Cooperative federalism

Governing the Governors

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The cartoon by Kutty in The Indian Express dated April 10, 1967, which depicts Chief Ministers queuing up with begging bowls and pleading for powers from the Central government. Photo: By Special Arrangment

The federalisation of the party system and the emergence of coalition politics make cooperative federalism a political necessity.

“The State pleads for more powers,” reads the caption of a cartoon in the chapter on federalism in the Class 10 NCERT Social Science textbook. The cartoon, which depicts Chief Ministers queuing up with begging bowls and pleading for powers from the Central government, sums up the nature of Indian federalism. The trauma of Partition, the threats of communalism and secessionist tendencies prompted the Constitution makers in India to opt for a federal polity with a strong Centre. As opposed to the available United States federal model of “indestructible union of indestructible States”, the framers of our Constitution defined the Indian federation as an “indestructible union of destructible States”.

In Federal Government, Professor K.C. Wheare aptly calls India a unique case of quasi-federal state, a unitary state with subsidiary federal features. In his seminal work, The Indian Constitution, political scientist Granville Austin describes the Indian federation as an example of cooperative federalism that produces a strong Central government but does not result in weak provincial governments. Over the past seven decades, Indian federalism has witnessed several phases and evolved, with new democratic trends such as coalition politics, federalisation of the party system, judicial interventions, the emergence of powerful regional satraps and so on.

The Supreme Court’s intervention in the past two months vis-a-vis the conduct of the Governor of Karnataka and the constitutional status of the Lieutenant Governor (L.G.) of Delhi following his tussle with the Delhi government has once again exposed the fissures in the federal structure of the country. The five-judge bench of the Supreme Court in its July 4 judgment in Government of Delhi vs Union of India stated that the elected representative was the real executive and that the L.G. must act as per the “aid and advice” of the elected government except in matters of land, police and public order. The judgment clarified the Constitutional status of the L.G. as an administrator in the limited sense, who should act in the spirit of the constitutional trust and morality. Although the apex court has handed over the case to a division bench for further clarification, the verdict has reignited issues relating to the office of the Governor, a legacy of the British colonial administration.

In the Constituent Assembly

Articles 154 and 155 of the Constitution provide for the appointment of the Governor by the President as the executive head of the State. Seen as the lynchpin of the constitutional apparatus of the State, the office of the Governor has been pivotal in holding together the units of the federal polity. Given the experiences of the nationalist leaders with the Governor in the British Indian provinces following the Government of India Act of 1935, the nature of his office was widely debated by the Constitution makers. Biswanath Das, a member from Orissa and future Governor of Uttar Pradesh, expressed his apprehensions before the Assembly on June 2, 1949: “What has been the experience in the provinces since Congressmen came into power in Independent India? How has the Governor functioned? It is common knowledge, and it has been repeated by responsible members of this House that the Governor was nothing but a cipher. If that be the case, how is it then that this Governor, this nominated Governor, nominated by the President and the Central Government and the Ministers elected by the State Unions and the Provinces will be able to co-operate?” Another member, K.T. Shah, added: “The Governor is a bird of passage…It is improper and unreal, therefore, to suggest that every executive action be in the name of the Governor.”

Thus, foreseeing the possibility of misuse of his office, some of the members expressed reservations about the impartial functioning of a nominated Governor endowed with “discretionary powers”. However, there were others, such as Jawaharlal Nehru, K.M. Munshi and P.S. Deshmukh, who argued that the Governor should be a nominated head of the State with sufficient powers to discharge his constitutional duties. In a debate on June 2, 1949, P.S. Deshmukh opined: “After all the Governor is essentially a link between provincial autonomy and the President and the Government of India, and that function he can discharge adequately only if he has the authority to ask the Cabinet to reconsider certain things and also to keep himself informed from day to day as to what orders have been issued and what sort of administration is being carried on.” Prior to this, on May 31, 1949, in his defence of a “nominated Governor”, Nehru had reasoned that an elected Governor may not only fuel separatist provincial tendencies but also be a financial burden. He proposed that the Governor, nominated as such, be a detached figure who can rise above party politics, a person eminent in other walks of life, such as an educationist. Earlier, Mahatma Gandhi, an ardent advocate of decentralisation of power, had also maintained in the Harijan on December 21, 1947, that the Governors should have enough power, enabling them to influence government policy for the better and “in their detached position they would be able to see things in their proper perspective and thus prevent mistakes by their cabinets”.

The given historical background sets the stage for a discussion on the future of federalism in India vis-a-vis the office of the Governor who has to balance his “dual role” as the constitutional head of the State and the representative of the Centre. Of the several legislative, executive, financial and judicial powers of the Governor, it is the exercise of his discretionary powers that has been the bone of contention between the Centre and the States since Independence. The most controversial of these are the power to appoint the Chief Minister under Article 164; the right to summon, prorogue and dissolve the Legislative Assembly as per Article 174; and the recommendation of President’s rule under Article 356 in case of breakdown of the Constitutional machinery. In a well-known case of the blatant misuse of the Governor’s power under Article 356, the E.M.S. Namboodiripad government in Kerala was dismissed in 1959 by the Nehru government. The dismissal of a democratically elected government set a wrong precedent and marked the beginning of employing President’s rule as a political tool on several occasions, based on the whims and fancies of the Governor. Indira Gandhi’s three tenures (1967-1977 and 1980-84) and the Janata Party government’s brief term (1977-1980) witnessed widespread abuse of Article 356.

The 1967 elections, which led to the formation of non-Congress governments in several States were a watershed in India’s electoral democracy and a big jolt to the “Congress system”. They marked the beginning of the phase of confrontational federalism. The electoral outcome brought to the forefront a dilemma posed earlier by Biswanath Das in the Constituent Assembly on May 31, 1949: “It may be that a party absolutely different from that in the Centre may be functioning in office in a province. What would then be the position (of the Governor)?” As it became amply clear, the Governors during this phase began to vigorously play their roles as agents of the Centre with a complete disregard for constitutional morality. Such politically motivated roles have continued across regimes from the United Progressive Alliance to the National Democratic Alliance, be it the wrongful dissolution of the Bihar Legislative Assembly by Governor Buta Singh in May 2005 or the constitutional crisis triggered by the unlawful advancement of the Assembly session and subsequent imposition of President’s rule in Arunachal Pradesh by Governor J.P. Rajkhowa in 2016.

Time and again, judicial intervention has ensured the protection of the federal structure, and the judges have reprimanded the Governors for failing to perform their constitutional duties. While the Constitution Bench of the Supreme Court indicted Buta Singh of “malafide intent”, it condemned the Arunachal Governor’s move as a “thrashing given to the Constitution and a spanking to governance”. The Supreme Court verdict in S.R. Bommai vs Union of India in 1994 was a landmark judgment that limited the constitutional power of the Central government to dismiss State governments. The nine-judge bench asserted that the only way to assess the strength of the State government was the floor test and it was not a matter of private opinion either of the Governor or the President. Moreover, the bench declared that the imposition of Emergency under Article 356 was justified only in the event of breakdown of the constitutional (and not administrative) machinery and the event that the proclamation was not immune to judicial review.

Sarkaria recommendations

The rise of regional parties and the emergence of influential State leaders triggered the necessity for a responsible federalism sensitive to the needs of the constituent States. This resulted in the formation of several committees and commissions to recommend measures for harmonious Centre-State relations, such as the Administrative Reforms Commission I (ARC 1966), Rajamannar Committee (1969), Sarkaria Commission (1983), National Commission to Review the Working of the Constitution (2000) and Punchhi Commission (2007), to name a few. With regard to the office of the Governor, the study team of the ARC observed: “The post came to be treated as a sinecure for mediocrities or as a consolation prize for what are sometimes referred to as ‘burnt out’ politicians. Instead of these being treated as sinecures, they should be given due recognition as vital offices in the federal fabric of Indian administration.”

To address the issue of removal of Governors appointed by the previous regime, the Rajamannar Committee suggested that the Governor should not be removed except under proven misbehaviour or incapacity on an inquiry by the Supreme Court. It also proposed the immediate constitution of an Inter-State council mandated by Article 263 of the Constitution.

However, of the several commissions, the Sarkaria Commission on Centre-State relations gave the most extensive recommendations, running into 21 chapters. The Commission warned that the Emergency provision under Article 356 should be used “very sparingly, in extreme cases” as the last resort when all available alternatives failed. Moreover, the Legislative Assembly should not be dissolved until the Emergency proclamation under Article 356 has been laid before and considered by Parliament. To prevent prejudices in the functioning of the State governments, it suggested that the Governor should be an eminent person from outside the State and should be a detached figure without intense political links or should not have taken part in politics in the recent past. As regards fiscal federalism, it recommended the sharing of corporate tax with the States and the constitution of an expert committee to review the scope of levying taxes under Article 269. Laying down guidelines for the appointment of Chief Ministers in the event of no party securing an absolute majority, it suggested that in the absence of a pre-election alliance, the leader of the single largest party claiming to form government with others should be invited to form the government. These recommendations have often been flouted, the most recent instance being in the States of Karnataka, Goa and Uttarakhand where the Governor used his discretionary power arbitrarily and invited the Bharatiya Janata Party (BJP) to form the government. Such arbitrariness reminds one of the decision of the Madras Governor Sri Prakasa in 1952 to invite C. Rajagopalachari, who was not a member of either House, to form the government in 1952. Moreover, post-Sarkaria Commission, Governors have been “political loyalists”, actively engaged in the politics of the ruling party at the Centre.

Of the several constitutional provisions around which the federal structure has been built, including division of powers under the Seventh Schedule, Finance Commission, institutions of local self-government, administrative structure of the all-India services, river water tribunals and Planning Commission/NITI Aayog, the office of the Governor has been the Achilles heel in the Centre-State relationship. A healthy federation is indispensable in the contemporary scenario, which is marked by political instability, dangers to internal security posed by non-state actors, secessionist tendencies, economic competitiveness and so on. In the era of globalisation, several States compete with one another as well as the Centre in order to attract investors by organising “business summits” to generate their own revenue. Moreover, the federalisation of the party system and the emergence of coalition politics make cooperative federalism a political necessity. In the era of multiparty democracy and fractured mandates, no ruling party at the Centre can readily claim invincibility in the electoral battle and hence they need to tread cautiously before offending an opponent in the States. Any misuse, therefore, of the office of the Governor to undermine popularly elected governments in the States is detrimental to the smooth functioning of federal-democratic polity. The Constitutional mandate is in favour of the Centre to secure national unity and political stability. The Centre should not do it at the cost of compromising the relative autonomy of the States. Over-centralisation may be suicidal for the Centre and the States, and as the Sarkaria Commission had cautioned, may lead to “blood pressure at the Centre and anaemia at the periphery, resulting in morbidity”. True to the spirit of federalism enshrined in the Constitution, the Centre should function in tandem with the States to address inter-State disparities and the Governors should work harmoniously with the State governments. The urgent necessity for the depoliticisation of the post of Governor reminds one of a famous quote by the Roman satirist Juvenal, though it is taken from a slightly different context: “Who will guard the guards themselves?” When discretion becomes synonymous with arbitrariness, when the office of Governor lacks checks and balances and the will of the people is brutally trampled upon, the civil society is impelled to frame the Juvenalian question: “Who will govern the governors?”

Anushree has worked on dynastic politics for her doctoral work at the Centre for Political Studies of Jawaharlal Nehru University.

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