Is the institution of the governor breaking the federal structure?

What do you think of this fight between the Governor of West Bengal and the Chief Minister? Can a state run when two constitutional functionaries are face to face?

Gopalkrishna Gandhi: The situation in West Bengal is a somewhat extreme example of a situation that has existed over time in many states – the underlying tension between the governor, who is appointed by the president, and the state government, headed by a popularly elected chief minister. . In Bengal, the governor and the chief minister could show their point of view to each other and to the people of the state in such a way that both the posts were not reduced.

It should come as no surprise that in a democracy, in which a non-elected head of state and an elected head of government tend to have very different perspectives on legislative, administrative and political matters. It is entirely possible to take these different approaches in such a way that it does not hurt each other or the institutions of the state. So, a lot depends on the individuals involved. I don’t want to go into the personalities of the two leaders we are talking about. And I also call the leader consciously for the governor, because the governor is the head of the state and he in many ways leads the political narrative, the constitutional narrative and the governance narrative in the state, because he is the head of the state, And without studying the state, one cannot become the head of the state.

I want to talk about a concept that governs the non-elected and elected office bearers of the state in India. The President of India is elected indirectly. He is seen more as a person who has assumed office through a constitutional mechanism, which is optional in a very technical sense, but is essentially beyond elections. The President only has the opportunity, convenience and duty to look into anything that comes before him, taking into account the Constitution. And so the president can take an approach that is not popular with the government or public or media opinion. If the President runs on the basis of public opinion, and is faithful to the letter and spirit of the Constitution, there is no way to ignore the President’s point of view. So is the governor. The dialogue between the Governor and the Chief Minister is of utmost importance and should be preceded by, accompanied and followed by serious decisions, negotiations, critical analyzes and decisions. The law is clear that the final decision on any matter rests with the elected government.

What is your take on the role of the Governor, especially by the Governor of Tamil Nadu returning a bill that seeks to exempt students of the state from the NEET exam?

Shadan Farasat: Constitutionally the role of the Governor is quite well defined. Article 163 makes it clear that the Governor is bound by the aid and advice of the Council of Ministers. Although a government is run in the name of the President or the Governor, the actual power that it exercises lies with the elected branch. The role of the governor or president is, with some differences, effectively nominal. Having said that, the governor has the ability to engage with the government at a private level and the power of persuasion as the constitutional head. What we are seeing in West Bengal is quite extraordinary. Governors openly disagree with the policies of the government on social media. The governor, as the nominal head of state, cannot hold a view different from that of the elected government, or at least cannot express it publicly.

As far as Tamil Nadu is concerned, the Governor may be of the view that exemption from NEET is not necessary. The legislature of Tamil Nadu has passed a law. Includes certain constitutional issues if there is some conflict with a central law or which raises issues of adversity where the assent of the President may be required. If there is an issue of protest, the Governor has to flag it and place it before the President.

The bill was again passed by the Tamil Nadu Assembly. now what happened?

Shadan Farasat: If there is a case of opposition, it has to be sent to the President. The power to undo the opposition rests only with the President who acts on the aid and advice of the Union Cabinet and the Council of Ministers. The bill was passed again, indicating that any objections the governor may have had have now been reconsidered by the legislature. And the legislature still holds its view in terms of passing that law. And to that extent, it is just as much more weighty.

Mr. Gandhi, you were the Governor of West Bengal from 2004 to 2009. Your comment on the Nandigram issue did not go down well with the state government of that time. Tell us a little bit about your experience.

Gopalkrishna Gandhi: For this, it is very important to have a dialogue between the Chief Minister and the Governor. Now, it is important for us to know that while the constitution is clear about the role of the governor (he can act only on the advice of the government), the governor is also accountable to the people of the state. He cannot interact with the head of the government or the people of the state behind the government. But there may also be occasions when the Governor and the public have been called by President KR Narayanan ‘with a grain of common approach’ and if the Chief Minister and the Government have been reiterated by the Governor and were not taken on board and then Nandigram. I don’t think anyone would be surprised if the governor expressed his anguish for the people. And that can be done only through the channels of the media. I had given a statement to the media on the night of the shooting of 14 people. Let me just say one more thing. Chief Minister [Buddhadeb] Bhattacharya was extraordinarily gentle about this. He told me what he felt about that whole episode.

Do we need to rethink the role of the governor?

Gopalkrishna Gandhi: Ambedkar and President Narayanan later said that the fault lies not with the Constitution but with those who run it. We cannot talk about the role of the Governor without saying that the role of the President needs to be revisited. If the country cannot run without the President, then I do not see how a state can run without the Governor. I also feel that the post of Governor should be seen by its best examples. Even today, there are states with different political parties in which the governor has been appointed by the current ruling government at the Centre. They are acting with some degree of camaraderie, perhaps with some difficult moments, but still with cordiality, and that says a lot about the office of the Governor and the current Chief Ministers.

There have been many occasions when the Center has raised the voice of a Chief Minister before the appointment of the Governor. Can that convention be reinstated?

Gopalkrishna Gandhi: I would say that the tradition of the Central Government, the President, the Home Minister and the Prime Minister telling the Chief Minister about an incumbent is a healthy tradition. If it is seen in breach, the beginning of the governor’s power is, to that extent, shaken. It is also possible that the Governor may find a completely friendly, senior colleague to work with if the Chief Minister is not given a voice. So, yes, sounding out is a desirable tradition, but even more important is the selection of the individual. And there, except for the first few years under Jawaharlal Nehru, when honest men, though not without political affiliations (many of them Congressmen), gave up their political bias as soon as they entered the Raj Bhavan. In later years, certainly not under Indira Gandhi’s prime ministership, and not even in the case of the party that defeated her. Mrs. Gandhi invoked Article 356 39 times, but the next government also invoked it nine times in that brief period. So, a lot depends on the person.

The governors who signed the recommendation of President’s rule neither served the constitution nor did their conscience. Some of the people who have delayed are the governors who have done a service. Here, I must mention the example of BK Nehru in Jammu and Kashmir, whose views were contrary to those of Mrs. Gandhi. He was a shining example of a governor who could also be independent of the Center in terms of Article 356 and other policy directions in relation to the state.

How can the delicate balance envisaged in the Constitution between the Center and the States be maintained?

Shadan Farasat: I think there is always a balance to be struck. The Constitution, as originally envisaged, had a central government leaning because we were coming from a national movement and there were concerns about how well the federation would do. But, in practice, we have unionized quite well. The best way to resolve differences is through discussion. Of course, if there is only one party position guiding the governor, who is appointed by a certain political party, this is unlikely to be resolved through discussion. Therefore, it is imperative that the courts function effectively. Unfortunately, our courts, even in important constitutional matters, have kept issues related to certain issues of the federal system pending. An example of this is the issue of Jammu and Kashmir. One part is Article 370 itself. The second is the conversion of a full state into two union territories without taking the opinion of the state legislature. Now, that second issue will apply equally to any other state in India. This is effectively very essential to understand federalism. So, when things don’t work out through engagement and state skills, the courts have to respond quickly.

What is your understanding of this balance between the Center and the States, Mr. Gandhi?

Gopalkrishna Gandhi: The balance between the Center and the states has been conceived by the framers of the Constitution. It is an extraordinary balance. The president has an extraordinary role in working that balance. Again the president has a huge role in the appointment of governors, because in that balance, the glue is provided by the governors. Presidents have spoken openly about the names that came from the Prime Minister of that time about the appointments of governors and the President said, “Sorry, I don’t think that’s a very good name and the Prime Minister accepted it.” have taken. So the President has a huge role in the election of governors and if those governors are carefully appointed, the balance is more secure to that extent.

Gopalkrishna Gandhi is Distinguished Professor of History and Politics at Ashoka University; Shadan Farasat is an advocate practicing in the Supreme Court of India.