Controversies between Governor & CM
Over the years the position and the rift of powers of the governor and the state government have been a highlight. In the past few years, there were various notable incidents that were extremely controversial and placed the governors under the eyes of suspicion. Recent examples of such drama could be seen in West Bengal, Maharashtra, Karnataka, Andhra Pradesh, Kerala, and the list goes on. Suspicion falls usually on the governor because it is an agent of the center and the center being a majority government, it naturally becomes all against one.
Controversies like taking a long time in giving assent to bills, commenting on policies and politics on the state government, creating issues on the selection of the chief minister, demanding information n day to day administrations of the state are some of the issues to name a few that has happened in the last few years. In most of the cases, even well-intended intervention by the Governor has been portrayed by the ruling party as misuse of power or ‘acting as center’s puppet’.
The root cause of this ‘overpowering’ feature of the Governor arises from Article 356 of the Constitution of India which gives the governor the power to advise the President of Indian to proclaim emergency in the state on grounds of ‘constitutional breakdown’. No liberal democracy in the world provides for such an article in their constitution (except Pakistan). Both India and Pakistan have derived this article from the Government on India act, 1935.
The leaders of the Indian freedom struggle were completely against it, however, it was still implemented in the Indian Constitutions in the pretext that it will preserve the democracy in the post-independent era. Dr. B. R. Ambedkar had assured that Article 356 would remain a dead letter. However, the article was used more than 125 times post-independence.
Indira Gandhi used the emergency provision to remove the opposition party from the state, at least 27 times followed by the Janata Party following the same fashion removed nine Congress majority governments in 1977. On returning to power Indira Gandhi removed nine opposition majority government at once. She was known for using the emergency provision 39 times from 1966 to 1980. The subsequent governments too followed the same pattern. The misuse of the article for political gain could be seen.
The SR Bommai case[i]
In 1975 the 38th Amendment made the President invoking Article 356 conclusive and final, beyond the scope of judicial review and it cannot be challenged in any court on any grounds. However, this was reversed by the 44th Amendment Act in 1978 stating that the satisfaction of the President was not beyond judicial review. The S.R. Bommai case following the Sarkaria Commission’s recommendations overturned the long-standing tradition that Article 356 is beyond judicial review. A nine-member bench of the Supreme Court decided the scope of Article 356 of the constitution of India. It made the following observations;
- The President’s proclamation of imposing President’s Rule is subject to judicial review.
- If the action taken by the President is found to be under irrelevant, extraneous, immoral ground or if it is found to be malaise or perverse then such action can be struck down by the court. If the court finds the reasons to be unconstitutional and invalid then it has the power to restores the state government and revive the state legislative assembly.
- The center shall have to prove and provide relevant matters to justify the imposition of the president’s rule in the state.
- Any state government trying to peruse ‘anti-secular politics’ defying the basic structure of the constitution will be liable under Article 356.
- If the question so arises that the state government has lost its majority then it should be proved on the floor of the house and until then the government should not dissolve.
- The powers prescribed under Article 356 is exceptional and should be used only occasionally to meet the requirements of special situations.
- In Instances where the Governor makes its own decision without allowing the ministry to prove its majority, internal disturbances not amounting to internal subversion or physical breakdown, the state government is not given prior warning would stand as improper grounds for imposing emergency.
The way forward
The Governor has an indispensable role in the successful working of democracy. A code of conduct should be developed both by the center and the state for the smooth functioning of the post of Governor. It is important to understand that the Governor, apart from holding a political post also holds a moral position in their respective state.
The Governor is the next person whom the people of the state trust when the state machinery breaks down. Keeping this in mind the governor must act judiciously and try and stay away from the cheap politics of the center and state. Lastly, the President must use its powers of suspensive veto in case of malicious application of Article 356.
[i] S.R. Bommai vs Union Of India, 1994 AIR 1918
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