By Sanjay Raman Sinha
The standoff between Kerala Chief Minister Pinarayi Vijayan and Governor Arif Mohammad Khan has once again brought to the fore the fragile fault lines between the two constitutional entities. The current imbroglio stems from the governor seeking the resignation of nine vice-chancellors (VCs) citing illegal appointments.
The matter went to the Kerala High Court where it asked the VCs to continue in their respective positions till final orders from the governor were served. The Court observed that the chancellor (the governor is the chancellor) had issued show cause notices to the VCs asking them to explain by November 3 why they should not be removed from office. On this basis, the Court said there was no significance in directing the VCs to resign. It said the VCs can be removed only after following the prescribed procedure. Though the matter is sub judice, it has generated enough hue and cry from the embattled parties who say the governor has overstepped his role.
Vijayan has gone to the extent of announcing that a Bill would be tabled in the assembly curtailing the governor’s powers as chancellor of 13 universities in the state.
The fracas between governors and CMs is not just in Kerala. Other states have also seen a ding-dong battle between both, affecting their functioning. The actions of these governors are so biased and political that they are seen as agents of the centre.
The non-BJP governments of Rajasthan, Tamil Nadu and West Bengal have also passed similar laws in the assembly against the interference of governors in the education sector. In Rajasthan, the governor has been facing allegations of appointing VCs with an RSS-BJP ideology in seven of the eight universities. Six of the eight VCs are from outside Rajasthan.
Meanwhile, the MK Stalin government of Tamil Nadu believes that due to the interference of the governor, the level of education in the state has been badly affected. Governor RN Ravi has not acted on the Tamil Nadu Admission to Undergraduate Medical Degree Courses Bill adopted by the assembly in September 2021. Tamil Nadu has now curtailed the powers of the governor relating to education.
In Jharkhand, Governor Ramesh Bais is inordinately delaying the office of profit matter and keeping the Soren government on tenterhooks. In Maharashtra, Governor Bhagat Singh Koshyari had stalled the election of the Speaker ever since the post fell vacant in February 2021.
Jagdeep Dhankhar, when he was the governor of West Bengal, would even summon the chief secretary and director general of police on a regular basis.
Elsewhere too, the same story is repeated. The Koshyari-Uddhav Thackeray conflict in Maharashtra, Banwarilal Purohit-Bhagwant Mann standoff in Punjab and L-G Vinai Kumar Saxena-Arvind Kejriwal fracas in Delhi have simmered and soiled centre-state relations.
Apart from being an executive and administrative head of the state, the governor’s post is also constitutional. But as governors are invariably handpicked by the ruling party at the centre, they are seen as its handmaiden. Their partisan actions have only given credence to this belief. This, when they are supposed to be watchdogs of the Constitution. Instead, most have been reduced to political pawns of the centre.
With the emergence of regional parties in states, the ruling party at the centre is wary. Multi-polar electoral fights are common now and governments are being formed with wafer-thin majorities, leading to political instability. The governor is often used in such circumstances as a lever, facilitator and at worst, a proxy of the centre’s nefarious designs to install its own government, come what may. This has brought the post of the governor into severe disrepute.
The role of the governor originated during the British reign as the governor-general (or viceroy) and continued till early Independence. They were representatives of the monarch in the dominion. When the East India Company came to India, it controlled Bengal through the governor of Bengal. Other Presidencies—Bombay and Madras—had their own governors. Provincial governors were agents of the Crown, functioning under the control and direction of the governor-general. The first governor-general of the Dominion of India was Lord Louis Mountbatten. In 1919, an Indian legislature, consisting of a council of state and a legislative assembly, took over the legislative functions of the viceroy’s council. From 1858 to 1947, the governor-general was known as the viceroy of India. So the governor being viewed as the centre’s agent had a historical narrative.
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Constituent Assembly debates sought to clarify the position and when the Constitution was finally drafted, a neutral and sanguine role for the governor was crafted. He was supposed to be the constitutional watchdog.
While debating the post of the governor, Dr BR Ambedkar, the chairman of the Constitution Drafting Committee, had said: “The first thing I would like the House to bear in mind is this. The Governor under the Constitution has no functions which he can discharge by himself: no functions at all…. Even under this article, the Governor is bound to accept the advice of the Ministry.” Ambedkar held that governors would not have powers to overrule the decisions of the council of ministers.
But politics overshadowed this gubernatorial post. The first row over this post was in 1952 in Madras. The governor’s office was accused of acting inappropriately. Governor Sri Prakasa invited C Rajagopalachari to form the Congress government in Madras despite the fact that he was not an elected member of the assembly and had not participated in the elections. After that, manipulations and machinations took place regularly.
The governor has got multiple discretionary powers. But the discretionary power related to forming the government is the most important and controversial one. After the 42nd Constitutional Amendment Act, ministerial advice was made binding on the president. The governor was free from such binding advice.
In fact, Article 163 says the governor must act as per the advice of the council of ministers “except in so far as he is by or under this constitution required to exercise his functions or any of them in his discretion”. This exemption separates him from the president, who doesn’t have similar discretion to bypass or ignore the decision of the Union cabinet. However, this discretionary power has led to the unseating of democratically-elected governments.
In Shamsher Singh vs State of Punjab, the Supreme Court noted that the president and governors are constitutional heads of government like the Crown in England and must act on the advice of their ministers. The leeway of Article 163 still gives governors space to manoeuvre.
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The governor has also been accorded immunity from malafides arising from his judgments. Article 361 of the Constitution states that he shall not be answerable to any court for the exercise and performance of his powers and duties. In Rameshwar Prasad case, Article 361 was interpreted by the Supreme Court. It did a liberal interpretation of the constitutional shield provided to the governor and held that the personal immunity enjoyed by him extends to the exercise and performance of all powers and duties. However, immunity does not imply that the actions of the governor are beyond the realm of judicial review.
The governor is the head of the state and the executive power of the state is vested in him. He is appointed by the president and holds office at his pleasure. Any citizen who is more than 35 years can be appointed as a governor. He cannot hold any office of profit. He should not be a member of the legislature of the Union or the state.
There are two types of governors in India—those in states and those in Union Territories which have lieutenant-governors/administrators. The governor is the bridge between the central government and states. He has to see that a stable government is formed in the state and he also looks into the legal validity of the law passed by the state legislature. In times of crisis, if there is a breakdown of constitutional machinery, the governor can recommend President’s Rule in the state. These are critical powers and have to be used with wisdom, impartiality and responsibility.
As things stand today, the governor is a political appointee and due to the demands of realpolitik, his allegiance to the party at the centre is over-arching. The post is seen as a retirement benefit and has obligations attached. As long as the centre keeps using the governor as a political tool and as long as persons of rectitude and moral strength don’t occupy the post, Machiavellian machinations will continue to unfold.
Indian Roulette
Kerala, 1959: After two bills led to mass protests, the first democratically elected Left government of the state, that of EMS Namboodiripad, was dismissed by Governor Burgula Ramakrishna Rao.
West Bengal, 1967: Governor Dharma Vira dismissed the government and appointed PC Ghosh as the new CM in a Congress supported government.
West Bengal, 1970: CM Ajoy Ghosh of the United Front resigned. CPM leader Jyoti Basu staked claim, and wanted to prove majority, but Governor SS Dhawan ignored the demand and imposed President’s Rule.
Haryana, 1982: Governor GD Tapase dismissed the Lok Dal and BJP coalition. He didn’t invite CM candidate Devi Lal; instead, he invited Congress leader Bhajan Lal to form the government.
Andhra Pradesh, 1984: NTR’s finance minister NB Rao split the party and staked claim as CM. He was supported by Governor Ram Lal and was made CM.
Karnataka, 1988: Governor P Venkatasubbaiah did not give an opportunity to Karnataka Janata Dal CM SR Bommai to prove his majority in the assembly.
Goa, 1994: After the resignation of five ministers, Governor Bhanu Pratap Singh dismissed the government of Wilfred D’Souza and installed Ravi Naik as CM without consulting the centre.
Gujarat, 1996: Post defection, Governor Krishna Pal Singh asked CM Suresh Mehta to prove his majority. Despite doing so, Pal recommended President’s Rule in the state.
Uttar Pradesh, 1997: After the loss of majority of the Kalyan Singh-led BJP government, Governor Romesh Bhandari dismissed it and installed Loktantrik Congress’ Jagdambika Pal as the new CM. Pal had to resign three days later after the court reinstated Kalyan Singh as CM.
Bihar, 2005: Despite the JD(U) and the BJP claiming majority, Governor Buta Singh dissolved the assembly.
Jharkhand, 2005: Despite NDA claiming the support of 41 MLAs, Governor Syed Sibtey Razi installed JMM’s Shibu Soren as the new CM. After the court ordained a floor test, Soren failed to prove his majority.
Karnataka, 2010: The BS Yediyurappa government faced rebellion and in the floor test proved majority. Governor HR Bhardwaj questioned the manner in which this was done and recommended President’s Rule. The Union government rejected his suggestion.
Uttarakhand, 2016: After rebellion by 26 MLAs, Governor KK Paul recommended President’s Rule. The Uttarakhand High Court quashed it and Harish Rawat proved his majority.
Goa, 2017: Though the Congress emerged as the single largest party, Governor Mridula Sinha invited the BJP to form the government.
Manipur, 2017: Though the Congress emerged as the single largest party, Governor Najma Heptullah invited the BJP first to prove majority. It did so and formed the Biren Singh government.
Bihar, 2017: Nitish Kumar allied with the BJP and staked claim to form the government. Governor Keshari Nath Tripathi rejected RJD’s claim of being the single largest party and anointed Nitish Kumar as CM.