The Kerala governor is under the delusion that he is not a titular head but one with substantial discretionary powers. He warned the ministers that he would “withdraw pleasure” from those who make statements that “lower the dignity” of the office of governor. This warning, issued through a public tweet, was soon followed up by a formal letter to the chief minister, making it clear that the state finance minister had “ceased to enjoy” the governor’s “pleasure” and demanding that appropriate constitutional remedy be taken.
This unprecedented action of the governor was universally condemned as unconstitutional. I have read five national newspapers editorially criticising the stand. It is true that the Constitution mandates a council of ministers to aid and advise the governor [Article 163 (1)], and the ministers shall hold office during the pleasure of the governor [Article 164 (1)].
But in between, there is Article 163 (2), which clarifies that the governor may act in discretion in certain limited matters as provided in the Constitution. It is very clear that in other general matters, the governor is bound by the advice of the council of ministers. Therefore, the governor can withdraw his pleasure with regard to a minister only on the advice of the chief minister. The Kerala chief minister immediately replied, expressing his full confidence in the minister. For him, that was the end of the matter.
Meanwhile, the governor opened up yet another war front with the vice-chancellors of universities, of which he is the chancellor. The chancellorship is not a constitutional position but one granted by the university legislation passed by the assembly. Therefore, his stand is that he has full discretion in university matters. For some time now, he has been harping on the deformities in the university system, and he received an opportunity to intervene after the Supreme Court held that the appointment of the vice-chancellor to the technical university was irregular and therefore void ab initio.
The Supreme Court was considering a private petition challenging the appointment of the vice-chancellor. The university laws provide for a search committee of three who could either submit a panel or a unanimous choice for the consideration of the chancellor.
But the current UGC regulation stipulates that a search committee of three to five members submit a panel of three before the chancellor. In the case of the technical university, only one name had been submitted to the chancellor. The challenge was turned down by a single bench and division in the Kerala High Court. But the Supreme Court overruled these decisions while passing judgment on the special leave petition.
The Kerala government has expressed its intention for going in for a review petition. It is a settled matter that if there is concurrent legislation by the Centre and the state, the provision in the Central legislation would prevail. But in this particular case, the UGC Act passed by Parliament does not have any provision regarding the appointment of the vice-chancellor. It had been introduced as part of the UGC Regulation of 2018, and such an executive order cannot claim precedence over an Act passed by the state legislature. It is also argued that this particular judgment does not apply to the realm.
The Supreme Court of India, as late as August 2, 2022 (Dr. J. Vijayan vs The State Of Kerala), had held, “Education now being a List III subject, the State Government is at liberty to frame its own laws relating to education in the State and is not, therefore, bound to accept or follow the Regulations framed by UGC.” In fact, such differences continue to exist in the statutes of universities that were legislated before the new UGC Regulation.
In short, the issue is not a settled one, but that would come under the review of the apex court.
But the governor is not amenable to a rational discourse and is in a tearing hurry to unsettle the entire higher educational system in Kerala and seek vengeance on the vice-chancellors who dared to challenge him. According to newspaper reports, he is even exploring legal grounds for impounding the emoluments they had drawn from the universities!
He lost no time in seizing the opportunity provided by the Supreme Court judgment regarding the technical university. Converting a holiday into a working day for his office, he shot off notices asking nine vice-chancellors who were selected in a similar manner to submit their resignations by 11.30 a.m on the next working day. The vice-chancellors approached the high court, objecting to the denial of natural justice, and the court upheld their prayer without prejudice to other substantial matters involved. The governor has reissued the notices demanding show cause. He is in such a tearing hurry to give temporary charges for the ousted vice-chancellors that information of all senior university professors is being gathered, disregarding university statutes that in such contingencies, senior-most professors must be given charge.
The governor is scheming for a coup d’état in the universities of Kerala. He would not abide by the advice of the council in the appointment of his representative in the search committee so that with the help of a UGC representative, the senate representative can be overruled in the preparation of the panel to be submitted to the chancellor. The Sangh Parivar has zero representation in any of the university bodies in Kerala. Now it can happen that all the vice-chancellors of Kerala could be of persuasions divergent from the ethos of the state and liberal moorings of the universities.
The only solution now left before the state government is to remove the governor from the chancellorship through an amendment in the university laws. But the governor has hinted that he would not sign such an ordinance or legislation. His counterpart in Tamil Nadu has already set an example.
What we are witnessing in Kerala is a total mockery of all democratic norms and undermining of the federal system. This situation is not something specific to Kerala alone: it is a general feature of most non-BJP-ruled states.
Dr T M Thomas Isaac
Former finance minister of Kerala