Paras Nath Singh

| @parasnsingh95 | March 1,2019

MINUTES after the ghastly February 14, 2019 terrorist attack on a convoy of the Central Reserve Protection Force (CRPF) in the Pulwama district of Jammu & Kashmir, in which more than 40 soldiers were killed, incidents of assault, threat, intimidation and social boycott against Kashmiris have been reported in various parts of the country. Kashmiri students have allegedly been assaulted and intimidated in some colleges as well.

As a result, the Ministry of Home Affairs had to issue an advisory to all states on February 16, 2019 asking them to ensure the safety and security of Kashmiris. The University Grants Commission also sent letters to all University Vice Chancellors asking them to protect Kashmiri students on their campuses.

Two days after the terrorist attack, the Central Government, on February 16, 2019, wrote to the Chief Secretaries and DGPs of all the states asking them to ensure that Kashmiri students were safe. While these incidents of violence after the Pulwama terrorist attack have been disturbing enough, what came as an absolute shock was a tweet by a person holding a high constitutional office, calling for the boycott of “everything Kashmiri”.

Meghalaya Governor Tathagata Roy on February 19, 2019 tweeted out “An appeal from a retired colonel of the Indian Army: Don’t visit Kashmir, don’t go to Amarnath for the next 2 years. Don’t buy articles from Kashmir emporia or Kashmiri tradesman who come every winter. Boycott everything Kashmiri. I am inclined to agree”.

 

 

A bare reading of Roy’s tweet would indicate that he called for the social boycott of fellow Indian citizens who happen to be from Kashmir. In other words, a person who has been sworn in to protect the Constitution has called for the active boycott of fellow citizens on the basis of their ethnicity. On the face of it, such a call goes against the very spirit of Part III of the Constitution of India and also of the office he holds.

 

Appointment of the Governor

 

As per Article 155 read with Article 156 of the Constitution, a Governor is appointed by the President. They hold office during the pleasure of the President for a term of five years from the date on which they enter upon the office. Further a Governor, notwithstanding the expiration of their term, continues to hold office until there is a successor.

In order to become Governor, one has to be a citizen of India and be at least 35 years of age. They cannot hold any other office of profit and cannot simultaneously continue to be members of either House of Parliament or any State Legislature. If they are members of any such House on the date of the appointment, they will be deemed to have vacated that position the moment they take up the office of Governor. [See Article 157 & 158 of the Constitution of India]

 

 

How does a person enters upon the office of the Governor? Article 159 of the Constitution provides for the oath and affirmation by the Governor which is mandatory for them to take before they enter upon the office, after having been appointed by the President. For the sake of brevity, Article 159 is reproduced below:

 

Every Governor and every person discharging the functions of the Governor shall, before entering upon his office, make and subscribe in the presence of the Chief Justice of the High Court exercising jurisdiction in relation to the State, or, in his absence, the senior most Judge of that Court available, an oath or affirmation in the following form, that is to say— “I, A. B., do swear in the name of God that I will solemnly affirm and 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) .”  

[Emphasis mine]  

As can be seen from the text of the oath and affirmation prescribed for the Governor, they are duty bound to preserve, protect and defend the Constitution and the law. The term “shall” in the beginning of the Article reflects that the oath and affirmation prescribed is a condition precedent for the Governor to join office. The mere appointment by the President would, therefore, not mean that the Governor has joined office.

The text of the oath and affirmation that the Governor swears to is that they will, to the best of their ability, preserve, protect and defend the Constitution and the law.   

It is in this context; the tweet made by Governor Tathagata Roy has to be read. Before that, what needs to be understood is the meaning behind the phrase “will, to the best of their ability preserve, protect and defend the Constitution and the law”

 

Breach of the Oath by Tathagata Roy

 

Even a cursory reading of the text of the oath and affirmation would indicate that that the Governor has an obligation to preserve, protect and defend the Constitution and the law. How does a Governor preserve, protect and defend the Constitution? The answer would be by actions that do not bring ridicule to the Constitution; by treating all citizens as equals and with dignity, which is the constitutional mandate.

By no stretch can we say that the Constitution is preserved, protected or defended by appealing for the social boycott of Kashmiris. Such a call goes against the very essence of equality under Article 14 and right to life, which includes the right to dignity, as provided by Article 21 of the Constitution. A social boycott is akin to untouchability, which the Constitution forbids.

 

 

At this juncture, it would be apposite to refer to a decision of the Constitution bench in B.P. Singhal vs Union Of India & Anr, where the Supreme Court observed that the Governor occupies a high constitutional office with important constitutional functions and duties.

  1. Reputed elder statesmen, able administrators and eminent personalities, with maturity and experience are expected to be appointed as Governors. While some of them may come from a political background, once they are appointed as Governors, they owe their allegiance and loyalty to the Constitution and not to any political party and are required to preserve, protect and defend the Constitution (see the terms of oath or affirmation by the Governor, under Article 159 of the Constitution). Like the President, Governors are expected to be apolitical, discharging purely constitutional functions, irrespective of their earlier political background. Governors cannot be politically active.

Tathagata Roy, instead of preserving the Constitution and its values by appealing for peace and condemning the violence against Kashmiris, called for their social boycott. In doing so, he not only offended the oath of his office, but he also showed contempt for the Constitution.

Pertinently, the Supreme Court while hearing a public interest petition seeking the protection of Kashmiris had directed all states to take necessary steps to prevent any act of assault, threat, intimidation, social boycott etc. [Emphasis mine]. The term “social boycott” is relevant for the present discussion since Governor Tathagata Roy sought exactly that.

Such a direction from the Supreme Court specifically mentioning protection against “social boycott” is also an indirect indictment of Governor Tathagata Roy, who in his wanton display of political ideology, forgot that he was holding a constitutional office, whose first and only duty was to protect constitutional values and not spew venom against fellow citizens who happen to belong to a different identity than him.

This is not the first time that Tathagata Roy has brought disrepute to the office of Governor. The time has come to sack him to preserve, protect and defend the Constitution and to maintain the diminishing sanctity of the office of the Governor.

At the same time, what is disturbing is the silence of the appointing authority, the President of India. If such unconstitutional conduct on the part of a Governor does not invite the displeasure of the President, then what will?

It may be recalled that Supreme Court in Centre for PIL v. Union of India had quashed the appointment of IAS officer P J Thomas as the CVC on the ground of institutional integrity. One of the issues raised there was whether the writ of qua warranto was invocable? Appearing for Thomas, senior advocate K K Venugopal had submitted then that there was neither a case of infringement of the statutory provisions of the Central Vigilance Commission (CVC) Act, 2003 nor of the appointment being contrary to any procedure or rules.

Further, Venugopal submitted that it was well settled that a writ of quo warranto would apply in a case when a person usurps an office and there is an allegation that he has no title to it or legal authority to hold it. Thus, for a writ of quo warranto to be issued there must be a clear infringement of the law.

 

 

The Supreme Court, however, said a declaratory relief was also sought besides a writ of quo warranto. Thus, nothing prevented the Court, if it was satisfied, from issuing a writ of declaration. If public duties were to be enforced and rights and interests protected, then the court could, to further public interest, consider it necessary to inquire into the subject matter of litigation in the interest of justice. On this premise, the court proceeded to quash the appointment of P J Thomas as CVC.

Since there is inaction on the part of the President in removing Meghalaya Governor Tathagata Roy from office, it is for the judiciary to take it upon itself the duty to sack him for the continuous breach of the oath of office of the Governor. Needless to say, the judiciary has a duty to defend the Constitution in its entirety. A declaratory writ by the Court holding him unfit to hold a Constitutional office would suffice.

 

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