Of the four states that went to polls recently, West Bengal and Tamil Nadu have new Chief Ministers, as the BJP’s Suvendu Adhikari and the Tamilaga Vettri Kazhagam’s (TVK) C Joseph Vijay respectively have taken oath. In Assam, BJP leader Himanta Biswa Sarma has been elected as the leader of the BJP legislature party and is set to return as CM. In Kerala, however, the Congress is yet to finalise the CM candidate. How long can this uncertainty last?

After a state’s elections are over, how soon does a new government have to be formed, and what happens if that timeline is breached? We explain.

Formation of a new state Assembly

The Congress has about another 10 days to decide the Kerala Chief Minister. This is because the tenure of the existing Assembly will expire on May 23. Under Article 172 of the Constitution, “Every Legislative Assembly of every State, unless sooner dissolved, shall continue for five years from the date appointed for its first meeting and no longer and the expiration of the said period of five years shall operate as a dissolution of the Assembly.”

According to the Election Commission, Kerala’s current Assembly was formed on May 24, 2021, and its term expires on May 23, 2026.

In the period between the declaration of election results and the end of the existing Assembly’s tenure, the winning party or coalition stakes claim to form the government, and the Governor invites it to prove majority in the House. A pro-tem speaker is appointed, usually the senior-most legislator among the elected, to administer the oath to the MLAs and conduct a floor test.

In case of a hung Assembly, the Governor has a greater role in deciding whom to invite, but eventually, the party or the coalition has to prove it has the support of more than half the winning candidates.

In the extreme scenario that a government cannot be formed for various reasons, the state is put under President’s Rule, under Article 356. About this scenario, Article 172 states, “Provided that the said period may, while a Proclamation of Emergency is in operation, be extended by Parliament by law for a period not exceeding one year at a time and not extending in any case beyond a period of six months after the Proclamation has ceased to operate.”

Follow our daily newsletter so you never miss anything important. On Wednesday, we answer readers' questions.

Can a party win a floor test without naming a Chief Minister candidate? This would be very difficult, as Article 164 of the Constitution says, “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, and the Ministers shall hold office during the pleasure of the Governor.” Thus, unless the CM has been sworn in, the other ministers cannot be appointed. A party can of course change its Chief Minister later.

There are three frontrunners: VD Satheesan, who is popular among the public, KC Venugopal, who is popular among the newly elected MLAs, and Ramesh Chennithala, who is the seniormost Kerala Congress leader.

If Venugopal is the ultimate choice, there will be another, smaller complication, because he is not an MLA.

Yes. The Constitution, under Article 164(4), allows a leader who is not an MLA — or an MLC in states that have Legislative Councils along with Legislative Assemblies — to take charge as minister, provided she secures membership to either House within six months.

On March 16, 1971, the Supreme Court relied on Article 164(4) and ruled that a person can be appointed Chief Minister without being an MLA or MLC, and that Article 164(4) applies to Chief Ministers too.