The question
whether the removal of Governor is open to Judicial Review has been beautifully
explained by the Court in the case B.P. Singhal v. Union of India.
Here are some of the important parts of the Judgment.
When a Governor
holds office during the pleasure of the Government and the power to remove at
the pleasure of the President is not circumscribed by any conditions or
restrictions, it follows that the power is exercisable at any time, without
assigning any cause.
However, there
is a distinction between the need for a cause for the removal, and the
need to disclose the cause for removal. 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. Therefore, while no cause or reason be disclosed or
assigned for removal by exercise of such prerogative power, some valid cause
should exist for the removal.
Therefore, even
though it cannot be said that an order under Article 156 is not justiciable, but
it could very well be inferred that no reason need be assigned and no cause
need be shown and no notice need be issued to the Governor before removing a
Governor.
This Court has
examined in several cases, the scope of judicial review with reference to
another prerogative power – power of the President/Governor to grant pardon
etc., and to suspend, remit or commute sentences. The view of the Court is that
the power to pardon is a part of the constitutional scheme, and not an act of
grace as in England. It is a constitutional responsibility to be exercised in
accordance with the discretion contemplated by the context. It is not a matter
of privilege but a matter of performance of official duty. All public power
including constitutional power, shall never be exercisable arbitrarily or mala
fide.
While the President
or the Governor may be the sole Judge of the sufficiency of facts and the
propriety of granting pardons and reprieves, the power being an enumerated
power in the Constitution, its limitations must be found in the
Constitution itself.
In the case of
S.R. Bommai v. Union of India[1],
the Court held that Article 74(2) merely bars an inquiry into the question
whether any, and if so what, advice was tendered by the Council of Ministers to
the President but does not bar the scrutiny of the material on the basis of
which the President has made the order.
Therefore,
though the sufficiency of the material could not be questioned, legitimacy of
the inference drawn from such material is open to judicial review.
Article 156(1)
provides that a Governor shall hold office during the pleasure of the
President. Having regard to Article 74, the President is bound to act in
accordance with the advice of the Council of Ministers. Therefore, even though
under Article 156(1), the removal is at the pleasure of the President, the
exercise of such pleasure is restricted by the requirement that it should be on
the advice of the Council of Ministers.
The President in
exercising power under Article 156(1) should act in a manner which is not
arbitrary, capricious or unreasonable. In the event of challenge of
withdrawal of the pleasure, the court will necessarily assume that it is for
compelling reasons. Consequently, where the aggrieved person is not able to
establish a prima facie instance of arbitrariness or mala fides, in his
removal, the court will refuse to interfere. However, where a prima facie case
of arbitrariness or mala fides is made out, the Court can require the
Union Government to produce records/materials to satisfy itself that the
withdrawal of pleasure was for good and compelling reasons. What will
constitute good and compelling reasons would depend upon the facts of the case.
Having regard to
the nature of functions of the Governor in maintaining centre-state relations,
and the flexibility available to the Government in such matters, it is needless
to say that there will be no interference unless a very strong case is made
out. The position, therefore, is that the decision is open to judicial
review but in a very limited extent.
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