Tathagata Roy has violated Constitutional principles

The Kashmir Monitor

By Sruthisagar Yamunan

Meghalaya Governor Tathagata Roy on Tuesday created a controversy by supporting the call for economic boycott of Kashmir and Kashmiris. Speaking to Indian Express after his comments on social media attracted wide criticism, Roy said new methods had to be tried to counter insurgency in Kashmir. “It is non-violent way of reacting to what has been going on for the last two-three decades,” he said.

Roy’s comments were a response to the Jaish-e-Mohammad attack in Pulwama on February 14 in which over 40 personnel of the Central Reserve Police Forces were killed.
While the Opposition, including former chief ministers of Jammu and Kashmir Omar Abdullah and Mehbooba Mufti, termed the statement as deplorable, there has not been any response from the Bharatiya Janata Party or the Centre.

Roy’s comments are not only in the nature inciting people against Kashmiris, but it also a blatant violation of constitutional principles he, as governor, is obligated to uphold. This comment falls within the ambit of the legal principle of “compelling reasons” to initiate action against Roy.

The office of the governor occupies an important position in the federal structure of India. He is the representative of the Centre in the states and holds office at the pleasure of the president. To be more precise, the office of the governor is a link between the Centre and the states and is expected to act as a glue holding together the union of states.

The office of the governor holds a high place in the constitutional scheme. While he is appointed by the president on the advice of the Centre, the governor as a constitutional authority is not totally subordinate or subservient to the central government. The Constitution expects him to function in its spirit and this, at times, would mean not agreeing to the dictates of the Centre.

Among the most important parts of the Constitution is the Preamble, which gives us succinctly the very nature and objective of the Constitution itself. The Preamble reads thus:

“WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens
JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation.

As is evident from the text, the promise of equality and fraternity is central to the very idea of a liberal Constitution like India’s. As BR Ambedkar noted in the Constituent Assembly, the Preamble is an articulation of a way of life. The principle of justice, liberty, equality and fraternity are interconnected and one cannot survive without the other. These are the basic principles on which the rest of the Constitution is constructed.

Given the central position of the principles elaborated in the Preamble, Meghalaya Governor Tathagata Roy’s endorsement of a demand for boycotting Kashmir and Kashmiris is an outrageous violation of these principles that underpin the morality of the Constitution itself.

The principle of equality includes several facets, including economic. For the rest of the country to boycott Kashmiris economically is a violation of the equality clause. Roy’s comments also have a profound implication for the principle of fraternity as a boycott would both affect the dignity of the individual by denying them economic equality and endanger the integrity of the nation by alienating the people of state.

Given that the principles in the Preamble are seen as interconnected, lack of equality and fraternity would be in the manner of denying Kashmiris justice and liberty as well, thereby affecting their very status as citizens of India.

Article 159 of the Constitution provides the format of the oath every governor is supposed to take before assuming office. The oath reads thus:

“ [I] swear in the name of God I, A B, do that I solemnly affirm will faithfully execute the office of Governor (or discharge the functions of the Governor) of (name of the State) and will to the best of my ability preserve, protect and defend the Constitution and the law and that I will devote myself to the service and well being of the people of (name of the State).”

It is clear that the primary function of the governor, more than the procedural functions of the office, is to “preserve, protect and defend the Constitution”. Roy, by violating the oath of office, has failed in this fundamental role by endorsing the call for the economic boycott of a section of Indians, which the Constitution prohibits.

What should be the consequence of this abdication of constitutional duty? Since the governor occupies his position during the pleasure of the president, he can be removed by the president using his powers under Article 156 (1) at any time.

However, the Supreme Court in 2010 placed certain restrictions on how the president can exercise this power. The court said a decision to remove the governor cannot be arbitrary and should be supported by “compelling reasons”. The court in BP Singhal vs Union Of India &Anr said:

“Though no reason need be assigned for discontinuance of the pleasure resulting in removal, the power under Article 156(1) cannot be exercised in an arbitrary, capricious or unreasonable manner. The power will have to be exercised in rare and exceptional circumstances for valid and compelling reasons. The compelling reasons are not restricted to those enumerated by the petitioner (that is physical/mental disability, corruption and behaviour unbecoming of a Governor) but are of a wider amplitude. What would be compelling reasons would depend upon the facts and circumstances of each case.”

Calling for action that undermines the basic doctrines of the Constitution is clearly behaviour unbecoming of a governor. A person who does not believe in these doctrines cannot be expected to continue in a constitutional office, for such continuance would be antithetical to the functioning of the Constitution. Roy’s behaviour is reason compelling enough for his removal.

However, given that none of the senior BJP leaders have reacted to Roy’s outrageous comments, his removal seems highly unlikely. It is therefore left to President Ram NathKovind to at least express his strong disapproval of Roy’s comments. If the president fails to do so, he would be deemed complicit and would fail in his constitutional duty by allowing the governor to get away with abusing his pleasure.

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