Tamil Nadu Governor Rajendra Arlekar with Chief Minister C. Joseph Vijay, on Sunday | Photo credit: PTI
Story so far:
The Tamilaga Vettri Kazhagam (TVK) secured 108 seats, 10 short of a majority, in the recently concluded Tamil Nadu Assembly elections. After hectic negotiations with minor parties, letters of support from 120 members were provided to the governor. The governor then invited TVK chief C. Joseph Vijay, who was sworn in as the chief minister, to form the government.
What are constitutional provisions?
Article 164(1) of the Constitution provides that the Chief Minister of the State is appointed by the Governor while other Ministers are appointed by the Governor on the advice of the Chief Minister. When one party secures a clear majority in the assembly, the governor invites the leader of that legislative party to form a government. If neither party gets a majority, the Governor appoints the Chief Minister at his discretion.
The Constitution does not prescribe any criteria for selecting the Chief Minister in case of a hung assembly. The Sarkari Commission (1987) followed by the Punchhi Commission (2010) recommended the manner in which the Chief Minister can be appointed in case no party has a majority in the Assembly. The order of preference given by these commissions is as follows — first the alliance before the vote which has the majority; the next single largest party claiming to form a government with the support of others; then a post-election coalition of parties, when all coalition partners enter the government; and finally a post-election alliance with some parties joining the government and the remaining parties supporting the government from the outside.
what are the problems
The recommendations of the above commissions and conventions require the governors to act in a bipartisan manner while selecting the chief minister in a hung assembly. However, Governors have on many occasions appointed Chief Ministers without following any specific order.
For example, after the Goa (2017) and Manipur (2017) Assembly elections, the governors invited BJP-led post-poll alliances to form the government even though the Congress emerged as the single largest party. These governments later proved their majority in the assembly. Conversely, in Karnataka (2018), the Governor invited the BJP as the single largest party to form the government over the claim of an alliance of Congress and Janata Dal (Secular). In 2019, the Governor of Maharashtra appointed a BJP-led coalition government when it was uncertain whether it had a majority. In both cases, the Prime Ministers had to resign because they were unable to muster the required majority.
Under the constitution, the governor is the nominal head of the state executive and has certain powers in certain situations. The choice of the Governor while choosing the Chief Minister in a hung assembly is to enable the appointment of a government that will be stable and have a majority in the assembly. However, the conduct of governors in several such situations has raised concerns that they often function more as representatives of the Union Government than as impartial constitutional heads of state.
What might be the way forward?
In the current situation in Tamil Nadu, TVK was the only party that bet to form the government. The governor’s office said that since it was a post-vote alliance, it was necessary to verify that the formation enjoyed the majority support of 118 members. However, the constitutional requirement for a government is to have the support of a 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 Tamil Nadu Assembly and does not take into account any abstentions during voting.
The Supreme Court in SR Bommai v. Union of India (1994) categorically held that the “floor of the House” is the constitutionally mandated forum for testing the majority support enjoyed by the government. This was reiterated in Rameshwar Prasad’s case (2006).
The use of discretionary powers by governors has been the subject of various judicial decisions. However, judicial differences in interpretation have led to inconsistent application of these principles.
A recent report by the Justice Kurian Joseph Committee on Union-State Relations, set up by the erstwhile Tamil Nadu government, recommended that a new schedule be included in the constitution to codify the rules governing the exercise of the governor’s powers. This can be seen as providing a constitutional basis for the exercise of such discretionary power. It is imperative that governors exercise their discretionary powers in a bona fide manner.
(Rangarajan R is a former IAS officer and author of ‘Polity Simplified’. He currently trains civil service aspirants at ‘Officers IAS Academy’. Opinions expressed are personal)
Published – 10 May 2026 23:12 IST
