Hung Assembly And Governor’s Discretion

Context

The article examines the Governor’s role in government formation after a hung Assembly and argues that majority claims must be tested through constitutional convention, objective procedure and floor test rather than personal discretion.
Source: What is the Governor’s role in a hung Assembly?, The Hindu, May 10, 2026.

Governor’s Role in Government Formation

Article 164: The Governor appoints the Chief Minister, but the Constitution does not prescribe a fixed procedure for choosing a Chief Minister in a hung Assembly.
Stable government objective: The Governor’s primary role is to ensure formation of a stable government while preserving constitutional machinery.
No personal discretion: The Governor’s personal view or subjective satisfaction cannot guide the decision.
Reasonable time: The Governor may explore government-formation possibilities, but cannot wait indefinitely and create scope for horse-trading.

Order of Preference in Hung Assembly

First preference: A pre-poll alliance that has secured majority support should be invited first.
Second preference: If no pre-poll alliance has a majority, the single largest party that can demonstrate majority support may be invited.
Third preference: A post-poll alliance that can show majority support in the Assembly may be considered.
Last resort: President’s Rule under Article 356 should be recommended only after all alternatives for forming a stable government fail.

Floor Test as Objective Mechanism

Assembly-based test: Majority must normally be tested on the floor of the House, not through the Governor’s personal assessment.
Letters of support issue: Insistence on physical letters of support may create avoidable deadlock if the claim can be tested through a trust vote.
Democratic principle: The House is the proper forum where the electorate’s mandate is tested and validated.
Transparency value: Floor tests reduce uncertainty, prevent subjective discretion and clarify who enjoys legislative confidence.

Judicial Position and Constitutional Conventions

Sarkaria Commission: Recommended an order of preference for inviting parties or alliances to form government in a hung Assembly.
Committee of Governors: Stated that the test of confidence should normally be left to a vote in the Assembly.
S.R. Bommai case: Recognised that a government need not necessarily belong to a party with an absolute majority, but must enjoy confidence of the House.
B.R. Kapur and Rameshwar Prasad cases: Recognised that dissolution may occur even before the first meeting of the Assembly in situations where no meaningful government can be formed.

President’s Rule and Constitutional Limits

Article 356: President’s Rule may be used only as an extreme measure when government formation is impossible.
Constitutional machinery: Courts have emphasised that constitutional machinery in the State should be maintained as far as possible.
Misuse concern: Governor’s discretion in recommending President’s Rule may be controversial if used to advance the Centre’s political interests.
Dissolution limit: Dissolution cannot become a substitute for properly exploring viable government-formation options.

Recent Floor Test Precedents

Goa precedent: In 2017, the Supreme Court allowed swearing-in of a post-poll alliance leader but ordered a floor test within 48 hours.
Karnataka precedent: In 2018, the Court shortened the time for proving majority to 24 hours and directed transparency through live camera and no secret ballot.
Judicial approach: Courts have increasingly treated floor tests as the most objective method to decide competing claims to power.
Core principle: The Governor facilitates government formation; the Assembly determines majority.

Governor, Hung Assembly And Article 356

Constitutional principles on government formation, floor test, President’s Rule and limits on gubernatorial discretion.

Constitutional Framework

Article 164: The Chief Minister is appointed by the Governor, and other ministers are appointed by the Governor on the advice of the Chief Minister.
Collective Responsibility: The Council of Ministers continues in office only so long as it retains the confidence of the Legislative Assembly.
Hung Assembly: A hung Assembly arises when no party or alliance secures a clear majority, requiring the Governor to identify who is most likely to command majority support.
Governor’s Situational Discretion: In a hung Assembly, the Governor may exercise limited discretion in inviting a leader to form the government, but this discretion must be guided by constitutional principles and majority support.

Government Formation in a Hung Assembly

Sarkaria Commission, 1983: The Commission recommended an order of preference for the Governor while inviting parties or alliances to form government in a hung Assembly.
Pre-poll Alliance: A pre-poll alliance commanding majority support should receive first preference.
Single Largest Party: The single largest party may be invited if it stakes claim with support from others.
Post-poll Coalition: A post-poll coalition may be invited if it can demonstrate a viable majority.
Outside Support Arrangement: A post-poll alliance with some parties giving outside support may be considered where it can sustain majority in the House.

Floor Test and Majority Determination

S.R. Bommai Case, 1994: The Supreme Court held that when the majority of a State government is in doubt, it should ordinarily be tested on the floor of the Legislative Assembly, not decided on the Governor’s subjective assessment.
Article 356 Limitation: The ruling restricted arbitrary use of Article 356 by making legislative majority an objective matter to be tested in the House.
Floor Test Principle: The Governor’s report or political assessment cannot substitute a floor test when the question is whether the ministry enjoys the confidence of the Assembly.

Judicial Review under Article 356

S.R. Bommai Case, 1994: The Supreme Court held that a Presidential Proclamation under Article 356 is subject to judicial review.
Scope of Review: Courts may examine whether relevant material existed for the President’s satisfaction, whether the material was connected with constitutional breakdown, and whether the power was used mala fide or on extraneous grounds.
Limit of Review: Courts do not sit in appeal over the adequacy or correctness of the material behind the Proclamation.
Invalid Proclamation: If the Article 356 Proclamation is found unconstitutional, the Court may grant consequential relief, including revival of constitutional status where appropriate.

Dissolution of Legislative Assembly

Article 174(2)(b): The Governor has the constitutional power to dissolve the Legislative Assembly.
Normal Rule: Dissolution is ordinarily based on the advice of the Council of Ministers.
Discretionary Situation: Discretion may arise where the government has lost majority support or no stable government can be formed.
Rameshwar Prasad Case, 2006: The Supreme Court held the dissolution of the Bihar Legislative Assembly before its first meeting unconstitutional.
Limits on Dissolution: The Assembly cannot be dissolved merely on subjective satisfaction or speculative fears such as possible horse-trading if government formation remains constitutionally possible.

President’s Rule

Article 356: President’s Rule may be imposed when the President, on the Governor’s report or otherwise, is satisfied that the State government cannot be carried on in accordance with the Constitution.
Constitutional Breakdown: A hung Assembly, political instability or law-and-order breakdown becomes relevant under Article 356 only when it results in failure of constitutional machinery.
Bommai Safeguard: Article 356 cannot be used as a political shortcut to dismiss a State government without testing majority on the Assembly floor.

Eligibility to Become Chief Minister

B.R. Kapur Case, 2001: A person disqualified from being a member of the legislature cannot be appointed as Chief Minister.
Limit on Article 164: The Governor’s power to appoint the Chief Minister is not absolute and cannot override constitutional qualifications and disqualifications.
Constitutional Compliance: Appointment as Chief Minister must be consistent with Articles 173 and 191, which deal with qualifications and disqualifications for membership of the State Legislature.

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