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PUCL Bulletin, September 2004

Review of Governors’ appointment

-- By K.G. Kannabiran

M.R. Radha, the well-known Tamil actor in one of his lampooning moods in Rattha Kannir, a play staged in Waltax Theater in the early fifties of the last century said, “ The Congress party is a very clever political party. If their candidate wins he becomes a minister; if he gets defeated he becomes a governor”. So early was our history of Constitutional misgovernance. Dr. Ambedkar, while introducing the Draft Constitution in the Constituent Assembly on November 4, 1948 laid stress on the importance of Constitutional morality. He called for a paramount reverence to the Constitutional forms ignoring the pressing demands of expediency of adversarial politics. “Democracy in India is only a topdressing on Indian soil which is essentially undemocratic and that our people are yet to learn Constitutional morality”

Our fifty and odd years of Constitutional governance has been by and large untouched by Constitutional morality, and the early incidents of abuse of the Governors, when Tanguturi Prakasam’s claim to form a Government in Madras in 1952 and the toppling of Nambudiripad Ministry in 1959 on the anti-Communist plank are the early precursors of this trend. Thereafter the governance of this country was bent to cater to the needs of adversarial politics. Imperviousness to Constitutional morality thereafter has become the tradition. Governors have been used to topple ministries and for providing reports of Constitutional breakdown for imposing President’ Rule. Today Constitution has been wrenched to accommodate market and religious fundamentalism, though both have no place in the Constitutional scheme of things. To bring Constitutional morality into governance the current debate on Governors appointment can be used as a starting point,

The Governor is not a mere figurehead and the Constitution assigns him an important role. Even by the Sixties of the last century there was a review of the Centre-State Relations .A study Team was appointed to review these relations. The Report of the Study Team on Center-State Relations, 1968, points out that “the holder of this office is not required to be an inert cipher and that his character, caliber and experience must be of an order that enable him to discharge with skill and detachment his dual responsibility towards the Centre and towards the State executive of which he is the constitutional head. This duality in his role is perhaps its most important and certainly its most unusual feature.” M.C. Setalvad in his Tagore Memorial Lecture in the Calcutta University (1974) opens his lecture on Governor’s role with these observations from the Report of the Study Team on Centre-State Relations. The Report also points out the decline in standards of governance, what we all have been talking about, “ The post has been treated as a sinecure for mediocrities or a consolation prize for what are sometimes referred to as “burnt out politicians” Most of the persons selected were old men of the ruling party at the center.” BJP also was no different in their appointments.

Any appointment of a person with an affiliation either to one or the other of the political parties contending for power at the State or Central level, as experience has shown, will lead to the use of the Governor as a tool in the adversarial contest of these political parties. A pliable Governor becomes very often the Trojan horse in the State. “ In order that the task should be performed effectively,” the Report of the Study team points out “the Governor must be a person, who by his ability, character and behavior, inspires respect. He must be able to display perception and judgment, an understanding of political and social forces, and an insight into human motives. He must possess great reservoirs of tact, initiative and patience. He must have knowledge, and preferably, also, experience of the affairs of the Government and administration. Above all he must be impartial” This recommendation is too tall an order and is not easy of compliance. Shri Setalvad was against appointing distinguished civil servants, for the reason that the public may not have confidence in their independence and impartiality on account their long years of service in the Government. Instead Shri Setalvad prefers experienced men of affairs not committed, as far as possible, to any political party. The National Commission to Review of the working of the Constitution attempted to deal with this but failed to come out with even a debatable issue. It opted for the existing practice to continue. The candidate must be a person of eminence in some walk of life; should be a person from outside the State; He should be a detached figure and must be unconnected with the local politics; he should not be too greatly associated with politics. It does not take us anywhere near resolution of the issue. Detachment, Eminence, and an almost a-political life leave us only Godmen and retired judges to choose from.

The Constitution makers thought our politicians will be guided by the Conventions developed by the British parliamentary system for some time and thereafter the Conventions developed by us while working the Constitution. The current debate points to the fact our politics failed to develop any Conventions at all.

We are left without any mechanism to effectively find a person with these superlative qualities prescribed. All have ruled out involving the Parliament in the process of appointment. Even the latest Constitutional Review Committee, despite a full exposure to the need to search for new methods, opted for the old method.

If the process of selection is confined to the Ruling Party the choice to that extent is confined to the cabinet. Highly Constitutional non-elective appointments are left in the hands of an unaccountable oligarchy. In the one case we want to continue the method of selecting a partisan person as governor and in the other case it is on the “ground of ensuring independence” to the judiciary. While on the one side we are forced by our politics to work towards a system of co-operative federalism and a multi party democracy both at the Center and State we are not willing to abandon clinging on to an oligarchic method of appointments to non elective Constitutional positions.
Ambedkar pointed the importance of “diffusion of constitutional morality’ for successful working of a constitution..

He pointed out, while introducing the Draft Constitution in the Constituent Assembly, that the form of administration has a close link to the form of the constitution and that “the form of administration must be appropriate to and in the same sense as the form of the constitution.” He was alive to the fact that “ it is perfectly possible to pervert the constitution, without changing its form, by merely changing the form of the administration and to make it inconsistent with and opposed to the spirit of the constitution” He points out that the community must be saturated with constitutional morality. There never was in these fifty and odd years was there that diffusion of constitutional morality which he expected from the people who aspired for self governance and in India democracy remained a top dressing on Indian soil, essentially undemocratic as it was when Ambedkar introduced the Draft Constitution in the constituent Assembly on November 4, 1948.

These non-elective Constitutional appointments to bring them in line with the spirit of the Constitution must no longer be filled by an inscrutable oligarchy. It may be examined whether the task of vetting the names of governors can be entrusted to the Inter State Council constituted under Article 263 of the Constitution and the names sent to the President for approval and appointment. In a sense duly constituted Inter State Council on account of its federal functions will be the appropriate body for selecting the Governor. The question is whether these functions can be interpretively accommodated by that article or by an amendment to include this function? “ If things go wrong under the Constitution the reason will not be that we had a bad Constitution. What we will have to say is, that Man is vile!” -- 21 July ’04

 

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