The Hindu : Opinion / Editorials : A FLAWED INSTITUTION

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Monday, Jul 05, 2004

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A FLAWED INSTITUTION

THE CENTRE'S DISMISSAL of four Governors has focussed attention on the long-term distortions that have characterised the appointment, performance and replacement of those who have occupied the constitutional office of Head of State. Statements made by the Union Minister of State for Home, Prakash Jaiswal, and the Congress spokesperson, Anand Sharma, suggest that the reason for axing the four Governors was their closeness to the Rashtriya Swayamsevak Sangh. The Home Minister, Shivraj Patil, has gone on record with the explanation that the United Progressive Alliance Government has "taken action in States where the incumbents had different ideologies, and also where there is [a] history of trouble" and that "removing them was a precautionary measure." The new Government did make an effort to secure resignations by exerting pressure through leaks in the media and perhaps by other means but when the Governors dug in, evidently under instructions from those who had appointed them, dismissal was politically unavoidable. The whole episode raises an issue of wide-ranging constitutional and political import — one that relates to the conventions and practices that should govern the choice of Governors.

There can be no justification for cashiering Governors merely because they are `political appointees': to do so would set a bad precedent and result in the unhealthy practice of virtually all Governors being replaced every time there is a change of government at the Centre. If the Government had substantive reasons to feel dissatisfied with the manner in which the Governors of Uttar Pradesh, Gujarat, Haryana and Goa were performing their constitutional functions, it would have been appropriate to spell them out before effecting the dismissals. A transparency rule must be laid down for all such cases; Mr. Patil's contention that there should be no public discussion or debate on the high office of Governor doesn't wash. It is the failure to reveal the reasoning behind such acts that fuels rumour and speculation, lowering the dignity of the office. Will the axe fall next on Madan Lal Khurana, a former Bharatiya Janata Party Chief Minister who is Governor of Rajasthan, and Rama Jois, Governor of Bihar who is a Sangh Parivar sympathiser? Was Mr. Khurana kept in place because his removal might see him return to active politics in Delhi, now ruled by the Congress? What was the real intention behind dismissing four Governors in Opposition-ruled States? Was the decision to replace the Head of State in Uttar Pradesh — where the Congress is engaged in a psychological war with Chief Minister Mulayam Singh Yadav's Samajwadi Party-led Government — to pre-empt trouble or to create fresh trouble by exploiting the services of a new pliant Governor? Such questions will remain unanswered given the shroud of opacity the Home Minister has placed over the dismissals as well as the non-dismissals.

The larger and more significant question is why the institution of Governor, supposedly designed for maintaining links and building harmony between the Centre and States within a framework of `cooperative federalism', has become a hotbed of controversy. The central issue relates to the capabilities and attributes of those who have been appointed to gubernatorial office over the long term. Article 157 of the Constitution merely lays down two basic qualifications: Indian citizenship and a minimum age of 35. Article 158 prescribes a couple of technical conditions: a Governor shall not hold an office of profit and shall not be a member of Parliament or a State Legislature. Unfortunately, no qualitative criteria for appointment have been laid down by the Constitution; nor have they evolved in practice over half a century. Over the years, a number of committees, commissions and legal experts have called for some kind of criteria to govern appointments. The Sarkaria Commission, for instance, recommended that the Governor should be a "detached figure," someone who has "not taken too great a part in politics generally and particularly in the recent past." Given the long-term misuse of the power of appointment and the consequent notoriety achieved by many a Governor, such a reformist notion is a pie in the sky. But the malaise runs much deeper. In fact, the answer does not seem to lie in looking for detachment from active politics. Experience suggests that political leaders of integrity, objectivity and respect for the Constitution can make good Heads of State: witness the salutary example set by Dr. Shankar Dayal Sharma in the mid-1980s when he went to Andhra Pradesh as Governor and cleared up, in no time at all, the constitutional mess created by his predecessor. On the other hand, some Governors with a civil service, police, Army or even judicial background have made a hash of the job, committing blunders or improprieties that have brought the office into disrepute. The performance of one Governor with a foreign service background at the Raj Bhavan in Lucknow is a telling case in point.

What the Governor's office really requires is not political detachment but integrity, independence and sobriety rooted in constitutional values. Above all, the constitutional office of Governor must transform itself into something that cannot be converted into an agency of the Centre, to be used, where deemed politically necessary, against opposition State Governments. But given the constitutional power of appointment and removal by the Centre, is this notion also a pie in the sky? Given the circumstances, the best way of finding the right men and women for the job is to go beyond mechanical formulae and evolve a serious consultative mechanism for the selection. The Sarkaria Commission had something like this in mind when it recommended "the Vice-President of India and the Speaker of the Lok Sabha should be consulted by the Prime Minister in selecting a Governor." But that clearly would not be enough. In a federal or quasi-federal political system, it is necessary to establish a method by which the Chief Minister is always consulted before the Governor of the State is chosen. The debates in the Constituent Assembly suggest that its members felt that such a convention must be adhered to. The Sarkaria Commission went so far as to recommend a constitutional amendment to make such consultation mandatory. Sadly, the idea failed to take root. Instead, Central Governments of varying political hue have preferred to select and use Governors as "agents of the Centre" rather than as vital links between the Centre and the States working with a federal spirit.

Can Governors be removed before their normal term of five years? The answer seems to be that there is no constitutional bar to this. Article 156 provides that the Governor "shall hold office during the pleasure of the President" and that a Governor may, in a signed letter addressed to the President, resign his or her office at any time. It is only "subject to... [these] provisions" that the Constitution prescribes that a Governor should have a five-year term of office. And since "the President's pleasure" is determined exclusively by the political decision of the government of the day, there can be no reasonable doubt about the constitutionality of the latest dismissals. Political realism suggests that the issue of replacement of Governors, either through forced resignation or dismissal, is integrally linked to the process of appointment. If the selection is institutionally flawed, and against the spirit of the Constitution, a Governor's normal term in office is increasingly likely to be co-terminus with the political rule of those who appointed him or her — on the basis of no transparent criteria or standards.

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