President and a 'political' meet - part II of II - The Hindustan Times

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I do not think that the President has been well-advised in calling
a meeting of the Governors and leaders of the political parties to
discuss the course of action that may be taken by the
constitutional head in case, after the elections, no single party
secures an absolute majority in the legislature. The move will set
a wrong precedent and may involve the President and the Governors
in more controversies.

It does not seem very sound to collect the Governors and the
leaders of the political parties at the same forum. Apart from the
fact that the Governors are not likely to express themselves freely
at such a forum, it is not clear what fruitful results of practical
value could accrue. Even if a broad agreement is arrived at, how
would its application be ensured in practice?

The Governor is an independent constitutional authority. For
appointing a Chief Minister, he has to exercise his individual
judgment and act in his discretion. He is not expected to be
influenced by any extraneous consideration or guidelines. The
Supreme Court has made this absolutely clear in the Raghu Tilak
case.

In this connection, it may be recalled that the Draft Constitution
had a provision, in the form of Schedule IV, which contained
'Instrument of Instructions' to the Governors. But this provision
was subsequently deleted. It was felt that it would neither be
practical nor constitutionally sound to run the parliamentary
system by making express provisions. Commenting on this deletion,
the well-known constitutional authority, Granville Austin has
observed: "From this, one is forced to deduce that Ambedkar and the
members of the Drafting Committee, perhaps under pressure from
Nehru or Patel, had come to the conclusion that the written
provisions of a non-judiciable Instrument of Instructions and the
tacit conventions of cabinet government had equal value; both were
legally unenforceable, but both provided a mechanism by which the
legislature could control the Executive; and of the two,
conventions were the tidiest and the simplest way of limiting
Executive authority."

Conventions of a Constitution, according to Dicey's classic
definition, consist of "customs, practices, maxims, or precepts
which are not enforced or recognised by the courts", but "make up a
body not of laws but of constitutional or political ethics".

Unfortunately, wielders of political power in India have not shown
enough constitutional maturity to facilitate growth of sound and
healthy conventions. For example, the Governors have not been
following the same course in appointing Chief Ministers where there
were different claimants for the post. While some had invited the
leader of the largest single party in the Assembly, the others had
assessed the total following of the different claimants. For
instance, in 1967, in West Bengal and Bihar, the Congress party
leader was not invited to form the Government even when the
Congress party was the largest single party in the Assembly. On
the other hand, in Uttar Pradesh as well as in Rajasthan, the
leader of the single largest party, which happened to be the
Congress, was invited to form the Government. Further, in regard
to the method of assessing the claims and counter-claims, different
approaches were adopted by different Governors. Some had followed
the list system, some had relied on the physical verification
system, and some had combined the list and the physical
verification systems.

Despite the fact that no sound conventions have come into being,
neither Governors' Committee nor Sarkaria Commission considered it
wise to lay down any rigid guidelines for the Governors. It was
recognised that no two positions could be exactly identical.

The correct approach to assess the worth of the Governor's decision
is to evaluate it in the totality of the circumstances, including
the political and administrative environment in which he is called
upon to exercise his discretion. To make him act in a particular
manner in all circumstances would be neither desirable nor
realistic. Moreover, some of the decisions of the Governors and
the President are now open to judicial review. For example, the
Allahabad High Court, in its judgment delivered on December 19,
1996, quashed the Presidential proclamation imposing central rule
in Uttar Pradesh, holding that the Governor should have first
explored all possibilities of forming a government and also written
to the Election Commission to issue the requisite notification for
summoning the State Assembly.

Problems arise not because the Governors have sizeable areas of
discretionary powers but because the political elements that have
come to power at the Centre from time to time have not been able to
rise above narrow considerations and immediate gains. If the
intentions of the political elements are bona fide, there should be
no difficulty in following the principle which Krishnamachari
indicated while speaking in the Constituent Assembly. He said: "I
would at once disclaim all ideas that we in this House want the
future Governor who is to be nominated by the President to be in
any sense an agent of the Central Government. 1 would like that
point to be made very clear, because such an idea finds no place in
the scheme of Governor we envisage for the future." Unfortunately,
what was envisaged has been negatived in practice through the
mechanism of appointment and removal. Today, no constitutional
office is so insecure as that of a Governor. It is only he who can
be transferred or fired at the whims of the Central Government. No
one has threatened to resign if the ruling party persisted with its
course Of making the Governor as its political agent rather than an
agent of the Constitution.

The truth is that there is a national "malady that afflicts us
all". As Dr Ambedkar observed at the time of the adoption of
Constitution: "However good the Constitution may be, it is sure; o
turn out bad because those who are called to work it happen to be a
bad lot."

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