Under Article 356, the President can declare emergency in a state on receipt of a report from the Governor of the state or otherwise if he is satisfied that a situation has arisen in which the government of the state cannot be carried out in accordance with the provisions of the Constitution.
An important aspect of this Article is that emergency can be imposed on a state even without the Governor's report. H.S. Kathuria, in his book President's Rule in India, has given an excellent analysis of the factors that could lead to such an emergency. In brief, they are: (a) breakdown of law and order machinery, (b) political instability as a result of defections, (c) paralysis of the parliamentary process, as, for instance, when the Chief Minister does not resign, even after losing the majority, (d) corruption, maladministration, separatist activity and terrorism, (e) popular agitation against the ministry, (f) loss of public confidence in the majority, (g) a party with an absolute majority refusing to form the government and preventing the installation of a minority government, (h) no coalition government is set up, and (i) voluntary courting of it by a state to override a peculiar or particular problem.
Such an emergency can have the following effects: (a) the President can assume to himself all or any of the functions of the government of the state other than the High Court, (b) declare that the powers of the legislature of the state shall be exercisable by or under the authority of the Parliament, and (c) make provisions necessary or desirable for giving effect to the objects of the proclamation.
Every such proclamation must be laid before each House of the Parliament and will cease to exist at the expiration of two months unless it has been approved by both chambers of the Parliament before this term expires.
If during these two months, the Lok Sabha is dissolved and the Rajya Sabha has approved it, then, the proclamation shall cease to operate on expiration of thirty days from the date on which the Lok Sabha first sits after its reconstitution, unless it is approved by the Lok Sabha before the expiration of this term.
A proclamation so approved shall, unless revoked, cease to operate on the expiration of a period of six months from the date of issue of the proclamation. Unless revoked, its life can be extended by six months each, several times, but in no case beyond three years.
Article 356 is a corollary to Article 355. The latter imposes a duty on the Union to secure that the government of every state is carried on according to the provisions of the Constitution. The former gives the Union the power to ensure that Article 355 becomes effective and, in case of difficulty, to overcome it by imposing Article 356.
The Governor, while sending his report, has to use his own discretion and judgment. "By the very nature of the power, it cannot be exercised on the advice of the Ministry for; it may very often happen that the report may itself be a condemnation of the Chief Minister to the effect that the governments run by the Chief Minister is not being conducted .... In accordance with the Constitution". At the same time, he must act bona fide and must have materials to sustain his judgment that the government of the state can really not be carried out.
The Politicisation of Position: Recent Cases
In case we examine the hundred and more cases of the imposition of the President's Rule in states, a large number would appear to be controversial. In fact, discretion not backed by objectivity and rationality is bound to create controversies.
B.P.Singh, the former Governor of Goa, had gone to the extent of replacing the Chief Minister with another MLA by interpreting the 'pleasure' clause. This was an obvious misuse of the clause. The Central Government continues to flout the Sarkaria Commission's advice that active politicians should not be appointed as Governors.
The results are unsavoury. Governor Gulsher Ahmed of Himachal Pradesh quit from the office after a row over his involvement in an affair where he made his intentions clear that he wanted to return to active politics. And, more recently, former U.P. Governor, Moti Lai Vora had been accused of acting at the behest of his 'erstwhile' party's top leadership.
In October, 1995, when the BJP withdrew support from the minority BSP government in U.P., the Governor kept the State Assembly in suspended animation on the plea that the Supreme Court had ordered in the S.R. Bommai Case (when Rajiv Gandhi dismissed the Bommai Government in Karnataka) that a Governor should not dissolve the Assembly in without a proclamation to its effect being discussed and debated in the Parliament.
But he did exactly the opposite of his utterances after 12 days when he recommended the dissolution of the Assembly. This he neither did without providing any chance to any claimant to form the government nor was the matter discussed in the Parliament. This 'inconsistency' in the Governor's behaviour was criticised by constitutional experts such as P.P.Rao and Shanti Bhushan.
Is Governor an Agent of the Centre
There are a few articles in the Constitution which make the Governor an important link in the chain of relationship between the Union and the states. Article 160 says that the President may confer on Governor Functions in any contingency not provided in the Constitution. Under Article 200, the Governor can reserve a bill for the reconsideration of the President.
Under Article 356, emergency is proclaimed by the President Ori the basis of the Governor's report or otherwise. Article 167 puts an obligation on the Chief Minister to keep the Governor informed about the state affairs and the latter informs the President.
Article 257 provides that the executive power of the state shall be so exercised as not to prejudice the exercise of the executive power of the Union, meaning that the Governor should follow the advice and instructions of the President.
Keeping these Articles in mind, what exactly is the role of the Governor vis-a-vis the Centre? Has he merely to function as the 'good boy' of the Centre or can he exercise his own judgment and discretion? The seeds of the Problem are inherent in his method of appointment. He is nominated by the President. K.V.Rao says that it is this thing which is most obnoxious.
He says, "Today at the root of all troubles is the simple fact that the Head of the State is neither chosen by the State nor is he responsible to it, not removable by the very method of appointment and removal, the Governor becomes subordinate to the President and events prove that he cannot disobey him. Rao distinguishes between his role as a 'link' and that of an 'agent'. His role as a link is more positive than an agent. He "cannot be both these things at the same time. He should be neither a reflection of the state government but not its antithesis nor a spy of the Centre."
Leaving aside the discussion as to what an ideal situation should be, the post-1967 period shows that the Governor is today more an agent of the Centre than of the state. S.C. Dash has an interesting comment to make in this regard. He says, "A split personality is at times an encumbrance and a Governor is expected to display such a personality.
He can play the role of a Dr. Jekyll with the Union Government and Mr. Hyde with the State Council of Ministers and it would be difficult for either party to bring him to book".
Recommendations of the Governor's Committee on Appointment of Governor
On 30th November 1970, President V Giri appointed a committee of five Governors to study and report on the appointment of the Council of Ministers by the Governor, for summoning, prorogation and dissolution of State Legislature and the failure of constitutional machinery in a State. The Committee submitted its report on 26th November 1971.
The Committee expressed the view that the guideline could be provided and in each situation, the Governor concerned would have to take his own decision. The Committee was of the view that the Governor was not the agent of the President. As the Head of the State, the Governor has his functions as laid down in the Constitution itself and is in no sense an agent of the President.
Regarding the discretionary powers of the Governor, the Committee felt that under normal conditions the exercise of the Governor's powers should be on the advice of the Council of Ministers, and on occasions when the council of ministers loses the confidence of the House, the governor can act independently.
The committee also felt that the leader of the largest single party could not claim that he had an absolute right to form the Government.
Recommendations of the Sarkaria Commission
During the Nehru era, the institution of governor was free of any controversies. But it came into prominence after 1967, and has adopted different stands and practices in various states to suit the interest of the ruling party at the centre. The Commission observed that there was a widespread feeling that in some cases Governors were appointed on considerations extraneous to merit. The dignity of the office suffered when persons defeated in elections were appointed.
Recommendations on Appointment of Governor
(1) Governor should be eminent in some walk of life.
(2) Should be a person outside from the state
(4) Should be a person who has not taken too great a part in politics generally and particularly in the recent past.
The Commission felt that the State Government should be given prominence in appointing the Governor. The appointment should be made
(1) From a panel to be prepared by the State Legislature; or
(2) From a panel to be prepared by the State Government or invariably by the Chief Minister; or
(3) Invariably in consultation with the State Chief Minister.
The Commission felt that the Chief Minister should be consulted before appointing the Governor. For proper working of the Parliamentary system there has to be a personal rapport between the Governor and the Chief Minister.
Thus the main purpose of consulting the Chief Minister is to ascertain his objections, if any, to the proposed appointment.
The Commission found that consultation with the Chief Minister has not invariably been taking place in recent years.
The general practice, as far as the Commission has been able to ascertain, seems to be that the Union Government merely informs the Chief Minister that a certain person is being appointed as the Governor of the State. Sometimes even such prior intimation is not given.
The Commission recommended that the Vice President of India and the Speaker of the Lok Sabha should be consulted by the Prime Minister in selection of Governor. Such consultation, the Commission felt, will greatly enhance the credibility of the selection process.
At the recent conference of Governors, both the President and the Prime Minister of India supported the call for "Activist Governors". It led to a serious discussion among the political thinkers about the role of Governor.
Can Governors be trusted to remain within the ambit of the Constitution? The Constituent Assembly had toyed with the idea of activating Governors by making the post a responsible activist institution.
But the idea of elected Governors was abandoned so that directly 'elected' Governors would not vie for prominence against indirectly selected Chief Ministers or Prime Ministers responsible to the Lok Sabha or Vidhan Sabha.
But except during the Nehru era, the Governor's office has become a political office. During Indira Gandhi era, many Governors ran amok-holding a Congress brief for the party in power in New Delhi rather than objectively discharging their constitutional powers and responsibilities.
The Bhagwat Sahya Committee (1971) sustained this charge; and, the Sarkaria Committee (1988) openly stated that "the role of the Governor has emerged as one of the key issues in Union-State relations". Unfortunately none of the recommendations of the Sarkaria report on Governor has been followed. An important recommendation was that the people from the party in power should not be appointed to the office of Governor.
The Constitution Review Commission also recommended the same. But it was not put into practice by any of the Central Governments that ruled the country over the past 60 years.
What is needed is more neutral, less political and in that context less-activist Governors. This constitutional post requires greater scrutiny and oversight over it. Since the Governor is appointed by the President on the advice of the Prime Minister, such posts should be within the scrutiny of Parliament. Appointments should be made after due consultation of a parliamentary committee which should exercise oversight over the post.
Several questions and problems arise regarding the role of the Governor in state politics. They will continue to haunt us. It would be wrong to blame the Constitution-makers in this regard as they could not have visualized all the problems that would arise. Each Article relating to him may give rise to new controversies but, to understand his position, we must look at the Constitution as an organic whole. This, and several conventions, which have emerged, makes the smooth running of the government possible.
The Governor certainly does not have much to do, but that is because the Constitution-makers intended it that way. He is not supposed to run a parallel government in the state. His role is that of a sagacious counselor, mediator and arbitrator rather than an active politician. He has to abide by the advice of the council of ministers but that does not means immediate acceptance. He can reserve bills for reconsideration and prevent hasty decisions.
Great caution and restraint must be exercised while reporting to the President under Article 356. Otherwise, his image as the guardian of the state would get tarnished. He should keep himself away from active politics. An active politician, who was identified himself with a political party, cannot inspire the total trust of the people.
The recommendations of the Sarkaria Commission in this respect deserve serious consideration. Lastly, critics of the institution should realise that, in a parliamentary democracy, it is a necessity. Slowly, it is emerging from slumber and some Governors have taken up cudgels on behalf of the states at the risk of losing their jobs. Hence, "it would be a gross fallacy to regard the institution of the Governor as a faint presence like a full moon at midday.