Writ Petition (Civil) No. 296 of 2004 and TP (Civil) No. 663 of 2004. Case: B.P. Singhal Vs Union of India (UOI) and Anr.. Supreme Court
|Case Number:||Writ Petition (Civil) No. 296 of 2004 and TP (Civil) No. 663 of 2004|
|Party Name:||B.P. Singhal Vs Union of India (UOI) and Anr.|
|Judges:||K.G. Balakrishnan, C.J., S.H. Kapadia, R.V. Raveendran, B. Sudershan Reddy and P. Sathasivam, JJ.|
|Issue:||Government of India Act, 1935; Civil Procedure Code (CPC) - Section 60; Constitution of India - Articles 2, 32, 56, 61, 72, 74, 74(2), 75, 75(2), 76, 76(4), 124, 148, 153, 154, 155, 156, 156(1), 156(3), 159, 164(1), 165(3), 176, 218, 310, 310(1), 310(2), 311, 311(1), 311(2), 319, 324, 356(1) and 371F|
|Citation:||2010 (4) AWC 3617 (SC), 2010 (5) SCALE 134, (2010) 6 SCC 33, 2010 (5) UJ 2511 (SC)|
|Judgement Date:||May 07, 2010|
R.V. Raveendran, J.
1. This writ petition under Article 32 of the Constitution of India, raising a question of public importance involving the interpretation of Article 156 of the Constitution, has been referred to the Constitution Bench, by a two Judge Bench of this Court on 24.1.2005.
2. The writ petition is filed as a public interest litigation in the wake of the removal of the Governors of the States of Uttar Pradesh, Gujarat, Haryana and Goa on 2.7.2004 by the President of India on the advice of the Union Council of Ministers. The petitioner sought: (a) a direction to the Union of India to produce the entire files, documents and facts which formed the basis of the order dated 2.7.2004 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.
The relevant constitutional provisions
3. Article 153 of the Constitution provides that there shall be a Governor for each State. Article 154 vests the executive power of the state in the Governor. Article 155 provides that the Governor of a State shall be appointed by the President, by warrant under his hand and seal. Article 156 relates to term of office of Governor and is extracted below:
156. Term of office of Governor.--(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.
Submissions of Petitioner
4. The petitioner submits that a Governor, as the Head of the State, holds a high constitutional office which carries with it important constitutional functions and duties; that the fact that the Governor is appointed by the President and that he holds office during the pleasure of the President does not make the Governor an employee or a servant or agent of the Union Government; and that his independent constitutional office is not subordinate or subservient to the Union Government and he is not accountable to them for the manner in which he carries out his functions and duties as Governor. It is contended that a Governor should ordinarily be permitted to continue in office for the full term of five years; and though he holds office during the pleasure of the President, he could be removed before the expiry of the term of five years, only in rare and exceptional circumstances, by observing the following constitutional norms and requirements:
(a) The withdrawal of presidential pleasure under Article 156, cannot be an unfettered discretion, nor can it be arbitrary, capricious, unreasonable or malafide. The power of removal should be used only if there is material to demonstrate misbehaviour, impropriety or incapacity. In other words, that removal should be only on existence of grounds which are similar to those prescribed for impeachment in the case of other constitutional functionaries.
(b) Before a Governor is removed in exercise of power under Clause (1) of Article 156, principles of natural justice will have to be followed. He should be issued a show cause notice setting out the reasons for the proposed removal and be given an opportunity of being heard in respect of those reasons.
(c) The removal should be by a speaking order so as to apprise him and the public, of the reasons for considering him unfit to be continued as a Governor.
It is also contended that the withdrawal of presidential pleasure resulting in removal of a Governor is justiciable, by way of judicial review.
5. During the hearing, the petitioner slightly shifted his stand. Mr. Soli J. Sorabjee, learned senior counsel appearing on behalf of the petitioner, submitted that to ensure the independence and effective functioning of Governors, certain safeguards will have to be read as limitations upon the power of removal of Governors under Article 156(1) having regard to the basic structure of the Constitution. He clarified that the 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 tenure will be achieved by fixing the norms for removal. On the other hand, recognizing an unfettered discretion will subject a Governor to a constant threat of removal and make him subservient to the Union Government, apart from demoralizing him. Therefore, the removal should conform to the following constitutional norms:
Norm 1 - Removal of Governor to be in rare and exceptional circumstances, for compelling reasons which make him unfit to continue in office: The tenure of a Governor is five years under Clause (3) of Article 156. But Clause (3) is subject to Clause (1) of Article 156 which provides that a Governor holds office during the pleasure of the President. This only means that he could be removed any time during the said period of five years, for compelling reasons which are germane to, and having a nexus with, the nature of his office and functions performed by him, as for example, (a) physical or mental disability; (b) corruption; (c) violation of Constitution; and (d) misbehavior or behaviour unbecoming of a Governor rendering him unfit to hold the office (that is indulging in active politics or regularly addressing political rallies, or having links with anti-national or subversive elements, etc.). The removal of a Governor under Article 156 cannot be with reference to the ideology or personal preferences of the Governor. Nor can such removal be with any ulterior motives, as for example, to make place for another person who is perceived to be more amenable to the central government's wishes and directions, or to make room for a politician who could not be accommodated or continued in the Council of Ministers.
Norm 2 - A Governor should be apprised of the reasons for removal: Though there is no need for a formal show cause notice or an enquiry, principles of fair play requires that when a high constitutional functionary like the Governor is sought to be removed, he should be apprised of the reasons therefore.
Norm 3 - The order of removal is subject to judicial review: In a democracy based on Rule of Law, no authority has any unfettered and unreviewable discretion. All powers vested in all public authorities, are intended to be used only for public good. Therefore, any order of premature removal of a Governor will be open to judicial review.
Submissions of respondents
6. The respondents in their counter affidavit have 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 in 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. Therefore, it is impermissible to read any kind of limitations into the power under Article 156(1). 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). It was therefore urged that on both these grounds, the removal of Governor is not justiciable.
7. The learned Attorney General appearing on behalf of the respondents raised a preliminary objection to the maintainability of the writ petition. He submitted that if the four Governors who were removed, do not 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. On merits, he submitted that the provision that the Governor shall hold office during the pleasure of the Government meant that the President's pleasure can be withdrawn at any time resulting in the removal of the Governor, without assigning any reason. He submitted that the founding fathers had specifically provided that Governors will hold office during the pleasure of the President, so as to provide to the Union Government, the flexibility of removal if it lost confidence in a Governor or if he was unfit to continue as Governor. He shifted from the stand in the counter that the power under Article 156(1) is an unfettered discretion. He submitted that a provision that the Governor shall hold office during the pleasure of the President, is not a licence to act arbitrarily, whimsically or capriciously. The Union Government did not claim any right to do what it pleases, as Constitution abhors arbitrariness and unfettered discretion. He stated that the removal should be for a reason, but such reason need not be communicated. He also submitted that removal by applying the doctrine of pleasure need not necessarily relate to any act or omission or fault on the part of the Governor. He submitted that in essence, the object of providing that the Governor shall hold office during the pleasure of the President was that if the President lost faith in the Governor or found him unfit for whatever reason, he can withdraw the presidential pleasure resulting in removal. He submitted that the pleasure doctrine cannot be denuded of its width, by restricting its applications to specific instances of fault or misbehavior on the part of the Governor, or by implying an obligation to assign or communicate any reason for the removal.
8. The learned Attorney General submitted that in a democracy, political parties are formed on shared beliefs and they contest election with a declared...
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