Governor of Jammu and Kashmir Satya Pal Malik has claimed that parties in the violence-torn state had attempted "to gain power rather than form a responsive government", citing this as one the reasons for dissolving the Jammu Kashmir Legislative Assembly. Referring to the alliance of the People's Democratic Party (PDP), National Conference (NC) and the Indian National Congress, he highlighted the "impossibility" of these parties with "opposing political ideologies" — some of which had once demanded the dissolution of the Assembly themselves — forming a stable new government in the state.
The eighth spell of Governor's Rule in Jammu and Kashmir began after Mehbooba Mufti resigned as the chief minister in June. In an event of the failure of the constitutional machinery in the state, President's Rule is imposed under Article 356 of the Constitution. But in the case of Jammu and Kashmir, Governor's Rule is imposed in the state for six months only with the president's consent, and this converts to President's Rule after this six-month period.
Governor Malik's comments require more than a situational analysis. Can a figure head make a decision that affects the constitutional functioning of the state simply based on the competing, or complementing, ideologies of different political parties and boldly assert the same in public? His remarks are symptomatic of a larger problem the roots of which lie in the evolution of Indian polity to what it has become today.
Critiques of the role have repeatedly raised doubts about the political and ideological neutrality of governors.
Section 49 of the Government of India Act, 1935, had stated that a governor will exercise the executive authority of a province on behalf of His Majesty (George V). This was the insertion of a federal principle in the Constitution, wherein the provinces derive powers directly from the sovereign.
Article 164 of the Constitution of India based on Section 51 of the Government of India Act, 1935, says: "The governor's ministers shall be chosen and summoned by him, shall be sworn as members of the council and shall hold office during his pleasure."
Even though the discretion of the governor seemed wide, debates on this provision in 1949 didn't delve deeper into this point. In his book Constitutional Law of India, HM Seervai pointed out that it was only after the Congress' defeat in the 1967 elections and the rise of independents that there were problems in exercising the governor's power.
"As the president acts on the advice of his ministry, it may be contended that if the governor takes action contrary to the policy of the Union ministry, he would risk being removed from his post as governor, and therefore, he is likely to follow the advice of the Union ministry."
The pretence of political and ideological neutrality by governors is an outcome of the power dynamics hidden within the creation of the role itself. Seervai wrote: "It is submitted that a responsible Union ministry would not advise, and would not be justified in advising, the removal of a governor because in the honest discharge of his duty, the governor takes action that does not fall in line with the policy of the Union ministry."
Seervai mentioned that Article 356(1) was designed to secure that if the governor was pursuing policies detrimental to the state or to India, the president would remove the governor from office and appoint another. "This power takes the place of an impeachment, which clearly is a power to be exercised in rare and exceptional circumstances."
In making a report to the president under Article 356(1), the governor acts not only as the head of the state but also as the representative of the Centre, bound by the oath to "preserve, protect and defend the Constitution and the law".
There's a duality along with a fluidity to the role of a governor that leads to such problems. AP Jain, former Governor of Kerala, had flown from Thiruvananthapuram to New Delhi in 1967 to extend support to Indira Gandhi's consent for prime ministership. When the media had called him out for it, Jain had claimed to have accepted the post under pressure from Lal Bahadur Shastri in the "interest of the nation".
Furthermore, the Congress had allowed former Governor of Bihar RD Bhandare to publicly disapprove of certain ministers in 1973, and another former governor of the same heartland state, MA Ayyangar, had showed his favour for MP Sinha's non-Congress government and was somehow denied an extension by the Centre. This points to whether the governor can even take a stand in the interest of the state without risking losing his post or without disrupting constitutional bounds.
When VV Giri was the Governor of Kerala, he had approached the Planning Commission, which had allotted only Rs 105 crore to the state in its third plan. After his vigorous debate at the governor's conference, demanding at least Rs 200 crore for the state's development programmes, Jawaharlal Nehru had asked him whether he was threatening the Centre.
While speaking before the constituent Assembly, India's finance minister from 1956 to 1958, TT Krishnamachari, had remarked, "I would at once disclaim all ideas, at any rate so far as I am concerned, 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. I would like that point to be made very clear because such an idea finds no place in the scheme of the government we envisage for the future."
In this backdrop of the historic complexity of this role, it becomes all the more difficult to establish the political neutrality and objectivity in a governor's position. In the State of Rajasthan versus Union of India case, Justice Bhagwati had conceded that the inclusion of the word "otherwise" in Article 356 gave the president radically drastic powers which, if misused, can damage the constitutional equilibrium between the Union and states. The framers of the Constitution are responsible for what outlines the political events of the day, especially in states like Goa and Karnataka where none of the parties won a clear majority and the governor had to play a key role. The Sarkaria Commission, set up to balance powers between the central and state governments in 1983, had by and large recommended a status quo in Centre-state relations, especially in fields pertaining to legislative matters, and had stressed that a powerful Centre is a powerful nation.
In his book Governor's Role in the Indian Constitution, Sibranjan Chatterjee articulated that to understand how governors execute their powers, one has to give Constituent Assembly debates considerable significance. "One has to search for more reliable cues beyond mere history and formal constitutional design. The role is embedded in the midst of a constellation of forces surrounding it," he wrote, adding that the governor's position evolves to the tune of Centre-state relations along with the state of the domestic politics of a particular state.
In Jammu and Kashmir, conflict is an unending story, and that has led to a political history, bringing Governor's Rule to the Valley repeatedly. Governor's Rule was first imposed in the state in March 1977, when the Congress withdrew support to late the Sheikh Abdullah-led National Conference (NC). LK Jha had then taken over as the governor for three months.
In July 1984, Sheikh Abdullah's son-in-law, Ghulam Muhammad Shah, overthrew the then chief minister, Farooq Abdullah, with the help of 26 Congress MLAs and 12 NC legislators, who were labelled as turncoats. But in March 1986, the Congress withdrew support. Subsequently, the state was administered under Jagmohan for about six months. After the stipulated time, President's Rule was imposed on 6 September, 1986, before the Farooq-led NC came to power following yet another accord with the Rajiv Gandhi-led central government.
The deeper the political twists and turns within a state, the less latent the ideological divides, and the greater the need to build apolitical bridges between the Centre and state to maintain peace and prioritise people's welfare and development. However, incumbent Jammu and Kashmir governor Satya Pal Malik's comment has a history of errors and egos behind it, and however unconstitutional it may seem, it cannot be criticised in isolation.
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Updated Date: Nov 22, 2018 17:46:37 IST