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On governors, go by reason not whim

In the past, the court has asked the government to show a compelling cause for removing a governor.

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.

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 in a manner that is not arbitrary, capricious or unreasonable. The bench held that a governor cannot be removed on the ground that she is out of sync with the policies and ideologies of the Union government or the party in power at the Centre, or on the ground that the Union government has lost confidence in her. Remember that the governor is not an employee of the Centre. It follows, therefore, that a mere change in government at the Centre is not a ground per se for the removal of governors holding office to make way for others favoured by the new government.

The bench rejected the submission about notice and hearing to be given to the governor and reasons to be supplied to her before her premature removal. It, however, emphasised that this power will have to be exercised in rare and exceptional circumstances and for valid and compelling reasons. It is significant that the court ruled that the compelling and valid reasons are not restricted to physical/ mental disability, corruption and behaviour unbecoming of a governor for removal. It clarified that there may be other compelling reasons which would depend upon the facts and circumstances of each case. On a correct reading of the judgment, it is clear that if there is material on record that establishes a governor’s actions were motivated by partisan political considerations or that she acted as an agent of the Centre overriding the interests of the state, that would certainly furnish sufficient cause for her removal.

The court was at pains to emphasise that although the president need not disclose or inform the cause of his removal to the governor, it is imperative that a cause must in fact exist. The court delineated 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 will call upon the Union government to disclose to the court (not to the governor) the material upon which the president had taken the decision.

If the Union government does not disclose any reason, or if the reasons disclosed are found to be irrelevant, arbitrary, whimsical or mala fide, the court will interfere. Thereafter follows a judicial caveat that the court will not interfere merely on the ground that a different view is possible or that the material or reasons are insufficient.

Apparently, hopes of successful judicial redress by governors who may be removed are not too bright. It would be befitting and also expedient if they resigned, rather than stuck to their gubernatorial chairs and tried their luck in the courts.

The writer is a former attorney general of India

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