B.P. Singhal V Union of India
The writ petitioner filed a public interest litigation in the wake of the removal of the Governors of the States of Uttar Pradesh, Gujarat, Haryana and Goa on 2 .7.2004 by the President of India on the advice of the Union Council of inisters. The petitioner sought : (a) a direction to the Union of India to produce he entire files, documents and facts which formed the basis of the order dated 2.7.2004 of the President of India; (b) a writ of certiorari, quashing the removal of the four Governors; and (c) a writ of mandamus to respondents to allow the said four Governors to complete their remaining term of five years.
The contentions raised the following questions:
(i) Whether the petition is maintainable?
(ii) What is the scope of “doctrine of pleasure”?
(iii) What is the position of a Governor under the Constitution?
(iv) Whether there are any express or implied limitations/restrictions upon
the power under Article 156(1) of the Constitution of India?
(v) Whether the removal of Governors in exercise of the doctrine of
pleasure is open to judicial review?
The Supreme Court held that the petitioner has no locus to maintain the petition in regard to the prayers claiming relief for the benefit of the individual Governors. At all events, such prayers no longer survived on account of passage of time. However, with regard to the general question of public importance referred to the
Constitution Bench, touching upon the scope of Article 156 (1) and the limitations upon the doctrine of pleasure, the petitioner had necessary locus.
The doctrine of pleasure as originally envisaged in England was a prerogative power which was unfettered. It meant that the holder of an office under pleasure could be removed at any time, without notice, without assigning cause, and without there being a need for any cause. But where rule of law prevails, there is nothing like unfettered discretion or unaccountable action. The degree of need for reason may vary. The degree of scrutiny during judicial review may vary. But the need for reason exists.
As a result when the Constitution of India provides that some offices will be held during the pleasure of the President, without any express limitations or restrictions, it should however necessarily be read as being subject to the “fundamentals of constitutionalism”. Therefore in a constitutional set up, when an office is held during the pleasure of any Authority, and if 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. The doctrine of pleasure, however, is not a licence to act with unfettered discretion to act arbitrarily, whimsically, or capriciously. It does not dispense with the need for a cause for withdrawal of the pleasure. In other words, “at pleasure” doctrine enables the removal of a person holding office at the pleasure of an Authority, 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. The withdrawal of pleasure cannot be at the sweet will, whim and fancy of the Authority, but can only be for valid reasons
Position of a Governor under the Constitution
In the early days of Indian democracy, the same political party was in power both at the Centre and the States. The position has changed with passage of time. Now different political parties, some national and some regional, are in power in the States. Further one single party may not be in power either in the Centre or in the State. Different parties with distinct ideologies may constitute a front, to form a Government. On account of emergence of coalition politics, many regional parties have started sharing power in the Centre. Many a time there may not even be a common programme, manifesto or agenda among the parties sharing power. As a result, the agenda or ideology of a political party in power in the State may not be in sync with the agenda or ideology of the political parties in the ruling coalition at the Centre, or may not be in sync with the agenda or ideology of some of the political parties in the ruling coalition at the Centre, but may be in sync with some other political parties forming part of the ruling coalition at the Centre. Further the compulsions of coalition politics may require the parties sharing power, to frequently change their policies and agendas. In such a scenario of myriad policies, ideologies, agendas in the shifting sands of political coalitions, there is no question of the Union Government having Governors who are in sync with its mandate and policies. Governors are not expected or required to implement the policies of the government or popular mandates. Their constitutional role is clearly defined and bears very limited political overtones. The Governor is not the agent or the employee of the Union Government. As the constitutional head of the State, many a time he may be expressing views of the State Government, which may be neither his own nor that of the Centre (for example, when he delivers the special address under Article 176 of the Constitution). Reputed elder statesmen, able administrators and eminent personalities, with maturity and experience are expected to be appointed as Governors. While some of them may come from a political background, once they are appointed as Governors, they owe their allegiance and loyalty to the Constitution and not to any political party and are required to preserve, protect and defend the Constitution (see the terms of oath or affirmation by the Governor, under Article 159 of the Constitution). Like the President, Governors are expected to be apolitical, discharging purely constitutional functions, irrespective of their earlier political background. Governors cannot be politically active. As the Governor is neither the employee nor the agent of the Union Government, a Governor cannot be removed if the Union Government or party in power loses ‘confidence’ in him.
Limitations/restrictions upon the power under Article 156(1) of
the Constitution of India
A plain reading of Article 156 shows that when a Governor is appointed, he holds the office during the pleasure of the President, which means that the Governor can be removed from office at any time without notice and without assigning any cause. It is also open to the Governor to resign from office at any time. If the President does not remove him from office and if the Governor does not resign, the term of the Governor will come to an end on the expiry of five years from the date on which he enters office. Clause (3) is not intended to be a restriction or limitation upon the power to remove the Governor at any time, under clause (1) of Article 156. Clause (3) of Article 156 only indicates the tenure which is subjected to the President’s pleasure.
There is thus a consensus to the extent that a Governor can be removed only for a valid reason, and that physical and mental incapacity, corruption and behaviour unbecoming of a Governor are valid grounds for removal. There is however disagreement as to what else can be grounds for removal. There can be other grounds also. It is not possible to put the reasons under any specific heads. The only limitation on the exercise of the power is that it should be for valid reasons. What constitute valid reasons would depend upon the facts and circumstances of each case. A Governor cannot be removed on the ground that he is not sync or refuses to act as an agent of the party in power at the Centre. Though the Governors, Ministers and Attorney General, all hold office during the pleasure of the
President, there is an intrinsic difference between the office of a Governor and the offices of Ministers and Attorney General. 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.
Judicial review of withdrawal of President’s pleasure
When a Governor holds office during the pleasure of the Government and the power to remove at the pleasure of the President is not circumscribed by any conditions or restrictions, it follows that the power is exercisable at any time, without assigning any cause. However, there is a distinction between the need for a cause for the removal, and the need to disclose the cause for removal. While the President need not disclose or inform the cause for his removal to the Governor, it is imperative that a cause must exist. Therefore, while no cause or reason be disclosed or assigned for removal by exercise of such prerogative power, some valid cause should exist for the removal. It did not accepted the contention that an order under Article 156 is not justiciable, but accepted the contention that no reason need be assigned and no cause need be shown and no notice need be issued to the Governor before removing a Governor.
Article 156(1) provides that a Governor shall hold office during the pleasure of the President. Having regard to Article 74, the President is bound to act in accordance with the advice of the Council of Ministers. Therefore, even though under Article 156(1) the removal is at the pleasure of the President, the exercise of such pleasure is restricted by the requirement that it should be on the advice of the Council of Ministers.
Whether the removal of Governor is open to judicial review?
What Article 156(1) dispenses with is the need to assign reasons or the need to give notice but the need to act fairly and reasonably cannot be dispensed with by Article 156(1). The President in exercising power under Article 156(1) should act in a manner which is not arbitrary, capricious or unreasonable. In the event of challenge of withdrawal of the pleasure, the court will necessarily assume that it is for compelling reasons. Consequently, where the aggrieved person is not able to
establish a prima facie instance of arbitrariness or malafides, in his removal, the court will refuse to interfere. However, 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. What will constitute good and compelling reasons would depend upon the facts of the case. Having regard to the nature of functions of the Governor in maintaining centre-state relations, and the flexibility available to the Government in such matters, it is needless to say that there will be no interference unless a very strong case is made out. The position, therefore, is that the decision is open to judicial review but in a very limited extent.
The following are the conclusions:
(i) Under Article 156(1), the Governor holds office during the pleasure of the President. Therefore, the President can remove the Governor from office at any time without assigning any reason and without giving any opportunity to show cause.
(ii) Though no reason need be assigned for discontinuance of the pleasure resulting in removal, the power under Article 156(1) cannot 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. The compelling reasons are not restricted to those enumerated by the petitioner (that is physical/mental disability, corruption and behaviour unbecoming of a Governor) but are of a wider amplitude. What would be compelling reasons would depend upon the facts and circumstances of each case.
(iii) 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.
(iv) As there is no need to assign reasons, any removal as a consequence of withdrawal of the pleasure will be assumed to be valid and will be open to only a limited judicial review. If the aggrieved person is able to demonstrate prima facie that his removal was either arbitrary, malafide, capricious or whimsical, the court will call upon the Union Government to disclose to the court, the material upon which the President had taken the decision to withdraw the pleasure. 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. However, the court will not interfere merely on the ground that a different view was possible or that the material or reasons were insufficient.