Some Raj Bhavans are on the battle path

Recent media reports about clashes between governors and state governments in Maharashtra and Kerala have focused on the delicate relationship between the constitutional head of state and the elected government. For example, the situation in Maharashtra was in fact so bizarre that the governor refused to accept the date of election of the Speaker recommended by the state government. As a result, the Assembly could not elect the Speaker.

The situation in Kerala is no less strange. The state governor re-appointed the Kannur University vice-chancellor in accordance with the law, alleging that he was under pressure from the government to re-appoint the vice-chancellor. The Governor admitted that he had done wrong under government pressure. He has also added that he no longer wants to continue as Chancellor, although he holds the position in an ex-officio capacity, meaning he will have to remain as Chancellor as long as he is governor. But the governor is adamant.

It is not the first time that the governor has accused his own government. This has been a regular feature in West Bengal. Similarly, in Rajasthan as well as in Maharashtra, the issue of rejection of the advice of the Council of Ministers has been observed again. Of course, there have been differences between governors and chief ministers in the past too, but these are rare occurrences. But open confrontation has now clearly crossed the limits of constitutionally permissible behavior.

with discretionary powers

The relationship between the Governor and the Chief Minister has not been smooth and stress free even in good times. It has something to do with the whole idea of ​​the office of governor and its past history. In the colonial era, the governor was the absolute ruler of the province who was ultimately answerable to His Majesty, the king. A closer look at the debate in the Constituent Assembly on the Governor shows that there were different views on the powers to be given to the Governor. In fact, there were members in the assembly who wanted the governor to be as powerful as the governors of the colonial era. Although BR Ambedkar was clear that the governor should be only a constitutional head and that executive power should be entirely vested in the elected government, he promoted the idea of ​​vesting certain discretionary powers in the governor. In this regard he was guided with the view that the State Governments were subordinate to the Central Government and, therefore, the Governor should be given discretionary powers to ensure that they act as such.

So, ultimately, the Governor who emerged from the Constituent Assembly was one of the few discretionary powers prescribed by or under the Constitution, unlike the President of India who has been given no such power. In addition, Article 163 (Article 143 in the Draft Constitution) became a ‘blind reproduction of Section 50 of the Government of India Act 1935’ (HV Kamath). This exact reproduction of the provision in the 1935 Act has, to a large extent, introduced an ambiguity about the actual powers of the Governor. face to face Elected government in democratic India which was corrected only by the Supreme Court of India stating the law in clear terms Shamsher Singh (1974). From Shamsher Singh To Nabam Rebia (2016) The Apex Court declared that the Governor, in the exercise of the executive power of the State, can only act on the aid and advice of the Council of Ministers “…save in certain famous exceptional situations”.

Maharashtra case

The refusal of the Governor of Maharashtra to accept the date of election of the Speaker is against the principles of constitutional government. It must be said here that the Constitution does not assign any role to the Governor in the election of the Speaker under Article 178, which is exclusively the business of the House. It is only the rule of the house which says that the governor will decide the date. So this date has no special significance. Under the procedure followed in all assemblies, the government fixes the date and communicates it to the secretary of the assembly who forwards it to the governor’s office for his signature. After the date is formally approved by the Governor – which he is bound to do – the members are informed about it.

Now the question is, if the governor does not approve the date, can elections be held? The fixation of the date by the Governor is not of any constitutional importance; Election by the House is important. Therefore, if the governor stands in the way of the election, the only way out for the house is to amend the special rule that empowers the governor to fix the date. It may provide that the Secretary on receipt of the date from the Government shall notify the members of the same. Election can be done either through secret ballot or through a resolution in the house as done by Lok Sabha. But it must be said that this could be the first time in the history of independent India that a Governor refused to fix the date for the election of the Speaker and as a result the election could not be held. The Maharashtra Legislative Assembly is now in office without a Speaker.

in Kerala

The situation in Kerala is even more curious. There, a controversy has erupted over the reappointment of the current Vice-Chancellor of Kannur University. A suggestion was made by the state government through the pro-chancellor who is the minister of higher education, for the reappointment of the incumbent vice chancellor. The Governor, being the ex-officio Chancellor of the University and the appointing authority, accepted the suggestion and re-appointed him. After some time the Governor made it public by making serious allegations that he had signed the order of appointment under pressure from the government and had done wrong by re-appointing the Vice Chancellor under pressure.

It must be stated here that the Governor had acted strictly in accordance with the law in reappointing the incumbent Vice Chancellor. Under the University Act, an existing Vice-Chancellor is eligible for reappointment. Since the Act does not lay down any specific procedure for reappointment, the Chancellor was right in accepting the suggestion or recommendation made to the Government. In fact, he can accept the suggestions of anyone including the Leader of the Opposition in the Assembly. The point to be noted here is that the Governor as the Vice-Chancellor need not act on the advice of the Council of Ministers in the matter of appointment of the Vice-Chancellor and others in the University. He can work completely independently. He could even reject the suggestion of the government.

Kerala High Court has clarified this legal point Gopalakrishnan vs Chancellor, University of Kerala, So the Governor of Kerala needs to put his mind independently in the matter of re-appointment, evaluate the performance of the Vice-Chancellor and satisfy himself completely about the qualification of the appointee before signing the appointment order. It is believed that he may have done so. So, it is shocking why he decided to go public and make serious allegations against the government and plead guilty in the process. Adding to the confusion, the Governor abdicated himself from the ex-officio charge of the Chancellor and announced that he would not act as the Chancellor. Needless to say that he cannot relinquish his charge in an ex-officio capacity unless he leaves his parent post.

separation is the essence

These are really strange situations. The governor is a higher constitutional authority. He should work within the boundary wall of the Constitution and become a friend, philosopher and guide of his government. The Constitution does not allow them to form a parallel government; Nor does it make him personally responsible for his actions as governor. Such confrontations only occur in opposition-ruled states, indicating that political propriety has overtaken constitutional propriety. Through the debates of the Constituent Assembly, one sees these wise words of Pandit Thakur Das Bhargava, a conscientious member of the Assembly: “He (the Governor) will be a man above the party and he will give a different perspective to the minister and the government.” will see from the point”. Vairagya is the essence of the ancient culture of India. But the voice of Pandit Thakur Das has remained as a voice in the forest.

PDT Acharya is former Secretary General of Lok Sabha