The Centre is a myth and the governor its spy’ declared N.T. Rama Rao, the Telugu superstar-turned-politician, way back in 1983. Many politicians had then dismissed it as dialogue delivery, only to-a year later-rally behind NTR against the Congress and Indira Gandhi for dislodging his duly elected Telugu Desam Party (TDP) government, while he was in the US for a cardiac surgery, and put in his place N. Bhaskara Rao, a former NTR acolyte, as the chief minister of Andhra Pradesh.
Then governor Ram Lal, a former Himachal Pradesh chief minister who was accommodated at Hyderabad’s Raj Bhavan, gave Bhaskara Rao a month to prove his majority in the legislative assembly. Not only did Bhaskara Rao fail the floor test, Ram Lal, too, had to make a disgraceful exit. The ‘save democracy’ campaign launched by the anti-Congress parties paid off as NTR was eventually reinstated.
That was 1984. A decade later, a Supreme Court nine-judge bench ruling in the S.R. Bommai case said, “It is the legislative assembly, and not the governor, that represents the will of the people.” However, for many over-ambitious politicians, it is a lesson not learnt as they unscrupulously try to grab or cling to power, often aided by the questionable conduct of governors thought to be in cahoots with the ruling party.
This month, what Maharashtra governor Bhagat Singh Koshyari, a former BJP chief minister of Uttarakhand, rolled out from the picturesque seaside Raj Bhavan in Mumbai has pushed democracy to a new low. The tomes of constitutional experts Erskine May and S.L. Shakdhar, co-authored with Subhash C. Kashyap, which serve as primers on parliamentary procedure, have clearly spelt out how a new government is to be formed and take office. Koshyari’s failure to act with due diligence, by appointing a pro-tem speaker of the legislative assembly and ordering a floor test, and his perceived backroom manoeuvres in keeping with his political predilections, have only further put the constitutional office in poor light.
The rarely used Rule 12 of the Government of India (Transaction of Business) Rules, 1961, was deployed to revoke-without the need for the Union cabinet’s approval-president’s rule in Maharashtra early morning on November 23 and pave the way for the oath-taking of BJP’s Devendra Fadnavis as chief minister and the NCP’s Ajit Pawar as his deputy.
“The Governor acted hastily. It has cast doubts about his motivation. This will mean people will start doubting the motives of our Constitutional functionaries. Then our system becomes vulnerable to suspicion and that is good for the nation,” says former Attorney General Soli Sorabjee. “It does seem as if the Governor does not know the Constitutional provisions forcing people to go to the Supreme Court even though it is settled a floor test is the only way to determine the majority.”
“The President used powers conferred by clause (2) of article 356 of the Constitution to revoke President’s rule. Those rules are meant for emergencies. It was not illegal but certainly unethical,” says Supreme Court lawyer Sanjay Hegde.
Analysts of the Indian Constitution and bureaucratic procedures lament that the Supreme Court did not take cognisance of this sordid saga of relying on extraordinary powers to revoke president’s rule to, purportedly, serve the interests of the ruling party at the Centre. They point out that the Centre rushed through the procedure to withdraw president’s rule and a government was installed in Maharashtra on a dubious claim of having adequate numbers.
Courts have been wary of transgressing the limits of powers of the judiciary vis-a-vis that of Parliament and the legislatures. Governors have, time and again, acted beyond their brief, triggering debates on how this constitutional office was degraded to one serving the interests of those in power in Delhi. It is an irony that, on Constitution Day (November 26), a three-judge bench of the Supreme Court had to order an immediate floor test in Maharashtra (November 27) to determine if the Fadnavis government commanded majority in the legislative assembly. The court’s order also suggests that it did not find Koshyari’s decision to appoint Fadnavis as chief minister as based on reliable material.
There are cases aplenty of governors, as the constitutional heads, dismissing state governments by invoking Article 356 of the Constitution. Several of them have not been held accountable for their actions.
Like in Maharashtra now, the BJP suffered reverses in Karnataka and Uttarakhand earlier, while they have succeeded in a brazen manner in Arunachal Pradesh before grabbing power in Goa, Meghalaya and Manipur.
The assumed limits of authority of a governor to appoint a chief minister are being breached with alarming regularity. The track record of some governors has been biased and questionable. Both loyal political retainers and favoured bureaucrats, including military top brass, have been picked for what many consider to be sinecure plum posts-as a reward for ‘services’ rendered earlier. In most cases, it is virtually a retirement package. Warning against this explicitly, the 1988 Sarkaria Commission report on Centre-state relations had underscored that the honour and prestige of the office of the governor could be maintained only when ’eminent’ individuals from outside the state with no ‘vested’ interests were appointed to the post. But coloured choices continue to be made.
Analysts argue for a need to define norms for such appointments and set the boundaries of governors’ use of discretion in inviting parties to form governments, particularly in the case of fractured verdicts. Among the open-ended issues are parliamentary independence, extent of judicial review and the validity of the governor’s ‘satisfaction’. Any such satisfaction would have to be based on material before the governor. The court cannot examine the veracity of such material, but only whether a governor’s actions were mala fide and arbitrary. Any adverse finding would imply that the governor step down on grounds of political propriety. Only then would Raj Bhavans be restrained from using undue discretion and, as a result, reducing democracy to a mockery.