T M Thomas Isaac
“With the Narendra Modi-led government at the centre...some governors are behaving like independent agents, although their role is to be advised by the executive and to discharge fixed duties.”
The Telegraph, October 28
“Kerala Governor’s...words and actions do not behove the office he occupies. Raj Bhavan has to stay above petty political battles and not be seen in an openly adversarial relationship with the elected government.”
The Indian Express, November 9
“It is difficult to agree with the Governor’s assessment that an observation that those who had seen only universities in Uttar Pradesh would not understand universities in Kerala is seditious or goes against national unity.”
The Hindu, October 28
“The threat of the Kerala Governor…betrays his total lack of respect for the Constitution and disregard for the system of democratic governance...”
Deccan Chronicle, October 19
THE above are quotes from editorials of national newspapers regarding the ongoing confrontation between the Kerala governor, a self-styled RSS convert, and the LDF government in Kerala. The role of governor has always been a thorny issue in Indian federalism. The governor is appointed by the centre without consultations with the states and with tenure at the mercy of the centre. There are also certain discretionary powers such as in assessing the legislative majority specified in the constitution.
Unfortunately, the recommendations of Sarkaria and Punchhi Commissions were not acted upon by the successive central governments. The appointments of governors continued to be on political basis and they were used by the powers at the centre for political advantages. In the hands of the present BJP regime, the governors have been converted into most powerful instruments to unsettle the administration of non-BJP ruled states. The crisis in Kerala has to be assessed in the background of this political strategy of the BJP.
OPPOSITION RULED STATES
In every state ruled by opposition political parties, the governors have been at logger heads with the elected governments. In the case of union territories like Delhi and Puducherry, though they had elected legislatures, the lieutenant governors interfered even in routine matters so that normal administration became impossible. The governor played a key role in the dismemberment of the state of Jammu and Kashmir.
The West Bengal governor, Jagdeep Dhankhar was bickering daily on all and sundry issues. The rumour is that Dhankhar’s new esteemed office of vice -president is a reward for his unceasing interferences. Till the advent of the Eknath Shinde government in Maharashtra, Governor BS Koshyari and the Uddhav Thackeray’s MVA government were indulging in public recriminations.
In Tamil Nadu, the governor has refused to sign a bill to scrap NEET that was reserved for president’s consent. He is also mulling over the bill to remove him from chancellor positions in the universities. In Rajasthan also, the governor refused to accept the advice of the council of ministers. In Telangana, the governor is challenging the TRS government.
The Kerala governor has also joined the hunting pack. Under the delusion that he is not a titular head but one with substantial discretionary powers, he warned the ministers that he would “withdraw pleasure” from those who make statements that “lower the dignity of the office of governor”. This warning issued through a public tweet was soon followed up by a formal letter to the chief minister making it clear that the state finance minister had “ceased to enjoy the governor’s pleasure” and demanding that appropriate constitutional remedy be taken.
This unprecedented action of the governor was universally condemned as unconstitutional. It is true that the constitution mandates a council of ministers to aid and advice the governor (Article 163(1)) and “the ministers shall hold office during the pleasure of the governor (Article 164 (1))”. But in between, there is an Article 163 (2) which clarifies that the governor may act in discretion in certain limited matters as provided in the constitution. It is very clear that in other general matters, the governor is bound by the advice of the council of ministers. Therefore, the governor can withdraw his pleasure with regards to a minister only on the advice of the chief minister. The Kerala chief minister immediately replied expressing his full confidence in the minister. For him that was the end of the matter.
CHANCELLOR AND VICE CHANCELLORS
Meanwhile the governor opened up yet another war front with the vice chancellors of universities of which he is the chancellor. The chancellorship is not a constitutional position but one granted by the university legislations passed by the assembly. Therefore, his stand is that he has full discretion in university matters. For sometime now he has been harping on the lacunae in the university system, and he found an opportunity to intervene after the Supreme Court held that the appointment of a vice chancellor of a technical university was irregular and therefore void ab intio.
The Supreme Court was considering a private petition challenging the appointment of the vice chancellor. The university laws provide for a search committee of three people who could either submit a panel or a unanimous choice for the consideration of the chancellor. But the current UGC regulation stipulates that a search committee of 3-5 members submit a panel of three before the chancellor. In the case of this technical university, only one name had been submitted to the chancellor. The challenge was turned down by the single bench and division bench in Kerala High Court. But the Supreme Court overruled these decisions while passing the judgment on the special leave petition.
UGC REGULATION AND STATE LEGISLATION
The Kerala government has expressed its intention for going for a review petition. It is a settled matter that if in case there is a contradiction in the current legislation by the centre and the state, the provision in the central legislation would prevail. But in this particular case, the UGC Act passed by the parliament does not have any provision regarding the appointment of the vice chancellors. It had been introduced as part of UGC Regulation of 2018 and such an executive order cannot claim precedents over an Act passed by the state legislation. It is also argued that this particular judgment does not apply to the realm.
The Supreme Court of India, as late as August 2, 2022 (Dr Vijayan vs State of Kerala) had held “Education now being a list three subject, the state government is at liberty to frame its own laws relating to education in the state and is not, therefore, bound to accept or follow Regulations framed by UGC”. In fact, such differences continue to exist in the statutes of universities that were legislated before the new UGC Regulation. In short, the issue is not a settled one but that would come under the review of the apex court.
COUP D’ETAT IN THE UNIVERSITIES
But the governor is not amenable for a rational discourse and is in a tearing hurry to unsettle the entire higher educational system in Kerala and to seek vengeance on the vice chancellors who dared to challenge him. According to newspaper reports, he is even exploring legal grounds for impounding the emoluments they had drawn from the universities!
He lost no time in seizing the opportunity provided by the Supreme Court judgment regarding the technical university. Converting a holiday as working day for his office, he shot off notice asking nine vice chancellors who were selected in similar manner to submit their resignations by 11.30 am on the next working day. The vice chancellors approached the High Court objecting to denial of natural justice and the court upheld their prayer without prejudice to other substantial matters involved. The governor has reissued the notices demanding show cause. He is in such a tearing hurry to give temporary charges for the ousted vice chancellors that information of all senior professors in universities is being gathered, disregarding university statues that in such contingencies senior most professors must be given charge.
The governor is scheming for coup d’etat in the universities of Kerala. He would not abide by the advice of the council in the appointment of his representative to the search committee, so that with the help of UGC representative, the senate representative can be overruled in the preparation of the panel to be submitted to the chancellor. The Sangh Parivar has zero representation in any of the university bodies in Kerala. Now it could happen that all the vice chancellors of Kerala could be of persuasions divergent from the ethos of the state and liberal moorings of the universities.
IN DEFENCE OF DEMOCRACY
These moves will be resisted legally and politically. Already an ordinance has been approved by the cabinet to remove the governor from the position of the chancellor of the universities. The governor has not yet responded. For dearth of space, I cannot give the curriculum vitae of the vice chancellors. All of them are very eminent academics with non-direct political affiliations.
Any genuine criticism and suggestion on Kerala’s higher education system, the government is keen to taken into account and rectify. Reports of three commissions on higher education are currently being processed. Financial allocations have been raised. In the agenda for development, the sphere of higher education is to play a similar role as school education did in the development of Kerala Model. The governor and his ilk are attempting to subvert these efforts. What we are witnessing in Kerala is a total mockery of all democratic norms and undermining of the federal system.