Another Governor, another party, same questions about gubernatorial discretion 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, asks advocate Richardson Wilson.//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.

[08/05, 11:49] sekarreporter1: https://www.thenewsminute.com/tamil-nadu/another-governor-another-party-same-questions-about-gubernatorial-discretion
[08/05, 11:51] sekarreporter1: ”

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Tamil Nadu
Another Governor, another party, same questions about gubernatorial discretion
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, asks advocate Richardson Wilson.

President of the Tamilaga Vettri Kazhagam (TVK), Vijay
Written by:Richardson Wilson
Published on: 
08 May 2026, 11:44 am
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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 combi
[08/05, 11:54] sekarreporter1: ”
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 merge
[08/05, 11:57] sekarreporter1: ”
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. 

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Tamil Nadu
DMK will decide on viable proposals, Stalin tells party MLAs to abide
DMK chief Stalin also instructed all the party MLAs to remain in Chennai until May 10 and not leave for their native places, indicating that further consultations and political developments are expected over the next two days.

Tamil Nadu Chief Minister and DMK leader MK StalinFacebook/DMK – Dravida Munnetra Kazhagam
Written by:TNM Staff
Published on: 
08 May 2026, 9:37 am
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Amid intense political uncertainty following Tamil Nadu’s Assembly verdict, Dravida Munnetra Kazhagam (DMK) president and outgoing Chief Minister MK Stalin on Thursday, May 7, told newly elected party MLAs that the state was witnessing “rapidly changing political developments” and that the party leadership was examining multiple proposals emerging from within the party.

Addressing the DMK legislature party meeting at the party headquarters, Anna Arivalayam, in Chennai, Stalin said certain leaders within the party had come forward with different suggestions regarding the current political situation and that the leadership would take a decision based on what was “viable”.

“There are current political developments and changing circumstances in Tamil Nadu. Certain sections of leaders have come up with certain proposals. We are considering those proposals and whatever is viable, we will take a decision,” Stalin told MLAs.

He also made it clear that once the party leadership arrives at a decision, every legislator would be expected to abide by it.

“If the party high command takes a decision, you have to accept the decision of the party high command,” he said.

Following the discussions, the DMK legislature party passed a resolution authorising Stalin to take an “emergency decision” considering the prevailing political situation in the state. The resolution also stated that the party would stand by whatever decision is taken by the leadership.

However, sources TNM spoke to said there was no direct reference during the meeting to extending support to the All India Anna Dravida Munnetra Kazhagam (AIADMK) or to any specific arrangement for government formation.

The DMK chief also instructed all party MLAs to remain in Chennai until May 10 and not leave for their native places, indicating that further consultations and political developments are expected over the next two days.

One of the resolutions passed by the DMK legislature party stated that Tamil Nadu was not prepared for another fresh election and stressed the need for a stable government.

The DMK emerged as the second-largest party in the election with 59 seats, while Vijay’s Tamilaga Vettri Kazhagam (TVK) became the single largest party with 108 seats. The AIADMK secured 47 seats.

The TVK, despite receiving support from the Congress, is still short of the majority mark (118) required to form the government. Governor RV Arlekar on Thursday informed TVK president Vijay that the party had not yet demonstrated majority support necessary to stake claim.

Earlier in the day, Stalin also held consultations with leaders of alliance parties, including the Viduthalai Chiruthaigal Katchi (VCK), Communist Party of India (CPI) and Communist Party of India (Marxist) [CPI(M)]. The six MLAs held by the three parties are seen as crucial in the current political scenar
[08/05, 11:57] sekarreporter1: “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”
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