'Strengthen the institution of the Governor'

Fali S. Nariman is widely regarded as India's top lawyer. The eminent constitutional expert made it clear at the outset that he wished to concentrate on what he called a "philosophical approach" to the Constitution rather than specific issues or questions relating to the current turmoil over the application of Article 356 or the Supreme Court's judgment in the Bommai case. He preferred to look at the issue "holistically" so that the "spirit of the Constitution" could be addressed.

The essence of Nariman's argument is that the institution of the Governor needs to be strengthened as also the procedures for gubernatorial appointment. Deploring the lack of "people of known prominence and known integrity in public life" in gubernatorial posts, Nariman concludes interestingly that "a person who does not want the office is the only person who is fit to be appointed to it."

As for the role of the higher judiciary with regard to the application of Article 356, Nariman commented: "No mechanical means can strengthen anything. By enacting laws you cannot strengthen anything. You need to strengthen personalities. They have to be more inspired. There have to be better people as governors. If you have useless people who are toadies of the Centre then no Constitution can be run. Better to scrap the whole thing instead."

Lyla Bavadam met F.S. Nariman in Mumbai to seek his views:

Fali Nariman: The philosophical basis of Article 356 must be considered in the context of the overall provisions of one of the world's longest constitutions. It was intended only to be worked in the background of preserving the Union of India - which is a quasi-federal Union of States. The fact that it has been misused or perverted cannot detract from its essentialities. A constitution has to be looked at holistically, not piecemeal and as such, in my judgment, (Article) 356 is an essential part of the Constitution. I am totally opposed to a deletion of this provision because absent 356, the Union can only fall apart.

The manner in which Article 356 can be utilised in the next 50 years is: strengthen the institution of the Governor. This does not require any amendment to the Constitution but only the laying down of guidelines for the appointment of proper and independent persons as Governor. The reason why the Governor's office was not an elected office was precisely for this purpose: that important persons in public life who have fulfilled a role and have a commitment to the country as a whole and its continued unity would be appointed by the Centre as Governor.

In my view, the President can and should play a role in the appointment of Governor. Although constitutionally all acts done in the name of the President are the acts of the Central Government and therefore necessarily the acts of the Council of ministers, there needs to be much more rethinking into the position of an elected President. The recent instance which averted the crisis in Uttar Pradesh during the Prime Ministership of Mr (I.K.) Gujral and the role played by President (K.R.) Narayanan illustrates the importance of associating the President more and more with the appointments and determination of appointments of Governors.

The fact that Article 356 has been misused and therefore should be deleted or amended is a totally erroneous way of going about the provisions of a written constitution. The effort should be to prevent such misuse maintaining the original intendment and purpose of Article 356. A failure of constitutional machinery in the State - an essential precondition to the exercise of power under Article 356 - has not been properly understood. In my view, it means really a complete breakdown or attempted secession of a State within the Union and does not apply to machinations of politicians and temporary and temporary political instability in States. Governors should be instructed or 'educated' into the ethos and the wisdom of the framers of the Constitution when they included Article 356. None of our great institutions under the Constitution can ever survive if the persons who man them fail to be inspired by the idealism of their provisions.

The suggestion made in certain quarters and the interpretation of Bommai (correct or erroneous) arises because of the divergence of opinions of judges in that case. The facile assumption that every problem can be resolved by the highest judiciary only serves to diminish the responsibility of persons manning constitutional positions of power - and that is why Justice Verma along with Justice Yogeshwar Dayal said (in my opinion, correctly) that it was extremely difficult for courts to assess the various facets of "failure of constitutional machinery envisaged in Article 356." If this had been the majority view it would have put the ball squarely in the court of politicians and policy makers who would then have had to decide how to better strengthen the institutions of the Governor and associate more closely the President of India with the functions of the Governor under Article 356. It is implicit in the provisions of Article 356 (or if necessary could be so read into them) that the President of India to whom Governors periodically, under administrative practice, submit reports (I believe, monthly reports) could not possibly make a report without consulting the President - and here I mean consulting the President as President.

There are judgments of the Supreme Court that seem to take the view that all and any functions of the President can only be exercised on the advice of the Council of Ministers. Here again the court was stating the proposition too broadly. The President is not a mere figurehead or a rubber stamp and this point was made out years ago by the late Mr Minoo Masani and also by the first President of India, Rajendra Prasad. There are areas where the wisdom of the elected head of state must be put to use if the governance of the country is not to go completely off the rails.

My conclusion therefore is that the strengthening of the position of Governors, if necessary by an instrument of instructions passed by a resolution of Parliament - which would make it therefore a binding authority - would help the right person being appointed who would, after consulting the President in the case of a grave breakdown of constitutional machinery, report to him. And on the basis of that report, the Council of Ministers would be entitled to act. The decision, of course, to dismiss a government of a State or not to dismiss it would be, and must remain, the decision of the Central government and not a personal decision of a President. But the process by which this decision is to be reached cannot avoid the drawing upon of the courage, wisdom and idealism of an elected President. It is only then that we will see some glimmer of hope in what appears, to me at least, to be a pretty hopeless situation. Abolishing Article 356 is only throwing the baby out with the bathwater and will not solve anything. It will only weaken the federal structure.

Therefore my conclusion is that 356 is necessary in our Constitution as it stands. It must remain but the institutions that are entrusted with its working must be strengthened; particularly the office of Governor who must resist the machinations of politicians, whether in the Centre or in the State. He can only do so if he has the necessary integrity in public life. There is no dearth of persons of integrity in public life who have in the past filled various positions in various forms of activity. Each one can make his own list and the office of Governor should not be a pensioned office for a politician or a retired politician. Which does not mean that a politician is necessarily not suited to be a Governor. And if that is borne in mind and if we are to see that the Constitution functions, then I see no difficulty in 356 working in the future. Of course, it is going to be a long toil since we have all of us demeaned ourselves and all constitutional authorities have done the same. There are very few outstanding exceptions.

If you ask me my own view, it is that ever since a former President of India signed the Proclamation of Emergency in June 1975 without waiting for Cabinet approval - a patently unconstitutional or at least unwise act - the rot has set in. There is no way in which we can revitalise Article 356 except by improving the sort of persons we appoint as high constitutional functionaries in the State and at the Centre. That's all I have to say.

* You spoke of instruments of instruction. What would this involve?

How the right man in the right place should exercise his power under 356 cannot be laid down in any specifics; but there can certainly be a draft instrument of instructions which a group of inspired persons in the country could draft and submit to the government for Parliament's approval. The government is never going to do this. Only public spirited individuals can do this. They would only help furnish the guidelines on the basis of which action, or no action, would be taken on 356. And if you have the right man in the right place, nine times out of ten you can trust him to take the right decision.

* You had spoken of "outstanding exceptions" among constitutional authorities who had not "demeaned" themselves. Could you elaborate on this.

I mentioned the present President as an outstanding example and by way of contrast, Fakhruddin Ahmed who signed the proclamation without a Cabinet meeting.

There have been governors in the past who have acted with integrity and independence and to recall only one instance: Dharam Vira who was Governor of Bengal, who took the view that opening speeches in the Legislative Assembly should not contain derogatory references to the Governor's position and refused to read it - though the Governor's speeches at the opening of a session are generally considered to be the policy of the government of the time - shows what independent persons can do and how political pressures can and are resisted. In fact, there is one celebrated example regarding Dharam Vira. When he was a bureaucrat - a Cabinet Secretary - he had gone with a delegation abroad for the purchase of aircraft and at the conclusion of the deal he was asked where the usual commission was to be deposited for him. He said, "Make out a cheque in the name of the Government of India" and he brought it back and gave it to Panditji at which Panditji exploded and said " What! You accepted a commission for the deal,". And DharamVira said,"What did you expect me to do? Take the money in my name and put it into a Swiss account?"

These are the sort of men we do not have today. It is most unfortunate. Short of idealism, I don't think you can work any provision of the Constitution.

SANDEEP SAXENA

* There is an opinion that says that the nature of Article 356 is such that it is conducive to misuse. I think Karunanidhi said that even if Gandhiji were Prime Minister Article 356 would be misused.

He's absolutely right. That is why the personalities have to be there. Judicial control is impossible. The reason why I say this is because I do not believe that it is good constitutional policy for the judiciary to bring back to life a government that has been dismissed which must be the necessary consequence of judicial interference under Article 356 - and that in my view is the rationale of the decision of the minority in Bommai's case. Therefore we have to look elsewhere. We cannot expect the judiciary to resolve all the problems of the country - and they should not. And that's where the right Governors are important.

If Bhandari had not been appointed, all this would not have happened. All this hobnobbing with this fellow and that fellow. You must have a man with some gumption, who can say 'No' to the Chief Minister. All this has to be done in conclave. You can't do it publicly. These are where personal relations of the Chief Minister and the Governor come into play. The Constitution can't prescribe the personal relations between the two. The Chief Minister calls on the Governor at regular intervals and that's the time for discourse. There are a lot of grey areas but you have to have the right sort of people, with the right sort of approach, the right sort of integrity... people who won't be bought.

* There seems to be enough cause for apprehension as to how the BJP will handle Article 356. On the one hand, Advani says Article 356 will not be misused and on the other, Bhandari, a BJP stalwart, is appointed Governor - political opportunism would you say ?

Their record is as bad as anybody else's. They are political opportunists and they appoint opportunists who are appointed as Governors.

* What about the fact-finding teams that are being sent out from the Centre to the States?

Totally unnecessary.

* It goes against federalism?

Of course it does.

* Assam Chief Minister Prafulla Mahanta had said that 356 is inimical to federalism and should therefore be removed.

356 is the lynchpin of federalism. It preserves federalism. Let's not try to excise provisions of the Constitution because we can't work it. (laughs).

* So the present situation can be summed up as a poor interpretation of Article 356?

Not poor. Wrong. The interpretation of 356 is very badly done. It is a crisis of the gravest order.

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