Today's Editorial

27 May 2018

Against governors

Source: By Mukul Kesavan: The Telegraph

If the office of the state governor didn't exist, no republican democracy would invent it. A state's governor is a provincial pro- consul. In British India, its institutional necessity was obvious: the governor represented viceregal authority in the same way as the viceroy represented the British monarch's imperial prerogative.

In colonial India not only was the governor's office unaccountable to the people of that province or presidency, it was designed to be unaccountable. The clarity of this authoritarian arrangement was muddled by the introduction of the electoral principle at the level of provincial government in the early decades of the twentieth century. Where previously the governor ruled through colonial civil servants who administered the state, the Montagu- Chelmsford reforms introduced a hybrid ruling arrangement sometimes described as 'dyarchy' where some administrative departments were allotted to elected legislators while the more important ones remained in the charge of 'civilians' — colonial bureaucrats.

It was the Government of India Act of 1935 that created this odd cohabitation where a nominated governor, generally an ICS veteran, had to retreat to a titular supremacy, ceding administrative authority to the elected head of government, the Premier, as the chief minister of a province was then described.

The tension between the two offices was palpable, with the Congress in 1937 holding out for, and receiving, assurances from the viceroy, that provincial governors would have no jurisdiction over the political administration of the province. When the Congress governments resigned from provincial office in 1939 in protest against Britain declaring war on behalf of India, the colonial government was delighted because these provinces reverted to governor's rule, the colonial equivalent of president's rule. It was much easier to run the war effort without pesky interference from the representatives of British India's subject citizens.

These colonial pro- consuls survived Independence because the founding fathers were anxious about political unity and, therefore, willing to weaken the principle of federal autonomy to strengthen Central authority. They endorsed the retention of the office of governor. For them, a governor was to the province what the president was to the nation: the guardian of republican authority and its continuity by virtue of being removed from the political fray.

Nearly seven decades of lived democracy have confirmed what the framers of the Constitution could not have then known: far from safeguarding constitutional propriety, governors have acted as the Central government's partisan agents. They have dismissed inconvenient governments, subverted democratic verdicts, thwarted the functioning of elected state governments hostile to the ruling party at the Centre and behaved more like colonial Residents in a princely state than the discreet republican referees that they were meant to be.

There have been governors of great distinction just as there have been governors who have been corrupt, overbearing time- servers and so it is sometimes argued that the frailties of individual men and women should not be allowed to discredit the office. This is a bad argument: it obscures the fact that it is the institutional design of the office that leads its incumbents astray, not their character or the lack of it.

The governor's office is different from the president's in two crucial respects. First, the Constitution lays down a procedure for the president's election and defines the Electoral College. The electoral process gives the presidency political legitimacy. The governor, in contrast, is merely appointed by the president on the advice of the Central government. Secondly, unlike the president, a governor does not have a fixed term; he holds office at the pleasure of the ruling party in Delhi. Both the manner of the appointment and the uncertainty of tenure conspire to make the incumbent a creature of the Central government in politically charged circumstances rather than a disinterested umpire.

The governor is best seen as a residual political organ that survived the Indian State's evolution from colony to republic. The splendour of the palaces that governors inhabit gives their political bloodlines away. The anomalousness of the office in a federal or even quasi- federal republic isn't hard to illustrate. India is far from being the only parliamentary democracy with provincial legislatures; Australia and Germany are two countries that offer useful comparative context.

The Australian instance underlines the colonial provenance of governorship. Australia's past as a British settler colony left it with autonomous provinces where elected premiers were monitored by governors appointed by the British monarch on the advice of Britain's foreign secretary. Australian governors sometimes sparked political controversies similar to the ones provoked by their Indian counterparts by using their reserve powers to dismiss state governments or by refusing to notify their recommendations.

These controversies were minimized once elected premiers were given the right to propose the governors they wanted for their provinces. The Australian example illustrates the extent to which the office of governor is an imperial hold- over that survives because the concerted constitutional energy needed to abolish it is hard to muster. It is the German example that demonstrates the redundancy of the position. Like India, Germany is a parliamentary democracy that replicates parliamentary legislatures in its states or Länder . At the national level, as in India, the ceremonial head of state is the president while the head of government is the chancellor. But German Länder or states only have heads of governments, chief minister equivalents known as minister- presidents.

Germany's political structure demonstrates that there is no constitutional need to mirror the office of the head of state at the provincial level. It is only in countries with histories of authoritarian colonial rule that this position even exists. It could be argued that since India is a subcontinental republic anxious about its political integrity, the Government of India needs the option of intervening in the affairs of a state in times of crisis or emergency and the governor's main function is to act as its proxy at these times. The fact is that the Central government is empowered to dismiss a state government under certain circumstances with or without the recommendation of the governor. There is no reason why the responsibility for the administration of a province during the temporary expedient of president's rule should require a governor.

The responsibility could just as well go by default to the chief secretary, the province's senior- most civil servants. If the brief during president's rule is to keep the machinery of government running in a non- partisan way till such time as fresh elections throw up a new government, much better that the task is performed by a neutral career bureaucrat than a politically appointed carpetbagger, which is essentially what governors are. There is no reason why senior civil servants shouldn't rise to the occasion to keep the wheels of provincial government turning during these interregnums.

It is by now obvious that the function for which governors have become most notorious, the swearing in of a government when a state election hasn't thrown up an obvious political majority, is one for which they are uniquely ill- fitted. As political partisans who serve at the pleasure of the ruling party at the Centre, they are not credible arbiters. In the wake of the Karnataka governor's predictable attempt to load the dice in favour of the Bharatiya Janata Party after the recent, inconclusive election in that state and the Supreme Court's intervention that forced a swift floor test, editorialists have called upon the apex court to codify the processes to be followed by the governor in the event of a hung assembly.

A strict code that reduces gubernatorial discretion is an excellent idea; it would be an even better one if the task of implementing these guidelines was taken away from the governor and handed over to the Election Commission. The statutory body that conducts and supervises the largest and most challenging democratic processes in the world is self evidently the institution best equipped to steward those processes to their political conclusion.

Should the Supreme Court's writ in Karnataka- like situations be implemented by a neutral, statutory body that has the trust of India's electorate (despite eccentric accusations of EVM fraud) or should it be entrusted to politically beholden operatives waiting for covert instructions in echoing Raj Bhavans? To ask the question is to know the answer. If governors can't be legislated out of existence (as they should be) the next best move would be to shrink the office to fit the men that fill it.



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