News reports that the Union home secretary has been calling governors appointed during the term of the UPA government and asking them to resign are worrying. This not only demeans the constitutional office of the governor, it is also violative of the law laid down by the Supreme Court.
The gates of Raj Bhavan do not automatically open and close after a change of government. The residents of Raj Bhavan are not required to make way for new governors each time a general election is held.
Clarity on this issue comes from a Supreme Court constitutional Bench, which gave a judgment on this on May 7, 2010, in the BP Singhal vs Union of India case.
A BJP MP, Singhal had, ironically it now turns out, challenged UPA 1’s decision to prematurely remove the governors of Uttar Pradesh, Gujarat, Haryana and Goa in 2004. The governors had been appointed when the Vajpayee government ruled.
The Bench held a governor could not be removed on the grounds that he was out of sync with the policies and ideologies of the party in power at the Centre. Nor could he be removed on the grounds that the government had lost confidence in him.
The court held the powers under Article 156(1) to terminate the tenure of a governor by withdrawing the pleasure of the President could not be exercised in an arbitrary, capricious or unreasonable manner.
Under Article 156 (3) of the Constitution, governors are appointed for a term of five years. The Sarkaria Commission stated that the governor’s tenure should not be disturbed except very rarely, and that too for some extremely compelling reason.
UPA 1 had committed the same mistake. Now, to repeat the mistake after a Supreme Court judgment on the same issue is an inexcusable blunder. Yet, within a month of coming to power, the foremost agenda of the BJP government seems to be appointing its own candidates as governors.
Some have resisted, but four governors — of Uttar Pradesh, Chhattisgarh, Nagaland and West Bengal — have resigned, succumbing to this illegal threat of their removal.
The Constitution gives us three pillars for the effective functioning of our democracy and rule of law.
They are the legislature, the executive and the judiciary. The governor is the head of both the legislative as well as the executive wings of the state. She, or he, takes an oath to protect and defend the Constitution and the law. Governors have a duty to impartially assist the President of India.
The most important aspect of the office of the governor is that she, or he, has to be apolitical. Once appointed, governors must forget about their party affiliations and act independently on the merits of each issue. Once I became governor, I forgot my association with the Congress.
HM Seervai, the great legal luminary, has written: “The Governor is not an agent of the President. He has a dual role, the first is that of the Constitutional head of the state bound by the advice of the Council of Ministers. The second is to serve as a vital link between the union and state governments …”
Let us respect the foundations of the Constitution.
(Murlidhar Chandrakant Bhandare is a former governor of Odisha. The views expressed by the author are personal.)