The swearing-in of C. Joseph Vijay as Chief Minister of Tamil Nadu on May 10, 2026, following the Tamilaga Vettri Kazhagam’s historic electoral debut, has reignited one of the most persistent constitutional controversies in Indian federalism: the role of the Governor in government formation after a hung assembly verdict. Governor Rajendra Vishwanath Arlekar’s insistence on receiving signed letters from 118 MLAs before inviting the single largest party to form the government drew widespread criticism from constitutional scholars, senior advocates of the Supreme Court, and political commentators across the spectrum.
This episode is not an isolated occurrence. It forms part of a discernible pattern in which Governors have exercised their discretionary powers in a manner that appears politically motivated rather than constitutionally grounded. The precedents from Goa and Manipur in 2017, Karnataka in 2018, and Maharashtra in 2019 collectively illustrate how the discretionary space provided by Article 164(1) has been selectively interpreted, often to the advantage of one political formation over another.
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For UPSC aspirants, this issue sits at the intersection of constitutional law, federal governance, and democratic accountability. It engages Articles 153 to 164 of the Constitution, recommendations of the Sarkaria, Venkatachalaiah, and Punchhi Commissions, landmark Supreme Court judgments including S.R. Bommai v. Union of India (1994) and Rameshwar Prasad v. Union of India (2006), and the broader philosophical question of whether unelected constitutional heads can override the democratic mandate of voters. This makes it one of the richest topics for GS-II preparation under the Indian polity and governance theme.
Background and Constitutional Framework
Five Important Key Points
- Article 164(1) of the Constitution states that the Chief Minister shall be appointed by the Governor, but the Constitution provides no explicit criteria for the appointment in the event of a hung assembly, leaving the Governor with discretionary power that has historically been misused.
- The Sarkaria Commission (1987) and the Punchhi Commission (2010) both recommended a clear order of preference for government formation: first a pre-poll alliance with majority, then the single largest party staking a claim, then a post-poll coalition, and finally a post-poll alliance with outside support.
- The Supreme Court in S.R. Bommai v. Union of India (1994) categorically held that the floor of the House is the only constitutionally legitimate forum for testing a government’s majority, thereby ruling out the Governor’s subjective assessment of numbers.
- In Tamil Nadu’s 2026 case, TVK secured 108 seats as the single largest party; the Governor demanded signed letters from 118 MLAs before issuing an invitation, a requirement that finds no basis in any constitutional provision, judicial precedent, or commission recommendation.
- The Justice Kurian Joseph Committee, constituted by the earlier Tamil Nadu government on Union-State relations, recommended incorporating a new schedule into the Constitution to codify the rules governing the Governor’s discretionary powers, a reform that remains unimplemented.
Historical Background: A Pattern of Selective Discretion
The misuse of gubernatorial discretion in government formation has a long and troubling history. In Goa in 2017, Governor Mridula Sinha invited the BJP, which held 13 seats in a 40-member assembly, ahead of the Congress, which had won 17 seats as the single largest party. In the same year in Manipur, the BJP with 21 seats was preferred over the Congress with 28 seats. The Karnataka episode of 2018 was perhaps the most dramatic, where Governor Vajubhai Vala invited the BJP with 104 seats in a 224-member assembly and granted it 15 days to prove a majority, overriding a written letter from a Congress-JD(S) post-poll alliance of 115 members.
The Supreme Court intervened in the Karnataka case at midnight, recognising that a prolonged window to prove majority was an invitation to engineered defections and horse-trading. It compressed the timeline to a single day. However, the Court’s intervention addressed the symptom rather than the disease, leaving the fundamental question of gubernatorial discretion in government formation unresolved.
In each of these instances, the BJP was the beneficiary. In Tamil Nadu 2026, where the BJP is not a significant player and the Centre’s preferred regional ally was decisively defeated, the doctrine of gubernatorial discretion was applied in the reverse direction, with the Governor demanding pre-swearing proof of an absolute majority. As senior advocates Rajeev Dhawan and Sanjay Hegde observed in their editorial analysis, this is not constitutional principle but partisanship dressed up as prudence.
Constitutional Provisions Involved
The primary constitutional provisions at issue are Articles 163 and 164. Article 163 states that there shall be a Council of Ministers to aid and advise the Governor, and that the Governor shall act in his discretion in those matters where he is by or under the Constitution required to act in his discretion. Article 164(1) provides for the appointment of the Chief Minister and other Ministers by the Governor. Article 164(2) requires that the Council of Ministers shall be collectively responsible to the Legislative Assembly, which is the constitutional foundation for the convention that majority is tested on the floor of the House.
Article 356, which enables President’s Rule in states where constitutional machinery breaks down, was clarified by the S.R. Bommai judgment to require judicial review, thereby curtailing arbitrary imposition. However, no equivalent safeguard exists for the Government formation stage, where the Governor’s discretion remains largely unchecked by judicial oversight at the pre-swearing stage.
The anti-defection law under the Tenth Schedule, introduced by the 52nd Constitutional Amendment, was designed to prevent legislators from switching sides for considerations of personal gain. The three-day deadline imposed by the Tamil Nadu Governor for a confidence vote, however, creates precisely the kind of high-pressure environment that anti-defection law sought to eliminate, by incentivising rapid horse-trading within a narrow window.
The Three Commission Recommendations and Their Non-Implementation
The Sarkaria Commission of 1988, constituted to examine Centre-State relations, laid down a detailed order of preference for Government formation. The Venkatachalaiah Commission of 2002 reiterated and refined these recommendations. The Punchhi Commission of 2010, the most recent and comprehensive examination of Union-State relations, specifically addressed the role of the Governor and recommended that constitutional conventions be codified to prevent partisan exercise of discretion.
Despite three major constitutional commissions converging on the same conclusion over a period of more than two decades, Parliament has not enacted any legislation codifying these norms. The recommendations remain advisory, which means that each new Governor in a hung assembly situation is free to ignore them. This institutional gap is the root cause of repeated constitutional crises at the state level.
Institutional Accountability: The Governor’s Position and Its Inherent Tensions
The Governor is appointed by the President on the advice of the Central government, which means the Governor effectively serves at the pleasure of the ruling party at the Centre. This creates a structural conflict of interest in situations where the Centre has a political preference regarding state-level government formation. The constitutional design assumes that the Governor will function as an impartial constitutional head, but the appointment mechanism provides no guarantee of political neutrality.
Unlike the President, who can be removed through an impeachment process under Article 61, a Governor has no equivalent protection against arbitrary removal nor any independent accountability mechanism. The Supreme Court has held in B.P. Singhal v. Union of India (2010) that the President’s power to remove a Governor is not absolute and must be based on relevant considerations, but the practical effect of this judgment in constraining partisan deployment of governors has been limited.
The Minority Government Precedent and the Confidence Vote Convention
India has a rich tradition of minority governments at the Centre. The Vajpayee government of 1996 was sworn in without the numbers, governed for thirteen days, and resigned without facing a formal no-confidence vote. P.V. Narasimha Rao led a minority Congress government from 1991 to 1996 and survived a no-confidence motion in 1993. H.D. Deve Gowda and I.K. Gujral led United Front governments at the Centre without an absolute majority. The constitutional test has never been the pre-swearing production of signatures; it has always been the floor of the House.
The Tamil Nadu Governor’s direction to hold a confidence vote within 72 hours of swearing-in is equally objectionable. The conventional practice is that a newly formed government addresses the House at its first session, the address is debated, and the majority is tested in the ordinary course. Compressing this into 72 hours creates conditions for the very resort politics and overnight defections that anti-defection law was designed to suppress.
What the Supreme Court Must Now Settle
The Supreme Court has had multiple opportunities to lay down comprehensive guidelines on gubernatorial discretion. In S.R. Bommai, it addressed the conditions for imposing President’s Rule. In Rameshwar Prasad (2006), it reiterated that the floor test is the legitimate forum for testing majority. In the Karnataka midnight order of 2018, it compressed the timeline for proving majority. But none of these decisions have settled the anterior question of who the Governor must invite to form the government and under what circumstances.
Three propositions now require authoritative Supreme Court settlement: first, the Governor must follow the preference order of the Sarkaria-Punchhi framework and has no power to demand pre-swearing proof of majority; second, a minority government falls only on the floor of the House through a no-confidence motion; and third, requiring a new government to hold a confidence vote by gubernatorial direction, rather than through an Opposition-initiated no-confidence motion, is constitutionally impermissible.
Way Forward
Parliament must enact legislation codifying the order of preference for government formation based on the Punchhi Commission framework. The appointment mechanism for Governors must be reformed to involve a consultative role for the State government or an independent body, reducing the scope for partisan appointments. The Supreme Court must seize the next appropriate case to lay down binding guidelines covering all three unsettled propositions. The question of whether the Governor’s decision to invite a party is subject to judicial review at the pre-swearing stage must also be definitively resolved.
Relevance for UPSC and SSC Examinations
UPSC Paper: GS-II (Indian Constitution, Polity and Governance; Federal Structure; Role of Constitutional Bodies)
SSC Topics: Indian Polity; Constitutional Offices; Centre-State Relations
Key Terms: Article 164(1), Sarkaria Commission, Punchhi Commission, S.R. Bommai case, Rameshwar Prasad case, floor test, anti-defection law, Tenth Schedule, gubernatorial discretion, hung assembly, confidence vote, B.P. Singhal case, Justice Kurian Joseph Committee.