21 April 2015 2:05 PM GMT
Recently the NDA Government sacked Mr. Aziz Qureshi, Governor of Mizoram. Last year Mr. Qureshi had fiercely objected to being asked to put in his papers and later dragged the Government to the Supreme Court against attempts to remove him. As Governor of Uttarakhand he had alleged that the then Home Secretary Anil Goswami, had called him on the Government’s behalf, asking him to put in...
Recently the NDA Government sacked Mr. Aziz Qureshi, Governor of Mizoram. Last year Mr. Qureshi had fiercely objected to being asked to put in his papers and later dragged the Government to the Supreme Court against attempts to remove him. As Governor of Uttarakhand he had alleged that the then Home Secretary Anil Goswami, had called him on the Government’s behalf, asking him to put in his papers or face a transfer for certain allegedly inappropriate comments on rapes that were attributed to him during his tenure as Uttar Pradesh Governor. On 28th March, 2015, a communiqué from the Rashtrapati Bhawan said that Mr. Aziz Qureshi ceased to hold the office of the Governor of Mizoram and Keshari Nath Tripathi, Governor of West Bengal, would discharge the functions of the Governor of Mizoram, in addition to his own duties. Mr. Tripathi already holds additional charge of Bihar, Meghalaya.
Before Mr. Qureshi, the BJP Government forced some Governors appointed by the previous UPA Government to resign. Some were transferred and sacked, and the Damocles’ sword continues to hang over others. The NDA has termed this a routine reshuffle required by the new political mandate after the Lok Sabha elections. But it is untenable from constitutional law point of view.The argument is that replacement of political figures appointed by the previous Government was a political imperative of the electoral verdict. The UPA had done the same after change of guards at the Centre in 2004. Now the NDA is repeating what the UPA had done. And the replacements made by it are equally partisan. The Governments are treating the Governors like footballs which is clearly against the spirit of the Constitution.
The debate over the functions and role of the Governor and qualifications for the post is not new. The Constituent Assembly debated whether appointments being vested in the President amounted to the Governor being a representative of the Centre at the provincial level. In 1967, a study team of the administrative reforms commissions on Centre-State relations expressed misgivings about the way the post had been treated as a sinecure. Other committees questioned the emphasis on the Governor being merely an appointee of the Central Government and the frequent removals and transfers made by various Union Governments.
The Governor is a constitutional head of the State Government who is appointed by the President and holds his office during the pleasure of the latter. A Governor’s normal term of office is five years. But he can be removed by the President at any time without assigning any cause. In actual practice, the Governors are appointed by the President on the advice of the Council of Ministers headed by the Prime Minister as mandated under Article 74(1) of the Constitution. He can also be removed by the President on the advice of the Council of Ministers. The Governor is obliged to act on the aid and advice of the Council of Ministers headed by the Chief Minister in the exercise of his powers and functions as per Article 163 of the Constitution except in a few areas where he can act on his discretion. (Samsher Singh v. State of Punjab, (1974) 2 SCC 831). The Governor does not have any security of tenure and he is in a worse position than a class fourth employee. Whenever the Government in New Delhi is changed, generally the tenants of Raj Bhawans are also changed on political reasons so that new political animals could be accommodated in those places. This practice has plagued our polity and has degraded the prestige of the office of the Governor.
In 1979, a Constitution Bench of the Supreme Court in Hargovind Pant v. Raghukul Tilak held that Governors are not “subordinate or subservient to the Government of India” and that the post is an independent constitutional office, “which is not subject to the control of the Government of India”. The Governor is “constitutionally the head of the State in whom is vested the executive power of the State”. Again, in 2010, this paradoxical position was considered by a Constitution Bench comprising then Chief Justice K. G. Balakrishnan, and Justices S. H. Kapadia, R. V. Raveendran, B. Sudershan Reddy and P. Sathasivam, in its judgment delivered on May 7, 2010, in a writ petition filed by B.P. Singhal in the wake of the removal of the Governors of the states of Uttar Pradesh, Gujarat, Haryana and Goa on July 2, 2004, by the President of India on the advice of the Union Council of Ministers.
Former Attorney-General, Soli Sorabjee appeared for Singhal and contended that exercise of power under Article 156(1) for removal of a Governor is not absolute but subject to judicial review, and that the exercise of power must be for valid reasons pertaining to the discharge of the office of the Governor and further, that the Governor should be given notice and a hearing and furnished reasons for his removal. The Union Government’s formidable contention was that it had the right to remove a Governor without attributing any fault to her, if the President lost confidence in a Governor or found that he is out of sync with the democratic and electoral mandate.
Justice Raveendran, speaking for the Bench after an elaborate consideration of constitutional provisions and judicial precedents, held that the exercise of power of removal of a Governor is justiciable. The Bench ruled that the power of premature removal of a Governor can be only for valid reasons and must be exercised in a manner that is not arbitrary, capricious or unreasonable. The Bench held 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, or on the ground that the Union Government has lost confidence in him. Remember that the Governor is not an employee of the Centre. It follows, therefore, that a mere change in Government at the Centre is not a ground per se for the removal of Governors holding office to make way for others favoured by the new Government. But this message was completely ignored by the Modi Government when it sacked the UPA Government appointed Governors like Aziz Qureshi.
The Bench rejected the submission about notice and hearing to be given to the Governor and reasons to be supplied to him before his premature removal. It, however, emphasized that this power will have to be exercised in rare and exceptional circumstances and for valid and compelling reasons. It is significant that the Court ruled that the compelling and valid reasons are not restricted to physical/ mental disability, corruption and behaviour unbecoming of a Governor for removal. It clarified that there may be other compelling reasons which would depend upon the facts and circumstances of each case. On a correct reading of the judgment, it is clear that if there is material on record that establishes a Governor’s actions were motivated by partisan political considerations or that he acted as an agent of the Centre overriding the interests of the State that would certainly furnish sufficient cause for her removal. But in case of Aziz Qureshi the President did not furnish any reasons of his removal. It appears that the President ignored the judicial verdict in B. P. Singhal case.
The court was at pains to emphasize that although the President need not disclose or inform the cause of his removal to the Governor, it is imperative that a cause must in fact exist. The court delineated the scope of limited judicial review by observing that if the aggrieved person is able to demonstrate prima facie that his removal was either arbitrary, mala fide, capricious or whimsical, the court will call upon the Union Government to disclose to the court (not to the Governor) the material upon which the President had taken the decision. If the Union Government does not disclose any reason, or if the reasons disclosed are found to be irrelevant, arbitrary, whimsical or mala fide, the court will interfere. Thereafter follows a judicial caveat that the court will not interfere merely on the ground that a different view is possible or that the material or reasons are insufficient.
Apparently, hopes of successful judicial redress by Governors like Aziz Qureshi who are removed are not too bright though it is certainly subject to judicial review. However, it would be befitting and also expedient if they resigned, rather than stuck to their gubernatorial chairs and tried their luck in the courts. If the Governors engage in litigation against the Central Government, that gives a bad name to our democracy. The people who adorn the Raj Bhawans should understand this naked truth.
In view of the above it is submitted that the time has come when the Constitution should be amended to give security of tenure to the Governor. The Governor is the head of the state and he cannot be removed at one stroke just after the change of guard at the Centre. Twenty years ago, the Sarkaria Commission recommended clear guidelines for the appointment and removal of the Governor. But unfortunately, few of these have been implemented and rest is thrown into the dustbin. Even the recent judicial verdict has also been ignored by the NDA Government. The post of the Governor continues to be used to distribute favors to senior political figures and almost used in a manner that has undermined the legitimacy of this constitutional position. In fact, the Raj Bhawans have become the heavens for accommodating retired politicians and bureaucrats.
The argument that the post of Governor is an anachronous institution appears tempting at first, but it will be inadvisable to do away with this post in our present constitutional framework. The Governor provides some checks and balances on the actions of the State Government. The Governors are links between the Centre and the States. While there are examples of mala fide actions by Governors particularly the misuses of Article 356, there are also cases of Governors acting in public interest and against mala fide actions of the State Executive. Some of the more egregious misuses of the Governor’s position have reduced over time and increasing salience of regional parties in national polity will discourage arbitrary action by the Centre through the institution of Governors.
It is, however, time for a thorough review of the Governor’s powers and the process of appointment and removal. Some of the conventions which have been neglected by the Central Government may need to be given the force of law while new rules and conventions may need to be put in place so that the ability of the Central Government to misuse this office is curtailed, while the Governor’s ability to fulfill his or her constitutional mandate is strengthened. Some of the recommendations of the Sarkaria Commission are still relevant. For instance, active politicians should be kept away and the State Government should be actively consulted while making the appointment. The ruling party should convene an all-party meeting and consult other stakeholders such as jurists to review the role of the Governors, the powers exercised by him and the manner in which he should be appointed and removed. The Constitution should be amended and security of tenure must be provided to the Governors. The judgment of the Supreme Court delivered in B. P. Singhal case is the law of the land and the Government should respect it. The Governors should be treated with dignity, and should not be fired only for political considerations. The Constitution of the land of Mahatma prohibits the arbitrary exercise of power and the Government is not an exception to the equality law.
Dr. Lokendra Malik is an Advocate at Supreme Court of India and a well known author.