Tamil Nadu for the first time since the 1950s is witnessing a hung assembly with actor-politician Vijay’s Tamilaga Vettri Kazhagam (TVK), the single largest party, is struggling to secure numbers to cross the halfway mark in the 234-member house. But what are the options before Vijay and what does the Constitution say regarding government formation when there is a hung assembly.
Vijay's options and what does the constitution say:
The emergence of a hung assembly presents a profound challenge to the Constitutional order, elevating the governor’s role from a ceremonial figurehead to a pivotal arbiter of democratic stability. The governor’s exercise of discretion in such instances is a quasi-judicial function that must be strictly insulated from the vagaries of partisan politics. At the heart of this crisis lies a systemic tension: The affirmative duty to respect the democratic mandate, often embodied by the single largest party versus the Constitutional imperative to ensure a stable and viable executive.
The current impasse in Tamil Nadu centres on Vijay, the leader of the single largest party, and the legal ambiguity surrounding the governor’s timeline for invitation. While politicians often demand immediate action based on numerical plurality, the Constitution is silent on the specific mechanics of this discretionary window. This silence does not, however, imply a vacuum of authority. Governor Rajendra Arlekar’s current caution reflects a deliberate navigation of established legal frameworks and conventions designed to prevent the subversion of the legislative process. To resolve this tension, one must evaluate the hierarchical principles and judicial constraints that govern the subjective satisfaction of the governor.
The Sarkaria commission framework and the hierarchy of claimants
To maintain political neutrality and prevent the pitfalls of hasty appointments, the governor’s discretion is bound by a structured sequence of preferences. This hierarchy, established by the Sarkaria Commission, provides a roadmap to ensure that the individual, whoever is appointed as chief minister is the claimant most likely to command a majority on the floor of the house. By adhering to this sequence, the governor fulfils a Constitutional mandate to provide transparency and legitimacy to the formation process. The Sarkaria Commission prescribes the following order of preference: the first option is that a coalition must have been formed prior to the election that collectively holds the highest number of seats. The second option is that the single largest party can claim the the ability to form a government through additional support. The third option is a post-poll coalition where a new alliance can be formed after the election where all constituent parties participate in the executive. The fifth option is that the post- poll coalition or an alliance where certain parties provide support from the outside without joining the Cabinet.
And now Vijay’s standing as the leader of the SLP places him squarely within the second tier of this hierarchy. This distinction is legally significant. Had Vijay represented a Tier 1 claimant, a pre-poll alliance, any delay in invitation by the governor would be Constitutionally indefensible. However, as a Tier 2 claimant, Vijay’s position provides only a prima facie claim, not an absolute right to immediate appointment. This status provides the governor with the legal cover to demand evidence of support before exercising his discretion, ensuring that the appointment does not merely facilitate "horse-trading" in a house divided into multiple, volatile blocs.
Precedents in government formation
While the governor is vested with broad discretion, the Supreme Court has established critical guard rails to ensure this power is not exercised arbitrarily. Judicial review has consistently affirmed that the governor’s subjective satisfaction must be rooted in constitutional principles of stability and integrity rather than political expediency. The key legal benchmarks include the Bommai case judgement, the Rameshwar Prasad vs. UoI (2005) case and the The Karnataka (2018) and Maharashtra (2019) precedents.
The Bommai case is a landmark judgment that established the assembly floor test as the ultimate and exclusive arbiter of a majority. It specifically denounced the parading of MLAs or head counts before the governor as substitutes for the floor of the house. Crucially, Bommai case does not strip the governor of the right to perform preliminary verification. It merely dictates that Raj Bhavan cannot be the final site of proof. The governor retains the authority to seek letters of support to satisfy himself of a claimant's viability before the oath is administered.
The second being the Rameshwar Prasad vs. UoI (2005) case. In this case the court ruled that the governor has an affirmative mandate to enable government formation. In the Bihar case, the dissolution of the Assembly to prevent a party from staking a claim—based on the mere apprehension of illegal means—was declared unconstitutional. The governor cannot abdicate his duty by recommending President’s rule prematurely.
The third is the 2018 Karnataka and 2019 Maharashtra precedents. These cases underscore the dangers of midnight swearing-ins and the granting of excessive timelines for floor tests. In the 2018 Karnataka case, the court intervened to drastically shorten the window given to B.S. Yeddyurappa, viewing the long timelines as conducive to extraneous influences like horse trading. These precedents have made Governor Arlekar increasingly cautious, as they highlight the risk of conferring an unfair advantage to a minority claimant.
These judicial interventions create a rigorous environment where the governor must bridge the gap between enabling a government and protecting the house's integrity.
Options and legal hurdles for Vijay
As of now Vijay who is staking claim to form the government can navigate a precarious Constitutional threshold – the burden of establishing prima facie viability without transgressing the ethical boundaries of legislative integrity. His path forward is defined by two primary Constitutional pathways, each laden with specific legal hurdles. Under this convention, the governor invites the leader of the single largest party based on numerical plurality. However, the Supreme Court’s stance in the Yeddyurappa case is that any such invitation is now inextricably linked to a quick floor test requirement. The governor cannot grant a long timeline that might be used to consolidate power through extraneous considerations. Vijay must, therefore, be prepared to prove his majority within hours, not weeks, of his appointment.
Alternatively, the governor possesses the Constitutional right to demand letters of support to ensure the claimant can cross the majority mark prior to the invitation. This is a valid exercise of the governor’s right to subjective satisfaction. It serves as a safeguard against installing a minority regime that might collapse immediately, thereby upholding the dignity of the House.
The shift in judicial temperament means that the SLP route no longer offers a leisurely period for consolidation. The ability to demonstrate support via preliminary letters has become a more stable, albeit more demanding, prerequisite for power.
The current impasse is a collision between two valid Constitutional propositions – the duty to enable the formation of a government (as articulated in the Bihar case) and the duty to prevent a hasty, minority-led regime that encourages illegal means (as warned in the Karnataka and Maharashtra precedents). These are not mutually exclusive, rather they are reconciled through the lens of Constitutional morality.
The governor’s goal is to harmonise the legality of numbers with the legality of process. The correct Constitutional course for Vijay and the governor involves a recognition that both the immediate floor test and the preliminary seeking of letters of support are valid legal exercises. The governor must not abdicate his responsibility through arbitrary delay, but neither must he facilitate the subversion of the mandate by administering the oath without prima facie satisfaction.
Ultimately, the integrity of the house depends on a demonstrable majority. Whether that majority is evidenced through preliminary letters or a swift vote on the floor, the governor’s primary duty is to facilitate a government that can command the confidence of the assembly. The exercise of gubernatorial discretion must ensure that the subjective satisfaction of the governor is used not as a tool for partisan advantage, but as a shield for the sanctity of the Constitutional process.
