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Reforming the Office of the Governor

Alok Prasanna Kumar (alok.prasanna@vidhilegalpolicy.in) is senior resident fellow at the Vidhi Centre for Legal Policy, and is based in Bengaluru.

The blatantly partisan actions of Karnataka Governor Vajubhai Vala in the aftermath of the Karnataka Assembly elections in 2018, which had thrown up a hung result, call for the need to scrutinise the post and functioning of governors within India’s constitutional scheme. Such malfeasance on the part of governors is not recent and their supposedly neutral role has always been more a pious hope than a reality. The need of the hour is serious constitutional reform, whether by the legislature or by the judiciary.

Karnataka Governor Vajubhai Vala joined a long and infamous list of partisan governors when he invited B S Yeddyurappa of the Bharatiya Janata Party to take oath as the chief minister of Karnataka recently. Per se, the decision was not objectionable. After all, the BJP had won the most number of seats in the just-concluded elections to the Karnataka state legislative assembly. However, Yeddyurappa was not the only claimant. H D Kumaraswamy of the Janata Dal (Secular)—JD(S)—had the support of the Congress party as well, and thereby claimed the support of a simple majority of members of the legislative assembly (MLAs) backing him. Not only did Governor Vala ignore Kumaraswamy’s claim, he also gave Yeddyurappa 15 days to prove his claim; time enough, the cynics would claim, to “poach” MLAs from the Congress and JD(S) and stitch together a majority by hook or by crook.

As it happened, the Supreme Court stepped in and shortened that time period to a little less than two days by directing that a “floor test” be conducted on 19 May 2018 at 4 pm. More drama followed, but, eventually, Yeddyurappa resigned without having put his chief ministership to the floor test. H D Kumaraswamy has since been sworn in as chief minister of Karnataka for the second time, successfully having proved his majority on the floor of the house and having appointed a council of ministers to run the government. As things stand, the post-poll alliance between the Congress and the JD(S) will continue into the Lok Sabha elections of 2019 (Sharma 2018).

In this wrangle, the role of the governor (and not just Vajubhai Vala) has come under greater scrutiny. Commentators have questioned the need for such a post under our Constitution, pointing out that the potential for mischief was noted even in the Constituent Assembly, but remained unaddressed. In fact, the post’s colonial past has been noted as well, the identical provisions in the Government of India Act, 1935, perhaps, having a bearing on how the provisions under the Constitution have been worked by successive governments. Do we even need such a post? Multiple commentators have argued that the post of governor as it stands need not exist. Others have called for some manner of reform.

Given the long and sordid history of meddlesome governors, is abolition of the post the only way forward? Or, is there a way to reform it to make it a meaningful exercise in constitutional reform? This is what the present article explores.

Abolition or Reformation?

Given the colonial history of the post, it is not surprising that some commentators have suggested that the post itself be abolished (Bhatia 2018; Kesavan 2018). The argument goes that there is no useful purpose being served by the holder of this office, apart from indulging in intrigue and, in any case, the long history of such meddling suggests a grave error on the part of the Constituent Assembly in continuing with the provisions of the 1935 act insofar as the governor is concerned.

The pious hope of the framers was belied almost immediately after the Constitution came into force (Noorani 2018). The manner in which the Congress party used the governor to forge majorities, most notably in the undivided Madras Province in 1952 (Arun 2017), suggests that whatever constitutional convention the framers had hoped would evolve was stillborn.

Does this mean that the post serves no useful purpose? That is not the case at all; far from it.

The governor is supposed to be an analogue of the President at the state level. Unless the argument is made that the whole notion of separating the head of state and head of government be done away with entirely (and no one has made that argument), there is no reason to presume that there is something fundamentally wrong with the post itself.

Rather, the structural fault in the post of governor lies in the fact that, unlike the post of the President, it is not an elected one, but an appointed one. A President holds office until removed by impeachment, but a governor only holds office during the “pleasure of the President.” A President, therefore, is accountable to the legislature, while a governor is accountable to the union executive alone. One can see, therefore, how this might guide their actions, even though their function, in essence, is
the same.

Yet, governors in India are not just analogues of the President. Various other powers have been vested upon governors that have not been given to the President. Key among these are the powers of governors in respect of the “Sixth Schedule” states (states with significant hill tribal populations with special governance arrangements). This is not an accident or a quirk of history. This was the result of a political process that was accommodated into the Indian Constitution and cannot be easily undone without fundamentally reopening the complicated arrangements that put the provisions of the Sixth Schedule into the Constitution in the first place.1

Be that as it may, perhaps, the answer lies in changing the basic structural defect in the provisions relating to the governor, that the person holding the post is answerable to the union rather than to the people of the state. One potential route for reform could be in replicating the process for election of the President for the governor at the state level, that MLAs, members of the legislative council (MLCs) if any, elected members of panchayati raj institutions, and municipal governments vote for a governor who will serve on the same terms as the President, with similar powers and restrictions at the state level.

If the healthy conventions that have developed around the post of President are codified for the governor, there is no reason why the post cannot also enjoy some of the respect that the post of the President enjoys.

Judicial Path for Reform

Reform need not necessarily be through the route of constitutional amendments though. Over the years, the Supreme Court has significantly curtailed the powers of governors in such matters, especially since the judgment in S R Bommai v Union of India (1994). The challenge to Governor Vala’s decision to invite Yeddyurappa to form the government is still pending in the Supreme Court and it has been argued that the Court should use this opportunity to settle the law on the matter: In what order should the governor call the claimants in the case of a hung assembly? Even though the question is entirely academic now, some have called upon the Court to settle the law and end the “debate” (Sibal 2018). If it chooses to do so, it is important though that the court concerns itself with the right question.

The right question would not be as to which party or coalition should be called first in the case of a hung assembly. That is a red herring. The principle as it stands and as articulated by the Court itself—that the single-largest party or single-largest post-poll group should be invited to form the government—is sound and requires no further tampering. The Court should not be asked to lay down too general a principle only on the basis of the Karnataka example (or Manipur or Goa, for that matter) since the number of ways in which an election can throw up a hung assembly is potentially infinite, given the size of Indian states and the multiparty system. Rather, the Court should concern itself with the sanctity of the process. Should the governor always go with the first claimant (single party or alliance)? If so, how much time should such claimant be given to prove their majority on the floor of the house? The idea should be to minimise the discretion of the governor as far as possible and to reduce the chances of horse-trading.

There are other aspects which need clarity. What are the powers of the pro tem speaker of the house in a floor test? Is the floor test supposed to be with all members of the house or just the members present and voting? Given that the “floor test” has been held on previous occasions under judicial supervision,2 it might make sense for the Court to more clearly lay out the terms of such tests to prevent last-minute dashes to the Court in the future.

Whether the change comes through judicial interpretation of constitutional amendment, the fact remains that the functioning of governors (and lieutenant governors in Delhi and Puducherry, of late) has led to an unsatisfactory status quo. Almost all major political parties in India have been at the receiving end of gubernatorial malfeasance, in one circumstance or the other, but have preferred to let the courts and judiciary take the initiative in reforming through interpretation. Perhaps, it is time for the political leadership to step up, if for nothing else, in their own self-interest.

Notes

1 For some of the complications that this involves, see Baruah (2003).

2 See, for instance, Chandrakant Kavlekar v Union of India (2017).

References

Arun, Kalyan (2017): “What’s Happening in TN Is Not New, We Set the Wrong Precedent in 1952,” News Minute, 12 February, https://www.thenewsminute.com/article/what-s-happening-tn-not-new-we-set-wrong-precedent-1952-57155.

Baruah, Sanjib (2003): “Protective Discrimination and Crisis of Citizenship in North-East India,” Economic & Political Weekly, Vol 38, No 17, pp 1624–26.

Bhatia, Gautam (2018): “Do We Need the Office of the Governor?” Hindu, 24 May, viewed on 18 June 2018, http://www.thehindu.com/opinion/lead/do-we-need-the-office-of-the-governor/article23971800.ece.

Chandrakant Kavlekar v Union of India (2017): Writ Petition (Civil) D No 8311 of 2017, Supreme Court order dated 14 March.

Kesavan, Mukul (2018): “Against Governors,” Telegraph, 24 May, viewed on 18 June 2018, https://www.telegraphindia.com/opinion/against-governors-232558.

Noorani, A G (2018): “Solutions for a Hung Legislature,” Frontline, 22 June, viewed on 18 June 2018, https://www.frontline.in/politics/solutions-for-a-hung-legislature/article10108762.ece.

S R Bommai v Union of India (1994): AIR, SC, p 1918.

Sharma, Maya (2018): “Congress, JDS to Fight 2019 Polls Together, Reach Karnataka Cabinet Deal,” NDTV, 1 June, viewed on 18 June 2018, https://www.ndtv.com/india-news/congress-jds-will-fight-2019-lok-sabha-elections-together-reach-agreement-on-karnataka-cabinet-1861096.

Sibal, Kapil (2018): “What a Governor Must Do,” Indian Express, 22 May, https://indianexpress.com/article/opinion/columns/karnataka-assembly-elections-governor-vajubhai-vala-5185855/.

Updated On : 28th Jun, 2018

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