A FUNDAMENTALLY defective constitutional scheme cannot be improved much by reports of commissions or court rulings. On May 7 the Supreme Court of India ruled that a governor cannot be removed from office arbitrarily. But the court will not interfere “unless a very strong case is made out” by him.

What is “conduct unbecoming of a governor” is an expression no court can define. A commission on centre-state relations recommended recently that governors should be removed only by impeachment. Its report will be consigned to the archives.

The constitutions of India and Pakistan draw heavily on their common colonial ancestor, the Government of India Act, 1935. This is particularly so on the office of the governor. He is the only constitutional functionary who cannot be removed from office for misconduct so long as he enjoys the backing of the appointing authority, the president, who, however, is removable on impeachment by parliament.

In India, it was proposed initially, that the governor should be elected, but this was dropped on the ground that it would create a centre of power rivalling the chief minister. No such fear deterred the draftsmen from providing for election to the office of the president. If the powers and duties were correctly spelt out, election to the office of the governor could safely have been provided.

Article 155 of India's constitution says that “the governor of a state shall be appointed by the president. ...” Article 156 (1) adds that he “shall hold office during the pleasure of the president”. The president acts entirely on the advice of the prime minister in both cases. Article 101 (1) of the constitution of Pakistan says that the governor “shall be appointed by the president after consultation with the prime minister”. Clause (3) says that he “shall hold office during the pleasure of the president”.

This writer is not competent to opine on the practice in Pakistan. In India the scheme has deformed federalism and warped democratic governance in the states. The assurances of the founding fathers to the constituent assembly by Jawaharlal Nehru, on May 31, 1949 were flouted. The governor must be “a more detached figure, obviously a figure that is acceptable to the government of the province and yet he must not be known to be a part of the party machine of that province”.

It is surely equally bad if he is “part of the party machine” not of the state itself but of the ruling party at the centre. Party hacks were appointed governors without consulting the chief ministers, and even against their wishes. They became instruments of central control and used their powers of appointment of chief ministers in a hung assembly and its dissolution to suit the interests of the ruling party at the centre.

The practice of fortnightly reports to the centre, in vogue during the Raj, was continued. The constitution empowers the president to sack the chief minister and dissolve the state assembly on vaguest grounds (Article 356). The governor then rules with the help of centrally appointed advisers.

The main architect of the constitution, Dr. B.R. Ambedkar, authoritatively and explicitly clarified to the constituent assembly on Dec 30, 1948 that in his capacity as head of state in a parliamentary system “the position of the governor is exactly the same as the position of the president”; i.e. he is bound by the chief minister's advice.

In 1979 the Supreme Court ruled that the governor's “office is not subordinate or subservient to the Government of India. He is not amenable to the directions of the Government of India, nor is he accountable to them for the manner in which he carries out his functions and duties. He is an independent constitutional office which is not subject to the control of the Government of India”.

Abuse became so rampant that on Aug 5, 1983 the chief minister of Karnataka Ramakrishna Hegde remarked “even the governor has become a glorified servant of the Union”. The governor angrily refuted the charge on Aug 15. Two days later Hegde assured the state assembly that he would prove his charge to the hilt. On Sept 22, 1983 he tabled in the assembly a White Paper on the Office of the Governor Constitutional Position and Political Perversion. It is so thoroughly documented that a commission on centre-state relations, headed by Justice R.S. Sarkaria of the Supreme Court, appended it to its report published in 1988.

Its report said “It is desirable that a politician from the ruling party at the Union is not appointed as governor of a state which is being run by some other party or a combination of parties.” A fortnight after publication of the report, governors were appointed in five states in direct violation of the commission's recommendations.

In the last two decades every government at the centre has deliberately appointed its own party faithfuls as governors in states ruled by the opposition parties. Governors upbraid chief ministers in public and hold forth on the quality of governance which they have no business at all to do.

The Supreme Court has imposed curbs on the power to dismiss governments in the states. The abuse has ended. But the reign of abusive governors has not. It will not so long as the present constitutional scheme lingers without effective reform. The court's recent ruling helps governors who face the sack when the regime at the centre changes. They do not help chief ministers harassed by governors appointed to do that job.

A chief minister has only two alternatives — to advise dissolution of the assembly and make the abuse an election issue or ask his party at the national level to organise a campaign for the governor's removal.

The writer is an author and a lawyer.