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Making of independent governors

Over the years, much criticism has been levelled against the manner in which a few governors have acted in discharge of their constitutional...

Written by Jagmohan |
February 6, 2006

Over the years, much criticism has been levelled against the manner in which a few governors have acted in discharge of their constitutional functions. They have been accused of playing a partisan role and favouring the Centre. The recent Supreme Court judgment on Bihar berates the action of Governor in no uncertain terms: “The Governor moved very swiftly and with undue haste… This approach makes it evident that the object was to prevent a particular political party from staking a claim and not the professed object of anxiety not to permit the distortion of the political system”.

It is unfortunate that one of the highest constitutional offices of the country, namely, the office of the governor, has often been subjected to criticism by the highest court of the land. This has not only lowered the esteem of the office in the eyes of the public but also raised several questions about the health of our democracy. What is equally unfortunate is that no solid remedial measure has been taken. It is time that we set the matter right, particularly because the days of governance with a clear majority of a single party seem to be over.

As remedial measures, I have four specific suggestions. First, an instrument of presidential instructions to the governors should be prepared and appended as a schedule to the Constitution. This should lay down clear principles on the basis of which governors would discharge their duties. These principles should be formulated, keeping in view the rulings and observations of the Supreme Court and also the recommendations made by several high-level commissions.

For instance, there is the procedure which a number of governors had followed in the past to settle the question as to which party or group of parties commanded the majority in the assembly. Some had followed the list system, some had relied on physical verification, and some had combined both approaches. For instance, in Gujarat in 1971, Shriman Narain followed the system of list-cum-physical verification. On the other hand, D.C. Pavate, governor of Haryana, followed in 1969 the method of counting heads. But it is now fairly well understood, on the basis of what the Supreme Court has said in various cases, that the best way to determine claims and counter claims is to ask the claimant to show his strength in the assembly. Thus, in the aforesaid instrument, a principle could be laid down requiring the governor to rely on the ‘floor-test’ procedure in deciding a disputed claim, except in cases in which the security environment militate against it. Likewise, it could also be laid down that the time-limit for arranging the ‘floor-test’ would be one week.

It may be noted that at the time of framing of the Constitution, a proposal was mooted to draw up an Instrument of Instructions for the guidance of governors but it was given up on grounds of practicality. It was also hoped that in course of time healthy conventions would emerge. The experience of the last five decades, however, belies this hope.

Second, the procedure for appointment and removal of governor should be amended, so as to provide him effective security of tenure for five years. Presently, no constitutional office is so insecure as that of the governor. It is only he who can be transferred or removed at the whim of the Union government. His position has virtually been reduced to that of a work-charged employee, if not a daily wager. The amended provision should stipulate that the governor can be removed by following the procedure applicable for the removal of a Supreme Court judge. If the misconduct of the governor is so serious that he cannot be allowed to remain in office, he could be sent on leave until a final decision is taken. As far as the appointment of governor is concerned, it should be made after effective consultations with the Leader of the Opposition in the Lok Sabha and the chief minister of the state.

Thirdly, a governor, after demitting his office, should be made ineligible to hold any political office for at least one year. Fourthly, after every period of seven years, a high-level team of three experts should be appointed by the Inter-State Council to study the manner in which the governor had discharged his/her duties .

Above all, it must be recognised by all political parties, that the president has ‘reserve’ powers with regard to the appointment and removal of governors. These powers, in my opinion, are embedded in the totality of the federal structure of our Constitution, in the norms of constitutional morality and in very fact of the president being elected from an electoral college of which the state legislatures constitute a significant part.

Institutional reform along these lines need to be undertaken if the governor has to function as an independent linchpin of the constitutional apparatus.

The writer is a former governor of J&K and a former Union minister

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