It is high time the recommendations of the Sarkaria Commission are evolved into a Constitutional convention

The appointment of freshly retired judges and active politicians as Governors continues to stoke the old controversy. The speed with which many Governors have been appointed, soon after demitting offices, reminds us of the words of Hamlet in the eponymous play of William Shakespeare. Hamlet, the protagonist of the play and Prince of Denmark, is bewildered and shocked when his Queen Mother marries his uncle soon after the death of his father, reflects – “O God, a beast that wants discourse of reason/Would have mourned longer!—married with my uncle,” and called it “most wicked speed.”

Late Arun Jaitley had once remarked in a similar context that “post-retirement benefit is an inducement for pre-retirement judgments.” Despite recommendations of the Sarkaria and Venkatachaliah Commissions, active party politicians have been appointed as Governors.

As a convention, ripened politicians, who have withdrawn from electoral politics and are considered politically neutral, ought to be appointed as Governors. The Constituent Assembly debated a number of ways for the selection of a Governor. The first method was election by an adult suffrage. The second was election by the members of the Legislative Assembly, and the third was selection by the President out of a panel prepared by the Legislative Assembly.

The aforesaid propositions were criticised on account of creation of a possible constitutional crisis, appeasement of the Legislative Assembly for election as Governor, and possible friction against the person selected from the panel if s/he was not the first option. After extensive deliberations and on a balance of consideration, appointment of the Governor by the President was finally chosen.

A wide range of functions are assigned to the Governor. But, except where he is required to act on his discretion, the Governor acts on the aid and advice of the Council of Ministers which is accountable to the legislature. This view stands reinforced by the judgment of the Supreme Court in Shamsher Singh V. State of Punjab (AIR 1974 SC).

This is unlike the President, who is elected by an electoral college comprising the elected MPs and the MLAs and can be removed from office by way of an impeached by Parliament,

The Governor is appointed for five years by the President but holds office during the pleasure of the President. He can be reappointed as Governor for another term if “the pleasure” remains intact.

In order to retain the pleasure, a Governor, if not of sterner stuff, is bound to succumb to the bidding of the Union Government. Examples abound of the Governors who acted as instruments of the Union Government in toppling the elected State Governments. As early as 1953, instead of inviting the leader of the UDF having 166 MLAs, the Governor of Madras State invited the single largest party, Congress, which had 152 seats, paving the way for appointment of C Rajagopalachari as the CM. In 1953 again, President’s rule was imposed in the erstwhile state of Patiala and East Punjab States Union (PEPSU), due to internal party politics of the ruling party. There were other instances as well, like the dismissals of the government in Kerala in 1959, the NTR government and Farooq Abdullah governments in 1984, the Bommai government in 1989, and the subsequent dismissal of elected governments in Bihar, Jharkhand, UP.

After the Bommai judgment of the apex court, which acted as a sort of deterrent, new and ingenious measures have been devised to replace the state governments where majorities are thin or new legislative majorities could be forged against the popular mandate.

Taking a hindsight view of the role of Governors in the last seven decades, the institution of Governor has courted controversy right from 1951 in the imposition of President’s Rule, in the appointment of Chief Ministers, in the matter of time limit for given for holding the floor test, unconscionable delay in convening the Assembly, etc. Being an appointee of the Union Government, and his continuance in office being contingent upon the pleasure of the President, his recommendations were procured and made the base for imposition of President’s Rule.

The grounds for such recommendations are the ostensible inability of the parties in the state legislature to stake the claim to form the government for want of clear majority, defection from the ruling party, reducing it to a minority and the inability of the Opposition to provide convincing claim of majority support in the Assembly, intra-party politics, political instability due to defections and a welter of claims and counterclaims by political parties to form the Government, the inability of the state government to uphold the Constitution, defeat of government on the floor of the House, etc.

Many members of the Constituent Assembly in their brooding spirit foresaw the danger to the provincial autonomy. Dr HV Kamath, a member of the Constituent Assembly, had ominously cautioned, “I foresee the destruction of provincial autonomy, subversion of the provincial autonomy by the Union Government.” He very presciently said, “The Constitution will be in danger not so much from those who are agitating in the streets as from those who are in power.”

Though expected to remain “a dead letter,” the indiscreet invoking of Article 356 and the acts of omission and commission of many Governors have engendered controversies right from the year 1951. The Administrative Reforms Commission, 1968, voiced its worry in the matter. The Rajamannar Commission, 1971, recommended deletion of Article 356. The Sarkaria Commission, 1988, recommended its use sparingly, and made many recommendations of far-reaching import about the appointment of Governor and to prevent the misuse of his office.

The Justice Venkatachaliah Commission, 2002, recommended that Article 356 should be used as a remedy of the last resort. LK Advani, the then deputy prime minister and home minister, said at the Inter-State Council meeting on August 28, 2003, that “there was a general consensus on the Constitutional recommendations of the Sarkaria Commission.” The Sarkaria Commission had recommended that the Governor should be an eminent person in some walk of life and from outside the state. He should be a detached figure without intense political links, or should not have taken part in politics in the recent past. Besides, he should not be a member of the ruling party. He should be removed from office before his tenure only on the grounds as mentioned in the Constitution or if aspersions are cast on his morality, dignity, constitutional propriety, etc. He should be appointed after effective consultations. The post of the Governor, a relic of the colonial era, often becomes a clog to democratic governance when provincial autonomy is diluted or elected Government is derailed.

Federalism is an integral part of the basic structure of our Constitution and it is intertwined inextricably with the unity and integrity of the nation. It’s therefore opportune that the recommendations of the Sarkaria Commission are developed into a Constitutional convention. Further, no retired public servant should be appointed as Governor before two years of demitting the office. A Governor should be debarred from contesting elections. It’s time to have the names of prospective Governors ratified by the Rajya Sabha, the federal chamber.

(The author, a former Lok Sabha Additional Secretary, is a Delhi-based advocate)