Why does Tamil Nadu's unelected governor have the power to select a CM? Blame the British Raj

Continuing the rollercoaster that Tamil politics has been for the past six months, the Supreme Court delivered another twist on Tuesday, convicting VK Sasikala in a disproportionate assets case. Sasikala is now legally debarred from standing for elections for the next decade. As a result, her bid to become chief minister, backed by the support of more than 120 All India Anna Dravida Munnetra Kazhagam legislators, has failed.

One of the offices that has been constantly been in the spotlight during this episode is that of the governor. Even before Sasikala had been convicted, Tamil Nadu governor C Vidyasagar Rao had refused to administer her the oath of office, reportedly citing the imminent verdict. This was an unprecedented step given that there was little doubt that Sasikala had the support of enough legislators in the Tamil Nadu Assembly to form the government. In a parliamentary system of democracy, how could an unelected governor overrule an explicit order of support from an elected assembly?

That the court eventually held Sasikala guilty does not in any way deflect attention from the governor’s rather unusual role in this drama. If chief ministers were held to be unfit for office by unelected governors every time a legal case cropped up, many governments would have to vacate office – which is clearly not the case. Jayalalitha herself occupied the post of chief minister rather comfortably, while being an accused in this very same disproportionate assets case.

It does not help matters that the Bharatiya Janata Party is seen to not like Sasikala, preferring the more pliant O Panneerselvam instead. Given that the governor serves at the pleasure of the BJP-controlled Union government, accusations of a political element to the governor’s move are rife.

This is not the first time a state governor is being accused of playing a political role, proving yet more evidence to disprove the comforting but Pollyannaish assertion that the governor is a constitutional figurehead. In no other federal system of government does this uniquely Indian figure of the governor exist – an emissary from the federal government to keep a stern, paternal watch on the provincial administration. If this strikes one as slightly undemocratic, it is – the post traces its origins directly to the British Raj.

Government of India Act 1935

The current Indian concept of a state governor starts in the 1930s, as the British were looking to give Indians a greater role in governance. The Raj was never based on outright force and involved a great measure of cooperation from Indian elites. This Raj-Indian cooperation was taken to the next level with a new constitution for British India, called the Government of India Act 1935, which transferred provincial governments almost completely to Indian hands. As they left the provinces in Indian hands, the British performed a retreat to the centre, maintaining control of the government in New Delhi.

This retreat, though, was simply tactical. The British had little belief in democratic rule and planned to retain sufficient control over the provinces via New Delhi. How was this done? Enter the provincial governor.

Although provincial governments were to be elected democratically, at the top of this edifice would sit the governor nominated by the British Raj in New Delhi. This governor would have some unusual powers, most notably the ability to dismiss the provincial government under section 93 of the Government of India Act 1935, if he felt that there had been a constitutional breakdown.

The first election under the new act was held in 1937. The Congress did rather well, winning strong mandates in Central Provinces, United Provinces, Bihar, Orissa, Bombay and Madras. Almost immediately after the election, the Congress started to protest the role of a powerful governor provided under the new act. The Congress was indignant – and rightly so – that an unelected bureaucrat would have the power to dismiss their elected governments. In the end, the Congress, pushed on by its right wing, took office without any concession from the British, who refused to decrease the powers of the governor.

Post 1947

The real U-turn came, though, post 1947. While the Congress had disliked the Government of India Act 1935 from its position as a provincial power, it had a significant change of heart once it controlled the Centre. In fact, the Congress-controlled Constituent Assembly retained the core of the Government of India Act 1935 in the new republican Constitution. So much so that a Constituent Assembly member, Algu Rai Shastri had this to say to the House on August 20, 1949, three months before the Constitution was finalised:

“It is, therefore, not proper for us to follow the Government of India Act, 1935, or take it as a Bible. But we find today that it is now actually being followed as a Bible.”

The most egregious feature of the GoI 1935 act that was retained was the expanded role of the governor to oversee the states. While the entire Congress had gone hammer and tongs against this undemocratic post in British India, the party changed its mind after transfer of power. Section 93 – which allows the governor to dismiss state governments – today exists in the Indian constitution as section 356 and is called President’s Rule.

In an unusually bitter Constituent Assembly debate, Biswanath Das, the former prime minister of Orissa – as the post of chief minister was called pre-1947 – attacked the Congress high command for pushing the undemocratic post of nominated governor, as described in the Government of Indian Act 1935, into the new republican constitution. Calling this a form of “autocracy”, Das claimed that, “You cannot have democracy and autocracy functioning together. In the provinces you are going to have democracy from toe to neck and autocracy at the head”.

He went on to argue that the governor was being vested with too much power ­– which would naturally result in him interfering in the political process. Das claimed – with good reason – that the governor was always out to break his party while he held the post of the Orissa prime minister from 1937 to 1939.

“I claim, that the new set-up, unless this House proposes to change the new set-up, invest the Governors with definite and important powers. The powers are the ordinances, powers, of course, in a modified way which you have under the Government of India act of 1935, to return Bills for consideration of the Assembly and dismissal of Ministers and calling for elections. I claim that these are very important powers under the new set-up.” 

Therefore, a change in the Constitution that we have so far accepted means a change in all these items of responsibility that we have at present if these powers continue to operate, I claim that the Governor under the new set-up has an important constitutional role to function. I have my bitter experiences in this regard. I was the Prime Minister of a province and I know how the Governor of my province was out to break my party.

A political post

Das’ point is important because it knocks down the oft-repeated argument that a governor somehow departs from his role as a constitutional head when he becomes involved in politics. As was well known by 1947, the way the post of governor was fashioned, his primary role was political: to function as the representative of the Centre in the provinces.

This was not only limited to Orissa but was a recurring feature of all provincial governors under the Government of India Act 1935. In Bengal, the subcontinent’s only ministry with significant Hindu and Muslim support, the government was sabotaged by the British governor.

Prime Minister Fazlul Haq, hailing from the left wing Krishak Praja Party, was supported by both the Hindu Mahasabha and the Congress. Haq was tricked into resigning by the Bengal governor, who thought that a Muslim League government would be more pliable to British interests. The Bengali League ministry that was formed in 1943, as a result of the governor’s machinations, excluded nearly the entire Hindu community from power, thus releasing forces that eventually resulted in the communal partition of Bengal.

After a disaster like Bengal, claims by the Congress high command that the governor would be a rubber stamp need be taken with a pinch of salt. As could be expected, the governor played a highly deleterious role in modern India too. In 1954, the Punjab government was dismissed simply because Prime Minister Nehru wasn’t too happy with the chief minister. In 1959, Nehru dismissed the Communist government of Kerala even as it was fighting the Congress electorally.

In the Constituent Assembly, Nehru had sought to downplay the role of a governor by calling him a benign link with the Centre, promising that governors would be “people who have not taken too great a part in politics”. Yet, as it is quite clear, the governor has a political role to play by definition. He has often ending up meddling in the affairs of elected state governments and pushed the interest of the party which happens to be ruling New Delhi.

We have seen this recently in Arunachal Pradesh where the governor plotted to remove the democratically elected chief minister in December 2015. And, of course, we are now seeing this in Tamil Nadu, where the governor ignored the will of the elected assembly to not swear in Sasikala – an action that dovetailed perfectly with the interest of the ruling party in New Delhi.