Lessons in Governance

The Kerala High Court revoking Governor Arif Mohammed Khan’s nominations to the University of Kerala’s Senate is a lesson in the limits of power enjoyed by such constitutional offices. The rift between centre-appointed governors and state governments is becoming a controversial issue in many states

The Kerala High Court’s order cancelling the governor’s nominations came with this caution: “There is no unbridled power vested with the Chancellor (the Governor) while making the nominations in terms of the statutory provisions.” The Court directed Governor Arif Mohammed Khan to choose new candidates within six weeks, but did not interfere with the nominations of the state government to the Senate of the Kerala university. According to Justice Mohammed Nias CP: “The nominations will have to be interfered with by the constitutional courts” if a nomination is made in violation of the law or if unrelated circumstances were taken into account when making the decision.”

The Court said that any arbitrary use of power violates not only the rule of equality enshrined in Article 14 of the Constitution, but also the rule of discrimination inbuilt in Article 16. The exercise of any power, whether statutory or constitutional, is incompatible with an uncontrolled, unrestrained, and unbridled power. The Court further ruled: “It is a well-known fact that the standards of reasonableness, rationality, impartiality, fairness, and equity are inherent to the exercise of discretionary power and can never be according to any private opinion.” The Court declared: “Under such circumstances, the nominations made (by the Chancellor) are to be interfered with and therefore, they are quashed.”

The decision was taken in response to two separate appeals filed by four university students contesting Khan’s Senate nominees in the fields of fine arts, sports, humanities and science. The petitioners had claimed that the chancellor had disregarded established protocols and individuals who lacked merit in comparison to them had been nominated to the Senate. 

The Court directed Khan to “make fresh nominations considering the claims of the writ petitioners as well” and in tune with the provisions of the Kerala University Act, 1974. “This shall be done within a period of six weeks from the date of receipt of a copy of this judgment,” it said allowing the two petitions challenging the chancellor’s nominations.

The Court said in its ruling that although the Act did not specify a procedure in this regard, it requires that the nominees possess exceptional academic ability in the humanities as well as exceptional competence in the other three areas. The term outstanding ability certainly denotes a superior ability or performance. No credentials of the respondents (nominated students) are shown which makes them superior to the writ petitioners. No single factor of the nominated students is shown superior to the abilities of the writ petitioners. 

The Court ruled that “it is true that there is some discretion involved in the selection process and it is merely a nomination. Despite the fact that it is merely a nomination and not a selection, the eligibility requirements outlined in the statute cannot be overlooked.”

In the third petition, which contested the state government’s Senate nominations, the petitioner stated that the nominees were ineligible to serve as government representatives because they had multiple criminal records and no prior experience in higher education. The Court dismissed the petition, finding that it was “difficult to hold that they are not from the field of higher education” after reviewing the government representatives’ credentials. The Court further stated that the criminal cases filed against the nominees were related to their public life activities, and other than that, none of the cases have been adjudicated by a court to find government representatives guilty of the offenses claimed. Consequently, the pending status of the cases should not be interpreted as a bar to nomination for the respondents. Further, the Court declared that there was no merit to interfere with the nomination because it was determined that the nominees were not unrelated to the field of higher education. As a result, the writ petition was dismissed.

The ruling Left Front government in Kerala and the CPI(M) in particular applauded the High Court’s ruling. According to state Law Minister P Rajeev, the university chancellor cannot be viewed as a “sovereign republic”. MV Govindan, the state secretary of the CPI(M), described the Court’s ruling as a blow to the governor’s “political games”. He claimed that although the state government had sent a panel of students who were outstanding in their fields, Khan had broken the rules by putting Sangh Parivar members on the Senate for political reasons. Govindan further argued that the Court’s ruling makes it obvious that the government is taking the right approach to higher education, but the governor was not. The order, according to the state secretary of the CPI(M), exposed the Sangh Parivar’s alleged interventions using the governor to instigate a crisis in the state. It was also a setback for the leadership of the BJP and UDF, who backed Khan’s actions and opposed the government. He said that the decision would have an impact on Khan’s purportedly improper nominations to other universities.

In 2022, the Kerala High Court had cancelled the appointment of Dr Riji John as vice-chancellor of Kerala University of Fisheries and Ocean Studies. The Court had deemed the appointment illegal, stating that guidelines laid down by the University Grants Commission (UGC) were violated in the process. The UGC is a statutory body under the Ministry of Education, Government of India, that oversees the functioning of higher education institutions across the country. The Court had directed the chancellor of universities, the post held by the governor to appoint a new vice-chancellor in line with UGC guidelines.

This move came after the governor last month asked vice-chancellors of nine universities, including Dr John, to step down, flagging alleged violation of UGC norms in their appointments. The state cabinet voted to bring in an ordinance or special order to remove the governor as chancellor of universities. However, Kerala law minister, P Rajeev, said they were not trying to curtail the powers of the governor and that the vice-chancellor should be an eminent person from the education field. Khan said if the ordinance was sent to Raj Bhavan, he would refer it to the president.

Previously in recent years, it was seen that the misuse of the post of chancellor by Khan was not an isolated issue. In many opposition-ruled states, the governors have been interfering in the affairs of state universities and creating hurdles in the appointment of vice-chancellors and key personnel. In Punjab, Governor Banwarilal Purohit had rejected the appointment of a noted cardiologist as the vice-chancellor of Baba Farid University of Health Sciences. After that, the governor had asked the chief minister to remove the vice-chancellor of Punjab Agricultural University, terming his appointment as “illegal”. 

State assemblies in Tamil Nadu, West Bengal and Kerala had adopted new laws or amendments to prevent governor’s interference in state universities. Kerala’s University Laws (Amendment) Bill increased the selection committee’s strength to five, but the governor did not assent.

In the case of Khan, when faced with criticism about his obstructionist role, he threatened to withdraw his “pleasure” from any minister who dares to criticise him. He announced that he had “withdrawn pleasure” from state finance minister, KN Balagopal and asked the chief minister to remove him from the cabinet. Thus, he began to exercise powers that he does not possess under

the Constitution. 

The remedy to governors’ interference in the appointment of vice-chancellors is to stop the practice of making governors as chancellors of universities. This was the recommendation of the MM Punchhi Commission on centre-state relations appointed by the UPA government. The Commission had recommended ending the convention of appointing governors as chancellors of universities.  

The latest judicial ruling only seems to strengthen that view. 

—By Abhilash Kumar Singh and India Legal Bureau