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’Governors cannot be removed arbitrarily’

J. Venkatesan

Thursday 1 July 2004, by VENKATESAN*J.

NEW DELHI, JULY 1. The President’s "pleasure" in the appointment of Governors cannot be exercised arbitrarily merely because of a change of government at the Centre, say some legal experts.

They say that normally Governors have a tenure of five years, though under Article 156 (1) of the Constitution they hold office during the "pleasure" of the President.

According to senior Supreme Court lawyer M.N. Krishnamani, the "pleasure" doctrine under Article 156 could be exercised only if a Governor’s action or conduct was unbecoming of the high office of the Governor, corruption or violation of the Constitutional provisions.

He says that under Article 310 of the Constitution, persons serving the government either at the Centre or the State hold office during the "pleasure" of the President or Governor as the case may be, but they cannot be removed arbitrarily as several procedures have to be followed. "It is not contemplated in the Constitution that a Governor must automatically resign if there is a change of government.

There is also no such convention followed in the last 50 years," says Mr. Krishnamani.

The framers of the Constitution provided for a fixed tenure of five years for a Governor of a State to ensure that there are checks and balances. The Governors therefore cannot be thrown out on whimsical or political reasons, he feels. He points out that a petition filed by an advocate and office-bearer of the Congress that Governors should not be removed on the "pleasure" of the President is pending adjudication before a five-Judge Bench of the Supreme Court.

According to lawyer Prashant Bhushan, "it is true that the office of Governor should not be subjected to the whims and fancies of the party in power at the Centre. Any mala fide action of the government is bad in law." But as per the present system, the government in power can change Governors.

"If the present government wants to change the Governors, it should convince the people that those appointed by the Bharatiya Janata Party-led Government were not qualified to hold office as Governors since they were all committed to the ideology of the RSS. Anyway, it is not a satisfactory system and the law on this aspect should be changed," says Mr. Bhushan.

However, he says the BJP, which replaced the heads of various autonomous bodies even before they completed their tenure, cannot have any grievance on the removal of Governors.

K. Subramaniam, senior lawyer, is of the opinion that while the Constitution provides for impeachment of the President, no such provision exists for the Governor, the reason being that as the Governor holds office during the pleasure of the President, the Central Government can always recall him if the circumstances so required.

He cites a judgment of the Rajasthan High Court in the case of Raghukul Tilak, wherein it was held that the presidential pleasure contemplated in Article 156 was not justiciable.

In view of this he says, the President is the best judge to decide as to when and in what circumstances the term of the Governor should be replaced. And Article 156 does not require that reasons be disclosed for the removal of a Governor.

The president of the Supreme Court Bar Association, P.H. Parekh, agrees with the view expressed by Mr. Subramaniam. "There is no legal impediment for the removal of a Governor as he holds office during the pleasure of the President, who acts on the aid and advice of the government at the Centre. Therefore, whenever there is a change of party in power at the Centre, it will be justified in removing a Governor, particularly if the government feels that such a Governor is not an independent person or one who is committed to a philosophy of particular political party or an organisation," says Mr. Parekh.

See online : The Hindu

P.S.

in The Hindu, Thursday, July 01, 2004.

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