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Wednesday, Jun 22, 2005

Opinion

Opinion - Leader Page Articles

Time for constitutional statesmanship

Harish Khare

After the recent talkfest at the Conference of Governors, it is time for follow-up action.

LAST WEEK, at their biennial conference, Governors and Lieutenant Governors were treated to a bit of plain talking by both the President and the Prime Minister. Neither A.P.J. Abdul Kalam nor Manmohan Singh mentioned the recent use and abuse of gubernatorial discretion in Patna, Ranchi and Panaji; but it was obvious to the gathering at Rashtrapati Bhavan that both disapproved of the conduct of the three Governors concerned conduct. Otherwise there was no need for either to sermonise at considerable length on the obligations of a Governor. The President, as the Head of the Republic, was performing his role as the guardian of constitutional virtues, and that is where his role should end. On the other hand, the Prime Minister, as the nation's chief political executive, cannot feel satisfied with having made a remarkably lucid delineation of the Governor's ideal role. It is not enough for every constitutional functionary to pretend that Patna, Ranchi and Panaji were just bad cases and then move on.

The Governors are selected mostly from the pool of retired politicians and it is unnatural to expect them to de-link themselves from their past associations, friendships, ties or to thaw overnight their frozen thinking. Retired bureaucrats, policemen or army officers are no different; if anything, they are more political than politicians because only those mandarins get the Raj Bhavan nod who have perfected the art of catering to their political masters' whims. Yet as Vice-President Bhairon Singh Shekhawat pointed out, the Governor takes an oath, under article 159(1) to "preserve, protect and defend the Constitution and the law." And beginning with C. Rajagopalachari, who went from being an active politician to Governor-General and then reverted to his political persona, there have been many instances of blue-blooded politicians making the transition to the constitutional role. But what if a Governor does not live up to the letter and spirit of that oath? Who will apply the corrective? Constitutional statesmanship enjoins that aberrations be corrected and be seen to be corrected and those who create those aberrations be effectively de-frocked. The "system" has to be bigger than individuals, whatever may be the political compulsions or the electoral calculations of the day. For the benefit of the Governors, the Prime Minister quoted his teacher Lord Kaldor's wise words, "the progress of a country depends critically on those whose ideas and motivations influence the critical decision that guide a nation." The Prime Minister's own responsibility — in fact, a duty to act — becomes clear.

The larger question is how to preserve the institutional character of the office of Governor. If the Governors in these three Raj Bhavans acted either at the behest of the Centre (a charge the Union Home Ministry will be well within its rights to deny vehemently) or the central Congress leadership, the message must go down to them and to other Governors that there would be a price to pay if Raj Bhavans depart from the path of constitutional correctness. The legality of the Bihar Governor's action, in any case, is still under contention before the Supreme Court and it would be instructive to find out how the apex court deals with the issue of an Assembly being dissolved even before it has come into force.

And even if the Bihar Governor gets a judicial nod, must today's aberrations become tomorrow's precedents? If today the Congress-appointed Governors get away with behaving in an extremely partisan manner, then tomorrow another category of Governors can behave with greater brazenness and live to justify it. The institution of Governor has to be rescued from errant occupants of the post. This is a matter that needs to be pondered over by the Congress president herself. If these Congressmen-turned-Governors acted in a manner contrary to the high command's preferences, should the party leadership not haul them over the coals? And in the case of Bihar, the United Progressive Alliance leadership can be relied upon to have its political wits about it to realise that the continuing presence of Buta Singh in the Patna Raj Bhavan is the surest way to help coalesce anti-Lalu Prasad , anti-Centre and anti-Governor sentiments.

Downstream effects of the gubernatorial misdemeanours are many and equally injurious to the polity's constitutional health. First, the National Democratic Alliance leaders have made a habit of embroiling Rashtrapati Bhavan in the matter. The President in a way has no option but to grant audience to senior Opposition leaders; he or his staff have no way of controlling what kind of spin these leaders choose to put on their interaction at Rashtrapati Bhavan. The President is needlessly dragged into a partisan controversy because Governors fail to do their job with the requisite application of constitutional mind.

Any day it is an unhappy development when Rashtrapati Bhavan is sought to be made the battlefield for political skirmishes and media manoeuvring. In these days when almost all institutions are being ridiculed, a President may be tempted to become too active for the Republic's own good. The onus is on the political leadership to ensure that its disputes do not end up creating space for presidential ambitions of the kind once entertained by Zail Singh. Given the fractiousness built into the coalition arrangements, and given the unleashing of prime ministerial ambitions among those unversed in constitutional morals and manners, presidential activism can become too tempting a proposition.

Secondly, and worse, a Governor's indiscretion ends up in condoning a certain kind of political criminality. The immediate and more serious ramification, for instance, of the episode in Jharkhand was that the attention got diverted from politically immoral practices. These include use of musclemen to kidnap newly elected legislators or use of enormous money power to buy their loyalty; then, using the resources and protection of another (friendly) State Government to shelter the flock. It was rather clever of the NDA's managers to ensure that the media focussed on the Governor's imperfect exercise of his obligations.

Debilitating cycle

Such tactics, in turn, produce a deleterious effect on Chief Ministers and their capacity to deliver governance. The criminals who come in handy for procuring or protecting elected legislators from poaching and counter-poaching demand their pound of flesh. The polity keeps lowering its threshold of tolerance; political leaders feel obliged to give in the criminal elements. The moneybags too make their own demands. It is time to break this debilitating cycle.

In his speech, the Prime Minister suggested that the Governors "are extremely well placed to assess long term trends in many matters and utilise the wisdom at their command to aid governments in their actions." Well spoken. But only those Governors who act wisely can hope to be heeded by Chief Ministers. For instance, Uttar Pradesh Governor T.V. Rajeshwar, with becoming dignity, used his constitutional discretion to tame a rampant Minister. Or take the case of Arunachal Pradesh Governor S.K. Singh, who exhibited personal courage and perseverance to travel to the so-called "insurgency-infested" districts and came back to tell the Chief Minister a thing or two. A Governor cannot act as a cohort of a dubious political leader.

It is a painful reality that as our democracy deepens, the newer social forces that are able to secure a place at the high table do not always bring with them an appreciation of the restraints and responsibilities of power; for them, constitutional provisions are cumbersome and dispensable. These raw impulses need to be tamed. Constitutional statesmanship means assertion of legal provisions and procedural fairness. As President, K.R. Narayanan exhibited this quality when he forced the I.K. Gujral Government to reconsider (and thereby abandon) its idea of invoking Article 356 in Uttar Pradesh; and because he had demonstrated a certain kind of constitutional statesmanship, he could send back similar advice from the Vajpayee Government in the case of Bihar.

If the Prime Minister meant what he said, then his course of action is clear. Either he must initiate a change of personnel in the three Raj Bhavans as the only way of constitutional atonement or he should show the courage of his convictions and introduce a new format for the appointment of Governors. The Sarkaria Commission has made clear and precise suggestions as to how the Raj Bhavans would be staffed, and successive Central Governments have found these suggestions unpalatable. Every political dispensation wants to benefit from discretion and grey areas; it is the task of statesmen to break out of this lure of political immediacy. If Dr. Manmohan Singh can reform the system of gubernatorial appointments and inoculate the Raj Bhavans against intriguers, this could set in motion a new institutional culture as the first necessary step towards good governance. If, on the other hand, the Prime Minister cannot stand by constitutional punctiliousness, he will help the entrenchment of an idiom of political criminality.

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