Single largest party or proven numbers? Tamil Nadu revives constitutional debate

THe soft constitutional equilibrize betwixt the regulator’s discreetness and the democratic right of a single-largest party to attempt government formation has once again come into sharp focus in Tamil Nadu, where TVK president Vijay met governor Rajendra Vishwanath Arlekar for the second consecutive day on Thursday amid continuing uncertainty over who should be invited to form the next government.The developments have revived an old constitutional debate that has repeatedly travelled to the Supreme Court over the last three decades: can a governor insist on proof of majority before inviting a party to form the government, or should the single largest party automatically get the first opportunity and prove its strength later on the floor of the House?The answer from constitutional courts has never been entirely one-sided.The core constitutional questionWhile the Supreme Court has consistently held that a governor cannot conduct a “floor test in Raj Bhavan”, it has equally recognised that the governor is empowered, and perhaps constitutionally obligated, to undertake a limited “prima facie” assessment of whether a claimant is likely to command majority support in the Assembly.Vijay’s Tamilaga Vettri Kazhagam (TVK), contesting its first Assembly election, has emerged as the single largest party with 108 seats in the 234-member Assembly. With the support of five Congress MLAs, the party has claimed backing from 113 legislators, still short of the halfway mark of 118.According to people aware of the matter, governor Arlekar reiterated during Thursday’s meeting that Vijay would need to demonstrate support from 118 MLAs before he could be formally invited to form the government.Also Read | Vijay's struggle for majority: Won 108, stuck at 113, how Tamil Nadu poll winner TVK's numbers are stackedThe governor’s office also reportedly sought clarity on which additional parties were willing to support the TVK, particularly since the party itself had projected its claim as part of a broader coalition arrangement.The jury is out on whether that is a prima facie assessment or more.First principlesThe foundational principles were laid down in the Supreme Court’s landmark ruling in SR Bommai Vs Union of India (1994), where the court held that the “proper forum” to test majority is the floor of the House and not the subjective satisfaction of the governor.The judgment also noted that the governor may invite “the leader of the party commanding majority in the House or the single largest party/group” to form the government, signalling that the single largest party remains a constitutionally recognised claimant in a fractured verdict.The prima facie caveatIn the Constitution Bench judgment in Rameshwar Prasad Vs Union of India (2006), the Supreme Court clarified that the governor’s role at the government formation stage is confined to a “prima facie” assessment.The court observed that at the stage of formation of government, the governor’s satisfaction is “only prima facie, not conclusive”, indicating that Raj Bhavan is not expected to conclusively adjudicate majority support but cannot altogether ignore the question either.This “prima facie” doctrine assumed central importance again during the 2019 Maharashtra political crisis in Shiv Sena Vs Union of India, where rival political formations questioned the governor’s decision to swear in a government amid competing claims.Before the Supreme Court, parties challenging the governor’s decision argued that constitutional morality required only a threshold satisfaction based on objective material such as letters of support, with the final determination necessarily left to a floor test.The Supreme Court eventually ordered an immediate floor test, reiterating the now-settled constitutional principle that legislative majority can be conclusively determined only inside the Assembly. Yet, significantly, the court did not hold that governors are barred from seeking any material whatsoever before extending an invitation.The material testLater, in Subhash Desai Vs Union of India (2023), which arose out of the split in the Shiv Sena and the subsequent Maharashtra government formation dispute, the Supreme Court directly examined the validity of the governor’s decision to invite Eknath Shinde to form the government. The court ultimately upheld the governor’s decision, noting that the invitation was extended after the BJP formally communicated its support to Shinde.“Based on the material before him, that is, the communications received, the governor invited Mr Shinde to take the oath of office, and directed him to prove his majority on the floor of the House within a period of seven days… Thus, the decision of the governor inviting Mr Shinde to form the Government was justified,” the constitution bench held.The court’s emphasis on the phrase “based on the material before him” assumes significance in the present Tamil Nadu context. It suggests that while a governor cannot conclusively determine majority support outside the Assembly, the office is nevertheless entitled to examine objective material, such as letters of support and alliance claims, before deciding whom to invite to form the government.Why Tamil Nadu falls into a grey zone?That distinction becomes particularly relevant in the Tamil Nadu situation.Unlike cases involving a clear post-poll alliance crossing the majority mark before staking claim, the TVK currently remains numerically short of the halfway figure, even after Congress support.While parties such as the VCK, CPI and MNM have publicly voiced support for Vijay and urged the governor to invite him to form the government, formal letters of support from enough legislators to cross 118 are yet to emerge.This creates a grey area where both competing principles -- the right of the single largest party to attempt government formation and the governor’s obligation to ensure a viable claimant-- intersect uneasily.The Sarkaria Commission recommendations, repeatedly endorsed by the Supreme Court, recognise the “largest single party staking a claim with support of others” as one of the preferred claimants in a hung Assembly. But the recommendations also contemplate some demonstrable support, however provisional, before the invitation is extended.Past flashpointsIndia’s constitutional history offers several examples where governors have adopted differing standards while inviting parties to form governments in fractured verdicts.In 1997, then Uttar Pradesh governor Romesh Bhandari declined to invite the BJP despite it being the single largest party, expressing doubts over the stability of a proposed government led by Kalyan Singh. Singh was confident of securing support from additional MLAs once invited, but Raj Bhavan remained unconvinced.Yet, barely a year later, the same governor administered the oath to Jagdambika Pal, whose Loktantrik Congress Party had only 22 MLAs in a House of 424, after he produced letters of support from non-BJP parties. The contrasting approaches highlighted how gubernatorial discretion has often varied depending on political circumstances.A similar controversy erupted after the 2005 Jharkhand Assembly elections. The BJP emerged as the single largest party with 30 seats, while the JMM secured 17. Despite this, then governor Syed Sibtey Razi invited Shibu Soren and the UPA alliance to form the government on the claim that they enjoyed majority support.The decision triggered intense constitutional criticism because the BJP-led NDA also asserted that it had the numbers. Soren was eventually unable to prove majority and resigned within days, paving the way for Arjun Munda to take over.These episodes underscore that no single constitutional convention has uniformly governed hung Assemblies. Questions surrounding the timing of swearing-in ceremonies, the adequacy of letters of support, and the timeframe for floor tests have repeatedly generated constitutional friction.The middle pathThis is perhaps why courts have repeatedly insisted on a careful middle path.The governor cannot insist on a conclusive majority demonstration akin to a floor test before inviting a claimant. But equally, the office is not expected to function as a mere ceremonial conveyor belt automatically inviting every single largest party regardless of available numbers.The constitutional design instead favours a limited prima facie scrutiny followed by an expeditious floor test.For now, the Tamil Nadu developments underscore how India’s recurring hung verdicts continue to test constitutional conventions that remain partly codified in judgments and partly dependent on political prudence.Whether Vijay eventually secures the numbers or not, the churn around Lok Bhavan once again highlights that in India’s parliamentary democracy, government formation is often shaped as much by constitutional convention as by constitutional text. It also underlines how invitations to form governments involve gubernatorial discretion -- an area that has repeatedly drawn criticism over perceived political proximity and uneven standards in dealing with rival claimants to power.