Koshyari's letter to Thackeray doesn't befit the impartiality expected from Governor's office

There has been some controversy brewing in Maharashtra recently. The governor of the state BS Koshyari has written to Chief Minister Uddhav Thackery asking him to reopen public religious places of worship. In the letter, the tone of which is now the subject matter of a broader political row, Koshyari rebuked Uddhav Thackery and accused him of turning "secular".

The letter also took a chiding tone towards the Maharashtra chief minister asking him if he had received any “divine intervention” that required these spaces to be closed. The governor’s letter was also not a private communication to the chief minister as the press had access to it.

Before we go into the details of whether the Maharashtra governor’s actions in issuing the letter was correct, it may be worth examining the role of a governor.

India follows a federal structure with there being governments in the states and at the Centre each with their own distinct sense of responsibilities and domains to function. This federal structure adopts the Westminster system of government both at the Centre and at the state. In this system, the government is the executive head acting along with a council of ministers. The head at the Centre is the President of India, whereas, in the sates, the head is the governor of that particular state.

The prime minister or the chief minister is the first amongst equals in this council of ministers. This system is like the one in the United Kingdom (from where we get the name Westminster model) where the monarch takes the role of the executive head. The executive head cannot act on their own and can only act on the advice of their council of ministers, except for certain enumerated circumstances.

India has not had a monarch since 1950, and accordingly, the elected executive head at the Centre is the President of India. But unlike the President of India, governors are not elected. They are appointed by the President of India and serve at the President’s pleasure. This has often led to governors being accused of being nothing more than agents of the Central Government.

Koshyari's letter though has brought this issue out in the open once again with the letter being seen as a political ploy of the ruling Central Government to chide its former ally Shiv Sena, who is now a member of the coalition government in the state.

The level within which a governor may interfere with the actions of his ministers is one that is not enumerated in the Constitution and finds a place in the convention. The governor’s powers being similar to that of the monarch, are often viewed as having to be exercised impartially and soundly.

In the seminal work The English Constitution, Walter Bagehot, summed up the monarch’s “rights” as the right to be consulted, the right to encourage, and the right to warn. As such there is nothing improper per se about the governor writing to the chief minister of the state, asking for certain policy decisions to be undertaken. The chief minister, of course, is well within his rights to completely ignore the governor. But constitutional propriety demands that the governor be given the respect of at least being heard on his concerns.

The Maharashtra case, however, is different. The way Koshyari has addressed the Chief Minister of Maharashtra does not befit the constitutional impartiality expected from such an office. In fact, it shows that the governor is actively trying to interfere in the day-to-day administration of the state. A power the governor does not have nor should he, for he is not elected, and the chief minister is.

So long as the chief minister is able to maintain the confidence of the legislature, the chief minister’s role ought not to ordinarily be interfered with.

A decision such as when to open public places of worship is one that squarely falls within the domain of the elected government of the day. Further, even if there ought to be some concern, the governor’s tone and tenor in his letter, does not make the concern seem apolitical. It quite frankly appears that the governor is trying to generate political capital for the Central Government.

Governors must loathe appearing as agents or appointees of the Central Government if they are to maintain their impartiality and the confidence of their ministers. After all, a minister holds office at the pleasure of the law and the legislature. Though technically the governor could dismiss the state government, it has been held that he cannot constitutionally do so as long as the government enjoys the confidence of the legislature.

Situations like the one that was seen in Maharashtra are unfortunate and the way this row is being played out does not do service to either party. The politicisation of the office of the governor will have grave consequences for India’s federal structure.

The BJP was once a supporter of greater federalism in India, but has now, with its actions, emerged as the leading supporter for central consolidation of power. One only wonders what old BJP veterans may think about this new avatar of the BJP. This former supporter, is, however, quite saddened at the way these events have turned out.