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Keep out will, whim and fancy

President need not disclose reason for dismissing a governor, but a cause must exist.

Written by Subhash C. Kashyap |
August 29, 2014 12:14:33 am
const-L Under Article 155 and 156 of the Constitution, a governor is appointed by the president and holds office during her pleasure. (Source: PTI)

Since the commencement of the Constitution in 1950, it is for the third time that governors — this time, as many as nine — have had to go following a change of guard at the Centre. Congress and non-Congress governments have done the same thing every time the occasion has arisen. The situation is still developing, and the numbers may go beyond nine. Also, the issue of the removal of governors has been taken to court for the third time.

The office of governor has been mired in controversies — regarding appointment, functioning and removal — from Day One. From time to time, certain state governors have been accused of partisan behaviour and of acting as agents of the party or parties in power at the Centre. Some commentators have gone so far as to suggest doing away with the institution of the governor all together.

A dispassionate analysis of the need and role of the office would show that it is one of great dignity, responsibility and continuing relevance. On the one hand, a governor was envisaged as the constitutional head of the state, and on the other, as the representative of the Union in the state. She was expected to be a vital link between the Union and the state, to act as the eyes and ears of the Centre, and to generally ensure that the government of the state is carried out in accordance with the Constitution and, particularly, to see that the interests of the Union are safeguarded. In context of the many fissiparous tendencies that come to the fore now and then, the office of governor becomes even more relevant and important. Misuse of the high office by unscrupulous holders constitutes no argument for its abolition. If constitutional offices begin to be scrapped because some of their occupants indulge in unbecoming conduct, very soon hardly anything would be left.

Under Article 155 and 156 of the Constitution, a governor is appointed by the president and holds office during her pleasure. Thus, both appointment and continuance in office are dependent on the pleasure of the Union government. The Sarkaria Commission and the National Commission to Review the Working of the Constitution both suggested salutary reforms — including that governors should be selected only from among eminent persons not too intimately connected with active party politics. So long as this advice is not heeded, controversies because of their removal at the time of a change of government would continue.

In Surya Narain Choudhary vs Union of India, the Rajasthan High Court held that the pleasure of the president was not justiciable, the governor had no security of tenure and she could be removed by the president at any time by withdrawing her pleasure. In B.P. Singhal vs Union of India, the Supreme Court looked into the pleasure doctrine in great depth. It upheld the earlier position — “no limitations or restrictions are placed on the ‘at pleasure’ doctrine, it means that the holder of the office can be removed by the authority at whose pleasure he holds office, at any time, without notice and without assigning any cause.” But the court said that it “does not dispense with the need for a cause for withdrawal of the pleasure”.

In other words, the occupant of office at pleasure can be removed “summarily, without any obligation to give any notice or hearing to the person removed, and without any obligation to assign any reasons or disclose any cause for the removal, or withdrawal of pleasure. [But] the withdrawal of pleasure cannot be at the sweet will, whim and fancy of the authority.” It should not be “mala fide”, “unreasonable” or done “arbitrarily, whimsically or capriciously”. “While the president need not disclose or inform the cause for his removal to the governor, it is imperative that a cause must exist.” As for judicial review, only where the aggrieved person is able to make a prima facie case of arbitrariness or mala fides, can the court require the Union government to produce records/ materials to show that the withdrawal of pleasure was for good and compelling reasons. The Supreme Court added that “there will be no interference unless a very strong case is made out” as the scope of “judicial review…is very limited”.

After this judgment of the Supreme Court, there should be no scope for any controversy or confusion. But controversy and confusion are often created to score political brownie points and to embarrass one’s opponent in power. Looked at from another angle, given that appointments are made only at the pleasure of the government, when an appointee has any indication of that pleasure having ended, she should consult her own dignity and self respect and put in her papers forthwith, without waiting to be asked to quit or to get removed. It is also clear that it is not for the president or prime minister to personally inform a governor of a government decision in the matter. After all, it is institutional.

The writer is president, Citizenship Development Society, and former secretary general of the Lok Sabha

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