How Can Governors be Removed? Uttarakhand Governor Asks SC

The Supreme Court of India will today hear the petition of Uttarakhand Governor Aziz Qureshi against present BJP led NDA Union Government, on removal of Governors.

Why is the Uttarakhand Governor Aziz Qureshi demanding a clarity from the Supreme Court on the procedure to remove Governors ?

I think, because of the following reasons,

Ever Since the BJP Government came to power , it put pressure on the Governors appointed during the UPA regime to resign from their gubernatorial positions. Some agreed, some decided to stick to their posts. Those who didn’t resign on their own, were eventually sacked. Those who quit after the Modi government took over include B V Wanchoo of Goa, B L Joshi of UP, M K Narayanan of West Bengal and Shekhar Dutt of Chhattisgarh. Those who were sacked, by means of the President of India withdrawing his pleasure was Kamla Beniwal, who was first transferred by the Modi Government from Gujarat to Mizoram, and then sacked.

When Congress led UPA came in power in 2004, it also removed/sacked Governors Vishnu Kant Shastri (UP), Babu Parmanand (Haryana), Kailashpati Mishra (Gujarat) and Kidarnath Sahni (Goa). BJP MP Singhal had challenged these removals.

From the look of the things, it appears that successive Governments are using the methods of resignation and removal of people in gubernatorial positions, appointed during the previous Union Government, to bring people of their ideology. Since the Governor is often seen as the Union Government’s agent seated at the state, having a Governor of one’s own political ideology serves two purposes : 1) He/she serves the interests of the Union Government better (by keeping mum or tweaking things in its favor) if the same party has Government at the both state and the Centre ; 2) He/she keeps a better eye on the state Government if some other political party is in power in the state.

Although, the SC in its 2010 verdict had ruled that governors were not employees of the Union government to warrant removal on the ground of loss of “confidence” in them; still a Governor is seen in the light shared with you in the last paragraph. That’s why every time a new Government comes at Centre, it starts spotting Governors of rival ideology.  The posts of Governors are often given to senior leaders of the party in power (those the party wants to remove from active politics). But seeing the posts of Governors as retired home for senior party leaders or some sort of reward, is somewhat weak reasoning. The Governors are appointed on ideological  grounds.

What brings more criticism for the Modi Government today, than the UPA Government in the past, is that the confusion regarding the procedure of the removal of a Governor of a State was somewhat removed by the Supreme Court in its 2010 verdict. The latest sacking of the Governors by the present Government has brought the country on square one. Anyway, the SC deliberation and verdict on Aziz Qureshi’s petition against the BJP Government today, before a three-judge bench led by Chief Justice R M Lodha, will make the situation clearer.

Why Uttarakhand Governor Aziz Qureshi moved to SC  against Modi govt, on the Question of Removal of Governors?

First reason is obvious. The petition by Uttarakhand Governor Aziz Qureshi is challenging the Narendra Modi-led NDA government’s push to make him quit the post.

The petition cites the celebrated 2010 decision by the Supreme Court in BP Singhal’s case where strict curbs were imposed on the executive power of Centre to remove Governors at whims. In SCC 2010 , the Court noted that,

…the Governor holds office during the pleasure of the President and hence the President can remove the Governor from office “at any time without assigning any reason and without giving any opportunity to show cause”, ruled that the power to remove can’t be exercised in an “arbitrary, capricious or unreasonable manner”.

The Uttarakhand Governor, Dr. Aziz Qureshi, is challenging the Modi Government specifically on text in the red color (above). But before going further we need to look at the summary of SC 2010 verdict.

If the said SC 2010 verdict is summarized, then it laid out the following guidelines for the President to follow with respect to the removal of a Governor :

1) the Governor holds office (5 years Tenure) during the pleasure of the President and hence the President can remove the Governor from office “at any time without assigning any reason and without giving any opportunity to show cause. That’s the President doesn’t need to convey the reasons to the sacked Governor.

The petition quoted Articles 155 and 156(1) of the Constitution, to state that the governor shall hold office during the pleasure of the President and hence he would hold office for five years if he continued to enjoy the confidence of the President.

2) The President must not remove the Governor arbitrarily, capriciously or in an unreasonable manner. This means that if the Union Government reaches the President with the reasons, necessitating the removal of a Governor, the President must ascertain that the removal is not “arbitrary, capricious or unreasonable manner”. In Short, while the President need not disclose or inform the cause for his removal to the governor, it is imperative that a cause must exist.

3) In the judgement, the SC said : “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.”

But if the removal of the Governor is challenged ,and if the Court is satisfied with the arbitrariness of the removal, it can seek records from the Government , which necessitated the removal of the Governor. This becomes clear in the SC 2010 verdict ,

…if a governor’s removal was challenged, it would always presume there was a compelling reason for such action. It had said the onus was on the aggrieved person to show that the removal was arbitrary. Only after he established arbitrariness of removal would a court seek records from the government.

Since the Constitution allows the challenging of the removal of a Governor , the Uttarakhand Governor has gone to the SC.

Why a Governor’s removal can be challenged in the Court of Law ?

Some among us will argue that, when a person doesn’t ask the Government why he’s being recommended for the post of Governor; then on what right he can challenge his removal. The argument can have some merit, but how often a person getting some post or reward , ask the bestower, why him/her? Thus this argument can be safely set aside.

The petition, which may put to test the Centre’s decision to nudge gubernatorial authorities to either resign or to remove them at will, is coming up as such arbitrary conduct of Union Governments , sabotage the entire Goodwill of the persons on such posts. That too at such late in their lives.

Take for instance, the sacking of Kamla Beniwal. No one knows why she was removed, as the President didn’t give any reasons, as he doesn’t need to. But outside , BJP Spokespersons accused Beniwal of flying 56 times in Government helicopter , while as the Governor of Gujarat. She was also accused of submitting a false affidavit in connection to a land in Rajasthan. If the Government is sure that she has committed some act for which she must be punished, then why not such claims be followed by a trial. If not, then why say something to prove a point. If she flew in the Government helicopter that many times, why the state Government kept mum at that time. That apart, if her conduct was such illegal or inappropriate, then why she was first transferred to Mizoram, and then sacked.

It’s a human psychology that the moment someone is sacked from his post, his/her integrity and entire goodwill comes under scanner.

Since the time Modi government took charge at Centre, seven Governors were nudged to quit while two were sacked. Assuming that all of these will go to the Court against the Union Government is a bit too much. It would have been better if the Constitution makes it mandatory on the President’s office to make public the reasons forwarded by the Government necessitating the removal of a Governor. It would be even better, if immediate trial on misconduct, if any, also takes place.

It will be interesting to see the SC’s observation on Uttarakhand Governor Aziz Qureshi’s petition, which asserts that if at all someone should ask him to quit, it could only be the President and no one else; as has been consistently ruled by the Supreme Court, was not an employee of the Union government.

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