In Sci-Fi films, the ‘avengers’ and their adversaries transform themselves into goodies and baddies. Indian politics, as indeed all politics, also displays this in abundant measure. In England, Prime Minister Boris Johnson edged his way to infamy as a vicious destroyer of institutions by abuse of power. US President Donald Trump joins the row of the yet unconvicted. But in the British crisis, the Queen comes out ahead because she understood her constitutional limits.
A contested post
Our governors are a class apart. And the J&K governor has emerged as a party political activist. The use of governors began under Indira Gandhi to topple governments by President’s Rule, by not installing anti-Centre governments and in obeying their political masters in Delhi instead of the chief ministers in their state. But they claimed to act within the paper work required by the Constitution. Powers under the Constitution were supposed to be controlled by ‘conventions’ and institutional morality, but not ‘transformational’ morality.
Modiites claim that this is exactly what they are doing. Somehow, virtually all our constitutional and public institutions have lost sight of the true basis on which the Constitution is meant to work. The governors of the British Raj were dignified, added pomp to ceremony and, especially after 1935, fulfilled British aims to scuttle Congress governments. In the Constituent Assembly, serious proposals were advanced to make the post of the governor a directly elected post.
This was abandoned as precipitating conflict between two centres of directly elected power — the PM/CM and Raj Bhawan. Jawaharlal Nehru created an informal formula (approved by the governors’ report and Sarkaria Commission) that the governor be appointed after full consultation with the state government. In certain Opposition states, the proposal of the state government was accepted by Indira Gandhi. But during her rule, the policy of selection by the PM was absoluted. Now, governors are appointed for the past, and potentially future, services to the PM’s party. Governors (and lieutenant-governors) have obliged the UPA in two special areas: Selection, continuance and bullying of CMs and, of course, President’s Rule. Their hands are covered with the blood of the Constitution. This may sound dramatic and a hyperbole. But, imagine, the Constitution as a natural person with various institutions as its organs and air, blood and muscle connecting them. Many times, the Constitution is put in the ICU and its provisions are extended so that the Union government stoops to conquer to bring more states under its control. It is often injured and revived in a different form, showing or hiding its wounds.
State of J&K
The current J&K governor has gone one step further. He countered the J&K peoples’ political belief that Article 370 empowered them. He said that if National Conference leader Omar Abdullah and Peoples Democratic Party leader Mehbooba Mufti advanced towards the Raj Bhawan with people, “we will be forced to open fire won’t we.” His assertion that Mufti was detained in a “beautiful cottage” reminded us of Justice Beg’s statement in the infamous Detention Case (l976), that detenus were treated with “maternal care”.
The governor said that the: “Media and politicians want large protests... You all want dead bodies.” He warned that there “will be not dialogue with the mainstream political parties or the separatists.” He elaborated that having lived without the Internet for so long “we can do so a little longer because Internet is a weapon for Pakistanis and terrorists.” He pretended before the fateful August 5 orders that nothing was going to happen. He responded to Congress leader Rahul Gandhi’s statements as a politician and attacked Pakistan PM Imran Khan like a foreign minister. There is a difference between covert use of gubernatorial power and the overt conversion of the post of the governor into a totally political post by shouting from the pulpit.
The way forward
When we were at university, my friend [Justice (retd) Markandey Katju] made the interesting proposition that the post of governor be abolished. It deserves to be, but that would create logistical problems. Minimally, we need a new process to deal with governors:
(i) Consulting state governments over their appointments is a must.
(ii) Names should be revealed to the CM in advance. These are not Emergency appointments
(iii) Even if it means constitutional amendments, the name of a future governor should be discussed in Parliament (but not by ratifying procedure followed by US on other appointments).
(iv) The post of governor has a fiveyear term. Few complete the term. Some are thrown out, some are involved in ‘musical chairs’.
They are more insecure than civil servants who have constitutional protection and reasons have to be given for dismissal. Thus, given the status of governors, the Union is obliged to give reasons for dismissal and place this before Parliament. If governors resign or are forced to resign giving reasons of health for doing so, their reasons must be understood by the public. If bad health or personal reasons are given, they should not be assigned any public post. (vi) It is high time that governorships are not seen as a sinecure post but a constitutional responsibility. The governor of J&K must go for good reasons. What is frightening is who his successor will be.
(Courtesy of Mail Today)