For how long will India’s thinking class keep going round and round in circles? Consider the current controversy related to Governors. With the change in government there are pressures that Governors appointed by the previous administration be replaced. Going by prevalent political practice this is sound thinking. Going by the provisions of the Constitution it is nonsensical. Unless this glaring dichotomy between constitutional precept and political practice is removed India will forever be haunted by bad governance regardless of who is Prime Minister.
According to the Constitution the Governor has precisely the same responsibilities and powers at the State level which the President has at the national level. The Governor is appointed by the President being accountable to him and is in no way subservient to the Union cabinet. Article 154 of the Constitution clearly states that
“the executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution.”
This is exactly what the Constitution provides for the President in relation to the whole Union. The Governor in that sense is appointed by the President to ensure that the duties discharged by the President for the whole nation are discharged by the Governor acting as the President’s agent in the State. The Governor, like the President, takes the oath of office “to preserve, protect and defend” the Constitution and law. Prime Ministers, Chief Ministers and Ministers are not under this oath but are sworn only to abide by the Constitution.
The President and Governors therefore, according to the Constitution, exercise overall authority over the Council of Ministers allowing the Prime Minister or Chief Minister to implement day to day administration. Only when contingent are President or Governor required to “directly” exercise executive power. For the rest the President and Governor are expected to monitor the administration and ensure that all laws are strictly observed.
In political practice all these provisions have been rubbished. The President and Governors are viewed as titular heads devoid of any executive authority. This dreadful distortion in spite of an explicitly written Constitution arose from the woolly approach of Jawaharlal Nehru who as an Anglophile mistakenly asserted that India followed the Westminster model of governance although there is no mention of this anywhere in the Constitution. Nehru had a famous argument with Dr. Rajendra Prasad who correctly asserted that as elected President he was in no way like the British Sovereign. Thanks to traditional Indian sycophancy Nehru had his way. Only C Rajagopalachari astutely recommended that the best solution was for Nehru to become the President and Rajendra Prasad the Prime Minister.
Nehru’s flawed legacy was thoughtlessly endorsed by the Supreme Court in the Shamsher Singh versus the State of Punjab case in 1974. The court ruled:
“In India the Constitution establishes a parliamentary form of government as distinguished from the American Presidential type of Government. The essence of the parliamentary type of government is that in it the head of the state is the constitutional head and the real executive powers are vested in the council of Ministers which is responsible to the lower house.”
It is astounding that the Supreme Court can display such crass ignorance. The parliamentary system of government is not confined only to Britain and the Westminster model. France for example also has a parliamentary system in which the President wields final executive authority. Are honourable judges unaware of this?
Indian jurists quote Article 74 of the Constitution which states that a council of Ministers will “aid and advise” the President to thereby conclude that such advice is mandatory. Junior officials also aid and advise Ministers. Are their suggestions necessarily to be obeyed by the Minister? Decidedly not! The accepted interpretation of Article 74 therefore is ridiculous. Recognizing the weakness of the popular interpretation of Article 74, Indira Gandhi during the Emergency introduced the 42nd Amendment which compels the President to follow the cabinet’s advice. However even after the 42nd Amendment, Article 53 of the Constitution continues to empower the President to “directly” exercise executive authority if required.
BR Ambedkar recognized as the main architect of our Constitution said in the Constituent Assembly on November 4, 1948:
“Under the non-parliamentary system, such as the one in the USA, assessment of the responsibility of the Executive is periodic… It is done by the electorate… In England, where the parliamentary system prevails, the assessment of responsibility of the Executive is both daily and periodic … and far more necessary for a country like India.”
On September 2, 1953 while discussing the role of Governors in the Rajya Sabha, Ambedkar said:
“We have inherited the idea that the Governor has no power at all, that he must be a rubber stamp… If a minister puts up a proposal before the Governor, he has to ditto it. That is the conception about democracy we have developed in this country… my friends tell me that I have made the Constitution. But I am quite prepared to say that I shall be the first person to burn it out.”
Can anyone doubt that Ambedkar, a brilliant law student who studied in America, was advocating a President and Governors exercising overall executive authority through ministers subordinate to them who are accountable to the legislature on a daily basis? That is exactly what the written text of our Constitution indicates provided we focus on the meaning of words as written and not on some irrational beliefs inherited from flawed and woolly perceptions.
In political practice the President and Governors are treated like dummies bereft of any executive power or responsibility. Governors are appointed for the most part to accommodate retired politicians who cannot be inducted as ministers. That is why the current controversy. That is why bad governance and failure to establish legal and constitutional rule will continue to haunt our nation.
We must reform the system by honouring our written Constitution. We must COMPEL the President TO BE determined that the responsibilities which he accepted under oath are in fact discharged.