A mere prima facie consideration of the alternatives is sufficient to reveal the sheer number of alterations that doing away with Governors would entail. There are many reasons to be cautious of such an exercise. Even though the Governor may not be integral to our form of government, removing the Governor from the system involves structurally altering, in a very fundamental way, the form of government in the States. The natural choice for the formal head of the State would then be the Chief Minister as it is in many ways ideal that the head of the State is democratically elected. However, in the current state of affairs, vesting more executive authority in the Chief Minister may not be entirely desirable. The problem of concentration of powers in the executive must be accounted for when we consider dividing the Governor’s functions amongst other constitutional functionaries. […] Some of the conventional safeguards are not as robust as they should be either. As it is, legislative control over the executive is notoriously weak in India. Collective responsibility under Articles 75 and 164 requires the Prime Minister and the Chief Minister respectively to have a majority in the popularly elected Legislature. However, the majority secured by the leader of a party in the elections is almost coercively safeguarded through the Tenth Schedule. This effectively ensures that it is the Executive that exerts firm control over the Legislature rather than the other way around.
[I]t may be possible to transfer ceremonial functions such as swearing in of Ministers and other functionaries to the Chief Justice of the relevant High Court with little difficulty. Similarly, managing the swearing in of a popular government by following (or if necessary, interpreting) the electoral mandate as per well-defined rules can also be transferred as discussed earlier in this section. However, assenting to Bills and reporting on breakdown of constitutional machinery pose tougher problems. The former cannot be handed to any agency that is external to the Legislature. Thus, if not the Governor, it has to be the Chief Minister or the cabinet that signs off on legislation. In a situation where the Executive already exerts an undue influence over the process of law-making, this is a course of action best avoided.
The issue is even more complex in the context of Article 356 [on President’s rule]. Removing the Governor out of the equation would necessarily entail rethinking the entire provision. As has been pointed out in the previous chapter, the provision works ordinarily on the basis of the report of the Governor which is then considered by the President. Here, the Chief Justice is perhaps not an apt substitute for the Governor as various complexities may arise. First, the effect this will have on judicial review of action under Article 356 has to be taken in to account. If indeed, action under Article 356 is be taken on a report of the Chief Justice, such a report will be an administrative act of the Chief Justice which is still reviewable by superior courts. However, there is a chance that courts may revert to some form of deferential review of the pre-Bommai era since the determination of failure of constitutional machinery is being made by the Chief Justice of the High Court. A more compelling reason is that an unelected judge would then have a central role to play in the unseating of a democratic government.
There is good reason to be wary of requiring such a function of a judge. Three kinds of problems may be outlined:
First, a professional judge is today strongly required to be a person who has developed her expertise on legal questions involving the interpretation and application of judgments and statutory provisions. As pointed out at the end of the previous chapter, the option of declaring that there has been a breakdown of constitutional machinery exists as a more extreme alternative to a number of other options that need to have been exhausted first, including the choice of requiring floor tests when a majority has been rendered debatable, the choice of an alternative political force that can be given the chance to form the government, and the choice of dissolving the Legislative Assembly on the advice of an outgoing Ministry so that fresh elections may take place. All of these choices require a close understanding of the dynamic contexts and circumstances of local politics as well as policy-making and perhaps even finance (in light of the costs of elections). Judges and lawyers with political acumen may exist, but Chief Justices in general can certainly not be expected to keep a close eye on such varied political nuances.
Second, if judges are thrust into the very heart of the political realm, there are significant issues that emerge regarding the principle of separation of powers. On occasion, a political decision taken by a judge, even on the basis of a careful and contextual examination of the political circumstances, could still be viewed as a politically motivated decision deserving a fitting response from politicians. Further, the opportunity to take direct and regular decisions in the political realm may additionally create incentives for apolitical judges to actively become political. They may thus enjoy benefits from political actors for the decisions they take, not just in relation with functions transferred over from the Governor but in ordinary litigations as well. The significant proportion of litigation directly involving the government is worth noting in this context. All of these incentives can irreversibly damage the functional integrity of the judicial role.
Third, it would be considerably difficult if not impossible for the Chief Justice to attempt to remain entirely apolitical and apply legal rules instead. As has been discussed in the previous chapter, not only are certain questions (such as the amount of time to be given before a floor-test) not amenable to strict rules of any sort, rules can be actively harmful to the political process in other situations. A strict and inflexible priority of claims regarding who should get the first chance to form the government in a hung assembly would indelibly affect both pre- and post-election coalition politics, always favouring a certain kind of coalition (with or without the single largest party) even before the negotiations for such coalitions can begin. And yet, there is no apparent principled reason as to why any one such kind of coalition should be more favoured. What is more, as discussed previously, there are many troubling aspects to the creation of rules in certain areas of governance in light of how it can promote a low trust society. The nurturing of trust in our constitutional polity requires that space be retained for trust to grow.
The broader point can be safely made that the idea of removing the Governor from the Constitution is not the simple solution that it appears to be at first blush. The scale of change that it really involves would also require a disproportionate amount of effort and risk, both politically and legally, when compared to the gains to be made from the exercise. All things considered, the more promising option appears to be reforming the office.
This excerpt from Heads Held High by Shankar Narayanan, Kevin James, and Lalit Panda has been published with permission from Navi Books.