The Governor's gambit: Conventions betrayed in the land of Alladi

On May 7, 2025, in a spectacle rarely witnessed in Indian constitutional practice, the Governor of Tamil Nadu appeared on national television to publicly justify his refusal to invite the Tamil Vettri Kazhagam (TVK), led by actor-turned-politician Vijay, to form the government — despite TVK having emerged as the single largest party in the state assembly election.

He stated, with apparent candour, that he was not asking for a physical parade of members. He merely wanted a list of 118 names, the magic number for a majority in the 234-member Tamil Nadu assembly. He acknowledged, notably, that the floor test must take place in the assembly as mandated by the Supreme Court in SR Bommai v. Union of India (1994). And yet, in the very same breath, he withheld the invitation.

This is a constitutional contradiction of the first order. The Governor cannot simultaneously concede that majority is to be tested on the floor of the House while conditioning his invitation upon proof of that majority outside it. The two propositions are mutually exclusive.

The constitutional position is settled beyond reasonable doubt. When no party obtains an outright majority, the largest single party in the assembly commands the first constitutional claim to be invited to form the government. This is not a matter of political favour; it is a convention carrying the force of constitutional usage, fortified by the Governor's Handbook issued by the Ministry of Home Affairs and affirmed by judicial precedent. TVK, having secured the largest seat share, stood constitutionally entitled to this invitation as a matter of right, not of grace.

It is reported that TVK secured 107 seats on its own, with 5 Congress MLAs having openly extended support, bringing the combined tally to 112 - still some distance from the 118 required for an absolute majority. The Governor's concern about horse trading is, in this light, both premature and misdirected. That concern can only legitimately arise after an invitation is extended and a government is sworn in. To refuse the invitation on the ground of prospective instability is to substitute gubernatorial speculation for constitutional obligation.

The nine-judge Constitution Bench in SR Bommai, speaking through several concurring opinions, was emphatic: the numerical strength of a ministry is not a matter for the Governor to assess privately. It must be determined exclusively on the floor of the House, within a time limit fixed by the Governor. Article 175(2) vests in the Governor the power to summon the legislature for this purpose. The Governor has no constitutional business conducting his own head count in Raj Bhavan.

Justice BP Jeevan Reddy's opinion in Bommai is particularly instructive. He observed that the Governor, in such situations, acts as a constitutional functionary and not as a political adjudicator. To demand a written list of supporting legislators as a precondition to extending an invitation is to arrogate to the Governor a function that the Constitution assigns exclusively to the House of the People's Representatives. The Governor's televised explanation, well-intentioned as it may have appeared, disclosed a fundamental misapprehension of his constitutional role.

Critics may contend that conventions are soft law - aspirational norms, not binding rules. This view, while superficially plausible, is constitutionally erroneous in the Indian context. The Supreme Court has repeatedly held that conventions operating under a written Constitution acquire quasi-legal status when they give content and colour to constitutional provisions. The convention that the largest single party be invited first is one such norm. To disregard it is not a mere breach of etiquette; it is a departure from constitutional order.

The argument that a minority government, once sworn in, may trigger horse-trading inverts constitutional logic. Every government, from its first day, is a minority government until it proves its majority. That is the very reason the floor test was constitutionalised in Bommai. The prospect of floor-crossing is inherent in parliamentary democracy; it cannot be invoked as a reason to deny the constitutional exercise of forming a government.

Tamil Nadu is the land of Alladi Krishnaswami Ayyar, the Madras advocate whom Dr BR Ambedkar himself acknowledged was, by intellectual equipment, better suited to lead the Constituent Assembly's Drafting Committee than Ambedkar. It was Alladi's meticulous constitutional craftsmanship that helped shape the foundational architecture of the republic we inhabit. For the constitutional office of Governor to function, in this very land, in a manner that dishonours the very document Alladi helped draft, is a matter of particular poignancy.

The voters of Tamil Nadu exercised a clear, considered franchise. Their verdict, whatever its arithmetic, deserves constitutional respect. To withhold the invitation that the Constitution mandates is an insult not merely to the party that won, but to the electorate that voted.

It would be constitutionally naive to examine this episode in isolation from the political landscape. The BJP, whose Central government appoints Governors, is effectively a non-entity in Tamil Nadu. The longer the Governor delays, the more opportunity there is for alliance partners to reconsider their affiliations - precisely the horse-trading he claims to wish to avoid. Delay, in this context, functions as encouragement, not prevention.

The BJP may, on constitutional grounds, maintain that the Governor is an independent constitutional authority. Politically, however, that position becomes untenable when the Governor's inaction produces results that benefit the party in power at the Centre while harming the party that won at the State. Constitutional propriety and political optics must align; when they do not, the constitutional credibility of the institution of Governor - already sorely tested across several states in recent years - suffers irreparable damage.

The constitutional course was, and remains, clear: the Governor of Tamil Nadu ought to have invited TVK, as the largest single party, to form the government and prove its majority on the floor of the assembly within a fixed, reasonable timeframe, consistent with SR Bommai. Nothing more was constitutionally required of Vijay before that invitation; nothing less is constitutionally acceptable from the Governor.

By demanding a prior list of names - however softened his language - the Governor effectively reversed the constitutional burden. He placed on the TVK a condition that the Constitution places on no one. That reversal is constitutionally impermissible. The Bommai verdict is not a procedural nicety; it is a structural safeguard for parliamentary democracy. Its cardinal message - that Raj Bhavan is not the theatre for arithmetic, the Assembly is - must be honoured without equivocation.

Vijay and TVK will, in all likelihood, find their way to power in time. But the damage to constitutional practice, the insult to Tamil Nadu's electorate and the shadow cast upon the storied constitutional heritage of Alladi Krishnaswami Ayyar's homeland - these are not so easily repaired. Constitutions are sustained not merely by their written text, but by the fidelity of those entrusted to act under them. When that fidelity falters, something larger than a political episode is lost.

Narasimhan Vijayaraghavan is an advocate practicing before the Madras High Court.