TaxTMI 
TaxTMI 
2010 (5) TMI 784
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....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 he enters upon his office: Provided that a Governor shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office." (emphasis supplied) Submissions of Petitioner 4. The petitioner submits that a Governor, as the Head of the State, holds a high constit....
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....t 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 the pleasure of the President. This only means that he could be removed any time during the said period of five years, for compelling reasons which are germane to, and having a nexus with, the nature of his office and functions performed by him, as for example, (a) physical or mental disability; (b) corruption; (c) v....
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.... 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 the pleasure of the President, is not a licence to act arbitrarily, whimsically or capriciously. The Union Government did not claim any right to do what it pleases, as Constitution abhors arbitrariness and unfettered discretion. He stated that the removal should be for a reason, but such reason need not be communicated.....
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....hich 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 maintain the action, for the effect of entertaining the action at the instance of such member of the public would be to foist a relief on the person or specific class or group of persons primarily injured, which they do not want." The petitioner, by way of reply, merely pointed out a....
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....ong 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) was a general prayer for a declaration that communication of the President seeking the resignation of Governors and Lt. Governors was ultra vires the Constitution. Dealing with the contention that such a petition was not maintainable this Court observed: "The learned Attorney Gener....
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....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 the origin of the doctrine thus: "In England, except where otherwise provided by statute, all public officers and servants of the Crown hold their appointments at the pleasure of the Crown or durante bene placito ("during good pleasure" or "during the pleasure of the appointor") as....
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....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 absolute and unfettered terms on any public authority will necessarily and obviously be exercised reasonably and for public good. 14. The following classic statement from Administrative Law (HWR Wade & CF Forsyth - 9th Ed. - Pages 354-355) is relevant in this context : "The common t....
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....ells 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 legislature. It was further suggested that some meaning must be given to the words "holds office during His Majesty's pleasure" as these words cannot be ignored and that they bear the meaning given to them by the Privy Council in I.M. Lall's case. [75 I.A.225] In our judgment....
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....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 two qualifications on the exercise of such pleasure. Though the two qualifications are set out in a separate Article, they quite clearly restrict the operation of the rule embodied in Art. 310(1). In other words the provisions of Art. 311 operate as a proviso to Art. 310(1)." Again,....
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....sts 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. 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 the President, without any express limitations or re....
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....he 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 act independently. One of his independent functions is the making of the report to the Union Government on the strength of which Presidential power under Article 356(1) of the Constitution could be exercised. In so far as he acts in the larger interests of the people, appointed by th....
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.... 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 India, nor is he accountable to them for the manner in which he carries out his functions and duties." (emphasis supplied) In Rameshwar Prasad (VI) vs. Union of India - 2006 (2) SCC 1 this Court reiterated the status of Governor as explained in Hargovind Pant, and also noted the rema....
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....on 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. Different parties with distinct ideologies may constitute a front, to form a Government. On account of emergence of coalition politics, many regional parties have started sharing power in the Centre. Many a time there may not even be a common programme, manifesto or agenda among the parti....
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....s `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 upon the power under Article 156(1) of the Constitution of India 28. We may now examine whether there are any express or implied limitations or restrictions on the power of removal of Governors under Article 156(1). We do so keeping in mind the following words of Justice Holmes : ....
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....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 the charges levelled against him and given a reasonable opportunity of being heard in respect of those charges. Clause (1) of Article 310 begins with the words "Except as expressly provided by the Constitution". Therefore, Article 310 itself makes it clear that though a person serves t....
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....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-judicial, (b) An investigation into the Governor's while those of a Judge are entirely judicial conduct by a parliamentary Committee. to be discharged in his own independent judgment; (c) Impeachment by the State Legislature. (b) it will be difficult to remove a (d) Inquir....
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....nt 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 to provide for the following: (a) the appointment of the Governor should be entrusted to a committee comprising the Prime Minister of India, Union Minister for Home affairs, the Speaker of the Lok Sabha and the Chief Minister of the concerned State. (Of course, the composition of ....
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..... 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 for a term of five years from the date on which he enters upon his office, and shall during that term be irremovable from his office." He moved another amendment for addition of a clause that a Governor may be removed from office by reason of physical or mental incapacity duly certifie....
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....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 subservient to him. He cannot be independent. He will then have no respect. Sir, Dr. Ambedkar has not given any reasons why he has made this change. Of course, the election of the Governors has been done away with, but why makes him removable by the President at his pleasure? The origin....
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....nor 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 in the Constitution itself for the removal of the Governor. It seems to me that when you have given the general power, you also give the power to the President to remove a Governor for corruption, for bribery, for violation of the Constitution or for any other reason which the Presid....
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....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 that the removal of a Governor can only be for compelling reasons which is something to do with his capacity to function as a Governor. According to the petitioner, physical or mental disability, acts of corruption or moral turpitude or behaviour unbecoming of a Governor like being i....
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.... 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 Article 156 is not justiciable, we accept the contention that no reason need be assigned and no cause need be shown and no notice need be issued to the Governor before removing a Governor. 43. The traditional English view was that prerogative powers of the Crown conferred unfetter....
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....h 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 done now, they cannot prevent a judicial scrutiny thereof for the limited purpose of seeing whether the reasons bear any rational nexus with the action proposed. I am inclined to the opinion that the Government cannot claim the credit at the people's bar for fairness in disclosing ....
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.... 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 sole Judge of the sufficiency of facts and the propriety of granting pardons and reprieves, the power being an enumerated power in the Constitution, its limitations must be found in the Constitution itself. Courts exercise a limited power of judicial review to ensure that the Presiden....
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....t 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 reasonable man could have come to the conclusion which was under challenge. Therefore, though the sufficiency of the material could not be questioned, legitimacy of the inference drawn from such material was open to judicial review. 48. The extent and depth of judicial review wil....
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....ie 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 President. Therefore, the President can remove the Governor from office at any time without assigning any reason and without giving any opportunity to show cause. (ii) Though no reason need be assigned for discontinuance of the pleasure resulting in removal, the power under Article 156(....