In Tamil Nadu, Vijay’s swearing-in delayed: What is the Governor’s role in a hung Assembly

After the Tamil Nadu Legislative Assembly elections resulted in a hung assembly, the Governor delayed inviting the leader of the single largest party to be s...

What Happened

After the Tamil Nadu Legislative Assembly elections resulted in a hung assembly, the Governor delayed inviting the leader of the single largest party to be sworn in as Chief Minister.
The single largest party secured 108 seats in the 234-member assembly; absolute majority requires 118 seats.
The Governor sought written proof of support from at least 118 MLAs before scheduling the swearing-in ceremony.
The demand triggered a constitutional debate over the extent of a Governor's discretionary powers in a hung assembly situation.
The incident reignited questions about whether the floor of the House — not the Governor's office — is the only legitimate forum to test majority.

Static Topic Bridges

Article 163 — Council of Ministers to Aid and Advise Governor

Article 163(1) of the Constitution provides that there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in matters where the Governor is required to act in his discretion. Article 163(2) limits judicial enquiry into whether any advice was given to the Governor and what it was.

Article 163 does not enumerate all situations where the Governor may act in his discretion — it only says "except in so far as he is by or under this Constitution required to act in his discretion."
The discretion is narrow and exception-based; the general rule is that the Governor must act on Council advice.
A hung assembly — where no single party commands a clear majority — is one area where the Constitution is silent on precise procedure, giving the Governor limited discretionary space.
However, the Supreme Court has consistently held that this discretion cannot be used to delay or frustrate the formation of a democratically mandated government.

Connection to this news: The Tamil Nadu Governor's demand for written proof of majority invoked Article 163's discretionary space; the constitutional debate centres on whether such a demand is within or outside permissible discretion.

Article 164 — Appointment of Chief Minister

Article 164(1) provides that the Chief Minister shall be appointed by the Governor, and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister. Article 164(2) provides that the Council of Ministers shall be collectively responsible to the Legislative Assembly of the State.

The Constitution does not specify that the Governor must appoint only a candidate who has already proved majority before swearing in; the established convention is swearing-in followed by a floor test.
Collective responsibility under Article 164(2) is a cornerstone of parliamentary democracy — it is the legislature, not the Governor, that continuously validates the government's existence.
In a hung assembly, convention requires the Governor to invite the single largest party (or pre-election alliance) to form the government and prove majority on the floor of the House within a specified, brief period.

Connection to this news: The Governor's insistence on pre-swearing-in proof of 118 MLAs departs from the established constitutional convention under Article 164, substituting the Governor's subjective satisfaction for the floor of the House.

S. R. Bommai v. Union of India (1994) — Landmark Judgment on Floor Test and Governor's Role

S. R. Bommai v. Union of India ([1994] 3 SCC 1) is the most important Supreme Court judgment on the Governor's role and the use of Article 356 (President's Rule). A nine-judge bench held that the floor of the Legislative Assembly is the only constitutionally valid forum to test a government's majority.

The judgment was decided in March 1994 by a nine-judge constitutional bench.
Key holding: The Governor cannot determine majority by his own subjective assessment; a floor test is the only valid mechanism.
The Court held that imposition of President's Rule without a floor test, when the government still commanded the floor, was unconstitutional.
The judgment significantly curbed the arbitrary use of Article 356 (Proclamation of Emergency in States).
The ruling established that state governments are not subordinate to the Centre and that federalism is a basic feature of the Constitution.
In a hung assembly context: the judgment implies the Governor must invite the largest party/alliance to form the government and allow a floor test rather than making subjective determinations.

Connection to this news: The Bommai precedent is the constitutional basis for the argument that the Tamil Nadu Governor's demand for pre-swearing-in proof of majority is legally untenable — the floor of the House, not the Governor's satisfaction, is the legitimate test.

Nabam Rebia and Bamang Felix v. Deputy Speaker (2016) — Governor's Summons of Assembly

In Nabam Rebia and Bamang Felix v. Deputy Speaker (2016) 8 SCC 1, the Supreme Court held that when a no-confidence motion against the Speaker is pending, the Governor cannot summon an Assembly session without the advice of the Council of Ministers.

The case arose from the Arunachal Pradesh political crisis of 2015–16.
The Court held that the Governor's discretion is not unlimited and must be exercised within constitutional boundaries.
The ruling reaffirmed that the Council of Ministers, not the Governor, is the primary decision-maker in matters affecting the Legislature.
The five-judge bench clarified that the Governor's discretionary powers under Article 163 are available only in specific situations expressly stated in the Constitution.

Connection to this news: Nabam Rebia reinforces that the Tamil Nadu Governor's independent action — delaying swearing-in without Council advice — is on constitutionally fragile ground.

Convention of Swearing-In Before Floor Test

India's parliamentary convention, inherited from Westminster practice and codified through judicial decisions, requires that in a hung assembly, the Governor first invites the leader most likely to command a majority to be sworn in, and then the new government must prove its majority through a floor test within a stipulated time — typically one to four weeks.

The floor test requires a simple majority (more than half) of members present and voting — not the absolute majority of all members.
Absolute majority = more than half of total membership (118 in a 234-member house).
Effective majority = majority of all then members (excluding vacancies).
Simple majority = majority of members present and voting (quorum must be present).
For forming a government, the applicable test is simple majority in a confidence vote, not absolute majority.
The distinction between simple majority, effective majority, and absolute majority is frequently tested in UPSC Prelims.

Connection to this news: The Governor's demand for 118 MLAs — the absolute majority mark — conflates the threshold for a constitutional amendment with the threshold for a confidence vote, a constitutionally incorrect standard.

Key Facts & Data

Tamil Nadu Legislative Assembly total seats: 234; majority mark: 118.
Article 163: Governor aided and advised by Council of Ministers, except in discretionary matters.
Article 164: Chief Minister appointed by Governor; Council collectively responsible to Assembly.
S. R. Bommai v. Union of India: decided 1994, nine-judge bench; established floor test as sole validity test for majority.
Nabam Rebia v. Deputy Speaker: decided 2016, five-judge bench; limited Governor's discretionary powers.
Bijoe Emmanuel v. State of Kerala (1986): freedom of conscience vs. national symbols (separate Polity precedent).
Simple majority: majority of members present and voting; Absolute majority: majority of total membership; Special majority: two-thirds of members present and voting (and majority of total membership in some cases).
Tamil Nadu has had Governor-government tensions previously — notably during 2021–23 on the delay in assenting to Bills passed by the legislature.