How governors decide who gets first shot at power in hung Assemblies

'Delay' in inviting Vijay to form govt in Tamil Nadu reignites debate, Bhavini Mishra explains

When actor-turned-politician C Joseph Vijay took oath as Tamil Nadu chief minister on Sunday morning, it came after days of uncertainty — marked by Governor Rajendra V Arlekar’s reluctance to invite the leader of the single largest party to form the government. 

On Friday, a member of the Vijay-led Tamilaga Vettri Kazhagam (TVK) party moved the Supreme Court (SC), arguing the governor is “duty-bound” to invite Vijay and ask him to immediately prove his majority on the floor of the Assembly, as the TVK had emerged as the single-largest party with 108 seats in the 234-member legislature. With Vijay’s party falling just 10 short of majority, Arlekar’s decision to invite the TVK to form the government only after the party had satisfied him that it had secured majority support triggered a debate on the Governor’s discretion in government formation. 

The Constitution does not prescribe any specific procedure for the Governor to appoint the CM when an election results in a hung assembly. But experts said the Constitutional position on inviting parties to form a government is fairly settled and depends on the nature of the majority claim. 

“If a recognised political party secures a majority, then the Governor is bound to call the elected leader of that party,” former SC judge A S Oka said. “The second contingency is where there is an official pre-poll alliance and, after the election, the alliance gets a majority. In that case, the leader of the pre-poll alliance has to be invited.” 

The Governor is expected to proceed legally and explore all possibilities with political parties, groups and independent MLAs within a reasonable time to pave the way for a stable and responsible government. While ‘reasonable time’ has not been defined, the Governor cannot wait indefinitely lest it lead to horse-trading. 

The Commission on Centre-State Relations, headed by Justice R S Sarkaria in its report submitted in October 1987, recommended that the governor could invite the single largest party in the absence of any party having won a majority. “If we look at the Sarkaria Commission or the Punchhi Commission, there are a couple of situations that may arise: Either you have a pre-poll alliance, a post-poll alliance, or you could be the single-largest party,” former chief justice of the Himachal Pradesh High Court Rajiv Shakdher said. 

Advocate Alok Prasanna, co-founder of the Vidhi Centre for Legal Policy, a New Delhi-based think-tank, said the governor can always invite the single-largest party and then ask it to prove its majority. “This is what the SC has said in the S R Bommai case and Rameshwar Prasad’s case,” he said, adding that the Governor cannot insist that the majority be proven to his personal satisfaction. In the Bommai case (1994), a nine-judge bench said a necessary condition is that the government should enjoy the confidence of the House, even if it is a minority government. 

But governors over the years have been inconsistent in the way they have approached the question of government formation in a hung assembly. Here are some recent examples of hung assemblies and how governors dealt with them.

 

Maharashtra 2019 

After the collapse of the BJP-Shiv Sena alliance, Governor Bhagat Singh Koshyari invited the BJP, as the single largest party, to form the government. It declined as it lacked the numbers. Koshyari then invited the Sena, which sought time, which the Raj Bhavan refused. When the NCP also failed, President’s Rule was imposed on November 12. It was revoked on November 23 when BJP leader Devendra Fadnavis was sworn in as CM, along with the NCP’s Ajit Pawar, who took oath as deputy CM. The government collapsed within three days. On November 26, ahead of a floor test directed by the SC, Fadnavis resigned after the BJP failed to secure the numbers required to prove its majority. The Shiv Sena, the NCP and the Congress later formed the Maha Vikas Aghadi coalition.

 

Karnataka 2018 

The BJP emerged as the single-largest party with 104 seats, followed by the Congress with 78 seats and the Janata Dal (Secular) with 37 seats. The Congress and JD(S), with more than the 112 seats needed for majority, formed a post-poll coalition, and staked claim to form the government. Governor Vajubhai Vala invited the BJP as the single-largest party and asked its leader, B S Yediyurappa, to prove his majority in 15 days. The Congress and JD(S) challenged the decision in the SC, which ordered a floor test within two days. With the BJP failing to get numbers, Yediyurappa resigned.

 

Goa 2017 

The Congress emerged as the single-largest party in the 2017 polls, winning 17 seats in the 40-member House. The BJP,  with 13 members, sought the support of independents and other parties and staked a claim. Governor Mridula Sinha was satisfied with the BJP’s claim and swore in Manohar Parrikar as the CM. The Congress challenged this in the SC, which directed that a floor test must be done. This was won by Parrikar.

 

Manipur 2017 

The Congress emerged as the single largest party, winning 28 seats in the in the 60-member House. The BJP won 21 seats but BJP secured the support of smaller parties and an Independent MLA. The governor invited the BJP’s N Biren Singh to form the government, with the Congress unsuccessfully challenging the decision.

 

Jharkhand 2005 

With 30 seats, the BJP emerged the single largest party, and along with the Janata Dal United, the NDA had 36 seats in the 81-member Assembly. It claimed to have support of some Independent MLAs. The Jharkhand Mukti Morcha (JMM) had 17 seats, along with ally Congress’ nine. Governor Syed Sibtey Razi invited the JMM when it claimed it had the requisite majority with the help of other smaller parties and allies. Eventually, Shibu Soren of the JMM resigned when he failed to get the requisite numbers, and the BJP’s Arjun Munda formed the government, which fell a year later. Madhu Koda, an Independent MLA, then formed the government with the support of the JMM, Congress, and others.

 

Delhi 2013 

The BJP emerged the single-largest party, but the Aam Aadmi Party, with outside support from the Congress, was invited to form the government.

 

Jammu and Kashmir 2002 

The National Conference emerged the single-largest party with 28 seats, but the governor invited the People’s Democratic Party-Congress combine with 15 and 21 MLAs respectively to form the government.

 

Maharashtra 1999 

The Congress won 75 seats, while the Nationalist Congress Party won 75. The two did not have a pre-poll alliance. The BJP-Shiv Sena alliance won 125 seats in the 288-member house. The Congress was invited to form the government.

 

Uttar Pradesh 1997 

Governor Romesh Bhandari did not invite the BJP, the single largest party. A year later, Bhandari administered the oath to Jagdambika Pal, whose Loktantrik Congress Party had only 22 MLAs in a House of 424, after Pal produced letters of support from non-BJP parties.

 

With inputs from Archis Mohan