December 16, 2015
The Supreme Court, on December 10, 2015, upheld the Haryana State law mandating that only those having "minimum" educational qualifications will be eligible to contest panchayat elections in the State. Such minimum for eligibility to contest is completion of matriculation in case of general candidates, completion of Class 8 for a woman candidate or a candidate belonging to Scheduled Caste, and completion of Class 5 for a Scheduled Caste woman candidate contesting for the post of 'Panch'. The apex court failed to find any merit in the argument of three women candidates, spurned by Haryana's new poll law and who moved the Supreme Court, that "people do not choose to be illiterate". Justice Chalameswar, who authored the verdict, reasoned that there is nothing "irrational or illegal" if the law prescribed minimum educational qualification for candidates.
Let us now turn to the case of replacing Justice Bhaskar Rao, who resigned his post as Lokayukta of Karnataka on December 8, 2015. In the face of serious allegation of corruption and extortion racket, involving his son who is under investigation and in detention, the Lokayukta dragged his feet with repeated extension of leave for several months and only resigned when procedures were initiated for his removal under recently amended short-cut law for this purpose.
The Chief Minister has said that it might take a month for the new Lokayukta to be appointed because it has a selection process which involves certain qualifications for the prospective appointee, such as that the person should have held the office of a judge of the Supreme Court or that of Chief Justice of a High Court, and shall not be connected with any political party. The selection process involves the Chief Minister, Chief Justice of the High Court, Leaders of the Opposition and presiding officers of the two houses of State legislature. Even after such selection, the Governor can reject the candidate as the Governor had recently stonewalled thrice in the case of Justice KL Manjunath, retired Karnataka High Court Judge, who was selected for the vacancy of Upalokayukta (On December 14, the Governor accepted Justice N Ananda as Upalokayukta in the place of recently retired Upalokayukta Justice SB Malage).
There was a provision for removing the Lokayukta on grounds of "proved misbehaviour or incapacity" on the "order of the Governor passed after an address by each house of the State legislature supported by a majority of total membership of the House and by a majority of not less than two thirds of the members of the house present and voting has been presented to the Governor in the same session" (Section 6 – 1 & 2). In the wake of the latest crisis, a shortened procedure of inquiry by High Court judges on reference from the presiding officers of the two houses of legislature had been initiated before Bhaskar Rao resigned to forestall further damage to himself.
It is ironic that the Governor, who thrice rejected the Government's recommendation in the case of Justice Manjunath, himself is not subject to any educational qualification - unlike those contesting for panchayat elections as noted above or any professional qualification as in the case of Lokayuktas as also noted above, or any selection process - except that he should be an Indian citizen and should have completed 35 years on the date of appointment. There is also the widely applied rule about not holding any other office of profit and not being member of legislatures/ Parliament. The Lokayukta and High Court/Supreme Court judges have age limit (65 years); but the Governors have no such age limit – with current crop of Governors having a few past 90 years (Ram Naik of UP 81 years and Balaram Das Tandon of Chhatisgarh 87 years). Governors have onerous duties as the representative of the President (Read Central Government/Union Home Minister/Ministry) who appoints them for a period of five years and remain in power at the pleasure of the President (Read....). He is the de jure head of the State Government and appoints the Chief Minister who enjoys majority in the state legislature and who rules in the name of the Governor.
The post of Governor has ancient roots, going back to the Roman empire which extended towards the east including Judaea, a Roman province, the Biblical setting for the earthly ministry of Jesus Christ. The most famous of them was Pontius Pilate who faced critical situations ending in controversial outcomes. He was the fifth Governor (also called Prefect) of Judaea from AD 26-36 under Emperor Tibirius but well known from the Biblical account of the trial and crucifixion of Jesus. A vacillating man, Pilate tried to generate sympathy for Jesus by scourging him and exposing his bloodied body to the assembled mob. He repeatedly said that he found no guilt in Jesus but finally gave in to the mob to crucify Jesus by symbolically washing his hands and declaring: "I am innocent of this man's blood; see to it yourselves". He had to please his boss the Emperor and also cool the Jews who said that Jesus was claiming kingship which would anger the emperor and jeopardise Pilate's position.
In modern times there are also elected Governors as in the case of United States of America where Piyus "Bobby" Jindal, a person of Indian origin, has been Governor of Louisiana and was in media focus for opting out, on November 17, 2015, of his bid for nomination as Republican Party's candidate for the 2016 Presidential race.
As noted earlier, Indian Governors are nominated by the President as his representative in the States to see that the governments there are run as per the Constitution. This worked out well when the ruling party at the Centre and the States was the same, as was the case when Congress ruled for many decades. In that context, Governor ruled from their guilded cages called Raj Bhawans with a retinue of officials and servants at their command, including massagists as many of them are oldies in need of constant physical rejuvenation. The Governorships were a reward for loyal service for the party or a glorified exile from active politics for keeping them away from political mischief.
But the scene changed when non-Congress governments rules at the Centre and in some states. But not all Governors bit the dust on account of party politics, the outstanding case being that of ND Tiwari, a veteran Congressman. Born in 1925, Tiwari was Governor of undivided Andhra Pradesh from 2007 to 2009 when he was forced to resign following a sex scandal video broadcast on TVs allegedly showing him in bed with three women at his official residence in the Raj Bhawan. He exited as Governor on December 26, 2009. This episode was the subject of a police complaint filed for "sexulally abusing girls, blackmail and misuse of office".
Incidentally, Tiwari was also involved in a paternity suit by Rohit Shekhar which, after DNA mapping, established that Dr. Ujwala Tiwari, his alleged old flame on the side, is the biological mother and ND Tiwari the biological father. Ultimately, after long and acrimonious court battles, Tiwari accepted Ujwala and Rohit as his wife and his son (who fought to establish his legitimacy), respectively. That is the stuff some of our Governors are made of!
Now let us come to the subject of Governors, supposed to be the constitutional representatives of the Centre, vitiating from their role as guardians of the Constitution. Here we can do no better than reproducing some of the news items on the subject, starting with the latest from PTI dated December 13, 2015 titled "Govt's Legal battle against Cov." (The New Sunday Express): "The Arunachal Pradesh government has decided to seek legal opinion whether the Governor can summon an Assembly session without the advice of the Cabinet. The decision comes in the wake of State Governor Jyoti Prashad Rajkhowa pre-poning the winter session of the Assembly in an order issued on December 9 to pave the way to remove the Speaker ... a Raj Bhavan release said that the Governor had taken opinion from legal experts before the decision". Is it a case of Constitutional figurehead becoming an activist Governor at the instance of the government/party ruling at the Centre?
On November 22, 2015 Assam Governor, PB Acharya, among other things, declared that Hindustan is for Hindus (and more) and spent the following days denying that he said that or clarifying what he meant by that. Earlier in June 2015 Congress had submitted a memo to the President charging Acharya of functioning like an agent of BJP and RSS.
There are complaints galore from non-BJP governments in the States of Governors turning Raj Bhavans into RSS Shakas as reflected in an entry by Derek O Brien, National Spokesperson of Trinamool Congress on October 6, 2015 on his Facebook page: "The BJP has finally found its leader in West Bengal and its face for the 2016 assembly elections. The active politician who's going to front the party and in effect handle its campaign is Kesrinath Tripathi. As it happens he is the Governor of the State. Under Tripathi, Raj Bhavan has become a hotbed of intrigue and virtually the state headquarters of the BJP. Almost every day, party leaders and ideologues seem to meet here to discuss new ways of needling Mamata Banerjee government...It is not for the BJP Pracharak-cum-Governor to poke his nose and play judge, jury and executioner." The Governor's reaction: "The allegations are wrong and baseless. Raj Bhavan doesn't need to react to all rubbish tales".
In Himachal Pradesh Governor Acharya Devvrat is calling meetings of senior bureaucrats and police officers at Raj Bhavan in Shimla to monitor administration - inviting charges of running a parallel government. In Uttar Pradesh, Ram Naik invited controversy about building Ram temple in Ayyodya but was quite articulate in defining his role as Governor while addressing lawyers and judges on October 4, 2015: "I am a representative of the Centre and my job is to ensure all things in the state function as per the provisions of the Constitution. I am not the kind of Governor for whom Raj Bhavan is Aaramgrah (rest-house)". The running battles between the Chief Minister Kejri and the Lt Governor Najeeb Jung constantly make headlines.
Many Governors have been sent to Aaramgarh to seal their mouths and not to upset the party political apple-cart. But, they are, like children, supposed to be seen and not heard beyond reading out inane speeches written for them. But, things are changing with activists Governors putting their foot in their mouths to curry favours with their patrons or being not able to shed their party skin.
The longest written Indian Constitution has the shortest provisions for the appointment and dismissal of Governors (Articles 152-162). With the result, when ruling parties change, Governors are driven to resign through media leaks and telephone calls (by Home Secretary as happened in 2014). But, changing Governors and high officials following change of party regimes is not an unknown practice. It is known as the spoils system, also as patronage system (as opposed to merit system) in America, in which a political party, after winning election gives government jobs to its supporters, friends and relations as a reward for working towards victory. "To the victor belong the spoils", famously said New York Senator, William L Marcy referring to the victory of Andrew Jackson as President of America in the election of 1828.
So, what is the bottom-line? When a party comes to power at the Centre, it is reasonable to appoint new Governors with whom the central government is comfortable to work. Correspondingly, it is also reasonable for the incumbent Governors to read the writing on the wall, unless specifically requested to hang on, and to gracefully vacate their office. But, once appointed, the new Governors should act as constitutional heads of the State and shun partisan action. They should not be loose cannons or misguided missiles.
Now there is a lot of talk, including court cases, about installing speed governors in motorised vehicles. Should we not think of implanting speech governors in State Governors to control their voluble and partisan tongues and actions? Over to you.
Veteran journalist and author, John B Monteiro now concentrates on Editorial Consultancy, having recently edited the autobiography of a senior advocate, history and souvenir to mark the centenary of Catholic Association of South Kanara and is currently working on the history/souvenir to mark the platinum jubilee of Kanara Chamber of Commerce & Industry.