Governors are an undemocratic institution – but the good news is they are slowly losing power

Welcome to The India Fix by Shoaib Daniyal, a newsletter on Indian politics. This week we are on one of my obsessions: federalism.

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On May 11, the Supreme Court delivered a judgement that blamed, among others, the governor of Maharashtra for the fall of the Uddhav Thackeray government in 2022. There was some irony to this finger-pointing given that one of the actors responsible for the government’s fall was the Supreme Court itself, which inexplicably prevented the application of the Anti-Defection Law.

However, if we ignore this uncomfortable fact for a moment and look at the judgement in isolation, it makes some sharp points. At the time, the Maharashtra governor had called upon the chief minister to prove his majority in the house, responding to internal disturbances within the Shiv Sena, the party to which Thackeray belonged.

The judgement, however, emphasised that at no point did any Sena MLAs indicate they wanted to withdraw support from the government. In fact, “the Governor did not have any objective material before him to indicate that the incumbent government had lost the confidence of the House”. As a result, the governor’s decision to call for a floor test was illegal, the court held, even as it argued that it could do little to remedy the wrong the governor had caused. The new government that came into power in Maharashtra as a result of these political machinations still remains.

In principle

On the same day, the Supreme Court delivered another important judgement ruling that the Delhi government has control over “services” changing the unusual circumstance of the Delhi bureaucracy reporting not to the elected state government but to a nominated Lieutenant Governor. “The principles of democracy and federalism are essential features of our Constitution and form a part of the basic structure,” the ruling read.

However, underlining just how difficult it is to actually implement these principles, just days later, the Modi government brusquely overruled the court by passing an ordinance. It remains to be seen if the court accepts this summary reversal of its judgement or strikes down the new law.

So while in both cases, the Supreme Court judgement did not lead to much change on the ground, this is yet another reminder of just how odd the office of governor is when it comes to a federal union such as India.

India subscribes to the idea of Parliamentary democracy in which a cabinet of ministers holds executive power on the basis of the fact that it enjoys the confidence of the legislature, which is elected directly by the people. However, this principle has been almost continuously undermined by the office of governor ever since the Constitution came into force in 1950.

Flawed from the start

Just in 1952, two years into the life of the new Constitution, the governor of Madras called in his fellow Congressman, C Rajagopalachari, to form the government in spite of the fact that a left-wing United Front coalition had more seats. In 1954 and 1959, the governors of Punjab and Kerala summarily dismissed their state governments as a way to please the Congress, then ruling in Delhi.

Indira Gandhi, as prime minister, followed in her father’s footsteps, frequently appointing governors who served their states less and Delhi more. In the 1960s, the West Bengal governor simply dismissed an Opposition government when the Congress couldn’t actually win an election.

This practice has continued well beyond even the decline of the Congress. Under Modi, governors have batted hard for the Bharatiya Janata Party. As long as the office of governor exists, prime ministers will use it in undemocratic ways.

As is now clear in hindsight, India’s constituent assembly erred in fashioning an institution of governor with significant powers who was nominated by the Union government. Such an institution already existed in the last decade of the British Raj as a new (and final) colonial constitution came into place called the Government of India Act, 1935.

This brought democratic government into the provinces but, as an attempt to maintain British power, also created the office of a governor that could check this government. The governor would be appointed by the Centre that, at the time, was completely controlled by the British.

As the Constituent Assembly started deliberations, it was aware of how undemocratic the post of governor was. In fact, almost all Indian parties across provinces had complained of interference by the governor in democratic governance. In view of this, an assembly committee before Independence had actually proposed that the governor be chosen by the states itself. However, as the Constitution shaped up, it retained almost all the centralising powers of the Government of India Act, 1935, including the office of the governor.

Incremental change

In an ideal scenario, India would do away with the office altogether or, at least, snap its link with Delhi. However, such drastic changes to the Constitution are rarely feasible. Instead, what is more probable is that ground politics would work slowly to hollow out the office. In fact, some of that has already happened. Summary dismissal of state governments is now not possible the way it was till the 1980s given the dawn of the age of coalition politics, with state parties having immense power. This political change was given a judicial stamp of approval by the a 1994 Supreme Court judgement that placed curbs on how much power a governor had to dismiss a government.

However, a return to the era of strong single-party rule in Delhi has led to some backtracking and governors are again – as the Maharashtra example shows – able to effectively dismiss Opposition governments and put in place a government consisting of the party ruling at the Centre.

However, India’s evolving political culture of federalism makes this a poor move in view of long-term power. In Karnataka, where the BJP has often used Central power to form state government, the BJP has clearly lost popularity. In states like Maharashtra, West Bengal, Telangana and Kerala, the BJP’s use of aggressive governors is largely backfiring, as it gives an easy handle for the Opposition to attack the BJP on state identity.

If this trend continues, Indian voters should increasingly look to punish parties that prompt governors to overrule their democratic mandate.