Radha Kumar 
As President Droupadi Murmu and Prime Minister Narendra Modi urge governors to usurp the functions of elected administrations – under the guise of ‘serving as a bridge’ between state and Union – and opposition chief ministers point to discrimination in the 2024 budget, a look at past debates over states’ rights and the role of governors: excerpts from Radha Kumar’s The Republic Relearnt: Renewing Indian Democracy, 1947-2024 (Penguin Vintage).
On Article 356, the right to dismiss a state administration, and Article 352, the right to declare a state of emergency and impose President’s rule.
Members of the Constituent Assembly worried that these constitutional provisions made a mockery of the objectives resolution that described states as autonomous units of the Indian Union. What was left of the federal base that the Constitution was supposed to build? The division of powers gave the Union administration far greater control over state administrations than vice versa, said Muslim League assembly member and communist Maulana Hasrat Mohani. It reduced the states to ‘bare provincial autonomy’, he continued, in a reference to the limited powers of provincial assemblies in British India. Why should India not be a union of republics instead? Indeed, the Congress’ Shankarrao Deo commented grimly in mixed medical metaphor, such a highly centralized constitution would lead to ‘apoplexy of the heart and paralysis on the ends’.
Mohani and Deo were a minority. In the face of Partition, there were few takers for the proposal that state administrations should have equal or greater powers than those of the Union. As hindsight revealed, Mohani was not far off the mark. The Indian Constitution’s quasi-federal structure allowed determined Union administrations to undermine even those state autonomies that the Constitution enjoined.
The role of governors was particularly contentious. They were appointed by the President, who was elected by Parliament. Thus, a political party with an absolute majority would be able to appoint a President of its choice, acquiring influence over the choice of governor in any state. While a governor’s powers were restricted to specific areas, they allowed large flexibility within those areas. S/he could decide which party to invite to form the state administration, which legislation to forward to the President for approval, and when to propose that the President dissolve the state assembly. Such large gubernatorial powers, Patel said, could risk deadlock between the Union and state administrations. To safeguard against Union interference, a governor should be directly elected by the state’s people. As an elected state functionary, a governor would be unlikely ‘to abuse his “discretionary” powers’ in favour of the Union.
But the constitution drafting committee opposed the proposal. Ambedkar defended Article 356 as an emergency provision that would rarely be used. It had the inbuilt protections of consent by the state administration. ‘According to the principles of the new Constitution’, said Ambedkar, the governor was ‘required to follow the advice of his Ministry in all matters.’ Then why ‘enter upon an electoral process which would cost a lot of time, a lot of trouble and I say a lot of money as well’. It would be better, instead, for the President to either directly nominate governors or choose from a panel decided by the provincial legislatures. The difference between the two nomination options was ‘a purely psychological question—what would appeal most to the people—a person nominated or a person in whose nomination the Legislature has in some way participated.’
Clearly, Ambedkar did not envisage a situation of the sort that Patel bluntly sketched, in which a majority party could influence governors to use their powers against opposition-ruled state administrations. He did, however, have a point insofar as direct election was concerned. A directly elected governor would shift India’s governing structure towards a combined presidential and parliamentary system at the states’ level while retaining a solely parliamentary system for the union. But if a state legislature elected the state governor, it would have been a substantive safeguard, not merely a psychological one. Even a panel nominated by the state assembly, as Ambedkar suggested, would have provided some, though weaker, guarantee of federal rights.
Purely psychologically too, Ambedkar’s argument deserved more serious consideration in the Constituent Assembly than it received. It addressed two distinct and crucial political issues. The first concerned confidence-building amongst the people of a state that their elected representatives had a say in the choice of governor. The second concerned confidence-building within the Indian union that a state administration’s views had the weight of a first cut. Such power-sharing acquired considerable importance when the Union and state administrations were run by different political parties.
On Articles 257A, sending troops into a state without its consent, Article 256 and 257, Union powers over infrastructure and resource management, and Article 339, monitoring the development of tribal communities
Discussing the deletion of Article 257A on the Union’s emergency powers, (then law minister Shanti Bhushan) argued that even partial federalism must put the emphasis on the powers of the states not the Union, as had previously been assumed. ‘In a quasi-federal structure, how can you possibly contemplate that the Union would be entitled to send its armed forces to a State even without the consent of the State’?
Federalism had been listed by the 1973 Supreme Court judgment as a feature of the basic constitutional structure of India. But when CPI-M parliamentarian Samar Mukherjee suggested that any legislative amendment of federal rights should be subject to referendum too, an add-on to Bhushan’s proposal on fundamental rights, the latter did not take up the suggestion. Whether the quasi element of federalism was still relevant to a country that was by now relatively stable externally and internally was not debated.
A wider-ranging review of states’ rights was offered by the Rajamannar committee appointed by Tamil Nadu’s DMK administration, then led by former Congressman M. Karunanidhi. It covered a gamut of concerns. It recommended that fiscal powers should be devolved to states to enable them to raise welfare funding; residuary powers to tax should lie with states. The Union Planning Commission should be made statutorily independent, as the Election Commission was, and states should have their own planning commissions.
Further, Articles 256 and 257 of the Constitution should be deleted, since they gave the Union overriding powers on infrastructure and resource management, as should Article 339, which gave the Union powers to monitor the development of tribal areas and communities. Article 344, which mandated periodic review of the progress in use of Hindi as an administrative language, should be deleted too. English should remain the over-arching administrative language.
High court judgments should only be overturned by the Supreme Court on constitutional validity, and governors should only be appointed in consultation with state cabinets. Emergency powers under Articles 356 and 357 should be withdrawn. Instead, ‘sufficient safeguards should be provided in the Constitution itself to secure the interests of the States against arbitrary and unilateral action by the ruling party at the centre.’
Reflecting the anxiety of southern states, with relatively small populations and higher development rates, the report further recommended that each state should have the same number of representatives in Parliament ‘irrespective of population’. Most important of all, issues affecting one or more states’ relation to the Union should be vetted by an inter-state council, to be set up immediately.
Fiscal federalisation
Curiously, it was the BJP-led Vajpayee administration that first pushed to reduce imbalance between the Union and states’ revenue shares. In 2000, it implemented the Eleventh Finance Commission’s recommendation to extend the pool of Union taxes to be shared with states from only revenue income tax and Union excise duty to all centrally collected taxes, raising the states’ share to 29 per cent, which was increased to 32 per cent by the Thirteenth Finance Commission.
The Modi administration appeared to follow suit initially. In 2015, following the recommendation of the Fourteenth Finance Commission, it further raised the states’ share in Union tax revenues to 42 per cent (reduced to 41 per cent by the Fifteenth Finance Commission). But the increase was largely illusory: funds that had been routed to states through the Planning Commission were now added to the states’ revenue share, since the Planning Commission had been replaced by the grandiosely named ‘National Institute for Transforming India’ or NITI Aayog, and its funding powers were removed. Illusory as it was, the increase was not met. In 2022, it was reported that the states’ share of Union taxes hovered between 29 and 32 per cent instead of the recommended 41 per cent.
Reversing the trend
Meanwhile, the proportion of Union-imposed surcharges that were not shareable with states rose from 12.4 per cent to 19.9 per cent of gross tax revenue between 2013 and 2020, reversing the trend of fiscal federalisation. The states’ share of their own gross tax revenue declined from 62.1 per cent in 2010 to 57.6 per cent in 2019-2020.
Opposition-ruled states began to complain that the Union was withholding grants owed to them. In April 2022, Tamil Nadu’s chief minister M.K. Stalin called on Finance Minister Nirmala Sitharaman to release grants pending from 2017, totalling Rs 208.4 billion (USD 2.6 billion). The sum included compensation for GST (raised by an additional Central cess, placing a double burden on Indian taxpayers), the administrative costs of local body elections and performance-based grants for implementation of Union-approved projects. In February 2020 and again in March 2022, West Bengal’s chief minister Mamata Banerjee alleged that grants to the tune of Rs 500 billion and Rs 900 billion respectively (around USD 6.5 billion and USD 11.8 billion), had not been released, including special grants for backward areas and local body elections.
The office of the governor was weaponised against opposition administrations, as it had been during the Emergency. Between 2015 and 2022, the ruling party wrested government formation from the elected opposition in nine states with the aid of their governors—Karnataka, Meghalaya, Manipur, Goa, Arunachal Pradesh, Madhya Pradesh, Bihar, Puducherry and Maharashtra.
In Maharashtra, with a hung verdict in the 2019 assembly election, Governor Bhagat Singh Koshyari swore in a minority BJP administration without allowing opposition parties to stake a claim. When Koshyari was instructed by the Supreme Court to call a floor test, the BJP administration fell. Yet he prevented the opposition’s Maha Vikas Aghadi [grand development front, formed of the Shiv Sena, Congress and Nationalist Congress Party (NCP)] from taking office for another six months by sitting on Chief Minister Uddhav Thackeray’s nomination to the legislative council or upper house, required for him to take oath. In 2022, it was reported that Koshyari had held up twelve further nominations to the Maharashtra legislative council for over a year. Soon after, the Shiv Sena split, and the Thackeray administration fell. A new BJP-rebel Shiv Sena alliance was sworn in, though Assembly Speaker Rahul Narwekar had yet to conduct defector disqualification hearings. A year later, the proceedings had not begun. In September 2023, the Supreme Court instructed Narwekar to start hearings within the month. By this time, another Aghadi party had split, the NCP, with rebel legislators being sworn into the BJP-rebel Shiv Sena cabinet in such ‘haste that even the families of most ministers who took oath did not have time to reach (the) Raj Bhavan.’ Four of the nine rebel NCP legislators faced ED and/or income tax charges.
In Tamil Nadu, Governor R.N. Ravi delayed forwarding a bill for presidential approval that exempted Tamil students from the all-India entrance test for medical colleges, despite being requested twice by the assembly to do so. The DMK was constrained to ask the President to intervene, said legislator T.R. Baalu; the situation was ‘horrible. It cannot be tolerated.’ Thirty Tamil students had already committed suicide over the issue. The governor should be recalled.
In May 2022, the Supreme Court reprimanded Ravi for sitting on the release petition of one of Rajiv Gandhi’s assassins, which had been approved by the state administration as well as Rajiv Gandhi’s children. As head of the state, Justice Rao said, the governor was obliged to represent the state’s concerns to the Union, not the other way around. Less than a year later, an unrepentant Ravi stated that a bill withheld by the governor was a dead bill, though the only constitutional right a governor had was to send a bill back to the assembly for reconsideration. In April 2023, the Tamil Nadu assembly passed a motion censuring the governor for withholding assent to fourteen bills, one of which had been pending assent for over four months and called upon President Draupadi Murmu to set a deadline within which governors had to approve bills, a call supported by the chief ministers of West Bengal and Delhi.
The most breathtaking assault on states’ rights was in Jammu and Kashmir, which fell under President’s rule when the BJP pulled out of its coalition administration with the regional People’s Democratic Party in 2018. On 4 August 2019, over 5,000 Kashmiris were arrested, including leaders of the chief regional political parties and their cadres, journalists and civil society activists. The next day, then President Ram Nath Kovind issued orders amending Article 370 of the Indian Constitution to remove Jammu and Kashmir special’s status. On 9 August, India’s Parliament passed the Jammu and Kashmir Reorganization Act, dividing the state and demoting it to a union territory. Never had a state been divided without its elected leaders’ consent. Nor had a state ever been demoted to a union territory
The presidential orders were issued solely with Governor Satya Pal Malik’s consent. On 4 August, just before the mass arrests, he publicly stated that there would be no alteration to Jammu and Kashmir’s status. On the morning of 5 August, he gave his concurrence to the presidential orders. He later claimed that he had received the draft orders only on the night of 4 August, with instructions to send his concurrence by 11 a.m. on 5 August, but gave no explanation of why he had obeyed.
The 1988 Sarkaria Commission and 2010 M.M. Punchhi Commission had both recommended that governors should be appointed only in consultation with chief ministers and removed only following a resolution by the state legislature, so that they fulfilled their constitutional duty of representing the states’ interests at the Centre. Both also recommended that politicians should not be appointed governors. Neither recommendation had been implemented, with the consequence that unfolded between 2019-2024; not even a fig leaf of gubernatorial protection remained for Indian states.
Radha Kumar is a writer and policy analyst.