Justice S Abdul Nazeer's recent appointment as the new Governor of Andhra Pradesh has been met with outrage. Nazeer was sworn in as Andhra Governor on Friday. Many constitutional scholars and observers have commented on how such nominations send a dreadful message to the higher judiciary about the gubernatorial post that awaits judges after retirement—post-retirement jobs for pre-retirement judgments.
Some have argued in favour of enacting a legislation barring judges from choosing such positions or advocated passing a rule mandating a cooling-off period before a judge assumes an executive office following retirement.
Clear separation between the judiciary and executive is important. But an equally urgent and crucial issue is the need to clearly define the role of the governor and his/her exact duties and functions. These inquiries are not new. But they are more significant and pressing than ever.
A few days ago, Chief Justice of India DY Chandrachud stated that the "Governor should not join the political arena" when deciding the constitutional issues resulting from the split between two warring Shiv Sena factions.
Governors into politics
But the majority of governors today are engaging in politics, typically cynical and subversive politics. With the elected state governments, the governors of Tamil Nadu, Telangana, Kerala, West Bengal, Punjab, and Delhi have been at war.
If we are unable to win an election, we would shut down the government through the governor's office. The Centre understands the Governor's position in this manner. Far from preserving, protecting and defending the Constitution, Governors are mutilating it. Totalitarianism of a sort exists here.
Compare how the governor's position is currently structured to how it was envisioned during the constituent assembly's talks.
What was envisioned
Nehru, Dr BR Ambedkar, K M Munshi and other constituent assembly members used terms like "detached figure," "free from the passions and jealousies of local party politics," "lubricator," "harmonious element," “a sagacious counsellor and advisor”, "someone who would pour oil over troubled waters", and “a federal link between the Centre and the State” to describe the governor’s rule.
Although there was general agreement in the assembly that a governor would follow the elected executive's advice, he was also given extensive discretionary powers. That has been one of the biggest failings of the constitution drafters. They failed to provide any textual guidance on how such discretion was to be exercised. To be fair, some members of the Constituent Assembly had serious misgivings over the bestowal of discretionary powers to nominated Governors. Some even questioned whether the office of a governor was needed at all.
But Ambedkar managed to prevail over doubting voices by stressing that the governor will only play a passive role.
He stressed that a governor had no independent function which he could discharge by himself, but only duties to perform. He maintained that vesting the Governor with certain discretionary powers was not contrary to responsible Government.
History has proven Ambedkar wrong.
Some of the discretionary powers that have repeatedly been abused are the ability to dissolve the Legislative Assembly, the power to dismiss an elected government, the power of refusal to assent to a bill passed by the State legislature, the power to reserve a bill for consideration of the President (sometimes for an indefinite period) and the power to recommend to the President the proclamation of an emergency under Article 356.
The noble expectations of a governor acting as a “watch-dog of Constitutional propriety”, so ensuring “the constitutional unity of India”, to use the words of KM Munshi, have been ruthlessly dashed. Every government has misused the office of the governor. The difference has only been of degrees.
Supreme Court
The Supreme Court through its holistic and purposeful interpretation of the constitution (Shamsher Singh v State of Punjab; S.R. Bommai V. Union of India; Nebam Rebia v Deputy Speaker, A G Perarivalan v State) has tried to circumscribe the powers of a governor. Yet, disputes over the constitutionality and validity of a governor’s actions keep filling the Supreme Court’s dockets.
Therefore the debate on Nazeer's appointment should go beyond the question of whether judges should accept such nominations.
There have been only four judges who have been appointed as governors in our republic's history –Sir Syed Fazl Ali, Fathima Beevi, P Sathasivam, and S Abdul Nazeer. Fazl Ali was a pro-liberty and not a pro-government judge. He had famously dissented in the preventive detention case of A K Gopalan v State of Madras, 1950, and had ruled that procedure established by law must include the principles of elementary justice which are at the root of all civilized systems of law.
Fathima Beevi, the first Indian woman to become a supreme court judge and also the first Muslim woman in Higher Judiciary, was appointed as Governor of Tamil Nadu by HD Deve Gowda government in 1997, five years after her retirement from the top court in 1992.
Beevi stepped down in 2001 after she refused to submit a report politically suitable to the Atal Bihari Vajpayee-led NDA Government on the midnight arrests of former CM M Karunanidhi and then Union Ministers Murasoli Maran and TR Baalu.
There is no reported instance of P Sathasivam acting improperly during his five-year governorship. His eventless governorship stands in stark contrast to the daily belligerence of his successor Arif Mohammad Khan. Khan has issued orders removing state universities’ vice-chancellors and very recently even threatened to sack ministers.
Therefore more pertinent discussion is who should be nominated for governor and what are his exact duties and functions.
Nehru had hoped that ‘eminent people who had not taken too great a part in politics’ (constituent assembly debates) should alone be appointed as governors.
But evidence suggests that Governorships have become old age pensions for worn-out politicians or consolation prizes for the failed or unelectable ones, or worse, to unscrupulous characters that the Centre merely nominates to jeer, destabilize and obstruct elected state governments. The more unprincipled a person is, the more useful he is as governor or lieutenant governor. Depending on how well one does as a heckler and an obstructionist, one may be promoted to even higher constitutional positions.
Significance of Commissions
The two commissions constituted on centre-state relations (Sarkaria Commission, 1983, Punchhi Commission 2007), National Commission to Review the Working of the Constitution, 2000, (also known as the Venkatachaliah Commission), and Supreme Court rulings like Rameshwar Prasad v Union of India, have also recommended ‘eminent’ and ‘detached’ figures for gubernatorial appointments. But no government has paid heed to these homilies.
Loopholes in Constitution
Again it’s the text of the Constitution that has been problematic. It does not lay down any specific qualifications for governors. Any citizen of India over the age of thirty-five years could be appointed. Governor has also been granted the same privileges as the President and full immunity against answerability to any Court.
Ambedkar's Regret
At a later stage, Ambedkar regretted the lack of a provision in the Constitution investing the Governors with special powers for the protection of minorities. Had he lived long enough he would have regretted not outlining the Governor’s role with more precision.
Exploiting the void and ambiguities in the constitutional text, the Center has turned a position that was intended to preserve the unity of India into a weapon to wage war on the opposition-ruled states
A law to debar judges from being appointed to any executive office under the Union or the State is important. But more urgent are the issues of qualifications, functions and duties of a governor.
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A person's political career must end once he/she is appointed governor. He/she should not be involved in active politics while in office or afterward. After leaving office, the governor shouldn't be eligible for any future appointments, public positions, or constitutional posts. There should be a clear and transparent procedure both for appointment and removal. Possible candidates must meet certain minimum requirements.
The selection procedure must involve consultation with the state government. No one should be nominated against the current chief minister's wishes. Governors should be given fixed terms. For malafide and ultra vires acts, a governor should be held personally responsible.
Provision must be made for the impeachment of the Governor by the State Legislature. If a President can be impeached for violation of the Constitution (Article 61), why not the governor? Clear guidelines and principles should be laid down on how the governor will exercise discretionary powers like withholding assent or referring a bill for Presidential assent under Article 200; the appointment of the Chief Minister under Article 164; dismissal of a Government; dissolution of the House under Article 174 and preparing a report under Article 356.
Some of these recommendations have earlier been made by the two Commissions on Centre-State Relations. But never to be implemented. The Venkatachaliah Commission even recommended the appointment of the Governor through a committee comprising the Prime Minister of India, the Union Minister for Home Affairs, the Speaker of the Lok Sabha and the Chief Minister of the concerned State, and suggested constitutional amendment for the same.
The gaps in the constitution around the governor’s role need urgent remedial action.
The Opposition must unite and call for the adoption of the Sarkaria and Punchhi Commissions' recommendations. That will be a decent start in preventing the descent of our democracy into a totalitarian state.
(Ashish Khetan is an Indian lawyer and journalist. The views are his own.)