The recent Supreme Court judgment falls short of guaranteeing Governors security of tenure but will have the salutary effect of discouraging their removal from office on political or subjective grounds. The five-member Constitution Bench, which heard a writ petition challenging the dismissal of four Governors after the United Progressive Alliance government assumed office in 2004, held that the removal of a Governor is open to judicial review “if the aggrieved person is able to demonstrate prima facie that his removal was either arbitrary, mala fide, capricious or whimsical.” In a way, the court has staked out a middle ground. While it has rejected the petitioner's contention that Governors may be removed only for compelling reasons such as physical or mental disability and acts of corruption, it has also refused to accept that the power of dismissal by the President under Article 156 (1) of the Constitution is absolute and unfettered. While the reasons for removal need not be spelt out, there must exist “valid reasons”; these would vary depending on the “facts and circumstances” of each case. While desisting from enumerating the valid reasons and grounds for dismissal, the court has clearly stated that being “out of sync with the policies and ideologies of the Union government or party in power at the Centre” is not one of them.
At a practical level, the issue of the dismissal of Governors is closely tied up with the nature of their appointment. Politicians and retired bureaucrats close to those in power are favoured choices for the post — a practice that tends to erode independence and impartiality. The Supreme Court may hold that Governors are neither employees nor agents of the central government but in practice many of them do behave like agents. The Sarkaria Commission recommended that apart from being eminent in some walk of life, a Governor should not have taken too great a part in politics, particularly in the recent past. The spirit of the latest judgment, which cites various recommendations of the Sarkaria Commission and the National Commission to Review the Working of the Constitution, is to press for a measure of security of tenure to gubernatorial office. But the Supreme Court rightly points out that it is for the legislature to consider such recommendations; as a court of law, its powers are limited, in this context, to examining the issue of removing Governors in the light of Article 156. It is doubtful that this judgment will put a stop to the arbitrary removal of Governor. But it will certainly make the central government think twice before exercising a power that has so often been misused.