Governor is more than a glorified cipher. He reigns, but does not rule.: Justice V.R.Krishna Iyer

COVER STORY :  'Article 356 should be abolished'

Justice V.R. Krishna Iyer, former judge of the Supreme Court, has been one of India's most distinguished and original constitutional thinkers since Independence. He was interviewed by R. Krishnakumar in Thiruvananthapuram:

*The Supreme Court's majority judgment of March 11, 1994 in the Bommai case is considered a landmark judgment with respect to Centre-State relations in general and Article 356 in particular. What, in your assessment, is the essential difference between the situation pre-Bommai and post-Bommai?

Before the Bommai decision was rendered, the constitutional position was understood to mean excluding the jurisdiction of the Supreme Court when Article 356 was applied. But now the law is clear that it is possible for the court, it is proper for the judges, to examine whether the relevant power has been misused in the sense that it is arbitrary, mala fide or such that there is no reasonable material to support such a conclusion as the breakdown of the Constitution.

Indeed it must be acknowledged that even the Pakistan Court has taken a somewhat similar, view, even earlier than the Indian Court. Now, therefore, it is clear that reckless exercise of Article 356 power will meet with its Waterloo in the Court.

* Since experience, even in the post-Bommai period, suggests that few Central governments are able to resist the temptation to misuse the exceptional power conferred by Article 356 (and also related powers), do you think Article 356 should be abolished?

Speaking for myself, Article 356 deserves to be abrogated. The founding fathers were under the impression that this provision would be used only in the rarest of rare cases, that it would be virtually a sword which would never be taken out of its sheath, except in a flagrant case under Article 365. This latter Article states that if any particular State defies a Central direction validly given, it shall be lawful for the President, that is the Cabinet, to hold that the government of the State cannot be carried on in accordance with the provisions of the Constitution. That is to say, if an Article 365 situation arises, Article 356 may be attracted. But the Court will go into the question whether the direction given by the Union to the State was itself valid. Only in a case of such valid direction within the competence of the Union being ignored by the State, can Article 356 come into operation.

My submission is that in over 100 cases, starting with the outrage perpetrated in Kerala in 1959, there has never been a legitimate use of Article 356. If the temptation to use this presidential power is perennial, as is seen by its continual abuse, the time has come for a change in constitutional perspective. In short, Article 356 should be kept in cold storage, or even formally abolished.

The daring way in which the AIADMK is demanding the dismissal of the DMK Ministry in Tamil Nadu under Article 356 shows that political terrorism is apt to overpower constitutional propriety. What is still more shocking is that the AIADMK alleges an earlier agreement with the BJP that, if the latter came to power, President's Rule would be imposed in Tamil Nadu. This very statement is sufficient to hold that any exercise of Article 356 by the Centre is utterly untenable.

Madam Jayalalitha, innocent of Constitutional law, is guilty of the goofy demand for President's Rule not knowing that her very allegation of an antecedent understanding is sufficient to shoot down any stultifying exercise of Article 356 power!

* Article 356, which was sold to the Constituent Assembly as an emergency provision to deal with highly exceptional cases, has (as you have pointed out) been used over 100 times since the Republican Constitution was adopted in 1950. Looking at it historically, under what circumstances would the use of Article 356 be just, if at all?

A. VIBHU

The Sarkaria Commission has condemned the exercise of Article 356 power as almost always motivated or induced by extraneous considerations. It is time Article 356 power was handcuffed in the way Sarkaria has suggested, although personally I might go further to hold that only after Parliament passes a resolution in both Houses should President's Rule be used against a State.

Why? Because it is a sabotage of federalism to usurp State power by the Centre and such a grave frustration of the basic structure of the Constitution needs strong limitations to be put on the exercise of the power. So it is that I demand a prior resolution by both Houses as a check on misuse.

* Constitutionally, new standards and restrictions have been laid down for the application of Article 356 (and at least by implication, the Governor's power to dismiss an elected State Government without recourse to Article 356). But between this new constitutional standard ordained by the Supreme Court and actual political conduct, there seems to be some kind of credibility gap. How can Bommai be better enforced in the rough and tumble of Indian politics?

The Bommai ruling is a severe warning to the Union Government. It must be open to the affected or intimidated State to move the Supreme Court by a quia timet action to stay hasty intervention in case there is clear indication of such a proposed action. It must be remembered that the State Cabinet is answerable to the State legislature and so long as it commands its confidence the pleasure of the Governor is a mere constitutional euphemism. The powers of the Governor as well as of the President have been explained at some length in Shamser Singh's case (Shamser v. State of Punjab, 1974). The President as well as the Governor are bound by the Cabinet's advice and to act in excess of such advice is to violate the Constitution and invite the Court's interdict.

* Would you like to comment on the constant demands made not only by the AIADMK, but also by other regional allies of the BJP such as the Samata party and the Trinamul Congress for Central action against elected State governments run by parties in opposition to the BJP and its allies? Also, would the pre-election agreement or understanding which Jayalalitha claims AIADMK had with the BJP for the dismissal of the Tamil Nadu Government render the use of Article 356 mala fide?

I have no doubt in my mind that demands by regional or even national parties to overthrow State-level democracy under Article 356 cannot be acceded by the Centre. This is not a matter of political vendetta or hostility or estrangement. Constitutional values must regulate the President's conscience when exercising Article 356 power. Noises made by regional parties or others cannot affect the voice of the Constitution. This applies to the Tamil Nadu party's demand as well as the clamour made against the West Bengal Government.

 When all is said, the Governor under the Indian Constitution seems to be nothing but a political agent of the Centre. What do you think can be done about this problem in a federal set-up?

The Governor under the Indian Constitution is a dubious functionary. He is a ceremonial figure as the head of the State and has solemn functions in that capacity. Some of them are really effective powers. As a rule, the Governor is bound by the advice of his Cabinet. He cannot be Janus-faced, looking in both directions. He cannot be a Central spy or an agent to carry out the Union's mandate.

Unfortunately he is in a very embarrassing position. Appointed by the Centre but obedient to the State Cabinet, he can be a pathetic functionary sometimes asked to perform pathetic measures by the Centre. He has to be an independent authority, his allegiance being wholly to the Constitutional obligations to act on the advice of the Council of Ministers. He may, as in England, caution, encourage, or otherwise give advice, but ultimately must abide by his Cabinet's recommendation for action. That is why sometimes it has been said that a Governor is a glorified cipher. So too the President.

But this is not wholly true. They have power to ask for information, explanation and reconsideration. Wisely used, these functions plus the power to refer Bills to the President, for consideration and assent, may make the Governor a factor to be reckoned with.

So it is that I hold the view that the Governor is more than a glorified cipher. He reigns, but does not rule. He advises, but is bound by the advice of his Ministers. He is an elder statesman but not an authority as the executive head of the State. Such is the delicate constitutional balance.

India's National Magazine  From the publishers of THE HINDU

Vol. 15 :: No. 14 :: July 04 - July 17, 1998