Government vs Governor in Kerala: issues galore

The ill-concealed tug-of-war between Kerala Governor Arif Mohammad Khan and the Kerala government would provoke thought, mirth and concern alike. The Left Democratic Front (LDF) and the government, combined with the universities on one side and Kerala governor on the other are involved in a political, administrative wrestling. The frictions that developed into warring postures have grown to such an extent that matters look definitely heading to a flash point with a kind of narrative that will lower the status of the positions of those involved.

Political patronage in the country in general, and in Kerala in particular, has always been used for favouritism and nepotism to give government largesse, mostly in the form of jobs, contracts or opportunities for profit making. In the process, the universities are no exception, for all the claims about their autonomy. The sole 'merit' to be eligible as beneficiary used to be either membership in or proximity to the party in power.

Vice Chancellor Appointment

In appointment of vice chancellors, mostly in line with the ruling party's wishes, both political fronts (CPIM-led LDF and the Congress-led UDF) alternating in power, live with some mutual compromises on the assumption that the ruling side is entitled to certain privileges. But the equations between the two rival fronts of Kerala, took on a different colour when the third party, on the sidelines of power, that of the Hindutva party BJP, found a plenipotentiary in the governor appointed by the Centre. After 2014, that enabled the party to poke its nose through the instrument of governor. The post of Chancellor came to be such a handy tool for him.

In the case of vice chancellor of Kannur university, months ago, the incumbent Dr Gopinath Ravindran was given a second term as per the wishes of the government (read CPIM). However, the relevant university acts do not guarantee the government having a free hand in all VC appointments, if the Governor/Chancellor stands in the way. The panel to nominate a VC consists of three nominees, one each of the Chancellor, UGC and the university. The government had been planning to end the upper hand of the Governor or the Centre in this mechanism by increasing the selection panel's strength to five, the additional hands being the Vice Chairman of the Higher Education Council (who will chair the committee) and a government nominee. The government could not enact this into law for want of sufficient preparation before the assembly session ended. Therefore it proposed to get an ordinance signed for this, among other ordinances whose earlier versions had timed out due to the convening of the assembly.

But the Governor outsmarted the Govt move by constituting a nominating body for Kerala University by appointing two nominees as per the existing provisions, and left vacant the government nominees. This happened on August 5. But before the panel could take any action, and the government did not suggest its nominee, the government is now planning to introduce the new bill amending the strength to five (the bill being tabled on Thursday in the Assembly). The bill is deliberately given retrospective effect from August 1, so as to make the Governor's August 5 appointment of the selection panel null and void.

The crux of the matter is that the panel in the existing dispensation can either recommend one candidate unanimously or give three names separately. In the case of the latter, the UGC nominee, in all likelihood in line with the Centre's wishes, may not toe the state government line and can nominate a candidate by himself. That can mean the VC being a central government nominee in effect. It is to preclude this from happening that a new amendment is mooted by the government for a five-member panel.

Varsity amendment Bills

But as at the time of writing this, the Governor has vowed that he will not sign any bill into law, that deprives the university of its autonomy or gives room for favouritism in appointments. Therefore, it is fingers crossed for the outcome of the face-off.

When the Governor refuses to sign a bill and sends it back, the Assembly can pass it again and resubmit it for signature; then the Governor will have no choice but to sign it, as implied in Article 200 of the Constitution which enables the Governor to return a bill, other than a Money Bill, requesting the assembly to reconsider it, including amendments he suggests. Once the House reconsiders and passes it again, with or without the changes, the 'Governor shall not withhold assent therefrom".

However, the point where the Constitution is silent is how long the Governor can take to give his assent. Although against the spirit of the constitutional provision, the Governor can/may sit on it for long, as a pressure tactic.

The Governor can as well, on the strength of the very article of the Constitution, choose to reserve the bill for the consideration of the President; and education is a subject under the Concurrent List where both the Centre and the State can legislate. The President can endorse the bill or if he disagrees with its content, can again send it for the state assembly's reconsideration, The legislature can enact the bill again and seek the President's assent, but the Article of the Constitution is silent on whether he is obliged to give assent to it or not, unlike the governor's obligation earlier stated.  A deadlock is likely in that case, but that will be seen as a highly undemocratic situation.

In any case, before all that ding-dong, the anomalous situation that will arise is of a Governor himself having to sign a bill aimed at clipping his own wings. Ample room for a confrontation.

At the background, there is already a series of cases where the Governor tried to put his foot down against the government position, in addition to non-administrative cases of confrontation.

When Kannur University vice chancellor Dr Gopinathan Raveendran's term ended, the government saw to it that his name was nominated for a reappointment. The Congress-led UDF opposition opposed it tooth and nail, citing UGC guidelines and in particular the fact that he would be above the age of 65 during the term and thereby ineligible for the post. But this time, the Governor, though he held the papers for a time, went by the rule book, and after due legal consultation signed the appointment, publicly saying that he was acting according to law. However, the High Court also rejected petitions challenging the appointment on grounds of age.

But later on, when he found it helping his thesis about the state government, he said in public that he had been under immense pressure, and made a concession to avoid a stalemate.

University appointment

Apart from appointment of VC, Kannur University has become his target on another issue too: appointment of Priya Varghese, the wife of the chief minister's private secretary, KK Ragesh as associate professor in Malayalam. Priya was ranked first in the final selection process based on the CV, the documents submitted, research records and experience. The allegation widely raised, including by the Opposition parties, is that her research score was much lower than the next ranked candidate and she was raised so by the department under impermissible influence.

Critics also point out that her stints in non-teaching and academic administration positions were also counted in total experience for teaching against UGC norms. The governor endorses this stance, and although her rank still stands, he stayed her appointment. A similar stay has been ordered by the High Court too, on a petition by the second ranked candidate Joseph Scaria. The court issued notice to the UGC for its clarification.

Personal Staff Pension

The defence of going by law and constitution has been a refrain of Arif Mohammad Khan in most of the cases, including those in which he was apparently playing to the Centre's script against Kerala government. But in some he does enjoy public support too. One is the pension given to personal staff of ministers. As per provisions existing in Kerala, personal staff are eligible for pension for service over two years and one day. This has been made use of by the CPM government to retrench staff on completion of the bare minimum requirement, and then to employ a fresh batch of staff, so that more party loyalists could benefit, i.e. in each cabinet term, two persons get pension for each post.

However, this amendment was brought in not by LDF but by the UDF ministry under the then chief minister K Karunakaran in 1994. This when any state government employee has to put in a minimum of ten years of service to be eligible for pension, that too at a graded rate according to length of service.

When he came to know this, Governor Arif Mohammad Khan summoned data and documents about it from the Chief Secretary. He has been on a mission to end the practice. He described it as a "gross violation and abuse of authority" and "misuse and abuse of money of people of Kerala". He brought the matter to the government's attention asking it to end the practice. About 20-25 personal staff are employed by each minister, much higher than in most states. More than that, he has gone public on several occasions making it a topic of discussion at a national level. Though the Governor cannot by authority cancel the provision, there can be a challenge in the court against the provision, and the fact that the amendments were brought in through Subject Committee decisions rather than the required legislative nod can cause problems for the state government.

Meanwhile, the provision for lifelong pension for personal staff had drawn flak from the Supreme Court also during March this year, which called it 'mystifying', during another case hearing.

However, as for the Governor's objection to pension, both the CPI ministers and the CPM leader were emphatic that these matters are not decided by the Governor, but by the government – an apparent word of defiance.

Another bone of contention between the Governor and the Govt arose from 11 ordinances that the government put before the Governor recently. Overwhelmed by their sheer number, Khan refused to sign them all blindly, and said he needed time to apply his mind. He desired each related minister to come and explain the case, ordinances being a stop-gap measure to address the immediate need for law when the assembly is not in session. The government refused to send ministers as suggested.

Lok Ayukta Bill

Among the ordinances under dispute,  and now to be replaced by a bill is one that will reduce the power of the Lok Ayukta.  Until now, the Lok Ayukta's decisions can result in the removal of ministers or public servants from their positions based on its findings about corruption,  maladministration or misuse of authority.  There is no provision for appeal against it.  In other words, the authority is both the investigator and judge,  and although its action does not constitute prosecution.  Hence Kerala's Lok Ayukta act passed in 1999 has for long been extolled as a robust anti-corruption law and a model legislation.  However, of late,  the current LDF government concluded that this unquestionable judgement model of the authority is against the principles of natural justice and constitutional premises, and an agency cannot be both the investigator and judge.  Critics point out that this rationale of the government was not borne out of any objective analysis of the Lok Ayukta mechanism,  but evolved to save current cabinet members including the chief minister in a charge of misuse of funds from chief minister's distress relief fund and ministers of the previous cabinet in nepotism cases.  The envisaged amendment seeks to provide for an appeal mechanism against any Lok Ayukta judgement consisting of designated officials. Although by merit,  many legal experts support the theory that a Lok Ayukta cannot remain an uquestionable authority, even competent to order removal of constitutionally appointed officials,  the current context of the government's involvement in cases under Lok Ayukta scrutiny,  makes it suspect.

Past confrontations

As a nominee of the current central government, that is politically aligned with the BJP, there was no love lost between Khan and the CPIM-led LDF government. That schism has triggered its own confrontations too. Two years ago, when the government's policy address at the assembly had contained adverse references to Modi's union government, Khan said he would not read that portion. But being bound to act as leader of the government, and under pressure, he read the speech with those references and temporarily pacified the opponents.

Again when the assembly met to pass a unanimous resolution against the Citizenship Amendment Act, he raised that issue, arguing that an assembly could not pass a resolution against what the parliament had passed. Further, when the state government approached the Supreme Court against the act, he tried to stop that too contending that without his consent as head of the government, it could not move the court on a law that was passed by the parliament. But many including noted constitutional experts pointed out that his position had no legal grounds.

A similar hostile situation emerged, based on the same rationale of Khan, when the Kerala assembly passed a resolution against the three farms passed by parliament.

In a way, originally Khan was gradually warming up to such situations peculiar to Kerala, or rather a non-BJP state government. Thus he gave in to many of the demands against his conscientious wishes including the VC appointments. But he found his wishes being thwarted, for example in his demand for Kerala University to confer honorary D Litt on then President Ram Nath Kovind. He felt virtually snubbed since the VC even publicly refused to consider the proposal.

Arif Mohammad Khan's gubernatorial indulgences have drawn as much flak as references to his past record of traversing through various parties. Starting from Charan Singh's Kranti Dal, through the Congress with a ministerial stint under Rajiv Gandhi, , and later with Janata Dal and BSP ending with BJP. Although Khan makes claims of uprightness and constitutionality in his decisions and actions, and despite the support he gets for some of them from Kerala's Opposition, many of his contentions fall flat before the yardsticks of merit and political neutrality.