PARTY IN PARLIAMENT

Removal of Governors is Unconstitutional
L.K. Advani

I have raised this discussion. There is no question of any political expedience. I think this is a matter, which deserves to be debated and the hon. Home Minister Shri Shivraj Patil is here. I have known him for a long period of time. I would urge him to view this issue with an open mind. Some decisions have been taken and it would be my humble endeavour to point out that these decisions have not been taken taking into account the full implications of all these decisions. It is, therefore, that the motion as worded is a discussion regarding removal of Governors of four States on the basis of their ideology.

Sir, before I come to the issue proper, I would like to make a few observations about the Indian Constitution insofar as its federal character is concerned.

The Constituent Assembly deliberations show that there was an attempt by some Members to describe it as a Federation of States but the Constituent Assembly did not favour this. Dr. Ambedkar personally favoured the use of the word 'Union' and article 1 described India as a Union of States. I would think that the Constitution of India, as it emerged from the deliberations of the Constituent Assembly, has important federal features but it is not a federation in the classical sense. It cannot be, of course, called a unitary Constitution. It is not.

According to Dr. Ambedkar who was the Chairman of the Drafting Committee of the Constituent Assembly, 'it is unitary in extraordinary situation, such as war but is federal in normal circumstances.' Now, Dr. Ambedkar himself described what he thought and why he thought that Union was more appropriate.

He did it brilliantly when he said: "Thought India is to be a federation, the federation is not the result of an agreement by the States to join in the federation and that the federation not being the result of an agreement, no State has the right to secede from it. The federation is a union because it is indestructible. Though the country and the people may be divided into different States for convenience of administration, the country is one integral whole. Its people, a single people living under a single imperium derived from a single source."

Now, these are Dr. Ambedkar's views accepted by the Constitution makers. There can be ideologies, which do not subscribe to this. There are ideologies. This is not the occasion for going into all that. But there are ideologies, which hold that India is a multinational State. It is not a single nation, State.

The Americans, Dr. Ambedkar said, had to wage a civil war to establish that the States have no right of secession and, therefore, federation was indestructible. The Drafting Committee thought that it was better to make it clear at the outset rather than to leave it to speculation or disputes.

In the first two decades of Independence, from 1947 right up to 1967, broadly speaking, the Centre as well as the States were governed by one single party. It was a single dominant party polity that we experienced during the first two decades of Independence, and so problems relating to Centre and States did not arise in the manner in which they arose subsequently. In those two decades, if there were any problems, they were sorted out within the structure of the dominant party itself. So, it was the Constitutional experts like Morrice who said: "It is only after 1967 that India became a federation in the real sense of the word."

In fact, I was going through some old addresses of Presidents to Governors' Conferences, and I found that it was in 1969 that Rashtrapati Shri V.V. Giri opened his address to the Governors' Conference saying that: 'Today, more than at any time before.

Rashtrapati Shri Giri had said on December 12, 1969:

"Today more than at any time before, the Governors are called upon to face situations which were perhaps not fully envisaged when our Constitution was made."

I am not precise about the date, but perhaps Members from Tamil Nadu would enlighten me on that because during that period the Tamil Nadu Government also thought that it was necessary to examine this problem of Centre-State relations, and they set up Rajamannar Commission. It was later, perhaps around the early 1980s, that the issue of Centre-State came to the forefront and became acutely debated, against the backdrop of the Anandpur Sahib Resolution, pushed forward by the Shiromani Akali Dal. Mrs. Gandhi was the Prime Minister at that time. I recall the All-Party Meeting she had convened. I was also a participant in that meeting; the Shiromani Akali Dal was also there. The debate went on for maybe two days or three days; an elaborate discussion was there on Centre-State relations - how the Centre has become all-powerful, the States have lost their authority, etc. As a result of that, Mrs. Gandhi decided that we set up a Commission, the Sarkaria Commission to probe those questions thoroughly in all its aspects, and that it should be a comprehensive study of the problem of Centre-State relations.

It was announced in 1983, but it was in early 1980s that the discussion went on; as you rightly said, it was in 1983 - on March 24th, 1983 - that in Parliament, Mrs. Gandhi announced this proposal to set up the Commission under the Chairmanship of Shri Sarkaria, a retired Judge of the Supreme Court. She declared and I quote:
"The Commission will review the existing arrangements between the Centre and the States, while keeping in view the social and economic developments that have taken place over the years. The review will take into account the importance of unity and integrity of the country, for promoting the welfare of the people."

She further enunciated that the Commission would examine 'the working of the existing arrangements between the Centre and the States and recommend such changes in the said arrangement as deemed appropriate within the present constitutional framework'.

The Sarkaria Commission was set up in 1983. It laboured hard for five years. In the year 1988, it submitted its voluminous reports; it was in two volumes, and it was running into something like 1600-1700 pages. My Party, the Bharatiya Janata Party also submitted a memorandum to the Commission. The Communist Party of India, the Communist Party of India (Marxist) and several units of these Parties also submitted their memoranda to the Commission. At the end of these labours, I hold that insofar as the Centre-State relations are concerned, it is a monumental document that has been produced, a very weighty document, though there may be some aspects of the document which one may say that it has become outdated. But broadly speaking, the labour has been enormous; it was awesome really.

The Indian Constitution also provided that if need be, if the President so feels - when it says that if the President so feels it means that if the Government of India so feels - it can set up an Inter-State Council, to examine matters of common interest to States or to the Union and the States. I know that since 1967 or may be even earlier, since the early 1960s, my Party, the Jan Sangh at that time, and several other Opposition Parties had been demanding setting up of an Inter-State Council.

This did not happen. But after 1967, gradually the demand became more and more strident and it was only in 1990 that the Inter State Council was set up. If I am correct, it was when Shri V.P. Singh was the Prime Minister of our country. I know that this Inter State Council, which includes all the Chief Ministers of the country and several prominent Members of the Central Government, has been deliberating for the last nearly 14-15 years mainly on the Sarkaria Commission Report. Out of the hundreds of recommendations, most have now been discussed, deliberated upon and sorted out. One of them, a major chapter of the Sarkaria Commission Report, refers to the role of the Governors. The very first sentence of this chapter is, 'the role of Governor has emerged as one of the key issues in Union and State relations'. This is the first sentence of Chapter 4, which is, 'The Role of Governor'. So, today when we are discussing it, it is not merely the question of removal of these four Governors but we are referring to what has been said in the entire chapter with regard to the role and purpose of the Governor.

These days, in the context of these discussions or in the context of what has happened in Arunachal Pradesh, I have heard the Government saying, 'scrap the office of Governor. Let it go. It does not matter'. When we casually or lightly make remarks of these kinds or when anyone makes such remarks, I wish he should first go through the Constituent Assembly debates. There, the earlier concept was that like the president even the Governor would be elected. But subsequently, after much deliberation, everyone, including Dr. Ambedkar and Pt. Nehru, came to the conclusion that there is no need for an elected Governor. If we have an elected Governor and an elected Chief Minister, then the elected Governor would not be the constitutional head. It would be different from the position obtaining at the Centre. Therefore, it would be desirable that the Governors should be appointed by the President. Of course, certain provisions should be made.

Article 156 was discussed. Article 156 (1) says that the Governor shall hold office at the pleasure of the President. It went on to say that the term of the Governor shall be five years. So many Members asked what did it mean. They thought that if the Governor holds office at the pleasure of the President, then his tenure would be uncertain. He would be removed from the office any time. Prof. K.T. Shah said, "I just cannot understand this". Prof. Shah moved an amendment saying that the Governor shall be irremovable from the Office during his term of five years. He argued that we should see to it that if he has to be the constitutional head of a province, if he is acting in accordance with the advice of his Ministers, we should see to it that at least while he is acting correctly, in accordance with the Constitution, he should not be at the mercy of the President who is away from the province and who is a national and not a local authority. This was the kind of thinking that went on and it was not only Prof. K.T. Shah who said so but many others also favoured fixed tenure and said that otherwise we might put down in writing under what circumstances he could be removed.

After all, there is a provision for impeachment of the President under certain circumstances. We may provide for that in the case of Governors also. Dr. Ambedkar replied to the debate on Article 156 (1) and said that the power of removal is given to the President in general terms. What Prof. Shah wanted was that certain grounds should be stated in the Constitution itself for the removal of the Governor? It seems to me that when we have given general power to appoint, we should also give power to the President to remove a Governor for corruption, bribery, and violation of the Constitution or for any other reason, which the President no doubt feels is the legitimate ground for his removal.

It seems, therefore, quite unnecessary to burden the Constitution with all these limitations in expressed terms. Now, the concept that Dr. Ambedkar had in mind when he provided that the Governor shall hold office at the pleasure of the President, meaning if the President withdraws pleasure, the Governor goes, he said that he would do it not ordinarily, not as a matter of routine, he would do it for corruption, for bribery, for violation of the Constitution or for any other reason which the President, no doubt, feels is a legitimate ground for the removal of the Governor. All these debates of that time become very relevant now. After this also the Sarkaria Commission has again gone through it; the Inter-State Council has also gone through it and lately, after Shri Vajpayee became the Prime Minister, he appointed the Venkatachellaiah Commission to examine the Constitution, and that Commission has also gone into it. What do all these bodies say?

The Sarkaria Commission has given a lot of space to discussing that the tenure of the Governor should be secured. It has talked about the security of tenure for the Governor. It says that the intention of the Constitution makers in prescribing a five years term for this office appears to be that the President's pleasure, on which the Governor's tenure is dependent, will not be withdrawn without cause shown. Any other inference would render clause (3) of article 156 -- which prescribes the term of office of the Governor as five years. The Governor shall hold office at the pleasure of the President. They would not have put the clause (3) at all. Here the Governor's removal is based on procedure, which affords him an opportunity of explaining his conduct in question and ensures a fair consideration of his explanation, if any. When the Inter-State Council considered this matter, it came to the conclusion and this means that it is not merely the Central Government, it also means virtually all the State Governments and the Centre coming to a conclusion that they accepted the recommendations of the Sarkaria Commission that the Governor's tenure of office of five years should not be disturbed except very rarely and that too for some extremely compelling reasons. This is the recommendation of the Sarkaria Commission accepted by the Inter-State Council, which means the Central Government as well as the State Governments.

I remember - when the late Shrimati Indira Gandhi as Prime Minister decided about the Sarkaria Commission, her Principal Secretary at that time and who was a major participant in all the deliberations that took place on that occasion and who was also an hon. Member of the other House and who had also been a Governor at one time - Shri P.C.Alexandar.

Mr. Alexander has recently written an article on this question of removal of Governors in which he has pointed out that this is not the first time that Governors have been removed. It has happened earlier also. When Shri V.P. Singh was the Prime Minister, all Governors were removed. At that time, the Home Minister was Shri Mufti Mohammed Sayeed and, Shri Mufti Mohammed Sayeed's statement simply was:
"With the change of Government at the Centre, there should also be a change of Governors."

Now, Shri P.C. Alexander's comment is that this rationale that with the change of Government, there should be a change of Governors is simple but fallacious. At least, the Sarkaria Commission does not agree with it. The Sarkaria Commission says that while the Chief Ministers are subject to change, the Governors are not supposed to be subject to change. In fact, it says that they ensure continuity. Paragraph 5.04 of the Sarkaria Commission's Report says:

"The tenure of the Governor unlike that of the Chief Ministers does not depend on majority support in the Legislative Assembly. Chief Ministers change from time to time depending on their enjoyment or loss of such support but the Governor continues irrespective of the change of Ministries or even dissolution of the Legislative Assembly. The Governor continues even on the expiry of his five-year term till his successor takes over. Thus, the institution of Governor assures continuity of the process of Government."

I saw this aspect highlighted in the Report of the Sarkaria Commission only these days. Earlier, I was not conscious of this that the Governor serves this purpose also that he ensures the continuity of the Government.

It is in that context, therefore, that one goes to explain it at length why we are of the firm view that this is an office which cannot be dispensed with, as has been suggested by some people.

Now, Mr. Alexander has made a severe comment, compared the doctrine put forth by Shri Mufti Mohammad Sayeed in the days of Shri V.P. Singh that with the change of Government, let there be a change of Governors, with the doctrine of Shri Shivraj Patil. But he says what this Government has said. He says what the present Home Minister has said:

"We have not changed all of them. We have changed only four Governors. We have changed only those Governors, and we have taken action in States, where the incumbents have different ideologies. A person with a particular ideology finds it difficult to understand another viewpoint or sometimes does not want to understand. This can create difficulties specially at a time when the Government of one ideology is replaced by that of another."

Now, I respect Shri Shivraj Patil. But I would say that while Shri Mufti's doctrine was fallacious, Shri Shivraj Patil's doctrine is dangerous. I regard it as ominous. Today, we have, in the country, parties governing major States whose ideologies we do not agree with. But that does not mean that that can be the justification for invoking article 356. Can it be? Today, we are presided by an eminent Member of the House whom I respect greatly. When he became the Speaker of the House, I was the first to compliment and congratulate him. If I have to think in terms of ideologies, then he does not agree with my ideology and I do not agree with his ideology. Are ideologies to be the touchstones for matters of this constitutional nature? And when this kind of a statement was made, which I have highlighted in my Motion itself, I was reminded of the kind of situation this country has passed through during the 1970s.

Let it never be forgotten that what happened in 1975-76 or 1976-77, the kind of eclipse that came over our democracy during that period, actually started with a dangerous doctrine of this kind. It was propounded in order to justify the supersession of judges. Judges were superseded on the ground that we must have a committed judiciary in the country and that we cannot have a judiciary, which has its own ideology and judges who have their own ideologies. It was a very limited matter. It was a famous case. Mr. Speaker will guide me on that. I am not talking of judges. I am not naming the judges. An issue was in dispute at that time. There were differences among judges. There were senior judges who were in favour of that doctrine and there were other judges who were not in favour of that doctrine.

I hold that it was in 1973 that the basic seeds were sown for what happened in 1975. It was started in 1973 with the concept and doctrine of committed judiciary. On that ground supersession of judges was justified. Similarly, today the doctrine of committed Governors is being propounded. The Governors are committed to a particular ideology. If they do not subscribe to some other ideology, out they go. If they had done something wrong because of that ideology, I would have been the first person to support their removal. But if they have to go simply because of their belief in a certain ideology, then it is wrong. No one has said that they have committed some wrong.

I do not believe in secrets. When I first came to know that some of the Governors have been rung up by the Home Secretary telling them that the Government wanted to change them and therefore they suggested that they resign, we went to meet the Prime Minister. Those Chief Ministers also rang me up and told me that this has happened. I, accompanied by Shri Jaswant Singh, Leader of the Opposition of the other House, called on the Prime Minister. We asked him what was happening and what was the thinking of the Government on this issue. He said that there had been some complaints against the Haryana Governor. So, he said, it is in that context this must have happened, not in any other context. Then, he asked the Home Minister and the Home Minister said that it was not merely against the Haryana Governor that complaints have been received, there were complaints against Governors of Goa, Uttar Pradesh, and Gujarat also. He mentioned three others. Four together had been the Governors who have been removed from their office.

Now, that shows that this kind of decision also is not a very well thought out one at the level of the whole Government. I do not know how it happened in toto. After this statement came about ideology, I felt that this is something that I would request the Home Minister himself to re-consider and think about it whether it is the right approach.

These days, incidentally the Arunachal Pradesh matter also has come up. About Arunachal Pradesh, agitation is going on that the Government should go and that article 356 should be invoked. Let us never forget that when article 356 was being made part of the Constitution, there was a hue and cry in the Constituent Assembly. There were many who said that article 356 should not be part of the Indian Constitution. Persons like Shri Kamat and many others also strongly opposed it. In his reply, Dr. Ambedkar said that he could understand their misgivings and fears that when one had a provision of this nature, which gave great authority to the Central Government to override the authorities of the State, there was a possibility of abuse.

"There is possibility of abuse. But I look forward to - as I am confident - that nothing of that kind that you have feared will happen and Article 356 will remain a dead letter of the Constitution."

"Dead letter" were the words that he used. We know that it did not remain a dead letter and the result of that has been that there are many parties in the country including some parties which support this Government, including some parties which had been part of the NDA Government which had been strongly of the view that Article 356 should be repealed completely and it should go. My party has not been of that view. My party may have been the biggest sufferer of Article 352 which imposed Emergency on the country in 1975. But even then my party recognised that when the Constitution-makers in 1950 felt that there could be situations in the country where Emergency could be necessary - war was certainly one of them - we only changed the words "internal disturbance" and made it a kind of a phraseology which made the use of Article 352 - as it was done in 1975 - virtually impossible. But we always thought in terms of national interest. We felt that if there is a need for Article 356, let it be there but it should not be abused. I would like to say that Article 156 (1) also. Article 356 should be there. The Akali Dal has been strongly of the view - the Shiromani Akali Dal has often said that - that it should be repealed. But we have maintained that. Therefore, our approach in these matters is that abuse should be prevented. Basically, if a law is necessary, if a provision is necessary, let it be there. Therefore, at no point of time have we said that the expression "Governor shall hold office at the pleasure of the President" should be omitted, should be repealed. We have not said that. We have only said that that has to be reconciled with the provision, which says that the term of office of the Governor shall be five years. That reconciliation is what has been recommended by the Sarkaria Commission, what has been accepted and endorsed by the Inter-State Council which comprises both the Central Government and the State Governments. I would, therefore, appeal to Shri Shivraj Patil to accept the Sarkaria Commission's recommendation in this regard and make no changes in Governors.

Furthermore, I would also like to emphasise that the second point that has been made in respect of Governors is that in selecting a person to be appointed as Governor of a State, there should be effective consultation with the State Chief Minister. It should be effective consultation and not just a formal consultation. I can say that Shri Vajpayee was the Prime Minister of this country for six years during which period this task was assigned to me. There was not a single case in the whole country where a new Governor was appointed in a State without consultation with the Chief Minister - not only without consultation with the Chief Minister but also if the Chief Minister voiced any reservation about the person sought to be appointed as Governor, then, I would suggest to him a couple of more names and whatever name was acceptable to the Chief Minister, that person was appointed as the Governor.