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Are Governors compromising with the Constitution?

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The governor of a state, before assuming office, swears to “preserve, protect and defend” the Constitution and the law to the best of his or her ability. But, often the governors have been found to protect the political interest of his or her appointee party that is in power at the Centre.

Prakash Bhandari: The governor of a state is the President’s representative. The governor acts as the nominal head whereas the real power lies with the chief minister of the state. The governor, before assuming office, swears to “preserve, protect and defend” the Constitution and the law to the best of his or her ability.

A governor has similar powers and functions at the state level as that of the President of India at the Union level.

Usually, the incumbent government at the Centre appoints a person of its choice as the governor and such positions are usually given to politicians of eminence or to those who have to be rehabilitated to keep them out from active politics. Successive governments at the Centre have made such appointments that are always political and such governors are expected to remain loyal to their appointees.

The governors may have limited roles, but at times, during a crisis in the state emerging in a situation where the ruling party loses its majority, the role of the governor becomes crucial in ascertaining which party has the majority. Post Assembly elections, whenever there is a fractured verdict, the role of a governor becomes important in assessing as to which party has the majority.

The governor usually invites a party that has emerged as the single-largest party to form the government or a party that claims support of the independents or support of the smaller parties. But eventually, the party invited to form the government has to undergo the floor test to stay in power. Thus the people’s representative—MLAs— eventually decide who should rule the state on the floor of the House.

Usually, the governor and the chief minister of a state do not confront each other even if the two come from a different and opposite political background. But the governor often has his say in such appointments like vice-chancellors where he on the recommendations of the search committee can nominate a person.

Often a dispute arises between a governor and the chief minister over the issue of the governor’s speech in the Assembly.

The governor’s address is no doubt prepared by the party in power in the state, but there are numerous instances of the governor skipping passages they consider inappropriate while delivering their address in the Vidhan Sabha.

In recent times, an often ugly situation arises over the governor’s right to address the state Assembly in which the governor can read only such content of the address that is approved by the state Cabinet. But the governors become a target of the ruling party for skipping contiguous part of the speech leading to unpleasantness.

In recent times, one governor Jagdeep Dhankar, who is from Rajasthan, is in the limelight for confrontations with West Bengal Chief Minister Mamata Banerjee. Not a day passes without the governor and the chief minister issuing statements against each other. Dhankar, though very critical of the Mamata Banerjee’s government has not been able to assert himself. On the other hand, Mamata has not been able to get Dhankar removed.

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While Dhankar started his career with the Janata Dal and later switched his loyalty to Congress and then to the BJP, he has a poor track record of political misjudgments. He, for a long time, remained unrewarded in the BJP. But, because of his standing as a senior advocate of the Supreme Court, he was considered ideal for becoming the governor of West Bengal where the BJP has emerged as an emerging political outfit.

Currently, the Rajasthan governor is Kalraj Mishra. He is a former RSS functionary and a leading light of the BJP in Uttar Pradesh and a former Union minister, who was sent packing to Rajasthan as the governor to take him off from the active politics. Kalraj Mishra, a powerful saffron party leader of the Uttar Pradesh thus met the same fate that the ageing or retired politicians meet.

The governor of a State, before assuming office, swears to “preserve, protect and defend” the Constitution and the law to the best of his or her ability. But, often the governors have been found to protect the political interest of his or her appointee party that is in power at the Centre. Such governors during a crisis often work under the pressure of the appointee government.

The confrontation between the governor and the chief minister began when Gehlot on July 23 went to meet Governor Kalraj Mishra with a request to convene the Vidhan Sabha as per the constitutional provisions. But the governor did not respond on the letter for an entire day, though it is mandated as per Article 163 of the Constitution that the governor has to function on the aid and advice of the chief minister. Also, Article 174 prescribes that the governor of a state shall summon the Assembly at a time and place, as she or he thinks fit.

According to SN Sahu, who served the Rashtrapati Bhawan in advisory capacity-both Article 163 and Article 174 have to be read together for the harmonious construction of the powers of the offices of the chief minister and governor. So, when the chief minister sends a written letter to the governor after the Cabinet’s decision to summon the Assembly, it amounts to the advice given by the chief minister, and the governor is constitutionally mandated to follow and implement it.

But in an almost unheard instance in the history of independent India, the governor of Rajasthan refused to act on the basis of the CM’s letter that caused a serious constitutional crisis. The inaction of the governor on the CM’s letter is all the more perplexing when the governor himself has admitted that the CM enjoys majority support and there is no need to convene the Assembly. Normally, the governor of a state can ignore the advice of a CM only when he or she loses the majority support of the Assembly.

The inordinate delay on the part of the governor prompted the chief minister to take the Congress MLAs and those who extended support to the party to demand an early convening of the Vidhan Sabha. It was unprecedented in the annals of the history of the country that the ruling party had to stage dharna in the Raj Bhawan demanding the governor convene an emergency session of the Vidhan Sabha in which the ruling party apart from discussing various issues would also seek a trust vote. The governor addressed the MLAs and refused to call the emergency session of the Assembly citing various r reasons like the coronavirus pandemic.

Later, the governor in his letter to the chief minister deplored the staging of the protest by the MLAs and was critical of the chief minister’s statement that if the governor does not convene the Assembly, the Congress government should not be held responsible if the people enter Raj Bhawan against the governor’s decision.

The Constituent Assembly, and later the Sarkaria Commission, affirmed that the governor must summon Assembly on CM’s advice.

The Sarkaria Commission observed: “It is a well-recognised principle that, so long as the Council of Ministers enjoys the confidence of the Assembly, its advice in these matters (Summoning, Proroguing and Dissolving the Legislative Assembly)—unless patently unconstitutional—must be deemed as binding on the Governor.”

It summed up the debates of the Constituent Assembly on this issue and noted: “The Draft Constitution provided inter alia that both in the matter of summoning the Legislative Assembly or Council and dissolving the Assembly, the Governor would be required to act in his discretion. But this provision was subsequently deleted on the ground that a Governor would not exercise any function in his discretion and would follow the advice of his Ministry in all these matters.”

So, the legislative intent of the Constituent Assembly enshrined in the Constitution mandated accordingly that the governor, with regard to matters concerning summoning the Assembly, would have to act on the advice of the chief minister enjoying the support of the majority members of the state Assembly. Any attempt to breach it constitutes a breach of foundational norms of parliamentary democracy, which is the basic structure of the Constitution.

The Speaker of the Lok Sabha convened a conference in1968 of the various Speakers of the state Assemblies when a resolution was adopted. It was recommended that the Government of India should, in the light of the following observations, take urgent and suitable steps with regard to the powers of governors to summon or prorogue Legislatures and to dismiss ministries.

“That a Governor shall summon or prorogue the Legislature on the advice of the Chief Minister. A convention shall be developed that the Chief Minister may fix the dates of summoning or prorogation after consulting the Presiding Officer concerned. The Governor may suggest an alternative date but it shall be left to the Chief Minister or the Cabinet to revise their decision or not. Where, however, there is undue delay in summoning a Legislative Assembly and the majority of members of the Legislative Assembly desire to discuss a Motion of No-confidence in a Ministry and make a request to that effect in writing to the Chief Minister, the Chief Minister shall advise the Governor to summon the Assembly within a week of such request.”

The Supreme Court in its unanimous judgment delivered on July 13, 2016, in Nabam Rebia vs Deputy Speaker of Arunachal Assembly, the constitutional bench of the Supreme Court examined whether the governor could exercise the power of summoning the Assembly “in his discretion” or on the “aid and advice” of the Council of Ministers. The court concluded that the governor’s discretion did not extend to powers conferred under Article 174, and hence he could not summon the House, determine its legislative agenda or address the legislative assembly without consulting the chief minister or the Speaker.

So, there is no ambiguity in the constitutionally enshrined provision that the summoning of the State Assembly by the governor has to be done on the advice of the chief minister.

In the present context, the President of India, who appoints governors, should intervene to uphold the Constitution. Chief Minister Ashok Gehlot has already said that he would meet the President to apprise him of the stand taken by the governor on the whole issue.

The six-point query of the governor was also duly answered by the chief minister. In this query, the governor asked as to how the Assembly session would be organised in the face of the COVID-19 pandemic. The Governor all through seems to be compromising the Constitution.

What is surprising is the fact that the President even after hearing about the crisis in the state did not ask the governor to submit a report to him.

SN Sahu, who closely watched some of the crises in his capacity as an advisor to the President observes “It is all the more perplexing that the President of India is doing precious little in dealing with the errant incumbents of gubernatorial posts. One notes with sadness that in the last two decades, the actions of some of the incumbents of the office of the President of India were in conflict with the Constitution. When the former President of India, APJ Abdul Kalam approved the decision of the cabinet, sent to him by Prime Minister Manmohan Singh, to dissolve the Bihar Assembly when the Supreme Court held the dissolution as unconstitutional, President Kalam thought of resigning from the highest office.

Sahu further observes that the former President Pranab Mukherjee approved the proclamation of President’s rule in Uttarakhand and Arunachal Pradesh by dismissing the Congress governments in those States. The Supreme Court annulled the President’s rule by holding that it was against the Constitution and law laid down in Bommai judgment.

President Kovind’s decision to approve the disqualification of 31 MLAs of the Delhi Assembly belonging to the Aam Aadmi Party—without hearing them—and the decision of the Delhi High Court that such disqualifications were not consistent with the principles of natural justice, yet again proved the point that the Constitution and the law is violated because of the lack of serious application of mind. Such violations of the Constitution and constitutional methods by the decisions of the government and the President of India pose a serious danger to our Republic.

The Sarkaria Commission thoughtfully stated that “the part which the Governor plays to help maintain the democratic form of Government in accordance with the Constitution is of vital importance. In the ultimate analysis, due observance of the Constitutional provisions is the soundest guarantee of enduring unity and integrity of the nation.

Hence, the Governor of Rajasthan Kalraj Mishra should abide by the observations of the Sarkaria Commission.

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