Governor’s role in government formation | Explained

The constitutional framework governing the Governor's role in government formation has come under fresh scrutiny, particularly in the context of post-electio...

What Happened

The constitutional framework governing the Governor's role in government formation has come under fresh scrutiny, particularly in the context of post-election hung assemblies.
Article 164(1) of the Constitution is at the centre of the debate — it states that the Chief Minister shall be appointed by the Governor, and other Ministers shall be appointed by the Governor on the advice of the Chief Minister.
Controversies have arisen over the extent of the Governor's discretionary powers when no party commands a clear majority in a state legislature.
Successive constitutional commissions — notably the Sarkaria Commission (1988) and the Punchhi Commission (2010) — have laid down guidelines for the Governor's conduct in hung assembly situations, but these remain non-binding.
Judicial scrutiny of gubernatorial conduct has grown, with the Supreme Court consistently limiting the scope of arbitrary discretion.

Static Topic Bridges

Article 164(1) and the Appointment of the Chief Minister

Article 164(1) of the Constitution provides that the Chief Minister shall be appointed by the Governor. Unlike ordinary ministerial appointments — which require the CM's advice — the initial appointment of the Chief Minister is one area where the Governor exercises a degree of personal judgment, particularly in a hung assembly. However, constitutional convention and judicial precedents have narrowed this discretion considerably: the Governor must invite the leader who commands or is most likely to command the confidence of the House.

Article 164(1): "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."
Ministers hold office "during the pleasure of the Governor" under Article 164(1), but this pleasure is not unfettered — it must conform to constitutional conventions.
Article 163 provides that the Council of Ministers, with the CM at the head, shall aid and advise the Governor in the exercise of his functions, except where the Constitution explicitly requires the Governor to act in his discretion.
In Shamsher Singh v. State of Punjab (1974), the Supreme Court held that the Governor must, in almost all cases, act on the aid and advice of the Council of Ministers.

Connection to this news: The debate over government formation directly involves Article 164(1) — specifically, when and how the Governor uses the discretion embedded in that provision to invite a party or coalition to form the government.

Sarkaria Commission and Punchhi Commission Recommendations on Hung Assemblies

The Sarkaria Commission (set up in June 1983, chaired by Justice Ranjit Singh Sarkaria; report submitted 1988) and the Punchhi Commission (chaired by former Chief Justice of India M.M. Punchhi; report submitted March 2010) are the two major constitutional review bodies that examined Centre-State relations and the Governor's role.

Sarkaria Commission priority order for CM invitation in a hung assembly:
Pre-election alliance with a clear majority
Single largest party willing to form government with external support
Post-election coalition with all partners in the government
Post-election alliance with some parties supporting from outside
The Sarkaria Commission recommended that the majority must be tested on the floor of the House, not assessed subjectively by the Governor.
The Punchhi Commission (2010) reinforced this: a pre-poll alliance should be treated as a single party; the Governor must invite the leader of the broadest majority coalition.
Both commissions recommended that the Governor be an eminent person from outside the state, not recently active in local politics, to ensure neutrality.

Connection to this news: The guidelines from these commissions form the benchmark against which gubernatorial conduct in hung assemblies is measured, even though they are not legally binding.

Supreme Court Jurisprudence on Governor's Discretion

The Supreme Court has repeatedly intervened to define the limits of the Governor's power in government formation.

Rameshwar Prasad v. Union of India (2006): The Supreme Court declared the imposition of President's Rule in Bihar (2005) unconstitutional. The Court held that the Governor cannot refuse to invite a party/coalition to form a government simply on the subjective assessment that the majority was assembled by "illegal or unethical means." The majority must be tested on the floor of the House.
Nabam Rebia v. Deputy Speaker (2016): A five-judge constitutional bench held that the Governor cannot unilaterally summon, prorogue, or advance a session of the Assembly against the advice of the Council of Ministers. The Governor's discretion under Article 163 is limited and subject to judicial review.
The Court has consistently held that "fanciful assumptions" of horse-trading are not a valid basis for dismissing a government or dissolving an assembly.

Connection to this news: These rulings establish that the floor of the House — not the Governor's personal assessment — is the constitutionally mandated arena for testing majority, directly constraining gubernatorial overreach in government formation.

Discretionary Powers of the Governor: Scope and Limits

The Governor's discretionary powers, scattered across Part VI of the Constitution, are constitutionally recognized but narrowly circumscribed.

Explicit constitutional discretion: reservation of bills for President's consideration (Article 200), reports to President on constitutional breakdown (Article 356), appointment of CM in hung assembly situations (Article 164).
Article 163(2) provides that if a question arises whether a matter falls within the Governor's discretion, the Governor's decision shall be final — but this has been subjected to judicial review.
The Supreme Court in Nabam Rebia clarified that this finality clause does not insulate gubernatorial actions from constitutional scrutiny.
The Governor cannot dismiss a ministry that still commands confidence; the floor test is the only legitimate method.

Connection to this news: The core controversy — whether the Governor can question how a post-poll majority was assembled — is directly resolved by the constitutional position that discretion in CM appointment is residual, not plenary.

Key Facts & Data

Article 164(1): Chief Minister appointed by Governor; other ministers appointed on CM's advice.
Article 163: Council of Ministers to aid and advise Governor; discretion exercised only where Constitution explicitly permits.
Sarkaria Commission: Set up 1983, report 1988; laid down four-tier priority order for CM invitation in hung assembly.
Punchhi Commission: Report submitted March 30, 2010; recommended pre-poll alliances be treated as single party.
Shamsher Singh v. State of Punjab (1974): Governor must act on advice of Council of Ministers except in constitutionally specified situations.
Rameshwar Prasad v. Union of India (2006): President's Rule in Bihar (2005) struck down; Governor cannot reject post-poll majority on grounds of unethical means.
Nabam Rebia v. Deputy Speaker (2016): Five-judge bench; Governor's powers over Assembly sessions not unilateral; subject to judicial review.
The 10th Schedule (Anti-Defection Law, 42nd Amendment 1985) and the floor test are the constitutional mechanisms to determine majority legitimacy.