The Narendra Modi government is trying to prod UPA-appointed Governors to tender resignations on their own rather than removing them from office through Presidential orders. It has a reason: the Supreme Court had ruled in 2010 that a Governor “cannot be removed on the ground that he is out of sync with the policies and ideologies of the Union Government or the party in power at the Centre”.
A Constitution Bench headed by then Chief Justice of India K G Balakrishnan had also ruled that “change in government at Centre is not a ground for removal of Governors holding office to make way for others favoured by the new government”.
The five-judge Bench ruled that there was scope for judicial review of a decision to remove Governors on the ground that their ideology was out of sync with the policies or ideologies of the central government. “For withdrawal of pleasure in the case of a Governor, loss of confidence or the Governor’s views being out of sync with that the Union Government will not be grounds for withdrawal of the pleasure,” the Bench said.
The ruling came in response to a PIL filed by then former BJP MP B P Singhal, who had challenged the removal of the Governors of Uttar Pradesh, Gujarat, Haryana and Goa on May 2, 2004 by the President on the advice of the newly formed UPA government.
During the hearing, Singhal’s counsel Soli Sorabjee had asked the Bench to issue a set of guidelines or limitations with regard to power of President to remove Governors under Article 156(1) of the Constitution, asserting that it was required to ensure the independence and effective functioning of Governors.
In its judgment, the Bench, while noting that the Governor holds office during the pleasure of the President and hence the President can remove the Governor from office “at any time without assigning any reason and without giving any opportunity to show cause”, ruled that the power to remove can’t be exercised in an “arbitrary, capricious or unreasonable manner”.
“The power will have to be exercised in rare and exceptional circumstances for valid and compelling reasons… A Governor cannot be removed on the ground that he is out of sync with the policies and ideologies of the Union Government or the party in power at the Centre. Nor can he be removed on the ground that the Union Government has lost confidence in him. It follows therefore that change in government at Centre is not a ground for removal of Governors holding office to make way for others favoured by the new government,” the Bench ruled.
The Bench held that the court will presume that the President had “compelling and valid” reasons for the removal but if a sacked Governor comes to the court, the Centre will have to justify its decision.
“Where a prima facie case of arbitrariness or malafides is made out, the court can require the Union Government to produce records/materials to satisfy itself that the withdrawal of pleasure was for good and compelling reasons…If the Union Government does not disclose any reason, or if the reasons disclosed are found to be irrelevant, arbitrary, whimsical, or malafide, the court will interfere,” the Bench ruled.
It asserted that a Governor was “not an employee of the Union Government, nor the agent of the party in power nor required to act under the dictates of political parties” and that they are “not expected or required to implement the policies of the government or popular mandates.”
It also differentiated between the office of the Governor and the offices of ministers and Attorney General, all of whom hold office “during the pleasure of the President” and can be removed without any restrictions.
“Governor is the Constitutional head of the state. He is not an employee or an agent of the Union government nor a part of any political team.On the other hand, a minister is hand-picked member of the Prime Minister’s team. The relationship between the Prime Minister and a minister is purely political. Though the Attorney General holds a public office, there is an element of lawyer-client relationship between the Union government and the Attorney General. Loss of confidence will therefore be very relevant criterion for withdrawal of pleasure, in the case of a minister or the Attorney General, but not a relevant ground in the case of a Governor, “ it clarified.