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On May 4, 2026 Tamil Nadu returned an unexpected election result – a debutant political party securing 34.9% vote share and the first hung Assembly since 1952. The ruling DMK alliance got 73 seats, the AIADMK’s NDA alliance got 53 seats, and the debutant Tamilaga Vettri Kazhagam (TVK), headed by actor-turned-politician C Joseph Vijay, got 108 seats (Vijay himself won two seats, effectively reducing TVK’s actual tally to 107 MLAs).
Vijay then wrote to the TN Governor Rajendra Arlekar and staked claim to form a government on May 5 with 107 MLAs on hand, as no other party had offered its support. On May 6, Vijay met the TN Governor. During this meeting, the TN Governor reportedly told Vijay that he does not prima facie have the strength to form the government. In the evening of May 6, the Indian National Congress (INC) formally extended its support to the TVK.
With five MLAs of the INC, Vijay has the support of 112 MLAs in the House. Vijay again met the Governor on May 7 and requested him to invite him to form the government based on the support of 112 MLAs. In its press release dated May 7, the Lok Bhavan has stated that the TN Governor has refused Vijay’s request on the grounds that the essential majority required to form the government has not been established by Vijay.
This has kicked up a controversy in the State about the Governor’s discretion in government formation and whether it is open to the Governor to demand proof of majority before swearing in the leader of the single largest party. Should the Governor instead relegate this question to the Legislative Assembly that has been elected by the people?
Constitutional position on Governor’s discretion
Article 164(1) of the Constitution provides that the Chief Minister and Ministers are to be appointed by the Governor. Article 164(2) states that this Council of Ministers shall be collectively responsible to the Legislative Assembly of the State. The Constitution does not prescribe any procedure to appoint the Chief Minister after an election. The draft constitution originally contained a “schedule of instructions” for the President and Governors in appointing the Union and State Cabinets, but this was dropped by the framers of the Constitution, allowing the President and Governors to exercise their best judgement and follow convention while extending invitations to form the government.
The anchoring principle of collective responsibility means the Governor lacks discretion when a party claims a stake to form the government with the support of a majority number of MLAs. But does the Governor enjoy some discretion in cases where the single largest party claims a stake without prima facie satisfying the Governor that it could win the confidence of the House?
Contrary to the belief expressed recently by some politicians and political commentators, both the Sarkaria Commission report and the judgements of the Supreme Court of India vest limited discretion in the Governor to assess the claim of the single largest party. It is also desirable that the Governor not blindly accept the claim of the single largest party when there is a possibility of a combination of parties which can stake a claim with the support of the majority MLAs in the House.
Take for example, an Assembly with 100 seats. If party A wins 40 seats, and parties B and C each win 30 seats, can it be said that the mandate of the people is for party A? If parties B and C can combine to form a government, such a combination alone enjoys the support of the House and must be invited to form the government by the Governor.
An argument that the Governor lacks this discretion to ascertain if there is a possibility of any other combination which enjoys the support of the House is dangerous because then the Governor can choose to ignore a post-poll alliance which crosses the halfway mark and blindly invite the single largest party to form Government and prove itself in a floor test, paving the way for horse trading.
This scenario played out differently in Goa in 2017 and Karnataka in 2018 with the Governors acting differently in each case (presumably out of political compulsion). In Goa, the INC secured 17 seats out of the 40 in the Assembly and was the single largest party. The BJP, with 13 members, sought the support of independents and other parties and staked a claim with the Governor.
The Governor, satisfied with the BJP’s claim, swore in Manohar Parrikar as the Chief Minister. When this was challenged before the Supreme Court, the court did not set aside the Governor’s direction but only directed the conduct of a floor test for the Chief Minister to prove his strength—a floor test that Manohar Parrikar subsequently won.
Now, if the Governor had blindly invited the Congress to form the Government, despite the BJP-led combination enjoying a majority, it would have failed the floor test.
In Karnataka, the BJP had won 104 seats, the INC 78 and Janata Dal (Secular) [JD(S)] 37. The halfway mark was 112. INC and JD(S) together presented a stake to form the government, but the Governor chose to invite the single largest party, the BJP, to form the government and gave it 15 days to prove the majority.
The INC and JD(S) moved the Supreme Court, which ordered a floor test within two days. The BJP could not break the INC and JD(S) combine, and the BJP CM Yedyurappa resigned. In the Karnataka case, the Governor’s decision to blindly (or purposely) invite the single largest party despite the claim of a coalition proved to be the wrong one. He should have exercised his discretion properly and invited the combination that enjoys a majority in the House.
The Sarkaria Commission Report also acknowledges this limited discretion to test the claim of the single largest party. In para 4.4.03(a), the report states that “where no single party or group command absolute majority, the Governor has to exercise his discretion in the selection of the Chief Minister. In such a situation, the leader of the party or group which, in so far as the Governor is able to ascertain, has the largest support in the legislative Assembly, may be called upon to form the Government, leaving it to the Assembly to determine the question of confidence.”
In para 4.11.05, the report also states that “the Governor, while going through the process of selection … should select a leader who, in his (Governor's) judgement, is most likely to command a majority in the Assembly. The Governor's subjective judgement will play an important role” (emphasis supplied). Therefore, the Sarkaria Commission Report does not require the Governor to blindly invite the leader of the single largest party without applying his mind.
In Rameshwar Prasad vs Union of India, the Supreme Court again emphasised that the party claiming a stake to form the government must satisfy the Governor of its majority to form a stable government. It is interesting to note that the TN Governor’s May 7 press release uses this exact phrase to reject Vijay’s claim.
This discretion vested with the Governor is limited. The Governor can only seek prima facie satisfaction of the existence of a majority. He must leave proof of such a majority to a floor test before the Assembly. He also cannot decide issues like anti-defection at this juncture.
What happens if Vijay fails the floor test?
The Constitution does not clearly spell out the next steps in case of a failed floor test. However, if no other alternate formation is viable, the only logical step is that the Governor recommends dissolution of the Assembly under Article 356 because the government of the state cannot be run in accordance with the Constitution, specifically in accordance with Article 164(2).
Now, the Sarkaria Commission report offers more guidance on what a Governor should do when he is faced with an Assembly where no party or coalition can form a government that enjoys the support of the House. The report says that the Governor should first assess the possibility of having “fresh elections without avoidable delay” after consulting all political parties and the Chief Election Commissioner of India. If early fresh elections are possible, the Governor should dissolve the Assembly and ask the outgoing Ministry (if there is one) to remain as a caretaker government till the conclusion of fresh elections.
If early fresh elections are not possible or in a case like Vijay, where he loses his very first floor test, the Governor may recommend President’s rule till the next election. In this scenario, the Governor sends a report to the President under Article 356(1), and the President issues a Proclamation of Presidential rule. This Proclamation has to be placed before Parliament within two months of its issuance. The Sarkaria Commission report recommends that in such a situation, the dissolution of the Assembly must await Parliament’s approval of the Proclamation.
What if Vijay takes the support of breakaway MLAs from AIADMK?
If Vijay claims the support of breakaway MLAs from AIADMK, the Governor cannot ignore the support of such MLAs by citing the anti-defection law contained in the Tenth Schedule. The disqualification in para 2 of the Tenth Schedule is attracted only if the MLA gives up his membership of the AIADMK or votes inside the House contrary to the direction of his party whip. For example, if 10 MLAs from AIADMK decide to support Vijay and they vote for Vijay during the floor test, they will be disqualified only after they cast their vote. That means Vijay’s government survives the floor test, but the MLAs lose their seats, triggering a bye-election for those seats.
An oft-asked question is how many MLAs must defect to be saved by the merger exception in para 4 of the Tenth Schedule. Recently, when seven Aam Aadmi Party MPs joined the BJP, they claimed that since two-thirds of the legislature party of AAP in the Rajya Sabha had defected, they were saved by the merger exception.
This is a perverse reading of para 4, which contemplates two ingredients – (i) The merger of the original political party – not the legislature party – of the defecting group with the new political party and (ii) the acceptance of this merger by not less than two-thirds majority of the legislature party. In the absence of a merger of the two parties themselves, even if two-thirds MLAs from AIADMK support TVK, their act of defection would not be saved by the merger exception unless the AIADMK party merges with the TVK party.
What is likely to happen?
Vijay’s next move depends on his ability to stitch up a coalition that gives him the support of 117 MLAs. The Governor is unlikely to give him indefinite time to prove his majority because the State cannot be without a government. If TVK cannot satisfy the TN Governor of its majority, the TN Governor must ascertain from the second or third largest parties whether they have the requisite majority.
In case the second and third largest parties express disinclination or inability to form a government, the TN Governor must invite Vijay to form a government and prove his majority on the floor of the House immediately. If Vijay fails the floor test, TN is likely to be placed under President’s rule for a minimum of six months, with the Assembly in ‘suspended animation’ pending dissolution. If there is a deadlock, it can and should ultimately be broken only by the electorate.
Richardson Wilson is an advocate practising in the Supreme Court and the Madras High Court. He has appeared for the DMK party in several cases, including the TN Governor case. Views expressed here are the author’s own.
