The presidential prerogative

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 activation 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 Center.

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.

Realpolitik and the ‘Bihar Minute’

Governors are meant to be dead to bias, not to facts. They are meant to weigh situations and make their views known to the State government and, where necessary, to the Centre. And in so doing, exercise a salutary influence on behalf of the Constitution and the laws. This is where realpolitik comes in.

Generally speaking, every government, Congress and non-Congress, has sought to appoint men and women to that office those who will be loyal to the power structures of the day. And whenever the government changes at the Centre, Governors appointed by the previous dispensation have been pulled out. In the post-Nehru phase, no party has been above doing precisely what it would hate being done unto itself.

President Pranab Mukherjee’s advice to Governors at the recently concluded conference of Governors to go by the “sacred text” of the Constitution was wholesome. But it would have rung truer to his listeners had he succeeded in persuading Prime Minister Modi to appoint non-party persons to that constitutional office. And the Prime Minister’s valuable exhortations to Governors to “be fair and be seen to be fair” would have gained incalculable weight if, when pondering President’s rule in Arunachal Pradesh, he had let President Narayanan’s “Bihar Minute” guide his decision.

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More than a numbers game: moving beyond the floor test

Dr. B.R. Ambedkar believed that Article 356 of the Constitution, which provides for imposition of President’s rule in the States and dissolution of State Assemblies, would, in reality, be only a ‘dead letter’. However, by the time a Constitution Bench ruled in the S.R. Bommai v. Union of India case (1994) that a presidential proclamation under Article 356 is subject to judicial review, that it is not an absolute but a conditional power, and that no Assembly can be dissolved before both Houses of Parliament ratify the proclamation, the provision originally meant to be used sparingly had been invoked over 90 times. After the verdict, however, one would have thought that the provision has been somewhat neutralised. That the casual resort to imposition of President’s rule or dissolution of State Assemblies at the whim of the ruling party at the Center has ended and the potential for further misuse removed. Arunachal Pradesh has now demonstrated that the ‘dead letter’ is quite alive and kicking Chief Ministers out of power.

Many grounds have been cited in support of bringing the sensitive border State under Central rule: from “breakdown of the constitutional machinery” to “collapse of law and order” to other sinister charges such as a threat to the life and security of the Governor and alleged links between the Chief Minister and an extremist group. The context, of course, is something that the Congress is familiar with, as it had used similar circumstances to topple many a regime in the past: dissidence within the ruling party and the Opposition colluding with the rebels to bring down the regime. In Arunachal Pradesh, the party is at the receiving end. It had 47 MLAs in a 60-member House, and the BJP 11, and yet its Chief Minister has been deposed by dissidents acting in concert with the Opposition and helped by the Governor.

Spotlight on the Governor

The manner in which Arunachal Pradesh was brought under President’s rule highlights a significant strand of political behaviour in the country. Even constitutional authorities believe less in law and propriety than in their ability to work around them to achieve their desired results. And one is not merely talking about Governor J.P. Rajkhowa while saying this. It is equally applicable to the deposed Chief Minister, Nabam Tuki. It is quite obvious that the Governor was more concerned about removing the Speaker and installing a rival faction leader as Chief Minister than giving an opportunity to Mr. Tuki to demonstrate his majority on the floor of the House. As for Mr. Tuki, he appears to have done nothing to ascertain his support within the Congress legislature party in the face of brewing dissidence within its ranks. Nor did he convene the Assembly until it became a constitutional necessity as it was nearly six months since the House had last met.

The Gauhati High Court has categorically ruled in favor of the Governor’s decisions in the present crisis. It has upheld his power to summon or prorogue the Assembly under Article 174(1) and his power to send messages, even fixing a specific item on the agenda of the legislature, under Article 175(2). The court saw nothing wrong in the Governor advancing a sitting of the House from January 14, 2016 to December 16, 2015. Nor did it find anything illegal in his specifying that a motion to remove the Speaker should be taken up immediately after the House convenes. In effect, a controversial ‘sitting’ of 33 members of the Assembly in a makeshift venue has been upheld by the high court. It is somewhat ironical that at a time when even a presidential proclamation is subject to judicial review, case law on the role of the Governor still favors gubernatorial privilege and discretion.

A crucial question before the Supreme Court is whether the Governor can, in his discretion and without the aid and advice of the Council of Ministers, summon the legislature or advance a scheduled sitting; and whether he can fix the agenda for such a session on his own. Interestingly, the Gauhati High Court extensively quotes from a Madras High Court Full Bench verdict of 1973 favouring the Governor’s action in somewhat similar circumstances in the Tamil Nadu Assembly. There, too, the ruling party had split, the Speaker and the Deputy Speaker were in different factions, and the dissidents wanted to remove the Chief Minister through a censure motion. However, in the Tamil Nadu precedent — where also there was a parallel ‘Assembly session’ — the Governor was acting on the advice of the ministry of M. Karunanidhi while sending a message to the House that it should first take up a motion to remove the Speaker, whose loyalty lay with the dissidents. On the crucial question of the Governor’s discretion, the high courts have gone by the principle in Article 163: that the question whether any advice, and if so what advice, had been given to the Governor shall not be gone into by any court; and when a question arises whether the matter on which the Governor had acted was actually one on which he can use his discretion, the decision made by the Governor in his discretion will be final.

Options ahead of the floor test

The validity of President’s rule in Arunachal Pradesh will be decided on established constitutional principles, but the time may have come to go beyond even the floor test requirement in ascertaining whether a particular regime commands a majority. Just as unscrupulous defections are legally discouraged, opportunistic cooperation between ruling party dissidents and Opposition legislators just to bring down a Chief Minister may also have to be prevented. This can be achieved if the Governor asks the Chief Minister to submit proof of his support within his own legislature party or alliance partners before ordering a floor test. In the event of some factions withdrawing their support to the government, the Governor can always turn them away and ask them to move a no-confidence motion instead of coming to him. If there is any attempt by the Speaker or the Chief Minister to block such a motion, or if the Assembly is not convened, the Governor should not hesitate to write to the party’s leadership seeking proof of its legislature party still having only one leader. This may force the hand of parties that seek to avoid convening legislature party meetings and hoping that in the Assembly, a floor test can be managed by a partisan Speaker and by selective expulsions to change the composition of the House. In other words, those arguing for the primacy of the floor test will need to have their house in order before the matter is decided in the legislature.

An incumbent government’s reluctance to follow this process may lead to the Governor recommending that the Centre give a suitable direction to the State. For, under Article 365, it shall be lawful for the President to then hold that because of any non-compliance with the direction, the State can no more be run in accordance with the Constitution. This sequence — proof of subsisting support within the ruling party, a floor test, and in the event of these efforts being blocked, a formal direction from the Union, followed by a determination on the constitutionality of the continuance of the regime — may address concerns of partisan behaviour.

Even in times when the incumbent regime swears by “co-operative federalism”, Raj Bhavans are seen as sinecures for friends of the ruling party and its formerly active members and associates. New norms will have to guide both the appointment of Governors and their functioning. The recommendations of the Sarkaria Commission on Centre-State relations are readily available with regard to choosing the occupants of Raj Bhavan.

It had said a Governor should be someone eminent in some walk of life, and should not be one “who has taken too great a part in politics generally, and particularly in the recent past”. Only a few eminent personalities outside the domain of politics and civil or military service have been made Governors. As long as parties pursue their own political interests rather than abide by the Constitution, it will be left to the courts to uphold federal norms.

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