How Not To Regulate A Governor

Advice from Ram Jethmalani (sent from the deck of a cruise liner) may have prevented the central government from imposing President's rule in Tamil Nadu but it couldn't stop the forced resignation of governor Fathima Beevi. That was an outcome of what was being seen as a knee-jerk reaction to J. Jayalalitha's high-voltage offensive against her predecessor and nda partner, dmk chief M. Karunanidhi.

Few among the legal community hold a brief for the former Supreme Court justice but they agree that the grounds cited for her removal are flimsy. Law minister Arun Jaitley charged her with not having done her job, which was to keep the Union government informed of the internal disturbances in the state through a confidential and independent assessment. When specifically asked for one—apart from the usual fortnightly reports—she forwarded that of the state government. Thus, she behaved more like an agent of the ruling party than a representative of the Union government, says constitutional expert Subhash C. Kashyap.

In her defence, Supreme Court lawyer Shanti Bhushan observes: "The only fact-gathering machinery available to the governor and that too at short notice was that of the state government. If the state officials were coopted, what could she do?" A more proactive governor would have kept his/her eyes and ears open and gathered information from other sources—after all, a governor meets a large number of people daily, says lawyer Rajeev Dhawan. "You might say she was incompetent but if you sack people on those grounds, the cabinet would be full of vacancies," he adds. Moreover, the Centre's publicising the contents of what was meant to be a confidential report in order to justify her ouster was hardly appropriate, as the Congress' conference of former governors pointed out.

So while the President's "withdrawal of pleasure" from the Tamil Nadu governor is legally valid, he must be satisfied that she has violated her charter. That's hard to establish; after all, Article 163 clearly says the governor's discretion can't be questioned. And if her decision to swear in a convicted Jayalalitha did not prompt a response, then her failure to furnish information hardly does so.

Beevi didn't waste time swearing Jayalalitha in, although constitutional experts had pointed out that this was a bad legal move. Jayalalitha simply wasn't—on whatever grounds—qualified to contest an election. Beevi could have referred the matter to the President, who would then have consulted the Supreme Court.

Jayalalitha may be in the saddle and wielding the stick thanks to Beevi but that is no justification for making the governor a scapegoat of the Centre's ire against the Tamil Nadu CM.