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TMI Blog2010 (5) TMI 784X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... removed from office, is not maintainable as none of the aggrieved persons had approached the court for relief and the writ petitioner has no locus to maintain a petition seeking relief on their behalf. It is pointed out that Governors do not belong to a helpless section of society which by reason of poverty, ignorance, disability or other disadvantage, is not capable of seeking relief. Reliance is placed on the following observations of this Court in S.P. Gupta vs. Union of India - 1981 (Supp) SCC 87 : .....cases may arise where there is undoubtedly public injury by the act or omission of the State or a public authority but such act or omission also causes a specific legal injury to an individual or to a specific class or group of individuals. In such cases, a member of the public having sufficient interest can certainly maintain an action challenging the legality of such act or omission, but if the person on specific class or group of persons who are primarily injured as a result of such act or omission, do not wish to claim any relief and accept such act or omission willingly and without protect, the member of the public who complains of a secondary public injury cannot mai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r there is a public wrong or public injury caused by an act or omission of the State or a public authority which is contrary to the Constitution or the law, any member of the public acting bona fide and having sufficient interest can maintain an action for redressal of such public wrong or public injury. The strict rule of standing which insists that only a person who has suffered a specific legal injury can maintain an action for judicial redress is relaxed and a broad rule is evolved which gives standing to any member of the public who is not a mere busy-body or a meddlesome interloper but who has sufficient interest in the proceeding. 11. A similar public interest litigation came up before a Constitution Bench of this Court in Ranji Thomas v. Union of India - 2000 (2) SCC 81, seeking intervention of this court to restrain the President of India from forcibly extracting resignations from various Governors and Lt. Governors. Prayer (a) therein sought quashing of the resignations of certain Governors and Lt. Governors and prayer (b) sought a direction restraining the President from accepting the involuntary and forced resignation of Governors and Lt. Governors. Prayer (c) w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner, the term which is applicable to civil servants in general, namely, that the Crown may put an end to the employment at its pleasure. It seems to me that it is the public interest which has led to the term which I have mentioned being imported into contracts for employment in the service of the Crown. The cases cited show that, such employment being for the good of the public, it is essential for the public good that it should be capable of being determined at the pleasure of the Crown, except in certain exceptional cases where it has been deemed to be more for the public good that some restrictions should be imposed on the power of the Crown to dismiss its servants. (emphasis supplied) 12.1) In Shenton v. Smith [1895 AC 229], the Privy Council explained that the pleasure doctrine was a necessity because, the difficulty of dismissing those servants whose continuance in office was detrimental to the State would, if it were necessary to prove some offence to the satisfaction of a jury (or court) be such, as to seriously impede the working of the public service. 12.2) A Constitution Bench of this Court in Union of India v. Tulsiram Patel - (1985) 3 SCC 398 explained t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licy and the stipulation cannot derogate from the power of the Crown to dismiss at pleasure, and this would apply to a stipulation that the service was to be terminated by a notice of a specified period of time. Where, however, the law authorizes the making of a fixed term contract, or subjects the pleasure of the Crown to certain restrictions, the pleasure is pro tanto curtailed and effect must be given to such law. 12.5) Black's Dictionary defines `Pleasure Appointment' as the assignment of someone to employment that can be taken away at any time, with no requirement for notice or hearing. 13. There 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. In a nineteenth century feudal set-up unfettered power and discretion of the Crown was not an alien concept. However, in a democracy governed by Rule of Law, where arbitrariness in any form is eschewed, no Government or Authority has the right to do what it pleases. The doctrine of pleasure does not mean a licence to act arbitrarily, capriciously or whimsically. It is presumed that discretionary powers conferred in absol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 311. Even in regard to cases falling within the proviso to clause (2) of Article 311, the application of the doctrine is not unrestricted, but moderately restricted in the sense that the circumstances mentioned therein should exist for its operation. The Canadian Supreme Court in Wells v. Newfound land [1999 (177) DL (4th) 73(SCC)] has concluded that at pleasure doctrine is no longer justifiable in the context of modern employment relationship. 16. In Abdul Majid (supra), this Court considered the scope of the doctrine of pleasure, when examining whether the rule of English Law that a civil servant cannot maintain a suit against the State or against the Crown for the recovery of arrears of salary as he held office during the pleasure of the crown, applied in India. This Court held that the English principle did not apply in India. This Court observed : It was suggested that the true view to take is that when the statute says that the office is to be held at pleasure, it means at pleasure , and no rules or regulations can alter or modify that; nor can section 60 of the Code of Civil Procedure, enacted by a subordinate legislature be used to construe an Act of a superior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vided by this Constitution, every person who is a member of a defence service or of a civil service of the Union or of an all- India service or holds any post connected with defence or any civil post under the Union holds office during the pleasure of the President, and every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor of the State. xxxxxx 311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State : - (1) xxxxxxx (2) - No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. This Court in P.L. Dhingra v. Union of India - AIR 1958 SC 36, referred to the qualifications on the pleasure doctrine under Article 310: Subject to these exceptions our Constitution, by Art. 310(1), has adopted the English Common Law rule that public servants hold office during the pleasure of the President or Governor, as the case may be and has, by Art. 311, imposed tw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed absolutely without any restrictions (Ministers, Governors, Attorney General and Advocate General); (ii) Offices to which doctrine of pleasure applied with restrictions (Members of defence service, Members of civil service of the Union, Member of an All-India service, holders of posts connected with defence or any civil post under the Union, Member of a civil service of a State and holders of civil posts under the State); and (iii) Offices to which the doctrine of pleasure does not apply at all (President, Judges of Supreme Court, Comptroller Auditor General of India, Judges of the High Court, and Election Commissioners). Having regard to the constitutional scheme, it is not possible to mix up or extend the type of protection against removal, granted to one category of offices, to another category. 22. The doctrine of pleasure as originally envisaged in England was a prerogative power which was unfettered. It meant that the holder of an office under pleasure could be removed at any time, without notice, without assigning cause, and without there being a need for any cause. But where rule of law prevails, there is nothing like unfettered discretion or unaccountable action. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Union of India - 1977 (3) SCC 592, a Constitution Bench of this Court described the position of Governor thus: 67. The position of the Governor as the Constitutional head of State as a unit of the Indian Union as well as the formal channel of communication between the Union and the State Government, who is appointed under Article 155 of the Constitution by the President by Warrant under his hand and seal, was also touched in the course of arguments before us. On the one hand, as the Constitutional head of the State, he is ordinarily bound, by reason of a constitutional convention, by the advice of his Council of Ministers conveyed to him through the Chief Minister barring very exceptional circumstances among which may be as pointed out by my learned brothers Bhagwati and Iyer, JJ., in Shamsher Singh's case, (1974 (2) SCC 31), a situation in which an appeal to the electorate by a dissolution is called for. On the other hand, as the defender of the Constitution and the law and the watch-dog of the interests of the whole country and well-being of the people of his State in particular, the Governor is vested with certain discretionary powers in the exercise of which he can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the Governor. The Governor is the head of the State and holds a high constitutional office which carries with it important constitutional functions and duties and he cannot, therefore, even by stretching the language to a breaking point, be regarded as an employee or servant of the Government of India. He is not amenable to the directions of the Government of India, nor is he accountable for them for the manner in which he carries out his functions and duties. He is an independent constitutional office which is not subject to the control of the Government of India. He is constitutionally the head of the State in whom is vested the executive power of the State and without whose assent there can be no legislation in exercise of the legislative power of the State. There can, therefore, be no doubt that the office of Governor is not an employment under the Government of India and it does not come within the prohibition of clause (d) of Article 319. ... ....it is impossible to hold that the Governor is under the control of the Government of India. His office is not sub-ordinate or subservient to the Government of India. He is not amenable to the directions of the Government of Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rictly speaking, our Constitution is not of a federal character where separate, independent and sovereign States could be said to have joined to form a nation as in the United States of America or as may be the position in some other countries of the world. It is because of that reason that sometimes it has been characterized as quasi-federal in nature. Leaving the functions of the judiciary apart, by and large the legislative and the executive functions of the Centre and the States have been defined and distributed, but, even so, through it all runs an overall thread or rein in the hands of the Centre in both the fields. In S.R.Bommai v. Union of India [1994 (3) SCC 1], a nine-Judge Bench of this Court described the Constitution of India as quasi-federal, being a mixture of federal and unitary elements leaning more towards the latter. 26. In the early days of Indian democracy, the same political party was in power both at the Centre and the States. The position has changed with passage of time. Now different political parties, some national and some regional, are in power in the States. Further one single party may not be in power either in the Centre or in the State. Diffe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Union Government or should subscribe to the ideology of the party in power at the Centre. As the Governor is neither the employee nor the agent of the Union Government, we also reject the contention that a Governor can be removed if the Union Government or party in power loses `confidence' in him. 27. We may conclude this issue by referring to the vision of Sri Jawaharlal Nehru and Dr. B. R. Ambedkar expressed during the Constituent Assembly Debates, in regard to the office of Governor (Volume III Pages 455 and 469). Sri Nehru said : But on the whole it probably would be desirable to have people from outside - eminent people, sometimes people who have not taken too great a part in politics ...... he would nevertheless represent before the public someone slightly above the party and thereby, in fact, help that government more than if he was considered as part of the party machine. Dr. B. R. Ambedkar stated : If the Constitution remains in principle the same as we intend that it should be, that the Governor should be a purely constitutional Governor, with no power of interference in the administration of the province...... (iv) Limitations/restrictions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... open to the Governor to resign from office at any time. If the President does not remove him from office and if the Governor does not resign, the term of the Governor will come to an end on the expiry of five years from the date on which he enters office. Clause (3) is not intended to be a restriction or limitation upon the power to remove the Governor at any time, under clause (1) of Article 156. Clause (3) of Article 156 only indicates the tenure which is subjected to the President's pleasure. In contrast, we can refer to Articles 310 and 311 where the doctrine of pleasure is clearly and indisputably subjected to restriction. Clause (1) of Article 310 provides that a person serving the Union Government holds office during the pleasure of the President and a person serving a state government holds office during the pleasure of the Governor. The `doctrine of pleasure' is subjected to a restriction in Article 310(2) and the restrictions in Article 311(1) and (2). The most significant restriction is contained in clause (2) of Article 311 which provides that no such employee shall be dismissed or removed from service except after an inquiry in which he has been informed of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpartially in the discharge of his discretionary functions. Repeated shifting of Governors from one State to another can lower the prestige of this office to the detriment of both the Union and the State concerned. As a few State Governments have pointed out. Governors should not be shifted or transferred from one State to another by the Union as if they were civil servants. The five year term of Governor's office prescribed by the Constitution in that case loses much of its significance. The Commission also noted the following suggestions received in favour of and against the suggestion for providing security of tenure (para 4.8.01): Suggestions for security of tenure Suggestions against security of tenure (i) A Governor should have a guaranteed (ii) Tenures should not be guaranteed to a tenure so that he can function impartially. Governor because-- The different procedures suggested for Governor's removal, are-- (a) the nature of his duties and functions and the manner of their performance are (a) The same procedure as for a Supreme fundamentally different from those of a Court Judge. Judge. The former has a multi-faceted role and his duties are mainly non-judic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs in the case as he may deem fit. 4.8.09. We recommend that when a Governor, before the expiry of the normal term of five years, resigns or is appointed Governor in another State, or his tenure is terminated, the Union Government may lay a statement before both Houses of Parliament explaining the circumstances leading to the ending of his tenure. Where a Governor has been given an opportunity to show cause against the premature termination of his tenure, the statement may also include the explanation given by him in reply. This procedure would strengthen the control of Parliament and the Union Executive's accountability to it. The Inter State Council accepted the said recommendation of the Sarkaria Commission. It is stated that the matter is thereafter pending consideration before the Central Government. 33. Reference was next made to a Consultation Paper on Institution of Governor under the Constitution published by the National Commission to Review the Working of the Constitution, to elicit public opinion and generate public debate. The recommendations proposed were as under : Accordingly, we recommend that Articles 155 and 156 of the Constitution be amended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Constituent Assembly Debates 35. Both sides relied upon the Constituent Assembly Debates to support their respective interpretation of Article 156(1). The petitioners contended that the founding fathers proceeded on the assumption that the removal will only be on the ground of bribery and corruption, violation of the Constitution, or any other legitimate ground attributable to an act or omission on the part of the Governor. The respondents point out that security of tenure and other alternatives were considered and consciously rejected to opt for Governors holding office during the pleasure of the President. 36. The Constitutional Assembly debates shows that Mr. K.T. Shah had proposed an amendment that the Governor shall hold office fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so objected to the proposed Article (in the present form). He said : Just now we have accepted a provision whereby the Governor shall be nominated by the President. Already we feel that there democracy has been abandoned. Now, Sir, comes this provision whereby the Governor shall hold office only at the pleasure of the President. Even in the case of the Supreme Court, we have provided that once the Judges of the Supreme Court has been appointed, they will be removable only after an address presented by both the Houses of Parliament, and by two-thirds majority of the members present and voting. In the case of the Governor, you want to make a different provision. It seems to me, Sir, to be an extraordinary procedure and it completely takes away the independence of the Governor. He will be purely a creature of the President, that is to say, the Prime Minister and the party in power at the Centre. When once a Governor has been appointed, I do not see why he should not continue in office for his full term of five years and why you should make him removable by the President at his whim. It only means that he must look to the President for continuing in office and so continue to be sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t right had been given, in other words, if the provision for the impeachment of the Governors by the State legislatures had been there, it would have been a safeguard against improper appointment of Governor by the President. One of the main objections to the appointment of the Governor by the President has been that he will be a man who has no roots in the province and no stake, that he will be a man who will have no connection with the people, that he will be a man beyond their reach and therefore can go on merrily so long as he pleases the President, the Prime Minister of the Union and the Premier of the Province. But they are not all. It would have been much better if the Governor's removal had been made dependent not only on the displeasure of the President but on the displeasure of the State legislature also which represents the people and that would have been a safeguard against the evil that has been caused by the provision for the appointment of Governor by the President. Dr. B.R. Ambedkar replied thus: Sir, the position is this: this power of removal is given to the President in general terms. What Professor Shah wants is that certain grounds should be stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an that the Union executive would effectively control the State executive which is opposed to the basic scheme of our federal Constitution. Article 156(1) is designed to secure that if the Governor is pursuing courses which are detrimental to the State or to India, the President can remove the Governor from his office and appoint another Governor. This power takes the place of an impeachment which clearly is a power to be exercised in rare and exceptional circumstances. 39. The provision for removal at the pleasure of an authority without any restriction, as noticed above, applies to Ministers as also the Attorney General apart from Governors. Persons of calibre, experience, and distinction are chosen to fill these posts. Such persons are chosen not to enable them to earn their livelihood but to serve the society. It is wrong to assume that such persons having been chosen on account of their stature, maturity and experience will be demoralized or be in constant fear of removal, unless there is security of tenure. They know when they accept these offices that they will be holding the office during the pleasure of the President. Need for reasons 40. The petitioner contends ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfidence will therefore be very relevant criterion for withdrawal of pleasure, in the case of a Minister or the Attorney General, but not a relevant ground in the case of a Governor. (v) Judicial review of withdrawal of President's pleasure 42. When a Governor holds office during the pleasure of the Government and the power to remove at the pleasure of the President is not circumscribed by any conditions or restrictions, it follows that the power is exercisable at any time, without assigning any cause. However, there is a distinction between the need for a cause for the removal, and the need to disclose the cause for removal. While the President need not disclose or inform the cause for his removal to the Governor, it is imperative that a cause must exist. If we do not proceed on that premise, it would mean that the President on the advice of the Council of Ministers, may make any order which may be manifestly arbitrary or whimsical or mala fide. Therefore, while no cause or reason be disclosed or assigned for removal by exercise of such prerogative power, some valid cause should exist for the removal. Therefore, while we do not accept the contention that an order under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or exceeded it, it can certainly be decided by the court. Indeed it would be its constitutional obligation to do so. ...This Court is the ultimate interpreter of the Constitution and to this Court is assigned the delicate task of determining what is the power conferred on each branch of Government, whether it is limited, and if so, what are the limits and whether any action of that branch transgresses such limits. It is for this Court to uphold the constitutional values and to enforce the constitutional limitations. That is the essence of the rule of law. ... Where there is manifestly unauthorized exercise of power under the Constitution, it is the duty of the Court to intervene. Let it not be forgotten, that to this Court as much as to other branches of Government, is committed the conservation and furtherance of democratic values. The Court's task is to identify those values in the constitutional plan and to work them into life in the cases that reach the Court. ... The Court cannot and should not shirk this responsibility.... In the said decision, Chandrachud, J. (as he then was) observed thus : They may not choose to disclose them but if they do so, as they have do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicial manageable. But for that reason, it cannot be predicated that Article 2 confers on the Parliament an unreviewable and unfettered power immune from judicial scrutiny. The power is limited by the fundamentals of the Indian constitutionalism and those terms and conditions which the Parliament may deem fit to impose, cannot be inconsistent and irreconcilable with the foundational principles of the Constitution and cannot violate or subvert the constitutional scheme. [emphasis supplied] 46. This Court has examined in several cases, the scope of judicial review with reference to another prerogative power - power of the President/Governor to grant pardon etc., and to suspend, remit or commute sentences. The view of this Court is that the power to pardon is a part of the constitutional scheme, and not an act of grace as in England. It is a constitutional responsibility to be exercised in accordance with the discretion contemplated by the context. It is not a matter of privilege but a matter of performance of official duty. All public power including constitutional power, shall never be exercisable arbitrarily or mala fide. While the President or the Governor may be the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly. The said clause provides that the question whether any, and if so what, advice was tendered, shall not be enquired into by any court. This clause has been the subject- matter of a nine-Judge Bench decision in S.R. Bommai v. Union of India [1994 (3) SCC 1]. This Court has held that Article 74(2) merely bars an inquiry into the question whether any, and if so what, advice was tendered by the Council of Ministers to the President but does not bar the scrutiny of the material on the basis of which the President has made the order. This Court also held that while an order issued in the name of the President could not be challenged on the ground that it was contrary to the advice tendered by the Council of Ministers or was issued without obtaining the advice from the Ministers, it does not bar the court from calling upon the Union of India to disclose to the court the material on which the President has formed the requisite satisfaction. The bar contained in Article 74(2) will not come in the way of the court inquiring whether there was any material on the basis of which such advice was given, whether such material was relevant for such advice and whether the material was such that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 56(1) should act in a manner which is not arbitrary, capricious or unreasonable. 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. 50. We summarise our conclusions as under : (i) Under Article 156(1), the Governor holds office during the pleasure of the Presid ..... 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