warned against premature dissolution and stressed that political parties must be given a fair opportunity to form a government.
These guidelines and conventions will now decide Vijay’s path to the chief minister’s office in Tamil Nadu. The machinery has been set in motion with the party selecting the actor-politician as its leader in the Assembly on May 5.
In the past, governors have ignored the party with the highest number of seats and invited post-poll alliances with higher seats to form the government. That is what happened in Goa, Manipur, and Meghalaya in April 2018, where the Congress failed to form the government despite being the single largest party. In all these states, Bharatiya Janata Party (BJP) led post-poll alliances secured power instead.
The opposite happened in Karnataka a month later, when the BJP formed the government in the state despite a Congress-Janata Dal (Secular) post-poll alliance possessing a higher number of seats.
The moral of the stories is that it all comes down to what the Governor deems right. On the assumption that the scenario in Tamil Nadu may not turn that murky, let us examine what Vijay and TVK need to form the government.
Once the Governor invites Vijay to form the government, he will likely be given a few days to present letters of support from other parties to show that he has the absolute majority. This number will be one more than half of the total number of seats in the Assembly, that is, 118.
The TVK itself has won 108 seats. This means he needs the support of 10 more MLAs to have an absolute majority in the house. He will then have to go through a floor test in the Tamil Nadu Assembly to prove TVK’s majority.
But the math may not be that straightforward. In fact, TVK may need the support of more than 10 MLAs from other parties.
Vijay contested and won from two seats – Perambur and Tiruchirapalli (East). So, the total number of TVK MLAs comes down to 107, since he is the sole MLA from two seats. Being the party with the highest number of elected candidates, the Assembly Speaker too shall be one among them. That brings down the total number of TVK MLAs in the house to 106. The Speaker’s vote comes into play only in the event of a tie, when they exercise a casting vote to break the deadlock.
The total number of MLAs who might be present for the floor also consequently comes down to 232.
Let’s do the math again: One more than half of 232 is 117.
To reach 117 from its total strength of 106, TVK will need the support of 11 MLAs. Now that is where Vijay’s negotiation skills are going to matter.
The numbers can be easily achieved if the TVK joins hands with the All India Anna Dravida Munnetra Kazhagam (AIADMK), which has a strength of 47 MLAs. It is not enough that Vijay merely gets the support of 11 individual AIADMK MLAs. He needs the party’s support to avoid the MLAs being disqualified through anti-defection laws. The anti-defection law is a set of rules in India that prevents elected legislators (MLAs or MPs) from switching parties after being elected, to maintain political stability and respect the mandate given by voters.
The Anti-Defection Law will not disqualify them if at least two-thirds of the party’s MLAs merge with TVK. In the case of AIADMK, that would mean 32 out of 47 MLAs, a sizably difficult threshold to meet.
Alternatively, it can seek support from a number of parties with fewer seats, like the Congress (5 seats), Communist Party of India (2 seats), Communist Party of India (Marxist) (2 seats), Viduthalai Chiruthaigal Katchi (2 seats), Pattali Makkal Katchi (4 seats), Desiya Murpokku Dravida Munnetra Kazhagam (DMDK) (1 seat), or Indian Union Muslim League (2 seats).
Remember that a floor test takes place only based on the MLAs present in the House. So, the number of MLAs who should support TVK can, however, go down if some of the non-TVK MLAs just don’t turn up for the floor test. This can reduce the effective majority mark for the floor test. For instance, if 21 AIADMK MLAs abstain, the mark Vijay needs to cross comes down to 106, a number the TVK already possesses.
The immediate future of Tamil Nadu now hangs in the balance on the actor-politician and his party members’ ability to charm the right parties and people to ensure support in the floor test. Whether the same tactics that helped him get a thumping victory will help him form a stable government waits to be seen.