The Need for ‘Nudges’ by the Supreme Court of India: The Case of the Appointment and Removal of the Governors in India
| DOI | 10.1177/0019556119844596 |
| Date | 01 June 2019 |
| Author | Siddharth Peter de Souza,Aayush Agarwala |
| Published date | 01 June 2019 |
| Subject Matter | Articles |
The Need for ‘Nudges’
by the Supreme Court
of India: The Case of
the Appointment and
Removal of the
Governors in India
Siddharth Peter de Souza1
Aayush Agarwala2
Abstract
Recent instances of improper exercise of discretion by governors of Indian states
have once again underscored the need for a critical appraisal of the manner in
which such governors are appointed and removed under the Indian Constitution.
The gulf between what the role of a governor was envisaged to be by the
Constituent Assembly and what has actually played out in reality is a matter of
grave concern. It would not be wise for us to expect the legislature to provide
any solution to this problem, since the prevailing scenario plays to the advantage
of whichever party holds the reins at the Centre. The judgement of the Supreme
Court of India in the B. P. Singhal case made some important interventions as far
as this vexed issue is concerned. However, the much-needed panacea to the ills
of the process of appointment and removal of governors is still eagerly awaited.
In this article, we recommend that the Supreme Court of India adopts a more
contextualised approach to solving this intractable problem and considers adopt-
ing the ‘nudge theory’ to provide a framework to encourage important actors in
this context to take more responsible and fair decisions in order to protect and
preserve the democratic structures.
Keywords
Governor, appointment, removal, nudge theory, Supreme Court
Article
Indian Journal of Public
Administration
65(2) 390–408, 2019
© 2019 IIPA
Reprints and permissions:
in.sagepub.com/journals-permissions-india
DOI: 10.1177/0019556119844596
journals.sagepub.com/home/ipa
1 PhD Researcher, Humboldt University of Berlin, Berlin, Germany.
2 Advocate, High Court of Delhi and Supreme Court of India, India.
Corresponding author:
Siddharth Peter de Souza, Altes Palais, Raum 421, Unter den Linden 9, Berlin-Mitte, Berlin, Germany.
E-mails: sidesouza@gmail.com, siddharth.de.souza@rewi.hu-berlin.de
de Souza and Agarwala 391
Introduction
Ruling dispensations at the Centre have evolved a widely partisan tradition of
dismissing governors at the state level as soon as they assume power because
these officials have been appointed by the previous regime. The casual nature of
the appointment and removal process of a critical constitutional functionary has
had implications for India’s federal structure and the functioning and perfor-
mances of state governments for many years. Since the late 1960s, with the rise of
regional parties and non-Congress governments, the office of the governor has
been much maligned because these individuals act without a clear idea of their
constitutional role and obligations (Punchhi Commission|ISCS, 2010). The preju-
diced nature that the office has come to assume is well described by Mr Soli
Sorabjee, the eminent jurist, who points out that the governors often regard them-
selves ‘as the lackeys or employees of the Central government and readily act
according to its behest’ (Punchhi Commission|ISCS, 2010). This partisan conduct
has caused severe impediments to the goal of building a culture of cooperative
federalism in India.
Since early 2017, the role of the governor has come back into the spotlight. This
is because of intervening events in Manipur and Goa and the recent controversy
in Karnataka. In the first two instances, the governor departed from the estab-
lished practice of inviting the single largest party to form the government after the
elections, and instead allowed those who managed to cobble together the largest
post-poll alliances to form the government (Dhawan, 2017). This much-criticised
exercise of discretionary power was further complicated by alleged consultations
between the governors and members of the BJP-led Central Government, and
the influence these supposed conversations were said to have had on government
formation in the states (Livemint, 2017). On the other hand, in the Karnataka
fiasco, while the governor this time followed convention by inviting the single
largest party to form the government (the BJP), the manner in which this was
done clearly suggested partisanship—with the swearing-in ceremony ordered in
haste without adequate verification of the claim to majority by the invited party.
Thereafter, by giving the invited party a leisurely 15 days to establish majority
on the floor of the house, the situation in effect licensed a poaching market for
the BJP to cobble together the required numbers (The Times of India, 2018). The
fact that the governor served as a Cabinet Minister in Gujarat for almost 14 years
when the current Prime Minister, Narendra Modi, was its Chief Minister, was not
a mere coincidence in the eyes of many. Even the Supreme Court, pursuant to a
historic post-midnight hearing, was quick to call the bluff and directed the BJP to
prove its majority on the floor immediately, eventually leading to the embarrass-
ing resignation of the chief minister (Mittal, 2018).
An examination of these recent episodes suggests that merely laying down
guidelines or a code of conduct for the governors would not suffice, since
although in Manipur and Goa discretion was abused by not following the conven-
tion, in Karnataka, discretion was abused despite the governor ostensibly follow-
ing the accepted practice of inviting the largest party to form the government. This
article argues that in fact such improper exercise of discretion by the governor
To continue reading
Request your trial