BRIEF FACTS ABOUT THE CASE
On the suggestion of the Council of Ministers, the President of India removed the Governors of Goa, Gujarat, Haryana, and Uttar Pradesh on July 2, 2004. As a result, a writ petition in the form of a Public Interest Litigation was filed, requesting the reinstatement of the abovementioned Governors of the States. A Governor of a State is appointed by the President of India and serves 'during the pleasure of the President,' according to Articles 155 and 156 of The Constitution of India, 1949. In most cases, a Governor can stay in office for a maximum of five years. However, Article 74 requires the President to act on the advice of the Council and the facts that led to the Governors' removal. Second, a Writ of Certiorari was filed, demanding the quashing of the same order, as well as a Writ of Mandamus, requesting the removal of Ministers, allowing the Governor to continue in office in accordance with the wishes of the Central Government in power. In the current case, the petitioner first demanded the production of papers and then that the four Governors be permitted to serve out the remainder of their five-year terms. This case was heard by a four-judge constitutional bench of India's Supreme Court.
ISSUES RAISED BEFORE THE COURT
The following matters were brought to the court's attention:
i. Is the petition that was filed before the Court maintainable?
ii. What does the 'Doctrine of Pleasure' mean in the Indian Constitution of 1949?
iii. How does a Governor function under the Indian Constitution of 1949?
iv. Are there any specific constraints or limitations on Article 156 clause (1) of the Constitution of India, 1949?
v. What is the scope of judicial review in the event that the President's pleasure is revoked?
ARGUMENTS ADVANCED BY THE PETITIONER
(i)The petitioner argued that a Governor has a high constitutional post that comes with several important constitutional responsibilities. As a result, just though the Governor is selected by the President and continues to serve under the Doctrine of Pleasure does not make him a servant of the Union Government. As a result, a Governor should be permitted to serve for the required term and should only be removed from office in exceptional circumstances. The petitioner went on to say that rather than granting a Governor an indestructible term or placing him in continual fear of losing his job by providing him unfettered authority, a middle ground should be chosen. As a result, the petitioner proposed that specific constitutional rules be followed before a petitioner is asked to resign. The following are the constitutional norms proposed by the petitioner before a Governor is removed from office:
(a)Removing the petitioner should only be done in extraordinary and rare circumstances, including physical or mental incapacity, corruption, Constitutional violations, or misbehaviour. The Governor's removal cannot be based on the ideology or preferences with which she or he is associated.
(b)Even if a formal notice of termination of the Governor's term is not given, the Governor should be notified of the reasons for their departure.
(c)In a democratic democracy like India, no public authority possesses unrestrained or unbridled power, no matter how far up the hierarchy they are. To maintain true democracy, any premature removals should be subject to judicial scrutiny.
(ii) The petitioner also claimed that the Doctrine of Pleasure could not be applied in an arbitrary, capricious, irrational, or malicious manner. It should only be used when there is sufficient evidence of incapacity, impropriety, or wrongdoing, and it is absolutely necessary to remove the Governor from office to address these issues.
(iii)The petitioner further contended that when a Governor is facing a premature removal from office, he or she should be informed of the reasons for the removal and given an opportunity to be heard on the matter.
(iv) The petitioner also recommended that natural justice principles be considered and that the Governor be served with a show-cause notice outlining the basis for his or her dismissal.
(v) It was also claimed that the Doctrine of Pleasure's adoption could only be justified following judicial examination.
ARGUMENTS ADVANCED BY THE RESPONDENT
(i) The respondent submitted that removal of Governor is not justifiable by putting forth two arguments:
(a) First, under Article 156(1) of the Indian constitution, the President has unconstrained and absolute power to remove any Governor. Article 156 (3) of the Constitution of India, 1949, which allows for a five-year term, is subject to Article 156 (4) of the Constitution of India, 1949. (1). As a result, because the Doctrine of Pleasure is unrestricted under The Constitution of India, 1949, any attempt to limit it would be unconstitutional.
(b) Second, by taking the aid of Article 74(2) of The Constitution of India, 1949, which disallows any court to interfere with any advice provided by the Union of ministers.
(ii) He further claimed that the Governors who were dismissed from office by the President's order dated 02/07/2004 had no objection to it, making it impossible for any member of the general public to file a Public Interest Litigation (PIL) to restore them to their positions.
(iii) It was also argued that a Governor might serve at the discretion of the President, allowing the President or the Union Government to remove him at any moment during his five-year term without giving any cause or explanation.
(iv) It was also said that the founding fathers of the Indian Constitution gave the President the flexibility to remove a Governor if he lost trust in him.
(v) The learned attorney general noted that while the removal should be done for a purpose, it was not necessary to inform the Governor of that reason.
(vi) It was further maintained that the 'Doctrine of Pleasure' need not be used in response to any fault committed by the Governor, but rather if the President thinks the Governor is unable to continue in his position for whatever reason.
(vii)The respondent also argued that in a democratic society like India, it is vital for the government in power to remove a Governor who is out of step with the policies and ideas shared by the government's political party's constituents.
REASONING GIVEN BY THE JUDGES
The honourable judges of the Supreme Court held that:
(i) The petition could be allowed on the grounds of it being of importance to the public as to the scope of Article 156(1) but not because of the reason to provide relief to the individual Governors of the states, namely Goa, Gujarat, Haryana and Uttar Pradesh which were removed by the President.
(ii) The court states that the Doctrine of Pleasure cannot be applied as an unrestricted or absolute provision of law. The court referred to article 310 (2) and article 311, clause (1) and clause (2) of The Constitution of India, 1949, and it was condemned that even in these articles of The Indian Constitution, the application of the doctrine is not wholly unrestricted. Furthermore, a reference was made to three different case scenarios where, (i) offices are held during the pleasure of President, (ii) office is held during the pleasure of the President but subject to certain restrictions and, (iii) office is held by the officeholders without being subject to Doctrine of Pleasure but for a specified term with immunity against removal, except by impeachment. Thus, pinpointing the variation in the application of the ‘Doctrine of pleasure’ to different jobs. The court then went on to list such offices as follows: (i) those offices where the doctrine of pleasure was applied absolutely and without any restrictions. These include offices of ministers, Governors, Attorney general and Advocate general, (ii) those offices where the doctrine of pleasure was applicable with restrictions. These types of offices included members of civil service of the Union, member of Defense services, members of Defense service, holders of post connected to Defense and civil post under the Union, members of an All-India service. (iii) Lastly, those offices were mentioned by the court, wherein the doctrine of pleasure is not applicable at all. These included the offices of the President, Judges of the Supreme Court, Judges of the High court, controller and Auditor General of India, and Election Commissioners. Therefore, keeping in mind the constitutional schemes of India, the extent of protection against removal cannot be mixed for different offices as it is different for different offices based on the above-mentioned categories. In a constitutional set-up, when the Doctrine of Pleasure is provided in certain scenarios without any restrictions of any sort, it should be used responsibly and not be confused to be an instrument or means providing any unchecked discretion to act arbitrarily capriciously or unreasonably in any case. Even though it is not made mandatory by the court to provide reasons for the removal of the Governor, the removal can only be done for valid reasons and not because of any personal prejudice or invalid reasons.
(iii) A Governor cannot be removed for ulterior motives as to make way for another Governor or merely because his personal ideologies don’t fall in sync with the Union of Ministers or because of the President losing confidence in him. These three reasons are considered to be invalid grounds for the removal of the Governor from their post.
(iv) The court referred to article 156 (1), 156 (3), 310 and 311 of The Constitution of India, 1949. The court then went on to proceed to explain the meaning of article 156 of The Constitution, which shows that the Governor is appointed by the President and shall continue to remain in the office during the pleasure of the President. The court then laid down a nexus between article 156 clause (1) and 156 clause (3) of The Indian Constitution, 1949, and stated that clause (3) doesn’t place any restrictions upon clause (1) of the same provision. It only specifies the tenure of the Governor for which he is to remain in office, which, as specified, is five years if he or she doesn’t resign or is removed from his or her office. Then the court made comparisons to these provisions to articles 310 and 311, where Doctrine of Pleasure is subject to certain restrictions. Article 311(2) states that no employee can be removed from service except after an inquiry that informs him about the charges put against him. Thus, this express provisions place a restriction on the Doctrine of Pleasure for the removal of an employee. However, article 156 (3) only specifies the tenure of the government and places no such restriction on the scope of Doctrine of Pleasure provided under article 156 (1).
(v) The court then went on to explain that even though article 156(1) provides that a Governor should hold office during the pleasure of the President and article 74 binds a President to follow the advice of the Union of Ministers. The removal of the Governor, even if comes without the compulsion of disclosing the reasons for such removal, requires that the removal should be done based on justifiable and valid reasons in a reasonable manner. So, therefore, the burden of proof would lie upon the aggrieved to proof that his removal was a prima facie instance of arbitrariness and mala fide, as the court, upon the withdrawal of the pleasure, would automatically go on to assume that it was done on the basis of compelling reasons. Therefore, only in a case when there is prima facie evidence of capriciousness and mala fide made out can the court direct for the production of records and material to decide whether the withdrawal was really for compelling reasons or not. Therefore, only in cases of existence of very strong evidence can the judicial review be resorted to which really narrows down the scope of judicial reviews.
RATIO DECIDENDI
"Power under Article 156(1) cannot be exercised in an arbitrary, capricious or unreasonable manner and only in rare and exceptional circumstances for valid and compelling reasons." "Court can call upon the Union Government to disclose, the material upon which the President had taken the decision to withdraw the pleasure if prima facie the removal was either arbitrary, malafide, capricious or whimsical."
CONCLUSION
The constitution bench, while summarizing the Judgement put the following points forward:
(i) A Governor can be removed by the President at any time, without the President presenting a reason, under article 156(1) of the Indian constitution, 1949, because the Governor is meant to hold and run his or her office under the pleasure of the President.
(ii) While the President is not obligated to give a justification for withdrawing his pleasure at any time, the Governor's removal cannot be based on arbitrary, capricious, or irrational grounds, as stated in Article 156 clause (1). Only in rare and extraordinary circumstances and under legal and justifiable reasons and grounds can the removal be carried out. The court went on to say that the breadth of these compelling reasons isn't limited to incapacity, corruption, or wrongdoing, but rather is far broader, depending on the facts and circumstances of the case.
(iii) A Governor cannot be dismissed from office just because the Central Government has changed and a new government has taken power that does not agree with the Governor in power, and so the incumbent Governor is removed from office to make room for a more favourable candidate. A Governor can't be dismissed because he doesn't agree with the central government's ideology and policies, and he can't be removed because the Union of ministers has lost faith in him.
(iv) As the reasons aren’t required to be conveyed to the Governors for any removals that are made, the withdrawal of pleasure would be assumed to be valid and well-grounded. This, in turn, would also limit the scope of the judicial review to a great extent, making the passage for the review too narrow. In any case, for that matter only and only if the aggrieved party is able to establish a prima facie evidence of the fact that his or her removal which was so made was arbitrary, capricious, whimsical and/or mala fide, will the court(s) have the authority to direct the production of materials which might have formed the basis of the decision to withdraw Doctrine of Pleasure by the President, under the direction of the Union Government or not, be taken. On the off chance that the Union Government doesn't uncover any explanation, or if the reasons unveiled are seen as insignificant, subjective, eccentric, or mala fide, the Court will have the right to intervene. This, if broken down into easy terms, only means that in any case, the Court won't intervene simply on the grounds that an alternate perspective is conceivable or that the material or reasons are inadequate.
CRITICAL OVERVIEW OF THE JUDGEMENT
Before passing judgement, the constitution bench weighed the advantages and disadvantages of both parties. Both sides were given an equal opportunity to present their cases before the court. The bench, on the other hand, failed to recognise that the judgement rendered in the case was "sub-silentio" on multiple points, implying that the decision left room for future generations to interpret the laws differently and left several problems unanswered. The court also makes it optional for the President to communicate the reasons for his dismissal, but it makes it mandatory for the President to have a justification for his removal. This paradox is vague in and of itself, allowing the President to have any explanation he wants and get away with it because he isn't compelled to inform the Governor whose position is at stake. This also puts a lot of pressure on the Governor to always remember to please the President while performing his duties, or he will be removed from his position. Furthermore, any misunderstandings that led to the Governor's removal may not be explained, and some grey areas may be handled without providing the Governor with a fair chance to be heard. Furthermore, granting judicial review without providing the Governor with a chance to be heard in regard to the grounds that may have led to his removal places an otherwise unwarranted burden on the courts to settle a subject that could have been resolved between the parties. The court also put the burden of proof on the aggrieved, rather than the President, to show that the President's withdrawal of the Doctrine of Pleasure was founded on compelling reasons and not to advance his own or the changing government's political agendas. As a result, the Governor must now establish prima facie evidence that the President's removal was arbitrary, capricious, and malafide, first and foremost, without even knowing the reasons for such removal because the President is not required to share such information with them, and secondly, despite the risk that if he fails, he will be impeached. This also makes it difficult for the Governor to show that his removal was presumptively malafide and arbitrary without even knowing the reasons for his removal. Furthermore, this encourages and facilitates political manoeuvring in the administration since, with a change in government, the Governor may be subjected to scrutiny that he or she is not used to, and any opposing government may find or resort to fabricating reasons for the Governor's dismissal. Instead, the Governor's removal should be decided by the State legislature, not the President's pleasure. If that is accomplished, the Governor will be able to carry out his or her duties without fear.
Disclaimer: Kindly note that the views and opinions expressed are of the author(s) not Law Colloquy.
