BS Koshyari's overreach threatens federal tenet of strong government-governor relationship

Maharashtra governor Bhagat Singh Koshyari’s letter dated 12 September to Chief Minister Uddhav Thackeray will surely go down as an extraordinary epistle in India’s postcolonial political history. It not only reflected poorly on Koshyari’s understanding of the many nuances of the Indian Constitution in procedural terms, its contents also blew all rules of engagement out of the water.

Let’s first deal with the procedural solecism, rendered all the less acceptable by the fact that Koshyari had spent a few months as chief minister of Uttarakhand a couple of decades ago, and the context in which it appeared. The day after the chief minister composed his epistle, workers and leaders of the BJP started what looked like a mass programme of forcing their way into various temples — including the Siddhivinayak temple in Mumbai and Saibaba temple in Shirdi — in defiance of lockdown orders.

The crowds, including mahants and sadhus, offered fasts outside a number of temples. That this was a BJP-led movement against the government became clear in a number of statements. A BJP statement said, "Do not let the situation come to a point where sants, mahants, warkaris forcibly enter temples." Almost in chorus, the head of a religious trust said that while the Centre had allowed the opening of places of worship, it was the Maharashtra government that was keeping temples closed.

One can debate the wisdom, or supreme lack of it, that drives political and religious leaders to launch a movement which to many could seem just a bit outré given the ordeal Mumbai and Maharashtra have been going through. But it is beyond belief that Koshyari thought it fit to lend it support from the Raj Bhavan. Egging on agitators, whatever their cause, goes beyond any reasoned discussion on constitutionality.

Nevertheless, let’s for a moment take the charitable view that Koshyari wanted to make an intervention on a public issue. The power of the governor, especially vis-à-vis the elected government of a state, is clearly laid out in Part VI of the Constitution. It says the executive power of a state shall be vested in the governor, who shall exercise it through ‘officers subordinate’ to him with the aid and advice of ‘his’ chief minister and the council of minister. A certain amount of discretion has been allowed only by or under the Constitution.

In other words, gubernatorial discretion is limited to grave contingencies of the order usually described a breakdown of constitutional order in a state. Since the promulgation of the Constitution, a number of judicial verdicts have further constrained gubernatorial autonomy and the governor’s role. Koshyari was nowhere within limits. The agitation mounted by the religious trusts and the BJP was routine. Dealing with it was one of the routine functions of the government constituted by law, which it was carrying out.

There was no scope for Koshyari to get involved. By getting involved, he had assigned himself a partisan role in which he was arraigned against his government with agitators.

You could say that the governor was concerned about the people’s right to worship in public. If that had indeed been the case, he could have had a private consultation with Thackeray and the chief minister would presumably told him exactly what he said in reply to the letter. To wit: That he was "studying what was happening in other states and trying to do what is best for Maharashtra".

By sending the letter affixed with memoranda from BJP leaders, Koshyari rather gave the game away. But what was infinitely worse was that he seemed to be completely unaware of where Maharashtra stood with regard to the COVID-19 crisis. For an ordinary citizen, this passes muster. But in the case of the governor, it’s unforgivable ignorance.

So let’s put him a little up to date on the horrifying effect COVID-19 has had on Mumbai, India’s worst-hit city, and Maharashtra, the country’s worst-hit state. At the time of writing, Maharashtra had registered 1.54 million infections and 40,514 deaths. These mean that the state has seen 21 percent of the country’s 7.24 million infections and 36 percent of India’s 111,000 deaths. Dealing with this calamity is a mammoth task, you could be pardoned for thinking that the least the chief minister and his government could expect was a helping hand from Raj Bhavan.

But it was not just the fact that Koshyari chose to make an intervention, his manner of doing so was immeasurably crass and was a direct assault on constitutional values. His intervention was couched in a sneer that in normal times would have invited serious censure. After observing that it was ‘ironical’ that gods and goddesses remained under lockdown despite the fact that bars, restaurants and beaches had been opened to the public, Koshyari takes a completely inappropriate ideological jibe: "I wonder if you are receiving any divine premonition to keep postponing the reopening of the places of worships time and again or have you suddenly turned 'secular' yourselves, the term that you hated?"

To say that such a statement by a governor in a letter to his chief minister is inappropriate would be a surreal underestimation. The relation between the governor and the chief minister, officially, is one that centres on running the government. It is, in other words, official and has to do with decisions taken and the procedures surrounding them. The chief minister’s ideological position has nothing to do with the governor — and the other way around.

In his reply, however, Thackeray exposed Koshyari on precisely the most damaging ground he had strayed on to. On 13 September, he swatted aside the governor’s jibe, saying his Hindutva did not need a certificate from the governor or anyone else and made two crucial points. First, while considering the sentiments and beliefs of people, it was also important to take care of their lives. Lifting the lockdown suddenly would be wrong. And, second, he asked, ‘Isn’t secularism a key component of the Constitution you swore on while taking oath as the governor of the state? Have you forgotten it?’

It was then left to National Congress Party leader Sharad Pawar to write to the prime minister on 13 September objecting to Koshyari’s intemperate language, reminding him that the governor’s office was a high constitutional position, and pointing out that by sounding like a political leader, Koshyari had eroded the standards of conduct expected of those holding high office. That was pretty much game, set and match.

The problem is Koshyari is not alone in being a partisan player.

During the Rajasthan crisis a couple of months ago, Governor Kalraj Mishra’s conduct could under no circumstances be described as unbiasedly gubernatorial. His repeated refusal to convene an Assembly session, made it look like he was on the phone to Delhi all day. In Kerala, Governor Arif Mohammad Khan’s conduct won’t win him medals for constitutional conduct either.

But the pick of the litter must be Jagdeep Dhankhar in West Bengal. Since arriving in Kolkata at the end of July last year, he has constantly needled Chief Minister Mamata Banerjee, sometimes making it difficult for the government to function. COVID-19 couldn’t stop him, nor could Cyclone Amphan. His great contribution to Bengal’s postcolonial constitutional and political history will probably remain his accusation that the state of which he is the constitutional head had turned into a ‘police state’. He functions at all moments without abashment as a party leader trying to help the BJP win Bengal.

One part of this story is tragic. That in defiance of constitutional norms and provisions, the BJP keeps sending these people to the states to open an extra front against political opponents. But the other part of the story is felicific. Despite all attempts by a number of agents provocateurs, the relationship between elected governments and governors has held — governors have by and large contained themselves or been successfully corralled. Unlike the many institutions that have been undermined and subverted, this one is doing the job it’s supposed to.