What constitutional norms?

‘State’ Of Head

By Poonam I Kaushish

It’s a killer world and everything topsy turvy! First there’s the Parliament logjam, a tussle between BJP and Congress over Rahul’s “anti-national remarks of ‘democracy in danger,” in Oxford. While Saffronites demand his apology, 16 Parties alongside Congress yell for a JPC on Modi ‘friend’ industrialist Adani over the Hindenberg report. Second, Gubernatorial actions are again in the eye of storm in Supreme Court.

The Court’s strong words “Governor Koshyari’s actions in calling for a floor test resulted in fall of a legitimately established and functioning Thackeray led Government. This raises serious concerns regarding exercise of powers by the Governor….he should not enter an area which precipitates Government’s fall….. This undermines democracy and is sad spectacle for democracy,” while hearing the Shiv Sena split case with Thackeray questioning the foundation of the Shinde Government as he with 15 rebels were disqualified at time of the trust vote.

This is just one thin edge of the wedge. The Court is also hearing Telangana Government’s petition accusing Governor Soundarajan of “sitting” on 7 Bills pending since September last, thereby creating a “Constitutional impasse which is irregular and illegal.” Ideally, Article 200 states, Governor could return Bills for reconsideration but once the Houses reiterates them he could not withhold assent.

Earlier the Court in a Punjab Chief Minister vs Governor case said, levels of discourse should not degenerate into a “race to the bottom.”  Both Rajasthan and West Bengal have passed laws against gubernatorial interference in education. In Rajasthan, the Governor has been facing allegations of appointing Vice-Chancellors with an RSS-BJP ideology in 7 of 8 universities, 6 of whom are from outside Rajasthan.

Less said the better on ex-Jharkhand Governor Bais sitting on Election Commission’s opinion on Chief Minister Soren’s disqualification over a mining contract for 6 months, prior to moving to Maharashtra last month. Other friction points are Governor’s refusal to convene Assembly sessions, university Vice Chancellor’s appointments etc.

Lamented a former Governor, “The Centre is making a big  blunder. This type of narrow politics will harm the country. None has thought about its long-term repercussions. Myopia has replaced a broader vision, leading to a blinkered approach”, he added.

Undeniably, these incidents again underscore the problem is sharply getting worse.  Tamil Nadu, Kerala, Rajasthan, Chhattisgarh, Delhi and West Bengal have all cried hoarse of slowing down or gubernatorial meddling in State Government’s functioning.

Why blame Soundarajan, Bais or Koshyari? Instances of Governors ‘misinterpreting’ the rule book, drawing his own conclusions based more often than not, on delusions so that he and his benefactors at the Centre could rule the roost are aplenty. Meghalaya 2008, Karnataka 2007, Goa, Bihar and Jharkhand 2005. What to speak of 1971-81 during which in all 27 State Governments were dismissed by mis-utilizing the Governor’s office. By 1983 President’s Rule was imposed 70 times.

The Centre is also wary of States where regional Parties are ruling with wafer-thin majorities, leading to political instability. The Governor is often used as a lever, facilitator and at worst, a proxy of the Centre’s nefarious designs to install its own Government, at any cost thus bringing the post into severe disrepute.

Today, unfortunately, the prism of time has distorted the role a Governor plays. Sadly our leaders have collectively quietly buried Constituent Assembly debates which crafted a neutral and sanguine role for a Governor who was supposed to be the Constitutional watchdog. Said Ambedkar, “The Governor has no functions which he can discharge by himself at all….he is bound to accept the advice of the Ministry.”

However, politics overshadowed the gubernatorial post. The first row was in 1952 in Madras.  Governor Sri Prakasa’s was accused of acting inappropriately when he invited C Rajagopalachari to form the Congress Government despite not fighting polls and elected as MLA. After that, manipulations and machinations took place regularly.

What’s new? Various Congress, Janata Dal, United Front, NDA  regimes since the 1970s have eroded gubernatorial impartiality without outwardly violating the letter of the Constitution. Trust them to find a lacuna and brazenly and blatantly exploit it. By merrily taking advantage of the “silence” of our Constitution framers.

Undoubtedly, the Governor has got multiple discretionary powers but his unrestricted power to forming the Government is the most important and controversial one. After the 42nd Constitutional Amendment Act, Ministerial advice was made binding on the President, but not on the Governor which has led to unseating of democratically-elected Governments..

As things stand today, the Governor is a political appointee and due to real politik demands his allegiance to the Party at the Centre is over-arching. The post is seen as a perfect lollypop for political castaways, parting gifts for subservient bureaucrats and convenient posts for inconvenient rivals, totaling over 60% today. His essential criteria:  whether he can be a chamcha .Consequently, the Governor has become a convenient tool of the Centre specially in Opposition-ruled States where he runs the administration by proxy.

Clearly, none of this is conducive to healthy democracy. For too long, Governor’s have been perceived to be following the Centre’s writ, whichever be the Party in the Centre. One way to stem the spiral of ruinous clashes is to urgently review appointments and removal of Governors.

A good Governor can do a great deal of good and a great deal of mischief if he is a bad Governor, in spite of very little power given to him under the Constitution.

Two, Governors must be accountable to not just the Centre but also the State and Rajya Sabha. House of Elders could also screen prospective candidates who should be interrogated, investigated and judged on suitability before confirmation. The President too should not just act on the aid and advice of his Council of Ministers but could lay down guidelines wherein he is not misled about a person’s political affiliations and politics and only those citizens appointed who are politically neutral.

To curtail the Governor from playing politics in the Chief Ministerial stakes, the National Commission to Review the Working of the Constitution headed by Justice Venkatachaliah, advocated significant changes. It wanted the Chief Minister to be directly elected by the Assembly to obviate the need to test majorities in the Raj Bhawan. The Commission was of the opinion that this would combat the growing menace of horse-trading (sic.).

Pertinently, the Sarkaria Commission and Justice Punchhi report noted the Governor’s role was that of “a Constitutional sentinel and vital link between the Union and the State…Being the holder of an independent Constitutional office, the Governor was not a subordinate or subservient agent of the Union Government.”

He should be eminent in some walk of life, a person from outside the State, be detached and not intimately connected with local politics of the State and a person who has not participated in politics generally, particularly in the recent past. It also suggested he be appointed in consultation with the State Chief Minister. This was endorsed by the Supreme Court.

Certain amendments need to be made to streamline the position of Governor, improve the quality of incumbents and provide dignity to this august office. Given the growth of regional Parties, some of which lack a national perspective and remain embedded in parochialism and identity politics, makes the case for good democratic Governors all the more compelling. What gives? ——  INFA