THE recent controversy over the transfer of Governor S.S. Barnala of Andhra Pradesh to Tamil Nadu raises a question of deep constitutional propriety: what is the status of a governor and would it be unfortunate if it were allowed to be slurred over by the rightly perceived unsavoury image of Ms Jayalalithaa, Chief Minister of Tamil Nadu, by many critics, including the People’s Union for Civil Liberties? Is the governor a mere appointee of the Central Government who holds the office during the pleasure of the President, and who can be removed or transferred at the whim of the Centre?
The Central Government seems to suggest that a governor’s position is much less secure than a Class IV employee. This view is a distortion, as the Supreme Court has ruled that a governor occupies a high constitutional office, and that executive power of the state is vested in him.
He constitutes an integral part of the legislature of the state, though not in the fullest sense.
This immediately raises a question of deep concern: whether Mr Ram Mohan Rao should have been asked to go on supposedly unsubstantiated grounds. What I am concerned about is whether Mr Barnala should have been appointed Governor of Tamil Nadu without first consulting the Chief Minister. The telephonic talk which took place and which is now admitted by the Home Minister clearly shows that the latter took a categorical stand that the Centre was not bound to consult the Chief Minister.
He has made an astonishing statement that though the Sarkaria Commission has recommended such a course but it has no value until it becomes a law. He also stated (which does not appear to be fully correct) that it has not been the practice to consult the Chief Minister. During Nehru’s time and even subsequently, the Centre would consult the Chief Ministers even belonging to its party. It was a question of showing courtesy to the constitutional entity of the State Government and recognition of the federal nature of the Constitution.
In this approach to governance, Mr Patil forgets that in a democracy it is not only the law or the Constitution that governs day-to-day working but also the constitutional conventions.
It needs to be emphasised that the functioning of a true democratic society is not determined merely by having a liberal Constitution; for that matter, even admittedly dictatorial regimes have a Constitution with high-sounding guaranteed human rights. The real test is the way the spirit and the conventions of the Constitution are followed.
As Dicey wrote, “that conventions were intended to secure the ultimate supremacy of the electorate as the true political sovereign of the state. Conventions are a whole code of precepts for the guidance of public men, which will not be found in any page of either the statute or the common law, but which are in practice held hardly less sacred than any principle embodied in the written constitution.”
In short, by the side of our written law, there has grown an unwritten or conventional Constitution. This may be described as the “climate of opinion” of our Constitution to an extent which no politician should be allowed to ignore if democracy is to be kept up.
Moreover, it should not be forgotten that though the Sarkaria Commission’s recommendations may not have yet been legislated, many of its basic recommendations have been accepted and acted upon by the government for years and have been accepted even by the Supreme Court as laying down sound principles of Centre – State relations. Thus, in Bommai’s case the court, while elaborating as to what should be the various principles on which action should be taken under Article 356 of the Constitution (imposition of President’s rule in states), referred to appreciation to the Sarkaria Commission report and went on to say that “it is not necessary here to refer to the said elaborate discussion.
Suffice it to say that we are in broad agreement with the above interpretation given in the report of the expression “the Government of the State cannot be carried on in accordance with the provisions of this Constitution”. We are of the view that except in such and similar other circumstances, the provisions of Article 356 cannot be pressed into service.
Similarly, in its report, the National Commission to Review the Working of the Constitution, headed by former Chief Justice Venkatachaliah, has concluded that “the commission feels that the governor of a state should be appointed by the President, after consultation with the Chief Minister of that state (emphasis supplied). Normally, the five-year term should be adhered to and removal or transfer of the governor should be by following a similar procedure as for appointment, i.e. after consultation with the Chief Minister of the concerned state.”
In that context, Mr Patil’s attempt to belittle the Sarkaria Commission’s recommendations was, to say the least, unfortunate and showed a splash of arrogance of power not normally associated with affable Home Minister Patil.
Maybe he was provoked into it by the clever sleight of hand of Ms Jayalalithaa by taping the conversation. But then, it was naive of Mr Patil to assume that Ms Jayalalithaa would take such a blow without making some effort at embarrassing the Central government for its partisan act. His complaint that there was a breach of confidentiality or privilege in disclosing the information to the public has no validity. These are all public matters and for transparency in government functioning, and the right to know by the public is the first priority in a democracy.
There is doubt that Mr Barnala was being brought to Tamil Nadu at the instance of the DMK, which was beholden to him for having refused to dismiss the DMK government during the Chandra Shekhar regime in 1990. Indeed, it was a commendable act. I had then commented that “of course, one comes across the shining example of Mr Surjit Singh Barnala, who gave up his governorship rather than agree to dismiss the DMK government in Tamil Nadu at the instance of Mr Chandra Shekhar, who wanted to please Rajiv Gandhi.” That is why, Mr Barnala’s present gratuitous acquiescence in the game plan of the Central government has caused great disappointment.
Mr Barnala was in no danger of being asked to go even if he had refused to accept his transfer to Tamil Nadu. The Central government could not have afforded to act so arbitrarily with Mr Barnala who genuinely commands public respect.
The whole episode has left a bad taste in the mouth — treating the Governor as a lackey of the Central government. I feel that to avoid such unpleasant instances, appointments and transfers of governors should be made by a committee consisting of the Prime Minister, the Chairperson of the Rajya Sabha, Speaker of the Lok Sabha and the Leaders of the Opposition in both Houses (as in the case of members of the National Human Rights Commission). Let us keep the office of governor above petty party politics.
