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The presidential prerogative

President Pranab Mukherjee with Prime Minister Narendra Modi during the Governors' conference at the Rashtrapati Bhavan, in New Delhi on Tuesday.

President Pranab Mukherjee with Prime Minister Narendra Modi during the Governors' conference at the Rashtrapati Bhavan, in New Delhi on Tuesday.  

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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.

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.

(Gopalkrishna Gandhi, Distinguished Professor in Politics and History at Ashoka University, was Secretary to President K.R. Narayanan from 1997 to 2000 and Governor of West Bengal from 2004 to 2009.)

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Printable version | Nov 14, 2019 9:55:14 AM | https://www.thehindu.com/opinion/lead/the-presidential-prerogative/article8229394.ece

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