Who Gets to Form the Government? The Governor's Floor Test
A state election returns a hung 147-seat assembly: Party A 52, Party B 48, Party C 22, Party D 15, and 10 independents. Party A claims the support of all 10 independents and Party C, giving it 84 seats, above the majority mark of 74. Party C's leader says, 'We will decide after seeing the Governor.' Party B claims 48 plus Party D's 15 plus 6 independents, giving 69. The Governor invites Party A's leader to form the government and gives 10 days to prove majority. The opposition moves the High Court, arguing that the Governor should have invited a post-election alliance only after written proof of support and that a 10-day window is too long. The Governor says he acted to avoid a vacuum and to give the largest pre-election party the first chance.
1. Analyse the Governor's discretion under Article 164 in a hung assembly. What constitutional conventions and limits apply?
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Article 164 says the Governor appoints the Chief Minister and, on the CM's advice, other ministers. It does not say the Governor must invite the single largest party. In a hung assembly, the Governor has discretion, but it is not personal or arbitrary discretion. It must be guided by constitutional conventions and the principle that the person appointed should be able to command a majority in the House.
The relevant conventions are: invite the person most likely to command a majority; if no single party has a majority, explore a coalition or a minority government with credible support; give the claimant a reasonable opportunity to prove majority on the floor; and avoid giving an extended period that allows horse-trading. In S.R. Bommai v Union of India (1994), the Supreme Court held that majority must be tested on the floor of the House, not in the Governor's subjective satisfaction. In Rameshwar Prasad v Union of India (2006), the Court condemned the Governor's subjective assessment and the misuse of Article 356.
The Governor's first duty is not to the largest party but to stable and accountable government. Inviting Party A is defensible only if Party A presents credible evidence of majority. Oral claims, especially Party C's 'we will decide later', are weak.
2. Evaluate whether a 10-day floor test is reasonable and whether the Governor may rely on oral assurances of support.
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A 10-day period is arguably too long in a hung assembly where the numbers are fluid. The Supreme Court has generally favoured a short floor test so that the government is tested before it can use official resources to win over members. In the 2018 Karnataka episode, the Court shortened the time for the floor test. A 10-day window can enable horse-trading, especially with 10 independents and a regional party that has not committed itself in writing.
Oral assurances are not sufficient evidence of majority. The Governor should ask for written letters of support from Party C and the independents, or at least a signed memorandum. If the letters are not forthcoming, the Governor should not treat Party A as having 84 seats. The Governor can also ask the Chief Minister-designate to prove majority within 48 to 72 hours. A short floor test is not a denial of a fair chance; it is a safeguard against manipulation.
The Governor's stated aim of avoiding a vacuum is legitimate, but a vacuum is avoided by appointing a caretaker government or by a short deadline, not by a long probationary period. The 10-day limit is therefore not automatically unconstitutional, but it is longer than necessary and should be shortened.
3. Recommend the constitutional course the Governor should have followed and the order the High Court should pass.
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The Governor should have followed a structured consultation:
- Ask Party A, Party B and Party C to submit written claims with lists of supporting MLAs.
- Invite the claimant with the most credible written majority, not simply the largest party. If Party A's claim depends on Party C's later decision, the Governor should ask Party C to clarify in writing.
- Give the invited leader a short floor test, preferably within 48-72 hours, and require the Assembly Secretary to fix the date.
- If no one can form a government, explore a coalition or a minority government; only then consider a report to the President under Article 356, and even then with material evidence.
- Record reasons for the choice so that the decision is transparent and reviewable.
The High Court should not decide the political numbers itself. It should quash the 10-day window as excessive, direct a floor test within a fixed short period, and require the Governor to disclose the basis of the invitation. The Court should affirm that the floor of the House is the proper forum for testing majority and that the Governor's discretion is subject to judicial review for mala fides and arbitrariness.