Kerala: Danger of being a ‘glorified cipher’

The disagreements between the Governor and the Kerala government over the past two and a half years have not helped improve Centre-State relations in any meaningful manner.

Governor Arif MohammEd Khan (right) with Chief Minister Pinarayi Vijayan, a 2020 picture. He has not lost a single opportunity to question the State government on contentious political issues, disregarding the constitutional propriety of his position.

K erala has the dubious distinction of being one of the first States to be mentioned in connection with Centre-State relations and the constitutional role of Governors. This is because of Governor Burgula Ramakrishna Rao’s decision in 1959 to dismiss the first democratically elected State government invoking Article 356 of the Constitution. Nearly 63 years later, debates continue on the constitutional propriety of Governor Rao’s recommendation to the Union government to dismiss an elected State government. Opinions remain divided, but there is unanimity that he set the precedent for making Article 356 one of the most abused provisions of the Constitution.

Gubernatorial avatars across the country seem to relish the legacy left by B.R. Rao despite well-known legal luminaries speaking about the limits to the functional autonomy of Governors. Arif Mohammed Khan, the current Kerala Governor, is a prime example of this. He seems to believe in the dictum that a Governor is duty-bound to maintain a ‘discipline and punish’ approach vis-a-vis the State government.

After taking charge as Governor in September 2019, Arif Khan has not lost a single opportunity to question the State government on contentious political issues, disregarding the constitutional propriety of his position as head of the State. The first tiff with the State government took place when he vociferously defended the Citizenship Amendment Act (CAA) passed by the Union government in December 2019. The State Assembly passed a resolution demanding that the Act be scrapped. The Governor took umbrage at the resolution and said it had no “legal or constitutional validity”.

Before that he created a stir at the inaugural session of the Indian History Congress on the Kannur University campus when he chose to put aside the written text of his speech to harangue some speakers who had expressed their displeasure with the CAA and the general political situation in the country. A section of the participants registered their protest, and the police forcibly tried to remove them, prompting the well-known historian Prof. Irfan Habib to call for the removal of the police from the auditorium. The Governor, however, charged Prof. Habib with trying to ‘heckle’ him and ‘disrupt his speech’. Prof. Habib said he wanted to tell the Kannur University officials to ask the police to leave the auditorium as he was incensed that they were given a free entry to the inaugural venue, which was unheard of in the history of Indian History Congresses.

Special session of the Assembly

Another major episode in the tussle between the Governor and the State government was with regard to the nationwide farmers’ agitation against the three farm laws passed by the Union government. The State Cabinet wanted to convene a special one-day session of the Assembly to discuss the laws on December 23, 2020. The Assembly session was originally scheduled for January 8, 2021, according to the permission sought by the government on December 17, 2020. The Governor questioned the need for convening the Assembly at such a short notice.

It is true that the State government handled the issue in a clumsy manner which gave the Governor an opportunity to score political points. The government seeking permission for a special one-day session to be convened early invited the Governor’s wrath.

Arif Khan conceded that the “Governor is bound by the decision of the Cabinet” on summoning the Assembly under rule 3 (2) of the Rules of Procedure and Conduct of Business in the Kerala Legislative Assembly. At the same, he stated: “It became clear that this special session was to discuss a problem for which you have no jurisdiction to offer any solution.” He also stated that the government had not provided any answer to the specific questions raised by him on the need for convening an emergency session of the Assembly.

Chief Minister Pinarayi Vijayan termed the Governor’s refusal to convene the special session as anti-constitutional and said he had no discretionary power to refuse to convene or adjourn an Assembly session. The stand-off was resolved with the Governor agreeing to convene a special session on December 31 in response to the State government’s fresh request.

Appointment of Vice Chancellors

The Governor and the State government locked horns over policy matters again soon after Pinarayi Vijayan assumed office for a second term in May 2021. The appointment of Vice Chancellors to the State universities was the point of contention this time. The simmering discontent came out in the open with Arif Khan writing to the State government that he was not willing to continue as Chancellor of universities in the State without any real power. “I am not interested in being the symbolic head,” he said and expressed his willingness to legally transfer all powers of the Chancellor to the Pro-Chancellor, who is also the State’s Higher Education Minister. He stated that he did not want to be a party to irregular appointments for the sake of avoiding conflicts with the government. The issued hogged headlines for a few weeks before the Chief Minister intervened to resolved it.

In February this year, the Governor literally held the State government to ransom by refusing assent to the customary Governor’s speech until the last moment. He refused to sign the speech demanding action against K.R. Jyothilal, Principal Secretary, General Administration Department, for the remarks he had made in connection with the appointment of a personal staff member of the Governor. The government had no option but to concede to the demand by replacing Jyothilal with another official.

Personal staff of Ministers

As the dust settled on this matter, Arif Khan raised the issue of Cabinet Ministers keeping a large number of personal staff members who became eligible for pension after serving for less than three years. “In Kerala, they [personal staff] are entitled to pension benefits after only two years in service. One set of people is made to retire after two years and a new set of people is hired. They are all party people and financed by the State exchequer,” he said. The Governor alleged that the practice provided an opportunity for political parties to keep their cadres happy at the cost of taxpayers’ money.

Sarkaria Commission recommendations

The conflict between the Governor and the State government in the past two and a half years has not enriched Union-State relations in any meaningful manner. The Governor’s actions were also against the spirit of the Sarkaria Commission recommendations on Centre-State relations. The Commission has defined the position of the Governor in the constitutional scheme without much scope for ambiguity. Chapter IV of the report titled ‘Role of the Governor’ says: “...Article 163 does not give the Governor a general discretionary power to act against or without the advice of his Council of Ministers. The area for the exercise of his discretion is limited. Even in this limited area, his choice of action should not be arbitrary or fanciful. It must be a choice dictated by reason, actuated by good faith and tempered by caution.”

Tracing the genealogy of the confrontations between Governors and State governments, the Commission pointed out that the problems arose mainly after 1967 when the opposition parties came to power in many States replacing the Congress. The report says: “In a number of States, the party in power was different from that in the Union. The subsequent decades saw the fragmentation of political parties and emergence of new regional parties. Frequent, sometimes unpredictable, realignments of political parties and groups took place for the purpose of forming governments. These developments gave rise to chronic instability in several State governments. As a consequence, the Governors were called upon to exercise their discretionary powers more frequently. The manner in which they exercised these functions has had a direct impact on Union-State relations. Points of friction between the Union and the States began to multiply.”

A similar situation prevails in the country today, with a number of States having governments headed by parties other than the Bharatiya Janata Party. Governors appointed by the Union government in such States are attempting to prove their loyalty to their political masters in Delhi, causing irreparable damage to constitutional propriety and institutional decorum. The Sarkaria Commission’s recommendation not to appoint a politician of the ruling party at Centre in an opposition-ruled State deserves serious consideration at this juncture. “It is desirable that a politician from the ruling party at the Union is not appointed as Governor of a State which is being run by some other party or a combination of other parties,” the Commission report says.

K.P. Sethunath is the editor of The Malabar Journal.