Governor’s role in govt. formation

UPSC Prelims + Mains Study Note

1. At a Glance

• The Governor is the constitutional head of a State under Article 153 and exercises the formal power to appoint the Chief Minister under Article 164(1).
• In a clear majority situation, the appointment is essentially mechanical; in a hung Assembly, the Governor exercises genuine discretionary powers — one of the few areas where gubernatorial discretion is constitutionally recognised.
• This topic sits at the intersection of federalism, constitutional morality, and democratic accountability — perennially tested in GS-II. [1][S4]
• Repeated misuse of discretionary powers has triggered Supreme Court interventions and multiple commission recommendations, making it a live constitutional controversy. [1]

2. Why in the News

• Tamil Nadu Assembly Elections (May 2026): The Tamilaga Vettri Kazhagam (TVK), led by actor-turned-politician C. Joseph Vijay, won 108 seats — 10 short of the majority mark of 118 in the 234-seat House. [2]
• After "hectic parleys," TVK secured letters of support from 120 MLAs from smaller parties and independents, and submitted them to the Governor. [2]
• Governor Rajendra Arlekar then invited Vijay to form the government; Vijay was sworn in as Chief Minister. [2]
• The episode renewed debate on the Governor's discretion in inviting the largest party/alliance, and whether the Sarkaria/Punchhi Commission guidelines were followed. [2][1]

3. Background & Evolution

4. Core Static Facts

Constitutional Provisions

• Article 153 — Every State shall have a Governor.
• Article 154 — Executive power of the State vested in the Governor.
• Article 163 — Council of Ministers to aid and advise the Governor; Governor acts in his discretion only where the Constitution expressly so provides.
• Article 164(1) — Chief Minister appointed by the Governor; other ministers appointed by the Governor on the advice of the CM. [2]
• Article 174 — Governor summons, prorogues, and dissolves the State Legislature.
• Article 356 — Governor's report can trigger President's Rule.

Key Terminologies

• Hung Assembly — No single party or pre-poll alliance commands an absolute majority (>50% of total seats).
• Discretionary Powers — Governor's power to act without/against ministerial advice; constitutionally narrow, politically contested.
• Floor Test / Composite Floor Test — Mechanism to prove majority on the floor of the House, considered the definitive proof of majority.
• Anti-Defection Law — 10th Schedule; limits post-election switching, relevant to government stability.

Commissions & Their Order of Preference

Both the Sarkaria Commission (1987) and Punchhi Commission (2010) recommended the following priority for inviting a CM: [1]

1. Pre-poll alliance/coalition with majority → its leader invited first.
2. Single largest party staking claim with external support.
3. Post-poll coalition — all partners joining the government.
4. Post-poll alliance — some partners in cabinet, others supporting from outside.

• Implementing authority: No statutory body — these are advisory commission recommendations, not enacted law.
• Parent constitutional body: Governor (State); President (Centre) for analogous situation.

5. Multi-Dimensional Analysis

Legal / Constitutional

• Article 164(1) is silent on criteria for CM selection in hung assemblies — this constitutional gap is filled only by commission guidelines and judicial precedents. [2]
• SC in SR Bommai v. Union of India (1994) held that the floor of the House is the only legitimate venue to test majority; Governor cannot dismiss a CM on subjective satisfaction without a floor test.
• SC in Nabam Rebia (2016) held that Governor cannot summon the Assembly to conduct a floor test when the CM has not advised dissolution — limits unilateral gubernatorial action.
• Governor's actions in hung assemblies are subject to judicial review, narrowing the earlier view of "absolute discretion." [1]

Ethical / Governance

• Governors are appointed by the President on the advice of the Union Cabinet (PM) — creating an inherent conflict when the ruling party at the Centre differs from the state. [1]
• Punchhi Commission (2010) recommended: Governor should be a distinguished person from outside the state, not recently active in politics, and should have a fixed 5-year tenure removable only through an impartial process. [1]
• Repeated partisan conduct — delaying oath-taking, refusing bills, misusing Article 356 recommendations — has been criticised by the SC as undermining constitutional morality.

Historical / Comparative

• Pre-1967 (Congress dominance), the question was moot as single-party majorities were routine.
• Post-1967 (coalition era), hung assemblies became frequent in states — Governors' discretion became contentious in Goa (1979, 1994, 2017), Karnataka (2018), Maharashtra (2019), and Tamil Nadu (2026).
• Westminster model (UK): The Crown invites the leader who can command confidence; conventions are clearer, less contested.

Administrative

• The Governor acts on political intelligence, not verified numerical evidence — letters of support from legislators are often contested.
• The oath of office administered before a floor test has been controversial: swearing in without verified majority (Karnataka 2018, BS Yediyurappa — 15-day deadline given by SC).
• Raj Bhavan (Governor's secretariat) lacks an independent verification mechanism for claims of majority.

Federalism

• Governors as Centre's agents: appointment process makes them susceptible to partisan use; repeated complaints from Opposition-ruled states (Kerala, Tamil Nadu, West Bengal 2021–26) about Governors sitting on Bills and withholding assent.
• Punchhi Commission recommended limiting the Governor's power to withhold assent to Bills, recommending a time-bound mechanism.

6. Recent Developments (last 12–18 months)

• May 2026 — Tamil Nadu: TVK (108 seats) cobbled post-poll support to reach 120; Governor Rajendra Arlekar invited C. Joseph Vijay (sworn in as CM) — followed Sarkaria/Punchhi protocol of inviting the party with demonstrable majority support. [2]
• 2023–24 — Maharashtra: SC in Subhash Desai v. Principal Secretary (May 2023) held that the Governor erred in calling Uddhav Thackeray's government to prove majority on the floor; SC ruled the Governor's action was not in conformity with constitutional provisions.
• 2023–24 — Governors vs. State Governments: Kerala, Tamil Nadu, and Punjab Governors drew SC censure for sitting on Bills; SC in State of Tamil Nadu v. Governor (Nov 2023) held that the Governor cannot indefinitely withhold assent — must either assent, refer to President, or return the Bill promptly.
• Rajasthan & Telangana elections (Dec 2023): Clear majorities produced routine appointments; no discretionary controversy.

7. Prelims Hooks

1. Article 164(1) provides for appointment of the Chief Minister by the Governor; other ministers are appointed on the CM's advice. [2]
2. The Constitution does not prescribe criteria for CM selection in a hung assembly — a notable constitutional silence. [2]
3. Sarkaria Commission was constituted in 1983 and submitted its report in 1987 on Centre-State relations.
4. Punchhi Commission was constituted in 2007 and submitted its report in 2010; chaired by Justice Madan Mohan Punchhi.
5. Both commissions place a pre-poll alliance with majority as the first preference for CM appointment in a hung assembly. [1]
6. SR Bommai v. Union of India (1994) — landmark SC ruling: majority must be proved on the floor of the House, not at Raj Bhavan.
7. Nabam Rebia v. Deputy Speaker (2016) — SC held Governor cannot summon assembly for floor test when CM has not advised it.
8. Governor is appointed by the President under Article 155; holds office at the pleasure of the President (Article 156).
9. Article 163 — Governor acts in discretion only where the Constitution expressly provides for it; residual advice from CoM is binding.
10. Governor's report under Article 356 recommending President's Rule is also a discretionary power, subject to judicial review post-Bommai.
11. 10th Schedule (Anti-Defection Law, 1985) constrains post-poll floor-switching, indirectly shaping government formation arithmetic.
12. Punchhi Commission recommended Governor's tenure be fixed at 5 years and removal be through an impartial process (not merely at President's pleasure). [1]
13. The Tamil Nadu Governor (2026) followed the Punchhi priority sequence — inviting TVK after it demonstrated support from 120 MLAs (majority = 118). [2]
14. A Composite Floor Test is ordered by the SC when multiple parties claim majority simultaneously (as in Karnataka 2018 — Yediyurappa episode).

8. Mains Relevance

GS Paper: GS-II

Syllabus Headings:

• Appointment to various constitutional posts, powers, functions, and responsibilities of various constitutional bodies.
• Functions and responsibilities of the Union and the States, issues and challenges pertaining to the federal structure.
• Statutory, regulatory and various quasi-judicial bodies.

Plausible Mains Questions:

1. "The Governor's discretionary powers in government formation are a necessary safeguard in a democracy or a recipe for partisan abuse." Critically examine in light of Supreme Court judgments and commission recommendations. (GS-II, 15 marks)

2. Examine the order of preference recommended by the Sarkaria Commission and Punchhi Commission for appointment of a Chief Minister in a hung assembly. How far have Governors adhered to these guidelines in practice? (GS-II, 10 marks)

3. Recent episodes involving Governors of several states have reignited debate on the constitutional role of Governors. Discuss the challenges to cooperative federalism posed by the Governor's office. (GS-II, 15 marks)

9. Related Topics to Study Next

10. Common Errors / Trap Areas

1. "Governor acts entirely on advice of CoM" — WRONG. Article 163 explicitly carves out discretionary situations. In hung assemblies, CM appointment is one such case. The error: treating the Governor as a pure rubber stamp.

2. Confusing Sarkaria (1987) and Punchhi (2010) years — Sarkaria Commission set up 1983, report submitted 1987. Punchhi Commission set up 2007, report submitted 2010. Both are on Centre-State relations, not specifically on Governors alone.

3. Assuming post-poll alliance is preferred over single largest party — WRONG. Sarkaria/Punchhi place the single largest party (with external support) above post-poll coalition in the order of preference.

4. SR Bommai is often misremembered as being about Governor's appointment power — It is actually about dismissal of state governments / Article 356, not about CM appointment in hung assemblies. Conflating these two contexts is a frequent trap.

5. "Governor has no role once party has majority" — Technically the appointment is still the Governor's under Article 164(1); the discretion disappears, but the formal constitutional act remains. Prelims questions sometimes test this nuance.