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Monday, October 18, 2021

Laying a high office low

Governors, with rare exceptions, have been acting as if they are employees of the Central government, at its behest and in the interests of the party or parties in power at the Centre.

Written by P B Sawant |
Updated: August 10, 2016 12:20:48 am
state governors, india state governors, governor rule, article 356, article 357, uttarakhand, arunachal pradesh, emergency, india news To act as the agent of the central government is to act as its extended arm, and to ignore and disregard the will of the people in the state is to act undemocratically and dictatorially.

The recent developments in Uttarakhand and Arunachal Pradesh have turned the spotlight on the office of the governor. Briefly stated, Article 356 read with Article 357 of the Constitution, empowers the president to impose president’s rule and to assume to himself both the executive and legislative powers of the state government. However, before he does so, he has to satisfy himself, on the basis of a report of the governor or otherwise, that, “a situation has arisen in which the government of the state cannot be carried on in accordance with the provisions of the Constitution”.

The object of these two provisions is of course laudable. In most cases, the article has been invoked with validity, for a desired purpose. However, there have also been cases where it has been abused to serve the interests of the party ruling at the Centre. In fact, until the Supreme Court, in its decision in the S.R. Bommai versus Union of India, laid down specific guidelines for using the power under the said article, its use was made by the Central government for dismissing state governments of parties of the Opposition on untenable grounds.

The most blatant abuse of the article was when the Janata Party won office at the Centre in 1977. It dismissed governments of nine Congress-ruled states on the ground that the electorate had virtually rejected the candidates of the ruling Congress in those states in the general election. When the dismissal was challenged, the Supreme Court in Rajasthan versus Union of India, failed the constitution, forgetting that ours is a federal polity whose constituting units have autonomous powers. The result was, when the Congress returned to power at the Centre in 1980, it dissolved the Opposition-ruled governments in the said nine states.

The power under Article 356 is not absolute and can be reviewed by the court on grounds that: a) the proclamation has been made upon a consideration which is wholly extraneous or irrelevant to the purpose for which the power under the article has been conferred; b) the exercise of power under the article has been malafide.

In S.R. Bommai, the following propositions were laid down by the Supreme Court for the use of the article: The presidential proclamation dissolving a state legislative assembly is subject to judicial review; the burden lies on the Central government to prove that relevant material existed to justify the issue of the proclamation; courts may not go into the correctness of the material; it is not the subjective opinion of the governor, but the floor test in the assembly, which will determine the majority of the government; if the court strikes down the proclamation, it has power to restore the dismissed state government to office; and the state government pursuing anti-secular politics is liable to action under the article.

Although B.R. Ambedkar speaking in the Constitution Assembly had hoped the power given under the article would rarely be used and it would remain a dead letter, the record shows till May 2016 it has been used on no less than 115 occasions.

The language of Article 356 (i) is very clear. Whether it is on the basis of the governor’s report or from any other source, the president has to be satisfied that “a situation has arisen” in which “the government of the state cannot be carried on in accordance with the provisions of the Constitution”. In other words, it is not just a law and order situation, public disturbance, a non-compliance of one or the other provision of the constitution, but a complete breakdown of the constitutional machinery of the state, objectively ascertainable, which alone can invite president’s rule. It has also to be remembered in this connection that the preceding Article 355 casts a duty on the Union government to protect the states against internal disturbance and to ensure that the government of every state is carried on in accordance with the provisions of the constitution. Hence, before imposing president’s rule under Article 356, on the ground that the government of the state is not being carried on in accordance with the provisions of the constitution, the Union has also the responsibility to ensure that it had performed its duty, and failed.

Ours is a federal polity, and though it can be converted into a unitary state when grave emergencies like war and external aggression take place, or there is an armed rebellion, in normal circumstances, the federating units have to be given a free hand in running their governments. The states are not the vassals of the Central government. They are equal partners in the governance of the country. In democracy, the desire of the people expressed through the election process has to be respected. Both the Central government as well as the state governments are elected by the same people and through the same elective process. There is therefore no reason to believe that the expression of opinion by the people in one case is more, or less, sacrosanct than in the other case. If the federal polity is to survive, it is the duty of the Central government to allow the constituent units to run their governments without undue and uncalled for interference in their functioning.

So far, it is noticed that on most occasions on which president’s rule has been imposed in the state, it has been on the basis of the report made by the governor. The proper duties and functions of the governor are to protect and promote the interests of the state concerned. As head of state, he is the father figure in the governance of the state. He has therefore to concern himself intimately with the desires, interests and welfare of the people of the state.

Whenever there are difficulties, obstructions or hindrances experienced by the state government, he has to use his good offices with the Centre to remove them. When necessary, he has also to give his friendly advice to the state government, and to guide it to ensure smooth, fair and just governance. Although, he has been appointed by the Central government (by the president on the advice of the cabinet) he is not an agent of the Central government, and should not act as such.

Unfortunately, governors, with very rare exceptions, have been acting as if they are the employees of the Central government and at its behest and in the interests of the party or parties in power at the Centre. This is a negation of the federal polity and democracy. To act as the agent of the Central government is to act as its extended arm, and to ignore and disregard the will of the people in the state is to act undemocratically and dictatorially. This conduct of the governors has been exposed so far on many occasions including in the recent cases of Arunachal Pradesh and Uttarakhand.

The governors have been sending motivated, distorted and partial reports to the Central government as desired by it, with the intention of getting rid of the elected state governments. It has therefore become necessary both in the interests of the federal polity and democracy, that the office of the governor preserves its constitutional sanctity and morality and is used by the incumbent for safeguarding the interests of the country and not those of any political party.

To ensure impartial and constitutionally correct conduct on the part of the governor therefore, it has become necessary that he is either selected by the prime minister and the leader of the opposition jointly or by a committee of Rajya Sabha members belonging to both the ruling as well the opposition party. That may effectively prevent the abuse of the power under Article 356, which is otherwise a benevolent power provided by the constitution to tide over an unusual and rare situation arising in a state.

The writer is a retired judge of the Supreme Court of India

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