Insights into Editorial: All the President’s men
According to author, the recent appointment of five Governors by the President must be viewed with grave scepticism.
By nominating persons who are deeply embedded within the Party ecosystem, the Union Government has sent the clear and ominous signal that constitutional principles and judicial diktats are secondary to the propagation of the party’s ideology.
This place the entire edifice of the Constitution in an extremely precarious position and calls for a review of the process of gubernatorial appointments.
Constituent Assembly debates on the appointment of Governor:
The process of gubernatorial appointments is anything but transparent.
We know little more than the fact that the President has appointed a person as Governor “by warrant under his hand and seal”.
The Constituent Assembly debates on this issue reveal divergent views and considerable deliberation.
On May 30 1949, Sardar Hukam Singh had argued in favour of providing a panel of names, elected by the State Legislature, for the President to choose from.
Fellow member, Alladi Krishnsaswami Ayyar backed the appointment of a Governor by the President with the hope that the “Cabinet at the Centre would also be guided by the advice” of the State Cabinet.
Adding to the debate, G. Durgai Bai spoke in favour of an appointment mechanism in order to “place the Governor above party politics, above factions and not to subject him to the party affairs”.
Supporting this proposition, then Prime Minister Jawaharlal Nehru indicated his preference for a Governor who would be “acceptable to the Government of the province and yet he must not be known to be a part of the party machine of that province”.
A cursory look at the Governors who have been appointed since 1950, under the Constitution, tells us that the fear expressed by the various members of the Constituent Assembly was not imaginary.
Constitutional provisions related to Governor:
- Article 163: It talks about the discretionary power of governor.
- Article 256: The executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose.
- Article 257: The executive power of the Union shall also extend to the giving of directions to a State as to the construction and maintenance of means of communication declared in the direction to be of national or military importance:
- Article 355: It entrusts the duty upon Union to protect the states against “external aggression” and “internal disturbance” to ensure that the government of every State is carried on in accordance with the provisions of Constitution.
- Article 356: In the event that a state government is unable to function according to constitutional provisions, the Central government can take direct control of the state machinery. The state’s governor issues the proclamation, after obtaining the consent of the President of India.
- Article 357: It deals with Exercise of legislative powers under Proclamation issued under Article 356 by the central government.
B.P. Singhal vs Union of India (2010):
A five-judge Bench of the Supreme Court looked at the scope of the Union’s power to remove Governors in the landmark case of B.P. Singhal v. Union of India (2010).
The President, in effect the central government, has the power to remove a Governor at any time without giving him or her any reason, and without granting an opportunity to be heard.
However, this power cannot be exercised in an arbitrary, capricious or unreasonable manner.
The power of removing Governors should only be exercised in rare and exceptional circumstances for valid and compelling reasons.
The mere reason that a Governor is at variance with the policies and ideologies of the central government, or that the central government has lost confidence in him or her, is not sufficient to remove a Governor.
Thus, a change in central government cannot be a ground for removal of Governors, or to appoint more favourable persons to this post.
A decision to remove a Governor can be challenged in a court of law:
- In such cases, first the petitioner will have to make a prima facie case of arbitrariness or bad faith on part of the central government.
- If a prima facie case is established, the court can require the central government to produce the materials on the basis of which the decision was made in order to verify the presence of compelling reasons.
- Elucidating the specific functions of the Governor, the Supreme Court said that the Governor is “not an employee of the Union Government, nor the agent of the party in power nor required to act under the dictates of political parties”.
- The Court further anticipated that there “may be occasions when he may have to be an impartial or neutral Umpire where the views of the Union Government and State Governments are in conflict”.
- The Sarkaria Commission (1988) recommended that Article 356 should be used in very rare cases when it becomes unavoidable to restore the breakdown of constitutional machinery in the State.
- The commission recommended that before taking action under Article 356, a warning should be issued to the state government that it is not functioning according to the constitution.
- “Justice V.Chelliah Commission” (2002) recommended that Article 356 must be used sparingly and only as a remedy of the last resort after exhausting all actions under Articles 256, 257 and 355.
- The “Punchhi commission” recommended that these Articles 355 & 356 be amended. It sought to protect the interests of the States by trying to curb their misuse by the Centre.
The S R Bommai verdict allows the Supreme Court to investigate claims of malafide in the Governor’s report, a similar extension to cover malafide in the invitation process could be a potential solution.
The role of governor is indispensable for the successful working of the constitutional democracy.
Governor of a state must refrain from aligning to any political ideology. The virtue of impartiality must be withheld to ensure a free and fair election in a democracy.
The ‘procedure for appointment of governors should be clearly laid down’ and conditions of appointment must also be laid down and must assure a fixed tenure for the governor so that the governor is not under the constant threat of removal by the central government.
It is necessary to invest the office of the Governor with the requisite independence of action and to rid them of the bane of ‘instructions’ from the Central Government.
It is suggested that the exercise of ‘discretionary powers’ by the Governors should be ‘guided by the healthy and democratic conventions’.
For the smooth functioning of a democratic government, it is equally important that the governor must act judiciously, impartially and efficiently while exercising his discretion and personal judgment.