The Governor who forgot his job

The Tamil Nadu Assembly election verdict of 2026 was decisive. The Tamilaga Vettri Kazhagam (TVK), contesting its first election, emerged as the single largest party with 108 seats in a House of 234. The ruling Dravida Munnetra Kazhagam (DMK) was reduced to 59. The All India Anna Dravida Munnetra Kazhagam (AIADMK) won 47. TVK founder, C. Joseph Vijay, had defeated the two Dravidian parties that had ruled Tamil Nadu uninterrupted for 59 years between them. The voter had spoken plainly. Lok Bhavan listened selectively.

Governor Rajendra Vishwanath Arlekar refused to invite the leader of the single largest party to form the government. Instead, he demanded signed letters from 118 Members of the Legislative Assembly (MLA) before he would administer the oath. Mr. Vijay went to the Lok Bhavan three times, and each time he was sent back. Last-minute support from the Viduthalai Chiruthaigal Katchi (VCK) and the Indian Union Muslim League (IUML) eventually took the tally to 121. The Governor then graciously consented. The swearing-in was fixed for May 10 and the Governor has further directed the Chief Minister to seek a vote of confidence on or before May 13. Every step of this exercise is constitutionally wrong. The errors are not minor. They go to the foundation of parliamentary democracy in the States.

What the Governor is required to do

The Governor’s function on the morrow of an election is narrow and well settled. He is to identify the person most likely to command the confidence of the House and invite that person to be sworn in. He is not a returning officer. He is not an arithmetic tutor. He has no business demanding that a Chief Minister-designate produce a signed muster roll before allowing him to take the oath.

The Sarkaria Commission of 1988, the Venkatachaliah Commission of 2002, and the Punchhi Commission of 2010 were unanimous on the order of preference. The single largest pre-poll alliance comes first. The single largest party that stakes a claim and can form a stable government comes next. Pre-poll combinations command priority because the voter knows what he is voting for. This sequence has been honoured in the breach in Goa, Manipur, Karnataka, Maharashtra, and now Tamil Nadu. The breaches have been remarkably one-sided.

In Goa in 2017, Governor Mridula Sinha invited the Bharatiya Janata Party (BJP), which had 13 seats in a House of 40, ahead of the Congress, which had 17. In the same year, in Manipur, the BJP with 21 seats was preferred over the Congress with 28. In 2018, in Karnataka (a House of 224), Governor Vajubhai Vala invited the BJP with 104 seats and gave it 15 days to assemble a majority, ignoring a written letter from a Congress-Janata Dal(S) post-poll alliance with 115.

In every one of those cases the BJP was the beneficiary of an expansive reading of gubernatorial discretion. In Tamil Nadu, where the BJP is not a contender and the Centre’s preferred regional partner has been routed, the doctrine has suddenly contracted. The Governor now demands proof of an absolute majority before he will issue an invitation at all. This is not principle. It is partisanship dressed up as prudence.

There have been minority governments

The Governor seems to have forgotten that minority governments are a familiar feature of Indian parliamentary practice. On May 16, 1996, the BJP’s Atal Bihari Vajpayee was sworn in by President Shankar Dayal Sharma and given 13 days to prove a majority he never possessed. He resigned on May 28 without facing a vote. Nobody suggested that he should not have been sworn in. P.V. Narasimha Rao governed for five years at the head of a minority Congress government and survived a no-confidence motion in July 1993 by a single vote. H.D. Deve Gowda and I.K. Gujral led minority United Front governments at the Centre. In 2004, the first ministry of the Congress’s Manmohan Singh was a minority arrangement that ran a full term with outside support.

The constitutional test has never been the production of signatures in advance at Rashtrapati Bhavan/Lok Bhavan. The only testing ground is the floor of the House. A government continues so long as it has not lost a motion of no confidence. That is the essence of Article 164(2) and the convention that flows from it.

The Governor’s demand that Mr. Vijay produce signed letters from a majority before being sworn in is, therefore, an invention. No provision of the Constitution requires it. No commission has recommended it. No precedent supports it. Anyone who wished to challenge Mr. Vijay’s claim was free to bring a motion of no-confidence on the floor of the House. The MLAs would then have voted on the record, with their constituents watching. That is how parliamentary democracy is supposed to work.

Equally objectionable is the direction that a vote of confidence be taken on or before May 13. The convention is that a newly sworn-in Chief Minister addresses the House at its first session; the address is debated, and the government’s majority is tested in the ordinary course. To compress this into 72 hours is to invite the conduct the anti-defection law was meant to suppress. A three-day deadline signals to disgruntled legislators, and to those willing to do business with them, that the window for horse-trading is open but short. It is an invitation, written in the Governor’s own hand, to the kind of resort politics this country has seen too often.

The Karnataka episode of 2018 made this point unambiguously. The Supreme Court of India, hearing the matter at midnight, held that a 15-day window to prove a majority was an invitation to engineered defections. The remedy then was to compress the timetable to a single day. That remedy was tailored to a Governor who had wrongly invited a party that did not have the numbers. It cannot be inverted into a doctrine that the single largest party, which has staked its claim and produced support letters, must prove its majority within 72 hours of taking office.

What the Supreme Court must now say

The Court has had many opportunities, in S.R. Bommai (1994), Rameshwar Prasad (2006) and the Karnataka order of 2018, to lay down the law on gubernatorial discretion in government formation. It has, on each occasion, gone part of the way. The time has come to go all the way.

Three propositions must be settled. First, the Governor’s task is to identify the person most likely to command confidence. He must follow the order of preference set out by the Sarkaria, Venkatachaliah and Punchhi Commissions. He has no power to demand pre-swearing-in proof of an absolute majority. Second, a minority government, like any other, falls only on the floor of the House. Third, the convention that the first session of a new Assembly tests the government’s majority in the ordinary course should be replaced by requiring the Opposition to bring in a motion of no confidence if they so desire. Ordering a confidence vote is anathema. Minority governments will die before they are born. The only democratic way is a no-confidence vote with debate on why a government needs to be thrown out.

A sworn-in government must be allowed to debate and defend its record on governance, on the floor of the House. In a fresh House, the threat of dissolution is the strongest discipline against defection. An MLA who has just won a five-year term is reluctant to risk a fresh election. If a government is allowed to settle, prove its majority on the floor in the normal course, and govern, the cost of pulling it down rises sharply.

The Governors of India are appointed at the pleasure of the President of India. They are not elected. The least the country can ask is that they remember at whose pleasure they hold office, and whose mandate they are bound to respect. It is the voter’s. Not the Centre’s.

Rajeev Dhavan is a Senior Advocate of the Supreme Court of India. Sanjay Hegde is a Senior Advocate of the Supreme Court of India