Though envisaged as a position above politics, successive Governments have reduced the high office of the Governor to a cozy retirement benefit for politicians past their prime, and former bureaucrats who served their masters faithfully
The Office of the Governor is often a subject of political controversy, and a Governor’s removal from office evokes an even greater controversy than his appointment. Traditionally, politicians, who have become non-performing assets, and retired bureaucrats, who were particularly helpful to the ruling dispensation, have been appointed Governors. This ‘hallowed’ tradition hasn’t been discontinued by any political party.
Article 155 of the Constitution says that the Governor of a State shall be appointed by the President. Article 156 says that the Governor shall hold office during the pleasure of the President. Clause 3 of this Article says that, subject to the pleasure of the President and his own voluntary resignation, the Governor shall hold office for a period of five years from the date on which he enters upon his office.
In our constitutional scheme, the Governor plays an important role in the State. When the State is under President’s rule, for instance, the Governor becomes its head. But strangely, the Constitution does not lay down any criteria for the appointment of a Governor except saying that he should be an Indian citizen and should have completed 35 years of age.
There were elaborate discussions in the Constituent Assembly on the role of the Governors, on whether they should be appointed or elected, and how they should be removed. In fact, amendments were moved by the likes of KT Shah and Shibban lal Saxena to lay down specific conditions for the removal of a Governor. But no criteria were delineated for selection to the post of Governor.
While the Constitution lays down the rules for nominating members to the Rajya Sabha, it is intriguing that there are no guidelines in the case of Governors. The Constituent Assembly debates indicate that the general thinking was in favour of appointing men of eminence who would “represent before the public something above politics”. Successive Governments should have respected the views of the Constituent Assembly and created a tradition of appointing men of eminence, and not just politicians and bureaucrats looking for cosy post-retirement positions.
It has now become a convention for a new Government, led by a different party than its predecessor, to get rid of Governors appointed by the previous regime. In 2004, the Congress-led UPA removed Governors appointed by the BJP, even though the BJP-led NDA Government of Prime Minister Atal Bihari Vajpayee had not resorted to this practice in 1999. Now the new Government in New Delhi has instructed the Home Secretary to informally ask UPA-appointed Governors to quit. Some have resigned but others — mostly politicians — are resisting the pressure.
Until four years ago, it was assumed that the Governors could be sacked by just withdrawing presidential pleasure, which means the pleasure of the Government of the day. But in 2010, the Supreme Court handed down a judgement (BP Singhal versus Union of India), which put certain restrictions on the removal process. It said that the President can withdraw his pleasure — in other words, sack the Governor — only on the basis of valid and compelling reasons. The act should not be mala fide, capricious and whimsical. The judgement categorically said that change of Government is no ground for changing Governors. The court made clear that if the reasons for the removal of a Governor are arbitrary or whimsical, it would re-instate the sacked Governor.
In the light of this judgement, what are the options now available to the PresidentIJ The court has said that the reason for removal should be valid and compelling but has not laid down any universally acceptable reasons. Validity is to be decided on a case by case basis. The court also said that it will not intervene merely on the ground that a different view is possible or that the material or reasons are insufficient. A close analysis of the judgement reveals that the Supreme Court has not laid down any absolutist criteria. This is clear from the Court’s observation that, “Removal as a consequence of the withdrawal of pleasure will be assumed to be valid”.
It is not difficult for a Government to find valid and relevant reasons for the removal of a Governor. The Union Ministry of Home Affairs must be having enough information about the activities of a Governor. If a Governor indulges in political activities covertly, it will be valid ground for withdrawing the pleasure of the President. Similarly, if he or she is closely associated with some activity investigated by agencies, the continuance of such a person in Raj Bhavan will become untenable. If a person who was involved in a criminal activity has been made a Governor, the next Government has a valid and compelling reason to remove him. All that the Supreme Court says is that the proximate cause of removal should not be change of Government or that the Governor is not sync with the politics and ideologies of the new regime.
So, while it is true, as many believe, that the Supreme Court has barred a new Government from dismissing Governors appointed by the previous regime, the point to be noted here is that the judiciary will intervene only if an aggrieved Governor can prove beyond doubt that his or her removal was mala fide, whimsical and arbitrary. The court wants that there should be valid reason for the removal, which may not be even sufficient. But it will not look beyond that. So, the Government can kick the ball out of its court with an ease of conscience.
(The writer is former Secretary General of the lok Sabha)