The Governor is a Bridge between the Centre and the State

From an episode on Kapil Sibal’s “Dil Se”, we cover the subject of the role of the Governor, how it has assumed alarming proportions in creating hurdles in everyday governance. This conversation blames the present BJP government for this present decay; not a far cry from many previous governments when politicians have been overnight shunted from cabinet posts to that of governors, in fact, at least once as the president of India, Fakhrudin Ali Ahmed. There is, however, a fact that these days, wherever there is a state government from the opposition, there is confrontation between the governor and the government.  Nevertheless, it is important that his downslide be arrested; an alarm bell has been sounded yet again. That we need to respect institutions as represented and enshrined so appropriately in our Constitution.

In the words of Kapil Sibal himself, present in the conversation is “Narinder Nath Vohra, the quintessential old guard bureaucrat. He belongs to the Punjab Cadre IAS officer, has been governor of Jammu and Kashmir, back when it was a state. We have Madan Lokur, former judge of the Supreme Court, former chief justice of the Andhra Pradesh HC and Guwahati HC, and former judge of the Delhi HC. He is also a judge of the Supreme Court of Fiji. Dr P Thiagarajan is the Minister of Information Technology and Digital Services at Tamil Nadu. He is one of the most articulate legislators in this country.”

Excerpts from the conversation:

Kapil Sibal: How governments have functioned over the years since 2014. Has the Constitution and the concept of the federal structure of this country has that been damaged in, in some sense? And we have three extraordinary people with us today. People who are well versed in the law, people who have actually functioned as governors, and people who have actually exposed governors in what they’re doing in this state.

So let me start with you, Vohra Saab. Don’t you find a difference in when you were governor and how governor are functioning today?

Narinder Nath Vohra: With the passage of time, different people have been appointed governors of different states. When I joined service and much later when I was dealing with matters, which involved the role of the governor, in those days the Raj Bhawan or the governor’s house, as we used to call it, was occupied by persons who were not associated with politics. But over the period of time, especially with the with the single party rule at the centre, and the states led to new formations, coalition governments. Then we saw the evolution, the beginning of a confrontationist relationship between the Union and the States. And at about that time, the kind of persons who were nominated, appointed as governors, were particularly chosen for their political orientation or their reliability to carry out the behest of the centre. So that led to, if I may use the word, politicization, of the role of the governor.

And when I was appointed governor in the UPA time, there was a good sprinkling of former persons belonging to the judiciary, to the police, civil services, armed forces. There were one or two academics. But looking back, since my time 15-16 years have passed, I find that over 90% persons who are appointed working as governors are people with political background with strong political convictions and no awkwardness in expressing them on a daily basis.

Kapil Sibal: Well, that’s the worrying part. What do you say?

Madan Lokur: The Constitution expects constitutional authorities, including governors, of course, to act in a manner that is constitutional. So, if you are passive or active, it doesn’t matter. As long as you are within the Constitution. But what’s happening is that the functions of the governor now are becoming dysfunctional. They are going beyond the constitutional limits. They are crossing the red line, so to speak. And that is worrying because that is not in accordance with constitutional morality. That is not in accordance with the federal structure that has been given to us.

Kapil Sibal: You know our present Vice President Dhankhar Sahaab, recently, he made a statement saying that I’m not a member of the RSS, but it’s my misfortune that I’m not. It’s perhaps the most nationalised organisation in the world, and I would love to be a member of the RSS. Now, when a governor makes such a statement, when the vice president of India, he’s the Vice President of India, what message does it send to constitutional authorities around the country?

Dr P Thiagarajan: I think it’s a very depressing message, but I’ll actually go one step even further. I’d say that what we are seeing now in terms of the way governors act, is a reversion to the era of the British Crown, or even earlier, the East India company. They were intended to be agents of the regime. And intended to ensure that things didn’t happen outside of the regime’s interest. And that’s basically what we’re seeing now. And the role has become not just activist. I mean I don’t have to go very far, at least you’re talking about people who talk about their personal preferences or their personal issues. We have a governor who regularly tries to teach us our own culture. He comes and tells us what the Tamil people ought to be doing.

And they, they’re actively competing with each other to show who’s more loyal than the king. And so, there’s an unhealthy kind of competition between governors, and there’s line between politics and governors completely erased.

Kapil Sibal: If you look back to the history of the institution of the Governor, one of the debates has been should a governor be elected or nominated? And Ambedkar said the following, he said, if the Constitution remains in principle the same as we intend that it should be, that the governor should be a purely constitutional governor with not the power of interference in the administration of the province, then it seems to me quite immaterial whether he is nominated or elected. And as you said, sir, that the Sarkaria Commission itself says that governors should not be political appointees, they should be men of eminence and of substance. You have a governor saying, I will not administer oath of office to you. You have a governor who sanctions prosecution. You have a governor who has sacked a minister and so on.

So why is it, sir, that the nation is not talking about how this federal structure is being demolished? What do you think should be done?

Narinder Nath Vohra: One of my concerns for many years, particularly it rises from the fact that I’ve served in national security management. If we look at the role of governors, even from the very limited perspective of central state understanding in the arena of national security, then I dare say that the governor can play a very important role as a bridge between the union and the state. In motivating and persuading and contriving understandings, which would lend to national security management. Right now, I find that in very serious matters relating to national security politics enters. Politics has entered the system, our police, our enforcement agencies, and they are now coloured ideologies. And therefore, their constitutional duties, which they are bound to perform and discharged they are suffering, they’re compromised, they’re eroded.

Kapil Sibal: The governor should be a bridge between the state and the centre, a bridge in the sense that wherever there needs to be a dialogue, the governor should help in that.

Narinder Nath Vohra: Essentially governors have no particular role? You, so assembly, you journal assembly, you address the assembly and so on. And these are ritualistic. But the more important thing is a reasonably fair and deep understanding of the problems of the state. or the people of the state communicating those sensitive concerns to the union. And then conveying what the union’s responses are to the state leadership, all without publicity. But today, I find the last many years now too many public statements made by sitting governors on issues relating to the conduct of the chief minister or the functioning of the state.

Dr P Thiagarajan: I would like to take a slightly different perspective. The perks and the kind of benefits that this office is getting now is unprecedented.  Some years ago, a committee of governors recommended to the home ministry that each state should set up a discretionary fund for the governor, for the governor to spend money as they see fit. With no guidelines. They were not that successful, but a lot of states got pressure from the government of India saying you must do something about it. In my state, they wrote up something and said, these are some norms and then we are going to allocate five crore rupees a year.

So, then I started looking at how it was utilized. And much like the CAG reports say that you should have all these departments that don’t spend their budget during the year. And then the last day they transfer it to some other kind of PD account to make it look like the budget was spent, because we do cash accounting in the government; the governor’s house was doing that. They were moving money on the last day of their account and crores of rupees away from the consolidated fund of Tamil Nadu into the governor’s household account. And once it goes into the governor’s household account, we have no line of sight. It’s not reported to us or the CAG or anybody, how those things are spent. And so, there is again, a conflict of interest.

Kapil Sibal: Now tell me now, we were talking about discretion, sir. You said that, governor’s office really has no discretion. They do, in some areas, for example, after elections are held, who to call there also, there is really no discretion because there are norms laid down by Sarkaria Committee itself, but they don’t follow those norms. But that’s one area. The other area is that they have bills that come to them. Now, they have the discretion to keep the bill pending for a while, but they keep it pending from 10 months to 23 months. And then all that they can do under the constitution is either to return the bill with a recommendation or send it to the president. And if the assembly sends back the bill after they have returned it, he has to pass. But they don’t do it.

Dr P Thiagarajan: No, they don’t do it. They don’t do it. In our case, they sent it back, we passed it again, and he sat on it again for a long period. And when the Supreme Court asked what’s happening, he then referred it to the president. You can’t refer it back to the assembly and then refer it again to the president. And yet, for all the verbal pronouncements from the, you know, on the bench, the orders don’t seem to come. So, we have reached that kind of limit of where judges opine on what ought to be, but are not giving judgements on effectuating it.

Kapil Sibal: What do you say Madan ji on the discretionary part of the governor? Because you’ve been on the Constitution bench.

Madan Lokur: You see it’s like this. The expression ‘in his discretion’ is there in the Constitution in Article 1 63. Now, some governors seem to say that, well, discretion means that I can act in my individual capacity. That’s different from acting in the constitutional capacity. That’s why you have situations like you know, the governor saying that, well, it’s in my pleasure. You know, the minister’s there at my pleasure, so therefore I sack him, I withdraw my pleasure. But there, he’s acting in his individual capacity, not in his discretion as a constitutional authority.

Kapil Sibal: So, you said discretion limited to the provisions in the Constitution that gives them discretion.

Madan Lokur: Yes. But then that discretion also has to be exercised in a constitutional manner. That’s where constitutional morality also comes in. For example, sitting on a bill for 23 months. The Constitution doesn’t say that you have to decide one way or the other within 15 days, or one month, or one year. So, he says, alright, I’m sitting over it for 23 months. What can you do about it? But that’s against constitutional morality. Or the Constitution doesn’t say that once you refer it back to the assembly, and the assembly passes it, then you can’t send it to the president. The Constitution doesn’t say that. So, he says, I’m acting in my discretion. So that’s where, issues of constitutional morality come in, where you cannot cross the red line and you should not. Now, what is the solution to that? There is no solution. The only solution is either, like you said the governor should resign, or if the governor doesn’t resign, then the President should withdraw the pleasure and say that. Well, sorry. Thank you.

Kapil Sibal: Sir, the problem is the following, that when supposing somebody files a writ petitioner moves, moves the Supreme Court or to the High Court. First of all, governors say we can’t be made parties. Protection is there. We will not reply, you know, and months go into that, this has to change. I mean, the governor as a constitutional authority should be allowed to be made a party because he must defend his action, which per se may be unconstitutional.

Kapil Sibal: Governors are entertaining politicians and leaders of politicians from their party that is ruling the centre, seeking their advice as to what should be done. And one of the problems that we are facing today is exactly this. Even as we are in litigation in the state of West Bengal, there are allegations of the central government that you’re not allowing it as an agency to function. There are allegations from the other side that they are interfering in our processes. Agencies go to the state, seek the governor’s assistance for the purposes of prosecuting people. And there seems to be no solution.

Now, take for example, sir, you know, governor is a chancellor in some states under the law. Now, now what they do is they start appointing their own people.

Dr P Thiagarajan: My understanding is slightly different. I think all those places where there used to be a British presidency seat like Maharashtra or Tamil Nadu, the law is that the governor is the chancellor; in Gujarat, for example, which was formed after independence, there is no role of the governor as a chancellor.

What I’m trying to say is that in Gujarat, which is run by the same party as runs the government of India, there is no role for the governor in appointing vice chancellors to the university. He’s not the defecto chancellor; in Tamil Nadu, he is. When we decided that this is no longer required, because it’s not part of the Constitution. I think it’s just a vestige of the old regime. So, we passed a bill again, unanimously, I think taking him out as the chancellor, that Bill has been pending with him for so long. He has not signed it.

Madan Lokur: I think at some stage, under the Constitution, again there is no process of impeachment of the Governor. It’s only the President who can withdraw the pleasure. And in the given situation, the President will not, so you’re stuck.

Kapil Sibal: Not only that, there is a Provision 361 of the Constitution, which says that you cannot prosecute the governor. You cannot take any proceedings.

Madan Lokur: But there’s a different perspective, which is that if you are not authorised to do something, then you cannot have immunity. For example, it’s not a part of your official duty. Supposing now we’ve had a case of sexual harassment that’s not a part of the official duty of the Governor. So why can’t the governor be prosecuted for that? Because that’s being done in his individual capacity.

Kapil Sibal: That’s right. I agree with you.

Madan Lokur: So, I think that is the only way out.

Kapil Sibal: That’s where Supreme Court has to come in. How do you develop the law? How do you make your country more vibrant? And make sure that the Constitution functions. And we are essentially, though it’s a unitary state, you know, the federating units are central to it.

Dr P Thiagarajan: Give you a slightly different perspective. The consequences of these interferences are felt in the lives of crores of people. It’s felt in the lack of growth, in the lack of jobs and the lack of development because nce you reach these stalemates, then the system just freezes. I mean, these are not just political battles for the next election. There are real consequences to daily administration of this kind of interference and obstructive kind of activities. And it has been escalating. If you look at, at least my experience at Tamil Nadu, in the eight years I’ve been a legislator, it started with the governor helping to broker a deal, for lack of a better word, between two factions of the then ruling party, so that they could continue to stay in power. The infamous handshake at the governor’s mansion of the two factions coming together so that they could retain office was you know, a low. And then it got lower and lower and lower after that.

And now we have governors interfering in everyday activity, in every way possible, and running their own propaganda events. So, we have a governor who holds UPSE aspirants kind of intellectual training programme at the state’s expense. There’s a deep negative impact in your ability to administer a government and actually get anything done if these bills get stuck, if there’s day-to-day interference.

Kapil Sibal: Some of these bills actually are allocations of money. Some of these are social programmes, very vital social programmes.

Dr P Thiagarajan: Some of them are appointments. He refused to sign a bill to sign an appointment order for the chairman of the Tamil Nadu Public Service Commission. The entire government recruiting goes through the Public Service Commission.

Kapil Sibal: Since, the beginning until you extended term, in 2013, did you see any of this happen during those years?

Narinder Nath Vohra: No. There were instances reports, complaints, or in one particular state in central East India of the incumbent governor taking money for the appointment of vice chancellors as chancellor.

Kapil Sibal: We also have seen cases where the governor was deciding as to how you are going to conduct proceedings in the house. And this is what the agenda is going to be.

Narinder Nath Vohra: This is extreme, but if the overall relationship or the balances are not ideal, but reasonably normal, a governor can wield considerable influence on the political system if he doesn’t publicize his relationship, if he doesn’t make public statements.

But if you don’t make a song and dance or try to tell the public or the media that you are running the state, and you have quiet relation with the political leadership, my experience is they do listen. They’re not beyond influence. If your perceived interest or objectives are not political.

Kapil Sibal: You’re right. I mean, that’s what the president does also.

Narinder Nath Vohra: But I still feel, that in a country of our size with many problems, large population, poverty, unemployment we do need very strong centre-state relations. Irrespective of the political scenario, changing in democracy, some party will win, some party will lose. But the relationship with the states must be impeccable. They must be reliable and trustworthy. And for that, I feel that whatever else is the debate about the role of the governor, he should be tested on the touchstone of how much he’s able to contribute towards promoting the understandings and not destroying the understandings.

Madan Lokur: I would look at the governor as somebody being an elder statesman kind of person. If the government is going wrong somewhere, and there is information available that is going wrong, then perhaps advise the chief minister.

Narinder Nath Vohra: That has to be done very confidential.

Madan Lokur: Yes. Absolutely. Absolutely Not publicly.

Kapil Sibal: Problem, sir, is that governor today, instead of doing what you’re suggesting should be done, actually destabilize the state. They will call the faction, which is so not supporting the chief minister. They will confabulate with them.

Narinder Nath Vohra: The oath of the governor is to preserve, protect, and defend the Constitution. And the constitution, the preamble and the justice, political, economic, social you, if he’s taken oath, and he is reasonably loyal to that oath, a great deal of good work can be done for promoting the welfare of the people of the state in many diverse manners. You don’t need authority, statutory or constitutional, of course, to play a role.

Dr P Thiagarajan: The Governor actually has a lot of discretion because even the appointment of the search committee has to go through the governor. And he has a nominee on it. There are so many places where they can add value, especially if they do it quietly, instead of grandstanding about it or using it as a political tool.

Kapil Sibal: If you really look at how elected governments have fallen in the last couple of years, you will find that the role of the governor has been central to it. You’ll not call the assembly at the right time.

Narinder Nath Vohra: There’s one particular role, which is tarnished the image of the governors is vis-a-vis 356. It happened after emergency with the Janta government. It happened when Mr. VP Singh took over. Then again, I was in service at that time. I was working with him. But then fortunately, the Supreme Court’s rulings on the of 356 that has stood well.

Kapil Sibal: What they do is they give enough time for defections to take place. You see if you have enough time and then if it comes to the opposition form of the government, they will say, prove your majority tomorrow, this afternoon. So, they’re so blatantly partisan. And the question then arises, do we need governors? Or is there another way of actually dealing with centre-state relations?

Dr P Thiagarajan: I am sure there are many good ways, and it’s a clear vacuum in our system that we don’t have better channels and better methods for centre-state relations, which are absolutely vital. Our party standard has always been from 1967, that these are vestiges of an old regime.

They should be removed. I can see some merit in the argument of centre-state relations, but I think there’s so many ways that could be done, and particularly because we have seen the worst outcomes or the worst excesses of what I assume was never imagined in the Constitution when the roles were written. Then we have to say, is there any kind of turning the clock back possible?

So there’s a reasonable argument to be made that this post has become politicised to an extent that it’s not recoverable.

Narinder Nath Vohra: If you have a mechanism for a relationship between the union and the states and give and take and you say, institutionalize it. What kind of mechanism can we have?

Kapil Sibal: Three, two nominees of the state, or three nominees of the state, three nominees of the union sitting in council and discussing issues when a bill can go to them, and then that can be discussed there. It’s difficult to dominate.

Madan Lokur: But then you might end up having a stalemate.

Kapil Sibal: Then you can have a constitutional provision saying that No, if the state says that this has to be done, it’ll be done. It can be challenged in court. I’m just saying that at least a debate should start to happen.

Because the individual representation is actually destroying the federal structure according to me.


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