Governor’s Role in Government Formation, A Constitutional Gray Area That Needs Clarity
The recent political drama in Tamil Nadu has once again brought to the fore a long-standing constitutional ambiguity: the role of the Governor in appointing a Chief Minister when no single party has a clear majority. The Tamilaga Vettri Kazhagam (TVK) secured 108 seats, ten short of a majority in the 234-member Assembly. After hectic parleys with smaller parties, letters of support from 120 members were provided to the Governor. The Governor then invited TVK chief C. Joseph Vijay to form the government, who was sworn in as Chief Minister. But what if the numbers had been closer? What if the Governor had chosen differently? The absence of clear, codified rules has led to inconsistencies and controversies across several States.
Article 164(1) of the Constitution provides that the Chief Minister of a State shall be appointed by the Governor, while other ministers shall be appointed by the Governor on the advice of the Chief Minister. When a single party secures a clear majority in the Assembly, the Governor’s role is purely ceremonial: he or she invites the leader of that legislative party to form the government. The problem arises when no party secures a majority—a situation known as a hung Assembly. The Constitution does not prescribe any criteria for selecting the Chief Minister in such an event. The Governor must exercise his or her discretion.
This discretion is not unbounded. The Sarkaria Commission (1987), followed by the Punchhi Commission (2010), recommended a clear order of preference. First, a pre-poll alliance that enjoys a majority should be invited. Next, the single largest party that stakes a claim to form the government with the support of others should be invited. Then, a post-electoral coalition of parties, with all partners in the coalition joining the government. Finally, a post-electoral coalition where some partners support from outside. This order of preference is logical. It respects the voter’s intent: a pre-poll alliance gives the voter a clear sense of what they are voting for. A post-poll coalition formed after the election is inherently less legitimate.
However, Governors have, on numerous occasions, appointed Chief Ministers without following this order. The result has been a series of constitutional crises that have eroded public trust in the office of the Governor. After the Assembly elections in Goa (2017) and Manipur (2017), the Governors invited BJP-led post-poll alliances to form the government, even though the Congress had emerged as the single largest party. These governments later proved their majority on the floor of the House, but the principle of inviting the single largest party first was violated. In Karnataka (2018), the Governor invited the BJP, as the single largest party, to form the government over a claim by the post-poll alliance of the Congress and the Janata Dal (Secular). The BJP failed to prove its majority, and the Chief Minister resigned. In 2019, the Governor of Maharashtra appointed a BJP-led coalition government when there was uncertainty as to whether it enjoyed a majority. That government also collapsed.
In each of these cases, the Governor’s decision was legally defensible because the Constitution gives him or her discretion. But was it politically defensible? Was it consistent with the spirit of democracy? The critics argue that Governors have often functioned more as agents of the Union government than as impartial constitutional heads of the States. The pattern is striking: in States where the BJP was the single largest party, the Governor invited the BJP; in States where the Congress was the single largest party, the Governor invited a BJP-led coalition. The perception of partisanship has damaged the office.
The Supreme Court has intervened in some of these cases, but its interventions have not produced a consistent doctrine. In the S.R. Bommai v. Union of India (1994), the Court categorically held that the ‘floor of the House’ is the constitutionally ordained forum for testing the majority support enjoyed by a government. This was reiterated in the Rameshwar Prasad case (2006). But the Court has also held that the Governor’s discretion is not justiciable in certain circumstances. The result is a patchwork of precedents that leave the Governor with wide latitude.
In the current Tamil Nadu situation, the TVK was the only party to stake a claim to form the government. The Governor’s office indicated that, since the claim was from a post-poll alliance, it was essential to validate whether the formation enjoyed the majority support of 118 members. This was a reasonable precaution. But the constitutional requirement for a government is to have the support of the majority of members present and voting in the Assembly. The majority of 118 in the Tamil Nadu Assembly is based on the full strength of the 234-member Assembly and does not account for possible abstentions during the vote. A government could theoretically survive with fewer than 118 votes if some members abstain. The Governor’s insistence on 118 signatures was not constitutionally required; it was a political safeguard.
The way forward is to codify the rules governing the Governor’s use of discretionary powers. The recent Justice Kurian Joseph Committee report on Union-State relations, constituted by the earlier Tamil Nadu government, recommended incorporating a new schedule into the Constitution for this purpose. This would provide a constitutional basis for the use of such discretionary powers, removing them from the realm of political discretion. The order of preference recommended by the Sarkaria and Punchhi Commissions could be given constitutional status. The Governor could be required to follow it strictly, without deviation. A mechanism for judicial review could be established for cases where the Governor’s discretion is alleged to have been exercised mala fide.
India’s parliamentary democracy is one of the most robust in the world. But it relies on conventions and norms as much as on written provisions. The role of the Governor in a hung Assembly is an area where the norms have broken down. The inconsistencies across States have created a perception that the Governor is not a neutral arbiter but a political actor. This perception must be corrected. The best way to do so is to codify the rules. Until then, every hung Assembly will be an opportunity for controversy, and every Governor will be a potential lightning rod. The Tamil Nadu case ended without a crisis, but the next one may not. The time to act is now.
Questions and Answers
Q1: What does Article 164(1) of the Constitution say about the appointment of the Chief Minister?
A1: Article 164(1) provides that the Chief Minister of a State shall be appointed by the Governor, while other ministers shall be appointed by the Governor on the advice of the Chief Minister.
Q2: What order of preference did the Sarkaria and Punchhi Commissions recommend for government formation in a hung Assembly?
A2: The recommended order is: first, a pre-poll alliance that enjoys a majority; second, the single largest party that stakes a claim with support from others; third, a post-electoral coalition with all partners joining the government; and finally, a post-electoral coalition with outside support.
Q3: What examples does the article cite of Governors violating the recommended order of preference?
A3: The article cites Goa (2017) and Manipur (2017), where Governors invited BJP-led post-poll alliances to form the government even though the Congress was the single largest party. In Karnataka (2018), the Governor invited the BJP as the single largest party over a Congress-JD(S) post-poll alliance.
Q4: What did the Supreme Court hold in the S.R. Bommai case regarding the testing of a government’s majority?
A4: The Supreme Court held that the ‘floor of the House’ is the constitutionally ordained forum for testing the majority support enjoyed by a government. This was reiterated in the Rameshwar Prasad case (2006).
Q5: What recommendation did the Justice Kurian Joseph Committee make regarding the Governor’s discretionary powers?
A5: The Justice Kurian Joseph Committee report on Union-State relations recommended incorporating a new schedule into the Constitution to codify the rules governing the Governor’s use of discretionary powers, providing a constitutional basis for their use. This would remove them from the realm of political discretion.
