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End Governor's Discretion Raj by undoing Constitutional Blunder

MAY 24, 2018

By Naresh Minocha, Consulting Editor

THE storm over formation of Karnataka Government has turned the torchlight on constitutional blunder of giving discretionary powers to governors. They are the nominees and agents of the Central Government in State capitals. Officially, they also serve as Constitutional heads of States.

In reality, several of them work as agents of the ruling party at the Centre. No wonder then that both BJP and Congress, when in power at the Centre, don't implement relevant recommendations of four Commissions made over five decades. Even coalition regimes of other parties behave like Congress & BJP.

Gauge the enormity of Union Government's indifference by factoring in the Opposition's repeated calls in Parliament for reforming Governor's role.

Status quo on functioning of governors constitutes unprecedented policy paralysis. It owes its origin to ethics resistant, turncoat DNA of Indian politicians. The status quo has thus persisted due to the ruling party's fatal temptation to utilize Governors' as instruments for expansion of political power & aggrandizement. The Governor's post and its discretionary powers are like apsaras for any party that comes to the power at the Centre.

Apsaras help ruling party at the Centre overthrow rival party-led State Governments and impose President's rule. The Judiciary at times restores the overthrown State Governments as happened due to Modi Government's adventurism in Uttarakhand and Arunachal Pradesh in 2016.

At the behest of the Centre/ruling party, Governors pinprick rival party-led State Government. The crux of the problem is deliberate mix-up of ulterior motives of ruling party with the normal conduct of the Union Government.

Anyone, familiar with working of Indian polity, knows that the line between discretion and indiscretion is non-existent for the political class.

Even a higher secondary school student can thus assess the risk of misuse of Governor's Office by searching the Constitution. The kid would find the word 'discretion' appears 19 times in the Constitution. Of these, one reference relates to Supreme Court and remaining 18 mentions are about the Governor. The word 'discretionary' appears only once that to in relation to Governor.

Before discussing the fate of recommendations of four commissions and the way forward, we should recollect the historical background to the constitutional blunder.

Some analysts have wondered why Constituent Assembly (CA) did not foresee situation where state assembly elections would not give any party or even pre-poll alliance an absolute majority to form the Government.

Several CA members were aware of the dirty tricks played by Governors in appointing or dislodging provisional Governments during the British Rule. The members thus fought tooth and nail against move to grant of discretionary powers to a non-elected Governor.

The architect of Constitution, Dr. B.R. Ambedkar, however, managed to convince CA to negate amendments against discretion moved by certain members who voiced stringent opposition.

It is here apt to recall what Urdu poet Late Maulana Hasrat Mohani observed while participating in CA debate on 15th July 1947.

"With this word (Governor) only, the whole constitution of the Union is defaced and distorted," Mr Mohani stated while reacting to a CA's report on 'The Principles of a Model Provincial Constitution' The report envisaged an arrangement under which the Centre would appoint State Governors and grant them discretionary powers.

Mr. Mohani, who coined revolutionary slogan Inquilab Zindabad, added: this proposal would imply that "the provinces would get provincial autonomy only, and if this is so, I will say that all the years of your sacrifices, labours and the 'Quit India' Resolution, one and all will be rendered useless".

The Poet, resting in his grave, might now be amazed that his apprehensions have once again proved correct due to Karnataka Governor's role. He invited leader of BJP legislature party to form the Government without even asking for the list of his supporters. Governor gave him 15 days time to prove his majority - a comfortable period that during which even donkeys can do horse-trading of MLAs.

Like Mr. Mohani, a few other members voiced strong concern over the move to confer discretionary powers to the Governors.

Rohini Kumar Chaudhari from Assam, for instance, stated: "I know to my cost and to the cost of my Province what 'acting by the Governor in the exercise of his discretion' means. It was in the year 1942 that a Governor acting in his discretion selected his Ministry from a minority party and that minority was ultimately converted into a majority".

Mr Chaudhari continued: "I know also, and the House will remember too, that the exercise of his discretion by the Governor of the Province of Sindh led to the dismissal of one of the popular Ministers-- Mr. Allah Bux. Sir, if in spite of this experience of ours we are asked to clothe the Governors with the powers to act in the exercise of their discretion, I am afraid we are still living in the past which we all wanted to forget".

At CA meeting held on 1st June 1949, Mr. Chaudhari added: "we should not waste a single moment in discarding the provisions which empower the Governor to act in his discretion".

Moving an amendment to strip the Governor of proposed discretionary powers, another member H. V. Kamath pointed out that "the Government of India Act of 1935 has been copied more or less blindly without mature consideration. There is no strong or valid reason for giving the Governor more authority either in his discretion or otherwise vis-a-vis his ministers, than has been given to the President in relation to his ministers".

Responding to critics, Dr. B. R. Ambedkar stated: "the retention in or the vesting the Governor with certain discretionary powers is in no sense contrary to or in no sense a negation of responsible government. I do not wish to rake up the point because on this point I can very well satisfy the House by reference to the provisions in the constitution of Canada and the constitution of Australia".

The controversies over the discretionary powers of the Governor bloomed only after non-Congress Governments at the States came up especially after the 1967 elections. Prior to this, there were two cases where the Opposition parties, though having the requisite numbers, were not invited to form the Governments in Tamil Nadu (1952) and Andhra Pradesh (1954).

The Governor's role came in for strong criticism in Parliament in late sixties. It is here apt to quote Banka Behary Das, who initiated a debate during November 1967 on appointment of Governors and their role & powers.

Mr. Das said: "I want at the outset to tell my friends here, and also you. Madam, that the entire country is worried over what is happening in West Bengal today. Before I refer to the question of the appointment of Governor in Bihar I want to say here that virtually there is a cold war between the West Bengal Cabinet and the Government of India through the Governor of that State.

He continued : "And I am afraid that if this cold war continues because of the pressure of the Governor there who is virtually an instrument in the hands of the Central Cabinet here, this may result in a hot war and the first casualty in that hot war may be the Constitution of this country and the democracy of this country".

Another MP, Chitta Basu moved a five-point addition to the Opposition's resolution during May 1969 on urgency to redefine the Centre-State relations. Mr. Basu, among other things, sought to 1) further define the role, functions and powers particularly the discretionary power of the Governors of the States and 2) to reformulate the mode of appointing the Governors.

All such developments both within and outside Parliament would have been reckoned by a study on Centre-State relationships (CSRs) constituted by the the 1st Administrative Reforms Commission (ARC). It used Study Team's report to prepare its own report on CSRs that was submitted in 1969.

According to Sarkaria Commission on CSRs that submitted its report in 1988, ARC observed that there was a wide-spread feeling that, in some cases, Governors were appointed on considerations extraneous to merit. The dignity of the office suffered when persons defeated in elections were appointed. It recommended that the person to be appointed as Governor should be one who has had long experience in public life and administration and can be trusted to rise above party prejudices and predilections. The Government of India accepted this recommendation.

ARC Study Team found that many Governors had fallen short of the standards expected. It suggested that a systematic and careful search should be made to locate the best men for this office.

The appointment of Governors made after submission of ARC reports reek with decisions that only lower the dignity & impartiality of Governor's office. It basically serves as the spoils system for the ruling party and instrument for furthering its political overreach.

It is here pertinent to cite an observation made by Justice Y.K. Sabharwal during September 2006 when he served Chief Justice of India.

Speaking at National Colloquium on 'Ethics in Governance - Moving from Rhetoric to Results, he noted: "the office of Governor is connected by a revolving door with two passages, one leading to civil services and other to active politics. No wonder, senior loyal bureaucrats assume responsibilities of governorship immediately after laying down the offices of civil servant or are ready to enter politics by way of nomination to the legislatures".

Sarkaria Commission recommended 4-point criteria for appointment of governors: (i) He should be eminent in some walk of life. (ii) He should be a person from outside the State. (iii) He should be 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.

The Commission stated: "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.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".

Sarkaria Commission also recommended that the Constitution should be amended to provide for effective consultation with the State Chief Minister in the appointment of governor.

Similar recommendations were made by National Commission to Review the Working of the Constitution (NCRWC) that submitted its report on 31 March 2002.

The Commission on Centre-State Relations (CCSR)/ Punchhi Commission also gave a strong, wake-up to the Centre on Governors' appointment.

In its report in April 2010, Punchhi Commission recommended: "the Central Government should adopt strict guidelines as recommended in the Sarkaria report and follow its mandate in letter and spirit lest appointments to the high Constitutional office should become a constant irritant in Centre-State relations and sometimes embarrassment to the Government itself".

As regards arbitrariness in use of discretionary powers by different governors for similar situations, there is wealth of information in both official and non-official documents.

Sarkaria Commission, for instance, recommended certain principles that should be followed by Governor in choosing a Chief Minister.

These are: A) (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) judgment 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.

Sarkaria Commission suggested: "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.

Similarly, Punchhi Commissioned recommended guidelines that governors should follow when there is a hung assembly. It did so after taking into account reports of previous commissions and court verdicts on disputes over formation of State Governments.

Punchhi Commission's guidelines are:

1. The party or combination of parties which commands the widest support in the Legislative Assembly should be called upon to form the Government.

2. If there is a pre-poll alliance or coalition, it should be treated as one political party and if such coalition obtains a majority, the leader of such coalition shall be called by the Governor to form the Government.

3. In case no party or pre-poll coalition has a clear majority, the Governor should select the Chief Minister in the order of preference indicated below:

a. The group of parties which had pre-poll alliance commanding the largest number;

b. The largest single party staking a claim to form the government with the support of others;

c. A post-electoral coalition with all partners joining the government;

d. A post-electoral alliance with some parties joining the government and the remaining including independents supporting the government from outside;

On the question of dismissal of a Chief Minister, the Governor should invariably insist on the Chief Minister proving his majority on the floor of the House for which he should prescribe a time limit.

The present Government should have acted on all these recommendations, in consultations with the States, shortly after coming to power in 2014. This is because Prime Minister Narendra Modi, was outspoken champion (as Chief Minister) for implementation of recommendations of Sarkaria and Punchhi commissions.

The Government's inaction has dented its credibility. To prevent further erosion of credibility, the Government can issue a Presidential directive to Governors, giving detailed norms to be followed in specific situations requiring use of discretionary powers.

Simultaneously, it can draft a Constitution amendment bill to curtail Governor's discretionary powers to the bare minimum, especially in the sphere of total breakdown of law and order. There should be no room for discretion in the formation of Governments in the event of hung assembly.

The buck begins and stops at Mr. Modi's door.