At the conclusion of arguments, a five-judge Constitution Bench of the Supreme Court on Tuesday reserved verdict on a petition questioning arbitrary removal of Governors when a new party comes to power at the Centre.
The Union government maintained that if a party came to power with a social and economic agenda and if it was found that the Governor was not in sync with it but would rather be antithetical to its policies, then the Governor could be removed. “This is the basis of the ‘pleasure doctrine’ and this also constitutes good reason for exercise of the pleasure,” said Attorney-General G.E. Vahanvati.
Replying to the AG’s submissions, senior counsel Soli Sorabjee, appearing for petitioner B.P. Singhal, argued that despite the fact that the Governor held office during the pleasure of the President that would not make the Government of India an employer, “nor can the Governor be regarded as an employee or servant of the government.” The Governor’s office was independent, not subject to the control of the government.
On the AG’s assertion that exercise of the constitutional power could not be subject to judicial review on well-settled principles of law, Mr. Sorabjee said this argument was fallacious. “It can no longer be said that prerogative power is ipso facto immune from judicial review. In each case, the courts have to ensure that the authority is used in a manner which is consistent with the rule of law, which is the fundamental principle of good administration.”
On the Centre’s submission that ‘loss of confidence’ could be a ground for removal of a Governor, Mr. Sorabjee said: “The concept of loss of confidence is relevant in cases of employer-employee [relations] and the same is not applicable in the case of the Governor who cannot be regarded as an employee. Assuming without admitting that the said concept is applicable, even so loss of confidence should have a rational nexus with the functions and duties of the Governor and cannot be a ‘catch all’ ipsedixit for removing the Governor.”
Mr. Sorabjee said: “The power of removal or transfer of a Governor under Article 156 must be on grounds and reasons which make him or her unfit to continue in office. The power of removal can be validly exercised only for reasons which are germane and have nexus with the nature of his/her office and functions performed by him/her.”
He pointed out that several high-power commissions and committees stressed the need for safeguards against removal of a Governor and emphasised that the Governor could not perform his or her functions fairly and fearlessly if he or she was under threat of removal or transfer anytime without cause and for reasons unconnected with the discharge of the functions of the office.
The Bench comprised Chief Justice K.G. Balakrishnan and Justices S.H. Kapadia, R.V. Raveendran, B. Sudershan Reddy and P. Sathasivam.