The Impartial Governor
Pradeep Baisakh
Pradeep Baisakh
The SC finally declared the order pronounced on 22nd May by the Union Government to dissolve the Legislative Assembly of the state of Bihar, which was taken on the basis of the report of the Governor Buta Singh, as unconstitutional, but did not undo the damage, probably because its too late reverse the process. It remains to be seen what strictures the apex court issues in its final verdict to prevent such actions in future. After the famous Bommai judgement it was hoped that the era of using the governors of the States by the centre as puppets to settle the political scores over the rivals may come to an end, but the recent three incidences, namely the Goa, Jharkhand, and Bihar have dashed such hopes. The problem lies more in the provisions of the constitution guiding the appointment, tenure and his powers than the persons holding the post. A thorough analysis follows.
Two Hats
The Governor of a state is supposed to wear two hats, one as the constitutional head of the state and the other as the representative of centre. However in most instances he has acted rather as an agent of the centre as in above cases. The Governor enjoys discretionary powers under Art-163 (1) of the Constitution. The article however does not define as to what exactly constitute the discretionary powers of the Governor.Art-163 (2) simply makes the Governor the sole authority to decide-‘whether any matter is or is not a matter as respects which he is by or under the constitution required to act in his discretion’. This leaves substantial scope for the Governor in the state and his mentor – the ruling establishment at the centre, to twist the system with all impunity for the political advantage of the latter. The Governor, in numerous instances in past, has misused his office to recommend President’s rule in order to bring down the rival State Governments. He has similarly acted ‘in his discretion’ in appointing the chief ministers in a state in case of hung assemblies suitable to the interest of the ruling party at the centre. And in the case of Bihar he has acted in a very novel way as a loyal agent of the centre to prevent the rival group to stake claim. In fact, what else is he expected to do if he enjoys no security of tenure and when the continuity of his office depends on the sweet will of the ruling party/coalition at the centre? What merits discussion here is the background on which such discretionary powers were contemplated by the Constitution makers for the Governors. During the making of the Constitution the Indian states, through legally were made units of the union of India, they were not emotionally so integrated. Fissiparous tendencies were at their peak among the states and forces that wanted segregation from the union of India were hyperactive. There was real danger of these forces succeeding in their evil designs if necessary precautionary control were not ensured. Therefore the institution of Governor was so designed that the centre could keep a constant watch over the functioning of the states and can exercise control over them through him by making use of latter’s discretionary power and otherwise; and in extreme cases where there is a breakdown of Constitutional machinery in any State, the Centre could declare emergency basing on the reports of the Governor(or otherwise) and take over the administration of the state to its own hand. Arrangements were also made so that the states would not have any power to challenge the decisions and position of the Governor in any circumstance. However it was least expected by the fore fathers that such a well- intentioned arrangement would be so unceremoniously used by the later generation of politicians.
The Governor of a state is supposed to wear two hats, one as the constitutional head of the state and the other as the representative of centre. However in most instances he has acted rather as an agent of the centre as in above cases. The Governor enjoys discretionary powers under Art-163 (1) of the Constitution. The article however does not define as to what exactly constitute the discretionary powers of the Governor.Art-163 (2) simply makes the Governor the sole authority to decide-‘whether any matter is or is not a matter as respects which he is by or under the constitution required to act in his discretion’. This leaves substantial scope for the Governor in the state and his mentor – the ruling establishment at the centre, to twist the system with all impunity for the political advantage of the latter. The Governor, in numerous instances in past, has misused his office to recommend President’s rule in order to bring down the rival State Governments. He has similarly acted ‘in his discretion’ in appointing the chief ministers in a state in case of hung assemblies suitable to the interest of the ruling party at the centre. And in the case of Bihar he has acted in a very novel way as a loyal agent of the centre to prevent the rival group to stake claim. In fact, what else is he expected to do if he enjoys no security of tenure and when the continuity of his office depends on the sweet will of the ruling party/coalition at the centre? What merits discussion here is the background on which such discretionary powers were contemplated by the Constitution makers for the Governors. During the making of the Constitution the Indian states, through legally were made units of the union of India, they were not emotionally so integrated. Fissiparous tendencies were at their peak among the states and forces that wanted segregation from the union of India were hyperactive. There was real danger of these forces succeeding in their evil designs if necessary precautionary control were not ensured. Therefore the institution of Governor was so designed that the centre could keep a constant watch over the functioning of the states and can exercise control over them through him by making use of latter’s discretionary power and otherwise; and in extreme cases where there is a breakdown of Constitutional machinery in any State, the Centre could declare emergency basing on the reports of the Governor(or otherwise) and take over the administration of the state to its own hand. Arrangements were also made so that the states would not have any power to challenge the decisions and position of the Governor in any circumstance. However it was least expected by the fore fathers that such a well- intentioned arrangement would be so unceremoniously used by the later generation of politicians.
Two Issues
Therefore two issues need discussion here. One is relating to the procedure of appointment of the Governor and his continuity in the office. The other is relating to the power of Governor in the appointment of the Chief Minister of the State. The Sarkaria Commission and the National Commission for the Review on the Working of Constitution (NCRWC) conducted thorough study over the issue and made necessary recommendations. On the issue of the appointment and tenure of the office of Governor the suggestions of the two commissions are broadly as follows:
(a) The person to be appointed as a Governor
(i) Should be an eminent person;
(ii) Must be a person from outside the State;
(iii) Must not have participated in active politics at least for some time before his appointment
(iv) He should be a detached person and not too intimately connected with the local politics of the State.
(b) The appointment of Governor should be madesss by an impartial committee that includes the Chief Minister of the state.
(c) His tenure should be fixed and not subject to the ‘pleasure of President’
(d) The states should be given the power to impeach the governor in a similar manner to that of the President
The above recommendations primarily focus on appointment of eminent apolitical persons to the office and for the security of tenure of the same so that he can act independently and impartially.
Appointing CM
Therefore two issues need discussion here. One is relating to the procedure of appointment of the Governor and his continuity in the office. The other is relating to the power of Governor in the appointment of the Chief Minister of the State. The Sarkaria Commission and the National Commission for the Review on the Working of Constitution (NCRWC) conducted thorough study over the issue and made necessary recommendations. On the issue of the appointment and tenure of the office of Governor the suggestions of the two commissions are broadly as follows:
(a) The person to be appointed as a Governor
(i) Should be an eminent person;
(ii) Must be a person from outside the State;
(iii) Must not have participated in active politics at least for some time before his appointment
(iv) He should be a detached person and not too intimately connected with the local politics of the State.
(b) The appointment of Governor should be madesss by an impartial committee that includes the Chief Minister of the state.
(c) His tenure should be fixed and not subject to the ‘pleasure of President’
(d) The states should be given the power to impeach the governor in a similar manner to that of the President
The above recommendations primarily focus on appointment of eminent apolitical persons to the office and for the security of tenure of the same so that he can act independently and impartially.
Appointing CM
Constitutionally on the issue of the appointment of the Chief Minister the position of Governor is no different from that of the President of India vis-à-vis the Prime Minister. In case of a hung assembly the Governor has two options. (a) Conventionally he may invite the leader of the single largest party or group (the pre-poll alliance group) to form the Government. This is the ‘principle of non-assessment’ (b) He may explore all the options of satisfying himself that the appointed Chief Minister would provide a stable government. This is ‘principle of assessment’. The first proposition is free from controversy. In the exercise of the second option however, the President Mr. K.R.Narayanan set a healthy example in the year 1998 when the general election sprang a hung Parliament. In order to objectively satisfy himself he asked different claimants for the post of Prime Minister to submit the letters of support, which would sail them through the confidence motion in the Parliament. That apart he met the leaders of all the parties to ascertain their views. It was only after he was convinced that Mr. Vajpayee would win the confidence of the house basing on the letters of support presented to him, he appointed the latter as the Prime Minister. In appointment of the Chief Minister, a Governor can safely follow this healthy precedent while making their assessment.
However, the high standards set by the Presidents of India are probably not expected from the Governors given the partisanship shown by many of them in innumerable cases in past. Probably due to this reason, reiterating the principle of non-assessment, the Supreme Court in the Bommai Judgment in the year 1994 laid down the basic guidelines to be followed by the Governor while appointing the CMs. In its pronouncement the Court made it clear that the proper forum for the test of the strength of any party staking the claim to form the government is the floor of the house, not the Rajbhavan. . The Sarkaria commission, in order to minimize the scope of subjectivity of assessment, has suggested some steps to be followed sequentially while inviting a party or coalition to form the Government in the States. The order of preference is indicated below:
(i) An alliance of parties that was formed prior to the Elections.
(ii) The largest single party staking a claim to form the government with the support of others, including ‘independents’.
(iii) A post-electoral coalition of parties, with all the partners in the coalition joining the government.
(iv) A post-electoral alliance of parties, with some of the parties in the alliance forming a Government and the remaining parties, including ‘independents’ supporting the government from outside.
(v) The Governor while going through the process described above should select a leader who in his (Governor’s) judgment is most likely to command a majority in the Assembly.
Therefore the Commission wants the Governor to make use of his judgement but in a logical and principled manner.
How to elect Leader
However, the high standards set by the Presidents of India are probably not expected from the Governors given the partisanship shown by many of them in innumerable cases in past. Probably due to this reason, reiterating the principle of non-assessment, the Supreme Court in the Bommai Judgment in the year 1994 laid down the basic guidelines to be followed by the Governor while appointing the CMs. In its pronouncement the Court made it clear that the proper forum for the test of the strength of any party staking the claim to form the government is the floor of the house, not the Rajbhavan. . The Sarkaria commission, in order to minimize the scope of subjectivity of assessment, has suggested some steps to be followed sequentially while inviting a party or coalition to form the Government in the States. The order of preference is indicated below:
(i) An alliance of parties that was formed prior to the Elections.
(ii) The largest single party staking a claim to form the government with the support of others, including ‘independents’.
(iii) A post-electoral coalition of parties, with all the partners in the coalition joining the government.
(iv) A post-electoral alliance of parties, with some of the parties in the alliance forming a Government and the remaining parties, including ‘independents’ supporting the government from outside.
(v) The Governor while going through the process described above should select a leader who in his (Governor’s) judgment is most likely to command a majority in the Assembly.
Therefore the Commission wants the Governor to make use of his judgement but in a logical and principled manner.
How to elect Leader
Still another option what is available to the Governor is to send message to the House under Article-175 (2) and ask it to elect its own leader. This kind of arrangement was ordered in form of ‘Composite Floor Test’ by the Supreme Court in 1998 for UP Assembly and very recently for Jharkhand House. This arrangement is comparatively controversy free in so far as it rubs the Governor off the discretion to choose the Chief Minister. It is in fact necessary that the Governors should have minimum possible discretion in choosing the CMs. Because in past the Governors have made use of both the principles of assessment and that of non-assessment selectively to usher the way for the ruling party at Centre to form governments in the States. For instance in Kerla in 1965, in West Bengal in 1971 and in Haryanna in 1982 the principle of assessment was followed by the Governor otherwise a non-congress government would have got the chance to form government (Congress was at the centre). But in Rajasthan in 1967 the single largest party(Principle of non-assessment) was invited because congress was coming to power by this arrangement. In the year 2000 the Governor’s decision to invite Mr. Nitish Kumar of BJP to form the Government even after his inability to show the required number of letters of support was criticised as partisan and undemocratic as the RJD of Lalu Prasad had emerged as the single largest party and its pre-poll alliance with CPI (M) as the largest group. The Romesh Bhandari episode of UP in 1998, where the SC had to intervene to prevent the open murder of democracy, cannot be washed away from anybodye’s memory. Then, the Governor had simply tried to oblige the centre by dismissing the Kalyan Singh government and appointing Jagadambika Pal as the CM without giving the former a chance to show his strength on the floor of the house. He followed no such principle. The recent act of Jharkhand is in a way very similar to this example.
Not only in appointment of CMs but also in dismissal of Governments unceremoniously without following the norms of Democracy, the Governors have caused gross Constitutional improprieties and made thorough mockery of Democracy. In case of the Bihar this time almost all the medias covered the events those led to the midnight coup by the Governor and the Centre. No matter what plea is taken by them defending their decision, the timing of it establish the fact very unambiguously that the union cabinet budged to the compulsions of coalition politics, and the Governor to his mentor. It is therefore very appropriate time that the institution of Governor be thoroughly debated inside and outside the Parliament and necessary amendment be done to the Constitution to incorporate the suggestions given by Court judgements, and the Sarkaria Commission and the NCRWC with the aim to protect the independence and impartiality of him and to restore the high dignity attached to the august office by the Constitution.
(Mr Baisakh is a New Delhi based Freelancer)
Not only in appointment of CMs but also in dismissal of Governments unceremoniously without following the norms of Democracy, the Governors have caused gross Constitutional improprieties and made thorough mockery of Democracy. In case of the Bihar this time almost all the medias covered the events those led to the midnight coup by the Governor and the Centre. No matter what plea is taken by them defending their decision, the timing of it establish the fact very unambiguously that the union cabinet budged to the compulsions of coalition politics, and the Governor to his mentor. It is therefore very appropriate time that the institution of Governor be thoroughly debated inside and outside the Parliament and necessary amendment be done to the Constitution to incorporate the suggestions given by Court judgements, and the Sarkaria Commission and the NCRWC with the aim to protect the independence and impartiality of him and to restore the high dignity attached to the august office by the Constitution.
(Mr Baisakh is a New Delhi based Freelancer)
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