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Sunday 26 March 2017
News updated at 2:06 AM IST

Need to restore credibility

Sudhanshu Ranjan March 21, 2017

Governors must live up to the dignity of office. They must be non-partisan, and only people of eminence should hold the august office.

The Congress has questioned the formation of BJP governments in Goa and Manipur and cast aspersions on the impartiality of governors of these states. The office of the governor is a hallowed one. In the Constituent Assembly, there was an extended debate on the utility of this post when states were going to have elected chief ministers. Apprehensions were also expressed about the potential of its misuse by the Centre. So, it was decided that an “Instrument of Instruction” would be provided to governors who would act according to it. But later, it was dropped thinking that they would act conscientiously. The institution worked well till 1967 when the Congress dominated the political scene in the whole country.

However, 1967 proved to be the watershed year of the history of post-Independence India as the Congress lost power in as many as eight states which formed coalition governments of non-Congress parties (Samyukta Vidhayak Dal). It also marked the beginning of the use of Raj Bhavan to destabilise the state governments led by non-Congress parties. Very few governors withstood the pressure of the Centre. B K Nehru was one such governor who refused to send report against the Farooq Abdullah government in Jammu and Kashmir in 1984, and Nehru was ultimately transferred.

State governments were dismissed at the drop of a hat and Legislative Assemblies dissolved until the Supreme Court put a brake on it in the S R Bommai case. The apex court ruled that dismissal of the state governments would be justiciable and the court could reinstate the dismissed state government if it found the dismissal unconstitutional. It also ruled that the dissolution of the Legislative Assembly would be subject to ratification by Parliament.

It is time to think of ways to make the institution of governor credible and effective. Though the governor has to act according to the aid and advice of the council of ministers, s/he has the full discretion to appoint the chief minister without any aid and advice. However, s/he must ensure that the person selected enjoys the confidence of the House. The tricky situation arises in case of fractured mandate.

The same applies to the President of India also who appoints the prime minister under Article 75 of the Constitution. This is the only exception where s/he is not bound by the advice of the council of ministers. In 1989, then president R Venkataraman invited Rajiv Gandhi first to form the government but he declined. Then he invited V P Singh, the leader of the Janata Dal, the second largest party, and he formed the government with the outside support of the BJP and the Left.

In 1996, President Shankar Dayal Sharma invited A B Vajpayee, the leader of the BJP which had emerged as the single largest party. He formed the government but had to resign after 13 days. After the recent Assembly elections in Goa, the Congress did not stake the claim, nor did it elect the CLP leader in time. The Supreme Court rightly snubbed the party saying that it could protest against the governor’s decision and sit on dharna before the Raj Bhavan.

Building consensus
Now that Manohar Parrikar has proved majority within 48 hours as directed by the apex court, the sting is out of the Congress’s allegation that Parrikar would be CM for 48 hours. If MLAs remain firm, even machinations of Raj Bhavan would not help. Nitish Kumar had to quit after seven days in Bihar in March 2000. The real crisis is that MLAs and MPs have become saleable and even the Anti-defection Act has failed to cleanse the polity.

There is a need to build a consensus to stop misuse of Raj Bhavan to harass the state governments led by opposition parties. Though the President enjoys only one discretion to appoint the prime minister, the Constitution bequeaths many powers to governor in national interest which must be exercised sparingly only in national interest. For example, the power to reserve a state bill is to be exercised in national interest but it is often used to harass recalcitrant state governments led by opposition parties.

This provision has been taken from the Canadian Constitution which is the first example of parliamentary federalism. It is also called the McDonald model of federal constitutional contract after Sir John A McDonald who participated in the Quebec conference that prepared the blueprint of the federal bargain on the basis of which the British Parliament enacted the British North America (BNA) Act, 1867 for Canada which was renamed as the Canada Constitution Act, 1867 and was supplemented by the Canada Constitution Act (1982). In Canada, this provision has not been invoked by any governor after 1943.

In India, not only state bills are reserved frequently, even state governments enjoying confidence of the House have been dismissed without giving any chance to the chief ministers concerned take prove their majority on the floor of the House. The Bommai judgement put a considerable check on it but other forms of misuse have not been checked.

Sarkaria and Poonchhi Commissions have made many recommendations which need to be actuated. Sarkaria Commission recommended to keep active politicians out of this job, but we have examples governors being brought to Rajya Sabha directly from Raj Bhavan by the ruling party as happened with A P Sharma in 1980s, or governors demitting their office to contest elections.

The governors hold constitutional posts and they must live up to the dignity of the office. They 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 to Review the Working of the Constitution. They do not have any security of tenure. So, only people of eminence with no lust for power are qualified for this post. It may be difficult to find such ideal people, but not impossible.

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