Path of cooperative federalism obviates need to govern Governors

By Kumar Mihir

Article 1 of the Constitution of India provides that India that is Bharat shall be a union of States. It means that India shall be an un-divisible and united entity formed by several States and in order to achieve the same, we have adopted the model of Quasi Federalism where Union or Central Government has been given more powers compared to States as enumerated in the Lists provided in Seventh Schedule.

Further, Article 153 provides that there shall be a Governor for each State and Article 154 mandates that the executive power shall vest in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. This Governor is appointed by the President as per the aid and advice of the Central Government in terms of Article 155 of the Constitution.

In the initial years of our republic, there was no conflict between the Governors and the Elected Chief Ministers as the same political party was ruling in Centre as well as in States and except one of two examples such as dismissal of the EMS Namboodiripad in 1959, the relation between the Centre and States were Smooth.

These relations started to worsen from 1967 onwards and today a situation has arisen where the Office of the Governor is being seen with suspicion by the leaders of Opposition Parties and Governors are being treated as agents of the Central Government.

In Shamsher Singh & Anr. vs State of Punjab [1975] 1 S.C.R. 814, the Supreme Court discussed the role of the Governor and held that Under the Cabinet system of Government as embodied in our Constitution the Governor is the constitutional or formal head of the State and be exercises all his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion.

The executive power is generally described as the residue which does not fall within legislative or judicial power.

Under the Government of India Act, 1935, the Governor in provinces were responsible to the British Government via the Viceroy and Secretary of State for India, and they exercised almost un-trammelled control. As the framers of our Constitution had a very unpleasant experience with the office of the Governor, they extensively debated the role of Governor in the Constituent Assembly. Biswanath Das, on June 2, 1949, along with some other members raised their apprehensions in the Constituent Assembly as under:

"What has been the experience in the provinces since Congressmen came into power in Independent India? How has the Governor functioned? It is common knowledge, and it has been repeated by responsible members of this House that the Governor was nothing but a cipher.

"If that be the case, how is it then that this Governor, this nominated Governor, nominated by the President and the Central Government and the Ministers elected by the State Unions and the Provinces will be able to co-operate?"

Other members such as Jawaharlal Nehru, K.M. Munshi and P.S. Deshmukh, however, contended that Governor should be the nominated head of the State with sufficient powers to discharge his constitutional duties and is to essentially act as a link between provincial Government and the Government of India and he will be able to effectively discharge his functions only if he has the authority to ask the State Cabinet to reconsider certain things and also to keep himself informed from day to day as to what orders have been issued and what sort of administration is being carried out.

On May 31, 1949, Jawaharlal Nehru expressed the apprehension that an elected Governor may fuel separatist provincial tendencies and will also be a financial burden and the only way to stop this is to ensure that the Governor to be nominated is a detached figure who can rise above party politics.

Mahatma Gandhi, writing in his newspaper 'Harijan', while advocating decentralisation of power also supported the idea that the Governors should have enough power in order to enable them to influence government policy for the better and to see things in proper perspective and thus prevent mistakes by their cabinets while acting in a detached manner.

The actions of the Governors must be seen in this historical background where the Governors are not supposed to act as mere figureheads but are treated as the conscience keepers of the Government and are expected to ensure that the state machinery functions properly in a just, reasonable and fair manner.

At the same time, in order to ensure the true spirit of cooperative federalism, it is also necessary that the office of Governor should be used for political purposes.

In this background, when some Governor asks the State machinery to work impartially to stop political violence or calls for an impartial investigation into corruption cases, it is his constitutional duty to do so and the Governor cannot be criticised as overreaching or obstructing the functioning of the State government.

The Supreme Court in the Rameshwar Prasad & Ors vs Union of India & Ors (2006) 2 SCC 1 noted that a Governor has been assigned the role of a Constitutional sentinel and a vital link between the Union and the State.

A Governor has also been described as a useful player in the channel of communication between the Union and the State in matters of mutual interest and responsibility. His oath of office binds him to preserve, protect and defend the Constitution and the law, and also to devote himself to the service and the well being of the people of the State concerned.

When the function /role of the Governor is seen in this light, it becomes imperative for him not be a silent bystander but to actively guide the elected government of the State to strictly follow the established constitutional norms of governance or in the famous words of late Atal Bihari Vajpayee, "to follow the Rajdharma".

Noted Constitutional expert Granville Austin wrote that in the rapidly-moving world of the mid-twentieth century, a new India had to be built almost overnight. How was the leadership for this task to be provided? What type of executive would be stable, strong, effective, and quick, yet withal, democratic?

To answer these questions, the Constituent Assembly chose a slightly modified version of the British cabinet system wherein they tried to ensure cooperative federalism is followed and implemented in letter and spirit by our Constitutional authorities. As long as these principles are strictly adhered to, all the wheels of democracy will move smoothly and hopefully, we won't need to govern the Governors.

(The author is an Advocate-on-Record in the Supreme Court of India. The views expressed are personal)

Source: IANS