Revision as of 13:11, 22 January 2017

Tenure of Governors

The Times of India

The maximum tenure of Delhi LG, or for that matter any governor or lieutenant governor, is not defined under the Constitution. A home ministry source said, “The tenure of Delhi LG has not been laid down and, as per conventionpractice, is at discretion of the President.“

Though the terms of past LGs of Delhi have ranged from three months to over six years, as many as 14 of the total 18 had a tenure short of three years

Dismissal of Governors

SC raps UPA for sacking guvs from NDA term

Dhananjay Mahapatra | TNN

From the archives of The Times of India 2007, 2009

New Delhi: A five-judge constitution bench of the Supreme Court on Friday dealt an “academic” yet stinging rap on the knuckles of the UPA-1 government for removing four NDA-appointed governors in 2004 immediately after coming to power and assuming office with outside support of Left parties.

The governors of Uttar Pradesh, Haryana, Gujarat and Goa — Vishnu Kant Shastri, Babu Parmanand, Kailashpati Mishra and Kidarnath Sahni — were summarily packed off from Raj Bhavans, ostensibly because of their saffron affiliations.

The reason dished out then — they were not in sync with policies and ideologies of the UPA government — had sounded apt and politically correct. But, it turned out to be legally untenable. The court held that if the reasons for removal were irrelevant, malafide or whimsical, they could invite judicial intervention.

‘Governers can’t be sacked over party’s ideology’

New Delhi: The current UPA government will suffer no ill-effects of the hard-hitting SC judgment criticizing it for removing four NDA-appointed governors. However, the bench comprising Chief Justice K G Balakrishnan and justices S H Kapadia, R V Raveendran, B Sudershan Reddy and P Sathasivam minced no words in registering their strong disapproval of regime-change as a ground for dismissal of governors. This may set the stage for a more cautious approach in the future.

Justice Raveendran, writing the unanimous 56-page judgment, said: “Governor cannot be removed on the ground that he is out of sync with the policies and ideologies of the Union government or the party in power at the Centre. Nor can he be removed on the ground that the Union government has lost confidence in him.”

“It follows therefore that change in government at Centre is not a good ground for removal of governors holding office to make way for others favoured by the new government,” he said, in what could pinch the conscience of the government. Attorney General G E Vahanvati had defended the decision to summarily dismiss the governors saying in a democracy, political parties were formed on shared beliefs and they contest election with a declared agenda. “If a party which comes to power with a particular social and economic agenda, finds that a governor is out of sync with its policies, then it should be able to remove such a governor,” he had argued.

The AG was categorical in his submission that the Centre would have the right to remove a governor without attributing any fault to him, if the President loses confidence in a governor or finds that the “governor is out of sync with the democratic and electoral mandate”.

Governors: not bound by advice of states

CENTRE CAN DIRECTLY RUN NAXAL-HIT AREAS’

A-G: Fifth Schedule Says Guvs Not Bound By Advice Of States

Dhananjay Mahapatra | TNN

From the archives of The Times of India 2007, 2009

New Delhi: Home minister P Chidambaram’s “limited mandate” handicap in dealing with the Naxal menace may get over soon.

The Centre has got a clear opinion from the attorney general suggesting that the Fifth Schedule areas identified by the Constitution, which in six out of nine states are Maoist hotbeds, could be administered directly through governors and in doing so they were not bound by the advice of the state governments.

With this opinion, the Centre can formulate strategies without falling foul of the generally-perceived notion that governors act only on the advice of the state government to fight Naxalism as well as bring meaningful development in areas which have been neglected for years.

The Fifth Schedule areas in the states of Chhattisgarh, Jharkhand, Madhya Pradesh, Orissa, Andhra Pradesh and Maharashtra are mainly forest and tribal areas where Maoists have entrenched themselves taking advantage of the anger of the poverty-stricken inhabitants, accentuated by poor pace of development.

As these administrative deficiencies kept widening the Naxal base and cadre, a worried President had asked the Centre to seek an authoritative legal opinion as to whether governors could play a pro-active role in exercising constitutionally mandated discretionary powers in the administration of the Fifth Schedule areas without being bound by the advice of state governments.

Attorney General G E Vahanvati has given a thumping opinion favouring exercise of discretionary powers by the governor without consulting the state government, home ministry sources told TOI.

Discussing the width of powers available to the governor as far as Fifth Schedule areas are concerned, the AG has said that if the governor was of the opinion that a particular law or regulation made by a state government be not made applicable to such areas, then he could do so without seeking the opinion of the concerned council of ministers headed by the chief minister.

What is more important, especially for the implementation of the two-pronged strategy — meeting the Naxal fire with fire and at the same time speed up the development process in these areas, the AG has opined that the governor was free to make regulations for the “peace and good governance” of the Fifth Schedule areas.

The AG’s legal opinion virtually coincides with the findings of the Mangeshkar Committee report of the Planning Commission. The Committee had suggested that the office of the governor must play a more pro-active role for ensuring protection of tribal rights, for tribal-welfare and development.

Resignation by governors

2016: Can home secretary ask governor to resign?: SC

The Times of India, Jan 28 2016

AmitAnand Choudhary

The Supreme Court expressed serious displeasure over the alleged telephonic instructions by the Union home secretary to governors, who are the constitutional heads of states, to quit after the change of regime at the Centre in 2014. Two petitions alleged that immediately after NDA came to power at the Centre, then home secretary Anil Goswami had asked then Uttarakhand governor Aziz Qureshi to resign while the former's private secretary had called the lieutenant governor of Puducherry , Virendra Kataria, to convey a similar message.

A constitution bench of Chief Justice T S Thakur and Justices F M I Kalifulla, A K Sikri, S A Bobde and R Banumathi asked the Centre how a bureaucrat could ask a constitutional post holder to quit without instruction from the government or the President under whose pleasure they discharge their functions.

“It is not for the home secretary to ask a governor to resign.

These are serious issues.

Is home secretary a mouthpiece of the government? Does he represent the will of the government? If not, then the officer should not have intervened in such a way . It is not acceptable,“ the bench said. It added that the level of interaction slid further when the home secretary's private secretary rang up the Puducherry LG. The court had earlier sought the Centre's response on Qureshi's petition.

On Wednesday , it agreed to hear Kataria's petition along with Qureshi's and asked the Centre to file its response in four weeks.

Quereshi and Kataria were sacked by the NDA govern ment. Many other governors, appointed during the UPA regime, resigned after the NDA government's loud message -quit or get sacked -was allegedly communicated through the home secretary .

While most governors took the hint and resigned, accepting it to be a logical fallout of regime change at the Centre, Qureshi decided take on the Narendra Modi government and moved the SC questioning the home secretary's “audacity“ to ring him up and seek his resignation.

Attorney general Mukul Rohatgi told the bench that Goswami, on being asked by the President to ascertain certain controversial remarks by Quereshi on rape, had called then Uttarakhand governor to seek his explanation. Qureshi had allegedly said “even God cannot stop rapes in UP“.

The home secretary never asked Qureshi to resign, the AG said, and attempted to put the controversial issue to rest. But the bench turned down his plea saying the matter needed to be adjudicated on how a governor should be treated in such situations.

Governors: Major controversies

The Times of India, Aug 31, 2011

Ramlal : ANDHRA PRADESH, 1984: When CM N T Rama Rao was out of the country, finance minister N Bhaskara Rao led a coup supported by the Centre. Ramlal removed NTR from office causing a protest. The governor was recalled and NTR was restored as the CM

Romesh Bhandari  :UTTAR PRADESH, 1998: Caused a constitutional crisis by dismissing the Kalyan Singh’s government. He appointed Jagadambika Pal as CM, who lasted 3 days, before the Allahabad HC stayed the order and allowed Kalyan to prove his majority

Buta Singh : BIHAR, 2005: His recommendation to dissolve the assembly resulted in President’s rule. The opposition alleged foul play as they were not given enough time to prove majority. His decision was criticised and he had to resign

Syed Sibtey Razi  : JHARKHAND 2005: Despite NDA’s majority in the 2005 poll, the governor invited UPA ally Shibu Soren to form government. Later, Arjun Munda-led NDA proved majority on the floor of the house

OTHER INCIDENTS

S R Bommai v Union of India 1994 : SC termed the dismissal of the state assemblies of Karnataka, Meghalaya and MP as unconstitutional and ruled that the governors acted hastily

The changing role of Governor

The Hindu, February 13, 2016

The presidential prerogative

With rare exceptions, the recommendation for President’s rule arises not from the Governor’s independent assessment of the situation but from Delhi. That is where the President has room to impress upon the government of the day the need for the greatest circumspection

Governors are not exactly the most popular of public servants in India today. Nor are they spectacularly unpopular. The astringent truth — for the incumbents of that office — is that Governors do not figure in people’s thoughts. They are a presence that is absent in the public imagination.

The men and women concerned may have a flattering view of their tenures, duly reflected in the memoirs some of them have written, but the hard fact is that there are not many Governors whose names have been etched unconditionally in the consciousness of the people of their States as exemplary holders of that office. Some have been liked more than others, or found less tedious, but not many of them have caused huge or widespread regret on their departure.

Some Governors have, in fact, earned either popular opprobrium or informed criticism. Tamil Nadu remembers the scholarly Sri Prakasa who, as Governor from 1952 to 1956, did something that has gone into political and constitutional lore as indecorous, infelicitous. In the first elections held to the State Assembly in 1952, when the Congress suffered a debacle, Governor Sri Prakasa invited C. Rajagopalachari, who was not an elected member of the Assembly, to try to form the government through the procedure of nomination to the Upper House. This came from Congress State unit chief K. Kamaraj’s calculation that many Independent MLAs and smaller parties that would not back a Congress ministry would back Rajaji, out of respect for him, and the Congress, its reduced seats notwithstanding, would be in office. The calculation worked, Rajaji won the House’s support. His biographer Rajmohan Gandhi writes: “… the clause (for nomination) was not really conceived for accommodating a chief-minister-to-be who thought poorly of elections. The spirit of democracy had been violated.”

But what, in the hindsight of more than six and a half decades, is important about that contretemps is that Prime Minister Jawaharlal Nehru, who had given no signal one way or other before Rajaji’s nomination, lost no time in saying to his party once he was sworn in that “… early steps will have to be taken for Rajaji’s election to the Madras Assembly”. Informed public opinion, likewise, in the shape of an editorial in The Hindu, said: “Rajaji should take an early opportunity to get himself elected to the popular House.”

This is where the nation has veered sharply and shockingly from the early years of our Constitution’s working. Party considerations have overridden propriety.

The hotline from Delhi

Governors, over the years, have recommended President’s rule under the provisions of Article 356 of the Constitution several times, for the ostensible reason that the constitutional machinery of the State has broken down. Most often this “breakdown” has come from the Chief Minister losing his majority in the House or a coalition coming apart. And, with rare exceptions, the “recommendation” has arisen not from the Governor’s independent assessment of the situation but from Delhi where, informally, the Prime Minister and Home Minister have decided that this is the recommendation needed and the Governor but signs it. Once the President approves the recommendation, democracy, effectively, comes to a standstill though when that happens, it must be said, very often a chaotic administration gets regulated and orderly as well.

Bipartisan partisanship

How many promulgations under Article 356 have been bona fide? One can safely say that a good many of them have been driven by partisan considerations.

One of the earliest mala fide activations of Article 356 was in Kerala when after the Vimochana Samaram, the popularly elected communist government headed by E.M.S. Namboodiripad was dismissed. It is known that the initiative for this came from the then Congress president Indira Gandhi whose insistence her father, Prime Minister Nehru, could not resist. When she became Prime Minister herself, Indira Gandhi used the provision with the finesse of a practised hand. Her government between 1966 and 1977 imposed President’s rule 39 times in different States, the Governor of the day having spoken nary a word in doubt, let alone divergence. Article 356 became under Indira Gandhi a mechanism for the perpetuation and spread of her centralised and deeply suspicious style of functioning.

But it is not as if the Congress has been the sole “culprit”. The Janata Party, which came into office after the defeat of Indira Gandhi’s “Emergency” government, proved itself to be an assiduous student. In its brief tenure, it imposed President’s rule in no less than nine States that had been under Congress rule. Governors have not surprisingly, therefore, come to be regarded tragically and not untruthfully, as agents of the Centre.

But what of Presidents and Article 356? Before attempting an answer to that question, reference must be made to the Sarkaria Commission Report on Centre-State relations, 1988, which recommended that Article 356 must be used “very sparingly, in extreme cases, as a measure of last resort, when all the other alternatives fail to prevent or rectify a breakdown of constitutional machinery in the state”. And to the relatively obscure Karnataka politician S.R. Bommai who catalysed the landmark 1994 judgment in S.R. Bommai v. Union of India in which the Supreme Court laid down tight guidelines for imposing President’s rule.

Room for the President

To return now to the crucial role of the President of India in these transactions. While the President is obliged to act under the aid and advice of the Council of Ministers, it is a patent fact that the office of the Head of State is one of great influence, as distinct from power. President K.R. Narayanan declined to approve a recommendation made to him in 1997 by the United Front (UF) government headed by Prime Minister I.K. Gujral for the imposition of President’s rule in Uttar Pradesh. The UF government dropped the proposal. The Bharatiya Janata Party (BJP), then in the Opposition, hailed President Narayanan as “a saviour of democracy”.

But the medicine was soon to be administered to his admirers when the very next year, the BJP, in office, sent a recommendation to President Narayanan for the imposition of President’s rule in Bihar. Governor S.S. Bhandari had reported “a slide into chaos of Bihar”, then ruled by Rabri Devi’s government. In a memorable Minute, President Narayanan said a slide was a slow process and observed: “A pertinent point arises, viz., that over the period of the slide, remedial action in terms of constitutional obligation ought to have been taken to arrest the decline.” His Minute, long in the public domain, has become, for Article 356, as pertinent a document as the Sarkaria recommendation and the Bommai judgment. The exigencies in each “Article 356 case” must differ, but President Narayanan’s Minute stresses the need, applicable to all cases, for the greatest circumspection before activating that Article in order to inure a proclamation under it from the charge of political bias.