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The Governor's Discretionary Powers After Elections

  • In  2026, Tamil Nadu Legislative Assembly elections, the Tamizhaga Vettri Kazhagam (TVK) emerged as the single largest party, securing 108 seats in the 234-member Assembly. In this election, the DMK won 59 seats, while the AIADMK secured 47.
  • Controversial Situation: A controversy arose due to the initial hesitation shown by Governor Rajendra Vishwanath Arlekar in inviting TVK leader C. Joseph Vijay to form the government. The Governor had demanded a signed register (muster roll) of the legislators prior to the swearing-in ceremony.
  • Violation of "Order of Precedence": Instances of established traditions being violated due to political partisanship have been observed in the past as well (such as in Manipur and Goa in 2017).

Constitutional Provisions and Conventions

  • Responsibility of the Governor: Following an election, the primary duty of the Governor is to invite the individual who appears capable of securing the confidence of the House to form the government.
  • Significance of the Floor Test: Under the principles enshrined in Article 164(2), the Floor of the House constitutes the sole constitutional venue for proving a legislative majority. The Governor possesses no legal authority to demand a register bearing the signatures of the legislators prior to the administration of the oath.

Recommendations of Major Commissions

  • The Sarkaria (1988), Venkatachaliah (2002), and Punchhi (2010) Commissions have laid down a clear "order of precedence" for situations involving a hung assembly:
    • Clear Majority: A direct invitation to the leader of the party that has secured a majority.
    • Order of Preference in the Event of a Hung Assembly:
      1. A pre-poll alliance.
      2. The single largest political party.
      3. A new alliance formed after the election.
      4. A post-poll alliance with external support.
  • Reform Proposal: The Justice Kurian Joseph Committee has recommended the addition of a new Schedule to the Constitution to clarify the discretionary powers of the Governor.

Key Supreme Court Judgments

The Supreme Court has intervened on several occasions regarding the discretionary powers of the Governor in the formation of a government:

    • S.R. Bommai Case (1994): Established the primacy of the 'Floor Test' (a test on the floor of the House) in determining a legislative majority.
    • Rameshwar Prasad Case (2006): Addressed the misuse of the Governor's powers to dissolve State Legislative Assemblies.
    • Karnataka Case (2018): The Supreme Court ruled that granting a 15-day window to prove a majority amounts to encouraging defection, and consequently reduced the time limit for the floor test to one day.

Instances of Minority Governments in India

  • The insistence on an a priori absolute majority overlooks the long history of minority governments in India's parliamentary practice:
    • Atal Bihari Vajpayee (1996): Sworn in by the President without an initial majority and given 13 days to prove it (resigned before the vote).
    • P.V. Narasimha Rao (1993): Led a minority government for five years and survived a no-confidence motion by a single vote.
    • The United Front governments of H.D. Deve Gowda and I.K. Gujral, as well as the first UPA government led by Manmohan Singh (2004), which completed its full term with external support.

The Way Forward and Necessary Reforms

  • The Supreme Court must definitively settle three propositions:
  1. Adherence to Commission Guidelines: Governors must strictly adhere to the order of priority established by the Sarkaria, Venkatachaliah, and Punchhi Commissions, and should not demand proof of an absolute majority prior to the swearing-in ceremony.
  2. Supremacy of the Floor Test: Like any other government, a minority government, too, should fall only on the floor of the House.
  3. No Mandatory Confidence Vote: Instead of Governors arbitrarily ordering a vote of confidence—a practice that risks minority governments being stillborn—the onus of moving a "No-Confidence Motion" should be shifted to the Opposition if they wish to challenge the government.

Conclusion: Governors hold office at the pleasure of the President and should respect the electoral mandate of the voters, rather than the political priorities of the Centre. A newly sworn-in government should naturally be allowed to govern and face the legislature, as the looming threat of fresh elections inherently deters legislators from defecting.

source:TH