B.P. Singhal v. Union of India, 2010 (4) AWC 3617 (SC)

FACTS OF THE CASE

The writ petition in this case was filed as a Public Interest Litigation. The President of India on the advice of Union Council of Ministers removed the Governors of 4 states i.e. Haryana, Uttar Pradesh, Gujarat and Goa on 2^nd July 2004.

This case is counted in one of the landmark cases regarding removal of governors and president’s pleasure. Supreme Court’s decision was in the favour of respondent i.e. union of India but also said that the removal must not be malafide and arbitrary.

The writ petition was filed under Article 32 of the Constitution of India. The Petitioner demanded these from the court: (a) a direction to the union of India to produce the entire files, documents and facts which formed the basis of the order dated 2^nd July 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.

ISSUES RAISED

Whether the petition is maintainable?

What is the scope of “doctrine of pleasure”?

Whether there are any express or implied limitations upon the power under article 156(1) of the constitution of India?

Whether the removal of governors in exercise of the doctrine of pleasure is open to judicial review?

CONTENTIONS OF PETITIONER

The petitioner mentioned that the Governor is the Head of his state and he holds a high constitutional office with his functions and duties. Governor is appointed by president – it does not make him employee or a servant or an agent of the Union Government. Governor holds independent constitutional office and he should be permitted to continue in office for the full terms of five years.

The petitioners clarified that petitioner’s submission is not that a governor has a fixed irremovable tenure of five years, but that there should be some certainty of tenure so that he can discharge the duties and functions of his constitutional office effectively and independently. Certainty of removal can be achieved by fixing the norms of removal.

Though, he is appointed during the pleasure of president, he could be removed from the office in some exceptional circumstances only. The withdrawal of presidential pleasure under Article 156 cannot be arbitrary, capricious, unreasonable or malafide. The power of removal should be used only in the case of misbehaviour, impropriety or incapacity. The removal of governors should be equal to impeachment.

Before a governor is removed under clause (1) of Article 156, natural justice will have to be followed. A notice should be issued with the reasons of proposed removal. The order of removal is subject to judicial review. Any order of premature removal of a governor will be open to judicial review in democracy based on rule of law.

CONTENTIONS OF RESPONDENTS

The respondents contended that the power of the president to remove a governor under article 156(1) is absolute and unfettered.  The term of five years provided Article 156(3) is subject to the doctrine of pleasure contained in article 156(1). The constitution does not place any restrictions or limitations upon the doctrine of pleasure.

The power of removal is exercised by the president on the advice of the council of ministers. The advice tendered by the council of ministers cannot be inquired into by any court, having regard to the bar contained in Article 74(2).

The attorney general on behalf of the respondents raised a question on the maintainability of the writ petition. The Attorney General submitted that if the four Governors, who were removed, don’t wish to seek any relief and have accepted their removal without protest, no member of the public can bring a Public Interest Litigation for grant of relief to them.

He further mentioned that the founding fathers had especially provided that governors will hold office during the pleasure of president. President’s pleasure can be withdrawn at any time and governors can be removed at any time even without assigning any reason.

RELATED PROVISIONS

ARTICLE 156 OF THE CONSTITUTION OF INDIA

Article 156 mentioned ‘Term of office of Governor’ as written below:-

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 for a term of five years from the date on which he enters upon his office.
4. Provided that a governor shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office

JUDGEMENT

Court was on the fact that president has power to remove governor because he holds office during pleasure of president. He can remove governor from office at any time without assigning any reason. The governor can be removed at any time but it does not be an arbitrary, capricious or unreasonable manner.

CONCLUSION

This was a landmark judgement on removal of governors and pleasure of president. This judgement gave power of president to take a decision about removal of governor. The president is superior and can remove any person without any assigning reason. The governor is a head of his state but gets his office by president so he is bound to president for his office. The court also mentioned that the governor can’t be changed because of change in union government.

This article is written by Diksha Gupta of NIMS School of Law, an intern under Legal Vidhiya.

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