Discretion, Dominion, Distortion: Centre’s Undermining of State Mandate Through Gubernatorial Overreach

-Yash Sharan and Vaibhav Singh Tiwari*

Introduction 

Recently, the Supreme Court (“SC”) has addressed the long-standing silence around the gubernatorial discretion in granting assent to Bills under Article 200 and ruled that the Governor possesses no discretion to withhold or indefinitely delay assent to Bills. By prescribing  judicially enforceable timelines, it establishes a crucial constitutional check on the governor’s legislative discretion.

Similar to Article 200, Articles 163 and 164 suffer from constitutional silence on the discretionary power of the governor in inviting political parties to form the government during hung assemblies. In the aftermath of the hung assembly, the governor’s power often turns arbitrary, and arithmetic clarity gives to political considerations. With more than 50% of governors appointed from active political backgrounds, their perceived loyalty often lies with  the Union government. Therefore, the decision made by the governor on whether to invite the single largest party or post-poll coalition is often influenced by their political alignment. 

The article contends that the discretion vested in the governor under Article 163 must be exercised through a clearly defined hierarchical threshold, and in the absence of such criteria, the governor’s decision to invite the formation of government is often influenced by the Union government, posing a  risk of undermining state autonomy and distorting of democratic mandate.

The Constitutional Conundrum of Hung Assemblies

The federal structure of the Constitution has been biased towards central authority. One of the most powerful tools of this domination is the office of the Governor, originally envisaged as a ceremonial representative of the Union, it has evolved into a political power broker. The case of State of Punjab v. Principal Secretary to Governor of Punjab explained the limits of gubernatorial discretion under Article 200, and a similar ambiguity exists in Articles 163 and 164 in instances of a hung assembly.

Articles 163 and 164 put the Governor in a central position in state politics, particularly when election outcomes are inconclusive. Article 163(1) reads as:

“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 so far as he is required to exercise his functions at his discretion.”

The Constitution does not say what qualifies as constitutionally valid discretion during post-election situations. When an assembly is hung, that is, with no clear  majority, the Governor is the only constitutional officer empowered to decide whom to invite to form the government. Such discretion is not based on objective criteria and cannot be questioned by the court immediately,leaving a vacuum ripe for exploitation.

The most well-known case is from Karnataka, where the Governor Vajubhai Vala asked the Bharatiya Janata Party (“BJP”) (the single largest party) to form the government, even though a post-poll coalition of the Congress and JD(S) had a clear majority. The Supreme Court stepped in by ruling that the window to prove majority must be restricted to 24 hours as opposed to 15 days. This shows how discretion and the absence of clear norms undermine democratic outcomes. Similarly, in Maharashtra, the Governor’s early morning invitation to Devendra Fadnavis to form the government was overturned by the Supreme Court, it showed how constitutional offices are used as a means of political manoeuvring. The constitutional balance was restored when the Supreme Court demanded a floor test within 24 hours; however, this would not lead to a sustainable model to prevent future abuse.

The lack of codified limits on gubernatorial invitations to form government makes gubernatorial discretion opaque and manipulable. The discretion under Article 163 should not be used as a licence for political manoeuvring . It must be managed with a system of hierarchy, one that is legally binding and consistent with democratic values and federal integrity.

Uneven Gubernatorial Appointments and Constitutional Ambiguity

The office of the governor, like that of the President, holds a significant constitutional position and is considered the “constitutional head of the state”. The governor also holds the power to appoint the Chief Minister (“CM”) and the Council of Ministers (“COM”) under Article 164, and thus wields discretion in inviting parties to form the government in case of a hung assembly, when no political party has secured  absolute majority.

In such contexts, the office of the governor is widely perceived as embroiled in partisan appointments, driven more by political expediency than constitutional propriety, undermining the federal spirit. Historical precedents have vividly illustrated such a dynamic. Following the 2005 Jharkhand assembly election, despite the BJP led alliance securing 41 seats, the governor, Syed Sibte Razi, invited Shibu Soren’s JMM which had only 17 seats, leading to accusations of democratic subversion. Likewise, in Meghalaya in 2018, despite Congress being the single largest party, the Government extended the invitation to the post-poll coalition of BJP-NPP to form the government. A parallel situation arose in Karnataka the same year, where the post-poll coalition of the Congress-JDS had a majority (115 out of 222), but the governor swore in the BJP’s Yedurappa (104), ushering in a period of political instability and legal contestation. One of the most striking instances happened in late 2019 in Maharashtra, where Governor Bhagat Singh Kosiyari administered the Oath to Devendra Fadnavis (BJP) without ascertaining  whether he had the requisite numbers, which was later challenged in the Supreme Court, which  ordered a trust vote. 

This pattern of gubernatorial appointments reveals constitutional ambiguity e regarding the governor’s discretion during hung assemblies, as there is no clarity or clear threshold, whether to prioritise the single-largest party or endorse a post-poll coalition. This ambiguity also exposes the risk of horse-trading and power politics, which corrodes democratic legitimacy. The Supreme Court in S.R. Bommai v. Union of India has emphasised that the “floor of the house” is the sole legitimate forum for testing the majority, thus advising against any gubernatorial discretion. Despite these standards, the governor continues to act without constitutional moorings, thus undermining the ethos of constitutionalism and eroding federal democracy. 

Reimagining Discretion: Legal Remedies to Gubernatorial Overreach

The constitutional dilemma of gubernatorial discretion should be approached through a multi-pronged approach that encompasses constitutional amendments, judicial guidelines,and institutional reforms. The solution must strike a balance between constitutional clarity and the flexibility required in a multi-ethnic federal democracy.

Firstly, the Sarkaria Commission provided a detailed hierarchy for inviting parties to form the government, firstly, pre-poll alliances with the legislative majority, then the single largest party with external support, and finally, post-poll alliances. This framework, though commonly referred to, has no legal binding.

To fill this normative gap, the Parliament should pass a law under Entry 97, List I (residuary powers) of the Seventh Schedule, obligating Governors to observe this order of preference. This codification would derive  constitutional legitimacy under Article 256 which requires the States to comply with Union laws. S.R. Bommai v. Union of India highlighted the importance of legislative support in preserving democratic legitimacy – codifying such support structures will reinforce  this principle. The statute may also include the mandate from Nabam Rebia that Governors should not exercise the power to convene or prorogue assemblies without the aid and advice of the Council of Ministers, thereby operationalising judicial doctrine through  procedural law.

Secondly, in case of a delay in floor testing-as occurred in Karnataka, there is scope for political engineering. Even though the Supreme Court had to step in and narrow the window to 24 hours, it does not have a per se constitutional duty to prescribe a timeframe for a floor test. However, by invoking its powers under Article 142, the Supreme Court may develop a binding constitutional convention by issuing a continuing mandamus applicable in future cases of government formation in hung assemblies. This power has previously been exercised by the courts to institutionalise systemic reform, for instance, in Vineet Narain v. Union of India for securing investigative autonomy. A similar intervention here would eliminate discretionary manipulation and preserve democratic immediacy.

Further, the Rules of Procedure and Conduct of Business in State Legislatures can be revised to align with constitutional intent by inserting a statutory mandate requiring floor tests to be held within 48 hours of a Governor’s invitation to form government.

Thirdly, Article 163 does not confer absolute power on the Governor but only permits discretion within constitutional limits. In Rameshwar Prasad v. Union of India, the Supreme Court held that gubernatorial decisions must be based on material evidence and are subject to judicial review. An amendment, either legislative or  under Article 162, requiring Governors to issue written and reasonable orders when inviting a party to form the government would create transparency and facilitate judicial review. These written reasons could be challenged through writ of mandamus under Article 226 or 32, especially where they disclose manifest arbitrariness or irrationality. By replacing oral political consultation with written constitutional reasoning, this reform would create an evidentiary trail, enabling greater accountability.

The reforms are not mere fine-tuning, but a constitutional realignment of discretion. Codification transforms conventions into binding law. Timely floor tests curtail political opportunism. Written reasoning invites judicial scrutiny. Revised procedural standards embed federal morality into gubernatorial conduct. Collectively, these measures re-anchor gubernatorial behaviour in the constitutional framework of accountability, transparency and representative legitimacy, ensuring  that the democratic process is not subverted by arbitrary discretion.

Conclusion

The abuse of gubernatorial discretion in hung assemblies strikes at the heart of India’s federal and democratic structure. A constitutional safeguard has been transformed into a political  weapon, undermining the electoral mandate and eroding public trust. Discretion should be governed by transparent, legally enforceable norms to restore the integrity of constitutional offices. Codifying the Sarkaria Commission’s hierarchy, mandating written and reasoned invitations, and introducing judicially monitored timelines for floor tests are essential reforms. The Governor must act as a constitutional umpire, not a partisan referee. These reforms will preserve the balance of power between the Union and the States by institutionalising accountability and insulating  democratic processes from political manipulation. Ultimately, the constitutional commitment to representative government is only when discretion remains subordinate to democracy-not destructive of it.

Yash Sharan and Vaibhav Singh Tiwari are undergraduate law students at Hidayatullah National Law University, Raipur and Dharmashastra National Law University, Jabalpur, respectively.

The views expressed above are the author's alone and do not represent the beliefs of Pith & Substance: The CCAL Blog