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The Hindu Notes for 11th April 2019

Topic Discussed: The Hindu Notes of 11th April 2019

Trickeries of the money bill

The judgment in the tribunals case could have a profound bearing on India’s constitutional arrangements

  • The Supreme Court has now heard oral arguments in Revenue Bar Association (RBA) v. Union of India, in which the validity of the Finance Act of 2017, insofar as it affects the structure and functioning of various judicial tribunals, is under challenge. At first blush, a dispute over the apparent inscrutabilities of a tribunal’s working might strike us as uninteresting and, perhaps, even unimportant. But, as the RBA’s arguments show us, how the court decides the case will likely have a profound bearing on India’s constitutional arrangements.
  • Untrammelled power

  • Ordinarily, the Finance Act, which is enacted at the beginning of every accounting year, seeks to give effect to the government’s fiscal policies. In 2017, however, the state wielded the statute like a blunderbuss. It not only set the fiscal agenda for the year ahead but it also toppled the existing regime governing the working of 26 different judicial bodies. Until recently, each of these panels was governed by a separate statute, and those laws individually contained a set of principles providing for, among other things, the criteria employed to select and remove members to and from these bodies, and for salaries, allowances and other such service conditions of the members.
  • But, in one fell swoop, the Finance Act not only abolished some of the tribunals but also altogether repealed the standards provided in the different statutes. In their place, the law vested in the Central government an absolute, untrammelled power to make rules to effectively govern the operation of the tribunals.
  • The petitioners argued that this move runs sharply athwart judicial independence. The new law, in their belief, deputed to the executive what was really an essential legislative function. Many of these tribunals, which included the National Green Tribunal (NGT), the Income Tax Appellate Tribunal, the National Company Law Appellate Tribunal, and the Industrial Disputes Tribunal, they pointed out, performed roles that were originally undertaken by the higher judiciary. To assign to the executive’s whims the task of establishing the criteria employed in selecting members to the panels and to provide for the members’ service conditions was, therefore, pernicious to the basic principle of separation of powers. Consider one of the consequences. Despite the Supreme Court’s previous ruling that the chairperson of a judicial tribunal ought to be equivalent to the Chief Justice of the high courts, as a result of the rules now made in furtherance of the Finance Act, in 13 different tribunals, a person who is merely qualified to be appointed as a judge of a high court can be selected as the presiding officer.
  • The RBA’s case, though, goes beyond questions concerning delegation of power. Of equal concern is the enactment of these stipulations through the wangled mechanism of the Finance Act. Substantive matters concerning the governing of tribunals, one would think, can scarcely be considered as a fiscal measure. Yet the draft law which introduced these provisions was classified as a money bill, and the sanction of the Rajya Sabha was altogether dodged. Although this too might appear on first glimpse to be a quarrel over esoteric matters of procedure, the consequences are enormous, travelling, as they do, to the heart of India’s democratic apparatus.
  • The need for the minutiae

  • In B.R. Ambedkar’s vision, the Constitution embodied not only a charter of rights but also a foundation for republican governance. His worries that democracy in India was “only a top-dressing on an Indian soil, which is essentially undemocratic”, saw him lay stress on a need to diffuse constitutional morality among India’s citizens. Citing the classical historian, George Grote, while moving the draft Constitution on November 4, 1948, Ambedkar said constitutional morality had to be seen as representing “a paramount reverence for the forms of the Constitution”. Since such reverence had to be cultivated, he thought it imperative that the Constitution commend the minutiae of administration rather than leave such matters purely to the legislature’s wisdom. In the absence of such prescriptions, democracy, he feared, would wallow in decline.
  • The Constitution’s verbosity has been a source of antipathy to many. Too long, too rigid, too prolix, Sir Ivor Jennings, a preeminent British constitutional expert, reportedly said, of the document, in a lecture delivered at the University of Madras in 1951. But only years later Jennings was lauding India for representing the region’s most successful constitutional experiment. This volte face, as it happened, was occasioned by those provisions of administrative intricacies, which Jennings had initially found so troubling, and which Ambedkar had thought indispensable. And it is those provisions that are today under siege.
  • Some trickery

  • One such clause, Article 110(1), grants to the Lok Sabha Speaker the authority to certify a draft law as a money bill so long as such legislation deals only with all or any of the matters specifically listed in the provision. These include subjects such as the imposition or abolition of a tax, the declaring of any expenditure to be expenditure charged on the Consolidated Fund of India, and, significantly, also any matter otherwise incidental to the subjects specified in Article 110. The ensuing clause clarifies that a draft law will not be a money bill for the reason that it also provides for the imposition or abolition of a tax. In other words, substantive laws, which are not merely incidental to the subjects enlisted in Article 110(1) cannot be finagled into a bill that also happens to contain taxing rules. It is precisely such trickery that the petitioners contended the Finance Act of 2017 indulges in.
  • The Union government, for its part, argued that the Speaker of the Lok Sabha was not only correct in making the classification, but that, in any event, her decision was beyond judicial review. To this end, the government relied on Article 110(3), which states that in cases where a dispute arises over whether a bill is a money bill or not, the Speaker’s decision shall be considered final. But, as the Supreme Court has repeatedly held, the finality accorded to the Speaker’s decision does not altogether oust the court’s jurisdiction. The irrevocability of such decisions operate only within the realm of Parliament. For the Constitution expressly vests in the Supreme Court and in the high courts the power to review governmental actions, and issue prerogative writs every time those actions exceed the Constitution’s remit.
  • Ultimately, the Speaker derives her power from the Constitution. In classifying a draft law as a money bill, therefore, her decision has to be demonstrably justifiable. An immunity from judicial scrutiny would effectively allow the government to elude the Rajya Sabha’s constitutional checks by simply having the Speaker classify a draft law as a money bill regardless of whether it, in fact, meets the conditions stipulated in Article 110(1) or not.
  • From a parliamentary custom

  • The idea behind a money bill is derived from British parliamentary custom. But unlike in Britain, where judicial review of the Speaker’s opinion is unambiguously prohibited, in India, Article 110 avoids creating any such bar. Money bills exist simply to ensure that the Rajya Sabha isn’t allowed to bring down a government by refusing it access to the exchequer for everyday governance. To use it as a means to nullify the Upper House’s democratic role in making substantive legislation denigrates the Constitution’s form which Ambedkar and the Constituent Assembly considered inviolate.
  • As the lawyer Gautam Bhatia wrote in these pages (“The imperial cabinet and an acquiescent court”, March 8, 2019), the Supreme Court has already squandered at least two opportunities in recent times to provide a sense of sanctity to the Constitution’s carefully structured arrangements. The dispute over the Finance Act of 2017, therefore, assumes particular significance. In deciding the case, the court will do well to pay heed to Ambedkar’s warnings, by recognising that the niceties of constitutional form are not a matter of trifles.
  • Forcing China’s hand?

    The U.S. initiative to have Masood Azhar blacklisted at the UN Security Council marks a new turn

  • Late last month the U.S. opened another front in its ongoing multi-pronged tussle with China when it circulated a draft resolution to the powerful 15-nation UN Security Council (UNSC) on March 27 to blacklist Pakistan-based Jaish-e-Mohammed chief Masood Azhar and subject him to a travel ban, an assets freeze and an arms embargo. It did so knowing full well the Chinese position on the issue as China had put a hold on a French proposal to list Azhar under the 1267 al-Qaeda Sanctions Committee of the Council just a few days earlier.
  • Washington has underlined that it would utilise “all available avenues” to ensure that Azhar is held accountable by the UNSC by suggesting that “while we strongly prefer that UNSC designations take place through the committee process, the United States and its allies and partners, including those on the… Security Council, will utilise all available avenues to ensure that the founder and leader of the UN-designated terrorist organisation JeM is held accountable by the international community.”
  • China, of course, has reacted strongly to this move by arguing that the U.S. decision to go directly to the UNSC to designate Azhar could scuttle China’s efforts to resolve the issue amicably. As per the Chinese spokesperson, “China has been working hard with relevant sides and is making positive results. The U.S. knows that very well. Under such circumstances, the U.S. still insists on pushing the draft resolution, (which) doesn’t make any sense.”
  • The U.S.-China angle

  • Washington will be aware that China would continue to oppose the move but the fact that it is willing to take on China so openly on this issue underscores that it wants to call China out publicly. This was reflected in U.S. Secretary of State Mike Pompeo’s tweet: “The world cannot afford China’s shameful hypocrisy toward Muslims. On one hand, China abuses more than a million Muslims at home, but on the other, it protects violent Islamic terrorist groups from sanctions at the UN.”
  • France’s proposal to get Azhar listed as a terrorist by the the UN’s 1267 sanctions committee was scuttled by China despite the move having the support of 14 out of 15 members. In its zeal to shield Pakistan, China has used its veto on Azhar’s listing at the 1267 UNSC sanctions committee four times in the past decade. But after the February 14 Pulwama attack that killed 40 Central Reserve Police Force (CRPF) personnel, for which the JeM took responsibility, Chinese intransigence has come under the spotlight. After China’s block last month, France moved quickly to impose sanctions on Azhar, including a freeze on his assets. It is working with its European partners the matter of putting Azhar on a European Union list of terrorists and terror organisations. The international community, apart from China, has rallied behind India after Pulwama and has pushed Pakistan to undertake serious measures to control terrorism emanating from its territory.
  • This has been shaped by India’s diplomatic outreach over the last few years in which global support has been sought to reverse Pakistan’s support to terrorist organisations. But what has given this an added sense of urgency is India’s decision to up the ante after the Pulwama attacks by taking the fight to the Pakistani territory. This has now put the onus on Pakistan to de-escalate, a reversal of the post-1998 situation where in every India-Pakistan crisis it was New Delhi which was expected to take steps for de-escalation even as every crisis was precipitated by Pakistan. After every crisis, the international community, especially the West, would persuade India to ease tensions, and in most cases India relented. The post-Pulwama South Asian strategic equilibrium has shifted as New Delhi has made it clear that it could not be expected to look the other way from Pakistani provocations.
  • Regional peace

  • The latest American move is an unprecedented one, and is not only aimed at forcing the Chinese hand on Masood Azhar but is also a recognition of the new regional context in South Asia where a stronger global attempt to rein in Pakistan is the only viable option of maintaining regional peace. As the U.S. and China prepare the South Asian chessboard, Indian moves have suddenly become the decisive ones and both the powers are calibrating their own moves accordingly.
  • Rafale rebuff

    Supreme Court’s decision exposes attempts to de-legitimise investigative journalism

  • The Supreme Court’s decision to consider the relevance of the documents published in the media on the Rafale deal is a firm and necessary rebuff to the Central government’s attempts to prevent judicial examination of these papers and to de-legitimise all investigative journalism on the subject. The court’s unanimous verdict, rendered in two concurring orders by a three-judge Bench, means that review petitions filed against earlier orders declining an investigation into the purchase of Rafale jets will now be taken up on merits and that the petitioners are free to rely on these documents, regardless of their provenance. These documents include those published by The Hindu. A dissenting note by members of the India Negotiating Team, and notes that disclose unease in the Defence Ministry over parallel negotiations at the PMO’s instance undermining the official parleys are among them. It would have been a travesty had the government succeeded in blocking judicial scrutiny of these documents, as they disclose significant details about the decision-making process. The government’s desperate attempts to prevent the court from relying on these papers included a claim of privilege under the Evidence Act, a threat of invoking the Official Secrets Act (OSA) and an accusation that the published documents were “stolen” ones. Later, it toned down the allegation by saying the original documents had not been stolen, and what were published were unauthorised photocopies. None of these claims impressed the court, which relied on the principle that how a piece of evidence is obtained is immaterial, as long as it is relevant to adjudicating an issue.
  • The decision on the admissibility of the documents has significance beyond the Rafale issue: it revivifies the rights of a free press and underscores the principle that it is public interest, and not the content of a document alone, that will decide whether disclosure is needed or not in a given case. Referring to the publication of the Rafale documents in The Hindu, Chief Justice Ranjan Gogoi observed that “the right of such publication would seem to be in consonance with the constitutional guarantee of freedom of speech”. Citing the U.S. Supreme Court decision on the Pentagon Papers, he noted that neither the OSA nor any other law vests any power in the executive to stop publication of documents marked ‘secret’ or the placing of such documents before a court of law which may be called upon to adjudicate a legal issue. It is premature to conclude, based on this development, that the court’s earlier decision to not order a criminal investigation into the purchase of 36 Rafale jets will be revisited. However, it will certainly help provide clarity on several aspects of the murky deal. Had the government agreed to a parliamentary probe early on, it would not be suffering the sort of setback it has now faced in the Supreme Court.
  • Dantewada ambush

    As polling begins in Chhattisgarh, a brutal reminder of the Maoist challenge

  • The Election Commission has taken the correct decision to go ahead with the first phase of polling, on Thursday, in the Lok Sabha election in Chhattisgarh after the deadly Maoist attack in Dantewada on Tuesday. Maoists struck at a convoy in Dantewada, which comes under the Bastar parliamentary constituency, and killed Bhima Mandavi, the BJP MLA from Dantewada, and four security personnel. The aim was clearly to disrupt the electoral process, and it will be vital for the administration to ensure polling without fear of violence. Equally grimly, the attack underlines the reality that for all the reverses they have suffered in the past few years, the Maoists retain their ability to pick and choose targets. Initial reports suggest that an improvised explosive device blew up the lead vehicle in Mandavi’s two-vehicle convoy, and the second then came under gunfire from the Maoists who had laid the ambush. A speedy inquiry should clarify the facts of the incident, but it is reported that the BJP legislator may have been complacent, choosing to ignore the police advice that he take along additional security cover that was available to him. However, these early details also show that in terms of intelligence the attackers managed to be one step ahead, despite the heavy security bandobast in the area in light of the Lok Sabha election.
  • Given that it is difficult to fully secure a State with a history of violent attacks, it is important that adequate measures be put in place to protect the candidates in the fray, over 160 of them, for the 11 Lok Sabha constituencies that will go to the polls in three phases, on April 11, 18 and 23. After the relatively peaceful conduct of the Assembly elections in the State late last year, it would have signalled a precipitous slide if the electoral process in Chhattisgarh were to be disrupted now. Beyond security for the peaceful conduct of elections, the latest attack highlights the need for the security forces to keep updating their standard operating procedures. It is also a call for the civil administration to keep extending its reach in the forests of central India, especially Bastar. Even as the security forces stare down the Maoist threat, the political and administrative responses are crucial. In most of the violence-hit regions of India, responsibility for security has been passed on to the paramilitary forces in abundant measure. The capacities of the State police need to be addressed. Local communities, in turn, have to be reassured that the fight against Maoism is also a political one. The Maoist argument lost its potency long ago. But the difficult task of addressing people’s aspirations and concerns, especially about exploitation and alienation from their lands in the face of extractive policies in their resource-rich habitat, must be pursued on a war footing.
  • Notes on the BJP’s manifesto

    The party is obsessed with technological fixes to humanitarian problems

  • Manifestoes are acts of communication. They seek to inspire with rhetoric. When the BJP’s manifesto was released, I was not sure if the party was even trying to communicate with the people. There is a humourless ferocity in the document that makes one wonder about the mindset of the communicators. It’s like an exam where the examinee awards himself full marks, regardless of the questions the public is asking. There is an attempt to force the discourse towards what the party is obsessed with rather than answer questions about its performance.
  • To switch metaphors, it reads as though three directors of a board are sending letters to stockholders about profitability. The marginalisation of the stakeholders is obvious. On pages 34 and 35, for instance, minorities, the elderly, the disabled, shopkeepers, and artisans each get a line not as a statement of concern but as a recognition of their marginality.
  • A checklist

  • The cover shows Prime Minister Narendra Modi, and the back page features Syama Prasad Mookerjee, Deen Dayal Upadhyaya and Atal Bihari Vajpayee assuring ideological continuity. If the three letters from Mr. Modi, Home Minister Rajnath Singh, and party president Amit Shah reveal some attempt to communicate, the rest of the document achieves a change in style, which is intriguing. It reveals a checklist, a ‘take it or leave it’ attitude. There is no attempt to even correct typos in the document. One cannot quite figure out if it is indifference to quality or the arrogance of a group convinced that it is returning to power, performing an unnecessary but unavoidable exercise.
  • Mr. Modi called the elections a festival of democracy. One wishes the manifesto was an invitation to it. It is clear that Mr. Modi has turned development into a dismal science and he invites us to this dismal India. The document celebrates elections but has little sense of democracy. The confidence of ushering in achhe din is missing in it.
  • Development is second to security. Terms like “surgical strike” and “zero tolerance towards terrorism” are summoned to dance to the BJP’s idea of national security. There is a quiet sense of paranoia as security gets defined as the standard obsession of the right. Yet, the way the roads in Kashmir were shut down creating a humanitarian problem reveals scant sensitivity to the problem.
  • On agriculture, the responses are rote. There is barely any grasp of the crisis of agriculture, of the rampant drought, of the epidemic of suicides. The assumption is that a bit of tinkering with prices and insurance can restore the livelihoods of a people. What is stark is the separation of security from livelihood. Agriculture is broken down to a few programmes and missions. During World War II, soldiers would be made to dig ditches and fill them up to keep themselves occupied. They coined an irreverent term for it: SNAFU (‘situation normal, all fouled up’). The SNAFU sense of agriculture in the BJP document stands out. There are mentions of technological fixes, but there is no exertion to tie technology, the political economy and culture. For a party which invokes culture, agriculture is reduced to a set of price and technological fixes.
  • The claims about the Swachh Bharat Mission leaves one wondering whether the BJP has heard of Bezwada Wilson. As Mr. Wilson, who is national convenor of the Safai Karmachari Andolan, said, behind all Swachh programmes there are scavengers and septic tanks. To ignore the scavengers and tanks is to deny justice and dignity to people. By emphasising technology, the BJP seems blind to the humanity of scavengers.
  • There is a fixation with technology and management everywhere, but as a result, one loses the imagination of the city and the informal economy. There is no sense of civics or civic life as transport grids cover the city. The city is conceived of as a grid of technologies. The question of plurality, culture, difference and migration is lost in this monolinguism of technocracy.
  • There is an absent-mindedness to the document when it talks of unity and Ram Janmabhoomi in the same breath. The confusion of majoritarianism with national unity is a lethal flaw. But the BJP refuses an attempt to correct the error.
  • There is no urgency about climate change, no sense of the Anthropocene. Ecology gets reduced to a fixation on the Ganga.
  • One returns repeatedly to the language of the report. First, it has a sense of a submission to the Guinness World Records rather than a report to a people. The subconscious humour turns sour as the document, ignoring the problems brought about by the National Register of Citizens, the Rohingya crisis, and the Armed Forces (Special Powers) Act, claims the Northeast is now closer to the mainstream than ever before.
  • The document barely mentions demonetisation, which caused havoc across the country.
  • It emphasises Artificial Intelligence and “robotic research”. Do such technologies add to jobs? We don’t know. There is little sense of biological and ecological technologies. Anthropocene and urban planning are forgotten as India joins the technological bandwagon without any sense of ecology, culture or context.
  • A managerial model

  • India wants to be a world-class nation without even asking what the term means and what its consequences are. There is hardly any thought on the quality of science or education. What one confronts is a huge promise of access to seats without any understanding of the university as an organic institution. The question of expansion is treated linearly in terms of technology and admissions but the role of the teacher as an autonomous academic is ignored. We face the prospect of universities serving government and industry but lacking any function beyond this service model. Even the question of women’s empowerment lacks a vision of rights-based strategies.
  • Reading the document one sees an emphasis on policy without culture, of prescriptions without a real sense of the polity. It is an attempt to create a managerial model of governance while quietly downplaying the demands of democracy. Here again, language is the key. There are haunting silences — about violence, freedom, alternatives — as the BJP pretends it is a juggernaut moving linearly towards its goals. What one misses is a nod to debate and doubt. Everything gets subjugated by indicators and indices, which show little awareness of the actual lives of the people. The dreariness of the future becomes obvious in the document when a democracy, like development, is reduced to dismal science.
  • Algeria after Bouteflika

    While the long-serving President’s exit is a tactical triumph of the popular will, it pushes the nation into uncharted territory

  • Abdelaziz Bouteflika’s resignation as Algerian President on April 2 was a momentous development. The popular disaffection that forced him out after two decades in power was triggered by worsening socio-economic conditions largely due to lower oil and gas revenues. It can also be seen as a delayed arrival of the Arab Spring, with the youth feeling increasingly disconnected from the gerontocrats and their hogra (insolence).
  • Algerian peculiarities

  • However, the Algerian socio-political context has at least two peculiarities. First, since Algeria’s independence in 1962, the country has always been ruled by an informal coalition of the National Liberation Front and army generals (collectively called le Pouvoir, or ‘the Power’). While this has ensured continuity, durability and predictability, it has resisted political evolution. Second, from the late 1980s, Algeria endured a long period of socio-political crisis which resulted in the emergence of the Islamists led by the Islamic Salvation Front (FIS). This party was denied victory in the 1991-92 elections, and this led to a gruesome insurgency causing nearly 200,000 deaths. In fact, le Pouvoir brought in Mr. Bouteflika in 1999 to close this chapter and foster national reconciliation. It is because of this bitter legacy that Algerians prefer a stifling stability over any uncertainty. As a result, the recent demonstrations, though massive, were peaceful.
  • However, Mr. Bouteflika’s attempt to seek a fifth term was the proverbial last straw. In popular perception, the country was being ruled in Mr. Bouteflika’s name by le Pouvoir. The popular opprobrium against his fifth term intensified and morphed into a call for his resignation, removal of the entire old guard, and a new political structure that is more transparent and responsive to the people. Le Pouvoir’s initial response to the popular discontent was to be in denial, prevaricate and resort to tokenism. It was only recently that the army chief publicly called for Mr. Bouteflika to be declared as incapacitated. ‘Boutexit’ followed, paving the way to a transitional presidency, which was ratified by the national Parliament on April 9.
  • Although Mr. Bouteflika’s exit is certainly a tactical triumph for the popular will, it also pushes Algeria into uncharted territory. While nominal political institutions and processes exist in Algeria, these lack both efficacy and credibility. On the other hand, the protests were largely spontaneous, without orchestration, organisational structure and leadership. Boutexit seems to have emboldened the protesters to expand their wish list to exclude le Pouvoir from the future dispensation. Though on the defensive, le Pouvoir (and the oligarchs tagged to it) is unlikely to ride willingly into the sunset. Thus, an immediate and uncompromising pursuit of this ambitious popular agenda runs the risk of unleashing a protracted battle of attrition resulting in instability, radicalisation and/or regime repression. The substantive issues of socio-economic reforms, corruption, and the Arab-Berber divide are likely to be held in abeyance till political issues are resolved. This could further accentuate these grievances. Any long-winding transition would strengthen Gulf influence, French meddling and simmering Islamic militancy. Avoidance of such pitfalls would require everyone to show maturity and flexibility. After all, the stakes are quite high: Algeria’s 42 million population is second only to Egypt’s in the Arab world. It is an OPEC member, a major gas supplier to Europe, and a large importer of goods ranging from automobiles to pharmaceuticals. Protracted uncertainty in Algeria can affect Europe by disrupting energy supplies, causing a surge in immigration and in radicalisation of the four million Algerians living in Europe.
  • Significance for India

  • For India, too, Algerian developments have multiple significance. First, Mr. Bouteflika was a friend of India and paid a state visit in 2001. His successor will, hopefully, continue the bilateral amity. Second, bilateral economic ties are robust and growing. Algeria is an important market for India’s foodstuff, automobiles, farm machinery, pharmaceuticals, mobiles and cosmetics. It is also India’s source for strategic commodities, especially hydrocarbons and phosphates. A number of Indian contractors have been active in Algeria, notably Larsen & Toubro, which recently won a $1 billion hydrocarbon project from Sonatrach, the national oil company. At the political level, Algeria has been one of the few members of the Organisation of Islamic Cooperation to have consistently supported India’s case against terrorism. India can play a vital role in ensuring that Algeria’s imminent socio-political transition is smooth by helping the country with institution-building and infrastructure.
  • Mahesh Sachdev was Indian Ambassador to Algeria from 1999 to 2001
  • Gubernatorial impropriety

    The promise of the institution remains as underwhelming as ever

  • The political endorsement that was recently given to the BJP by the Rajasthan Governor has reignited the debate on the independence and neutrality of the constitutional post. The Governor’s office has often courted controversy for the incumbent’s political views. However, there is a marked difference between seemingly routine deviations from strict constitutional norms and the present case, in which the alleged impropriety is neither subtle nor cloaked in specious constitutional justifications.
  • The Sarkaria Commission described the Governor as “a Constitutional sentinel and a vital link between the Union and the State.” In S.R. Bommai (1994), the Supreme Court said, “The office of the Governor... is intended to ensure protection and sustenance of the constitutional process of the working of the Constitution by the elected executive.” M.K. Gandhi said about the Governor’s office: “He would be an arbiter when there was a constitutional deadlock in the State and he would be able to play an impartial role.”
  • Given the vagueness surrounding the process of appointing and removing the Governor, doubts have been raised about the ‘legal nature’ of his office. According to B.R. Ambedkar, “He is the representative not of a party; he is the representative of the people as a whole of the State. It is in the name of the people that he carries on the administration.” In Hargovind Pant v. Raghukul Tilak (1979), the Supreme Court affirmed that the “office of the Governor was not subordinate or subservient to the Government of India”.
  • In the contemporary constitutional landscape, the Governor is expected to advance the cause of ‘federalism’ and ‘democracy’, which form a part of the basic structure of the Constitution. In Government of NCT of Delhi v. Union of India (2018), then Chief Justice of India, Dipak Misra, clarified that democracy and federalism are firmly imbibed in India’s constitutional ethos, while reiterating that democracy requires the constant affirmation of constitutional morality.
  • Despite his unique constitutional positioning, the Governor is sometimes not seen as willing or able to discharge his functions as judiciously, impartially and efficiently as envisaged by the first Administrative Reforms Commission. A perusal of the reports of the Sarkaria, Punchhi and Venkatachaliah Commissions reveals that the independence and dignity of the gubernatorial office is invariably undermined by the appointment of persons not suited to the post, the lack of security of tenure, the lack of an appropriate removal mechanism, with no reasonable post-retirement benefits and limitations on post-retirement political ingratiation. Consequently, the promise of the institution remains as underwhelming as ever while the perils continue to multiply. It is high time that the recommendations of the relevant commissions are implemented in letter and spirit to obviate the danger of a full-blown constitutional crisis, to buttress constitutional morality and to restore the dignity of this office.