In the ongoing disqualification proceedings against Maharashtra MLAs in the Supreme Court, the Chief Justice of India D Y Chandrachud, heading the five-judge Constitution bench, dropped a bombshell with his hard-hitting remarks about the role and powers of a governor.
In the course of the arguments, the CJI severely criticised the Maharashtra governor’s actions and raised questions about the legitimacy and limits of a governor’s role in this case, though as obiter dicta. The CJI observed that the “governor should not enter the political arena”, adding that a governor “cannot enter into any area by which his action would precipitate the fall of a government” and that unless this principle is maintained, it would be “very, very serious for our democracy”.
The crucial issue at hand is regarding the procedural and constitutional powers conferred on a governor. A governor who is expected to be non-partisan cannot function in a way that precipitates a crisis and leads to the toppling of a duly elected government. Furthermore, being an executive appointee, the governor has no role to play in legislative issues, and if at all he does, we need to delineate the circumstantial constraints and exceptions that will legitimately allow his interference.
While the argumentative and circumstantial nuances specific to the particular case concerning the Maharashtra crisis are sub judice, we can not lose sight of the highly significant underlying issue — the role and scope of the office of governor.
In India in recent years, there have been a spate of controversies about governors across the country from Jharkhand and West Bengal to Tamil Nadu and Kerala. This issue has gotten to such a worrying level that many governors are being called “agent provocateur of the Centre”.
We only have to take the very recent case of R N Ravi, the Tamil Nadu governor. Exceeding his powers, he skipped certain parts of his speech, omitting words such as secularism, Periyar and B R Ambedkar. He further made denigrating remarks stating that the Dravidian model is regressive politics, and in a gathering of civil aspirants, he advised them that in matters of dispute between Centre and State, they should always undoubtedly take the side of the Centre. He went on to show the impertinence of changing the name of the state of Tamil Nadu itself!
Likewise, former Jharkhand governor (now Maharashtra governor) Ramesh Bais withheld the opinion of the Election Commission in Hemant Soren’s office of profit case and did not act on it, thereby causing chaos and destabilising the House. In fact, by keeping the EC’s verdict a secret, despite repeated requests by both Chief Minister Soren and the ruling UPA, he violated Article 192(2) of the Constitution, which says that he “shall act” according to such opinion. Thereafter, in a move that casts serious aspersions on his bonafides, Bais claimed that his delay in revealing the EC’s report was due to his taking a “second opinion”. Second opinion? Even by a charitable interpretation, it was not only facetious but betrayed his utter ignorance of the Constitution. The “opinion” in this case is a quasi judicial order of the Election Commission, where a governor (or even the President in the case of MPs) cannot change even a comma and has to implement it in toto. The Constitution has mandated the word of EC to be final in the matter of disqualification in an office of profit case.
The act of the governor keeping to himself the “opinion” of the EC is a mystery. If the EC found Soren guilty of holding an “office of profit”, the governor should have lost no time in sacking him. If the EC’s verdict was “not guilty”, he should have made it public to remove the uncertainty hanging over the government. The suspense was enough for an exodus to start from the government, which is presumably what the governor intended. Soren’s act of seeking a vote of confidence preempted that but even he probably didn’t know the law. If the EC had found him guilty, no vote of confidence could have saved him. The vote was irrelevant. All this political drama would have been avoided if the governor had not kept EC’s opinion close to his chest. It was not his personal property to sit over. Article 192(2) clearly says that the governor “shall act” according to the opinion. By not acting, he was clearly in violation of the Constitution.
As an unelected appointee of the Centre, the governor is expected to not get involved in political controversies or ideological rifts. He must display non-partisan statesmanship, not turn confrontational and meddlesome in legislative matters. It is also necessary to restrict the discretionary powers of the governor because a politically-active and partisan governor would be usurping the power of elected representatives.
The question mark on the role of governors is not a new phenomenon. Demands have been raised ranging from restricting their discretionary powers to even abolishing the post. Their questionable role in the wake of an election to invite a leader to form the government has often been observed. A hung mandate becomes a fertile ground for some governors who are happy to play the puppet in the hands of an overbearing Centre. Laying down a clear procedure in cases of a hung mandate would do great good to Indian democracy.
The Justice Sarkaria Commission, set up in 1983 to examine the relationship and balance of power between state and central governments, had recommended the following order to be followed by a governor in cases of a hung assembly: One, an alliance of parties that was formed prior to the elections; two, the single largest party staking a claim to form the government with the support of others, including independents; three, a post-electoral coalition of parties, with all the partners in the coalition joining the government; four, 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. Two decades later, Justice Punchhi Committee (2007) reiterated the recommendations, but successive governments have not bothered to take it seriously.
History has shown that constitutional morality and values are too serious to be left to the discretion of governors. We must design institutional safeguards to ensure that governors do not cross the Lakshman Rekha. The Sarkaria and Punchhi commissions have dealt with the subject at length. To strengthen our democracy and its federal structure, we need to act. And, urgently.
Quraishi is former Chief Election Commissioner of India and the author of An Undocumented Wonder: The Making of the Great Indian Election
