A bench led by Chief Justice R M Lodha issued a notice to the Centre and sought its response in five weeks on the plea that objected to Home Secretary’s phone call to Qureshi to resign.
The bench also referred the matter to a five-judge Constitution Bench since the issue involved interpretation of Articles 156 of the Constitution that pertains to manner of removal of Governors.
Appearing for Qureshi, senior advocate and former cabinet Minister Kapil Sibal said that the court must examine the procedure adopted in this case to seek his removal and also the limitation of powers on the government.
The petition is set to put to test the Centre’s decision to nudge gubernatorial authorities to either resign or to remove them at will. Since the Modi Government took charge at Centre, seven Governors were nudged to quit while two were sacked.
Questioning the union home secretary’s “audacity” in calling him up and asking him to put in his papers, Qureshi wondered how a Constitutional office of a Governor can be undermined by a Secretary-level officer in this manner.
The petition quoted Articles 155 and 156(1) of the Constitution, to state that the governor shall hold office during the pleasure of the President and hence he would hold office for five years if he continued to enjoy the confidence of the President.
Qureshi said if at all someone should ask him to quit, it could only be the President and no one else. The governor, as has been consistently ruled by the Supreme Court, was not an employee of the Union government, the petition said.
The petition cited the celebrated 2010 decision by the Supreme Court in BP Singhal’s case where strict curbs were imposed on the executive power of Centre to remove Governors at whims.
BJP MP Singhal had challenged the UPA government’s 2004 decision to remove Vishnu Kant Shastri (UP), Babu Parmanand (Haryana), Kailashpati Mishra (Gujarat) and Kidarnath Sahni (Goa).
The SC had then ruled that governors were not employees of the Union government to warrant removal on the ground of loss of “confidence” in them.
The Constitution bench had said: “While the President need not disclose or inform the cause for his removal to the governor, it is imperative that a cause must exist. If we do not proceed on that premise, it would mean that the President, on the advice of the council of ministers, may make any order which may be manifestly arbitrary or whimsical or mala fide.
“Therefore, while no cause or reason be disclosed or assigned for removal by exercise of such prerogative power, some valid cause should exist for the removal. Therefore, while we do not accept the contention that an order under Article 156 is not justiciable, we accept the contention that no reason need be assigned and no cause need be shown and no notice need be issued to the governor before removing a governor.”
The apex court had said if a governor’s removal was challenged, it would always presume there was a compelling reason for such action. It had said the onus was on the aggrieved person to show that the removal was arbitrary. Only after he established arbitrariness of removal would a court seek records from the government, it had said.
Those who quit after the Modi government took over include B V Wanchoo of Goa, B L Joshi of UP, M K Narayanan of West Bengal and Shekhar Dutt of Chhattisgarh. The President had withdrawn pleasure and sacked Kamala Beniwal after her transfer from Gujarat to Mizoram.
Qureshi had recently heaped praises on the Modi government after he got the additional charge of Governorship of Uttar Pradesh in June this year. Former Union Minister Ram Naik was appointed the UP Governor thereafter.