Wednesday, Oct 22, 2014

On governors, go by reason not whim

The Court outlined the scope of limited judicial review by observing that if the aggrieved person is able to demonstrate prima facie that his removal was either arbitrary, mala fide, capricious or whimsical. The Court outlined the scope of limited judicial review by observing that if the aggrieved person is able to demonstrate prima facie that his removal was either arbitrary, mala fide, capricious or whimsical.
Written by Soli J Sorabjee | Posted: May 23, 2014 12:05 am | Updated: May 23, 2014 8:59 am

Under our Constitution, the governor is the head of a state and is appointed by the president of India. Under Article 156(1), she holds office during the pleasure of the president, which in effect means the Union government. A governor’s term of office under Article 156(3) is five years, subject to the president’s pleasure.

In 1979, the Supreme Court in the case of Hargovind Pant vs Dr Raghukul Tilak observed that it is no doubt true that the governor is appointed by the president, which means in effect and substance, the government of India. However, the court ruled that from the enumeration of the constitutional powers and functions of the governor, it is clear that the governor is not an employee or a servant of the Centre in any sense of the term. She is a constitutional functionary.

Given this background, can a governor be given marching orders merely upon a change in government at the Centre and that too, without any notice or hearing or any reason given to her for her premature removal? Is she in a worse position than a Class IV government employee?

This paradoxical position was considered by a Constitution bench, comprising then Chief Justice K.G. Balakrishnan and Justices S.H. Kapadia, R.V. Raveendran, B. Sudershan Reddy and P. Sathasivam, in its judgment delivered on May 7, 2010, in a writ petition filed by B.P. Singhal in the wake of the removal of the governors of the states of Uttar Pradesh, Gujarat, Haryana and Goa on July 2, 2004, by the president of India on the advice of the Union council of ministers.

Appearing for Singhal, my foremost submission was that exercise of power under Article 156(1) for removal of a governor is not absolute but subject to judicial review, and that the exercise of power must be for valid reasons pertaining to the discharge of the office of the governor and further, that the governor should be given notice and a hearing and furnished reasons for her removal. The Union government’s formidable contention was that it had the right to remove a governor without attributing any fault to her, if the president lost confidence in a governor or found that she is out of sync with the democratic and electoral mandate.

Justice Raveendran, speaking for the bench after an elaborate consideration of constitutional provisions and judicial precedents, held that the exercise of power of removal of a governor is justiciable. The bench ruled that the power of premature removal of a governor can be only for valid reasons and must be exercised continued…

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