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Tuesday, July 31, 2001

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Recall of Governor

REACTING WITH the press about her handling of the situation arising from the arrest of Mr. Karunanidhi, which resulted in her recall and resignation, the outgoing Governor of Tamil Nadu, Ms. Fathima Beevi, said: ``I am not a politician. I respect the government, the Constitution and the law of the land. Politicians can trade charges and retaliate. But a Governor cannot, at any point of time, seek to justify his acts being done in accordance with the Constitution and the law in the normal course of discharge of duties." (The Hindu, July 3). Her statement is susceptible of different interpretations. I take it to mean that acting according to the Constitution and the law is not enough, one must also convince others about it. While the politicians have the opportunity to so convince, the Governor does not. But do those, who have the power to recall her, not owe a duty to give her that opportunity? It is undisputed law of the land that no one can be condemned unheard. Unless the application of this law is expressly excluded under the Constitution, as for example in the second proviso to Article 311(2), it is inherent in the fundamental right to equality guaranteed in Article 14. As Article 14 binds all state action, recall or removal of Governor is covered by it.

Article 156, which lays down the term of office of the Governor, says that the Governor holds her office during the pleasure of the President. She may, however, resign from her office at any time. Subject to these conditions, she holds her office for a period of five years from the date she enters her office. It could be argued that the pleasure of the President is not subject to the requirement of affording hearing to the Governor before her removal. Such argument is, however, not consistent with the scheme of the Constitution. Under the Constitution no constitutional functionary and no civil servant can be removed from her office without having an opportunity to explain her conduct. The Governor could not be singled out for a different and adverse treatment. It could again be argued that the Constitution draws a distinction between the Governor and the other constitutional functionaries. Admittedly, it does.

An implied fundamental right

But the Constitution is not static; it grows with society through its interpretation and practical application. In 1950, when the Constitution came into operation, it was doubtful whether a person had the right to hearing before condemnation. By the mid- Seventies it was established that no action having adverse consequences could be taken against a person without affording her the opportunity to defend. Finally, in Maneka Gandhi's case the Supreme Court decided that the requirement of hearing was a fundamental right implicit in Article 14 and must be read in all statutes even if it was not expressly provided. Later when the Court was confronted with the second proviso to Article 311(2) in Tulsi Ram Patel's case, it clarified that the requirement of hearing implied in Article 14 was subject to its express exclusion in any other provision of the Constitution. In the absence of such exclusion the requirement must apply in all cases.

Naturally, therefore, it must also apply to the recall of Governor. The recall of Governor is an adverse action, which apart from any other consequences, may bring her ignominy. A Governor is as much a human being as anyone else. She is entitled to all those rights to which all other humans are.

A null and void act

The Supreme Court in Nawab Khan's case also held that denial of a fundamental right without the observance of the requirement of hearing was a null and void act without any legal consequences. As the Court in Maneka Gandhi's case decided that the right to hearing was a fundamental right, it could very well be argued that an act in violation of that right was also null and void having no legal effect. To that extent it could be said that the recall of the Governor of Tamil Nadu was null and void and did not have any legal effect. But as the Governor sent her resignation to the President even before the President could take the decision to recall her, it is moot to argue that she was recalled in violation of the constitutional requirement. Had she, however, not sent her resignation and was recalled as recommended by the Cabinet her recall could be tested in the courts.

Besides this legal argument, awakening towards the constitutional position of the Governor in our federal polity is constantly growing. It is being realised that though the Governor is an appointee of the Centre and is an important link between the Centre and the States, she is not an agent of the Centre in the States. She holds a constitutional position requiring her to take an oath ``to faithfully execute the office of the Governor and ... to preserve, protect and defend the Constitution and the law and ... (to) devote (herself) to the service and well-being of the people of" the State. While the oath expresses special concern for the State, it says nothing about the Governor's obligation towards the Centre. Whatever obligation she has towards the Centre must be read within the expression ``the Constitution and the law". Merely because the Governor is appointed by the President and holds her office during his pleasure, she cannot be presumed and expected to act under dictation from the Centre disregarding her oath. If the Governors have so far been recalled merely for not playing the tune of the Centre in the State, their recall was unconstitutional and should not be repeated. If the Centre is satisfied that a Governor is not discharging her constitutional obligations, it may seek her explanation. Only if it is not satisfied with her explanation, it may recall her, but not otherwise.

Sarkaria panel suggestion

Examining this issue threadbare the Sarkaria Commission recommended:

``Save where the President is satisfied that, in the interest of the security of the State, it is not expedient to do so, as a matter of healthy practice, whenever it is proposed to terminate the tenure of a Governor before the expiry of the normal term of five years, he should be informally apprised of the grounds of the proposed action and afforded a reasonable opportunity for showing cause against it. It is desirable that the President (which, in effect, means the Union Council of Ministers) should get the explanation, if any, submitted by the Governor against his proposed removal from office, examined by an advisory group consisting of the Vice-President of India and the Speaker of the Lok Sabha or a retired Chief Justice of India. After receiving the recommendations of this group, the President may pass such orders in the case as he may deem fit."

In order to ensure faithful observance of this recommendation, the Commission further recommended that not only in case of premature termination of the tenure but also in case of resignation or shifting from one State to another, the Central Government must lay a statement in Parliament explaining the circumstances leading to the ending of the tenure.

Agreeing with the Sarkaria Commission, the National Commission to Review the Working of the Constitution in its consultation paper on ``The Institution of Governor under the Constitution" goes further and recommends a fixed term of five years for the Governor and deletion of the provision about the pleasure of the President. It also recommends impeachment of the Governor by the State legislature on the same lines as of the President by the Parliament.

Recall of a Governor in disregard of the Constitution and the law laid down under it as well as the consistent recommendations of more than one national commission not only violates the Constitution and the law, it is also bad politics.


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