West Bengal: A Governor’s overreach

By Lokendra Malik

Under the Indian constitutional scheme of things, the governor is the formal head of a state government and acts on the aid and advice of the council of ministers headed by the chief minister (CM). There are only a few areas where the governor acts on his discretion.

The CM, who gets a mandate from the people to run the administration, is the real head of the state government. He takes all decisions and remains responsible to the legislative assembly, not to the governor. However, the Constitution does not make the governor only a figurehead or a cipher. He has a significant constitutional role in the state.

Under Article 167 of the Constitution, the governor can seek any information from the CM regarding the affairs of the state, government’s decisions, proposals of legislation, etc. and the CM has to furnish that information. The governor is a nominee of the president of India, who appoints him on the prime minister’s (PM) advice. He holds his office during the pleasure of the president who can remove him from office on the advice of the PM at any time without assigning any reason. He is the main link between the centre and the state.

In actual constitutional practice, the governor’s survival depends on the PM’s pleasure. This is why governors always want to please their political masters—to save their chairs. The governor sends his report regarding the affairs of the state to the Union government periodically. As per Article 356 of the Constitution, the president can dismiss the state government on the advice of the Union cabinet headed by the prime minister if the Governor sends a report to him stating that this government cannot be carried on in accordance with the provisions of the Constitution. So the governor plays a significant role in the Indian federal system.

Unfortunately, the governor of West Bengal, Jagdeep Dhankar, a senior advocate by profession, has exceeded his constitutional powers and functions ever since he occupied the office. He has become a regular critic of Chief Minister Mamata Banerjee’s government as if he is the leader of the opposition party in the state. It undermines the dignity of the office of the governor. He hardly spares an opportunity to exercise his unjustified gubernatorial activism that infringes on the fundamental principles of parliamentary democracy.

However, Dhankar thinks he is on the right track. On June 21, in an interview to a major newspaper, he stated: “I do not believe in confrontation; I believe in constructive suggestions. I am not in confrontation with the government. The government is in confrontation with me, which I am trying to dilute and rationalise to have a working relationship.”

This explanation is difficult to digest. The ground realities are quite different. People know how the governor violated constitutional norms and conventions in his dealings with the state government by criticising its functioning and decisions unhesitatingly on several occasions. He cannot be permitted to comment on the day-to-day administration of the state and behave like an active politician. He is right that “accountability of the government is the first requirement in a democracy”, but it is not his job to criticise an elected government that is collectively responsible to the assembly. Let the assembly do its job and fix the responsibility of the government if it violates constitutional norms.

Last month, Dhankar visited Cooch-Behar district, which was affected by post-poll violence, without taking Mamata Banerjee into confidence and criticised her government after the visit. “I said that I will visit the poll violence-affected areas. The state government said that I can step out of Raj Bhavan only on a programme given by them. I stepped out. They made no facilities available. I secured them from the central government,” he reportedly admitted. How many governors do this in BJP-ruled states? I don’t think any governor who likes the chair would dare to do this in a BJP-ruled state. This kind of gubernatorial activism is noticed in states that are ruled by non-BJP governments. Should the governor be used as a tool to weaken federal democracy? No. In addition to these instances, he has summoned senior government officials many times despite the objections raised by the CM.

Not only this, he has criticised the Mamata Banerjee government on social media platforms as he is very active there. He does not seem to believe in political neutrality and constitutional morality. Although Dhankar is a well-trained politician who knows everything about his constitutional limitations, he has not shown restraint in his gubernatorial assignment.

However, in an interview published recently, he presents a different view. “I am not a stakeholder in politics. My core critical and non-compromising concern is that the governance in the state must be in accordance with constitutional prescriptions. A transgression of that is not acceptable,” Dhankar said.

Undoubtedly, the governor needs to defend the Constitution, but he cannot monitor the functioning of an elected government on a day-to-day basis as the Constitution does not permit him to do so. Some of the concerns raised by the governor may be genuine, but he should use the appropriate constitutional channels to address them.

That is not all. Even as the chancellor of universities in West Bengal, Dhankar intervened in the decision-making process and confronted vice-chancellors (V-Cs) on many petty issues. These could have been handled by the state government in a better way.

The governor cannot bypass the state government while dealing with the V-Cs of universities governed by the statutes and rules framed by it. He should not jump into such matters. The governor is not the master of the CM or other ministers who exercise the power. His role is ceremonial and his high constitutional office deserves only respect, not power. He should not intervene in the administrative issues unnecessarily at behest of his political masters. His influence depends on his personality.

A man of ability and experience can leave a potent impact on the affairs of the state with his advice, guidance and persuasion, and by using his knowledge, experience and statesmanship to arrive at sound decisions in conformity with constitutional propriety and morality for the welfare of the people. A good governor can never opt for the path of confrontation. He should never impose his views on the elected government.

The governor’s role is at best advisory. The CM is the leader of the elected government and the governor is merely a facilitator. In a parliamentary democracy, people give power to the government, not the governor.

Justice Krishna Iyer observed in the Samsher Singh case: “The omnipotence of the President and of the Governor at state level is euphemistically inscribed in the pages of our Fundamental Law with the obvious intent that even where express conferment of power or functions is written into the Articles, such business has to redisposed of decisively by the Ministry answerable to the Legislature and through it vicariously to the people, thus vindicating our democracy instead of surrendering it to a single summit soul whose deification is incompatible with the basis of our political architecture lest national elections become Dead Sea fruits, legislative organs become labels full of sound and fury signifying nothing and the Council of Ministers put in a quandary of responsibility to the House of the People and submission to the personal decision of the Head of State. A parliamentary style Republic like ours could not have conceptualized its self-liquidation by this process”.

—The writer is Advocate, Supreme Court of India

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