Image Courtesy: The New Indian Express

The present government in the state of Kerala has been operating in a caretaker mode since the general elections’ results have been duly notified. The incumbent coalition government has recently secured an undisputed majority to continue in power, and the new ministry is all set to swear in this week. However, the ‘prorogation’ (though the previous assembly was formally dissolved) has irked leaders of the opposition political parties to question the propriety of a caretaker chief-minister ruling the state in challenging times. Barring the political misgivings, confusions exist as to the powers (and the lack thereof) of a caretaker government. Amid the pandemic and the catastrophe caused by rainstorms, it is particularly imperative to clear the clouds surrounding the actions of the caretaker government(s). Thus, in this paper, we look at some questions relating to the legality and propriety of the actions during the ‘change of the guard’.

Not a question of law 

The concept of caretaker administration is no novelty for the country. Many instances demand the President or the Governor, as the case may be, to put a caretaker government in command. However, there are no specific references to the concept in the constitution, and thus a strict usage of it would be a misnomer in many situations. In this regard, a remotely relevant provision is Art 356 in the Constitution of India, which demands the President’s rule when the constitutional machinery in a state fails. The recent incidents unfolded in the State of Maharashtra make an excellent case of impropriety in this connection. However, drawing a parallel between the President’s rule and a caretaker ministry (let alone the Kerala situation) would be meaningless. The past and present political controversies and the related judgements from Indian courts are also not germane to the Kerala situation.

But a question of legitimacy 

In the absence of law, the institution of a caretaker government is governed by conventions. Even the conventions on this parliamentary practice largely remain uncodified around the world. According to conventional wisdom, caretaker governments come into existence usually when a parliament or legislative assembly is dissolved before general elections. It remains in power until the results of the election are declared. The rationale behind this arrangement is to manage the routine things of a government. This interim government must supposedly refrain from taking major policy decisions. It is as good as a typical government for all practical purposes but need not be accountable to the people. The non-accountability factor should compel the interim government to abstain from handling radical aspects of governance.  

Of course, the present political situation in Kerala has no potential to generate political controversies. In other words, issues of impropriety need not apply here as the interim chief minister in Kerala has a clear mandate of the people to form the government. Further, high-level decisions by an interim government binding an incoming government will not be a problem when they are the same for all practical purposes. However, the chosen party ought to have assumed power at the earliest opportunity by taking the oath of office. While the Representation of Peoples Act, 1951 states that a legislative assembly is deemed to be constituted when the election results are duly notified in the official gazette, it is for the Governor to swear the newly elected members to constitute the assembly formally. Albeit this constitutional authority vested in the Governor, it is for the chief minister-designate to put the process in motion. Though it is reasonable for a coalition system to take extra time to arrive at crucial decisions such as ministerial portfolios, the delaying of the government formation questions conventional wisdom. A few other notional questions may arise in the background, such as, how should the caretaker government manage public expenditure? and what is the extent of their control over bureaucracy. In the absence of a manual, such policy issues would remain unanswered.  

Fortunately, Kerala’s social capital is enriched with local self-governments, community organisations, and religious institutions, which play a significant role in managing the crisis times. However, highly coordinated actions and political leadership in the important ministries concerning the life and security of the citizens are the need of the hour when the state is struggling through unprecedented challenges. Swearing in is a sine qua non for the effective coordination of ministries and the electorate’s trust in the accountability of their representatives. It may make little sense for someone to argue that the caretaker government in Kerala is illegitimate, especially when the swearing-in has not unreasonably been delayed.  Still, in the light of the exceptional circumstances that demand critical decisions to be made by a caretaker chief minister, a question of legitimacy gains significance – was the hastily conducted general election justifiable? Any delay, howsoever short, is a challenge to the voters in a liberal democracy.

Views expressed by the author are personal and need not reflect or represent the views of Centre for Public Policy Research.

Dr Harisankar K Sathyapalan
Dr Harisankar K Sathyapalan
Dr Harisankar K Sathyapalan is Research Fellow (International Law and Dispute Settlement) with the CPPR Centre for Comparative Studies. He is currently Assistant Professor at the School of Legal Studies, Cochin University of Science and Technology (CUSAT), India. He holds a PhD (Faculty of Law, National University of Singapore) and an LLM (Indian Law Institute, New Delhi). Hari’s research interests include transnational commercial law, conflict of laws and international dispute resolution.

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