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Mainstream, VOL L, No 8, February 11, 2012

Constitution, Governor and State Governments

Tuesday 14 February 2012, by Barun Das Gupta

Recently on several occasions the West Bengal Governor has permitted himself to make some critcal comments about the State Government publicly. When some college principals were heckled by students belonging to different unions affiliated to different political parties, the Governor demanded strong action by the State Government against the guilty students and said he would have taken ‘other measures’ if he were the head of the administration.

The next day he again urged strong action against the students and said principals were respected persons and their maltreatment at the hands of students was unacceptable. This meant that he was not happy with the steps taken by the government and instead of communicating his unhappiness to the Chief Minister through usual channels he was giving vent to his feelings publicly. The Chief Minister, Mamata Banerjee, was naturally not amused.

Next, when cases of alleged suicide by distressed peasants were reported by the media, the Governor reacted publicly and urged the State Government to take effective steps to prevent such deaths. The Chief Minister, however, maintained that on inquiry it had been found that only in one case did the peasant commit suicide because of distress. In the other cases the persons were either not peasants or had taken their lives for other reasons like family quarrels.
Then the Governor expressed his concern over the general law and order situation prevailing in the State. The CPI-M, which has mounted a campaign against the government of Mamata Banerjee alleging a ‘total breakdown of law and order’, was happy that their view got endorsement from the Governor.

Next he shot a missive at the State’s Education Minister, Bratya Basu, calling for an explanation whether he (Basu) had done all that was necessary to be done to put an end to inter-union student clashes and to stop the heckling of college principals. The contents of the letter were leaked to the media which played it up prominently. Quite expectedly, it raised the hackles of both the Chief Minister and Education Minister because it is not usual for a Governor to call for explanations directly from a Minister. The normal practice is to apprise the Chief Minister quietly and ask her to do the needful and take corrective measures. But the Governor chose to go public on all these occasions.

A section of the anti-Mamata media has been playing up the public criticism of the government (which the Governor invariably refers to as ‘my government’ in his speeches in the Assembly) with juicy headlines such as ‘Chief Minister on warpath with the Governor’ or ‘Chief Minister unhappy with the Governor’s interference in administration’. Some newspapers even went to the extent of reporting that Mamata was about to demand that the Centre recall the Governor.

The Constitution makes the role of the President and the Governor of a State and the Council of Ministers very clear. Article 53 of the Constitution says: “The Executive power of the Union shall be vested in the President.” Article 74 says: “There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance such advice.” This Article makes it mandatory for the President to go by the advice of the Cabinet. But this was not mandatory earlier. The ‘shall’ was introduced in Article 74 by Indira Gandhi during the Emergency through the Constitution (Forty-second Amendment) Act of 1976.

What is noteworthy is that when Indira Gandhi and the Congress party were defeated in the Lok Sabha elections in 1977 and the Janata Government headed by Morarji Desai came to power, this Article was left as it it. It was not reverted to its former construction which simply stated that there shall be a Council of Ministers to aid and advise the President. Again, twenty years later when the BJP came to power at the Centre and ruled for six years from 1998 to 2004, it chose not to amend Article 74 and free the President from the compulsion of acting according to the advice of the Union Cabinet.

In the case of the States, Article 154 says: “The executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him …” Article 163 says: “There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution reqired to exercise his functions or any of them in his discretion.” A reading of Artcles 154 and 163 makes it obvious that the framers of the Constitution tempered the provision of Article 154 that the Governor can act ‘either directly or through officers subordinate to him’ (that is, the bureaucracy) by Article 163 which implies that the Governor should normally be guided by the advice of the State Cabinet except under certain circumstances.

This is what should be in a democracy. Article 164(2) says: “The Council of Ministers shall be collectively responsible to the Legislative Assembly.” Yes, the State Cabinet is responsible to the elected representatives of the people who constitute the State Legislatue, and not to the Governor. The State Cabinet can be in office only as long as it enjoys the confidence of the Legislature, that is, when the majority of the members supports the government. It is only when the Cabinet has lost the confidence of the House that the occasion will arise for the Governor to act “directly or through officers” subordinate to him.

The provisions of Article 154 cannot be interpreted to mean that the State Cabinet rules only at the pleasure of the Governor and the Governor can any day withdraw that pleasure and take over the reins of the administration directly in his hands, sending the State Cabinet to cold storage. The Governor is the ceremonial head of the State and is the link between the Centre and the State. It is only when the government in the State “cannot be carried on in accordance with the provisions of the Constitution” and a stiuation has arisen when powers under Article 356 of the Constution have to be invoked, that is, when there is a constitutional breakdown in a State, that a Govenor can be a ruler.

IN the three and-a-half decades of the Left Front—that is, CPI-M—rule, especially between 2006 and 2011, the rule of law and the Constitution had broken down in West Bengal. The party in power resorted to mass murder of their political opponents and secretly disposed of their bodies either by dumping them into rivers or throwing them in the Bay of Bengal or buried them in dug-up pits. The discovery of human skulls and bones from a number of pits in East and West Medinipur districts (the identity of the persons have in some cases been conclusively determined by the DNA test of the bones) shows the extent to which the CPI-M went to liquidate its political opponents.

The CPI-M, which had sworn to uphold the Constitution, imported huge quantities of illicit arms and distributed them in the districts to build up private armouries. The party also raised a private army, known as the harmad vahini, and armed them with these weapons to let loose a reign of terror in the State. More often than not, the harmads acted in tandem with the official police. Reports and photographs appeared in newspapers showing lungi-clad men wearing chappals were firing on unarmed people along with the policemen.

The situation prevailing was ripe for an intervention by the Centre under Article 356 of the Constitution but the Centre did nothing. It preferred to remain a mute spectator of the trampling underfoot of the rule of law by the CPI-M. Once, only once, did Home Minister Chidambaram write to the then Chief Minister Buddhadeb Bhattacharjee, mentioning the harmad camps run by the party. Bhattacharjee flatly denied the existence of any harmad camps and asked Chidambaram not to make unfounded and irresponsible charges. Snubbed by him, Chidambaram completely withdrew into his shell.

The present Governor has expressed his great concern at incidents of roughing up of college principals. As he is the representative of the Centre, it can be safely assumed that his concern reflects the concern of the Centre. One feels tempted to ask where was this concern of the Centre when Dr Santosh Bhatacharyya, a renowned Left intellectual and a former CPI leader, was appointed Vice-Chancellor of the Calcutta University in 1984 by the then Governor, much against the wishes of Chief Minister Jyoti Basu.

From the very day he assumed office, Dr Bhattcharyya became the target of choicest abuse and insult of the students who belonged to the SFI—the student wing of the CPI-M. The harassment went on for day after day after day, making it impossible for him to function from his office in the University. Ultimately he was forced to function from his residence for the rest of his tenure. He has given a detailed account of what he was made to suffer by the CPI-M in his nearly 700-page book, Red Hammer Over Calcutta University. Neither the Centre nor the Governor had shown the least concern for him.

A section of the media which highlighted the atrocities and other undemocratic acts of the CPI-M and Left Front and was generally supportive of the movement for restoration of democracy conducted by the Trinamul Congress until the Assembly elections last year, made a 180 degree revolution and started a campaign against the TMC and its leader Mamata Banerjee. Some of them believe that it makes good circulation sense to be critical of the party in power—whichever party it is and whatever its programme and performance.

Others are disillusioned that Mamata is opposing—and has recently announced she would continue to oppose—all the ‘anti-people policies’ of the Centre, that is, policy decisions taken in pursuance of its neo-liberal policy. She has opposed the price hike of petrol, diesel and cooking gas; she has opposed the hike in coal prices; she has opposed FDI in retail trade; she has opposed investing the pension fund in stock market; she has opposed encroachment of the powers of the State as was sought to be done under the Lokpal Bill which empowered the Centre to appoint Lokayuktas in States; and she has opposed the Teesta Waters Treaty with Bangldesh because it went against the interests of the State by giving more water than earlier agreed on.

After the devastating fire in the AMRI Hospital last November in which ninetythree persons, mostly patients, were burnt or suffocated to death, she ordered the police to arrest all Directors which the police did. Most of these wealthy businessmen have been under police or jail custody since then. A campaign was started that it would affect the good relations between West Bengal and Rajasthan (most of the Directors belong to the Marwari community) and that it would dissuade prospective investors.

Very recently, the police arrested the 92-year old Dr Moni Chhetri who was the Managing Director of the hospital. Dr Chhetri is a renowned physician of the city who was very close to Jyoti Basu and other CPI-M leaders. His arrest has angered a sizable section of the medical community who are up against the State Government. As part of an orchestrated attempt to drum up support for Dr Chhetri, the Gorkha Jan Mukti Morcha met Mamata in a deputation and urged her to let off Dr Chhetri. Mamata has explained that Dr Chhetri was not arrested as a doctor but because of his role in the running of the hospital as the MD. Who incited the GJM to rake up suddenly the ethnic identity of Dr Chhetri and politicise it can only be imagined.

But the campaign against her and her government goes on. Quite often it is found that the CPI-M and the Congress, itself a constituent of the alliance government, are speaking in the same voice against Mamata. The air is abuzz with the rumour that if the Samajwadi Party gets more seats than the BJP in the UP elections, the Congress will support it to form a Ministry in the State and in return the flock of SP MPs will support the UPA Government at the Centre. The Congress will then be able to shake off the TMC whose parliamentary support would no longer be necessary. Either way, the UP elections may have an impact on the uneasy alliance of the Congress and the CPI-M at the Centre and in the State.

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