constitution, article 74, ministers, governor, council of ministers, President, states, unconstitutional, consultation, judicial review
Facts
In July 2004, President removes governors of four states, namely, Uttar Pradesh, Haryana, Goa and Gujarat, on the advice of council of ministers. B.P. Singhal filed public interest litigation under article 32 of the constitution, highlighted the need for interpretation of article 156. The writ of certiorari was filed for quashing the removal of governors and also a writ of mandamus in order to allow the Governors to complete their remaining terms.
Issues
On what basis President remove Governor? Whether the removal of Governors in exercise of the doctrine of pleasure is subject to judicial review? Whether the petition is maintainable?
Contentions
Respondent argued that Firstly, that the power of the President to remove any Governor is unrestricted and absolute under Article 156(1) of the Indian constitution, 1949. The Article 156 (3) of The Constitution of India, 1949, which provides the five year tenure, is subject to Article 156(1). Therefore, as there are no restrictions placed upon the Doctrine of Pleasure in The Constitution of India, 1949, any attempt to place a limitation on it would be prohibited. 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 The petitioner argued that since a Governor holds a high constitutional office which comes along with some crucial constitutional duties. Thereby, merely for the reason that the Governor is appointed by the President and continues to hold the office as per the Doctrine of Pleasure doesn’t make the Governor, a servant of the Union Government. Therefore, a Governor should be allowed to hold office for the prescribed tenure and only in exceptional circumstances should he be removed from his post. The petitioner further argued that the Doctrine of Pleasure can’t be used in an arbitrary manner. It should only be applied when the material to prove incapacity, impropriety or misbehavior exists and it becomes absolutely necessary to remove the Governor from their post in order to cure these issues.
Law Points
The court states that 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, and these are ministers, attorney general, advocate general, (ii) office is held during the pleasure of the President but subject to certain restrictions, these are member of defence services and, (iii) office is held by the office holders without being subject to Doctrine of Pleasure but for a specified terms with immunity against removal, except by impeachment, these are President, judges of supreme and high court, auditor general. 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. The court then went on to proceed to explaining the meaning of article 156 of The Constitution which shows that the Governor is appointed by the President and shall continue to remain in 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. 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.
Judgement
Court held that, if the aggrieved person is able to demonstrate prima facie that his removal was either arbitrary, malafide, capricious or whimsical, the court will call upon the Union Government to disclose to the court, the material upon which the President had taken the decision to withdraw the pleasure. If the Union Government does not disclose any reason, or if the reasons disclosed are found to be irrelevant, arbitrary, whimsical, or malafide, the court will interfere. However, the court will not interfere merely on the ground that a different view is possible or that the material or reasons are insufficient.
Ratio Decidendi & Case Authority
The doctrine of Pleasure means that the Crown has the power to terminate the services of a civil servant at any time they want without giving any notice of termination to the servant and thus a civil servant holds office during the pleasure of the Crown. This doctrine is based on public policy. Article 156 of the Indian Constitution (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.
