Current trend of appointing politically partisan leaders as governors will continue to decrease confidence in public offices, and the rule of law cannot survive without such confidence.
Most people expected the Karnataka election to involve some kind of excitement. Few, however, predicted that it might call for constitutional reflection.
The drama of the election has been widely covered – the suggestion that legislators were being bought and sold, the aberrant decisions by the Governor, and a late-night hearing at the Supreme Court. Political analysts have been equally active, exploring the implications that the election might carry for 2019. But, amid such thinking, questions have also been asked about the role of the Governor under the Indian Constitution.
Such questions have arisen because Governor Vajubhai Vala, appointed by the Modi government in 2014, invited the BJP to form the government and offered an unconventionally long period of 15 days to demonstrate a majority. The Supreme Court eventually decreased this period and called for a near-immediate vote. This prevented the chance for horse-trading, and the BJP had no majority to prove. The Governor’s actions – especially his decision to give the BJP 15 days – has rightly invited criticism. The decision is hard to square with the extant facts, with conventions that exist, and with the Governor’s oath of office.
No servant of government
It is commonplace to mention that India is a parliamentary democracy and has a cabinet form of government. The President and Governor head the central and state executives and follow the advice of the council of ministers at the central and state levels, respectively. While this is the general picture, it is, however, not the complete one.
The Governor’s powers are several, ranging from the promulgation of ordinances to the summoning and dissolution of the legislature. His place under the Constitution, and the fact that he has an independent and special responsibility in specific instances, was underlined by the Supreme Court in an important 1979 judgment, Hargovind Pant.
Here, the question was whether a former member of the Rajasthan Public Service Commission could be appointed as a Governor. The reason for the query was Article 319(d) of the Constitution that bars members of state public service commissions from “employment either under the Governor of India or under the Government of a State” after they cease to hold office. The reason for Article 319(d) and related provisions, Justice Bhagwati observed, was to ensure that members of union or state public service commissions can perform their task independently and be uninfluenced by the promise of future employment. Their autonomy was crucial to the preservation of the civil services.
The office of a Governor was clearly not one under the government of a state, but was it under the central government? Hargovind Pant noted that while the Governor was appointed by the President, effectively meaning that the appointment was made by the government of India, this was simply the process for appointment. The process did not “make the Governor an employee or servant of the Government of India”. Similarly, the fact that the Governor serves during the pleasure of the President does not mean that he is under the President’s authority. Rather, it only lays down the term of his office. Furthermore, nothing is established by the fact that the Governor is paid through state funds: the same, the Court pointed out, is true of judges. “His office”, Justice Bhagwati stated, “is not subordinate or subservient to the Government of India”.
A neutral umpire
The Supreme Court’s stance was reaffirmed in 2010 in B. P. Singhal’s case, which dealt with when a Governor might be removed by the President. Here, the court noted that while reasons need not be offered for removal, a Governor “cannot be removed on the ground that he is out of sync with the policies and ideologies of the Union Government or the party in power at the Centre”.
As the Governor was not meant to be a partisan political figure, he could not be removed simply because he had different political views. Those views were immaterial to his tasks. B. P. Singhal further explicated the unique “dual role” that the Governor performed: he was the executive head of the state government as well as a “vital link” between the union and state government. He was neither an employee of any government nor an agent of any party, and on occasions – the court noted – “he may have to be an impartial or neutral umpire where the views of the Union Government and the State Governments are in conflict”.
Worrying trend in Mizoram, Odisha
The Karnataka election offered one of those instances for the Governor to be an “impartial or neutral umpire”. How matters proceeded hardly needs rehearsing, but we might ask what can be done.
The argument that the Governor’s position may well be jettisoned because it is a colonial inheritance proves too much – it is true even of parliamentary government. The argument that the Supreme Court could play a more active role is true to the limited extent that clarity could be established on the single largest party/post-poll alliance question. Any further attempt to establish clear rules on judicial review, however, misses the key point that the Governor, like every other public office in particular instances, must be vested with some degree of discretion. His post exists precisely for cases where he is not bound by anyone.
The solution to situations like Karnataka can only lie in politics. They depend on a broader commitment to create a political culture where blatantly partisan figures are not appointed as Governors, and blatantly partisan actions are seen as entirely out of order. With the decision to appoint BJP leaders Kummanam Rajasekharan and Ganeshi Lal as governors of Mizoram and Odisha, it seems that we have our work cut out. Present trends will only continue to decrease confidence in public offices, and the rule of law, as Justice Bhagwati noted in Hargovind Pant, cannot survive without such confidence.
Madhav Khosla, co-editor of the Oxford Handbook of the Indian Constitution, is a junior fellow at the Harvard Society of Fellows. His Twitter handle is @M_Khosla