24 May 2018 00:02 IST

To understand why we don’t, it is important to understand its origins in the colonial regime

Among all the players who strutted and fretted across the stage during the recently concluded Karnataka elections, it is the Governor of the State, Vajubhai Vala, who emerged with least credit to his name. His decision to first invite the Bharatiya Janata Party (BJP) to take a stab at forming the government was perhaps a legitimate exercise of his constitutional discretion (albeit without any recorded reasons for ignoring the post-poll Congress-Janata Dal (Secular) alliance’s claims to having an absolute majority). However, the invitation was extended at 9 p.m., and the swearing in fixed for 9.30 a.m. the next day, ostensibly to ward off any judicial challenges, and present a fait accompli.

His decision to grant B.S. Yeddyurappa 15 days to prove his majority, when the latter himself asked for only a week, was troubling enough for the Supreme Court to intervene and order an immediate floor test. So was his appointment of BJP MLA K.G. Bopaiah as Pro Tem Speaker to conduct the floor test, when the latter had been castigated by the Supreme Court in 2011 for partisan conduct (although this time the Court chose not to intervene). Each of the Governor’s actions was taken in that uncertain grey area of “discretion” — partisan enough to skew the process in favour of the BJP, but not illegal enough to warrant judicial intervention.

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Short-term options

In the aftermath, some have called upon the Governor to resign; others have suggested that the post of the Governor be reserved for non-political appointees; and still others have urged the Supreme Court to lay down the law on how the Governor ought to act when an election yields a fractured verdict. All of these, however, are patchwork solutions that miss the point: the flaw lies not with the identity of the individual who occupies the post, but in the design of the Constitution itself. If we want to put an end to the continuous misuse of the Raj Bhavan for partisan political ends in a manner that threatens both federalism and democracy, we have to rethink the role of the Governor in the constitutional scheme.

To do that, it is important to understand the origins of the office in the colonial British regime. Through the course of the early 20th century, the Indian nationalist movement managed to extract gradual and incremental reforms towards responsible government from the British rulers. These reforms culminated in the Government of India Act, 1935 which established provincial legislative assemblies elected from a limited franchise.

However, in order to ensure that overriding power remained with the British, the Act retained the post of Governor (a holdover from the old, “diarchy” system), and vested him with “special responsibilities” that, in essence, allowed for intervention at will. In a searing critique, K.T. Shah (who was later one of the most articulate members of the Constituent Assembly, or CA), wrote that the Governor would inevitably be biased in his functioning, and his actions would remain at odds with those of popularly elected Ministers.

Despite the nationalist movement’s bitter experience with Governors over almost three decades, the CA chose to retain the post, and continue to vest it with discretionary power. During CA debates, it was pointed out that the Articles dealing with the powers of the Governor were almost verbatim reproductions of the 1935 Act. Defenders of the office raised two broad arguments: first, that there was a dearth of competent legislators in the States; and second, that a certain amount of centralisation of power was necessary in a nascent state such as India. Concerned members of the CA were assured that the Governor would remain only a constitutional post, and would have no power to interfere in the day-to-day administration of the State. However, when Rohini Kumar Chaudhari raised a particularly prescient concern about the Governor’s powers to “form the first Ministry” and call upon “anyone, whether he has a big majority or a substantial minority”, this was brushed aside by saying that a no-confidence motion could soon resolve such issues.

A constitutional ‘choke point’

The CA debates around the office of the Governor reveal an important point. The Constitution was the culmination of the democratic aspirations of the people, and its major pillars — universal adult suffrage, the parliamentary system, fundamental rights — are all expressions of those aspirations. But there were also moments where the framers lacked the courage of their convictions. If granting universal adult suffrage at one stroke was a leap of faith, then at other places, driven by concerns about maintaining national integrity and preventing disintegration in the teeth of the trauma of Partition, the framers pulled up short. They were committed to federalism — but not too much federalism, for fear of secession; they were committed to popular democracy, but also wanted to retain some manner of control, lest democracy unleash the kinds of passions that would trigger its own destruction. The office of the Governor represented one such “choke point” in the Constitution (ordinances and emergencies are others), where federalism and the popular will were to be kept in check from above, if the occasion ever arose.

The occasion arose very soon. Soon after the first general elections, the State of Madras went to the polls in 1952. In a 375-member Assembly, the United Democratic Front (UDF), a coalition of parties, held 166 seats. The Congress finished with 152.

The Governor, Sri Prakasa, ignored the UDF’s claim to form the government, and instead invited the Congress, which did form the government with Rajaji as Chief Minister, after engineering several splits and defections (including through offers of cabinet posts). The civil rights lawyer, K.G. Kannabiran, writes that “on this act of impropriety Rajaji became the chief minister of the first Congress government after Independence.” Rohini Kumar Chaudhari’s fears had come true, and the justification was eerily similar: the UDF’s communist orientation rendered it ineligible to govern (no matter how the people voted), and it was incumbent upon the government to ensure an orderly government. And so it has been ever thus.

The purpose of this history is not to draw an equivalence between 1952 and 2018, or to suggest that the sins of the past justify sinning in the present. It is to demonstrate that the post of the Governor, by constitutional design, acts as a check upon both federalism and popular democracy. And even though the framers insisted that it was only a “constitutional post”, Karnataka has just been the most recent example demonstrating that the Governor has enough discretion to skew the political process in the direction that the Central government desires.

Specify the rules

Perhaps we are not in a position to judge the wisdom of the framers’ choice in 1950, when they were driven by imperatives we can no longer assess. But we are certainly in a position to judge the wisdom of continuing with this in 2018: the idea of the Governor standing as a bulwark against secessionism, or providing legislative expertise to States otherwise starved of it, are no longer valid justifications. On the other hand, the Governor’s interference with the democratic process is both real and continuing. As history shows, the solution is not to tinker around the edges, or hope that the courts will come to our rescue. It is to ask whether the constitutional “choke point” of the Governor serves any valid purpose in 2018 — and if not, whether it should continue to exist. Would it not be better, for example, to clearly specify the rules governing government-formation in the Constitution itself, and reduce swearing-in to a purely ceremonial action, to be performed by the Chief Justice of the relevant High Court? This — or any other potential solution that does away with the “choke point” — is what must now be debated.

Gautam Bhatia is a Delhi-based lawyer