Siddhant Pengoriya
INTRODUCTION
Even after the Shinde-BJP alliance completing 100 days in office, the cold political war in Maharashtra continues. Each day witnesses a new spell of allegations whether it be over the party name, the election symbol, or the Enforcement Directorate (ED) raids. This saga started in June 2022, when 39 Shiv Sena MLAs including minister Eknath Shinde went incommunicado. From that day, the story has only become more interesting with Shinde declaring his defection from the MVA followed by Uddhav Thackeray’s resignation and Shinde’s installation as Maharashtra’s new Chief Minister. This dramatic ‘aayaraam – gayaraam’ episode which witnessed the rebellion of 39 MLAs is claimed to be engineered by Shinde along with the BJP. One abettor to this conspiracy whose crucial role has been overlooked is the Governor, Bhagat Singh Koshyari. A detailed study of the timeline of the events in this piece will uncover the constitutional fraud and the bigger political ploy hatched by the troika.
In this piece, I analyze the post of the Governor in light of the Maharashtra Saga – scrutinizing three specific instances displaying the Maharashtra Governor’s ‘categorical abdication of his responsibility’, from a constitutional lens. I argue that Governor’s constitutional post, idealized to be an ‘independent’ office, has been severely compromised because of massive politicization. Lastly, this piece briefly analyses gubernatorial jurisprudence and makes certain suggestions to prevent the jeopardization of India’s federal framework.
CONSTITUTION IN PERILS – DISSECTING THREE DECISIONS OF THE MAHARASHTRA GOVERNOR
After the 2019 post-election drama, once again, the light is on the Governor Bhagat Singh Koshyari. This section brings out the three most controversial maneuverers of Mr. Governor’s tenure and unravels the constitutional follies in each of them.
I. Arbitrariness in Scheduling the Election of Speaker
Post the resignation of Nana Patole in February 2021, the speaker’s seat remained vacant for 17 months. Even though Thackeray was insistent on conducting the elections, Mr. Governor kept stalling his request. His rationale behind the delay was the dispute which arose over an amendment to Rule 6 of the Maharashtra Legislative Assembly Rules which
(i) changed the election method from ‘voice-vote’ to ‘secret-ballot’ to prevent cross-voting and,
(ii) clarified that the elections would be scheduled on the recommendation of the CM.
This amendment was challenged by 2 BJP MLAs in the Bombay HC giving an excuse to the Governor to exercise a ‘pocket-veto’ over the CM’s advice and stall elections indefinitely. Despite the court rebuking the MLAs for their “politically induced petitions” and dismissing the PILs with heavy penalties, the Governor refused to schedule the elections.
However, the tables turned upside down when within 3 days of Shinde’s swearing-in, not only did the Governor withdraw his protest and approve the amendments but also scheduled the elections and instated BJP’s Rahul Narwekar to the seat. These were a set of politically biased and well-calculated turn of events. The Governor, unfortunately, seems to have been puppeteering the BJP’s stance.
I shall challenge this action on two grounds –
(1) As per Article 93, the power to elect the speaker is a prerogative of the House, and not of the Governor. Fixing the date of elections is merely an administrative role assigned to the governor, which must be fulfilled at the aid and advice of the Concil of Ministers (CoM) as per Article 163(1). No provision of the Constitution including the discretionary powers under Article 163 (as I shall elaborate later) provides the power to stall the elections without any legitimate purpose for such an unreasonable duration.
(2) The differential treatment of Thackeray’s and Shinde’s request to hold elections even when in both situations, all the underlying factors were the same, amounts to an unreasonable classification. The sudden shift in the stance of the Governor, as argued above, was motivated purely by politics rather than by any determining principle or rational justification. Hence, these were ‘arbitrary’ and in-toto, violative of Article 14.
II. Abetting the Unlawful Functioning of the Government
Article 164 (1A) inserted by the 91st Constitutional Amendment prescribes ‘12’ as the minimum strength of the CoM. Blatantly disregarding the Constitution, the Maharashtra government was being run by the ‘two-men jumbo cabinet’ comprising of the CM and his deputy, Devendra Fadnavis, for 41 days. What makes this even more problematic is the intensity of decisions taken during this time. Investments as huge as 890 crores were made into the Brahmagavhan lift irrigation scheme. Additionally, more than 400 odd decisions taken by the erstwhile MVA government were reversed in a matter of minutes. The idea of a cabinet as prescribed by the Constituent Assembly (CA) was to prevent this very problem of hasty decision-making. The CoM is crucial as it preserves and empowers the democratic ideals of consultation and deliberation which, at least theoretically, prevents arbitrariness in legislative actions.
As Ambedkar posited, the duties bestowed upon the Governor are more important than his functions or powers.[i] One of such duties is to prevent the CoM from engaging in any unlawful activities in order to maintain the constitutional sanity of the state’s functioning. Despite numerous complaints by opposition ministers against this aberration, the Governor refused to take any action. The failure of the governor to intervene in such an illegal functioning of the government speaks a lot about his biases.
3. Undue Delay in Nominating MLCs
In October 2021, CM Thackeray recommended 12 names to fill the vacant seat of MLCs as a unanimous suggestion of the entire cabinet. For 8 months, the Governor simply sat over the recommendations without taking a single step toward its implementation. This sort of pocket-veto is even worse as here, unlike the speaker’s election case, no excuse whatsoever was given to justify the delay. Once again, this accounts for the dereliction of the Governor’s constitutional duty encompassed in clauses (3)(e) and (5) of Article 171 read with Section 10 of the RoPA, 1950.[ii]
As is conventionally accepted in practice and was explicit in the Sarkaria Commission’s Report,[iii] Article 171 doesn’t grant any discretion to the Governor to make nominations to the Legislative Council. Rather, as AG Noorani argues, he is bound by the advice of the CoM and any delay in accepting such nominations is ‘indefensible’.[iv] This apparent unconstitutionality of the Governor’s act was challenged in the Bombay HC in Ratan Soli v. Maharashtra. Although the court progressed well in reasoning – reading the powers of the Governor in a limited fashion and acknowledging the threatening politicization of the post, the final verdict is disappointing. While it was rightly held that the recommendations of the CoM shall be acted upon in ‘reasonable time’ and that 8 months was ‘beyond reasonable time’ in normal circumstances, it refused to apply this holding to the given facts. In this regard, it gives deference to the Governor saying – “…this Court ought to assume that there was/were genuine reason(s) for the Governor not to convey his decision earlier, whatever be the nature thereof.”[v] (emphasis supplied) The source or rationale behind this ‘assumption’ is unfounded. The court expressed its helplessness in directing the Governor as its hands were tied by Article 361.
I submit that Ratan Soli was a missed opportunity. The court should have used the precedent laid down in Rameshwar Prasad v. Union of India that Article 361 does not grant immunity to mala fide acts of the Governor which lie outside the scope of his power. In response to the challenge that the Governor can’t be made answerable to the court, invoking Seervai,[vi] I would have contended that the court should decide on the matter by examining the objective facts laid before it as the delay of 8 months was manifestly unjustified and clearly, politically motivated. As Rameshwar Prasad also clarified, it is the prerogative of the Union of India to defend the Governor in such like situations.
III. IMPARTIALITY OF GOVERNOR IN JEOPARDY – SAFEGUARDING FEDARALISM
Taking a step back, we can derive three broad inferences from the Maharashtra logjam – firstly, the Governor has been politically motivated to misuse his powers; secondly, he has abdicated his constitutional responsibility and lastly, the judiciary has proven to be insufficient to keep an adequate check on his powers.
The Governor occupies a crucial spot in India’s federal framework. At the time of independence, when the national unity amongst states was fragile and separatist tendencies were high due to the partition, a balance was required between decentralization (required for administrative efficiency and accommodating diversity) and centralization (for national unity). This apprehension was diluted with the introduction of the post of the Governor whose function was envisaged to uphold the constitutional machinery in the state and intervene (although, minimally) in the state functioning, whenever required.
After 75 years of independence, circumstances have changed – first, India is no more a fragile compilation of states and second, the Governor (as has been reasoned in relation to the Maharashtra turmoil) has ceased to be an independent link between the states, center and the Constitution. In this light, the powers of the Governor need a relook.
The Supreme Court has very clearly established in Hargovind Pant that the Governor is an impartial post and not an ‘employee’ of the Center. Despite this, the independence of the Governor has been jeopardized primarily because of how these posts have historically been allotted – as a reward mechanism to party-loyalists. A case in point would be none other than Mr. Koshyari himself. Koshyari began his political career as a staunch Hindutva stalwart – a member of the RSS which helped him quickly climb the ranks of the BJP; first as the CM of Uttarakhand and then as the Vice-President of the national party unit. Critiques, quite rightly, have argued that the Maharashtra governorship came as a ‘compensatory gift’ for Koshyari who had been deprived of the CM post in Uttarakhand when he was most expecting it in 2011. Whether it be due to his political past, or frequent meetings with the Home Minister before crucial state decisions or the act of ‘offering sweets’ to the CM Shinde on his appointment, Mr. Koshyari’s tenure has grievously maligned the office of the Governor.
IV. SUGGESTIONS
In an attempt to secure the constitutional integrity of the Governor, in light of the recent trends, I submit that the changes required are twofold –
Firstly, the appointment procedure for the Governor should be made more just and transparent. For this, the Sarkaria commission[vii] suggested that potential candidates for this post should not have highly active political pasts. To find such a person who is not politically active, but at the same is well versed with the political system of the nation capable enough to handle an entire state, is difficult. To solve this dilemma, I suggest that a pre-governorship cooling-off period should be provided. Even if an individual was actively engaged in politics, they shall be allowed to occupy this post but only after completing a prescribed break period of perhaps 2-5 years.
Additionally, a post-governorship cooling-off period shall be provided to prevent the Governor from accepting other constitutional posts or office-for-profits. Without such a provision, it may become difficult for him to function impartially if they have an option to restart their political career after ending their term.[viii] The integrity of the office indeed comes into question when, let’s say, a sitting governor suddenly stands for the Vice-Presidential elections from a particular party’s ticket.
Secondly, there is a need to revise the discretionary powers available to the Governor by upholding the recent interpretations of Article 163 by the judiciary.
Until 1975, Article 163 was given an expansive reading under the impression that “in the absence of an explicit provision, it shall be presumed that the ministerial advice is not binding on the governor”.[ix]Although several SC judgments, like Biran Bose and Satwant Singh, upheld the Governor’s wide discretionary powers, none of them categorically defined it. Defining the powers in clear and narrow terms becomes imperative to control the Governor’s free hand and prevent them from succumbing to the influences or temptations of the union government.
It was in the year 1975, when Krishna Iyer J.’s provocative judgment in Shamsher Singh reversed the then-established position. He clarified that the discretionary powers are limited to only those “tiny strips” of the Constitution where they are explicitly mentioned such as the 6th Schedule.[x] Further, even for the exercise of these powers, the Union Ministry is accountable to the Parliament. More recently, in Nabam Rebia, the SC clarified that any discretional act beyond the express jurisdiction of the Governor shall be subject to judicial review. In my opinion, the current position is sounder and should be strictly adhered to.
V. CONCLUSION
Through this piece, I have attempted to show the threat that the unchecked powers of Governors pose to our federal structure. I argue that the appointment, powers and functioning of the Governor be revamped to preserve the independence and integrity of the post. While Maharashtra is just one instance of a constitutional fraud at the hands of the governor, the problem is all-pervasive. Whether it is West Bengal, Rajasthan, Karnataka or Madhya Pradesh, Governors are operating dangerously beyond their permitted domain. The need of the hour is a combined response of the legislature and judiciary to make policy changes for curtailing the misuse of the Governor’s powers and ensuring that under no circumstances does it breach the constitutional frontier.
[i] Constitutional Governance and The Management of Centre-State Relations (Inter-State Council Secretariat, 2010) vol 2, ch 5 (Punchhi Commission) para 5.1.12.
[ii] Representation of Peoples Act 1950.
[iii] Report of the Sarkaria Commission (Inter-State Council Secretariat, 1988) para 4.11.31.
[iv] A G Noorani, Constitutional Questions in India: The President, Parliament and The States
(OUP 2000) 39.
[v] ibid at [85].
[vi] H. M. Seervai, Constitutional Law of India (vol 2, 4th edn, Universal Book Traders 2020).
[vii] Sarkaria Commission para 4.4.03
[viii] Sarkaria Commission para 4.9.01
[ix] JR Siwach, The Office of the Governor: A Critical Analysis (Sterling Publishers 1977).
[x]VR Krishna Iyer, Constitutional Miscellany (vol 2, Eastern Book Company 2007) 38.
The author is a second-year student pursuing B.A. LL.B from National Law School of India University, Bangalore
Image Credits: The Quint
Constitutional Law Society 
I’d like to forth some thoughts in this regard. Firstly, the Governor has a duty to preserve, protect and defend the Constitution of India, for which he has discretion in most matters. Going by the rules and articles that you’ve cited, the Governor might, schedule the election of a Speaker on a date of his choosing. He might be advised in aided in making such decision, but is not bound by such advice.
Under I(2) you mentioned that underlying factors were identical when the Maha Vikas Aghadi and the BJP-Shinde Camp made their respective requests to elect a speaker. The situation was anything but similar. During the Maha Vikas Aghadi’s tenure, there was a looming threat of the Government collapsing. Also during the Aghadi’s time in power, minister after minister was crumbling under illegal activities of the past which led them behind bars. Such a situation is akin to the ‘breakdown of constitutional machinery’ in a State and we know how that ends. To conclude my argument on this point, the Governor found stability in the successive BJP led government, more than was available toward the end of the Aghadi’s time in power. As a Constitutional head, the Governor is duty bound to support stable Governments.
To address the first paragraph of II, the Article and amendment referred to simply desribe a floor and ceiling for the Council of Ministers. Nowhere does this Article mention when such CoM must be selected. Now, in such a scenario, the Governor is obliged to heed the recommendation of the Chief Minister to appoint given persons as Ministers. This cannot be done at the sole discretion of the Governor so as to have a demarcation between the Legislature and the Executive. To counter your political opinion in this paragraph, a vast majority of those 400 odd decisions taken by Mr. Thackeray’s cabinet were taken so hours before his Government collapsed and because such collapse was imminent. Should one analyse those decisions, it will become apparent that most or all of them were to benefit individuals and/or Political parties which constituted the erstwhile Government. While hasty is a subjective term, 400 decisions being taken in a few hours might tip the scales in favor of being brash in comparison to a 41 day period to take a lesser number of decisions.
The second paragraph of II is more opinionated than factual. Ironically enough, the current opposition calling the Shinde led Government’s actions illegal is analogous to the pot calling the kettle black. I am in agreement with Dr. Ambedkar’s statement of Gubernatorial duties being paramount. As mentioned in my opening paragraph, the Governor possesses the duty of preserving, protecting and defending the Constitution of India. The former Government indulged themselves in innumerable illegal activities, effects of which might be observed all around. The Governor, if he desired, retained the authority to recall the Thackeray led Government. He did not, as such an action would go against the very spirit of democracy (something that was trampled over by a certain party in the aftermath of Maharastra’s 2019 Legislative Assembly election). Based on law and facts, there is no illegal deed in what this article cites as going against the letter and spirit of law.
Coming to 3 of this article, neither of the provisions or articles mentioned, stipulate a time limit within which the Governor must undertake such duty. While there might be customs surrounding such duties, the Governor’s primary duty is to, once again, ‘preserve, protect and defend’ the Constitution of India. Given the dysfunctional and kleptocratic of the Aghadi Government, it would not have been unreasonable to assume that such nominations had the potential to feed right into the Aghadi’s questionable actions. The instability of the previous Government would also be good reason to be wary in anticipation of steadiness. Invoking Rameshwar Prasad vs. Union of India might not be appropriate since none of the Governor’s acts can be proved as mala fide. Let us draw a parallel and take a walk down memory lane back to 1975. The then President of India’s act could be classified as mala fide since it lacked basis and served the ruling Party’s political interests. Had Governor Koshyari truly been biased, the Aghadi Government would have been recalled several months earlier with fresh elections succeeding. The Bhartiya Janata Party had the peoples’ mandate and could have swept such election, however, no such thing occurred.
Having countered and critiqued all observations and points put forward by you, it becomes clear that Governor Koshyari has upheld his office by preserving, protecting and defending the Constitution of India, and with that, its people. Power is both intoxicating and addictive, which, when threatened or lost makes people delusional. This seems to be the case with Maharashtra’s former cobbled-together Government which deceived its voters to gain power in the first place.
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