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Mainstream, VOL LII No 28, July 5, 2014

Arbitrary Removal of Governors by the Modi Government

Saturday 5 July 2014

by Shiladitya Chakraborty

The newly elected BJP-led NDA Government appears to be determined to make a clean sweep at all levels. Many heads rolled in the mass exodus of the UPA-II appointed Governors. At least three—Karnataka Governor H.R. Bharadwaj, Uttar Pradesh Governor B.L. Joshi and Assam Governor J.B. Patnaik—have resigned from their posts on June 17, 2014. In fact their actions were lauded by the Home Minister, Rajnath Singh, saying: “If I were in their position, I would have quit a long time ago.” The move comes in the midst of a growing speculation that the BJP-led NDA Government is on an overdrive to wipe out all traces of Congress presence in the States. However, this action of the NDA Government is not unprecedented. Time and again the institution of the Governor has been victim of political vendetta whenever there is a change of guard at the Central Government. The first decision to replace Governors took place under the regime of the Janta Government in 1977, when it replaced appointees of the previous Congress Government. This happened time and again and in more recent years, such mass resignations became a norm, when the then UPA Government replaced the NDA appointed Governors in 2004 before their term expired, including Babu Parmanand (Haryana), Vishnu Kant Shastri (Uttar Pradesh), Kidar Nath Sahani (Goa) and Kailashpati Mishra (Gujarat).

Some ardent supporters of the Modi Government argue that the UPA have been paid back in its own coin and it is only a limited exercise to get rid of a few “political appointees” of the previous UPA regime. Unfortunately, the NDA Government had proclaimed before coming to power that they would restore the prestige and power of the key institutions of democracy, which had suffered tremendously at the hands of the erstwhile UPA regime. But on coming to power, they displayed the same callowness of the previous government by striking at the very basis of gubernatorial independence, namely, security of tenure. The question which naturally arises is—how does the mass removal of the Governors help in strengthening India’s democracy or the process of governance? It is the firm opinion of several legal luminaries that such capricious removal of Governors before the expiry of their tenure makes the position of the Governors subordinate, if not subservient, to the Central Government and introduces a principal-agent relationship between the two. This is in fact in complete variance with the letter and spirit of the Constitution. It reduces the position of the Governor to less than that of a government employee who cannot be dismissed arbitrarily from service without proper enquiry following the due process of law. What is more contemptible is the fact that such actions validate the unwritten practice that all Governors should be political appointees and must act as “sycophants” or “yes men” of the political party in power at the Centre.

In fact, the capricious actions of the previous UPA Government came under the scanner of the Supreme Court in the landmark decision on a PIL filed by the then BJP MP, B.P. Singhal, challenging the removal of Governors of Uttar Pradesh, Gujarat, Haryana and Orissa by the previous UPA Government in 2004. A five-judge Constitution Bench, headed by Chief Justice K.G. Balakrishnan, held in 2010 that a Governor can be replaced only under “compelling” reasons for proven misconduct or other irregularities. The Bench also said the Governor can be removed only under “compelling reasons” and what the compelling reasons are depends on facts and situations of a particular case. However, there have been many tenacious legal arguments put forward by successive govern-ments regarding their gratuitous actions. In fact in this landmark case the UPA Government had defended its actions in the Supreme Court by contending that the conflict of the Governor’s view with the national policy could invite his/her removal from the office by cutting short the five-year tenure. The UPA had also said that Governors act as a bridge between the Centre and State governments and as such they could not disagree on their own with the views of the government. The current NDA Government is also arguing on similar lines. Senior BJP leaders have reiterated that the Governor is appointed by the President and he holds office during his pleasure. Therefore he can be relieved of his office by the President, which in effect means the Central Government. It is true that the Constitution does not specify the conditions or procedures for the removal of the Governor and the Central Government can remove the Governor before expiry of his tenure by invoking the “pleasure clause”. However, the fact is that the “pleasure Clause” should not be used arbitrarily or capriciously in any way that undermines the constitutional position or importance of the Governor. If at all a Governor should be removed it has to be for a specific act of omission or commission which makes him ineligible to continue in office and which has been enquired into and adequately established in the eyes of law following the norms of natural justice.

In conclusion, it can be said that it is inadvisable to leave the interpretation of the constitutional conventions and norms affecting the independence and prestige of the institution of Governorship entirely to the discretion or whims of the political parties who come to power at the Centre. We are in an era of political expediency when the immaculate silent premises of the founding fathers of the Constitution may no longer command the respect and obedience they deserve. Therefore it is necessary in the interest of safeguarding the integrity and prestige of the institution of Governorship that the “silent premises” of the Constitution are done away with and the procedure and grounds of removal of Governors are manifestly articulated through constitutional amendments.

Dr Shiladitya Chakraborty is an Assistant Professor, Department of Political Science, University of Kalyani, Nadia, (West Bengal).

ISSN : 0542-1462 / RNI No. : 7064/62