Discretion or Partnership? Analyzing the Governor’s Role in Hung Assemblies

Abstract

The constitutional position of the Governor in India becomes particularly significant in situations where electoral outcomes produce a hung Legislative Assembly and no political party or pre-poll alliance secures a clear majority. Although the Governor is envisaged as a constitutional and politically neutral head of the State, the exercise of situational discretion in appointing the Chief Minister and facilitating government formation has repeatedly generated controversy concerning political neutrality, federalism, democratic legitimacy, and constitutional morality. This paper critically examines the Governor’s discretionary role in hung assemblies, with particular emphasis on the constitutional framework under Articles 163 and 164 and the conventions and judicial principles governing government formation. It analyses the distinction between constitutional and situational discretion and examines historical and contemporary instances of contested gubernatorial action, including the Madras Assembly episode of 1952, the Andhra Pradesh and Uttar Pradesh political crises, the S.R. Bommai episode, the Karnataka government formation crisis of 2018, and the Tamil Nadu hung assembly episode of 2026. The study further evaluates the role of the Supreme Court in establishing constitutional limitations on gubernatorial discretion through landmark decisions including S.R. Bommai v. Union of India, Shamsher Singh v. State of Punjab, Rameshwar Prasad v. Union of India, and Nabam Rebia v. Deputy Speaker. Particular attention is given to the principle that legislative majority should ordinarily be demonstrated through a floor test rather than determined solely on the Governor’s subjective assessment. The paper also examines the recommendations of the Committee of Governors, Sarkaria Commission, and Punchhi Commission concerning the order of preference for inviting political parties or alliances to form the government in a fractured mandate. The analysis identifies the absence of a clearly codified constitutional procedure, political affiliations of Governors, delays in government formation, and the possibility of horse trading and defections as major institutional concerns. It argues that gubernatorial discretion should operate as a constitutional mechanism for facilitating democratic government formation rather than as an instrument for selecting or influencing the composition of government. The paper proposes clearer constitutional or statutory guidelines, time-bound government formation, prompt floor tests, greater neutrality in the appointment of Governors, and adherence to established constitutional conventions. It concludes that the Governor’s role in a hung assembly should be understood as one of constitutional partnership and democratic facilitation, where discretion is exercised transparently, impartially, and strictly within the framework of constitutional morality and federal principles.