This post has been self-published on Youth Ki Awaaz by Monish Borah. Just like them, anyone can publish on Youth Ki Awaaz.

What Brexit Judgement Teaches About The Prerogative Powers Of The Governor

More from Monish Borah

The UK Supreme Court judgement on January 24, 2017, ordering the British government to ask for permission from their Parliament before they begin the formal procedure of withdrawing from the EU, has some relevant links to the Indian political system which I will be exploring below. These linkages have emerged because this judgement deals extensively with the prerogative powers of the government, one of the many things that Indian polity borrowed from the UK.

The raison d’être behind this article are two-fold. Firstly, it is to address the basic issues behind the increasing number of controversies arising from the exercise of the prerogative powers of Governors in India especially in the last one year, be it in Tamil Nadu, Uttaranchal, Arunachal Pradesh, Puducherry or Delhi.

Secondly, since the British do not have a written constitution the British judges have the freedom of depending on independent academic work/research to a greater extent than judges in most other places, which results in judicial experts giving a lot of importance to the judgements of the UK Supreme Court when discussing different topics in jurisprudence.

The Judgement

From the outset, I have to say that the summary of the judgement that was released to the press was very ordinary and I was quite disappointed by its quality. It basically said that the British government had the prerogative power to conclude foreign treaties like the ones which they will require in order to withdraw from the EU. But, since previous statutes enacted by the government will be effected when invoking Article 50, which will, in turn, change domestic UK laws- the government will need to get the permission of the parliament before formally starting the process of withdrawing from the EU. This frankly sounded to me like a shrewd lawyer looking for a loophole to get his/her client off murder.

But, when you read the detailed 97-page judgement – you realise the depth to which these 11 judges went to, to come up with this judgement and it is where we can find this judgement’s significance with regards to India.

Historical Background

Prerogative Powers refers to the power of the British crown to do whatever it wanted. Although there was mention of some limitations to it as early as in the 11th century, they were almost entirely ineffective till the 17th and the 18th century when parliamentary rights, land rights and personal rights were shored up against assaults from the prerogative powers of the crown.

Coincidentally it was during this period (17th and the 18th century) that the British started to acquire territories in India and to legislate over them, posts like those of governors, governor generals, viceroys and secretary of states were created. All of these offices had massive amounts of prerogative powers. Even though Government of India Act of 1935, laid the ground for the basic elements of the federal system that we have in India now, the Crown appointed Governors of different provinces and Viceroys still maintained significant residual prerogative powers which resulted in India not even being a crown territory with dominion status.

But by 1935, the prerogative powers of the crown in England had slipped out of the hands of the monarchy, even the residual ones. These prerogative powers did not disappear but instead got passed into the hands of the popularly elected executive or the elected government of the day. The logic behind this was quite simple- the parliament is the primary law making body in the UK, it derives this power, status and credibility from being popularly elected by the people. It is from this parliament that the government is formed, hence the prerogative powers which the previous form of government (monarchy) had got passed on the current democratically elected form of government. But the above mentioned Brexit judgement also reminds the British government that their prerogative powers are limited by various statutes and laws so the government of the day cannot do whatever it wants and be completely unaccountable.

Things Get A Little More Complicated In India

Till the end of the colonial rule, our British rulers enjoyed prerogative powers similar to those their predecessors enjoyed before the 18th century in their home country. Then the law making powers were transferred to an Indian constituent assembly which was elected by a limited mandate. This constituent assembly wrote down, approved and enacted the Indian constitution we have today.

It has been 68 years since this happened, so after numerous amendments and judicial interpretations let us look at the state of prerogative powers in our country.

Just like in the UK, there are two kinds of prerogative powers in India. The government has the prerogative powers to take actions which will affect the lives and rights of different individuals within the country and hence these are subject to judicial review. Secondly, the government also have the prerogative powers like those protecting its actions during wartime which are guided by statutes.

The prerogative powers that the British Governor Generals or Viceroys enjoyed have been completely dissolved and handed over to the Government of India which can exercise it in accordance with the laws and statutes put in place.

But unlike in Britain, India has legislatures in each of its states and in two Union Territories – Delhi and Puducherry. So, what creates the problem here is that a totally unelected person the governor is given prerogative powers when these legislatures are already there for law making and enacting.

The prerogative powers that governors of states have are truly extensive – they decide who to call to form a government when a government has to be dismissed, when to recommend president’s rule for a state and last but not least which state bills to reserve for the president’s approval. The powers of the Lieutenant Governors in Union Territories are even more extensive where even day to day administrative work cannot be carried out without the governor’s approval. The governor’s powers in Indian states are probably even more extensive than those envisaged by the British in the Government of India Act 1935.

The only people who could be historically equivalent to the modern day governors are probably the political agents that the British would place in the courts of the Indian princes once they sign the subsidiary alliance. Officially, he was only there to represent the British in the princes’ courts. Unofficially, he made sure that the princes did not behave in a way which was adverse to the colonial interests and to enforce his will the prince had to agree to station a contingent of British troops in his kingdom once they sign the subsidiary alliance.

Just because the modern day governors of the Indian states do not always use their prerogative powers does not mean that we can close our eyes to the problem of what I call “incomplete transition” because of the increasing instances of the governors and the state governments being at loggerheads.

What Do I Mean By “Incomplete Transition”?

When nations made the transition from monarchy to democracy, they were faced with the problem regarding what to do with the prerogative powers of the monarchs. This was because these powers had been there for so long and in so many aspects of statecraft and governance that they cannot be completely neglected, yet they were, in essence, undemocratic. So, when countries like the UK made the transition from being feudal to a democratic state, it was decided to vest the prerogative powers with the government which was formed from the popularly elected supreme law making body – the parliament.

From the above point, we can easily conclude that the fewer prerogative powers an unelected body or official has, the more democratic and less feudal that country can be called.

This is the reason why I consider the massive prerogative powers with the governors of the Indian states as being the result of “incomplete transition” from the feudal to the democratic age.

Although we Indians have a habit of relegating the debate over the role of governors in India to the sphere of federalism, I fear the problem is more serious than that and have to do more with our feudal hangover than with the federal structure.

India at the core is a union of states. Any look at Indian history and polity will immediately make it clear that it is the states/regions/provinces that made up India not the other way round i.e. India creating the region/provinces. One does not have to go very deep into history to clarify the truth behind this point – just look at the Sardar Patel’s attempts to unify 500+ states with the Indian Union and the principle of “Unity in Diversity” which forms the bedrock of many of our fundamental rights.

Just because the prerogative powers of the head of the state or President of India has been severely curtailed over the last few decades, it does not mean that the prerogative powers have altogether disappeared. In fact, since it is in the states which make India a successful Union where the prerogative powers are as much prevalent today as it was during the colonial era. This not only points to a disappointing democratic deficit in the Indian polity but also to a serious negation of the virtues of parliamentary democracy.

What Can Be Done About It?

Different law commissions have dealt with the problem of clashes between the governors and the state governments, so I won’t be going into them, I have some recommendations of my own which have been elaborated below.

The provisions for sending state bills passed by the state legislatures to the president if the governor feels that it requires further considerations or the governor withholding his or her signature from the bill indefinitely must be done away with.

As far as the bills enacting laws are concerned, if the governor feels that it violates the constitution or some other statutes or he needs further consideration he/she should send it to the Supreme Court or the state High Court which is more qualified to opine in that regard, and by rule the governor must be forced to approve the bill if it is approved by these courts or if the bills are modified according to the recommendations of these courts.

Secondly, regarding dismissing and forming governments – two paths are open.

A governor is often forced to dismiss a government in the state if it loses the support of the majority of the elected representatives in the lower house of the state legislature. But just because members of the House are not able to form a government does not mean that the house has lost its credibility, because after all it was elected by the people for the purpose of legislating laws. We have to understand that we are a parliamentary democracy first and posts like those of chief ministers and prime ministers, although constitutional are of secondary importance. The legislature continues to enjoy the credibility it got from being elected by the people even if there is no chief minister or prime minister.

So, the current system of dismissing an elected government after the dismissal, death or losing the support of a particular section of the legislative body must be relooked at. For, what can be the justification for dismissing an entire legislative assembly if only a section of it falls foul of the rules. So, a system should be put in place by which the government can be run through these representatives being responsible for their own constituencies without there being any government per say. The council of ministers which is also a constitutional body should not be dissolved if the government “falls”, instead it should be made directly responsible to the legislative assembly and asked to carry on its functions. There is already a constitutional sanction behind this plan, which is that even after a ruling party has been ousted from the government by an election, it continues to hold power till the new government is sworn in.

Such a system will give sufficient time for different political parties to engage in negotiations to form a proper government with a chief minister. This system also does not insult people’s opinions which they have provided through the process of voting.

An Appetite For Dictatorship

People’s mandate can be learned in many important issues not only by holding referendums but by holding elections for a new government. So, the second pathway open to limit the prerogative powers of the governors regarding the dismissing and forming of governments is for the Indian states to inculcate the habit of holding fresh elections at short notices whenever there is a need for it.

Instead of going for one election every four years for the entire country the attempt should be to hold elections at short notices almost immediately after a government loses its majority or if the government feels it needs to hear the people’s mandate on an important issue.

I know that this suggestion is coming at a time when there is increasing chorus from the ruling coalition for reducing the number of elections by holding simultaneous general and state level elections. This for me is quite alarming and is a recipe for future authoritarianism.

The two major reasons being given by the ruling NDA coalition for simultaneous elections are highly inadequate. The first reason that holding simultaneous elections will reduce costs for holding elections is at best a half truth and at worst misinformation. Political parties across the board have refused to publicise the source of their income for decades and now even refuses to come under the RTI Act. To shed crocodile tears over public spending in elections while protecting private spending under a veil of secrecy is hypocrisy plain and simple.

The second major reason – that the central government is not able to conduct its normal functions when the country is in perpetual election mode needs a more nuanced understanding in the part of the national parties.

National parties in India have had a very poor opinion about federalism in India and they should take some lessons out of the continuing downfall of India’s first true national party, the Congress Party.

One of the major reasons for the downfall of the Congress, at present, according to many amongst the hordes of “rebels” escaping from that party is the complete lack of regional autonomy in the party. All the decision are taken in a centralised manner to fulfil an agenda set by its central leadership.

A simple look at India’s geography tells you that this is a wrong method to follow- the problems of India’s teeming masses living under completely different realities can never be solved under the guidance of a single master plan.

The rising national party the BJP would do well to remember this. Making its various state units confirm to its centralised agendas will require it to curtail the independence of its state units and impose on them programs which might be completely unthinkable in that region or state.

As I see it, the BJP will have to face this problem of centralised decision making far sooner than the Congress because backed by its unitary RSS ideology BJP has more centralising tendencies than its rival.

So, to say that the functions of the central government are hampered due to the continuous holding of different state elections all the time is a very short sighted argument. Governance never takes a day off- even when an election is going on, there is a government which is responsible for conducting it freely and fairly. The national parties should learn how to respect India’s federalism and recognise that their central objectives will often differ from their regional objectives and hence give their regional subsidiaries and affiliates more freedom to follow their own agendas which might be very different from their overarching national objectives.

The media can play a significant role in this. Unfortunately, the analogy used by the Indian media to cover each state election is very similar to what they do when covering a cricket tournament. The Indian media create a hero or even a legend after a few good innings, but bad innings from that very same cricketer in a crucial match can make him a villain in an instant. Often the media to increase their TRP refer to the state elections as being an indication of the feelings of the entire country which it is often not. But these kinds of artificial pressures from the media create situations where national parties find it difficult to carry out their normal functions of governance.

How Will Holding Simultaneous Elections Result In Authoritarianism?

It is all about perception and using the prerogative powers of the governors of the states.

People already see that the legislatures are not working due to disruptions and adjournments.

Ordinances are becoming common place and important rules and statutes are being maintained only with the help of ordinances.

Now if simultaneous elections are held across the country, and the prerogative powers of the governors are left unchecked in this era or coalition dharma and multi-party elections, it becomes far easier to dismiss a government for not having sufficient support in the legislature.So, in the period of say just two years large swaths of the country could be living under the undemocratic “presidential rule”.

Also, since media pundits have been hammering us with the notion that successful democracy is the same as the fulfilment of individual goals like reduced corruption levels and poverty alleviation, how long will it be before people perceive that good governance is the same thing as democracy?

_

Image Source : Facebook
You must be to comment.

More from Monish Borah

Similar Posts

By Zakir Ali Tyagi

By Deeksha Pandey

By Sandhya Agrawal

Wondering what to write about?

Here are some topics to get you started

Share your details to download the report.









We promise not to spam or send irrelevant information.

Share your details to download the report.









We promise not to spam or send irrelevant information.

An ambassador and trained facilitator under Eco Femme (a social enterprise working towards menstrual health in south India), Sanjina is also an active member of the MHM Collective- India and Menstrual Health Alliance- India. She has conducted Menstrual Health sessions in multiple government schools adopted by Rotary District 3240 as part of their WinS project in rural Bengal. She has also delivered training of trainers on SRHR, gender, sexuality and Menstruation for Tomorrow’s Foundation, Vikramshila Education Resource Society, Nirdhan trust and Micro Finance, Tollygunj Women In Need, Paint It Red in Kolkata.

Now as an MH Fellow with YKA, she’s expanding her impressive scope of work further by launching a campaign to facilitate the process of ensuring better menstrual health and SRH services for women residing in correctional homes in West Bengal. The campaign will entail an independent study to take stalk of the present conditions of MHM in correctional homes across the state and use its findings to build public support and political will to take the necessary action.

Saurabh has been associated with YKA as a user and has consistently been writing on the issue MHM and its intersectionality with other issues in the society. Now as an MHM Fellow with YKA, he’s launched the Right to Period campaign, which aims to ensure proper execution of MHM guidelines in Delhi’s schools.

The long-term aim of the campaign is to develop an open culture where menstruation is not treated as a taboo. The campaign also seeks to hold the schools accountable for their responsibilities as an important component in the implementation of MHM policies by making adequate sanitation infrastructure and knowledge of MHM available in school premises.

Read more about his campaign.

Harshita is a psychologist and works to support people with mental health issues, particularly adolescents who are survivors of violence. Associated with the Azadi Foundation in UP, Harshita became an MHM Fellow with YKA, with the aim of promoting better menstrual health.

Her campaign #MeriMarzi aims to promote menstrual health and wellness, hygiene and facilities for female sex workers in UP. She says, “Knowledge about natural body processes is a very basic human right. And for individuals whose occupation is providing sexual services, it becomes even more important.”

Meri Marzi aims to ensure sensitised, non-discriminatory health workers for the needs of female sex workers in the Suraksha Clinics under the UPSACS (Uttar Pradesh State AIDS Control Society) program by creating more dialogues and garnering public support for the cause of sex workers’ menstrual rights. The campaign will also ensure interventions with sex workers to clear misconceptions around overall hygiene management to ensure that results flow both ways.

Read more about her campaign.

MH Fellow Sabna comes with significant experience working with a range of development issues. A co-founder of Project Sakhi Saheli, which aims to combat period poverty and break menstrual taboos, Sabna has, in the past, worked on the issue of menstruation in urban slums of Delhi with women and adolescent girls. She and her team also released MenstraBook, with menstrastories and organised Menstra Tlk in the Delhi School of Social Work to create more conversations on menstruation.

With YKA MHM Fellow Vineet, Sabna launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society. As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Read more about her campaign. 

A student from Delhi School of Social work, Vineet is a part of Project Sakhi Saheli, an initiative by the students of Delhi school of Social Work to create awareness on Menstrual Health and combat Period Poverty. Along with MHM Action Fellow Sabna, Vineet launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society.

As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Find out more about the campaign here.

A native of Bhagalpur district – Bihar, Shalini Jha believes in equal rights for all genders and wants to work for a gender-equal and just society. In the past she’s had a year-long association as a community leader with Haiyya: Organise for Action’s Health Over Stigma campaign. She’s pursuing a Master’s in Literature with Ambedkar University, Delhi and as an MHM Fellow with YKA, recently launched ‘Project अल्हड़ (Alharh)’.

She says, “Bihar is ranked the lowest in India’s SDG Index 2019 for India. Hygienic and comfortable menstruation is a basic human right and sustainable development cannot be ensured if menstruators are deprived of their basic rights.” Project अल्हड़ (Alharh) aims to create a robust sensitised community in Bhagalpur to collectively spread awareness, break the taboo, debunk myths and initiate fearless conversations around menstruation. The campaign aims to reach at least 6000 adolescent girls from government and private schools in Baghalpur district in 2020.

Read more about the campaign here.

A psychologist and co-founder of a mental health NGO called Customize Cognition, Ritika forayed into the space of menstrual health and hygiene, sexual and reproductive healthcare and rights and gender equality as an MHM Fellow with YKA. She says, “The experience of working on MHM/SRHR and gender equality has been an enriching and eye-opening experience. I have learned what’s beneath the surface of the issue, be it awareness, lack of resources or disregard for trans men, who also menstruate.”

The Transmen-ses campaign aims to tackle the issue of silence and disregard for trans men’s menstruation needs, by mobilising gender sensitive health professionals and gender neutral restrooms in Lucknow.

Read more about the campaign here.

A Computer Science engineer by education, Nitisha started her career in the corporate sector, before realising she wanted to work in the development and social justice space. Since then, she has worked with Teach For India and Care India and is from the founding batch of Indian School of Development Management (ISDM), a one of its kind organisation creating leaders for the development sector through its experiential learning post graduate program.

As a Youth Ki Awaaz Menstrual Health Fellow, Nitisha has started Let’s Talk Period, a campaign to mobilise young people to switch to sustainable period products. She says, “80 lakh women in Delhi use non-biodegradable sanitary products, generate 3000 tonnes of menstrual waste, that takes 500-800 years to decompose; which in turn contributes to the health issues of all menstruators, increased burden of waste management on the city and harmful living environment for all citizens.

Let’s Talk Period aims to change this by

Find out more about her campaign here.

Share your details to download the report.









We promise not to spam or send irrelevant information.

A former Assistant Secretary with the Ministry of Women and Child Development in West Bengal for three months, Lakshmi Bhavya has been championing the cause of menstrual hygiene in her district. By associating herself with the Lalana Campaign, a holistic menstrual hygiene awareness campaign which is conducted by the Anahat NGO, Lakshmi has been slowly breaking taboos when it comes to periods and menstrual hygiene.

A Gender Rights Activist working with the tribal and marginalized communities in india, Srilekha is a PhD scholar working on understanding body and sexuality among tribal girls, to fill the gaps in research around indigenous women and their stories. Srilekha has worked extensively at the grassroots level with community based organisations, through several advocacy initiatives around Gender, Mental Health, Menstrual Hygiene and Sexual and Reproductive Health Rights (SRHR) for the indigenous in Jharkhand, over the last 6 years.

Srilekha has also contributed to sustainable livelihood projects and legal aid programs for survivors of sex trafficking. She has been conducting research based programs on maternal health, mental health, gender based violence, sex and sexuality. Her interest lies in conducting workshops for young people on life skills, feminism, gender and sexuality, trauma, resilience and interpersonal relationships.

A Guwahati-based college student pursuing her Masters in Tata Institute of Social Sciences, Bidisha started the #BleedwithDignity campaign on the technology platform Change.org, demanding that the Government of Assam install
biodegradable sanitary pad vending machines in all government schools across the state. Her petition on Change.org has already gathered support from over 90000 people and continues to grow.

Bidisha was selected in Change.org’s flagship program ‘She Creates Change’ having run successful online advocacy
campaigns, which were widely recognised. Through the #BleedwithDignity campaign; she organised and celebrated World Menstrual Hygiene Day, 2019 in Guwahati, Assam by hosting a wall mural by collaborating with local organisations. The initiative was widely covered by national and local media, and the mural was later inaugurated by the event’s chief guest Commissioner of Guwahati Municipal Corporation (GMC) Debeswar Malakar, IAS.

Sign up for the Youth Ki Awaaz Prime Ministerial Brief below