BY N. S. SRINIVASA AIYAR

In a previous article ^l I had occasion to point out some of the difficulties involved in the programme of wrecking the Constitution which has since been brought into force. The question on which opinion within Congress circles was sharply divided, related to the acceptance of office by Congress Ministers in the event of the voters returning Congressmen in a large majority to the councils. The elections which took place revealed a definite and emphatic endorsement of the Congress standpoint by the persons who went to the polls in their thousands. Immediately afterwards, the long deferred problem of office acceptance had to be considered. In the six Provinces where the Congress had secured a large majority, the Governors were awaiting the decision of the All-India Congress Committee which had the final voice in the matter. Till then office acceptance presented a rather simple issue before the country. Either office is taken up with the objective of entrenching the Congress inside the Cabinet as well, so that the fight against the Constitution can be carried on from all possible positions, or, all thoughts of office should be spurned away, as it will constitute a dangerous step to be associated with the actual running of a system, which Congressmen are out to destroy. Exponents of either standpoint were organising themselves with a view to obtain the assent of the Congress Committee to their opinion.

In the meanwhile, an entirely new turn was given to the controversy by the promulgation of a via media policy by Mahatma Gandhi, who felt the call to give a lead on this momentous issue. Without overlooking the main position of the Congress, that the Constitution is not acceptable to the country, he formulated the view that Congressmen can accept office provided an assurance was forthcoming from the Governors, that so long as the Ministers work within the framework of the Constitution, the Governors would not interfere with their work. There was a prolonged discussion, and ultimately the Congress Committee ratified this view by a substantial majority.

THE MAHATMA’S STANDPOINT

The Governors of the Provinces, whatever their individual views and predilections may have been, were unanimous in declining to give any sort of assurance, beyond a general declaration of goodwill, to the Congress leaders whom they had summoned to form a Ministry. This was obviously inspired by directions from Whitehall and Delhi, as the result of a careful consideration by the authorities concerned. The interesting feature is that while the Government of India Act leaves questions of Ministry formation largely in the hands of Governors, at the very outset they have been effectively controlled by the Secretary of State and the Governor-General while the Congress leaders have been equally hampered in respect of their attitude and policy. The position of Mahatma Gandhi, however, though it may appear puzzling to persons unacquainted with his methods and outlook, is quite clear. It is true that he has kept himself in the political background and has even declined to pay the amount of annas four per year required for the membership of the Congress. But again and again, his counsel has been sought and availed of, whenever questions of difficulty have arisen.

His own view all along has been that the constitutional machinery, if availed of, should be used for the benefit of India's millions and not made an opportunity for the theatrical production of deadlocks. It is also obvious that the very large number of illiterate voters who filled the ballot boxes with their votes did so on account of their faith in Gandhiji. His emergence therefore to give a lead is nothing surprising nor is the form of lead anything unexpected from him. It is well known that during the Non-co-operation movement of 1920-21, and the Civil Disobedience movement of 1930 and 1932, again and again, he wanted specific assurances from the authorities on particular questions. Before the Lahore Congress met in December 1929 to pass the Independence resolution, he had asked for a pledge from Lord Irwin that Dominion Status would be conferred on India immediately. The Gandhi-Irwin agreement also was based on a similar policy. Apart from questions of practicability, he has always been of the view that a declaration by the authorities concerned by way of showing their bona fides will go a long way towards the removal of deadlocks. The statement which he has issued should not be judged merely from the standpoint of a lawyer’s understanding of the language of the Government of India Act, 1935. Without resting merely on the letter of the Statute, it invokes an attitude of statesmanship and sympathy by way of making it possible for Congress Ministers to function in an atmosphere of goodwill and co-operation. Undoubtedly it takes us far way from the avowed policy of wrecking, but it constitutes a solution of a recondite issue which in itself requires goodwill on the part of all persons concerned for its stability and continuance. The News Chronicle of London sees in Mahatma Gandhi the evil genius of Indian politics, but this view can hardly commend itself to anyone who is alive to the realities of the Indian situation. When everybody was groping in the dark, and a stalemate was almost inevitable, the Mahatma has found a way-out. Though for the moment his policy has received a check, his constructive solution is bound to be the basis of any subsequent decision.

THE CONSTITUTIONAL POSITION

Since, however, considerable stress has been laid on the legal and constitutional position, it is well to consider these aspects also. Attention has to be paid to the terms of the assurance asked for by the Congress Committee. The Governors were required to undertake that they "will not use their special powers of interference or set aside the advice of their Ministers in regard to their constitutional activities." In view of an argument advanced against the Congress which will be considered presently, it is noteworthy that there is no reference here to the powers of discretion vested in the Governors by the Act. Now, the Government of India Act provides in Sec. 50 that the Governor shall be advised by a Council of Ministers, except in matters in which he is required to exercise his functions in his discretion. It is thus obvious that the Governor’s discretion relates to matters over which the Ministers are not competent to tender any advice. The sphere in which the Ministers come relates to what is to be done by the Governor in the exercise of his individual judgment. Included in this category are the special responsibilities given to the Governor under Sec. 52.

It is in respect of matters in which the Governor has to be advised by his Ministers that the Congress Committee required an assurance from the Governor that he will not exercise his powers of interference. This is made clear by the statements of Mahatma Gandhi and Sjt. C. Rajagopalachariar that there was no attempt on their part to demand an alteration of the Constitution or an amendment of the Act. What the constitutional Pundits, who have voted these two Congress leaders as ignoramuses, have done is to take advantage of the reference in their statements to the Governor being called upon to forego his discretion, and declare that since all discretionary powers have been taken away from ministerial control, it is a misreading of the Act to impose any condition relating to such discretionary powers on Governors. It is, however, clear that while the Act makes the distinction between discretion and individual judgment, Mahatma Gandhi and Sjt. C. Rajagopalachariar did not mean to use the word ‘discretion’ in the sense in which it is used in the Act. Their position is that wherever the Minister acts in matters within his sphere, the Governor should not render his work nugatory by using his undoubted powers of interference. This is a perfectly reasonable condition, for the two categories of discretion and individual judgment take away (the one totally and the other partly) from all ministerial authority, and to embark on a policy calculated to benefit the country without some assurance that the Governor will not veto the policy is merely to postpone the day of conflict between the Governors and the Ministers. Any other contention would involve the absurd proposition that an acute lawyer and eminent leader like Sjt. C. Rajagopalachariar has not even read the provisions of an Act which he was called upon to work out in part.

INTERIM MINISTRIES

This leads to the consideration of the steps actually taken by the Governors in the six Provinces after the failure of the negotiations regarding Congress Ministries. In Madras, what has been termed an ‘interim Ministry’ has been formed, the Chief Minister being a person who had to be nominated as a member of the Upper House, while the other Ministers belong to no party at all and whose authority has been expressly disavowed by the other parties left after the Congress walked out of the field. It is contended that such an interim Ministry is not ultra vires of the powers of a Governor. This contention overlooks the directions in the Instrument of Instructions whereby the Governor is required to use his best endeavours to form a Ministry from out of the majority party and also to foster the principle of joint responsibility among Ministers. Advantage has been taken of the words "to use his best endeavours" to indicate that the only alternative in the event of the refusal of the majority party to form a Ministry is not the assumption by the Governor of all the Departments under Sec. 93 as a result of a breakdown of the constitutional machinery.

This argument is entirely fallacious, as what the Governor in Madras has done is to form a Ministry of members belonging to no party at all and whose party affiliations have been also disowned or repudiated. It cannot be overlooked that the Instrument of Instructions has been drawn up by persons who were entirely aware of the possible attitude of the Congress, if and when summoned to take office. It may be stated in passing that the Instrument differs from the Joint Committee Report, in that the latter does not envisage the summoning of any party in a political majority or even the existence of joint responsibility among the Ministers. The alteration from the Joint Committee Report’s view to the terms of the Instrument of Instructions can be hardly unintentional, and the failure to authorise the Governor to summon any type of Ministry before the taking of steps under Sec. 93 is conclusive that the formation of interim Ministries is entirely unconstitutional. Added to this, the postponement of the summoning of the Legislature to a later period, places it beyond reasonable doubt that what has been done is a piece of political trickery which augurs badly for the future of the Constitution. In the Central Provinces the Chief Minister defends himself on the ground that he did not want the Services to be placed in control of the Departments. This takes us even further away from the Constitution Act. No group of persons is entitled to function as Ministers who admit at the very outset that they have the confidence neither of the country nor of the Legislature, and who confessedly have entered on the self-imposed task of acting as a barrier against the breakdown of the Constitution.

There are persons optimistic enough to believe that somehow a way-out of the impasse will be found and that it is very unlikely that a gross outrage not only on constitutional forms but also on decencies will be allowed to stand for long. The situation, however, gives no room for any such hope. The first round of the battle between the Government and the Congress is just over. It is quite conceivable that the country will have to pass through further ordeals before settling down to the task of normal administration. All India must be thankful to the great leaders, Mahatma Gandhi and C. Rajagopalachariar, for the wise statesmanship they have displayed in the handling of a complicated situation. There is little doubt that under their leadership the further steps in the conflict will be carried on with the same good sense and understanding of realities which have characterised their labours so far.