Vijay doesn't have to 'prove' his majority since Constitution never asked him to

Tamilaga Vettri Kazhagam (TVK) chief C Joseph Vijay’s letter to Tamil Nadu Governor Rajendra Vishwanath Arlekar on Tuesday (May 5) was correctly addressed but unnecessarily framed.

With 108 legislators in a House of 234, Vijay staked his claim to form the government. He asked the governor for 15 days to prove his majority. He need not have. The Constitution does not require him to.

The case from Madras State in early 1950s

It is worth recalling how a government in the former Madras State took office in similar circumstances. The first elections to the Madras Legislative Assembly under universal adult franchise were declared in March 1952. The Indian National Congress was reduced to 152 seats in a House of 375.

Also read: Tamil Nadu verdict 2026: Will TVK chief Vijay form government with Congress?

A communist-led front commanded the larger combined strength on the opposition benches. The governor of then Madras State, Sri Prakasa, nonetheless invited C Rajagopalachari to form the government as the leader of the single-largest party. Rajaji was sworn in on April 10, 1952. He did not seek a vote of confidence at the outset. He did not seek one in a week, or a fortnight, or a month.

The deeper damage caused by the ‘convention’ is not procedural. The fortnight deadline rewards exactly the practices the framers feared. Defection. Engineered abstention. The temporary disappearance of legislators into resorts.

The first confidence motion in post-Independence India came on July 3, 1952. Rajaji moved it on his own initiative, after nearly three months of governing as a minority chief minister. He won it 200 to 151. Whether one approves of the means by which he assembled those numbers is a separate question. The constitutional point is that no governor stood over the chief minister with a stopwatch.

The trend over hung verdicts since 1990s

The choreography that has settled around hung verdicts since the 1990s now runs on autopilot. The single-largest party stakes claim. The governor invites its leader. A floor test is fixed within a week or a fortnight. Cameras count heads. A government either is, or is not, certified. Anyone who watched the cycle in Karnataka in 2018, in Madhya Pradesh and Maharashtra in 2020, or in Maharashtra again in 2022 will recognise the steps.

What is harder to find is the constitutional text that requires any of it.

Article 164(2) of the Constitution says only that the Council of Ministers “shall be collectively responsible to the Legislative Assembly of the State.” That phrasing matters.

It requires the House not be against the government. It does not require the government to prove the House is for it. Those formulations sound similar but are constitutionally distinct. The first is satisfied by silence. The second demands a vote.

The distinction was not accidental. The Government of India Act 1935 had bound the governor-general by a written direction called the Instrument of Instructions. That direction required him to select ministers in consultation with the person “most likely to command a stable majority in the Legislature”.

Also read: Understanding the Vijay phenomenon in Tamil Nadu politics

The Constituent Assembly chose not to reproduce that disciplinary text. What it carried over from the Instrument was the welfare-policy guidance that became the Directive Principles, not the majority-formation rule. The framers had the option of writing a “stable majority” requirement into Article 164. They declined.

The case of PM Charan Singh, who never faced House

What has filled the vacuum is not the Constitution but a ‘convention’, and a relatively recent one. At the Union level, Charan Singh in 1979 was the first prime minister whom a president asked to seek a vote of confidence on assumption of office. He resigned before facing the House.

Narasimha Rao moved a confidence motion in 1991 on the advice of President R Venkataraman, despite running a minority government. Atal Bihari Vajpayee was asked to do so by President K R Narayanan in 1998. By the time Karnataka, Madhya Pradesh and Maharashtra came around, what had been an ad hoc presidential or gubernatorial preference had hardened into doctrine. The fortnight became the fixed unit.

The Supreme Court’s nine-judge bench in S R Bommai v. Union of India case is routinely cited to underwrite this. It cannot. Bommai held the opposite.

“Minority governments are not unknown,” the Court observed, adding that “what is necessary is that the government should enjoy the confidence of the House.” It was emphatic that the question of confidence is not for the governor to decide. It can be decided only on the floor of the House. The governor’s subjective assessment, the Court held, has no place in the verification.

Read carefully, Bommai polices Raj Bhavan against pre-empting the Assembly. It does not authorise Raj Bhavan to summon the Assembly to satisfy itself. A doctrinal slippage has crept in over the three decades since.

The principle was that the governor cannot adjudicate confidence. It has been quietly converted into the proposition that he must arrange for the Assembly to do so on his timetable. The conversion is unwarranted.

The TN scenario

Reports from Tamil Nadu Lok Bhavan that the governor is “consulting legal experts” before inviting Vijay should give pause for a different reason. Vijay leads the single-largest party by a wide margin. The Dravida Munnetra Kazhagam (DMK) has 59 seats. The All-India Anna Dravida Munnetra Kazhagam (AIADMK) has 47.

Also read: NCERT textbook ban: Judiciary moves fastest when it's the one being judged

There is no rival claimant with a credible parliamentary base. The arithmetic confronting the governor is whether Vijay can gather 10 more legislators from the smaller parties and Independents. That is not a constitutional question. It is a political one. It belongs in the Assembly.

To the obvious objection, that the governor must satisfy himself before swearing in someone, the answer is yes. But the satisfaction required is minimal and proxy driven.

Where one party has won an outright majority, the governor invites its leader. Where no party has, he ordinarily invites the leader of the single-largest party. Where a post-poll coalition presents stronger numbers than the single largest party, as in Goa and Manipur in 2017, the governor may invite that coalition.

Bommai itself preserved this discretion for situations after a general election. What the governor may not do, on Bommai’s own reasoning, is verify lists of supporting legislators himself. That is the precise function the floor test is meant to perform.

The deeper damage caused by the ‘convention’ is not procedural. It is to the texture of parliamentary government. The fortnight deadline rewards exactly the practices the framers feared. Defection. Engineered abstention. The temporary disappearance of legislators into resorts.

Also read: ‘If Rahul campaigned with Vijay, alliance could have won 180-190 seats'

The numerical majority assembled in such conditions tells one little about whether the government commands real assent. It tells one only that, on a given afternoon, more hands went up than went down.

Legitimacy of minority govts

The ‘convention’ also obscures the legitimacy of minority government. Charan Singh, V P Singh, Chandra Shekhar, Narasimha Rao, Deve Gowda and I K Gujral all governed as prime ministers at points without an outright majority. None of those administrations was constitutionally infirm.

Some were among the most consequential of the post-independence period. A chief minister must now clear 118 in a 234-seat House before he is permitted to govern, and clear it within a fortnight.

The contemporary insistence on this would have struck most of the framers as a peculiar accretion.

What might Tamil Nadu look like if the governor declined to play auditor? Vijay would be invited to form a government as the leader of the single-largest party. He would be sworn in.

The assembly, when summoned, would either vote against the Council of Ministers or it would not. A vote against the Council of Ministers requires a motion of no-confidence presented by the Opposition, not a confidence motion engineered by the government.

The DMK, reduced from 159 seats in the last Assembly to 59 in this one, may not be eager to bring one. The AIADMK, with 47, may not be positioned to. A minority TVK government surviving on the abstention of one or both Dravidian parties is plausible.

Such a government, lasting until the next election or the next no-confidence motion, would be neither novel nor unconstitutional. It would be closer to what Article 164(2) actually says than the ‘convention’ that has displaced it.

There is a separate question of whether such an arrangement would be desirable as a matter of policy. That question deserves its own answer. The constitutional question, however, is narrower.

The framers gave Tamil Nadu a Council of Ministers collectively responsible to its Legislative Assembly, not to its governor. Vijay’s offer to prove his majority within 15 days is a courtesy he has chosen to extend, not an obligation the Constitution imposes.

The governor would do well to recognise the difference.