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Removal of Governors: A Fraud on the Constitution by Aaditya Dighe & Nikhil Iyer

The Authors: Aaditya Dighe & Nikhil Iyer are Law Students studying at WBNUJS, Kolkatta

Introduction

The removal of incumbent Governors by a newly formed Central Government has been a recurring trend in Indian polity. This trend, which started in 1977 with the rise of the Janata Party right after the emergency proclaimed by the Indira Gandhi led Congress Government, has refused to die down. It has been a trend which has been followed over the years by new governments which kick start their tenure by removing the Governors previously appointed by the old Government. The most recent occurrence of this trend came to the fore with the removal of more than 7 incumbent Governors and their replacement with former members of the BJP; each one of these taking place after the formation of the new NDA Government in May 2014. This action by the BJP has again resulted in the revival of debates questioning the constitutionality of the manner of removal of the Governors. While the ruling party maintains that due procedure was followed in these removals, one can hardly overlook the constitutional impropriety which has taken place. This manner of removal has resulted in complete politicisation and loss of reverence towards the constitutional post of a Governor. This essay thus, maps out the process which has to be followed in removing of the Governors from their Constitutional posts, as prescribed by various committees and the Supreme Court while interpreting Article 156 of the Constitution of India. It further analyses the clash of interests and ideologies between the old and new governments – leading to politicisation of the post, which acts as the main factor behind this continuing trend of ousting of the Governor. This essay finally reiterates the reverence due to the post of a Governor, by looking at the historical significance of the glorified post and refuting the claims of doing away with the concerned constitutional post. Finally this essay fulfils its objectives by recommending possible methods to be adopted in the process of appointment and removal of Governors.

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Section I

This part of the essay encapsulates the current modus operandi which has to be followed while removing the Governor from his post. It has been formulated in the Constitution that a Governor continues to enjoy his post during the ‘pleasure of the president’.[i] The ambiguities in the aforementioned article have been addressed by various committees and cases over the years.

It has been held that in lieu of the enumeration of constitutional powers bestowed upon the Governor, it was clear that the Governor was not an employee of the Centre in any sense.[ii] Even though the Governor is appointed by the President, it is in effect an ordeal of the Government of India.[iii] This is as per Article 74 (1),[iv] which declares that the President cannot dispense with the advice of the Union Council of Ministers.[v] Thus, as there is no master – servant relationship between the Governor and the Central Government, it follows that the Governor is not accountable to the Central Government and was not under the control of the Government of India.[vi] In the case of State of Orissa v. Vidybhusan[vii], which was one of the first cases regarding the interpretation of Article 156, it was held that the President could withdraw his pleasure from the constitutional post of Governor and dismiss him without citing any reasons. The courts could not interfere in the aforementioned case on the grounds of absence of any cause. It has also been held that the appointment of a Governor was political in nature and thus he could be removed from his constitutional post owing to political considerations.[viii]

These cases did not require reasons to be cited by the President while removing the Governor. The dismissal or the transfer of the Governor could take place without observing the principle of Audi Alteram Partem. The President may though exercise mala fide intention in such removal.[ix]

The Sarkaria Commission, which was set up in 1983, made certain recommendations regarding the removal of the Governor to the effect that the Governor was to be removed on account of rare and compelling reasons,[x] and that if ‘rare and compelling’ reasons exist, the procedure of removal must include the Union Government laying a statement before both the houses of Parliament to explain the circumstances leading to the removal and the Governor must be allowed to show cause against the premature termination of his tenure.[xi] It is widely accepted that to whatever extent the Commission suggested change; these recommendations were not implemented by the Central Government.[xii] In addition to this, Punchhi Commission, which was set up in 2007 recommended that the Governors should be given a fixed tenure and their removal should not be on the basis of the will of the Government at the Centre.[xiii] It was also recommended that the term “pleasure of the president” be deleted from Article 156 of the Constitution.[xiv] Unfortunately, the above mentioned recommendations were never implemented.

It was in the landmark case of B.P. Singhal v. Union of India[xv], Supreme Court finally cleared the air on the interpretation of the provisions of the Article 156 of the Indian Constitution. The five judge bench, headed by the Chief Justice of India, laid down certain binding principles regarding the tenure of the Governor of the concerned state. It was held that appointment as a Governor implied upholding the Constitution and ceasing allegiance to any political party.[xvi] It was further held that a governor could not be removed on the grounds of being incongruent with the ideologies of the Union Government and thus a change in government at the centre is not a ground to remove the existing governors and replace them with persons favoured by the new government.[xvii] It was also held that the President, in effect the Central Government was empowered to remove the Governor from his position without citing any reasons and non-adherence to the principle of audi alteram partem.[xviii]

The Supreme Court though held that, “The doctrine of pleasure 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.[xix] The Court in conclusion said that the decision to remove a Governor can be challenged in a court of law if the petitioner can make out a prima facie case of arbitrariness on part of the Central Government and thus give reason to the Court to demand to the Central Government to showcase the existence of valid and compelling reasons behind the dismissal of the Governor.[xx]

Section II

The Governor possesses the discretion to decide whether to invite a party which has secured the majority to form the Government. The power of the Governor is absolute regarding the appointment of Chief Minister and the Court cannot call in question the same. This power is the Governor’s sole discretion.[xxi] The court has no jurisdiction to require disclosure of material forming the basis of the President’s satisfaction in imposition of President’s rule. The conclusion reached by the Governor in his report to the President cannot be questioned in the court as those are matters for the consideration of the President and Parliament.[xxii] Since this power is regarded to be resting solely with the Governor, it is very important that the Governor upholds the Constitutional values while exercising such power. These values, which include respecting the vote of the people, justice, secularism, and democracy must be kept in mind while inviting a particular party to form the Government. A glaring example when the Governor’s power was exercised in an arbitrary and mala fide manner came to the fore when Biju Pattnaik’s party secured a majority over the Congress Party in the Orissa State Assembly. The Governor of the State, Basappa Jatti, a Congress member, who later went on to become the Vice-President of India in 1977, did not allow Pattnaik’s party to form the Government and instead submitted a report to the President recommending the proclamation of President’s rule citing reasons of coming into existence of an unstable State Government. The President, upon the advice of the Council of Ministers which was formed by the Congress Party, declared State Emergency. When this order was challenged in the High Court, it was not withheld, but the Court expressed criticism over the behaviour of the Governor in the present case. It was also held that the satisfaction of the President to declare a State emergency on the report submitted by the Governor under Article 356 is not justiciable,[xxiii] although this stance was later reverted, in a unanimous decision of 5 judges, to be held that the President’s proclamation was indeed justiciable.[xxiv] Dr. Ambedkar, the ‘Father of the Indian Constitution’ , had also expressed his reservations over the power given to the Governor under Article 356 (1) and the occurrence of such incidents as in the case of Biju Pattnaik, when he said that that the use of such power must be done with great caution. The President must uphold Constitutional values while dissolving a State Assembly and imposing emergency.[xxv]

In the case of S. R. Bommai v. Union of India,[xxvi] it was stated that although Article 74 (2) bars the Court from inquiring into the advice given by the Council of Ministers to the President, the Court could inquire into the grounds on the basis of which such advice was given. The Court thus found a way to uphold the integrity of the Constitution by devising a way to circumvent Article 74 (2), to uphold the values of Indian federalism.  It is in the light of such cases that the Centre must appoint a Governor who helps the Centre not to further its own interests, but discharges the duties bestowed upon the latter by the Constitution in a fair and just manner.

In cases where the Central Government uses the leverage of withholding the appointment, transfer or removal of the Governor at times when he acts upon his volition – which may not be in furtherance of the policies of the Central Government, the concern of the independence of the gubernatorial post is most pressing. One of the recent cases is that of the transfer of K Sankaranarayanan, Governor of Maharashtra, who was appointed by the United Progressive Alliance led by the Congress Party, to the State of Mizoram by the NDA, when the NDA came to power after the 2014 general elections.[xxvii] The post of the Governor must therefore be given the freedom and due respect that it commands as per the Constitution of India.

Section III

It is established that although the government need not show cause in the notice given to the Governor regarding his termination under Art. 156 (1) of the Constitution of India, the government must nonetheless have ground such that the Court does not find it to be unreasonable or capricious. In the event that the removal is challenged by any person, the Government must present to the Court such reason that the Court considers it to be ‘good cause’[xxviii] for removal. The SC has explicitly stated that change in the Central Government cannot be included under the ambit of ‘good cause’. Logically flowing, this obiter dicta should have lead to a cessation of the trend of removal of governors as an aftermath of any general assembly elections. This trend, which started in 1977 with the victory of the Janata Party,[xxix] has been followed till date, with each party that comes to power at the Centre trying to assert its domination by appointing such heads of states whose ideologies are in consonance with the party’s ideology.

When the Janata Party came to power in 1977 by defeating the incumbent ruling party, the Indira Gandhi led Congress (I), the country was reeling from the effect of the National Emergency that was proclaimed by Gandhi in 1975. To overcome the oppression borne by the opposition leaders during the emergency and to establish an atmosphere free of the previous government’s rule, the Janata Party appointed new governors by sending its recommendations to that effect to the then President B. D. Jatti, and although the President, in his right mind and in the interests of Indian polity, sent back the recommendation, he eventually had to assent to it when it was sent to him after reconsideration.[xxx] This trend has ever since remained healthy in the Indian political scene, with each change of Government making an attempt to establish its superiority by way of controlling the Governor’s post in an arbitrary manner and in furtherance of their party’s policies.

Of special interest is the latest series of the ‘removal’ of Governors after the victory of the National Democratic Alliance (NDA) led by the Bharatiya Janata Party (BJP) after its victory in 2014, as this was the first general elections after the 2010 Supreme Court judgement.[xxxi] The judgement, though it prohibited a ‘change in government’ to be the reason for the removal of a Governor under Article 156 (1) of the Constitution, has been circumvented by the NDA Government by way of ‘prodding the governors to resign’.[xxxii] As per reports, the Home Secretary had asked at least 5 Governors to resign. A removal in this manner will cease to be governed by Clause 1 of Article 156, but will instead be governed by Clause 2. The NDA Government in this manner has managed to find their way out of the SC ruling and have appointed Governors belonging to the BJP. The adoption of this procedure could be seen in the cases of change of governors in States considered to be power houses in the Indian Political System, for example in the State of Maharashtra, where the incumbent governor K Sankaranarayanan, a former minister in a Kerala Congress Government, upon refusal to be transferred to Mizoram and subsequent resignation,[xxxiii] was replaced by C Vidyasagar Rao, a BJP Member, just months before the State assembly elections. Another example is that of the replacement of West Bengal Governor M. K. Narayanan, who resigned after being prodded by the Home Secretary, with Keshari Nath Tripathi, a former President of the BJP unit of Uttar Pradesh. These resignations, which have come soon after the new government came into power at the Centre, and subsequent appointments of people who were formerly associated with the BJP point towards only one direction, of the desire of the party in power at the Centre to ensure its domination over State politics by appointing the Head of the State.

Section IV

Regarding Appointment:

The State Legislatures in India must be allowed to elect a Governor rather than the power resting with the Central Government to select a Governor. It must be kept in mind that India is a country of vast religious, ethnic and lingual characteristics and that these should be kept in mind while appointing the Governor. As has been the practice in the recent past, if the Governor is appointed in a blind-horse manner, keeping in mind only the ideology of the party in power at the Centre, this would lead to neglect of the other aforementioned factors. On the other hand, it must also be noted that the State legislature is comprised of people’s representatives who have been, as it happens in a democracy, elected by and for the people. Thus, taking into account these representatives’ choice into consideration would be a way of optimum fulfilment of the democratic values which India has imbibed in the Constitution.

This practice of giving the power to the State Legislature to appoint the Governor, the Head of the State, can be found to be similar to the provisions in the Constitution of South Africa.[xxxiv] South Africa is, like India, divided into different States, or ‘provinces’, with the Premier of each province acting in a manner equivalent to that of a Governor in the Indian context. This practice, if adopted in India, would indirectly transfer the power to the people and also ensure increased cooperation between the legislature and the executive, as both the organs would be inter-dependent on each other.

Article 158[xxxv] states that the Governor must not be a member of the Legislative Assembly or the Legislative Council, as the case may be. Keeping in mind this provision of the law, along with the recommendations of the Sarkaria Commission regarding eminence of the person in some walk of life and dissociation with active politics in the recent past, every party in State Assembly which has secured more than 1/10th of the total number of seats must be allowed to field a nomination for the post of the Governor, which should be then followed by voting by the House and election of a Governor by special majority. The Constitution of India recommends the ‘quorum’ for proceedings of any House to be 1/10th the total number of seats in the House.[xxxvi] This provision must have been input as the Constitution makers identified that presence of 1/10th of the total members to be substantial enough to give effect to the House’s duties. In lieu of this, and the fact that voting by special majority ensures giving effect to actual choice of the voters, the recommendation regarding appointment would lead to a balanced outcome. Such a system would lead to actual realisation of democracy as the choice of such a Governor could then be traced to the people themselves.

Regarding Removal:

Article 156(1) was designed to secure that if the Governor was pursuing policies which were detrimental to the State or to India, the President would remove the Governor from his office and appoint another Governor.  This power takes the place of an impeachment which clearly is a power to be exercised in rare and exceptional circumstances”.[xxxvii]  

The above extract from H.M. Seervai’s commentary reveals that the objective behind the framing of Article 156 of the Constitution was to remove the Governor in rare and compelling cases. Unfortunately, the post of the Governor has been politicised and the Governors these days are removed without any sound reasoning. This has emerged due to the political set up present in the country, where there is a multi party system along with a federal set up, often resulting in disagreements on serious issues between the state and the central government. Since, there is no reasoning required from the President regarding the removal of the Governor and the plea of the Governor is not heard, the power of Article 156 is often misused by the Central Government which violates the principles of natural justice. The Governor, who doesn’t act according to the fanciful whims of the Central Government, often faces removal. It is unmistakable to note that the State Legislature has no say in the removal of a Governor.

In place of the present system, where the Governor is removed from his constitutional post with the withdrawal of the President’s pleasure, a system of impeachment should be followed. Impeachment as a system for removal for Governors is prevalent in various states in the United States of America, where the senators of the State vote in favour of conviction and a Governor is convicted with the concurrence of two-thirds of senators present.[xxxviii] This system is prevalent in majority of the states of U.S.A. India, a democracy like the U.S.A, can also adopt such a procedure in cases concerning removal of Governors.

The State is the most affected party in the due discharge of the roles and functions of the Governor, by way of signing of bills, passing ordinances which are to be later passed in the Assembly, recommending dissolution of a House, etc. It is thus only logical that the State, rather than the Centre, is given the power to remove the Governor. The impeachment of the Governor must be instituted in the State Legislature itself, as it is in the case of the impeachment of the President. Similarly, a resolution to such effect must be signed by at least 1/4th of the total members of whichever House of the State such resolution is introduced in. The Governor’s plea should be heard during proceedings for his removal. It is one of the fundamental provisions of the law which says that a person is not guilty until he is proven guilty. Thus, the Governor should be allowed to defend himself during the proceedings and be given an equal footing in putting forward his part of the arguments so as to follow the basic principles of natural justice which have been missing in the present form removal of the Governor. The Supreme Court of India may then examine the resolution in order to ensure the grounds of the resolution are not arbitrary or whimsical. The examination of such resolution must be in the Supreme Court as the judges of the High Court of the various States in India are themselves appointed by the Governor. Following such examination, as in the case of appointment, such a resolution will be passed only if the resolution is passed by special majority in each house, depending on whether the State consists of a bicameral legislature.


Conclusion

The culmination of the adoption of such procedures of appointment and removal of Governors of States would be that the Governor would not be under pressure to act as per the commands of the party in power at the Central Government would have no strings to pull on the Governor.

While it is indeed recognised that the Constitution of India aimed at the creation of a federal republic with a unitary structure, it is vital to identify that the political climate has changed from how it was in the 1950s. India today is no more reeling from the effects of the British colonialism.  The need to affect nationalism by way of concentrating power in the Central Government does not exist today. The States today are politically and economically much stronger as compared to the time of independence of India and are well bound to the nation, as also they recognise the inter-dependence and the advantages of being associated with the Union of India. At the same time, the Central Government remains at the apex of the political system. A transfer in the power of appointment and removal of a Governor to the State would not undermine the power of the Centre, for the Governor would still be bound to the Centre in matters of referring bills, recommendation of State Emergency when the situation in reality requires such a step to be taken, and in furthering general relations of good will between the Centre and the States, etc.  In the event that the power of appointment and removal of a Governor rests not with the Centre but with the State legislature itself, the Governor would be rather independent and free to act in a manner that best furthers the interests, not of the Centre, but of the concerned State.

References:

[i]Constitution of India, 1950 Art 156(1).

[ii] Hargovind Pant v. Dr. Raghukul Tilak 1979 SCR (3) 972.

[iii] Durga Das Basu, 4 Commentary on the Constitution of India (Justice C.K. Thakker et al. eds., 8th ed. Lexis Nexis Butterworths Wadhwa 2011).

[iv] Constitution of India, 1950 Art 74(1).

[v] Constitution of India, 1950 Art 74(1).

[vi] Hargovind Pant v. Dr. Raghukul Tilak 1979 SCR (3) 972.

[vii] AIR 1963 SC 779(786).

[viii] Om Narain Agarwal v. Nagar Palika, Shahjahanpur  AIR 1993 SC 1440 : (1993) 2 SCC 242.

[ix] Pratap Singh Raojirao Rane & … v. Governor of Goa & Others, AIR 1999 Bom 53.

[x] Ministry of Home Affairs, ‘SARKARIA COMMISSION AND ITS RECOMMENDATIONS’ (https://interstatecouncil.nic.in/ 1988)
< https://interstatecouncil.nic.in/Sarkaria_Commission.html> accessed November 5 2014.

[xi] ibid

[xii] Jyoti Basu, ‘India and The Challenges of The Twenty First Century’ (https://www.jyotibasu.net/ 1998)
<https://www.jyotibasu.net/?q=node/18 > accessed November 26 2014.

[xiii] Ministry of Home Affairs, ‘COMMISSION ON CENTRE-STATE RELATIONS’ (https://interstatecouncil.nic.in/ 2010)
< https://interstatecouncil.nic.in/downloads/volume2.pdf> accessed November 5 2014.

[xiv] Ministry of Home Affairs, ‘COMMISSION ON CENTRE-STATE RELATIONS’ (https://interstatecouncil.nic.in/ 2010)
< https://interstatecouncil.nic.in/downloads/volume2.pdf> accessed November 5 2014.

[xv] (2010) 6 SCC 331.

[xvi] B.P. Singhal v. Union of India (2010) 6 SCC 331.

[xvii] B.P. Singhal v. Union of India (2010) 6 SCC 331.

[xviii] B.P. Singhal v. Union of India (2010) 6 SCC 331.

[xix] B.P. Singhal v. Union of India (2010) 6 SCC 331.

[xx] Anviti Chaturvedi, ‘Removal of Governors: What does the Law say?’ (https://www.prsindia.org/ 2014)
< https://www.prsindia.org/theprsblog/?p=3286> accessed November 15 2014.

[xxi] Mahabir Prasad Sharma v. Prafulla Chandra Ghose and Others  AIR 1969 Cal 198.

[xxii] Rao Birinder Singh v. The Union of India and Others AIR 1968 Punj 441.

[xxiii] Bijayananda Patnaik and Others  v. President of India and Others AIR 1974 Orissa 52.

[xxiv] S. R. Bommai v. Union of India 1994 AIR 1918.

[xxv] Lok Sabha Assembly Debates, ‘STATUTORY RESOLUTIONS RE. APPROVAL OF PROCLAMATIONS IN RELATION TO THE STATES OF UTTAR PRADESH, MADHYA PRADESH, HIMACHAL PRADESH AND RAJASTHAN’ (https://parliamentofindia.nic.in/ 1992)
< https://parliamentofindia.nic.in/ls/lsdeb/ls10/ses5/1822129201.htm> accessed November 15 2014.

[xxvi] Ibid.

[xxvii] Priyanka Kakodkar, ‘Shifted to Mizoram abruptly, Maharashtra Governor quits’ (https://www.thehindu.com/ 2014)
< https://www.thehindu.com/news/national/maharashtra-governor-likely-to-quit-office/article6346837.ece> accessed November 17 2014.

[xxviii] B.P. Singhal v. Union of India (2010) 6 SCC 331.

[xxix] Sanjay Kumar, ‘Governors in the firing line’ (https://www.thehindu.com/ 2014)
< https://www.thehindu.com/opinion/lead/governors-in-the-firing-line/article6183228.ece> accessed November 19 2014.

[xxx] Ibid.

[xxxi] B.P. Singhal v. Union of India (2010) 6 SCC 331.

[xxxii] Yahoo India, ‘Prodded by Modi Government, UPA appointed governors resign’ (https://in.news.yahoo.com/  2014)
< https://in.news.yahoo.com/prodded-by-modi-government–upa-appointed-governors-resign-093059819.html> accessed November 13 2014.

[xxxiii] Priyanka Kakodkar, ‘Shifted to Mizoram abruptly, Maharashtra Governor quits’ (https://www.thehindu.com/ 2014)
< https://www.thehindu.com/news/national/maharashtra-governor-likely-to-quit-office/article6346837.ece> accessed November 17 2014.

[xxxiv] Constitution of South Africa 1996, §128.

[xxxv] Constitution of India, 1950 Art 158.

[xxxvi] Constitution of India, 1950 Art 100(3).

[xxxvii] H.M. Seervai, Constitution Law of India (4th ed. Universal Law Pub Co.P.Ltd. – Delhi 2013 p.3103).

[xxxviii]Va. Const. art. III, § 17.

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