Governors: The Puppet Show Continues

By Prabhakar Timble
22 June 2014 05:21 IST

There should be no controversy over the fiat of Prime Minister Narendra Modi for the premature recall of the governors appointed during the UPA regime as it is no different from the established political behaviour of the party in power at the centre. The Prime Minister is blindly following with renewed arrogance the great unhealthy convention of considering the governors as puppets of the party in power at the centre. The ruling clique considers appointment, recall, removal and transfer of governors as its right and privilege, however unceremonious and disreputable it may be. It cannot be construed as unconstitutional due to the absence of any express constitutional embargo on the power of the Prime Minister. It is impulsive to hold it unethical as there are no ethical precedents to the contrary. Ethics is a set of moral codes which are created by adhering to the constitutional spirit. Our political parties have miserably failed in this direction. Every new regime at the Centre has added disgrace to the ‘office of the governor’. Narendra Modi is mechanically carrying forward this bad and offensive heritage.

 

Roots in initial appointment

The gubernatorial post is more decorative than useful. Incumbents to the office are aware that they are purely political appointees and accommodated being senior ‘partymen’ and loyalists. If they do not resign waiting for a reasoned order, they need to be wise to understand that their initial appointment was not based on a reasoned criteria. It is better to step down to maintain the decorum of the office in public mind rather than choosing the path of humiliation, however unjustified the crackdown may be.

 

The stand of the Congress party that it would take a decision on whether their governors should walk out or wait to be sacked is self-defeating as it further glorifies pure political appointments. Once in the shoes of a governor, the incumbent should cease to be a worker or leader of the political party. Such a stand is not conducive for smooth working due to stigma of prejudice and the likelihood that the incumbent will toe the party line instead of the policy formulated by the state government. The agenda before the governor is to be the facilitator and friend of the government on the one hand and guard and defend the constitution simultaneously.  While some of them may come from a political background, once they are appointed as Governors, they owe their allegiance and loyalty to the Constitution and not to any political party and are required to preserve, protect and defend the Constitution. 

CAD learnings

The Constituent Assembly debated on the merits and demerits of an elected versus nominated Governor. Holding that in a parliamentary system, the Head of government (Governor) should be impartial, the choice of elected governor was turned down as a direct vote of people would throw up partymen as governors. The Constituent Assembly recorded that “He should be a more detached figure acceptable to the province, otherwise he could not function and yet may not be a part of the party machine of the province. On the whole, it would probably be desirable to have people from outside, eminent in something, education or other fields of life who would naturally cooperate fully with the government in carrying out the policy of the government and yet represent before the public something above politics”.

The Sarkaria Commission on centre-state relations laid down guidelines for appointment of governors which were reiterated by the National Commission appointed to review the working of the constitution (2002). It was enunciated that the incumbent should be one who has not taken too great a part in politics generally and particularly in the recent past. The recommendations underlined that persons belonging to the minority groups should be given a chance in appointment. In the interests of cooperative federalism it was suggested that the five-year term should be adhered and appointment, removal or transfer should be following the procedure of effective consultation with the Chief Minister of the concerned state. This should not be taken to mean concurrence of the Chief Minister as the basic norm of appointment by the President on the advice of the Prime Minister should not be diluted. If these parameters are followed, it would avoid stress and strain between the governor and state government as well as between centre and states. However, no political party in power has shown intent to implement such best practices.

Judicial view

The contention of the Supreme Court in respect of the provision that the governors hold the office subject to the doctrine of pleasure is set in B. P. Singhal versus Union (2010). “Like the President, Governors are expected to be apolitical, discharging purely constitutional functions, irrespective of their earlier political background. Governors cannot be politically active. We therefore reject the contention of the respondents that Governors should be in "sync" with the policies of the Union Government or should subscribe to the ideology of the party in power at the Centre. As the Governor is neither the employee nor the agent of the Union Government, we also reject the contention that a Governor can be removed if the Union Government or party in power loses `confidence' in him”. The Governor holds office during the pleasure of the President. At the same time, the Supreme Court was in no mood to dilute the power of the President for the appointment and removal of Governors by holding that the President can remove the Governor from office at any time without assigning any reason and without giving any opportunity to show cause of course with a rider. The Supreme Court laid down that the power under Article 156(1) cannot be exercised in an arbitrary, capricious or unreasonable manner. The power will have to be exercised in rare and exceptional circumstances for valid and compelling reasons. The Supreme Court refrained from enlisting the compelling reasons so as to provide unrestricted scope to the President by merely commenting that the compelling reasons would depend upon the facts and circumstances of each case.  What is therefore clear is that governors cannot be removed mechanically and without recording reasons.

At the same time, the Supreme Court was loud to state that a Governor cannot be removed on the ground that he is out of ‘sync’ with the policies and ideologies of the Union Government or the party in power at the Centre. Nor can he be removed on the ground that the Union Government has lost confidence in him. It follows therefore that change in government at Centre is not a ground for removal of Governors holding office to make way for others favoured by the new government. The Courts would interfere only if the aggrieved person is able to demonstrate prima facie that his removal was either arbitrary, malafide, capricious or whimsical. However, the court will not interfere merely on the ground that a different view is possible or that the material or reasons are insufficient. Hence, what the Supreme Court has laid down is the necessity of a reasoned decision. As long as the premature removal has some rational basis, the action would not be hit. The Supreme Court also made it clear that it would not adjudicate on the merits of the reasoned decision.

Setting new precedents

"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 …....... he would 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." This vision expressed by Shri Jawaharlal Nehru in the Constituent Assembly could be the guiding force for a consensus between political parties. 

For maintaining the dignity of the office of governor and for ensuring that incumbents to this constitutional office are not treated as civil servants by invoking the doctrine of pleasure blindly, it would be wise if political parties and their leaders discuss, debate and arrive at possible national policy with some common minimum parameters applicable and acceptable to all major political parties. These common parameters should be evolved not only for removal or transfer of governors but also for appointment of governors. Just as removal before term needs a reasoned application of mind, the appointment too should not be totally arbitrary, whimsical and partisan.

This is a call which Narendra Modi should take to testify that his leadership and innings is different from predecessors. Otherwise, it would be assessed as mere rhetoric and motivational verbosity. This is an opportunity for the Prime Minister to make a qualitative departure or be the inheritor of the same ruthless and bad practices.

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Prabhakar Timble

Mr Prabhakar Timble is an educationist and a legal expert. He has served several educational institutions, especially as the Principal of Government College at Quepem, Kare College of Law in Madgao as well as couple of Management Institutes. He was also the State Election Commissioner of Goa.

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