The >latest exit from the office of the Governor of Mizoram, before the expiry of his term, is bound to revive the controversy over the institution of Governors. Sadly, the debate on the issue, since the National Democratic Alliance (NDA) government came to power, has generated more noise than thrown light. It is necessary to recapitulate.
The Constituent Assembly started with the proposition of electing Governors but settled for a process where Governors are appointed at the pleasure of the President. As in the case of most other constitutional offices, no qualifications other than citizenship and age were prescribed by the Constitution for the appointment of Governors. The Justice Sarkaria Commission and the Justice Venkatachaliah Commission looked into the matter and laid down broad guidelines which, however, have not been accepted by successive Union governments.
Criticism about selections In the initial rounds of appointment of Governors, the choices were largely unexceptional and fell on persons who served the country with distinction in one walk of life or the other. Even so, a major proportion of these appointments went to veterans of the political party in office at the Centre, thereby inviting the sly comment that the office of the Governor was being used to put retiring politicians to pasture. From the 1970s, the selections became increasingly vulnerable to criticism on grounds of political partisanship, favouritism, patronage and cronyism.
The misuse of the office of the Governor for political purposes started as early as in 1952, when the Governor of Madras took it upon himself the task of frustrating the prospect of a government dominated by the Communist Party of India. He persuaded the Prime Minister to agree to his proposal of nominating the would-be Chief Minister to the Legislative Council and proceeded accordingly to install a Congress government in office. Then came 1957, when the Communist government in Kerala was deposed by invoking Article 356 (President’s Rule). Such misuse of office was subsequently compounded in growing measure, by abuse of power by errant Governors, thus bringing the office into contempt and public ridicule.
In the absence of clearly laid down criteria for selection, the process of appointment of Governors has been from the beginning, political, and rightly so, because of the political nature of the office. The quest is not for the best person available for the post. The test is whether the person chosen has a public record that is without blemish and above reproach. Necessarily, he or she has to be one known to the powers who are responsible for the choice, and acceptable to them, as also the State government which is in office in the particular State.
The recent Supreme Court >verdict on the appointment of Governors does not impose any restrictions on the government’s choice of Governors. It only cautions that the pleasure of the President cannot be withdrawn on grounds of political incompatibility or any arbitrary grounds. It does not provide any pre-emptive relief, but only asserts the jurisdiction of the court to look into the matter post-facto if the aggrieved were to approach the court.
In my view, it will be beneath the self-respect and dignity of any Governor to go to court. Besides, such a course of action damagingly detracts from the high constitutional status of the office itself. In fact, the situation should never reach the point of the President withdrawing his pleasure. At the slightest hint of the Union government’s discomfiture with a Governor’s continuance, he or she should offer to resign, particularly when there is a change of government. An even healthier convention could be that incumbent Governors should offer to resign automatically when the Union government changes, as happens in the case of the Attorney General and other Law Officers. Mutual confidence is the crux of the matter. Such a convention could even be legislated as an addition to Article 156 Clause 3 of the Constitution.
I may be accused of preaching what I did not follow in my own case. Therefore, a few facts may need to be stated. When the Union government changed in 2004, my immediate inclination was to offer to resign. But I was dissuaded by all those whom I had consulted on the ground that it would mean my admission of a political affiliation in spite of being a retired civil servant. Five months later, when the intention of the Union government to transfer me to a North-Eastern State was conveyed to me, I construed it as loss of confidence and offered to resign. I acted on the offer as soon as the government made up its mind.
Judges as governors The office of the Governor is not employment under government. Thus, the Constitution has no bar on retired judges of High Courts or the Supreme Court being appointed as Governors. The only constitutional restriction on them relates to their practising law after retirement. As it is, they are being appointed to positions that have the character of employment under the government. By a 1969 Act of Parliament, the Chief Justice of India is designated to act as President of India in the event of vacancies arising in both the offices of the President and Vice-President simultaneously. There has also been the convention of Chief Justices of High Courts filling casual vacancies of Governors. Where it was intended that constitutional functionaries should not accept employment under the government after retirement, the Constitution stated so explicitly. It is for Parliament to decide if superior judges should be excluded from consideration for appointment to any office, as it is for individual judges to decide if it is consistent with their dignity and self-respect to occupy such office.
Finally, a poser on the transfer of Governors within the prescribed five-year tenure. Article 156(3) of the Constitution does not contemplate such transfers unlike Article 217(1) (proviso 3), which provides for transfers of High Court judges including Chief Justices. Therefore, is it constitutional to transfer a Governor from one State to another for the remainder of the five-year term instead of a fresh five-year tenure? That is a legal conundrum.
(P.S. Ramamohan Rao was Governor of Tamil Nadu between 2002 and 2004.)
