The Governor and her role

The demand for the recall of the Tamil Nadu Governor is flawed. Removing the Governor under the given circumstances will be an arbitrary and unlawful act.

WHEN the Legislature Party of the All India Anna Dravida Munnetra Kazhagam (AIADMK), which enjoys a majority in the Tamil Nadu Assembly, elected Jayalalitha as its leader, the Governor appointed her Chief Minister. Protesting against the action of the Governor, the Tamil Nadu unit of the Bharatiya Janata Party passed a resolution urging the Centre to recall the Governor. Following this, the general council of the Dravida Munnetra Kazhagam (DMK) also demanded the "immediate recall" of the Governor. When mediapersons reminded DMK president M. Karunanidhi of his earlier decision not to press for such a recall, he contended that after the general council resolution his own view was "personal".

When Prime Minister A.B. Vajpayee and Home Minister L.K. Advani categorically rejected the demand, the Tamil Nadu unit of the BJP withdrew it. But the DMK persists with the demand.

The differences between the two major partners of the National Democratic Alliance in Tamil Nadu and the changes in their decisions are understandable. The DMK is mainly concerned with its position as the major Opposition party at the State level. But the BJP, which heads the Union government, has to take decisions keeping in view their implications for Centre-State relations and the political ramifications at the national level. Moreover, if it takes questionable steps to transfer or dismiss the Governor, it may have to face judicial orders that are unfavourable to its action. In Mahabir P. Sharma v Prafulla C. Ghose and others (AIR 1969, Calcutta 198), the Calcutta High Court held: "The Governor in making the appointment under Article 164(1) of the Constitution acts on his sole discretion. The exercise of this discretion by the Governor cannot be called in question in writ proceedings."

The New Indian Express (Chennai) reported on June 3: "Recently after meeting with the Home Minister, Dr. Subramanian Swamy had claimed that Advani had not been taken into confidence by the Tamil Nadu Governor before she invited Jayalalitha to form the government and that the Home Minister was upset about it."

BASICALLY, there is an erroneous impression in general on the role and the powers of a Governor. It is true that the Governor is appointed by the President and holds office during the pleasure of the President. As the President acts in accordance with the advice of the Union Cabinet, it is assumed that the Governor is an employee and agent of the Centre and should consult the Union government before taking decisions even in matters where the Governor has discretionary powers.

One has to be clear about the role and constitutional position of the Governor before finding fault with the action taken by the Tamil Nadu Governor.

The Constituent Assembly started with various proposals, ranging from direct election of Governor to selection of a person from a panel submitted by the State legislature. The drafting committee finally accepted the proposal that the Governor should be appointed by the President. When the draft articles came up for discussion, members of the Constituent Assembly, most of them from the Congress party, were alert to point out that an appointment by the President would mean an appointment by the Union government and it would place the Governor inevitably under the control of the ruling party at the Centre.

Biswanath Das (Congress, Orissa) was forthright: "If I were to have my leaders in office continuously, if I were to have men like Pandit Jawaharlal Nehru and Sardar Vallabhbhai Patel, I have absolutely no complaint... there is no knowing which party will be in power (in the future). 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? The Governor, who is the constitutional head under the Act, has to be appointed on the advice of the Prime Minister of India, leader of another party. I would have cited how the Governor, who was the agent of the British Imperialism, had all along been attempting to smash my Party. What was being done by the British Imperialism may also be repeated by the Party (at the Centre)" (Constituent Assembly Debates, May 31, 1948).

Dr. B.R. Ambedkar, the chairman of the drafting committee, said: "Under the parliamentary system of government, there are only two prerogatives which the King or the Head of the State may exercise. One of them is the appointment of the Prime Minister and the other is the dissolution of the House. With reference to the Prime Minister, it is not possible to avoid vesting the discretion in the President." To a query about the position of the Governor in a State, Ambedkar said: "The position of the Governor is exactly the same as the position of the President."

However, the norms of appointment and the credibility of the office of Governor deteriorated fast to become a major cause of disharmony in Centre-State relations. The Study Team (October 1967) of the Administrative Reforms Commission on Centre-State Relationship stated: "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" (para 18.3).

The need to give due recognition and respect to the office of Governor as a vital part of the federal structure came to be emphasised after the 1967 elections when different parties, individually or collectively, emerged victorious to form governments in many States. Inaugurating the National Convention on Union-State Relations in Delhi on April 3, 1970, Vice-President G.S. Pathak said: "In the sphere in which he (Governor) is required by the Constitution to exercise his discretion, it is obvious again that it is his discretion and not that of any other authority and therefore his discretion cannot be controlled or interfered with by the Centre."

The Committee of Governors appointed by President V.V. Giri affirmed in its report (1971): "Moreover, under the Constitution, just as a State is a unit of the Federation and exercises its executive powers and functions through a Council of Ministers responsible to the Legislature and none else, the Governor, as the Head of the State, has his functions laid down in the Constitution itself, and is in no sense an agent of the President" (page 8).

The Rajamannar Committee Report (1971) recommended: "He (the Governor) should not be liable to be removed except under proved misbehaviour or incapacity after inquiry by the Supreme Court."

The Sarkaria Commission Report on Centre-State Relations (1988) noted: "Frequent removals and transfers of Governors before the end of their tenure have lowered the prestige of this office. Criticism has been levelled that the Union government utilises the Governors for its own political ends. Many Governors looking forward to further office under the Union or active role in politics after their tenure came to regard themselves as agents of the Union" (para 4.1.02, Part I).

In response to a questionnaire from the Sarkaria Commission on Centre-State Relations, the State governments and the leaders of various parties gave their views. Some parties were for the abolition of the post of Governor itself. Here, let us confine ourselves to the opinions given by the BJP and the DMK about the role of the Governor.

The BJP stated: "He (Governor) is the constitutional head of the State government which in turn is responsible only to the State legislature. On the other hand, he is appointed by the President, which in fact means the Central government. It is no doubt true that the Governor is appointed by the President but that does not make him an employee or servant of the government. The Governor should be appointed for a term of five years by the President from a panel prepared by the Inter-State Council. The Governor should be removed only by impeachment in Parliament by a procedure analogous to that provided in the case of a Judge of the Supreme Court. He is not to be transferred from one State to another" (page 619, Vol.II).

Incidentally, now that the BJP is in power, I hope it will initiate steps to implement some of the suggestions made by it to restore the dignity and credibility of the office of Governor.

In his reply to the questionnaire of the Sarkaria Commission (on Centre-State relations), Karunanidhi said: "Pandit Nehru described in The Discovery of India that the Governors were acting on instructions from New Delhi or Simla. The same position continues even now. The Governors act as the agents and spies of the Centre and their executioners of democracy in the States. During 1977 when the DMK Government was dismissed in Tamil Nadu it was said that the Centre did so on the report of the Governor. It was not so. The report was prepared and kept at New Delhi and the Governor was later summoned to affix his signature after the Proclamation was issued under Art. 356" (pages 732-733, Vol.II).

It is of interest to note here that apart from the considered views of the constitutional experts and commissions of study, the Supreme Court specifically went into the constitutional position of governorship. In Hargovind Pant v Dr. Raghukul Tilak (AIR 1979, SC 1109), a Constitution Bench comprising five Judges of the Supreme Court observed: "Every person appointed by the President is not necessarily an employee of the Government of India. So also it is not material that the Governor holds office during the pleasure of the President. It is a constitutional provision for determination of the term of office of the Governor and it does not make the Government of India an employer of the Governor. The Governor is the head of the State and holds a high constitutional office which carries with it important constitutional functions and duties and he cannot be regarded as an employee or servant of the Government of India. His office is not subordinate or subservient to the Government of India. He is not amenable to the directions of the Government of India, nor is he accountable to them for the manner in which he carries out his functions and duties. He is an independent constitutional office, which is not subject to the control of the Government of India. He is constitutionally the head of the State in whom is vested the executive power of the State".

In his monumental work, Constitutional Law of India, eminent jurist H.M. Seervai said: "As the President acts on the advice of his Ministry, it may be contended that if the Governor takes action contrary to the policy of the Union Ministry, he would risk being removed from his post as Governor and therefore he is likely to follow the advice of the Union Ministry. It is submitted that a responsible Union Ministry would not advise, and would not be justified in advising, the removal of a Governor because in the honest discharge of his duty, the Governor takes action which does not fall in line with the policy of the Union Ministry. The removal of the Governor under such circumstances would otherwise mean that the Union executive would effectively control the State executive, which is opposed to the basic scheme of our federal Constitution" (page 3103, Vol.3, Fourth Edition, 1996).

LET us examine the grounds of denunciation of the Tamil Nadu Governor's action. The State unit of the BJP demanded the recall of the Governor on the grounds that she (the Governor) had lost "the faith of the people of Tamil Nadu". The "faith of the people" is ascertained mainly through the elections held periodically. The issue of disqualification of Jayalalitha and the rejection of her nomination papers were well known to the voters. If one were to go by the criterion of the "faith of the people", the AIADMK leader may as well claim that the election results have revealed clearly the "faith of the people" in her becoming the Chief Minister.

The demand of the DMK rests on the charge that the Governor appointing Jayalalitha was a "patently anti-constitutional act" and that she "failed to consult the Government of India's Attorney-General" on the complex situation thrown up after the election verdict. As the law stands today and the procedure followed hitherto by all the Governors suggests, the Tamil Nadu Governor invited the leader of the party enjoying a majority in the Assembly to form the government. Had the Governor decided to reject the resolution of the party with a majority, she should thereafter have called someone else who had or was likely to have majority in the Assembly. Obviously, no other person or party was there to fulfil this requirement. Then she should have recommended the imposition of President's Rule under Article 356 of the Constitution. This course of action might have eventually led to the dissolution of the Assembly. In the process, there would have been a serious crisis and charges would have been hurled against the Centre and the Governor for their unjustifiable acts. There have been numerous instances where the actions of the Central government in the name of the President had been questioned and declared unconstitutional by the courts.

Consulting the Attorney-General, as advocated by the DMK, would have invited the charge of constitutional impropriety. Article 76(2) states: "It shall be the duty of the Attorney-General to give advice to the Government of India on such legal matters and to perform such other duties of legal character, as may from time to time be referred or assigned to him by the President." It may not be proper for the Governor to consult the Attorney-General unless the President directs the Attorney-General to offer his services to the Governor. The Attorney-General may give some advice to the Governor; later he may have to argue in the court on behalf of the Union government, which may hold a different view.

Karunanidhi himself complained in his reply to the Sarkaria Commission that the Governors acted as "the agents and spies of the Centre and their executioners of democracy in the States". He also said that in 1976 the Tamil Nadu Governor was summoned to Delhi "to affix his signature" on the report prepared by the Centre after the proclamation was issued under Article 356 to dismiss his government. Now, at least the Tamil Nadu Governor cannot be accused of having acted as "an agent or a spy" of the Central government and behaved as an "executioner" of democracy by affixing her signature on an order prepared by Delhi.

There was a suggestion by Cho S. Ramaswami, Editor, Thuglak, that though the law was in her favour, Jayalalitha should have initiated a convention by opting out of chief ministership. Here, two distinct concepts are involved: legality and convention. The English parliamentary system is built mainly on convention. In India the system is bound by a written Constitution and the laws and rules made thereunder. Convention is not legally enforceable and will be successful only when all persons concerned agree to abide by an agreement on moral grounds. Suppose a person who has been defeated in an election is chosen immediately thereafter by the majority party to be sworn in as a Minister, one may object to it on the moral ground that a candidate rejected by the electorate should not be appointed a Minister. There were several instances when defeated candidates had been made a Chief Minister or a Cabinet Minister at the Centre by the party holding the majority. Articles 75(5) and 164(4) of the Constitution lay down that the Minister should become a member of the legislature concerned within a period of six months. These constitutional provisions do not speak of any disqualification.

In the case of Jayalalitha also, she should become a member of the Assembly before the expiry of the period allowed. It is quite possible that within the period of six months she may succeed in the appeal for the removal of her disqualification. The court may allow a writ petition and invalidate the August 1997 Order of the Election Commission. I feel that the impugned Order of the Election Commission gives a new interpretation to Section 8 of the Representation of the People Act, which is contrary to the law laid down by the Supreme Court. The possibility of acquittal by the appellate courts has been rendered infructuous and meaningless by the new procedure suggested by the E.C. Order to disqualify a candidate at the time of the scrutiny of nomination papers on the basis of the conviction at the trial court without reference to the pendency of appeal.

THOSE who demand the removal of the Tamil Nadu Governor are actually demanding the removal of the Tamil Nadu Chief Minister. The Central government has powers to remove the Governor and removal of the Chief Minister can be done either through the ballot or by judicial decision. This is a free country and individuals and parties may very well approach the courts to get the complexities of a situation resolved. In the Tamil Nadu situation, the Supreme Court may give a new judicial interpretation, which will become the law, or the Union government may enact an amendment through Parliament to change the law and the procedure. But under the given circumstances, removing the Governor will be an arbitrary and unlawful act.

Warren Hastings, the first and most powerful among the Governors-General of India, was effective with his arbitrary powers and had no need of lawful procedures in building the empire. In the impeachment proceedings of Warren Hastings in the British Parliament in 1788, Edmund Burke declared: "Law and arbitrary power are in eternal enmity." Let not the government of free India attempt to make a compromise between these two inimical systems of governance.

Era Sezhiyan is a Senior Fellow of the Institute of Social Sciences, New Delhi, and a former Member of Parliament.