Governors and political hubris

Many constitutional functionaries like attorney-generals and governors are changed after change of regime at the Centre as they do not have any security of tenure. But Opposition parties castigate the government only when governors are bundled out before the expiration of their term. The Bharatiya Janata Party government’s move to change governors of some states has naturally drawn the ire of the Congress Party though it did the exact same thing in 2004 and even earlier. In 2004, when it removed four governors on the ground that they were active functionaries of the Rashtriya Swayamsevak Sangh, the Leader of the Opposition, L.K. Advani, described it as a “dangerous” precedent and forced a debate on the issue in Lok Sabha under Rule 193 of Rules of Procedure and Conduct of Business in Lok Sabha.

According to Article 156(1) of the Constitution, the governor holds office during the pleasure of the President, and Article 156(3) provides that subject to the President’s pleasure, a governor shall hold office for a term of five years. Thus, it is clear that President’s pleasure gets precedence over the term of the governor. But the way governors are eased out of their offices has raised questions about constitutional propriety. In May 2010, a five-judge Constitution bench of the Supreme Court held that notwithstanding the fact that a governor holds office during the pleasure of the President, and that it is not imperative to give reasons or notice for his/her removal from office, nonetheless, the President should act in a manner that is not arbitrary or unreasonable. The court added that where a prima facie case of arbitrariness or mala fide decision is made out, the court can ask the Union government to produce records/materials to satisfy itself that the withdrawal of pleasure was for compelling reasons.

The court ruled, “Governor is… not an employee or the agent of the Union government nor a part of any political team. On the other hand, a minister is a hand-picked member of the Prime Minister’s team. The relationship between the Prime Minister and a minister is purely political. Though the attorney-general holds a public office, there is an element of lawyer-client relationship between the Union government and the attorney-general. Loss of confidence will therefore be a very relevant criterion for withdrawal of pleasure, in the case of a minister or the attorney-general, but not a relevant ground in the case of a governor.”

It is true that the relation between the attorney-general and the government is that of lawyer and client, but s/he is not meant to further any partisan interest. That is why H.M. Seervai did not resign as the advocate-general of Maharashtra despite the change of government. However, so far as the governor is concerned, s/he is not an agent but a representative of the Centre under Articles 200, 356, 139(2) and 371 of the Constitution. Under Article 200, the governor can reserve a state bill for the consideration of the President. In some cases it may be legitimate to do so. For example, a bill which in the opinion of the governor would, on becoming a law, so derogate from the powers of the high court as to endanger its constitutional role or status.

So the governor has to be impartial. If a governor appointed supports the state government in its anti-national activities, the Union government cannot trust him/her. Loss of faith can be grounds for removing anyone — be it a governor or an attorney-general. But it should be genuine loss of faith, not just political considerations.

The bitter fact is that many governors have allowed themselves to be used as the hatchet men of the Union government. The power given to the governor to reserve a state bill is to be exercised in national interest, but in reality it is often used to harass recalcitrant state governments led by parties who are in Opposition at the Centre.

In India, state bills are reserved frequently, and even state governments enjoying confidence of the House have been dismissed without giving any chance to the chief ministers concerned to prove his party’s majority on the floor of the House. The Supreme Court applied the brakes on the whimsical invocation of Article 356 by pronouncing, in S.R. Bommai v. Union of India, that the dismissal of any state government is subject to judicial review, and the court can revive the dissolved Legislative Assembly.

Governors hold constitutional posts and they must live up to the dignity of the office. Many a time governors resign in order to contest elections. Nikhil Kumar resigned as Kerala governor just before the Lok Sabha election and contested as a Congress candidate. A.P. Sharma, the governor of West Bengal, resigned to come to the Rajya Sabha during the Rajiv Gandhi government. Governors must be non-partisan, and only people of eminence should hold the august office as recommended by the Sarkaria Commission as well as the National Commission set up to review the working of the Constitution. Indian Constitution is the first parliamentary federal Constitution in the northern hemisphere. Federalism is needed to keep a country together which is multi-lingual, multi-religious and multi-ethnic.

Great Britain is a unitary country which has only given some devolutionary power to its provinces, but it encouraged federalism in its colonies, be it Canada, Australia or India. Many say that Ireland would not have seceded from the UK had it followed true federal principles. Now there is going to be referendum in Scotland whether it would like to remain with the UK or become an independent country.

The US gave the first federal Constitution to the world but it is presidential federalism. The Continental Congress drafted the Articles of Confederation in 1776 and gave almost all powers to provinces. President George Washington became so weak that he could virtually do nothing. Then the Philadelphia Convention (1787) drafted the federal Constitution which was ratified by provinces. The moral is that the Centre should be strong but the rights of provinces should be honoured, and governor is a vital link between the two.

The writer is the author of Jayaprakash Narayan:
Prophet of People’s Power and Justice, Judocracy and Democracy in India