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Is the institution of Governor subverting federal structure?

Kolkata: West Bengal Governor Jagdeep Dhankar and Chief Minister Mamata Banerjee share a lighter moment during the inaugural session of the newly constituted Legislative Assembly, in Kolkata, Friday, July 2, 2021. (PTI Photo/Swapan Mahapatra) (PTI07_02_2021_000096A)

Kolkata: West Bengal Governor Jagdeep Dhankar and Chief Minister Mamata Banerjee share a lighter moment during the inaugural session of the newly constituted Legislative Assembly, in Kolkata, Friday, July 2, 2021. (PTI Photo/Swapan Mahapatra) (PTI07_02_2021_000096A) | Photo Credit: -

Governor R.N. Ravi returning the National Eligibility-cum-Entrance Test (NEET) Bill passed by the Tamil Nadu Assembly and the running battle between West Bengal Governor Jagdeep Dhankhar and Chief Minister Mamata Banerjee underline again the problematic role that governors play in Indian politics. In a conversation moderated by Amit Baruah , Gopalkrishna Gandhi and Shadan Farasat discuss this issue. Edited excerpts:

What do you make of this battle between the West Bengal Governor and Chief Minister? Can a State run if two constitutional functionaries are at loggerheads?

Gopalkrishna Gandhi: The situation in West Bengal is a somewhat extreme example of a situation which has existed in many States over a period of time — of inherent tension between the Governor, who is appointed by the President, and the State government, headed by a popularly elected Chief Minister. In Bengal, the Governor and the Chief Minister could have shown their perspectives both to each other and to the people of the State in a manner in which the two offices would not have been diminished.

It is not surprising in a democracy, which has room for a non-elected head of state and an elected head of government, to have very different perspectives on legislative, administrative and political matters. It is perfectly possible for these different perspectives to be played out in a way that does not hurt one another or the institutions of the state. Much depends, therefore, on the personalities involved. I don’t want to go into the personalities of the two leaders that we are talking about. And I say leader consciously, even for the Governor, because the Governor is head of state and he leads in many ways the political narrative, the constitutional narrative, and the narrative of governance in the State, because he or she heads the State, and cannot but head the State without reading the State.

I want to talk about a concept which governs the non-elected and elected functionaries of the State in India. The President of India is indirectly elected. He’s seen more as a person who has assumed the office through a constitutional mechanism which is elective in a very technical sense but is essentially beyond elections. The President has the opportunity, the facility and the duty to look upon anything that comes before him with only the Constitution in mind. And so the President can afford to take a view which is not popular either with the government or with public or media opinion. If the President goes along the grain of public opinion, and is faithful to the letter and spirit of the Constitution, there is no way in which the President’s view can be ignored. So also the Governor. Conversations between the Governor and the Chief Minister are extremely important and must precede, accompany and follow serious decisions, negotiations, important analyses and decisions. The law is clear that the elected government has the final say on any matter.

What is your sense of the role of the Governor, especially with the Tamil Nadu Governor returning a Bill that seeks to exempt State students from the NEET exam?

Shadan Farasat: The role of the Governor, constitutionally speaking, is quite well defined. Article 163 is clear that the Governor is bound by the aid and advice of the Council of Ministers. Although a government is run in the name of the President or the Governor, the real power that it exercises is with the elected wing. The role of the Governor or the President, as it may be, with some differences, is effectively just nominal. Having said that, Governor has the ability to engage with the government at a private level and the power of persuasion as a constitutional head. What we are seeing in West Bengal is quite extraordinary. The Governor on social media openly expresses disagreement day in and day out with the policies of the government. The Governor, as a nominal head of the state, cannot have a view different from the elected government, or at least express it publicly.

Insofar as Tamil Nadu is concerned, the Governor may have a view that exemption from NEET is not necessary. The legislature of Tamil Nadu has passed a legislation. There are some constitutional issues involved if there is some conflict with either a central law or which raises the issues of repugnancy where presidential assent may be required. If there is an issue of repugnancy, the Governor has to flag it and place it before the President.

The Bill was passed again by the Tamil Nadu Assembly. What happens now?

Shadan Farasat: If there is the issue of repugnancy, he will have to send it to the President. The power to undo repugnancy is only with the President acting on the aid and advice of the Union Cabinet and Council of Ministers. That the Bill was passed again shows that whatever reservations the Governor may have had have now been reconsidered by the legislature. And the legislature still holds its view in terms of passing that legislation. And to that extent, it’s that much weightier.

Mr. Gandhi, you were Governor of West Bengal from 2004 to 2009. Your comments on the Nandigram issue didn’t go down very well with the State government of the day. Tell us a little bit about your experience.

Gopalkrishna Gandhi: It is very important for there to be a dialogue between the Chief Minister and the Governor. Now, it’s important for us to know that while the Constitution is clear about the role of the Governor (he can only act on the advice of the government), the Governor is also accountable to the people of the State. He can’t be having a conversation with the people of the State over the head of the government, or behind the back of the government. But there can be occasions when the Governor and the public are on what has been called by President K.R. Narayanan ‘along the grain of a commonly held view’ and if that has been reiterated by the Governor to the Chief Minister and to the government and has not been taken on board and then something explodes like it did in Nandigram — I don’t think anybody would be surprised if the Governor were to express his anguish to the people. And the only way that can be done is through channels of the media. I made one statement to the media on the night of the shooting and killing of 14 persons. Let me just say one more thing. Chief Minister [Buddhadeb] Bhattacharya was extraordinarily civil about this. He told me what he felt about that whole episode.

Do we need to relook the role of the Governor?

Gopalkrishna Gandhi: It was famously said by Ambedkar and President Narayanan later that the fault is not with the Constitution but between those who run it. We cannot talk about the role of the Governor needing a relook without saying the role of the President needs a relook. If the country cannot do without a President, I don’t see how a State can do without a Governor. I also feel that the office of the Governor should be seen by its best examples. Even today, there are States with different political parties in which the Governor has been appointed by the present ruling dispensation in the Centre. They are working with some degree of cordiality, perhaps with some difficult moments, but nonetheless with cordiality, and that says a lot about the office of the Governor and the incumbent Chief Ministers.

There have been many occasions when the Centre has sounded out a Chief Minister before appointing a Governor. Can that convention be restored?

Gopalkrishna Gandhi: I would say the convention of the Union government, the President, the Home Minister and the Prime Minister sounding out the Chief Minister about an incumbent is a healthy convention. If it is observed in the breach, then the beginning of the Governor’s incumbency is, to that extent, rocked. It is also possible that the Chief Minister, not having been sounded, can find in the Governor a perfectly genial, senior colleague to work with. So, yes, sounding out is a desirable convention, but much more important is the selection of the person. And there, apart from the very first few years under Jawaharlal Nehru when persons of integrity, though not without political affiliation (many of them were Congresspersons), shed their political bias as soon as they entered Raj Bhavan, that has not been the case in subsequent years, certainly not during Indira Gandhi’s prime ministership, and also not the case with the party that defeated her. Mrs. Gandhi invoked Article 356 39 times, but the next government also invoked it something like nine times in that brief period. So, much depends on the person.

The Governors who signed the recommendation for President’s Rule did not do any service to either the Constitution or to their own conscience. The few who may have demurred are the Governors who have done a service. Here, I must mention the example of B.K. Nehru in Jammu and Kashmir whose views ran counter to those of Mrs. Gandhi. He was a shining example of a Governor who could be independent even in the context of Article 356 and other policy directives from the Centre regarding the State.

How can the delicate balance, envisaged between the Centre and States in the Constitution, be maintained?

Shadan Farasat: I think there is always a balance to be drawn. The Constitution, as originally envisaged, had a pro-Central government tilt because we were coming from a national movement and there were concerns about how well the federation would hold up. But, in practice, we have federated quite well. The best way to resolve differences is through discussion. Of course, if there is party positioning alone, which is guiding the Governor who has been appointed by a certain political party, then it’s unlikely to be resolved through discussion. In that case, it is essential that courts function effectively. Unfortunately, our courts, even in important constitutional matters, including concerning some of the issues of a federal setup, have kept the issues pending. One of the examples is the J&K issue. One part is Article 370 itself. The other is the conversion of a full-fledged State to two Union Territories without taking the views of the State Assembly. Now, that second issue will equally apply to any other State in India. It is effectively very essential for understanding federalism. So, when things don’t work out through engagement and statesmanship, it is the courts which have to give an answer quickly.

Mr. Gandhi, what is your sense of this balance between the Centre and States?

Gopalkrishna Gandhi: The balance between the Centre and the States has been envisioned by the framers of the Constitution. It is an extraordinary balance. In making that balance work, the President has an extraordinary role. In the appointment of Governors, again, the President has a huge role, because in that balance, the glue is provided by the Governors. Presidents have spoken candidly about names that have come to them from the Prime Minister of the day about Governors’ appointees and the President said, sorry, I don’t think this is a very good name and the Prime Minister accepted that. So, in the choice of the Governors, the President has a huge role and if those Governors are appointed with care, then the balance is, to that extent, more secure.

Gopalkrishna Gandhi is distinguished professor of history and politics, Ashoka University; Shadan Farasat is an advocate practising law at the Supreme Court of India


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Printable version | Feb 14, 2022 8:09:31 am | https://www.thehindu.com/opinion/op-ed/is-the-institution-of-governor-subverting-federal-structure/article65045182.ece