EARLIER TODAY, actor-turned politician Joseph Vijay was sworn in as Tamil Nadu’s new chief minister following days of uncertainty across an election season that has given analysts across the country much to talk about. Vijay’s storming win against the AIADMK & DMK duopoly, with his party securing 108 seats in a 234-member Tamil Nadu assembly was one of the year’s most discussed electoral verdicts. On May 6, Congress, with five more seats, had announced support. But Vijay had won from two constituencies, and once one seat was vacated, TVK’s effective legislative strength fell to 107. On that arithmetic, TVK plus Congress stood at 112, six short of 118, the number required to form Government in Tamil Nadu.
Being the single largest party, Vijay attempted to form the government but the Governor Rajendra Vishwanath Arlekar had declined to invite Vijay on multiple visits in the past few days, stating that he needed documentary support adding up to 118 MLAs before any oath was administered. His stated condition as of Friday, May 8, as India Today had reported, was letters showing “108, plus these 5, plus these 7 seats, and that makes 118”, a formulation that yields 120 by ordinary arithmetic. Finally, on Saturday night, following support from four parties – Communist Party of India (CPI), Communist Party of India-Marxist (CPI-M), Viduthalai Chiruthaigal Katchi (VCK) and Indian Union Muslim League (IUML) – Vijay received an appointment letter. Maths aside, more important is the onus placed here and power assumed by the Governor. It also reads in a requirement of individualized, Raj Bhavan-certified proof from MLAs reaching the majority mark, before any oath is taken.
The argument I make is that once a claimant produces credible material which, taken at face value, shows majority support, the Governor cannot convert Raj Bhavan into a private forum for certifying legislative confidence. I will call this ‘receipt constitutionalism’: the idea that constitutional legitimacy in a hung House depends not on a prompt public vote but on private documentary receipts collected and certified by Raj Bhavan.
To establish this, I draw a distinction between three kinds of proof in government formation, which clarifies both what the Governor may legitimately ask for and what he is actually demanding. I also examine the constitutional text and the June 1949 Constituent Assembly debates on draft Article 144 establish that “pleasure” in Article 164(1) of the Constitution is conditioned on majority confidence. The judicial doctrine, stemming from cases such as S.R.Bommai (1994) to Shivraj Singh Chouhan (2020), structures the Governor’s appointment function. The comparative practice of Westminster systems closes the argument before a brief word on codification.
Maths aside, more important is the onus placed here and power assumed by the Governor.
Three Kinds of Proof: What the Governor may and may not demand
I argue that there are three kinds of proof in government formation, and the distinction between them can add clarity to this dispute.
The first is threshold proof: material the Governor may legitimately ask for before appointment. Party letters, coalition resolutions, written support from independents, public declarations by party leaders. This kind of proof establishes that a claimant appears most likely to command confidence. The Governor is entitled to it, and asking for it is an exercise of legitimate ascertainment. This flows from the Sarkaria Commission whose preference order for hung assemblies implies, as a logical precondition, that the Governor must assess something before choosing whom to invite.
The second is confidence proof: what only the Assembly can produce. A recorded vote on the floor, public and constitutionally consequential. A support letter is evidence of likelihood. A floor vote is the constitutional event. Confidence proof does not establish that confidence appears likely; it constitutes the fact of confidence itself. The Assembly has exclusive jurisdiction over this category. This idea comes from the Supreme Court’s S.R.Bommai decision where it was noted that the floor of the House is the only legitimate site for testing where the majority lies.
The third is moral purity proof: evidence that declared support was given freely, without bargaining, opportunism, or inducement. This is the Governor’s actual anxiety in most hung-assembly disputes, including this one. But the Constitution does not assign moral purity review to the Governor. The Tenth Schedule assigns part of it to the Speaker. Ordinary criminal law handles another part. The floor vote handles the rest: an MLA who crossed the aisle for the wrong reasons still registers as a vote on the record.
The Governor’s mistake is to collapse these categories. By demanding individualized signed letters from 118 MLAs, he was asking for something between threshold proof and confidence proof, with an overlay of moral purity review. Receipt constitutionalism takes hold at exactly this point: the substitution of a Raj Bhavan documentary trial for the floor test the Constitution actually prescribes.
Ascertainment, not Adjudication
Articles 163, 164(1), and 164(2) arrange themselves in a sequence. Article 163 says the Council of Ministers exists to aid and advise the Governor, and the Governor acts on that advice except where the Constitution expressly requires him to act in his discretion. That carve-out is narrow and textual. In a hung assembly, before any Council of Ministers exists, there is a genuine zone of gubernatorial discretion, and this has to be acknowledged as well.
Article 164(1) says the Chief Minister shall be appointed by the Governor and that ministers hold office during his pleasure. Article 164(2) says the Council shall be collectively responsible to the Legislative Assembly. Reading Article 164 holistically, the Governor’s appointment power exists to produce a government that faces the Assembly. Appointment is the upstream act that makes downstream accountability possible.
The Governor who treats his appointment function as a private adjudication of legislative confidence has misread what his discretion is for, and his decision is reviewable on exactly that ground.
The discretion the Governor has in a hung house is ascertainment. His job is to identify the most plausible claimant and refer the confidence question to the Assembly. The ruling in Shamsher Singh (1974) is relevant here as it clarifies that gubernatorial power is constitutional power, not personal power. Even where discretion exists, it must be exercised to facilitate responsible government, not to create a parallel executive forum inside Raj Bhavan. The Governor’s function in this context is evidentiary and provisional, not adjudicatory and final. The Governor who treats his appointment function as a private adjudication of legislative confidence has misread what his discretion is for, and his decision is reviewable on exactly that ground.
Pleasure and Confidence: The Constituent Assembly’s own answer
The word “pleasure” in Article 164(1) is a term of frequent contestation and has to be understood in its historical context. The members of the Constituent Assembly who debated draft Article 144 on June 1, 1949 appreciated its history. For instance, H.V. Pataskar called the phrase “a remnant of the old idea,” pointing out that it derived from a time when ministers held office during the king’s pleasure, and arguing it was inappropriate for the design being put together in 1949.
Mohammed Ismail Khan moved an amendment to replace “during his pleasure” with “so long as they enjoy the confidence of the Legislative Assembly of the State,” and put the central tension explicitly on the record. He asked: “when there is a variance between the pleasure of the Governor and the pleasure of the House, which is to prevail, whether it is the view of the Governor or the view of the Legislature?”
B.R. Ambedkar’s answer is illuminating as he said:
“I have no doubt about it that it is the intention of this Constitution that the Ministry shall hold office during such time as it holds the confidence of the majority. It is on that principle that the Constitution will work.”
The phrase “during pleasure” was retained because it is standard across Westminster constitutions and the principle of confidence is already embedded in it. “‘During pleasure’,” he continued, “is always understood to mean that the ‘pleasure’ shall not continue notwithstanding the fact that the Ministry has lost the confidence of the majority. The moment the Ministry has lost the confidence of the majority it is presumed that the President will exercise his ‘pleasure’ in dismissing the Ministry.”
I want to acknowledge the distinction here. Ambedkar was answering the dismissal question: when can the Governor’s pleasure be withdrawn? He was not directly addressing the appointment of a new government.
But I argue this logic can be and ought to be inverted to understand the true ambit of Article 164. “Pleasure” was retained only because it was understood to operate through responsible government. Once “pleasure” is constitutionally domesticated by legislative confidence, the Governor cannot use the formal appointment power to create an independent confidence-verification procedure outside the House. The appointment stage and the dismissal stage are governed by the same constitutional logic, and that logic is that confidence belongs to the Assembly.
Is it a legitimate ascertainment exercise grounded in objective material, or is it a pre-oath evidentiary trial that the Constitution does not authorise?
The horse-trading concern sits alongside this and deserves a direct answer. The Tenth Schedule places post-appointment defection under the Speaker’s jurisdiction, which is part of the constitutional response to post-oath instability. But horse-trading is broader than formal defection. The more complete answer is this: where the Assembly has been constituted and rival claims can be tested constitutionally, the Governor should not defeat government formation on speculative fears of that evil. The constitutional schema is clear: Defection issues go to the Speaker; Corruption issues go to ordinary law; Confidence goes to the House.
The Floor, Not the Antechamber
The judicial record on this question leaves little room for ambiguity. The nine-judge Bench in Bommai constitutionalises the idea that where legislative confidence is capable of being tested in the House, gubernatorial satisfaction should not replace that test. The Court was clear that the floor of the House is the only legitimate site for testing where the majority lies. The Governor’s objection that Bommai is not a government-formation case is not frivolous, but the structural principle holds regardless: any situation in which the Governor is substituting his own assessment for the Assembly’s vote engages Bommai’s logic, and receipt constitutionalism is precisely such a substitution.
More useful here might be the Supreme Court’s decision in Rameshwar Prasad (2006). The Governor recommended dissolving the Bihar assembly in 2005 without permitting any formation claim to proceed, on the ground that the post-result politics looked like horse-trading. The Court held that pre-emptive action of that kind was unconstitutional even when the horse-trading concern was genuine. The point is not that the Governor’s concern was wrong. It is that private gubernatorial speculation about whether confidence will hold is not the constitutional mechanism for resolving it. The floor of the House is the constitutionally ordained forum, and private assessment by the Governor is, as the Court recorded, “anathema” to democracy.
Drawing on Jagdambika Pal (1998), Anil Kumar Jha (2005), and the Goa, Karnataka, and Maharashtra episodes, the Court’s consistent response to disputed majority claims has been to compress time and send the question to the floor. The judgment also recognises that the Governor’s decision in formation disputes is reviewable for whether it rests on relevant and germane material. That is the standard by which the Tamil Nadu Governor’s demand should be assessed: is it a legitimate ascertainment exercise grounded in objective material, or is it a pre-oath evidentiary trial that the Constitution does not authorise?
Westminster, without the theatre
The comparative record reinforces this. The British and New Zealand Cabinet Manuals describe the Head of State’s role in hung-parliament situations in language that is almost identical. The UK Cabinet Manual says the Sovereign invites the person who appears most likely to command the confidence of the House, with the expectation that political actors, not the Sovereign, communicate who is best placed to do so. New Zealand’s Cabinet Manual similarly treats government formation as a political process clarified by public statements and party agreements, not a quasi-judicial inquiry by the Governor-General. In neither system does the Head of State conduct a documentary evidentiary trial.
The Indian case is more, not less, demanding of restraint on this point, because the Governor is not a hereditary or ceremonial sovereign insulated from Union politics, but a Union-appointed constitutional functionary operating in a federal system where gubernatorial discretion has repeatedly been politically contested. The argument for limiting that discretion to ascertainment is therefore stronger in India than in the Westminster systems from which the vocabulary was borrowed.
India already has material where this issue was addressed. The Sarkaria Commission had already laid down a preference order for hung assemblies, placing the single largest party staking a claim with declared external support in the second tier, and specifying that the chosen claimant should prove majority on the floor within thirty days. The Punchhi Commission, between 2007 and 2010, recommended a constitutional amendment to limit gubernatorial discretion further. Though neither recommendation was codified, perhaps this codification to add further regarding the Governor’s discretion is the lesson that the current dispute brings to the fore.
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