The 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 parleys with smaller parties, letters of support from 120 members were provided to the Governor. The Governor then invited TVK chief C. Joseph Vijay to form the government, who was sworn in as Chief Minister.

What are constitutional provisions?

Article 164(1) of the Constitution provides that the Chief Minister of a State shall be appointed by the Governor, while other ministers shall be appointed by the Governor on the advice of the Chief Minister. When a single party secures a clear majority in the Assembly, the Governor invites the leader of that legislative party to form the government. If no party secures a majority, the Governor exercises his/her discretion in appointing the Chief Minister.

The Constitution does not prescribe any criteria for selecting the Chief Minister in the event of a hung Assembly. The Sarkaria Commission (1987), followed by the Punchhi Commission (2010), recommended the manner in which the Chief Minister may be appointed in case no party enjoys a majority in the Assembly. The order of preference indicated by these commissions is as follows — first a pre-poll alliance that enjoys majority; next the single largest party staking a claim to form the government with the support of others; then a post-electoral coalition of parties, with all partners in the coalition joining the government; and finally, a post-electoral alliance with some parties joining the government and the remaining parties supporting the government from outside.

What are the issues?

The recommendations of the above commissions and conventions require Governors to act in a bipartisan manner while selecting the Chief Minister in a hung Assembly. However, Governors have, on numerous occasions, appointed Chief Ministers without following any particular order.

For instance, after the Assembly elections in Goa (2017) and Manipur (2017), the Governors invited BJP-led post-poll alliances to form the government, even though the Congress had emerged as the single largest party. These governments later proved their majority in the Assembly. On the contrary, in Karnataka (2018), the Governor invited the BJP, as the single largest party, to form the government over a claim by the post-poll alliance of Congress and Janata Dal (Secular). In 2019, the Governor of Maharashtra appointed a BJP-led coalition government when there was uncertainty as to whether it enjoyed a majority. On both occasions, the Chief Ministers had to resign as they were unable to muster the required majority.

Under the Constitution, the Governor is the nominal head of the State executive and possesses certain discretionary powers in specific situations. The discretion vested in the Governor to select a Chief Minister in a hung Assembly is to enable him/her to appoint a government that would be stable and enjoy the majority in the Assembly. However, the conduct of Governors in several such situations has raised concerns that they often function more as agents of the Union government than as impartial constitutional heads of the States.

What can be the way forward?

In the current situation in Tamil Nadu, TVK was the only party to stake a claim to form the government. The Governor’s office indicated that, since the claim was a post-poll alliance, it was essential to validate whether the formation enjoyed the majority support of 118 members. However, the constitutional requirement for a government is to have the support of the 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 account for possible abstentions during the vote.

The Supreme Court in the S. R. Bommai v. Union of India (1994) had categorically held that the ‘floor of the House’ is the constitutionally ordained forum for testing the majority support enjoyed by a government. This was reiterated in the Rameshwar Prasad case (2006).

The use of discretionary powers by the Governors has been subject to various court pronouncements. Nevertheless, judicial differences in interpretation resulted in inconsistent application of these principles.

The recent Justice Kurian Joseph Committee report on Union-State relations, constituted by the earlier Tamil Nadu government, recommended incorporating a new schedule into the Constitution to codify the rules governing the Governor’s use of discretionary powers. This may be considered to provide a constitutional basis for the use of such discretionary powers. It is imperative that the 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’. Views expressed are personal)