The unfolding events in Arunachal Pradesh—elaborated in detail in our cover story—point to systemic imbalances which, if not addressed by all those who care deeply about India’s functioning as a republic under the majesty of the rule of law, could be the harbingers of a sort of political instability and whimsical governance which the framers of the constitution had tried to prevent.
Bringing India together as a nation within the framework of a logical and interlocking web of rules, edicts, regulations and conventions guaranteeing its sovereignty, integrity, security, collective good along with individual rights, liberties, and freedoms was a Herculean chore. It staggers me, it boggles my mind how the founding fathers managed this. They literally created one country out of some 562 independent kingdoms or countries within the subcontinent which had various treaties and alliances with British India.
The subcontinent was a congeries of languages, dialects, ethnicities, tribes, castes, religions. And one of the main objects of the framers of the constitution, following the mostly peaceful and negotiated integration of princely states into the Indian union, was to keep a balance between a strong governing center and degrees of autonomy for the federating units. This was achieved through a combination of central, state and concurrent “subjects”.
It has not been an easy ride. The history of India since Independence is replete with recurring conflicts, often violent, between central authority and state’s rights. The constitution makers had no way of foretelling when and how these tussles would occur. But they did anticipate them and built in various statutes enforceable by the executive, legislature and judiciary as tie-breakers. A lynchpin of the center-state balancing act was the governor. Gubernatorial authority and functions were spelt out as clearly as possible.
But time and political exigencies have a way of derailing the best intentions. Over several decades, the impartiality of the governors came under a cloud as the system became politicized. There was a general clamor that national governance in a massively diverse country like India with competing and fissiparous regions needed a huge dose of decentralization and a re-examination of center-state relations. To examine this issue—the Union and the states in the changed socio-economic scenario—the government constituted a commission on June 9, 1983, under the chairmanship of Justice RS Sarkaria with B Sivaraman and Dr SR Sen as its members. The terms of reference were to examine and review the working of the existing arrangements between the Union and states in regard to powers, functions and responsibilities in all spheres and “recommend such changes or other measures as may be appropriate”.
The Commission submitted its report in January 1988. The report contains 247 recommendations spreading over 19 chapters. Successive governments have let it gather dust. Some the revolutionary measures it suggested may well have moved India into better and more efficient governance. Its basic thrust was towards more decentralization, more autonomy.
In the context of the current Arunachal Pra-desh crisis which has snowballed into a political and constitutional showdown, Sarkaria’s observations on the role and functions of the governor remain highly relevant and worthy of reproducing:
- The role of the Governor has emerged as one of the key issues in Union-State relations. The Indian political scene was dominated by a single party for a number of years after Independence. Problems which arose in the working of Union-State relations were mostly matters for adjustment in the intra-party forum and the governor had very little occasion for using his discretionary powers. The institution of Governor remained largely latent. Events in Kerala in 1959, when President’s rule was imposed, brought into some prominence the role of the Governor, but thereafter it did not attract much attention for some years. A major change occurred after the Fourth General Elec-tions in 1967. In a number of States, the party in power was different from that in the Union. The subsequent decades saw the fragmentation of political parties and emergence of new regional parties. Frequent, sometimes unpredictable re-alignments of political parties and groups took place for the purpose of forming governments.
- These developments gave rise to chronic instability in several State Governments. As a consequence, the Governors were called upon to exercise their discretionary powers more frequently. The manner in which they exercised these functions has had a direct impact on Union-State relations. Points of friction between the Union and the States began to multiply. The role of the Governor has come in for attack on the ground that some Governors have failed to display the qualities of impartiality and sagacity expected of them. It has been alleged that the Governors have not acted with necessary objectivity either in the manner of exercise of their discretion or in their role as a vital link between the Union and the States. Many have traced this mainly to the fact that the Governor is appointed by, and holds office during the pleasure of the President, (in effect, the Union Council of Ministers). The part played by some Governors, particularly in recommending President’s rule and in reserving State Bills for the consideration of the President, has evoked strong resentment. Fre-quent removals and transfers of Governors before the end of their tenure have lowered the prestige of this office. Criticism has also been leveled that the Union Government utilizes the Governors for its own political ends. Many Governors, looking forward to further office under the Union or active role in politics after their tenure, came to regard themselves as agents of the Union.
The current turmoil in Arunachal shows how relevant Justice RS Sarkaria’s observations on the role and functions
of the governor are till date.
- In sum, the functions of the Governor are at once diverse and important. Functioning in normal times as the constitutional head of the State and as a vital link between the Union and the State, he becomes an agent of the Union in certain special circumstances, e.g., when a proclamation under Article 356 is in operation. He fills the vacuum and ensures continuity in executive government for short periods during which no Council of Ministers is available to aid and advise him. The Governor is the key functionary of the system envisaged by the Constitution. No other constitutional functionary can discharge these responsibilities in addition to his own duties. We are, therefore, of the firm view that it is an office which cannot be dispensed with.
- In all the evidence before us, a common thread is that much of the criticism against the Governors could have been avoided if their selection had been made on correct principles to ensure appointment of right type of persons as Governors. Even the most critical of the witnesses agree that if proper persons are chosen there will be little cause of complaint.
- Most of the replies to our questionnaire received from a cross-section of the public, are critical of the quality and standard of some of the persons appointed as Governors. To summarize their comments: Discarded and disgruntled politicians from the party in power in the Union, who cannot be accommodated elsewhere, get appointed. Such persons, while in office, tend to function as agents of the Union Government rather than as impartial constitutional functionaries.
- The number of Governors who have displayed the qualities of ability, integrity, impartiality and statesmanship has been on the declining side. A State Government has cited recent instances of persons who had to resign from office as Ministers following judicial strictures, being subsequently appointed as Governors. It has also quoted instances of Governors who returned to active politics. Another State Government, however, is of the view that persons who have been in active politics need not be debarred from being considered for appointment as Governor if they are of high public stature and are capable of rising above party and political affiliations.
- Speaking in the Constituent Assembly on the choice of Governors, Jawaharlal Nehru observed: “I think it would be infinitely better if he was not so intimately connected with the local politics of the province… And would it not be better to have a more detached figure, obviously a figure that… must 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 … But on the whole it probably would be desirable to have people from outside—eminent people, sometimes people who have not taken too great a part in politics. Politicians would probably like a more active domain for their activities but there may be an eminent educationist or persons eminent in other walks of life, who would naturally, while cooperating fully with the Government and carrying out the policy of the Government, at any rate helping in every way so that that policy might be carried out,… nevertheless represent before the public someone slightly above the party and thereby, in fact, help that government more than if he was considered as part of the party machine.”
- A person to be appointed as a Governor should satisfy the following criteria: (i) He should be eminent in some walk of life. (ii) He should be a person from outside the State. (iii) He should be a detached figure and not too intimately connected with the local politics of the State; and (iv) He should be a person who has not taken too great a part in politics generally, and particularly in the recent past. In selecting a Governor in accordance with the above criteria, persons belonging to the minority groups should continue to be given a chance as hitherto.
“On the whole it probably would be desirable to have people from outside—eminent people, who have not taken too great a part in politics.”
—Jawaharlal Nehru, in the Constituent Assembly
- It is desirable that a politician from the ruling party at the Union is not appointed as Governor of a State which is being run by some other party or a combination of other parties. In order to ensure effective consultation with the State Chief Minister in the selection of a person to be appointed as Governor the procedure of consultation should be prescribed in the Constitution itself by suitably amending Article 155. (Para 4.6.25) The Vice-President of India and the Speaker of the Lok Sabha may be consulted by the Prime Minister in selecting a Governor. The consultation should be confidential and informal and should not be a matter of constitutional obligation. The Governor’s tenure of office of five years in a State should not be disturbed except very rarely and that too, for some extremely compelling reason. Save where the President is satisfied that, in the interest of the security of the State. It is not expedient to do so, the Governor whose tenure is proposed to be terminated before the expiry of the normal term of five years, should be informally apprised of the grounds of the proposed action and afforded a reasonable opportunity for showing cause against it. It is desirable that the President (in effect, the Union Council of Ministers) should get the explanation, if any, submitted by the Governor against his proposed removal from office examined by an Advisory Group consisting of the Vice-President of India and the Speaker of the Lok sabha or a retired Chief Justice of India. After receiving the recommendation of this Group, the President may pass such orders in the case as he may deem fit.
- When, before expiry of the normal terms of five years, a Governor resigns or is appointed Governor in another State, or has his tenure terminated, the Union Government may lay a statement before both Houses of Parliament explaining the circumstances leading to the ending of the tenure. Where a Governor has been given an opportunity to show cause against the premature termination of his tenure, the statement may also include the explanation given by him, in reply. As a matter of convention, the Governor should not, on demitting his office, be eligible for any other appointment or office of profit under the Union or a State Govern-ment except for a second term as Governor or election as Vice-President or President of India.
- In choosing a Chief Minister, the Governor should be guided by the following principles: (i) The party or combination of parties which commands the widest support in the Legislative Assembly should be called upon to form the government. (ii) The Governor’s task is to see that a government is formed and not to try to form a government which will pursue policies which he approves. (b) If there is a single party having an absolute majority in the Assembly, the leader of the party should automatically be asked to become the Chief Minister. If there is no such party, the Governor should select a Chief Minister from among the following parties or groups of parties by sounding them, in turn, in the order of preference 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 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. The Governor, while going through the process described above, should select a leader who in his (Governor’s) judgement is most likely to command a majority in the Assembly. (c) A Chief Minister, unless he is the leader of a party which has absolute majority in the Assembly, should seek a vote of confidence in the Assembly within 30 days of taking over. This practice should be religiously adhered to with the sanctity of a rule of law.
- The Governor should not risk determining the issue of majority support, on his own, outside the Assembly. The prudent course for him would be to cause the rival claims to be tested on the floor of the House. The Governor cannot dismiss his Council of Ministers so long as they continue to command a majority in the Legislative Assembly. Conversely, he is bound to dismiss them if they lose the majority but do not resign.
- When the Legislative Assembly is in session, the question of majority should be tested on the floor of the House. (b) If during the period when the Assembly remains prorogued, the Governor rec-eives reliable evidence that the Council of Minis-ters has lost ‘majority’, he should not, as a matter of constitutional propriety, dismiss the Council unless the Assembly has expressed on the floor of the House its want of confidence in it. He should advise the Chief Minister to summon the Assembly as early as possible so that the ‘majority’ may be tested. (c) Generally, it will be reasonable to allow the Chief Minister a period of 30 days for the summoning of the Assembly unless there is very urgent business to be transacted like passing the Budget, in which case, a shorter period may be allowed.
In special circumstances, the period may go up to 60 days.