President’s Rule: A need to reassess the office of the Governor

Bar & Bench December 3 2018

Raunaq Jaiswal and Vishavjeet Chaudhary

Recently, the Hon’ble Governor of Jammu and Kashmir recommended the dissolution of the State Assembly, paving the way for the imposition of President’s Rule in the state.

The dissolution came after two competing claims to form the government were made. In an 87-seat House, PDP leader Mehbooba Mufti claimed that she has the support of 56 legislators, while her rival, Sajjad Lone claimed that he had the support of 26 legislators and 18 unidentified legislators. As per convention, the legitimacy of the contesting claims should have been tested on the floor of the house. Instead, the Governor chose to dissolve the legislation, which raises questions on the independence of the Governor in the Constitutional machinery. It was also claimed that the Governor’s office never received a formal proposal from Mufti. The letter that she sent as a fax message was never received because the office’s machine was non-functional.

The post of the Governor, for decades, has been a matter of great debate. As the first citizen of a state, the Governor is a crucial point of contact between the Central and State governments. She is the envoy of the Centre and enjoys a great degree of discretion and Constitutional autonomy. Overall, the Constitutional crisis in Jammu & Kashmir is the eighth time President’s rule has been imposed on the State of Jammu and Kashmir since 1950.

Since Independence, the Governor’s discretionary powers have been used to impose President’s Rule in States more than 113 times. It has been imposed a record nine times each in Uttar Pradesh and Manipur, and eight times each in Punjab and Bihar and Jammu & Kashmir. If the numbers are anything to go by, this habitual use of imposing President’s Rule in non-party governed states shows no signs of abating.

In the past, State governments were dismissed when there were different parties in the State and the Centre. In 1993, the Supreme Court in SR Bommai had stipulated that in cases where the majority of the party is in question, the single largest party should be invited to form the government, subject to them proving their majority on the floor of the House. This mechanism has subsequently been followed by the Supreme Court in its subsequent later judgements, most recently in Chandrakant Kavlekar and G Parameshwara.

The Bommai judgement also described the position of the Governor as “[an] independent Constitutional office which is not subject to the control of the Government of India.” In practice, this does not seem to be the case. The tenure of the Governor is practically uncertain. This uncertainty of tenure, coupled with the bar on judicial review (to scrutinize her dismissal) essentially creates a state of political patronage.

Stated differently, since the Governor can be dismissed by the President without having recourse to the Courts, therefore, the office of the Governor has been transformed into an adjunct office of the Central government. This state of patronage, besides reflecting the changing of loyalties between the elected legislative and the appointed executive, also highlights the failures of the office of the Governor in the Constitutional mandate. After Bommai, this dissolution of state assemblies on losing power in the Centre came to an end, thus adding teeth to the federal provisions of our polity. It was naively assumed that this would end the Centre-State friction and foster harmony in their relation.

The Constituent Assembly debated the idea of centrally-appointed Governors. Jawaharlal Nehru, Dr BR Ambedkar and KM Munshi made specific assurances to the other members, that persons appointed to the Raj Bhavan would be ‘above the party politics, ’detached outsiders, eminent in their achievements and with no reason to meddle in the everyday affairs of the States. The Sarkaria Commission report similarly recommended Governors to be detached, independent individuals.

We need to reassess the office of the Governor in light of the political demands today and the esteem, confidence and trust that the post of the Governor inspires should be kept intact.

Vishavjeet Chaudhary is an Assistant Professor at OP Jindal Global University. Raunaq Jaiswal is a Research Assistant OP Jindal Global University.

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