B. P. SINGHAL VS UNION OF INDIA : CASE SUMMARY
The Supreme Court in B. P. Singhal Vs Union of India 2010 (6) SCC 331 held that Governor holds office at pleasure of the President as such President has power to remove Governor without assigning any reason and without any opportunity to show cause but such power can be exercised only for valid and compelling reasons. The Supreme Court also held that the decision to remove governor can be reviewed although on limited grounds.
FACTS OF THE CASE
Governors of Uttar Pradesh, Gujarat, Haryana and Goa were removed by the President on 02.07.2004. A Public Interest Litigation was filed against the same under Article 32 of the Constitution.
FINDINGS OF THE COURT
Locus of the Petitioner
The Supreme Court held that Petitioners had no locus in regard to the prayers claiming relief for Individual Governors. But Petitioners have necessary locus touching upon scope of Article 156 (1).
Doctrine of Pleasure
The Supreme Court noted that Article 156 (1) provides that Governor shall hold office during pleasure of the President.
The Supreme Court noted that the pleasure doctrine has its origin in English Law with reference to the tenure of public servants under the Crown. 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.
The Supreme Court noted that Articles in the Constitution which refer to holding of office during pleasure of the President without any restrictions or limitations are Article 75 (2) relating to ministers, Article 76 (2) relating to Attorney General, and Article 156 (1) relating to Governor, Article 164 (1) relating to ministers in State and Article 165 (3) relating to Attorney General of State. Article 310 R/w Article 311 provide example of application of Doctrine of Pleasure with restrictions.
The Supreme Court observed that 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 of any cause.
Where rule of law prevails, there is nothing like unfettered discretion or unaccountable action. The degree of need for reason may vary. The degree of scrutiny during judicial review may vary. But the need for reason exists. As a result, when the Constitution of India provides that some offices will be held during the pleasure of President, without any express limitations or restrictions, it should however necessarily be read as being subject to the “fundamental of constitutionalism.
Therefore, in a constitutional set up, when an office is held during the pleasure of any Authority and if no limitations or restrictions are placed on the “at pleasure” doctrine, it means that the holder of the office can be removed by the authority at whose pleasure he holds office, at any time, without notice and without assigning any cause. The doctrine of pleasure, however, is not license to act with unfettered discretion to act arbitrarily, whimsically or capriciously. It does not dispense with the need for a cause for withdrawal of the pleasure. In other words, “at pleasure” doctrine enables the removal of a person holding office at pleasure of an Authority, summarily, without any obligation to give any notice or hearing to the person removed and without any obligation to assign any reasons or disclose any cause for the removal or withdrawal of pleasure. The withdrawal of pleasure cannot be at the sweet will, whim and fancy of the Authority, but can only be for valid reasons.
Limitation under Article 156 (1)
The Supreme Court noted that Governor has dual role – Governor acts as the head of State and also function as vital link between Union and State. Governor is not an agent or employee of Union Government. Like the President, Governors are expected to be apolitical, discharging purely constitutional functions, irrespective of their political background, if any.
It was contended by Petitioners that provision of Article 156 (1) should be read in consonance with Article 156 (3) which provides for tenure of five years. The Supreme Court rejected this contention and held that Article 156 (1) has not been subjected to any exception. Clause (3) has been made subject to clause (1) of the Article 156.
The Supreme Court noted that recommendations of Sarkaria Commission in respect of removal of Governor remains recommendations and cannot override express provisions of Constitution.
The Court observed that 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 the cause must exist.
The Supreme Court held that a Governor cannot be removed on the ground that he is out of sync with the policies and ideologies of the Union Government or the party in power at the Centre. Nor can he be removed on the ground that the Union Government has lost confidence in him. Change in government at Centre can not be a ground for removal of Governors holding office to make way for others favoured by the new government.
Scope of Judicial Review
The Supreme Court held that the decision to remove governor under Article 156 (3) is amenable to judicial review. What Article 156 (1) dispenses with is the need to assign reasons or the need to give notice but the need to act fairly and reasonably cannot be dispensed with. In the event of challenge of withdrawal of the pleasure, the court will necessarily assume that it is for compelling reasons. Where a prima facie case of arbitrariness or mala fides 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.
____________________________________________
Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.