AA Edit | Why governors need to study the Constitution

There are still a few people in this country who are unaware of the fact that India is a democratic republic governed by a Constitution its people gave to themselves some 73 years ago, and sadly, most of them occupy Raj Bhavans. They run roughshod over elected legislatures and councils of ministers accountable to them, thinking that the governors in Independent India enjoy the same level of power and immunity as the governor generals of the Raj. They sit over pieces of legislation passed by state Assemblies and pick and choose some to sign while keeping the legislatures in the dark over the others. They, in short, undermine the very idea of democratic governance and constitutional propriety.

One of the worst displays of gubernatorial excesses in Independent India was orchestrated by Tamil Nadu governor R.N. Ravi who on Thursday issued an order dismissing a minister without consulting the chief minister, only to retract in hours. The timely intervention and advice of Union home minister Amit Shah to the governor to seek the advice of the Attorney General of India has saved the Union government the blushes though it cannot distance itself completely from the wrongdoings of the governor.

The governor, in his letter to the chief minister dismissing the minister, said that he was “conscious of the fact that, under ordinary circumstances, a governor acts on the aid and advice of the council of ministers”. He appears to have got the Constitution wrong as there is no extraordinary situation other than when he is convinced that “government of the state cannot be carried on in accordance with the provisions of the Constitution,” and recommends President’s Rule; he cannot arrogate to himself the power to decide when to act on the aid and advice of the council of ministers as long as there is one.

The governor, again, gets it wrong when he refers to his advice to the chief minister against retaining a minister, as the Constitution talks of the chief minister advising the governor, and not vice-versa. It must be remembered that Supreme Court has clarified repeatedly that the “the constitutional conclusion is that the governor is but a shorthand expression for the state government and the President is an abbreviation for the Central government”.

The governor, in his letter, points out that there are apprehensions that continuation of the minister, who is in judicial custody, “will continue to obstruct the due process of law and disrupt the course of justice”. As it stands today, various courts, including the Madras high court, are looking into various aspects of the case, and are empowered to ensure the course of justice is not disrupted. Moreover, nothing stops the Enforcement Directorate, the federal agency investigating the case, from moving a court.

The Constitution and the Representation of People Act, 1951, prescribe the qualifications for a citizen to become an MLA/MP. A discussion on the desirability of people who face serious criminal charges occupying positions of power is welcome, but any action taken must follow the due process of law. It cannot be left to people who have no qualms about advancing their own partisan agendas.

Instead of burdening the Attorney General every time, the Union government would do very well to put in place a mechanism to screen gubernatorial candidates on the basis of their knowledge of the Constitution before announcing their appointment. It is, after all, going to be their job to preserve and defend the Constitution.