359 Stat. Res. re. approval Proclamation hi relation

[Sh. Lal. K. Advani]

unconstitutionally. He had no option whatsover that a duly elected Government which had not lost its majority in the Assembly It advised him dissolution. The grounds that he had given, you yourself endorsed.

THE MINISTER OF STATE OF THE MINISTRY OF STEEL(SHRI SONTOSH MOHAN DEV): The Chief Minister should give the advice after a Cabinet decision, not by himself.

SHRI LAL. K. ADVANI: It is a question of fact. I do not know. I have with me a letter addressed by the Chief Minister of Nagaland to the Governor Dr.M.M. Thomas. I quote this letter:

"You are aware that due to frequent defection of Members of the Legislative Assembly, there have been several changes of Ministry.

I am now running the third Ministry within a span of three years.

It is still found that there is no stability in the minds of Members. The Cabinet has therefore come to the conclusion that the Assembly be dissolved and a care-taker Governement be allowed till such time as the fresh mandate of the people Is -called for.

I therefore recommend dissolution of the House and a care-taker Government be invited till a fresh mandate of the people is called for."

I have nothing else to rely upon except this particular letter which says that the Cabinet has decided.

SHRI SONTOSH MOHAN DEV: You should have quoted the subsequent statement followed within 24 hours by six Ministers saying that there was no Cabinet meeting. Kindly apprise the house of the actual facts.

to Nagaland 360

SHRI LAL K. ADVANI: I am fully aware of the kind of politics that goes on there. (Interruptions)

SHRI SONTOSH MOHAN DEV: We are also from the North Eastern State.

You have said one thing that the alienation of the North East is by Delhi. it is a very sweeping statement from a leader of your status.

This sort of statement is instigating the insurgency by certain political parties who do not have any footing in the North East.

(Interruptions) I is a dangerous statement. (Interruptions) There was another statement by a BJP leader, Shri Jaswant Singh who said that Ali, Kuli and Bengali are there in the North East. They have to pay a price for it. This sort of statement should not be made in the Parliament. (Interruptions) we have not said that at all.

(Interruptions) Please do not make this sort of statements. You people are playing politics and not the Central Government (Interruptions) You are putting the North East into trouble by making this sort of statements on the floor of the House by a person of his status . (Interruptions) I have got a right to say it. (Interruptions) As a person from the North East, we also feel hurt to hear this.

(Interruptions)

AN HON. MEMBER: What the Leader of the Opposition has said is true that the Centre is alienating the North East. (Interruptions) SHRI JASWANT SING (Chiittorgarh): Mr. Speaker, Sir, ordinarily I would not have intervened at all. In my colleage, the Leader of the Opposition, I have full confidence and perfectly he will be able to handle it. But, the hon. Minister of Steel and my old friend has gone into a paroxyam of stimulated anger and he is pretendling a groat deal of outrage. (Interruptions)

MR. SPEAKER: What is stimulated in it. It may be real.

361 Stat Res. re. approval Proclamation in relation

(Interruptions)

SHRI JASWANI SINGH: Sir, two suggetions have been made by him.

Averments are made on account of what we have said or say here that these might cause alienation in the North East. It is not what we say or do that has caused aliention; alienation in the North East is a direct consequence of forty years of Congress misrule. (Interruptions) then, what he said is correct. I said in this very House and I quote; "A former President of the Congress party, Shri Devakant Baruah, said, 'What do I need votes in Assam for, when I have got Ali, Kuli and Bengali in my pocket?'.

That is the quote of the former President of the Congress party,which my good friend is perfectly entitled to misquote and misuse in the Cachar Valley (Interruptions)

MR. SPEAKER: But, Shri Baruah is not here to defend himself.

(Interruptions)

SHRI SONTOSH MOHAN DEV: Sir, I have got a copy of his speech which I have circulated in my area. For his correction, tonight, I will send a copy of his speech to him where he has never mentioned about it. I have full belief in Shri Jaswant singh. He is a good orator, but he should not try to do this. (Interruptions)

MR. SPEAKER: That is all right Shri Advani may please continue.

(Interruptions)

SHRI LAL K. ADVANI: Mr. Speaker, Sir, As the Home Minister has himself conceded that under Article 174 (2), a Governor, of course, cannot act in his

to Nagaland 362

discretion in so far as the dissolution of the Assembly is concerned.

But if he is advised by the Council of Ministers to dissolve the assembly, he has to do it. He has no option but to do it unless, as Sarkaria has said, the advice is patently unconstitutional.

He says:

It is a well recognised principle that so long as the Council of Ministers enjoys the confidence of the Assembly, his advice in these matters, namely, in the matter of dissolution, unless patently unconstitutional, must be deemed as binding on the governor.

Of course, Sarkaria mentions that one of the State Governments has represented to the Sarkaria Commission about article 174 (2) that there must be an addition made to it to make this very clear that the advice of the Council of Ministers shall be binding.

SHRI PAWAN KUMAR BANSAL(Chandigarh): Council of Ministers

never met.

[Translation]

SHRI LAL K. ADVANI: Should I believe you or the letter which I have got from the former Chief Minister, this is my difficulty: SHRI PAWAN KUMAR BANSAL: Since you are saying all this, you find it out yourself.

SHRI I AL K. ADVANI: Some people keep de**** there everyday, it is not my tendency, to believe them.

SHRI PAWAN KUMAR BANSAL: You should ascertain the entire fact first and then speak.

MR. SPEAKER: All right, sit down please.

363 Stat. Res. re. approval Proclamation in relation

SHRI LAL K. ADVANI: Let this be said by the Home Minister. I do n to know. Let him enlighten the House. I have with me a letter from the Chief Minister. Therefore, I have mentioned it.

Even the other day, when Mr. Jacob addressed the House or Mr.

Chavan addressed the other House and spoke on this subject, it was it was cler that the Government of India expected that the governor would consult them before dissolution. This has been the invariable practice till now of all governors.

SHRI S.B. CHAVAN:This is not correct. We never expected this.

SHRI LAL K. ADVANI: Very good.

SHRI M.M. JACOB: In fact, when I spoke in this House, I

categorically made it very clear that we were not concerned about that aspect at all that Governor did not consult us. It was not the question at all before us at that time. (interruptions)

SHRI RAM NAIK (Bombay North): the facts are coming out of the bag now.

MR. SPEAKER; All of us were here in the House.

SHRI LAL. K. ADVANI: K the anger is not because of non-

consultation, then I fail to understand why an action of the Governor, which is perfectly constitutional has caused umbrage here. Why has it annoyed the Central Government and annoyed to such an extent as first to impose President's rule and then to dismiss the Governor also.

SHRI PAWAN KUMAR BANSAL: It is a different matter.

SHRI LAL K. ADVANI: K that was a different matter, it should have been taken

364 to Nagaland

care of earlier. All kinds of charge are being traded here. In the Press also, allegations are being made. I think, it is highly unfair on the part of the Government to make those charge after development of this kind has taken place.

I hold no brief on behalf of Dr, Thomas. I have not seen him. I have not ****. I do not know him. Mr.George Fernades would be knowing him fully personally. I do know this thing that the Government of India was not angry with the Governor before March 27. The anger of the Government of India has followed the Governor's decision to dissolve the Assembly on the advice of the Council of Ministers according to the Constitution. So, I am sure, you will appreciate that at least in this matter, I can be more objective than some of my colleague.

SHRI S.B. CHAVAN: I hope that you will be objective.

SHRI LAL. K. ADVANI: I am objective. I go only by the record whatever has appeared.

SHRI S.B. CHAVAN: You are briefed (interruptions)

SHRI LAL K. ADVANI: I am not briefed. by any one by anyone. You explain to me what are the circumstances which can be described as the Constitution has broken down in Nagaland. After all, very specific cases are there.

SHRI PAWAN KUMAR BANSAL: After article 174 (2) (b), what is left?

SHRI LAL K. ADVANI: That is the problem

SHRI PAWAN KUMAR BANSAL: After that it was to be done

(interruptions)

365 Stat. Res. re. approval Proclamation in relation

[English]

MR. SPEAKER: Not like this.

SHRI LAL K. ADVANI; After all, the utmost step that can be taken even after article 356 is invoked Is an appeal to the electorate, an appeal to the people.

And this had already been done.All that you have done, by imposing Article 356 is to short-circuit the process of appeal to the electorate and nothing else. What are you going to achieve? As I can see, the practical consequences are that you have dismissed the caretaker government and secondly you want to hold elections at the timing of your own choosing. You do not have the scope for doing what you have done in Manipur, that is, to Install a Congress Government, or anything of that kind. I am really amazed that for a purely partisan and very petty purpose, you have done all this. This is an enormity. This is a great offence that you have committed for a petty gain. Otherwise, elections have already been ordered by the Governor immediately. If the elections are held and you have won, K would have been fine. But you preferred to act in a partisan manner and therefore,, invited the condemnation of the whole country. Now in the entire country, almost every newspaper with very few exceptions, has condemned this action.

SHRI SONTOSH MOHAN DEV: K the sane situation arises in Madhya Pradesh, Uttar Pradesh or even inn West. Bengal, where the Chief Minster recommends the dissolution of the Assembly without consulting the Cabinet and if the Governor accepts the same, will you hold the same opinion as you are holding now? (Interruptions)

SHRI SAIFUDDIN CHOUDHURY (Katwar): You cannot put hypothetical questions.Even then,we say it should be as per the Constitution only and nothing else.

SHRI LAL. K. ADVANI: The right

366 to Nagaland

hon.Minister of Steel has asked me a question. I would tell him that my Chief Ministers will never do anything of this kind...

(interruptions)

SHRI SONTOSH MOHAN DEV: Who knows? With Ms.Uma Bharathi's

episode, anything can happen... (interruptions)

SHRI LAL K. ADVANI: It is only a Prime Minister of Congress Party who can even invoke Article 352 and promulgate emergency without consulting the cabinet.

SHRI SONTHOSH MOHAN DEV: That is no answer.

SHRI LAL. K. ADVANI: In this case, on this particular issue, I have nothing to go upon except the letter of the Chief Minister to find out whether the cabinet was consulted or not. And I am not willing to accept your word for it. Let the Home Minister say something about it.

I am aware that the Governor has various roles and not a single role. But essentially, in problems of this kind, to came to a decision as to how much he is obliged to the Constitution, how much is his duty to the Constitution and how much is his duty to act as a link between the Centre and the State, I think what the Supreme Court has laid down in the case of Hergovind Pant versus Dr.Raghukul Tilak in 1979 should be regarded as the last word and the Government should accept K. In this the Supreme Court very wisely said:

" It is no doubt true that the Governor is appointed by the President, which means in effect and substance the Government of India. But that is only a made of appointment and it is not make the Governor an employee or servant of the Government of India.. This is how the Government of India tends to view it. Every person appointed by the President is not necessarily an employee of the Government of India. So also, it does not material that the Governor holds office during the pleasure of the

367 Stat. Res. re. approval Proclamation in relation

[Sh. Lai K. Advani]

President, It is a constitutional provision for determination of the term of the office of the Governor and it does not make the Government of India an employer of the Governor.

His office is not subordinate or subserivent to the Government of India. He is not amenable to the directions of the Government of India and nor is he accountable to them for the manner in which he caries his functions and duties. He is an important and independent constitutional office which is not subject to the control of the Government of India." SHRI A. CHARLES(Trivandrum):What was the ruling given by the National Front Government?

SHRI E. AHEMAD (Manjerl): The National Front Government,when they were in power mere, with the support of BJP changed the Governor and then Advani ji supported that Government.

SHRI LAL. K. ADVANI: I have my own opinion about that also. But the question is not that. Today the question is not where the Governor has resigned, but it is the question where the Governor has been dismissed. In all those cases the Governors had tendered there resignations. Someone can say that they were pressurised to resign but in this particular case he has been remove from Office and removal from Office is a very extraordinary matter. I do not know whether he was given....

[Translation)

SHRI SAIFUDDIN CHOUDHURY It was announced in Hindi on Radio 'Abrahim sabe', if no longer, what was it them. (Interruptions) SHRI LAL. K. ADVANI: Dr.. Thomas is no longer

SHRI SAIFUDIN CHOUDHURY: No

368 to Nagaland

longer a Governor of Nagaland. (Interruptions)

[English]

SHRI LAL. K. ADVANI: The Home Minister might be aware that In the draft Constitution there was a provision even for impeachment of the Governor.Subsequently it was dropped and it was dropped on the ground that there will be a instrument of direction subsequently added and,therefore Impeachment provision is not necessary. But after this experience I feel that some provision has to be made or at least some decisions have to be taken and which should be adhered to, Now, the kind of campaign that has been going on round about the Governor is, was he given notice of it that these are the allegations against him; was he given an opportunity to explain his position. This is a demand of natural justice.

The Sarkaria Commission also felt that one of the important factors which will contribute to the independence of the Governors would be fixity of tenure. When he is appointed for five years he should know that he is expected to indicate the continuance of Government. Chief Minister any come and go but he will continue for five years and that would make him responsible for the Constitution as a whole. Therefore, if there are any special circumstances in which the tenure of the Governor has to be terminated the Sarkaria Commission says:

"Whenever it is proposed to terminate the tenure of a Governor before the expiry of the normal term of five years he should be informally apprised of the grounds of the proposed action and afforded a reasonable opportunity for showing *** against it. It is desirable that the President, which in fact means the Union Council of Ministers, should get the explanation if any submitted by the Governor against this proposed removal from Office examined by an Advisory Group consisting of the Vice President of India, the, Speaker of Lok Sabha and

369 Stat. Res. re. approval Proclamation in relation

a retired Chief Justice of India. After receiving the recommendation of this group the President may pass such orders in the case as he may deem fit.

This is the extent to which the Sarkaria Commission wanted the Government to go in order to ensure that there is no arbitrary dismissal of any Governor. But that has taken place now. That is at least what I know. I have nothing else to go upon.These are the recommendations made in the context of ensuring that the Institution of Governor really functions in accordance with the conception of the Constitution makers in order to ensure that Centre state relations are on an even keel.

SHRI SONTOSH MOHAN DEV: The Sarkaria Commission report was made in the year 1987 and you supported the NF Government in 1989-90.

[Translation]

SHRI LAL. K. ADVANI: If the Government was wrong, the Sarkaria Commission was appointed by no other authority than the Government issued.

SHRI PAWN KUMAR BANSAL (Chandigarh): Shri V.P. Singh with your support forced 9 Governors to resign.

SHRI LAL. K. ADVANI: I know that but no one was dismissed.

THE MINISTER OF STATE OF THE MINISTRY OF COMMERCE (SHRI P.

CHIDAMBARAM): All that we are saying is that Supreme Court judgment in Raghulal Tiilak's case and the Sarkaria commission Report, you conveniently did not remember them or read them when Shri V.P. Singh's Government got rid of Governors.

SHRI LAL K. ADVANI: It was not a dismissal at that time. This is the only dismissal.

SHRI P. CHIDAMBARAM: Mr. Mufti Mohammed Sayeed proclaimed a new 370 To Nagaland

doctrine that It was the right of the Central Government two remove Governors. It was a forced resignation, The record says that it is the right of the Government to remove Governors. So, please do not go by what appears on the surface. Because, the Governors were forced to resign. So, it was really a dismissal.


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