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The Governor and the Constitution
|by S. M. Murshed|
The Speaker of the Legislative Assembly (who, it would now seem, is concomitantly the speaker of the CPM as well) made the gratuitous statement the other day that the Governor went beyond his duties in making his 'cold horror' statement on the rampage of the police and his party cadres at Nandigram on 14 March and that the High Court was plainly out of court in taking cognizance of the statement and ordering suo motu a CBI enquiry into the bloody events at Nandigram.
The Chairman of the Left Front was not to be left far behind, for on 24 March he is reported as dutifully repeating Comrade Hashim Abdul Halim's egregious comment about the High Court.
The Speaker is supposed to be absolutely non partisan in his utterances and impartial in the way he conducts himself, irrespective of the political party to which he may owe allegiance. He constitutes the single member High Court of the Legislature in deciding cases of contempt of the legislature. He must, therefore, not only be impartial but also seen to be so.
Now what does Mr. Hashim Abdul Halim do? He dons, rather blatantly, the CPM hat and repeats what Mr. Subhas Chakraborty, the West Bengal Transport Minister, said before him, namely that the Governor exceeded his jurisdiction in making his now famous 'cold horror' statement on the killing fields of Nandigram. By his statements on the Governor, and by his comments on the High Court, he betrayed the impartial nature of his office.
He is not a part of the government and could not, therefore, be seen as acting on behalf of it and defending it. Nor was he acting on behalf of the Legislature, for he did not make out any frailty in the Governor's statement as far as the Legislature was concerned.
He was, therefore, taking up cudgels blatantly on behalf of the only aggrieved party, namely the CPM.
The Governor presented a bouquet of roses to the Hon'ble Speaker. The bouquet was accompanied by a letter in which the Governor reiterated his stand that he had given expression to the anguish that he felt at the events of 14 March and his impugned statement was not intended to be a rebuff to anyone. It expressed the hope that his relations with the Speaker et. al. would remain as cordial as ever.
Under Article 154 of the Constitution of India, all executive power of a State vests in the Governor and the exercise of this power is circumscribed by Article 163 under which there shall be a Council of Ministers, headed by a Chief minister, to aid and advise the Governor (except with regard to matters which lie within his discretion). Therefore, no executive action can generally be taken by the Governor without the approval of the Council of Ministers.
But was the Governor taking any executive action in his 'cold horror' statement?
Certainly not. Does anything in the Constitution require the Governor to bear, or not to bear, anguish except at the behest of the Council of Ministers? The answer must again be in the negative. Any other answer will create a plainly lugubrious situation in which, for example, the Governor, needing to go to a public hospital to have a toothache attended to, will have to wait for the aid and advice of his Council of Ministers for the public statement being made by him, namely that he has a toothache and he needs to go to a hospital! The Governor was thus well within his rights in expressing his anguish in his 'cold horror' statement.
The functionaries of the CPM would appear to have made a mountain out of a molehill in being critical of the Governor and thus exposing themselves as well as the CPM in a ridiculous light.
And what about the comments on the High Court? In this matter the Hon'ble Speaker was joined by the Chairman of the Left Front (owing allegiance to the CPM) on 24 March. The Hon'ble Chairman repeated the imputation against the High Court. What both the Speaker and the Chairman forgot, or were ignorant of, was that the High Court of Judicature at Fort William in Bengal derived its charter to act under Letters Patent of the British Crown, by which the Sovereign delegated to the High Court all his (or her) powers to pass any order in any case to secure the ends of justice. Acting under this inherited power, translated to mean in modern circumstances the power to defend the Constitution and the laws of India and to secure justice, and fortified specifically in this regard by Article 226 of the Constitution, the present High Court of Calcutta was well within its rights to pass the order to which exception has been taken in so puerile a manner. It will be a moot question to ask whether the lines of contempt have not been crossed in this.
If the order of the High Court had been addressed to the CID of the State police, the august personages of the CPM would not have reacted against it, for the CID would then be acting under the superintendence, and surveillance, of the State government (or the CPM) and would not conveniently come out with all the facts likely to be exposed by the CBI. It will be a fair presumption to make that the State Government was apprehensive of the kind of exposure the CBI is going to make.
The State Government is laboring under an impression that the power of the High Court to pass the kind of order that it has passed is under review by a five member bench of the Supreme Court and, therefore, the High Court was precluded from passing its order. It must be pointed out to the State Government that there is no injunction against the High Court in this matter and thus its liberty to act in it remains unfettered, with this liberty reinforced by several existing judgements of the Supreme Court in favor of the High Court's right to pass the impugned order. With the utmost respect to the High Court, it may be pointed out that it acted in an exemplary manner, vindicating the people's faith in the judiciary.
The State Government is unable to come out with any more feeble arguments against the Governor or the High Court. No words of condemnation of the bloody events of 14 March have been heard from the CPM or its government; neither were there tears for them to shed over the many dead and wounded. They should at least be grateful to the Governor for applying a humane touch to an otherwise callous government.
The author is a retired IAS of West Bengal cadre and served as advisor to the Governor of Jammu and Kashmir.
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