This Article is From Jun 18, 2014

The Governors Issue: Congress, Please Calm Down

(Nalin S Kohli is spokesperson for the Bharatiya Janata Party (BJP) and Director of the party's Public Policy Research Centre. He is also a lawyer and has extensive experience in media and education.)

The possible removal of Governors, appointed by the previous government, is in the news. Congress party spokespersons are questioning the propriety of such a decision by the Union government. To bolster their arguments, many are quoting the May 7th 2010 judgement in the BP Singhal versus Union of India case by the Constitution Bench of the Supreme Court, which followed the removal of the Governors of Uttar Pradesh (Vishnu Kant Shastri), Haryana (Babu Parmanand), Gujarat (Kailashpati Mishra) and Goa (Kidarnath Sahni)  in July 2004.  More on that verdict later because this issue, first, needs to be examined in totality, or else the woods will be missed for the trees.

The Governor's post is an office of eminence. The actions of a Governor must therefore be in keeping with the dignity of the institution. However, throughout their tenures, Karnataka Governor H R Bhardhwaj and Gujarat Governor Kamla Beniwal regularly made news with regard to their partisan attitude towards the BJP governments in their respective states.

A number of existing Governors like Margaret Alva of Rajasthan have nearly completed their tenures. Others Like Mr BV Wanchoo of Goa and Mr MK Narayanan of West Bengal might be required for questioning by the CBI in the Augusta Westland helicopter scandal. The tearing hurry with which Mrs Sheila Dikshit was appointed as Governor of Kerala, literally days before the UPA government's term expired, is also questionable. It can also be argued that her appointment to a constitutional office was to offer her immunity from any charge that may arise on account of the Shunglu Committee report on the Commonwealth Games scam.

The Judgment by the Supreme Court in 2010 case states that "Under Article 156(1), the Governor holds office during the pleasure of the President. Therefore, the President can remove the Governor from office at any time without assigning any reason and without giving any opportunity to show cause." However, this power (of the President to remove a Governor) " cannot be exercised in an arbitrary, capricious or unreasonable manner. The power will have to be exercised in rare and exceptional circumstances for valid and compelling reasons. What would be compelling reasons would depend upon the facts and circumstances of each case."

The top court also said that "A Governor cannot be removed on the ground that he is out of sync with the policies and ideologies of the Union Government or the party in power at the Centre."

The court concludes by adding that "as there is no need to assign reasons, any removal as a consequence of withdrawal of the pleasure will be assumed to be valid and will be open to only a limited judicial review".

From the judgement it is clear that the Union Government does have the power to change Governors as long as "valid and compelling reasons" exist.

Former Attorney General of India, Soli J Sorabjee, who appeared on behalf of the petitioner in this case, in an article titled "On Governors, go by reason not whim" dated May 23rd 2014 in the Indian Express, concludes by stating "Apparently, hopes of successful judicial redress by governors who may be removed are not too bright. It would be befitting and also expedient if they resigned, rather than stuck to their gubernatorial chairs and tried their luck in the courts."

Beyond the legal position, there are many broader issues to consider.

Can the Congress party really argue against such examples on the basis of propriety? Nor can it be ignored that successive Congress governments through the decades not only removed and appointed Governors at their whims but also blatantly misused the office of the Governor especially with regard to Article 356 and the imposition of President's rule. Now that they are no longer in government at the centre, Congress Party spokespersons are displaying a convenient flexibility on stands involving principles.

Precedence and the constitutional position both confirm that the Union Government enjoys the power to change Governors. Whether it chooses to exercise this right or not cannot be questioned, least of all by the Congress Party. In 2004, before removing four Governors appointed by the Vajpayee government, the Congress party ignored the fact that the BJP-led NDA government not only continued with Governors appointed previously but also granted a second term in 2000 to the Governor of Meghalaya, senior Congress leader Mr M M Jacob, who had served as the Minister of State for Home Affairs under Narasimha Rao.

In light of all this, perhaps propriety might be better served if the said Governors displayed grace in considering resigning themselves. Or would they prefer a path of confrontation that demeans the very office of eminence that they seek to forcibly cling on to?

Disclaimer: The opinions expressed within this article are the personal opinions of the author. NDTV is not responsible for the accuracy, completeness, suitability, or validity of any information on this article. All information is provided on an as-is basis. The information, facts or opinions appearing in the article do not reflect the views of NDTV and NDTV does not assume any responsibility or liability for the same.