The Supreme Court once interpreted the role of the Governors as a 'functional euphemism', acting promptly and only on the advice of council of ministers. It is inevitable that when some of them, as Chancellors of universities, sought to change this paradigm, it led to pushback from state legislative assemblies.
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PUBLIC Universities have always played an essential role in asserting political values, from J. P. Narayan's time to the student movements at Jawaharlal Nehru University. At the helm of these public universities in states sits the Governor of the state.
Justice V.R. Krishna Iyer had called the offices of the President and the Governors a 'functional euphemism', that is, he must act promptly on and only on the advice of the council of ministers.
In Maru Ram versus Union of India (1980), Justice Krishna Iyer wrote: "The President and the Governor, be they ever so high in textual terminology, are but functional euphemisms promptly acting on and only on the advice of the Council of Ministers save in a narrow area of power. So, even without reference to Article 367(1) and ss. 3(8)(b) and 3(60)(b) of the General Clauses Act, 1897, that in the matter of exercise of the powers under Articles 72 and 161, the two highest dignitaries in our constitutional scheme act and must act not on their own judgment but in accordance with the aid and advice of the ministers."
In the functioning of Governors as Chancellors of universities, however, there has been a shift away from what Justice Krishna Iyer interpreted as "functional euphemism". As a result, a few state governments have begun to deprive the Governors of their ex-officio role of Chancellors, through appropriate laws, especially where the Governors owe their loyalties to the political dispensation in New Delhi, which may be opposed to the ruling parties in the states.
The Mamata Banerjee-led government in West Bengal brought the West Bengal University Laws (Amendment) Bill, 2022, passed by the state legislative assembly, which aims to replace the Governor with the Chief Minister as the Chancellor of all state-run universities. Similarly, Maharashtra and Tamil Nadu recently passed bills slicing the power of the Governor in this regard. In 2013, the Narendra Modi-led Gujarat government brought the Gujarat Universities Laws (Amendment) Bill, 2013, which took all the powers of the Governor as Chancellor – the bill received the Governor's approval only in 2015.
The power of appointing Vice-Chancellors ('VCs') has been the central point of controversy in all these episodes.
History speaks for itself. There have been substantial miscarriages of their duties and evidences of playing partisan politics by Governors as Chancellors of state universities. This politics is common in the cases of state universities as they call for both the governments at the union and state levels to be involved.
“There have been substantial miscarriages of their duties and evidences of playing partisan politics by Governors as Chancellors of state universities. This politics is common in the cases of state universities as they call for both the governments at the union and state to be involved.
Legal academic Prof. R.K. Raizada, in his commentary Governor-Chancellor: A Round Peg in a Square Hole, published by the renowned Journal of Indian Law Institute in 1986, documents three cases of gross miscarriage. The first infamous case is of Hardwari Lal, who was made the VC of a prestigious public university in Haryana after leaving his assembly seat in the state. A written promise was made to him for two tenures of three years each. However, after many instances of various omissions and commissions were reported, no action was taken against him, except the promised second term was not given. The VC won his case in the Punjab and Haryana High Court for promissory estoppel against the Chancellor for renewal of his term.
In the second case, after the resignation of the governor-chancellor, the functioning of the VC was disrupted by the government, which led him to work only from his official residence. The third case documented corruption and manipulation of mark sheets by the governor-chancellor of another prestigious university, along with the Chief Minister ('CM'). The governor-chancellor helped in the manipulation of the marks of the latter's daughter. Such instances are now rife.
Such skirmishes are triggered by the emergence of state leaders and regional parties with a vacuum of a sensible federalist understanding. Two recent episodes over the conduct of the Karnataka Governor and the constitutional question over the Lieutenant Governor ('LG') of Delhi have exposed crevices in Indian federalism. The Supreme Court has intervened in such matters and pressed for preserving states' autonomy. In Government of NCT of Delhi versus Union of India & Anr. (2017), the court held that the real executive is the elected one, while the LG must act as per the 'aid and advice of the elected representatives.
However, federalism takes a fascinating turn when it comes to institutions of higher education, which often function as kindergartens of nascent politics. The Governor does not hold an elected office. He is an appointee of the President, who takes the Constitutional oath to act 'in accordance' with the aid and advice of the Council of Ministers. Thus, the Governor acts as the representative of the Union Government, through the President.
Generally, state legislation provides for the appointment of the Governor as ex-officio Chancellor of state universities, bestowed with the power of appointment of VCs and other such administrative functions. The combined reading of Articles 256, 257, and 154 of the Constitution places the Governor in a critical position to ensure compliance with the Parliament's laws regarding the executive power enjoyed by state governments. However, in the case of his position as the Chancellor, if the Governor disregards the aid and advice of the Council, especially in cases of appointment of VCs, it may exceed Constitutional duty.
“Generally, state legislation provides for the appointment of the Governor as ex-officio Chancellor of state universities, bestowed with the power of appointment of VCs and other such administrative functioning. The Governor is in a critical position to ensure compliance with the Parliament's laws regarding the executive power enjoyed by state governments. However, in the case of his position as the Chancellor, if the Governor disregards the aid and advice of the Council, especially in cases of appointment of VCs, it may exceed Constitutional duty.
As Chancellors, Governors are governed by the specific statute of the University. However, Article 163 of the Constitution has two interpretations for the functioning of governor-chancellors. First, the Governor, even as a Chancellor, must act on the aid and advice of the Council of Ministers. In Shamsher Singh versus State of Punjab & Anr. (1974), a seven-judge Constitution bench of the Supreme Court affirmed that all functions discharged by the Governor would have to be based on the aid and advice of the Council.
However, in his capacity as the Chancellor, another interpretation stems from other judicial pronouncements, which put forth the 'less-binding' nature of this aid and advice. The Punjab and Haryana High Court in Hardwari Lal versus G.D. Tapse & Ors. (1981) held that the discretion of the Governor is protected from the Council's aid and advice in his position as Chancellor of a University. Similarly, in Bhuri Nath & Ors. versus The State of Jammu & Kashmir & Ors. (1997), the Supreme Court, while dealing with the question of the Governor's powers as the ex-officio chairman of the Shri Mata Vaishno Devi Shrine Board, held that the specific statute (that is, the Jammu and Kashmir Shri Mata Vaishno Devi Shrine Act, 1988) had entrusted powers to the Governor in their official capacity. Therefore, they are not bound by the aid and advice of the Council of Ministers as per Article 163(1) of the Constitution.
In the dearth of judicial pronouncements explicitly dealing with the Governor-Chancellorship, the direction can be sought by applying the test of Nabam Rebia & Bamang Felix versus Deputy Speaker & Ors. (2016) to the Chancellorship of the Governor. In this case, it was held that the discretion of the Governor has to be limited and not arbitrary or fanciful – which means that the appointment of VCs must uphold the academic standards of the institutions in question.
The Commission on Centre-State relations had recommended that the Governors must not be burdened with powers which invite public criticism or controversies. The Constitution does not envisage the Chancellorship position for Governors. Therefore, they must not be loaded with it. The office of the Governor, as per the Constitutional mandate, is not in complete sync with the statutory position.
“The Constitution does not envisage the Chancellorship position for Governors. Therefore, they must not be loaded with it. The office of the Governor, as per the Constitutional mandate, is not in complete sync with the statutory position.
Fostering ideas and academic growth is urgently needed to depoliticize educational spaces. The National Education Policy, 2020 has pressed on this node for giving more autonomy to academic institutions. The concentration of power in the hands of either governors or CMs that may not have much to do with forwarding the goals of education in these institutions has led to the current travesty of education. The idea must be to concentrate powers in a much more democratic fashion with autonomy to universities. Until then, the Indian aspiration of dominating higher education will remain a dream.