Let’s decolonise polity by abolishing the post of governor

India’s federalism remains a top‑down colonial legacy, now reinforced by judicial sanction

On November 20, the Supreme Court of India ruled in favour of sweeping powers for governors in response to a presidential reference. A five-judge bench overturned deadlines set for governors and the president by a two-judge bench in April. A ringing endorsement for the spirit of the Constitution has fallen by the wayside.

The bench led by just-retired Chief Justice B R Gavai had to answer 14 questions put to it in the reference. It answered 11 of them, principally throwing out the deadline on the grounds that the doctrine of separation of powers adopted by the Constitution did not allow the judiciary to poach on the powers of the executive. That being as it might, what the bench eventually did was to undermine the spirit of democracy and federalism with some of its prescriptions.

The most important thing the bench said was that in exercising one of three options open to it when considering a Bill passed by a state legislature, a governor was not bound by the aid and advice of the council of ministers. It made vague statements about there being no scope for unfettered gubernatorial discretion, but did not clarify the limits to it as the two-judge bench had done. Thus, it has opened the way for governors to block the will of the people — as expressed through elected legislatures — a consideration that had weighed with the earlier bench.

Let’s examine what happens to Indian federalism from a historical perspective. There are two types of federal systems: those constructed through voluntary association, bottom upwards; and, those constructed without deep mutual consensus, top downwards. The United States is an example of the first type.

Nationalist historiography in its many iterations and the Hindu communal one would like us to believe India was a kind of primordial nation — i.e., an Indian nation existed if not exactly from the beginning of time itself, from long antiquity certainly. That is a position. But it is at the least arguable that the Indian nation, and subsequently nation-state, was a colonial creation. The many unifying dynamics of empire, not least the anti-imperial struggle, welded discrete and disparate political and sociocultural formations into ‘India’. The integration of the Northeast clearly lays bare the coercive aspects of nation-making in the subcontinent.

Since the nation is itself a top-down construct, federalism needs be so as well, and it is. Let’s go back to the roots, which lie in the Government of India (GoI) Act, 1935 — the last and most comprehensive colonial ‘constitution’ for British India. It put into place a somewhat anomalous thing called the provincial autonomy scheme, under which the 11 provinces were to have legislative assemblies elected by a limited franchise of around 15% of the population, and elected provincial governments responsible to them.

The anomaly was that this partially responsible government in the provinces was not mirrored by a similar arrangement at the ‘Centre’, where the unelected governor-general in council still ruled. Thus, the GoI Act provided sweeping ‘reserve’ powers to the provincial governors, who were answerable only to the governor-general.

The Indian federation created by the Constitution of independent India, retained many features of this top-down federation, because it remained a top-down federation. The retention of the position of an unelected governor was one of them. Given the exigencies of the circumstances attending Independence and Partition, there was a big push towards a strong Centre at the expense of the powers of the state.

But this did not mean that the makers of the Constitution wanted to emasculate the states, as this judgment tends towards. In literal terms, Articles 153 through 164 look as if they mimic the provisions of the GoI Act, providing the governor with practically unlimited discretion, unhindered by the judicial process. Article 163 provides latitude, but clearly suggests that governors will be bound by the advice of the council of ministers, except in small areas of discretion.

B R Ambedkar’s interventions during the Constituent Assembly debates over the role of the governor also make clear that they were not meant to have substantive powers — certainly not the power to sit on legislation and frustrate the functioning of elected legislatures and executives.

The word ‘decolonisation’ is doing the rounds now in a perverted and debased sense. Perhaps, it is time to revive the twinned spirit of democracy and federalism by abolishing this post of a central agent, thus helping to decolonise the polity.

Suhit K Sen is author of ‘The Paradox of Populism: The Indira Gandhi Years, 1966-1977’.

(Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH)