An attempt to wield special power by the governor could mean clipping the powers of the popularly elected government
The letter written by the governor of Nagaland, RN Ravi, on June 16 to the chief minister of Nagaland explaining reasons as to why he proposed to invoke special powers as specified under Article 371A (1, b) has gained currency in public debate on two main counts. One is on whether the governor’s actions are justified, and, two, on the collapse of law and order in the state. Let’s discuss this one by one.
Is the governor’s action justified?
The answer to this question primarily depends on the second question as to whether there is a collapse of law and order in the state. But as politics and governance is a complex subject, and since nothing is certain in politics, it gives the writer the benefit of doubt to assume that the governor’s action could be due to an advice from the Centre. This does not mean that the governor cannot invoke such special powers by himself. Many governors have come and gone, but certainly, the incumbent is exceptional in his own right.
However, unlike the President who is elected by the people’s representatives, governors in India are directly appointed by the president ‘on the advice’ of the Union council of ministers. Contrary to its connotation, the phrase ‘on the advice’ is not passive. This means the governors are directly appointed by the Union government, and therefore, acts as the representative and agent of the Union government.
There are instances in the past where the office of the governor has become a hotbed of political conflict and confusions. Power tussles among different political parties often take place under the watchful nose of the governor. Elected governments have been formed or dissolved lawfully or otherwise by the governor, often at the behest of the Union government. However, irrespective of whether the governor acts for or against the interest of the state, the state government cannot literally do anything by its own, except to complain to the President. Under Article 361, the symbolic head of the state enjoys special immunity and are not answerable to any court of law nor criminal proceedings could be initiated against them.
However, in parliamentary democracy, unless stated otherwise, the real power vests with the government headed by the prime minister or the chief minister, because of the fact that the government draws its power directly from the people. This is the basic foundation upon which sovereign and democratic India came into being. Therefore, assuming special powers by the titular head of the state could also result in “the tyranny of the unelected” as late Union minister Arun Jaitley once remarked.
Whether it is by an advice from the Centre or an independent decision of the governor, the timing cannot be overlooked. Looking from the aspect of Naga peace talks, the governor’s decision also signals two outcomes, the logical conclusion or its collapse. In any of the outcomes, the governor assuming special powers makes total sense. With over two decades of political negotiations officially having ended on October 31, 2019, Nagas are, however, anxious for a positive outcome. Therefore, if governor’s assuming special power is to consolidate his position, post solution, we hope it is for the good cause.
However, if we observe the governor’s intentions from the context of Article 371A, one is made to understand that Article 371A (1, b) has become redundant in as much as Article 371A (1, d) and 371A (2) relating to the administration of the erstwhile Tuensang district has also become redundant and obsolete after the abolishment of the Tuensang regional council. The insertion of Article 371A in the Constitution of India is more or less a replication of the 16-point agreement signed between the Naga people’s convention and the government of India on July 1960. In the 16 point agreement, point 3 (3), it reads: “The Governor shall have special responsibility with regard to law and order during the transitional period and for so long as the law and order situation continues to remain disturbed on account of hostile activities. In exercising this special responsibility, the governor shall, after consulting with the Ministry, act in his individual judgement. This special responsibility of the Governor will cease when normalcy returns.”
If we read the above paragraph carefully, the special powers conferred upon the governor is meant during the transitional period. Special powers during the transitional period was necessitated because of the possible threat from the NNC who were not part of the agreement. And the last sentence categorically mentioned that these special powers “will cease when normalcy returns.” Even though this last sentence was not expressly mentioned in Article 371A(1-b), the phrase “immediately before the formation of that State” implies the transitional period.
The collapse of law and order
This is trickier than it sounds, because the “collapse of law and order” is not clearly defined and people may interpret it in different manner. Nevertheless, the issues that our hon’ble governor have raised including the prevalence of illegal taxation, extortions, kidnapping, encroachment of public land and properties, operation of illicit trade syndicates, etc, are all true and are happening as I pen down this article. The multiplicity of factions is largely responsible for this organized crime in the state. However, it is for this very reason that Naga people longed for peace and solution. Therefore, resolution of the Naga political issue is critical for numerous reasons.
Experiences have shown the inability of the state machinery to prevent and control such crimes effectively. Military offensive could not yield the desired outcome as well. Rather, a public movement initiated by Against Corruption and Unabated Taxation (ACAUT) in the past has reduced illegal taxation activities in the state in a manner that is more significant than the combined efforts of the state and union government. Therefore, it is also not certain as to whether law and order situation in the state will be restored once the governor assumes this special power.
The law and order situation in the state certainly needs improvement. However, the question is, does it warrant invoking special power by the governor? In many ways, Nagaland is peaceful and safer than some Indian states. Delhi has been tagged as the ‘rape capital’ by a national politician; does it mean a collapse of law and order? People get killed for transporting cows or eating beef, migrant labors die of hunger and exhaustion, is it not an indication of the breakdown of law and order? To someone belonging to a minority group, not being able to profess their religion freely and openly is a law and order problem, so is racial discrimination. The fact that India has been ranked at the 80th position among 180 countries in the global Corruption Perception Index (CPI) 2020, shows that much has to be done to enforce the rule of law and provide transparent governance across the country.
Earlier, through the 16-point agreement, the state of Nagaland was placed uniquely under the ministry of external affairs of the government of India, but later it was reverted to the home ministry. The agreement was thus dishonored. It may well be within the powers of the governor to invoke the special clause of the Article 371A; but in comparison to the past, the law and order situation has improved tremendously, especially after the signing of the ceasefire agreement of 1997.
Therefore, under the above circumstances, an attempt to wield special power by the governor could mean clipping the powers of the popularly elected government. This does not augur well for the parliamentary democracy nor for the state. There shouldn’t be any confusion as to who controls the affairs of the state, or else chaos and confusion may follow.
(Dr N Janbemo Humtsoe is an educator, researcher and an analyst. Opinions expressed are personal. He can be reached at email@example.com)