TaxTMI 
TaxTMI 
TaxTMI 
2010 (5) TMI 784
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....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 constitutional office which carries with it important constitution....
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....hat 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) violation of Constitution; and (d) misbehaviour or behaviour unbecomin....
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....f 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. He also submitted that removal by applying the doctrine of pleasure need not....
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....elief. 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 another observation in S.P. Gupta : "But there may be cases where the State or a public authority may a....
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....cific 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 General appearing for the Union of India submits that this public interest litigation is not maintainable at the i....
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....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 opposed to an office held dum bene se gesserit ("during good conduct"), also called quadiu se bene gesserit ("as long as he sh....
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.... 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 theme of all the authorities so far mentioned is that the notion of absolute or unfettered discretion is rejected. Statutory power conferred for p....
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....ent 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, these suggestions are based on a misconception of the scope of this expression. The expression concerns itself with the tenure of office of the civil ser....
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....issal, 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, in Moti Ram v. N.E. Frontier Railway - AIR 1964 SC 600, this Court referred to the qualifications to which pleasure doctrine was subjected in the case of government servants, a....
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....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 restrictions, it should however necessarily be read as being subject to the "fundamentals of constitutionalism". Therefore in a constitutional set up, when an office is held during the pleasu....
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....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 the President "to defend the constitution and the Law" he acts as an observer on behalf of the Union and has to keep a watch on how the administrative machinery and each organ of constitutional gover....
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.... 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 remark of Sri G.S. Pathak, a former Vice-President that "in the sphere which is bound by the advice of the Council of Ministers, for obvious reasons, the Governor must be independent of the centre" as there may be....
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.... 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 parties sharing power. As a result, the agenda or ideology of a political party in power in the State may not be in sync with the agenda or ideology of the political parties in the ruling coalition at the Centre, or may no....
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....or (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 : "the provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic, living institutions..... The significance is vital, nor formal; it is to be gathered not simply by taking the....
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....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 the Union or a State during the pleasure of the President/Governor, the power of removal at pleasure is subject to the other express provisions of the Constitution; and Article 311 contains such express provision which places limitation....
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.... 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) Inquiry by the Supreme Court. Governor who is not of the requisite ability and impartiality, or who is not able (e) Written request from the Chief to function smoothly with the Chief Minister, followed by a resolution of the Minister or who does not function in Le....
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....trengthen 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 the committee is a matter of detail which can always be settled once the principal idea is accepted; (b) the term of office, viz., five years, should be made a fixed tenure; (c) the provision that the Governor holds office "during the pleasure of the President' be deleted:....
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....icle 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 certified, or if found guilty of bribery or corruption. He stated : "This is, as I conceive it, different fundamentally from the appointment during the pleasure of the President. The House, I am aware, has just passed a proposition by which the Governor is to be appointed by the President and it would be now impo....
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....ing. 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 original article says: "A governor may, for violation of the Constitution, be removed from office by impeachment ........ It means that a Governor can only be removed by impeachment by both the Houses. Now, he will be there only at the pleasure of the President. Such a Governor will have no independence and my point is ....
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....mier 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 President no doubt feels is legitimate ground for the removal of the Governor. It seems, therefore, quite unnecessary to burden the Constitution with all these limitations stated in express terms when it is perfectly possible for the President to act upon the very same ground under the formula that the Governor shall hold offic....
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....torney 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 involved in active politics, or indulging in subversive activities are valid reasons for removal. In other words, it is contended that there should be some fault or draw back in the Governor or in his actions before he could be removed from office. On the other hand, it is contended by the respondents that removal need not only be for the....
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....se 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 unfettered discretion which could not be questioned in courts. Lord Ruskill attempted to enumerate such prerogative powers in Council of Civil Service Unions v. Minister for the Civil Service - 1985 AC 374 : "Prerogative powers such as those relating to the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, th....
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....ution, 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 the reasons for the proposed action and at the same time deny to this Court the limited power of finding whether the reasons bear the necessary nexus or are wholly extraneous to the proposed action. The argument that "if the Minister need not give reasons, what does it matter if he gives bad ones" overlooks that bad reasons can destroy a possible nexus and ma....
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....o 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 President considers all relevant materials before coming to his decision. As the exercise of such power is of the widest amplitude, whenever such power is exercised, it is presumed that the President acted properly and carefully after an objective consideration of all aspects of the matter. Where reasons are given, court may interfere if the reasons are found to be irrelevant. How....
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.... 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 will depend upon and vary with reference to the matter under review. As observed by Lord Steyn in Ex parte Daly [2001 (3) All ER 433], in law, context is everything, and intensity of review will depend on the subject-matter of review. For example, judicial review is permissible in regard to administrative action, legislations and constitutional amendments. But the extent or scope o....
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....ld 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(1) cannot be exercised in an arbitrary, capricious or unreasonable manner. The power will have to be exercised in rare and exceptional circumstances for valid and compelling reasons. The compelling reasons are not restricted to those enumerated by the petitioner (that is physical/mental disability, corruption and behaviour unbecoming of a Governor) but are of a wider amplitude. What wou....