The office of the governor has always been a subject of political controversy. Of course, a governor’s removal from office evokes greater controversy than her appointment. Traditionally, politicians who have become non-performing assets and bureaucrats who retired from top positions in government and who were particularly helpful to the ruling dispensation have been appointed governors.
In our constitutional scheme, the governor plays a very important role. But strangely enough, the Constitution does not lay down any criteria for the appointment of a governor except that she should be an Indian citizen and should have completed 35 years of age. The debates in the Constituent Assembly indicate that the general thinking of the members was in favour of appointing persons of eminence in the field of education or other fields of life, as well as individuals who would “represent before the public something above politics”. Though no criteria have been laid down for selecting a governor, the governments that held office after the Constitution came into force should have respected the views of the Constituent Assembly and set a tradition of appointing persons of eminence and not politicians who were defeated in elections, or retired bureaucrats who were useful. Raj Bhavans have become convenient parking places for them.
It has now become a convention for a new government led by a different party to get rid of the governors appointed by the previous one. In 2004, the UPA removed NDA-appointed governors, although the Vajpayee government had not resorted to this measure in 1999. Now the new government in Delhi has instructed the home secretary to informally ask governors to quit. Some have resigned (mainly ex-bureaucrats), but some — mostly politicians — are resisting the Centre’s pressure. Till 2010, it was believed that governors could be sacked through a presidential order. After all, the Constitution says governors hold office during the pleasure of the president or in other words, the pleasure of the government of the day.
But in 2010, the Supreme Court handed down a judgment that placed certain restrictions on the withdrawal of the pleasure of the president. It said that the president can sack a governor only on the basis of valid and compelling reasons.
The presidential act should not be malafide, capricious or whimsical. The judgment categorically said that a change of government is no ground for the changing of governors. The court made it clear that if the reasons for the removal of a governor are arbitrary, whimsical, etc, such executive actions will be subject to judicial review.
In light of this judgment, what are the options available to the president? The court said that it would not intervene in the removal of a governor merely on the ground that a different view is possible or that the material or reasons for the decision are insufficient. The judgment, in essence, highlights that there should be reasons for such a removal, which are relevant and not arbitrary or whimsical.
It is not very difficult for the government to find valid and relevant reasons for the removal of a governor. The Union home ministry would have sufficient information about the activities of a governor. If she indulges in political activities covertly, it would be a valid ground for withdrawing the pleasure of the president. Similarly, if the governor is closely associated with some activity that is being investigated by agencies, the continuance of such a person in the Raj Bhavan would become untenable and it can be presumed that there is a valid reason for removing her. If a person who was involved in a criminal activity has been made a governor, the next government has a valid and compelling reason to remove her. All that the Supreme Court has suggested is that the proximate cause of removal should not be a change of government or that the governor is not in sync with the politics and ideology of the new government.
So, it seems correct, as many have asserted, that the Supreme Court has barred a new government from dismissing governors appointed by the previous regime. The court’s intervention will take place only if an aggrieved governor could prove beyond doubt that his removal was malafide, whimsical and arbitrary. The court wants there to be a valid reason for the removal, which may not even be sufficient. But it will not look beyond such reasons. In sum, the government can throw the ball out of its court with ease of conscience.
The writer is former secretary general, Lok Sabha firstname.lastname@example.org