Buck stops at Raj Bhawan

Being the Constitutional head of the state, the governor in our scheme of administration enjoys wide powers to ensure that the states are governed as per the law.

The Constitution also guarantees immunity to the governor under Article 361, which states that he shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in exercise and performance of those powers and duties.

But of late, following the advent of coalition politics in the absence of a clear mandate by the electorate, the office of the governor is adroitly used to foster particular political interest and, at times, itself becomes the primary reason for political instability. Exploiting such a situation to the hilt, the Union government, through the gubernatorial office, tries to step in by invoking power under Article 356 to impose President's Rule in the state.

“It is no doubt true that the governor is appointed by the President which means in effect and substance the Government of India, but that is only a mode of appointment and it does not make the governor an employee or servant of the Government of India,” the Supreme Court held in Hargovind Pant vs Dr Raghukul Tilak & Ors(1979).

So the governor’s office is to be an independent constitutional office which is not subject to the control of the Union government. Though treated as representative of the Centre, the mode of appointment can never legitimise any form of interference in the working of the governor, else the concept of “judicial independence” would not be tenable, as even the judges of the high courts and the Supreme Court are appointed by the President, said jurist V R Krishna Iyer.

In the past, some governors faced considerable criticism for utterly failing to show the expected impartiality, prompting the Sarkaria Commission to state: “A procedure must be devised which can ensure objectivity in selection and adherence to the criteria for selection and insulate the system from political pressures. Also, the new procedure must not only be fair but should be seen to be fair.”

It recommended that the Vice-President and the Speaker of the Lok Sabha should be consulted by the prime minister in selecting a governor which will greatly enhance the credibility of the selection process.

However, a change in government at the Centre has invariably seen several governors quitting office, fortifying the apprehension that they are appointed under the patronage system. As the NDA government took charge on May 26, 2014, 13 governors and one Lt Governor of a Union Territory tendered their resignations in no time.

Some of the governors demitted their office shortly after they were appointed by the previous UPA regime. “That is despite the fact, that a governor under Article 156(3) has a term of five years. One wonders, whether all these resignations were voluntary. The above depiction is not to cast any aspersion. As a matter of fact, its predecessor, the UPA government, had done just that in 2004,” noted the Supreme Court, while dealing with the case relating to judges’ appointment in 2015.

In this way, as the very appointment of governors comes under the cloud, it goes without saying they misused the emergency provision under Article 356 even on the slightest opportunity. B R Ambedkar believed that Article 356 would remain a dead letter, but it has been used over a 100 times since 1950, the latest being Arunachal Pradesh, bringing to the fore its misuse.

Cracking the whip

During the Constituent Assembly debates, Ambedkar said: “I feel that it (Constitution) is workable, it is flexible and it is strong enough to hold the country together both in peace time and in war time. Indeed if I may say so, if things go wrong under the new Constitution, the reason will not be that we had a bad Constitution. What we will have to say is, that man was vile.”

So when Delhi Lt Governor Najeeb Jung, Tripura Governor Tathagata Roy, UP Governor Ram Naik cracked the whip on the state governments, they faced howls of protest and were branded as agents of the Centre.

Among the criteria suggested by the Sarkaria Commission was that the governor must be a detached figure and must not have taken part in politics in the recent past. This has been totally breached by political parties, posing a serious threat to the federal structure and the Centre-state relations.

The Supreme Court’s judgments in S R Bommai v Union of India (1994) and Rameshwar Prasad v Union of India (2006) have laid down detailed guidelines to be followed by the governor and the Centre before dismissal of state governments and imposition of President’s Rule.

If the mandate suggested in the Bommai case that the majority enjoyed by the council of the ministers must be tested on the floor of the House is applied sincerely, there would be no occasion for the court to examine the materials behind the decision to impose President’s Rule.