Sacking governors: What does the law state?

The issue relating to removal of Governors in states after a new government comes to power at the centre has often been debated. The Supreme Court had on Wednesday, Jan 28 sought a response from the government on the sacking of the Puducherry and Uttarakhand Governors.

While the union government has been given four weeks time to respond, it would be interesting to take a look at what the law on Governors in India state. There are provisions enshrined in the Constitution and also the Supreme Court has interpreted the same in 2010.

The Constitutional provision

Under Article 155 and Article 156 of the Constitution, a Governor of a state is an appointee of the President, and he or she holds office "during the pleasure of the President". If a Governor continues to enjoy the "pleasure of the President", he or she can be in office for a term of five years.

However, since the President is bound to act on the aid and advice of the Council of Ministers under Article 74 of the Constitution, in effect it is the central government that appoints and removes the Governors. "Pleasure of the President" merely refers to this will and wish of the central government.

B P Singhal vs Union of India 2010

In the B P Singhal vs Union of India case, the Supreme Court had in 2010 had laid down certain guidelines regarding the removal of governors. The court was dealing with a petition challenging the removal of Governors at Uttar Pradesh, Gujarat, Haryana and Goa in July, 2004.

The Supreme Court in a nutshell made it clear that the central government has the power to remove a governor as long as the action is not without reason and is arbitrary in nature. The Supreme Court while interpreting the law laid down the following guidelines:

-The President, in effect the central government, has the power to remove a Governor at any time without giving him or her any reason, and without granting an opportunity to be heard.

-However, this power cannot be exercised in an arbitrary, capricious or unreasonable manner. The power of removing Governors should only be exercised in rare and exceptional circumstances for valid and compelling reasons.

-The mere reason that a Governor is at variance with the policies and ideologies of the central government, or that the central government has lost confidence in him or her, is not sufficient to remove a Governor. Thus, a change in central government cannot be a ground for removal of Governors, or to appoint more favourable persons to this post.

-A decision to remove a Governor can be challenged in a court of law. In such cases, first the petitioner will have to make a prima facie case of arbitrariness or bad faith on part of the central government. If a prima facie case is established, the court can require the central government to produce the materials on the basis of which the decision was made in order to verify the presence of compelling reasons.

Recommendations

There have been three commissions that have been instituted to study and interpret the powers of the union government when it came to the issue of governors. While recommendations have been made in 1998, 2002 and 2010, none have been implemented by the government.

In 2002, the Venkatachalaiah commission held that Governors should be allowed to complete their five year term. If they have to be removed before completion of their term, the central government should do so only after consultation with the Chief Minister.

The Sakaria Commission in 1998 held that that Governors must not be removed before completion of their five year tenure, except in rare and compelling circumstances. If such rare and compelling circumstances did exist, the Commission said that the procedure of removal must allow the Governors an opportunity to explain their conduct, and the central government must give fair consideration to such explanation.

The latest recommendation was made in 2010 by the Punchhi commission. The term " during the pleasure of the President," must be deleted from the Constitution it held. The commission recommended that a governor should be removed only after a resolution is passed in the state legislature.