The Rediff Special /President Shankar Dayal Sharma

'We should show the world we are capable of tackling any crisis'

The President's inaugural address at the governors conference is deeply relevant in this era of coalitions and hung assemblies. Which is why we have reproduced it here for your reading pleasure.

The last conference of governors was held between December 28-29, 1995. The intervening period has not been uneventful. Among other things, general elections to the Lok Sabha were held in April-May, 1996. Thereafter, there were four changes of government at the Centre.

Elections were also held to the assemblies of Assam, Haryana, Kerala, Tamil Nadu and West Bengal, and the Union territory of Pondicherry. Later, in 1996, there were elections to the assemblies of Jammu and Kashmir and Uttar Pradesh. The restoration of popular government in the state of Jammu and Kashmir was a major achievement.

We were unfortunate in losing M Channa Reddy, who died in office as governor of Tamil Nadu in December 1996. Dr Reddy had served the nation with devotion and distinction. We place on record our gratitude in respect of his valuable contributions during the freedom struggle and in diverse spheres of national reconstruction.

Krishna Pal Singh was appointed as governor of Gujarat, Chaudhary Randhir Singh as governor of Sikkim and O P Sharma as governor of Nagaland.

Justice S Fathima Beevi, formerly a judge of the Supreme Court of India, was appointed governor of Tamil Nadu and Justice S S Kang, formerly chief justice of Jammu and Kashmir high court, was appointed governor of Kerala. Their experience of and insights into the working of the Constitution and the laws comprise valuable assets.

I P Gupta was appointed lieutenant governor of the Andaman and Nicobar islands and Tejendra Khanna lieutenant governor of Delhi.

All of them are participating in a conference of governors for the first time. I wish them every success in the service of the people.

The last conference felt that a committee of governors may be constituted on ''role of the governor as chancellor''. I am glad the committee has completed its work and has prepared its report. The report would be circulated to the governors and lieutenant governors. The report would also be forwarded to the ministry concerned.

The present conference has certain special features. The focus of the conference is: ''The role of the constitutional head, when, following an election, no party or combination of parties appears to have secured a majority.'' This is a subject directly within the purview of the governors and involving their individual judgment.

The subject has assumed increasing importance. The outcome of the elections to the eleventh Lok Sabha and the Uttar Pradesh state assembly in 1996 has led to conjectures that hung assemblies and even Lok Sabhas could be a recurrent feature in India's political life.

This has a bearing on the image of our country. We have to bestir ourselves to prove that there are institutions and systems which can efficiently and confidently deal with the phenomenon of hung legislatures.

It follows that there is a corresponding need to promote wholesome, comprehensive, constructive and meaningful examination of the subject -- by governors of states as well as by leaders of political parties. Deliberations with these qualitative characteristics comprise the democratic approach towards issues of public importance.

Indeed, if I may say so, more than 25 centuries ago, referring to the Vajjis, the Buddha himself commended such an approach as essential to the well being of democratic republican communities. The Buddha had said: ''So long, of Ananda, that the Vajjis hold full and frequent assemblies amongst themselves and full and frequent discussions, so long may the Vajjis be expected to prosper and not to decline.''

The fact that the subject is debatable and one on which diverse views have been expressed or could be expressed makes its examination all the more useful and necessary. Some complexities cannot simply be wished away, or left unattended and neglected.

Procrastination or drift creates scope for uncertainty, confusion, controversy and acrimony. A judicious outlook, one based on experience, vision and pragmatism, is needed. We must face up to reality squarely, and be practical and purposeful. The whole effort should be towards enhancing awareness and understanding of the subject. We should make a frank appraisal of the constraints and complexities involved, and the relative merits of alternative methods of dealing with different situations as this could ensure smooth and correct working of our Constitution in the most difficult of scenarios.

Considering the political situation in India, this conference should signify the capability and determination of higher leadership to manage effectively any problem, however intractable it may seem. This will be in keeping with our country's prestige as an advanced parliamentary democracy.

Ascertaining the views of leaders of political parties would enable a more comprehensive perception of various dimensions of the theme of the conference. This is essential having regard to the key role that the constitutional head is required to perform in the given context. All considered, the constitutional head must come forth as a custodian of the Constitution, a source of confidence and assurance for the people -- and even more so in periods of tension and crisis.

If the conference promotes the identification of any principles, norms or procedures that should be kept in view by constitutional heads and by political parties, a major gain would have been secured.

It will of course be pertinent to bear in mind that situations differ, and differ in significant respects. Even in similar situations there could be important differences. It would be desirable, therefore, to be mindful of the position and responsibilities of the constitutional head.

The observations of the Supreme Court, in the Hargovind v Raghukul Tilak case regarding the office of the governor, are specially noteworthy. In the unanimous judgment by a five-member Constitution bench, the Supreme Court had ruled:

(I quote) ''It is impossible to hold that the governor is under the control of the Government of India. His 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. His is an independent constitutional office which is not subject to the control of the Government of India.''

In my view, the constitutional head should function with due impartiality, independence, constitutional propriety and transparency.

On the theme of our conference, there are several leading cases. Judicial pronouncements from time to time have elucidated a number of aspects. Reference may also be made to the commission on Centre-state relations constituted in June 1983 under the chairmanship of R S Sarkaria, formerly a judge of the Supreme Court.

The Sarkaria Commission's report, submitted in October 1987, contains a close study of a number of noteworthy features. At the end of chapter IV of its report, the commission had recommended: ''If there is a single party having an absolute majority in the assembly, the leader of the party should automatically be asked to become the chief minister.

''If there is no such party, the government should select a chief minister from among the following parties or groups of parties by sounding them, in turn, in the order of preference indicated below: (i) an alliance of parties that was formed prior to the elections; (ii) the largest single party staking a claim to form the government with the support of others, including independents; (iii) a post-electoral coalition of parties, with all the partners in the coalition joining government; (iv) a post-electoral alliance of parties, with some of the parties in the alliance forming a government and the remaining parties, including 'independents,' supporting the government from outside.''

These and other recommendations appear to merit careful scrutiny. Almost 10 years after the report became available, I am told that a subcommittee of the standing committee of the Inter-State Council has now considered the recommendations and that further examination is underway.

The role of the governor was earlier studied by a committee of governors constituted by then president V V Giri, after a decision in the conference of governors in November 1970.

The report of that committee, submitted to the President and placed before the conference of governors in November 1971, is a very readable document. However, the report could not be made public nor could the political parties be consulted for their views.

Besides furnishing insights and recommendations on the role of the governors, the committee had underlined the importance of developing conventions in a parliamentary system. ''In the purposeful evolution of conventions in a parliamentary system, the political parties, as much as the governors, have a primary responsibility,'' it said.

With this background, some questions arise that appear worth giving thought to:

(i) Should the leader of the government that has failed to secure a majority in a general election be obliged to tender his resignation and that of the members of his council of ministers, and if so, when: immediately after the election results become apparent, or on the new house being notified as constituted, or only on an indication from the constitutional head?

(ii) On the composition of the new House being clear, should the constitutional head wait for the leader of some party or combination of parties to approach him with a claim to form a government? If so, how long should he wait for such an initiative? In the interim period, should any restrictions or restraints be observed by the care-taker government?

(iii) Should the constitutional head himself take the initiative towards consulting political parties on their being in a position to form a government? If so, what may be the criteria that qualifies a political party for an invitation to form a government?

(iv) Should a leader so invited to form a government be asked to seek a vote of confidence in the relevant House? If so, should a period be stipulated for doing so?

(v) Till it wins the confidence vote, should the government be obliged to observe any restrictions or restraints?

(vi) Article 176 (1) of the Constitution reads as follows: ''At the commencement of the first session after each general election to the legislative assembly and at the commencement of the first session of each year, the governor shall address the legislative assembly or, in the case of a state having a legislative council, both Houses assembled together and inform the legislature of the causes of its summons.''

In the ordinary course, an address represents the policies and programmes of the council of ministers and invites the attention and consideration of the legislature in this respect. However, it is argued that the circumstances are materially different when a government is asked first to seek a vote of confidence.

In such a situation the question arises whether the address under the above article should not focus exclusively on the true cause of the summoning of the legislature, that is, to enable the assembly to determine whether it has confidence in the council of ministers. If the council of ministers succeeds in securing a vote of confidence, it remains open to them to advise the governor to make an address under article 175 (1) of the Constitution.

Alternatively, if the council of ministers fails to secure a vote of confidence and if another council of ministers is installed in its place, the successor council of ministers retains the option of advising the governor to address the legislature under Article 175 (1) of the Constitution. All considered, would the foregoing approach not be desirable?

(vii) When a government is formed on the basis of support from more than one party, and support to the government is indicated to have been withdrawn by one or more of the parties, it being evident that the viability of the government may have been materially impaired, should the constitutional head:

(a) Take no immediate cognisance of the withdrawal of support, leaving it for the party or parties concerned to move a motion of no-confidence in due course, or

(b) Ask that the council of ministers to seek a vote of confidence from the relevant House?

(viii) A particular configuration of political parties forms a government, and then, following the withdrawal of support by one or more of its supporting parties, that government suffers a defeat in the relevant House. But later the same configuration of political parties re-forms and there is no other alternative government possible. It being evident that the re-formed configuration enjoys a majority, what are the factors that need to be kept in view for an appropriate decision in the matter?

(ix) What steps may be taken to ensure that the Constitutional head functions as an impartial and independent authority?

It is of course noteworthy that although the position of the governor in a state is mutatis mutandis with that of the President of the republic, there are some important differences. These include: (i) there is no provision for imposition of President's rule at the federal level -- that option simply does not arise; and (ii) a decision to have general elections to the Lok Sabha has incomparably complex ramifications.

General elections to the Lok Sabha involve every state and Union territory, entailing colossal public expenditure. They compel a nation-wide shift in the focus and priorities of governmental activity for appreciable period and involve management of elaborate internal security logistics.

A decision to have elections to the Lok Sabha also involves assessments regarding international relations and the general security environment with special reference to aspects of national security.

During our deliberations we should keep before us the perspective of almost five decades of the working of the Constitution. We should have a clear vision of the manner in which the mechanisms and process of our parliamentary democracy would need to function and develop to be fully in tune with the essential principles of the parliamentary form of governance in our federal republic in the decades ahead.

Some words of our first President Dr Rajendra Prasad, in his address on the concluding day of the proceedings of the Constituent Assembly on November 25, 1949, come to my mind: ''We have prepared a democratic constitution, but successful working of democratic institutions requires... willingness to respect the viewpoints of others, capacity for compromise and accommodation. Many things which cannot be written in a constitution are done by conventions. Let me hope that we shall show these capacities and develop those conventions.''

Let us keep a clear and steady focus on the purpose and object of our conference. The overall goal is to safeguard and ensure the smooth working of the Constitution even in the most difficult of situations. I see this conference as part of a process, an ongoing process, which all of us can, and should, take forward.

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