The Supreme Court on the removal of Governors

An issue of great Constitutional significance, and which has been discussed and debated in public fora for several years, was finally discussed by a Constitutional Bench of the Supreme Court in May this year. In BP Singhal v. Union of India, the Supreme Court was called on to consider the removal of Governors, and the restrictions, if any, which may be imposed on the process of removal by the President. This decision has been widely reported as having placed checks on the arbitrary removal of Governors. Unfortunately, while the Court did lay to rest some misconceptions that had been harboured about the process and grounds of removal, on a closer examination, the checks on arbitrariness which the Court has laid down cannot be taken to more than an illusory and symbolic assurance.

Article 156 of the Indian Constitution reads-

(1) The Governor shall hold office during the pleasure of the President.

(2) The Governor may, by writing under his hand addressed to the President, resign his office.

(3) Subject to the foregoing provisions of this article, a Governor shall hold office for a term of five years from the date on which he enters upon his office:

Provided that a Governor shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office. [emphasis supplied]

The primary contention of the petitioner was that clause (1) of Article 156 should be read down in light of the tenure of five years provided in clause (3). Further, in a democratic system of governance, it was contended that the ‘pleasure principle’ cannot be as unfettered as it was in feudal England (where it originated), but must necessarily be bound in by some guidelines, and be subject to judicial review. The respondent refuted these contentions on the text of the provision, which explicitly subjects the tenure (in clause (3)) to the pleasure of the President (in clause (1)). Further, since the President’s decision is based on the ‘aid and advice’ of the Council of Ministers, which is free of judicial review under Article 74(2), there was no possibility of subjecting the removal of a Governor to judicial review.

The Court made an encouraging start, discussing the feudal origins of the ‘doctrine of pleasure’, observing that “[t]here is a distinction between the doctrine of pleasure as it existed in a feudal set-up and the doctrine of pleasure in a democracy governed by rule of law”. However, it is important to note that in provisions like Article 311(2), the drafters have included specific limitations on the doctrine of pleasure, which are absent in Article 156. The Court noted this difference, concluding however, that this did not preclude the existence of even the most limited restrictions on the exercise of the power of removal under Article 156. While the requirement of a fair hearing, or an inquiry (as contained in Article 311(2)) could not be read into Article 156, the basic requirement that the power not be exercised whimsically or capriciously must nevertheless be considered an essential part of the power of removing Governors. In the words of the Court,

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’.

The Court also considered the recommendation of the Sarkaria Commission and the Consultation Paper on ‘Institution of Governor under the Constitution’ published by the National Commission to Review the Working of the Constitution, both of which have made a strong case for reading in detailed guidelines into Article 156. However, while noting these recommendations, the Court, in a refreshing act of judicial economy, observed

These recommendations howsoever logical, or deserving consideration and acceptance, remain recommendations. They cannot override the express provisions of the Constitution as they stand. Nor can they assist in interpreting Article 156. The very fact that such recommendations are made, shows that the position under the existing Constitutional provisions is otherwise. They are suggestions to be considered by those who can amend the Constitution. They do not assist in interpreting the existing provisions of the Constitution.

Next, the Court went on to elaborate what seems to be the most important part of its reasoning. In oral arguments, even the respondent (Union of India) had pressed its contention that the discretion of the President in the removal of a Governor is completely unfettered. However, one of the permissible grounds for removal suggested was the Governor not ‘being in sync’ with the policies if the Central Government, and that a Governor could be removed if and when the Central Government ‘lost confidence’ in her/him. However, the Court noted that the political scenario has undergone a sea change over the last several years, and different parties are often in power at the Centre and the State. Allowing ‘confidence’ to be a ground for removal would thus allow the politicisation of the post of a Governor, which was specifically intended to be an apolitical Constitutional post. The Court stated, in no uncertain terms, that disparity in policies of loss of confidence were not sufficient grounds for removal. While this seems a satisfactory conclusion, what is unclear from the decision is whether this view was prompted by the necessity of fetters on the pleasure of the President, or by the change in India’s political scenario. The decision suggests that it is the latter of the two considerations that influenced the Court. While that may be natural, modelling Constitutional interpretation on political considerations seems suspect.

That brings me to the last part of the decision, regarding the permissibility of judicial review of the removal of a Governor. The Court observed that the Constituent Assembly Debates suggested that the power of removal was never intended to be unfettered. Further, it noted that while the President could not be called on to provide reasons for removal to the Governor, this does not preclude judicial review. The Court observed “Therefore, while we do not accept the contention that an order under Article 156 is not justiciable, we accept 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”. An analogy was drawn to the power of Presidential pardon, which also allowed for a limited degree of judicial review. The Court elaborated this limited extent of review in the following words,

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.

While this serves as a good starting point, unfortunately the Court fails to go any further in elaborating the precise import of the broad terms employed in the above extract. Apart from the prohibition on using ‘lack of confidence’ as a ground for removal, the Court does not provide any idea of what the legitimate grounds may be, contenting itself with the observation that “What would be compelling reasons would depend upon the facts and circumstances of each case”. Thus, while the decision serves the important function of providing that there must be some grounds on which the removal must be based, it is steadfastly quiet on what these grounds are. Further, since there is no requirement of disclosing the grounds for removal to the Governor, establishing the prima facie case required by the Court is also well-nigh impossible, except in rare cases.

Now, it is true that the degree to which the Court can review the removal of a Governor is necessarily circumscribed by the text of the Constitution, and the powers provided therein. Allowing for any more powers of review, or stricter guidelines on the removal of a Governor, would have done violence to the provisions of the Constitution. Within the confines of the Constitution as it exists, the Court has done the best it could for limiting arbitrary removal. Absent a Constitutional amendment, we are still a long way away from imposing a realistic limitations on the removal of Governors. However, Constitutional jurisprudence abounds with examples where symbolic dicta have served an important function is influencing the development of the law (Marbury v. Madison being an ideal example of the value of symbolism). Given the immense symbolic value of BP Singhal, it is nevertheless an important symbolic step towards accountability of the Centre in removing Governors.