Thursday, September 25, 2014

Need to Appoint Impartial Governors

Dr M N Buch, 
Dean, Centre for Governance and Political Studies, VIF

Under Article 1 of the Constitution, read with the Preamble, India is sovereign and the sovereignty rests in the Union. The same Article makes India a Union of States, which means that whereas the collective sovereignty vests in the Union, the constituents of this Union also have elements of sovereignty. The relationship is important to understand because whereas in the United States under the Tenth Amendment of the Constitution the words used are, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people”. Under Article 248 of the Indian Constitution, it is the exact reverse in that the residuary powers of legislation on any matter not enumerated in the State List or the Concurrent List of the Seventh Schedule vest exclusively in Parliament. If residuary powers are vested in Parliament, how do we consider the States to have sovereignty? Here sovereignty comes from two considerations, the first being that without the States there can be no Union and the second comes from List 2 of the Seventh Schedule which gives exclusive legislative powers on all matters enumerated in this List to the State Legislature. Ultimately it is the exclusive power to legislate which introduces an element of sovereignty so far as the States are concerned.

Parts V and VI of the Constitution provide for a parallel Executive, Legislature and Judiciary for the Union and the States. In the case of the Union, Article 53 vests executive power in the President and in the case of the States, Article 154 vests executive power in the Governor. The President is Head of State for the whole of India and the Governor is Head of State for that particular State. No doubt that the Governor is appointed by the President under Article 155, whereas the President is elected under Article 54. This has been interpreted to mean that the Governor is the agent of the President and not an independent entity. Constitutionally that is a completely wrong interpretation, because in the matter of exercise of executive power, summoning of the Legislature, its prorogation and its dissolution, the Governor is totally independent of the President. Convergence only comes under Article 254 when both Parliament and the State Legislature have enacted laws on the same subject in a matter enumerated in the Concurrent List and there is a repugnancy between the two laws. Here the law of Parliament will prevail. However, the Governor may reserve a Bill passed by the State Legislature for the President’s approval in a matter under the Concurrent List so that either there is no repugnancy or the President approves the changes made in the State law, in which case the State law will prevail within the territory of the State. Otherwise, the Governor, under Article 163, functions according to the aid and advice of his Council of Ministers, not that of the President. In legislative matters, it is the Governor who gives assent to Bills passed by the State Legislature, unless he reserves any for the prior approval of the President. Just as the President functions according to the aid and advice of his Council of Ministers, the Governor is in exactly the same position vis-à-vis the State and, therefore, the two offices of President and Governor are in parallel and not in a position of superiority or subordination.

It is under Article 356, however, that the Governor reports to the President and that, too, only in matters in which the Governor is of the opinion that the government of a State cannot be conducted in accordance with the provisions of the Constitution and, therefore, the Governor advises the President to take over all or any of the functions of the State. If the President is convinced that such a situation has arisen and he decides to issue a proclamation in this behalf then, of course, the Governor will perform his functions in accordance with the directions issued by the President, in whom the government of the State will vest during the period of the proclamation. Here the Governor would become directly subordinate to the President. However, the Supreme Court has laid down stringent guidelines about the use of Article 356 of the Constitution and, therefore, a proclamation under this Article would be an exception rather than the rule and that, too, on very rare occasions.

Let us carry the argument a little further. Under Article 174, the Governor has the constitutional authority to summon the Legislature to meet at such time and place as he thinks fit. Of course he exercises this power on the advice of the Council of Ministers. The Governor may prorogue the House and he also has the authority to dissolve the Legislative Assembly. The President would acquire this power only if he has issued a proclamation under Article 356 and assumed the government of a State. Otherwise the Governor would be free to dissolve the House, provided that the Chief Minister on behalf of the Council of Ministers has so advised. He can appoint a caretaker Chief Minister and he can order fresh elections to the State Assembly. In this he does not need the approval of the President. This specific case is mentioned because the general theme of the Constitution is that whereas it has a centripetal bias and in matters mentioned in the Constitution the sovereignty of the Union prevails over the sovereignty of the States, it is still a federal polity in which the States enjoy constitutional powers rather than delegated powers. The Governors, under the scheme of things in the Indian Constitution, have an independent place of their own and are expected to function as impartial Heads of States within the territory of their own State. This brings us to the question about what sort of persons should be appointed as Governors. What should be their qualifications or other competence to occupy this high office? Unfortunately, the Constitution is silent in this behalf except to state what is given in Article 157, that is, that no one who is not a citizen of India can be appointed as a Governor and that the person so appointed should have completed thirty-five years of age. Under Article 158, the Governor shall not be a Member of Parliament or of a State Legislature and on his assuming office, if he is such a Member of a Legislature, he will be deemed to have vacated his seat in the House. Secondly, the Governor is prohibited from holding any other office of profit. Other than this there are no qualifications laid down for appointment as Governor. Theoretically he can be uneducated with a low intelligence quotient (IQ), with no record of public service or professional ability and, at least in explicit terms, is not even required to be sane. This probably means that even a certifiable lunatic could be appointed as Governor because there is no constitutional prohibition in this behalf. The Governor can be partisan, affiliated to a political party, notorious for bias on account of religion, caste, community or gender, but he can still be appointed as Governor. Is this the kind of person we need as Head of State?
It is a fact of which we can take notice that the Congress Party basically had four unspoken criteria for appointment of Governors. They were (1) Party hacks who had put in a few decades of service to the party at menial or low grade political level, who have expectations that now that the party has come to power their loyalty will be rewarded. (2) If the State Government is to be destabilised, then send in Romesh Bhandari as Governor. (3) Where the Prime Minister and the Chief Minister of a State are on good terms, then send a Governor with the Chief Minister’s approval. (4) Decrepit politicians aged almost to the point of senility, with major health problems, could be sent to a Raj Bhavan to enjoy its comforts and avail of the high quality medical services which would be available to the Governor. In other words, use the Raj Bhavan as a nursing home for the aged and the sick.

The holder of the office of the Governor, as any other Head of State, has to be nonpartisan, unbiased, capable of understanding constitutional responsibilities, aware of the oath sworn under Article 159 to preserve, protect and defend the Constitution and the law and devote oneself to the service and well-being of the people of the State. This means that the Governor should have at least those educational qualifications which would enable him to understand the laws, policies of government and consequences of following a particular policy, the constitutional validity of the orders passed by government and the responsible implementation of such policies so that the welfare of the people is enhanced. We cannot expect this of a totally illiterate person and, therefore, it is axiomatic that the Governor should have adequate educational qualifications to be able to read, analyse, understand and then decide.

Because the Governor is required to protect the Constitution, he has to be nonpartisan because the Constitution itself, through the Fundamental Rights, mandates the freedom of speech and expression, that is, the right of opposition and dissent. The Governor can defend this right only if he is politically neutral. Under Article 167, not only is the Chief Minister required to keep the Governor fully informed about the decisions of the Council of Ministers, but he is also required to furnish information relating to the administration of the State and proposals for legislation. The right of the Governor to ask the Chief Minister to obtain the views of the Council of Ministers on a matter decided by a minister alone is included in Article 167. Just as the Governor is required to act on the aid and advice of the Council of Ministers, in the discharge of his duties as per the oath sworn by him, the Governor has the right to advise the Chief Minister on matters relating to the well being of the people. Though this advice may not be binding on the Chief Minister, nevertheless the Chief Minister would be bound to at least heed the advice and react to it. A Governor with a capacity to understand issues and analyse would be in a position to give proper advice to the Chief Minister. Therefore, none of the four considerations which have hitherto led to the appointment of Governors really has any bearing on what the Governor should actually be liked in terms of qualifications, ability to understand and analyse, project the well being of the people and generally act as a person who, through interaction with the Council of Ministers, is able to assist in good governance.

Right from the time of Indira Gandhi, the post of Governor has been used for the parking of people who are party loyalists and want a comfortable berth for themselves because they are otherwise worthless. It is unfortunate that the unspoken criteria laid down by the Congress have been adopted wholeheartedly by every government which has succeeded Indira Gandhi. However, under Congress rule, a few nonpartisan officers, one or two eminent people, an educationist or two found berths as Governor. The Janata Government ruthlessly sacked all the previous Governors and increasingly politicised the post. When Indira Gandhi returned to power, she dismissed all Janata Party appointed Governors and continued the process of politicising the post of Governor. Every successive government does just the same, but one had expectations from Narendra Modi that he would understand the constitutional importance of the post of Governor and would appoint persons who could act in a nonpartisan manner. Unfortunately, that has not happened. Nine Governors appointed by the previous government have been removed and in their place only party hacks have been appointed. For example, Kalyan Singh whose role in U.P. as Chief Minister when the disputed structure at Ayodhya was demolished has been subject to strong criticism has been sent to Rajasthan. Vajubhai Vala was Revenue Minister of Gujarat under Keshubhai Patel as Chief Minister and he did not enjoy a reputation for pea-green incorruptibility. He is a man without sophistication, but he has been sent as Governor to Karnataka whose capital, Bangalore, is the hub of the IT industry, is a technologically advanced city and is known for its cultural activities. Does the Raj Bhavan at Bangalore deserve Vajubhai Vala? Keshrinath Tripathy, who did not cover himself with glory as Speaker of the U.P. Legislative Assembly, has been sent to West Bengal. All the Governors appointed by the present government are politicians of no great merit and from whom we can expect no great contribution to the State where they are posted. In the case of Haryana, one wonders whether Kaptan Singh Solanki has been sent to replicate what Romesh Bhandari did in U.P? Not one of the Governors appointed can be expected to assist the State in providing good government. This is not what we expect of our government and by sending middle level politicians as Governors, the Prime Minister has completed the politicisation of a post which by its very nature should be apolitical. This is a cause of disappointment.

Of course there will be controversy about any suggestions made regarding the qualifications for the post of Governor but as a starting point of debate, one should attempt some suggestions or a few considerations which must go into the appointment of a person as Governor. First and foremost, no active politician should ever be appointed as Governor. This means that for at least five years prior to such appointment the person should not have participated in any active politics, nor should formally be a member of any political party. The person appointed should not be more then seventy years of age and should not be considered for more than one additional term of reappointment. The person should have had formal education at least to the collegiate level, with preference being given to a post graduate degree holder. The person could be a professional such as a lawyer, doctor, etc. He could be a technocrat, an academician, a renowned architect, a person who has earned distinction in literature, someone who earned distinction as an administrator or diplomat, a successful farmer, environmentalist or social activist, someone who has served the armed forces or the police and has earned a reputation for integrity and professional competence, a businessman with a clean record or anyone from any profession who has exhibited the ability to think and perform, whilst earning a reputation for honesty. For example, A.R. Kidwai, an educationist, served with honour as Governor of Bihar, N.N. Vohra is handling a difficult situation in Jammu & Kashmir with aplomb and Lieutenant General Nirbhay Shrma has gained a fine reputation in Arunachal Pradesh. Unfortunately no politician has ever been able to rise above the narrow partisan interests of the political group to which he belongs. That is why Ved Marwah of the IPS was successful in Manipur, whereas Kamla Beniwal bombed in Gujarat. The present government led by Narendra Modi, which is a pathfinder in so many matters, would perform a great service to India if it codifies the principles on which Governors should be selected. In the long run, an impartial Governor would always be more useful than one who is partisan.

Published Date: 23rd September 2014, Image source:
(Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of the Vivekananda International Foundation)

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