What Brexit Judgement Teaches About The Prerogative Powers Of The Governor

Posted by Monish Borah in GlobeScope, Politics
February 16, 2017

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?

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