In an unprecedented move, the Tamil Nadu Governor, on his own accord and without the recommendation of the Tamil Nadu Chief Minister, dismissed the cabinet minister V Senthil Balaji. Facing massive political backlash, the Governor seems to have developed cold feet and communicated to the Tamil Nadu government that his earlier decision was on hold. Even still, his unilateral initial decision signifies the normalised weaponization of the office of the Governor, which has become routine under the Modi government and has precipitated a constitutional crisis in yet another opposition-ruled state.
What's wrong with the decision:
1. Illegal: The decision is manifestly illegal as it contravenes Article 164(1), which binds the Governor to appoint/remove ministers on the advice of the Chief Minister, read in conjunction with Article 163, which restricts the Governor's autonomy by abiding him to be guided by the aid and advice of the council of ministers, except in well-defined cases of exception. Different Supreme Court rulings have laid out that the pleasure of the Governor in appointing and removing ministers is not a subjective personal pleasure of the individual holding the Governor's post but rather supervised by the aid and advice of the Chief Minister. By attempting to exercise autonomy in a matter where none is granted by the constitution, the Governor is trying to usurp power illegitimately.
2. Subverts triple chain of accountability: The decision effectively seeks to install the Governor as the boss of ministers. The Governor is now seeking to play judge, jury, and executioner in pending investigations launched, for widely believed petty partisan and political motives, by his appointee entity (the Union Government). Instead of being accountable to the assembly, the council of ministers is now sought to be controlled by an unelected and unaccountable power centre - the Governor.
3. Infringes on the state's autonomy and reduces the rights of the people of the state: The removal also raises the question: Who is the Governor to deny the people of the state the minister they want if he/she meets the constitutional requirements? The Governor, by exceeding the constitutional brief and attempting to personally dictate the makeup of the state executive, violated his most important duty, i.e., to defend the constitution, which envisions a federal structure and accountable government.
What it exemplifies:
The misadventure, sadly, indicates a trend of abuse of the office of the Governor with worrying implications:
1. Governor's office has become a threat to federalism and constitutional propriety: Under the Modi Government, a clear pattern indicates that the Governors and Lieutenant Governors have been mandated to weaken, discredit, destabilise, and disrupt opposition-ruled states. From impeding governance and defeating people's will through sitting on bills in Tamil Nadu to Governors using the megaphone of their post to act as spokespersons of the BJP in opposition-ruled states such as West Bengal, Kerala, and Punjab, to throttling people's voices by preventing the convening of the assembly in Punjab, the instances of Governors violating propriety, precedence, and explicit constitutional provisions and Supreme Court judgments to upend the basic feature of federalism have become a regular and defining aspect of the BJP Government.
2. Helplessness of constitutional safeguards against a malicious central government intent on deploying constitutional offices for fraud and illegality as political tools: The constitution has no accountability mechanism for governors; their appointment as well as removal is totally at the discretion of the central government. Thus, the Governors and Lieutenant Governors exercise power without accountability. In so doing, the constitution makers expected the regime to be governed by constitutional propriety. But when the party in power is devoid of any commitment to constitutional morality, the design of the Governor's office makes it ripe for the band of governors on display presently. Just last month, the Supreme Court itself had seriously castigated the illegal role of the Governor of Maharashtra in calling for a trust vote against the Uddhav government. The Lieutenant Governor of Delhi, meanwhile, each day, perfects the art of disrupting our elected Government in Delhi. The malicious intent of the Central government in misusing the office of Governors and Lieutenant Governors to undermine people's will, destabilise elected governments, and weaken federal units was exemplified in the services ordinance it brought overnight in May to snatch powers vested in the elected Delhi Chief Minister and cabinet by the constitution and the Supreme Court Constitutional and instead vest them in the unelected Lieutenant Governor.
3. The design of the office of the Governor and its very necessity needs a rethink: Ultimately, democracies are about structures of power being justified through public rationality. While the abuse and harm by Governors are well-documented and growing in instances by the day, the question of what good the office of the Governor is doing is shrouded in mystery. The office of the governor, as detailed through the various instances above, has turned into an attack post on the federal structure and representative democracy envisioned in the Constitution. The Raj Bhavans have turned into plotting spaces against elected governments, with newer ways devised daily to assault constitutional propriety. The exorbitant public money spent on maintaining the mischievous offices of Governors can be easily spent better by assigning the limited roles envisioned for the Governor (swearing in new governments, reporting to the centre on the breakdown of constitutional machinery, etc.) to the Chief Justice of the respective High Courts. The Aam Aadmi Party has therefore called for the abolition of the post of Governor. The constitutional breakdown and crisis sparked by the Tami Nadu Governor's abuse of power requires us to carefully contemplate the root cause of the malaise plaguing our body politic and arrive at a consensus on a more sustainable and fundamental solution of abolishing the office of the Governor to prevent more such breakdowns from happening regularly.
(Priyanka Kakkar is a lawyer, PENN alumni and Chief National Spokesperson of the Aam Aadmi Party)
Disclaimer: These are the personal opinions of the author.