Revision as of 21:46, 24 June 2021

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

Convening assembly sessions

The legal position

Dhananjay Mahapatra, SC rulings don’t give guv much say in convening House meets, July 26, 2020: The Times of India

Nabam Rebia Verdict Defines Guv’s Powers

New Delhi:

As Rajasthan Congress MLAs demand summoning of the state assembly, a reading of the Supreme Court’s rulings do not leave much scope for the governor to exercise his discretion once the state cabinet has recommended convening of a session.

Questions whether the governor, in exercise of his powers under Article 174, could defy or delay advice of the Ashok Gehlot government are answered by the view that this can be done only when the government’s majority is in doubt.

With Congress disinclined to engage in further legal battles after failing to gain any favourable decision either from the Rajasthan HC or the SC, the spotlight is on Raj Bhavan.

Article 174 of the Constitution says, “The governor shall from time to time summon the House or each House of the legislature of the state to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session.” Does this mean the governor has discretion to summon the House as per his assessment, disregarding the advice of the council of ministers headed by the CM? A five-judge bench of the SC in Nabam Rebia judgment (July 2016) scrutinised the provision in the draft constitution and its final version as Article 174 and ruled, “We are satisfied in concluding that the governor can summon, prorogue and dissolve the House only on the aid and advice of the council of ministers with CM as the head. And not on his own”.

The bench said, “We are of the view that in ordinary circumstances during the period when the CM and his council of ministers enjoy the confidence of the majority of the House, the power vested with the governor must be exercised in consonance with the aid and advice of CM and his council of ministers.”In the above situation, he is precluded from taking an individual call on the issue at his own will, or in his own discretion.

“In a situation where the governor has reasons to believe that CM and his council of ministers have lost the confidence of the House, it is open to the governor to require the CM and his council of ministers to prove their majority in the House, by a floor test. Only in a situation where the government in power on the holding of such a floor test is seen to have lost the confidence of the majority would it be open to the governor to exercise the powers vested with him under Article 174 at his own.”

Does the Rajasthan governor think that Gehlot government has lost its majority and he is not bound by its advice to summon the House as advised? Even then, the governor has to instruct the CM to prove his majority on the floor of the House and there are numerous SC judgments which bar the governor from taking a decision in Raj Bhavan on whether a government enjoys the confidence of the House or not. The SC has repeatedly ruled that test of strength has to be on the floor of the House.

Legal experts on the Rajasthan case, 2020

Can guv sit on govt’s advice to convene assembly? Legal experts are divided, July 26, 2020: The Times of India

New Delhi:

As Rajasthan governor Kalraj Mishra takes his time over accepting the Ashok Gehlot government’s recommendation to convene an assembly session for a floor test, some legal experts hold he has little discretion in the matter while others feel the proceedings in the Supreme Court and disqualification proceedings against Congress rebels are a factor.

Arghya Sengupta of Vidhi Centre for Legal Policy felt the governor’s options are limited. “It is a well-settled position of constitutional law that the governor or President is bound by the aid and advice of the chief minister or Prime Minister. In fact, the Supreme Court in Nabam Rebia’s case from Arunachal Pradesh authoritatively clarified that unilateral actions of the governor in summoning the assembly are generally impermissible. The narrow exception is when the chief minister and his council of ministers are conflicted in providing independent and impartial advice,” he said.

Sengupta said in this light, for any governor to “unilaterally summon or refuse to summon the assembly may be seen as a serious breach of constitutional law and convention”.

Raising questions on the state government’s desire to convene the session immediately, senior advocate and former additional solicitor general Maninder Singh said there is no obstruction to the state government to function. “Matter (regarding the Speaker’s powers) is pending in courts and the Supreme Court will take up the case on Monday. No one has asked the government to prove the majority and so there is no need as such for a session. It is being demanded just to throw out ruling party MLAs who are opposing the chief minister,” he said. Senior advocate Vikas Singh, however, said there is an SC Constitution bench verdict as per which the governor has no choice but to follow the advice of the cabinet. He said the governor has discretionary power only when he thinks that the government has lost majority. “It is not the case that the present government has lost majority asthe rebel MLAs themselves say that they are very much part of Congress,” Singh said.

Supporting Singh’s opinion, senior advocate Nidhesh Gupta questioned the role of governors in political crisis and termed it “duplicity of the constitutional functionary”. He said that the SC in the Rebia case laid down that the governor required to act on aid and advice of the cabinet particularly on summoning the House. “The issue of Covid is a complete hogwash. It is not the business of a governor to be worried about that. No such issue was raised in Madhya Pradesh when the majority was with BJP. Unfortunately the law laid down by the SC is treated just as as interesting read in law journal by constitutional functionaries,” he said.

Former Jharkhand high court judge Ajit Sinha said there is no doubt that a governor under normal circumstances is bound by the advice of the cabinet but the situation is Rajasthan is not so and the Raj Bbhavan should wait for outcome of proceedings pending in the SC and the HC. “Some of the Congress MLAs have shown annoyance to the CM. Can it amount to defection? The questions framed by the Rajasthan HC are very relevant and important and those issues should be first adjudicated,” he said.

Determining majority

Governor can seek floor test even if session on: SC

MLAs’ flexible support to own party a sordid tale of political life: SC, April 14, 2020: The Times of India

Guv can seek floor test even if session on: SC in MP case

The Supreme Court endorsed Madhya Pradesh governor Lalji Tandon’s direction to the Kamal Nath government to face a floor test on March 16 following the resignation of 22 Congress MLAs and ruled that a governor had the power to direct a floor test even during an ongoing session.

However, it added that the governor’s decision was liable to judicial scrutiny.

Rejecting arguments of senior advocates A M Singhvi, Kapil Sibal, Vivek Tankha and Dushyant Dave who appeared for Congress, a bench of Justices D Y Chandrachud and Hemant Gupta said, “A governor is not denuded of the power to order a floor test where on the basis of the material available (to the governor) it becomes evident that the issue as to whether the government commands the confidence of the House requires to be assessed on the basis of a floor test."

Writing the judgment for the bench, Justice Chandrachud sounded a caution, “Undoubtedly, the purpose of entrusting such a function to the governor is not to destabilise an existing government. When the satisfaction on the basis of which the governor has ordered a floor test is called into question, the decision of the governor is not immune from judicial review.” The SC said the governor had neither interfered in the House proceedings nor impinged upon the Speaker’s powers.

MLAs’ flexible support to own party a sordid tale of political life: SC

The SC said the “sordid tale of political life”, exemplified by the toppling of state governments by MLAs of the party in office and the spectacle of “rebel MLAs being flown to safe destinations”, were denting “democratic politics”. It suggested legislative measures to curb these evils, reports Dhananjay Mahapatra. Upholding MP governor Lalji Tandon’s decision asking the Kamal Nath-led Congress government to face a floor test following resignation 22 MLAs, a bench of Justices D Y Chandrachud and Hemant Gupta said, “The spectacle of rival parties whisking away their political flock to safe destinations does little credit to the state of our democratic politics.” However, the SC said it was best for the courts not to enter the political thicket and determine why loyalties were switched, which was best left to the conscience of rebel MLAS.

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”.

Powers of governors

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.

I.S. Council favours Bommai judgment, Punchhi Commission

Neeraj Chauhan, Guv's power: Council wants to go by Bommai judgment, Apr 10 2017: The Times of India

The standing committee of Inter State Council, which met after 12 years on Sunday , discussed the discretionary powers of governors in appointment of chief ministers, their assent in bills passed by state assemblies and the powers of state ministers. This comes after the recent controversy over the role of governors in BJP forming governments in Manipur and Goa despite not being the single largest party.

The meeting, chaired by home minister Rajnath Singh, was attended by finance minister Arun Jaitley , Uttar Pradesh chief minister Yogi Aditya Nath and his Odisha, Tripura and Chhattisgarh counterparts Naveen Patnaik, Manik Sarkar and Raman Singh, among others.

Chief ministers of Rajasthan, Punjab and Andhra Pradesh, who are also members of the committee, did not attend the meeting or send their representatives.

According to top government sources, there was unanimity among the CMs and central representatives that issues related to powers of governors had already been settled in the Supreme Court's SR Bommai judgment and the recommendations of the MM Punchhi Commission should be implemented in line with it. Source said a couple of more meetings would take place to finalise the issue.

In SR Bommai vs Union of India case, the SC had said, “Wherever a doubt arises whether the council of ministers has lost the confidence of the House, the only way of testing it is on the floor of the House, except in an extraordinary situation where because of all-pervasive violence, the governor comes to the conclusion and records the same in his report that for the reasons mentioned by him, a free vote is not possible in the House.The House is the place where democracy is in action. It is not for the governor to determine the said question on his own or on his own verification. This is not a matter within his subjective satisfaction. It is an objective fact capable of being established on the floor of the House.“

Speaking to reporters, Andhra Pradesh finance mi nister Y Ramakrishnudu, who deputised for CM N Chandrababu Naidu, said, “We discussed the role of governors threadbare. Many states said a governor should be qualified, non-partisan and above politics.“

He added that several states wanted governors to not have a say in politics.

According to the MM Punchhi Commission's recommendations on Centrestate relations, a governor should follow clear guidelines in the appointment of CM by sticking to “clear order of preference“.

The commission recommended that a CM should be asked to prove his majority within a clear time limit before he is dismissed. The CM should prove his majority within five days to a maximum 30 days, it said.

According to sources, Rajnath Singh told the meeting that the powers of governors, criteria for their selection and their impeachment should largely be left untouched.

The Bommai judgment (summary)

Trend-setting judgment that's benchmark now, The Times of India, May 17, 2011

The late Karnataka chief minister SR Bommai, whose dismissal in 1989 led to a trend-setting judgment by the Supreme Court stipulating a floor test, is the sole yardstick for testing a majority in case of a doubt. The judgment also laid down certain guidelines and standards in exercising power under Article 356.

The judgment stated that the proclamation under Article 356(1) is not immune from judicial review. The Supreme Court or the high court can strike down the proclamation if it's found to be mala fide or based on wholly irrelevant or extraneous grounds. If the court strikes down the proclamation, it has the power to restore the dismissed government. Bommai's tenure was short as the Congress government at the Centre dismissed him as CM on April 21, 1989 after a section of his own party withdrew support to him. Bommai took over as CM on August 13, 1988 from Ramakrishna Hegde, who had quit following a telephone-tapping scandal. Bommai moved the Supreme Court challenging his dismissal. In 1994, the apex court gave the landmark judgment in what came to be known as S R Bommai vs Union of India case, making a floor test the benchmark for testing majority of a head of government in the event of doubt.

Other observations

• The governor is like a person wearing two hats. With one, he is the head of the state government and with the other, he is a representative of the President. He is not a mere agent of the President.

• President's proclamation should be placed in Parliament within two months and approved.

Background of Bommai case

Janata Party, which had a majority with 83 seats in the state legislature, merged with Lok Dal to be called the Janata Dal and form the government. The ministry was expanded with the addition of 13 members. Two days later, KR Molakery, a JD legislator, defected and presented a letter to the governor along with signatures of 19 other legislators withdrawing their support to the Bommai government.

The governor sent a report to the President recommended he exercise power under Article 356(1) stating therein there were dissensions and defections in the ruling party. Then, seven out of the 19 legislators who had rebelled, sent letters to the governor complaining their signatures were obtained on the earlier letters by misrepresentation and affirmed their support to the ministry.

The CM met the governor the same day and informed him about the decision to summon the assembly to prove the confidence of assembly in his government. But the governor did not heed his appeal and sent another report to the President to dismiss the government. President issued the proclamation, which was approved by the Parliament as required by Article 356(3).

The Bommai judgment (analysis)

Protecting secularism and federal fair play, Vol. 14 :: No. 22 :: Nov. 1 - 14, 1997 : The Frontline

If the President has given content to Bommai's promise of fair federal play, the judgment's mandate for secularism, and for action against parties and State governments violating the constitutional philosophy that prohibits the mixing up of religion and politics, has yet to be acted on.

THREE years after the Supreme Court slammed the door shut on abuses of Article 356 of the Constitution, the law that it laid down has been put to work. S.R. Bommai vs Union of India, delivered in March 1994, had sharply limited the constitutional power vested in the Central Government to dismiss a State government. President K.R. Narayanan's decision to act on Bommai, and the survival of the Kalyan Singh Ministry, has been hailed as a triumph for the law and Indian federalism. But the Bharatiya Janata Party, which has so enthusiastically endorsed Bommai, escaped criticism for the fact that it was a flagrant violation of the same law that allowed its ally, the Bahujan Samaj Party (BSP), to form a Ministry in Uttar Pradesh on June 3, 1995. And few in the media have discovered that the cutting edge of Bommai is its radical attack on communal politics. If President Narayanan has given content to Bommai's promise of fair federal play, the judgment's other mandate, the mandate for secularism, and for constitutionally sanctioned action against political parties and State governments violating the constitutional philosophy that prohibits the mixing up of religion and politics, has yet to be acted on.

April 21, 1989: Karnataka Chief Minister S.R. Bommai (left) presents Governor P. Venkatasubbaiah a copy of the resolution passed by the Janata Dal Legislature Party requesting the Governor to give Bommai an opportunity to test his majority in the Assembly. Although floor tests continue to be the sole practical means of establishing majorities, incumbency is clearly a key factor in the outcome of such tests.

The 1994 Supreme Court majority decision in essence overturned a long tradition that the use of Article 356 was not really subject to review by courts, a doctrine articulated in a landmark 1977 case, State of Rajasthan. Bommai laid down the conditions under which State governments may be dismissed, and mechanisms for that process. These were expressed through six opinions, with the judgments of Justices A.M. Ahmadi, K. Ramaswamy, and J.S. Verma for himself and Yogeshwar Dayal dissenting from the majority opinion of Justices P.B. Sawant for himself and Kuldip Singh, B.P. Jeevan Reddy for himself and S.C. Agarwal, and, finally, S. Ratnavel Pandian. Although this seeming maze of judgments created some confusion among laypeople about precisely what portions in the Supreme Court decision were the law, the debate has now been largely resolved. Jurist Soli Sorabjee wrote in a critique of the case: "The judgments of Sawant and Kuldip Singh, JJ, to the extent they are not directly or by necessary implication inconsistent with judgments of Justices Jeevan Reddy and Agarwal, are part of the majority judgment and constitute the law of the land" (Supreme Court Cases, 1994, Volume 3).

WHAT, then, did these judgments demand when Mayawati announced that the BSP was withdrawing support to the Kalyan Singh Ministry? The language of Bommai is plain. "In all cases where the support of the Ministry is claimed to have been withdrawn by some legislators," Justices Sawant and Kuldip Singh held, "the proper course for testing the strength of the Ministry is holding the test on the floor of the House." "The assessment of the strength of the Ministry is not a matter of private opinion of any individual be he the Governor or the President" (emphasis added). Justices Jeevan Reddy and Agarwal underlined the floor test procedure: "Whenever a doubt arises whether the Council of Ministers has lost the confidence of the House, the only way of testing it is on the floor of the House" (emphasis as in the original). The sole exception to this will be a situation of "all-pervasive violence where the Governor comes to the conclusion - and records the same in his report - that for the reasons mentioned by him, a free vote is not possible."

These simple legal mandates were before President Narayanan when he first ordered a brief on Bommai as BJP-BSP relations deteriorated in the State. Prime Minister I.K. Gujral proved receptive to the need for a floor test, but Defence Minister Mulayam Singh Yadav, backed by the Congress (I), insisted that the BJP Government be dismissed. Although legally in the wrong, Mulayam Singh was in a political sense entitled to suggest the course of action he did. In June 1995, his Ministry in Uttar Pradesh, deserted by the slippery BSP, became the first to be dismissed after Bommai was delivered. The Chief Minister was summoned to the Raj Bhavan at 4 p.m. on June 3 and told to resign. Despite his explicit protest against the unconstitutionality of the action since Bommai made a floor test his right, Governor Motilal Vora asserted that legal opinion stressed his discretionary powers in such situations (Frontline, June 30, 1995).

The Supreme Court's verdict in the Bommai case sharply limited the constitutional power vested in the Central Government to dismiss a State government, but upheld the dismissal of four BJP Governments for going against the constitutional philosophy and provisions that were secular.

This was untrue, but the Congress (I) Government at the Centre was supported by sections of the media that were intensely hostile to Mulayam Singh's handling of the Ayodhya crisis and his position on the Mandal Commission formula issue. Although the Samajwadi Party moved the Supreme Court, the last heard of the case was its reference to a Constitution Bench two years ago.

The decline and fall of the Suresh Mehta Ministry in Gujarat in 1996 underlined other problematic aspects of Bommai. Again, the constitutional tests laid down by the Supreme Court majority were not honoured. The Mehta Ministry was dismissed on September 19, a day after it "won" a confidence vote amidst violence in the Assembly and after ejecting the Opposition from the floor. Governor Krishna Pal Singh was unmoved by that vote, though whatever happened in the House clearly did not meet the test of "all-pervasive violence" as laid down by Justices Jeevan Reddy and Agarwal. One month later, many of the MLAs who had voted for the Suresh Mehta Ministry supported the Shankarsinh Vaghela Ministry. Incumbency was clearly a key factor in the outcome of floor tests and an irate Mehta told Frontline: "It is power that tilts (the) majority. If my position is restored, I can prove my majority in five days" (Frontline, November 15, 1996). Justice K. Ramaswamy's dissenting judgment, at the time largely ignored, when not disapproved of, had a prescient quality. "A floor test may provide impetus for corruption and rank force and violence by musclemen or wrongful confinement or volitional captivity of legislators," he warned.

In the absence of a more objective and manageable alternative, however, floor tests continue to be the sole practical means of establishing majorities - with an exception made for the rarest of rare cases, covering virtual civil war conditions. The suggestion that the Kalyan Singh Ministry should be dismissed and the Assembly placed in suspended animation until the dismissal was ratified by Parliament (as Bommai mandated), was based on ruthless realpolitik. The calculation that legal challenges would spend years in court was behind Mulayam Singh's powerful play within the United Front to get the Kalyan Singh Government dismissed and the Assembly dissolved. The Bommai framework permitted the Governor to bypass the requirement of a floor test only in the event of "all-pervasive violence", or other factors ensuring that the Government of the State could not be carried out in accordance with the Constitution. Although Bhandari's reports did speak dramatically of the possibility of "bloodshed" in the State, they seemed wide of the mark. The Governor's conclusions on who was responsible for the violence on the floor of the Legislative Assembly seemed to be contradicted, unwittingly, by the narrative in the observers' report forwarded by the Governor. There was also doubt that Bhandari was acting, to borrow from Justice Ramaswamy's dissent, in an "umpire's role".

WHAT standard does Bommai lay down for a proper determination that the constitutional machinery has broken down? The judgment of Justices Sawant and Kuldip Singh suggested that "a situation of impasse" should have developed. There had to be a "legal inability as well as (the) physical impossibility" of governance according to the Constitution. "Hence situations which can be remedied or do not create an impasse or do not disable or interfere with the governance of the State according to the Constitution would not merit the issuance of the proclamation under the Article."

Justices Jeevan Reddy and Agarwal, with whom Justice Pandian expressly concurred on this point, held a similar opinion: "It is not each and every non-compliance with a particular provision of the Constitution that calls for the exercise of the power under Article 356(1)" (emphasis added). Thus, the majority in Bommai sanctioned dismissal of a State government only under the most extreme circumstances. Clearly, by this test, the violent incidents in the Uttar Pradesh Assembly, however offensive they might have been, did not suggest a "physical impossibility" of governance according to the Constitution.

What situations might warrant the dismissal of a State government without a floor test? In response to this larger question, the BJP and their largely fellow-travelling media have been conspicuously selective in their readings of Bommai. The only issue on which all nine Judges agreed, albeit by varying processes of reasoning, was the dismissal of the four BJP State governments in the wake of the demolition of the Babri Masjid. Bommai held with powerful unanimity that they were justly dismissed for going against the constitutional philosophy and provisions that were decisively secular. Secularism, they reiterated full-throatedly, was part of the basic structure of the Constitution, which nobody could take away and hence (in Soli Sorabjee's words) the "far-reaching proposition that violation of basic feature of the Constitution, including the secular features of the Constitution, is a valid ground for exercise of power under Article 356." The proposition had been argued sharply before the court. Its opponents had contended that since the basic feature doctrine evolved by the Supreme Court cannot be used to test the validity of legislation (as opposed to constitutional amendments), it most certainly could not be used to legitimise an exercise of power under Article 356. This contention was rejected by the court and what emerged was a radical affirmation of the inalienable secular content of Indian constitutional democracy. Hardly anyone has referred to this vital aspect of Bommai in the present context, where a central player is the very man who headed the State administration when the Babri Masjid was demolished and is now facing prosecution for complicity in that crime.

THE understanding of secularism in Bommai is perhaps best expressed in the judgment of Justices Sawant and Kuldip Singh. "Religion," they asserted, "cannot be mixed with any secular activity of the State. In fact, the encroachment of religion into secular activities is strictly prohibited. The state's tolerance of religion or religions does not make it either a religious or a theocratic state. When the state allows citizens to practise or profess their religions, it does not either explicitly or implicitly allow them to introduce religion into non-religious or secular activities of the state." What constitutes a violation of secularism under the Constitution is spelt out in the judgment of Justices Jeevan Reddy and Agarwal: "Under our Constitut-ion, no party or organisation can simultaneously be a political and a religious party (original emphasis). It has to be either. Same would be the position if a party or organisation acts and/or behaves by word of mouth, print or in any other manner to bring about the said effect, it would equally be guilty of an act of unconstitutionality. It would have no right to function as a political party " (emphasis added).

Such startling clarity of perception has, sadly, not provoked any parallel legislative processes in India. What is even worse, what can be directly enforced from Bommai against communal and anti-secular political players has been ignored in political India. The challenging prospect that Bommai raised of delegitimating communal parties like the BJP, the Muslim League and the Akali Dals has begun to look more and more remote. But in the months and years to come, the relevance of this issue must be understood by secular-democratic political parties.

Without prejudging the outcome of Chief Minister Kalyan Singh's trial for crimes related to the demolition of the Babri Masjid, the fact remains that the BJP is a party wedded to Hindu supremacism and to communalism as a political mobilisation strategy. Its leaders, and those of its affiliates in the Sangh parivar, have recently spoken of the need to renew both the Ram Janambhoomi agitation and the issues of Mathura and Kashi. If and when the time comes, Bommai must again be deployed, to protect the constitutional commitment to secularism. That action may well require more courage and conviction than allowing Kalyan Singh the floor test mandated by a reading of one part of Bommai.

Finally, a question. How would President Narayanan have responded had the Governor's reports and the Cabinet recommendation made out a serious case for the application of Article 356 against the Kalyan Singh dispensation for being anti-secular, majoritarian and communal?

Recommendations of the MM Punchhi Commission

4 May 2011: IAS Maniacs

Recommendations of Punchhi Commission

SECOND COMMISSION ON CENTRE STATE RELATIONS

The Commission is chaired by Justice Madan Mohan Punchhi, former Chief Justice of India. The other Members of the Commission are – Shri. Dhirendra Singh (Former Secretary to the Government of India), Shri. Vinod Kumar Duggal (Former Secretary to the GOI), Prof. (Dr.) N.R. Madhava Menon (Former Director, National Judicial Academy, Bhopal and National Law School of India, Bangalore) and Dr. Amaresh Bagchi (Emeritus Professor, National Institute of Public Finance and Policy, New Delhi).

A comprehensive review of Centre-State Relations was undertaken by the Sarkaria Commission in the mid-eighties. In the two decades that have gone by both the polity and economy have undergone profound changes, posing new challenges for government at all levels and calling for a fresh look at the relative roles and responsibilities of each level and their inter-relations. The present Commission has been entrusted with this task and asked to make recommendations that would help to address the emerging challenges.

The terms of Reference of the Commission will be as follows:

(i) The Commission will examine and review the working of the existing arrangement between the Union and States as per the Constitution of India, the healthy precedents being followed, various pronouncements of the Courts in regard to powers, functions and responsibilities in all spheres including legislative relations, administrative relations, role of governors, emergency provisions, financial relations, economic and social planning, Panchayat Raj institutions, sharing of resources, including inter-state river water and recommend such changes or other measures as may be appropriate keeping in view the practical difficulties.

(ii) In examining the reviewing the working of the existing arrangements between the Union and States and making recommendations as to the changes and measures needed, the Commission will keep in view the social and economic developments that have taken place over the years particularly over the last two decades and have due regard to the scheme and framework of the Constitution. Such recommendations would also need to address the growing challenges of ensuring good governance for promoting the welfare of the people whilst strengthening the unity and integrity of the country and of availing emerging opportunities for sustained and rapid economic growth for alleviating poverty and illiteracy in the early decades of the new millenium.

(iii) While examining and making its recommendations on the above, the Commission shall have particular regard, but not limit its mandate to the following:-

(a) The role, responsibility and jurisdiction of the Centre vis-a-vis States during major and prolonged outbreaks of communal violence, caste violence and any other social conflict leading to prolonged and escalated violence.

(b) The role, responsibility and jurisdiction of the Centre vis-a-vis States in the planning and implementation of the mega projects like the inter-linking of rivers, that would normally take 15-20 years for completion and hinge vitally on the support of the States.

(c) The role, responsibility and jurisdiction of the Centre vis-a-vis States in promoting effecting devolution of powers and authority to Panchayati Raj Institutions and Local Bodies including the Autonomous Bodies under the 6th Schedule of the Constitution within a specific period of time.

(d) The role, responsibility and jurisdiction of the Centre vis-a-vis States in promoting the concept and practice of independent planning and budgeting at the District level.

(e) The role, responsibility and jurisdiction of the Centre vis-a-vis States in linking Central Assistance of various kinds with the performance of the States.

(f) The role, responsibility and jurisdiction of the Centre in adopting approaches and policies based on positive discrimination in favour of backward States.

(g) The impact of the recommendations made by the 8th to 12th Finance Commissions on the fiscal relations between the Centre and States, especially the greater dependence of the States on devolution of funds from the Centre.

(h) The need and relevance of separate taxes on the production and on the sales of goods and services subsequent to the introduction of Value Added Tax regime.

(i) The need for freeing Inter-State trade in order to establish a unified and integrated domestic market as also in the context of the reluctance of State Governments to adopt the relevant Sarkaria Commission`s recommendations in Chapter XVIII of its report

(j) The need for setting up a Central Law Enforcement Agency empowered to take up suo moto investigation of crimes having Inter-State and/or International ramifications with serious implications on national security.

(k) The feasibility of a supporting legislation under Article 355 for the purpose of suo moto deployment of Central forces in the States if and when the situation so demands.

The major recommendations may be enumerated as follows

1. There should be an amendment in Articles 355 and 356 to enable the Centre to bring specific trouble-torn areas under its rule for a limited period.

2. The commission has proposed “localising emergency provisions” under Articles 355 and 356, contending that localised areas — either a district or parts of a district — be brought under Governor’s rule instead of the whole state.Such an emergency provision should however not be of duration of more than three months.

3. The commission however supports their right to give sanction for the prosecution of ministers against the advice of the state government.

4. To make an amendment in the communal violence Bill to allow deployment of Central forces without the state’s consent for a short period. It has proposed that state consent should not become a hurdle in deployment of central forces in a communal conflagration. However, such deployment should only be for a week and post-facto consent should be taken from the state.

5. Among the significant suggestions made by the Commission is, laying down of clear guidelines for the appointment of chief ministers. Upholding the view that a pre-poll alliance should be treated as one political party, it lays down the order of precedence that ought to be followed by the governor in case of a hung house:

a) Call the group with the largest prepoll alliance commanding the largest number;

b) the single largest party with support of others;

c) the post-electoral coalition with all parties joining the government; and last

d) the postelectoral alliance with some parties joining the government and remaining including Independents supporting from outside.

6. The panel also feels that governors should have the right to sanction prosecution of a minister against the advice of the council of ministers. However, it wants the convention of making them chancellors of universities done away with.

7. As for qualifications for a governor, the Punchhi commission suggests that the nominee not have participated in active politics at even local level for at least a couple of years before his appointment. It also agrees with the Sarkaria recommendation that a governor be an eminent person and not belongs to the state where he is to be posted.

8. The commission also criticises arbitrary dismissal of governors, saying, “the practice of treating governors as political football must stop”. There should be critical changes in the role of the governor — including fixed five year tenure as well as their removal only through impeachment by the state Assembly. It has also recommended that the state chief minister have a say in the appointment of governor.

9. Underlining that removal of a governor be for a reason related to his discharge of functions, it has proposed provisions for impeachment by the state legislature along the same lines as that of President by Parliament.This, significantly, goes against the doctrine of pleasure upheld by the recent Supreme Court judgment.

10. Endorsing an NCRWC recommendation, it says appointment of governor should be entrusted to a committee comprising the Prime Minister, Home Minister, Speaker of the Lok Sabha and chief minister of the concerned state. The Vice- President can also be involved in the process.

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.

Controversial actions

1967-2019

1967-2019, Some disputed decisions by Indian Governors.
From: July 29, 2020: The Times of India

See graphic:

1967-2019: Some disputed decisions by Indian Governors.

1984-2005

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

Favouring the national ruling party

2016-19

Nov 27, 2019: The Times of India

Every time there is a hung assembly, it’s the governor who uses his discretion that often favours the party or alliance at the Centre. Whether it is Maharashtra now, Karnataka last year or several other cases in the past, the focus had been on the governor’s role in terms of inviting a party or alliance to form the government or giving it a longer rope to prove majority in the House.

In Maharashtra, governor Bhagat Singh Koshyari might have explored all available options before recommending President’s rule. He was criticised for giving BJP more time and later setting a shorter deadline for Shiv Sena and NCP.

Koshyari may not have violated constitutional provisions — the matter is now under judicial review — but played close to the line in swearing in the Devendra Fadnavis-Ajit Pawar duo. The 14 days he gave for a floor test seemed excessive and the Supreme Court slashed it to a day. Though Fadnavis’s resignation in wake of the SC’s order of early floor test (by 5 pm on Wednesday) turned the table in favour of the Shiv Sena-NCP-Congress alliance, the development brought the governor’s discretion under the shadow of controversy.

The role of the governor’s office has been under scrutiny in all regimes. When the UPA assumed office, the governments of Nagaland and Goa were the first to go. During UPA-2, the BJP government in Karnataka was kept on tenterhooks with the governor sanctioning prosecution of then chief minister BS Yediyurappa.

In May 2018, Karnataka saw a questionable development when governor Vajubhai Vala granted 15 days time to Yediyurappa to prove his majority in a hung assembly. Even then, the SC had to intervene when opposition parties approached it and the court asked Yediyurappa to prove his majority early by curtailing the number of days given to him by the governor. Vala in that case even ignored the claim of the Congress-JD(S) despite the postpoll alliance having a higher number of MLAs. He invited BJP to form the government which was the single largest party without adequate numbers on its side.

There are many other examples where the governor acted in a manner which suited the ruling party at the Centre. The governor has wide powers on whom to invite but must not be arbitrary and should follow due process.

Though the SR Bommai case asserted that floor test was the only way to decide the strength of an alliance, it did not clarify whether the single largest party or group should be taken as the pre-or post-poll alliance.

In 2016, Uttarakhand saw a different scenario when governor KK Paul recommended President’s rule instead of giving then Congress CM Harish Rawat a chance to prove majority when nine ruling party MLAs rebelled. The Uttarakhand high court quashed President’s rule and Rawat proved his majority.

PART B

Change of guard

2019, Sept

Sep 2, 2019: The Times of India

Governors appointed in 2019, Sept.
From: Sep 2, 2019: The Times of India

Arif, who quit Rajiv govt, new Kerala guv New Delhi:

Arif Mohammad Khan, a vocal voice against triple talaq who had quit the Rajiv Gandhi cabinet in protest against the enactment of a law to nullify the Supreme Court order in the Shah Bano case, has been appointed governor of Kerala, a state where BJP has been struggling to make its presence felt.

BJP leader and former Uttarakhand CM Bhagat Singh Koshyari, 77, will be the new governor of Maharashtra. He was one of many party MPs who were denied tickets in Lok Sabha polls due to their age.

BJP’s Tamil Nadu chief Tamilisai Soundararajan, 58, has been appointed governor of Telangana, while former Union minister Kalraj Mishra, 78, who was recently appointed governor of Himachal Pradesh, has been shifted to Rajasthan. Former labour minister Bandaru Dattatreya, 72, has been appointed governor of Himachal Pradesh.

Mishra will succeed Kalyan Singh, who completed his five-year tenure as Rajasthan governor. Koshyari replaces Vidya Sagar Rao as Maharashtra governor, while Soundararajan will succeed ESL Narasimhan in Telangana.  Khan a staunch critic of triple talaq

The allocation of gubernatorial assignments shows that the leadership is careful about accommodating senior party leaders with many of them taking retirement from active politics owing to the unwritten party code of no electoral role for those crossing 75 years.

Khan, who will succeed former CJI P Sathasivam in the Kerala Raj Bhavan, has been a staunch critic of triple talaq and has been calling for reforms in Muslim personal laws since long. Khan’s speech in Parliament in 1985 in the wake of the Shah Bano judgment extending the Rajiv Gandhi government’s initial support to it was much acclaimed. However, when the Rajiv Gandhi government made a U-turn under pressure from Muslim clerics and brought a bill to nullify the SC order, he resigned from the ministry. The UP politician later joined BJP, but remained inactive since 2007.

Recently, when the Narendra Modi government brought a bill to criminalise triple talaq, and Khan supported it. In the Shah Bano case, the SC had delivered a judgment favouring maintenance given to a divorced Muslim woman.

Taking a swipe at Khan’s appointment, Congress leader Abhishek Singhvi said it was an “entirely expected decision”. “Congratulations to Arif Mohammed Khan on being appointed governor of Kerala. An entirely expected decision. His statements made in recent times were an indicator of him soon getting rewarded by BJP. The reward is well deserved and was long awaited,” Singhvi said in a tweet.

The changing role of Governor

1952-2016

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.