B.P. SINGHAL v. UNION OF INDIA AND ANR.

36Copy pinpoint36. The Constitutional Assembly debates shows that Mr. K.T. Shah had proposed an amendment that "the Governor shall hold office for a term of five years from the date on which he enters upon his office, and shall during that term be irremovable D from his office." He moved another amendment for addition of a clause that a Governor may be removed from office by reason of physical or mental incapacity duly certified, or if found guilty of bribery or corruption. He stated : E "This is, as I conceive it, different fundamentally from the appointment during the pleasure of the President. The House, I am aware, has just passed a proposition by which the Governor is to be appointed by the President and it would be now impossible for any one to question that proposition. I would like, however to point out, that having regard to the appointment as against the elective principle, we must not leave the Governor to be entirely at the mercy or the pleasure of the President. We should see to it, at ariy rate that if he is to be a constitutional head of the. province, if he is to be acting in accordance with the advice of his ministers, if we desire to remove any objection that might possibly be there to the principle of nomination, we should see to it that at least while he is acting correctly, in accordance with the Constitution following the advice of his ministers, he should not be at the mercy of the President H

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A who is away from the Province and who is a national and not a local authority. This is all the more important pending the evolution of a convention, such as was suggested by one of the previous speakers, that the appointment, even if agreed to, should be on the advice of the local Ministry. B I do not know if such a convention can grow up in India, but even if it grows up, and particularly if it grows up, it would be of the utmost importance that no non-provincial authority from the Centre should have the power to say that the Governor should be removable by that authority; So c long as he acts in accordance with the advice of the constitutional advisers of the province, he should I think be irremovable during his term of office, that is, five years according to this article.

There is of course a certain provision with regard to D resignation voluntarily or other contingencies occurring whereby the Governor may be removed. But, subject to that, and therefore to the entire Constitution, the period should be the whole period and not at the pleasure of the President." E Prof. Shibban Lal Saksena also objected to the proposed Article (in the present form). He said :

"Just now we have accepted a provision whereby the Governor shall be nominated by the President. Already we feel that there democracy has been abandoned. f:>Jow, Sir, comes this provision whereby the Governor shall hold office only at the pleasure of the President. Even in the case of the Supreme Court, we have provided that once the Judges of the Supreme Court has been appointed, they will be removable only after an address presented by both the Houses of Parliament, and by two-thirds majority of the members present and voting. In the case of the Governor, you want to make a different provision. It seems to me, Sir, to be an extraordinary procedure and it completely takes away the independence of the Governor. He will be purely

.B.P. SINGHAL v. UNION OF INDIA AND ANR. 643 [R.V. RAVEENDRAN, J.]

a creature of the President, that is to say, the Prime Minister A and the party in power at the Centre. When once a Governor has been appointed, I do not see why he should not continue in office for his full term of five years and why you should make him removable by the President at his whim. It only means that he must look to the President for B continuing in offic~ and so continue to be subservient to him. He cannot be independent. He will then have no respect. Sir, Dr. Ambedkar has not given any reasons why he has made this change. Of course, the election of the Governors has been done away with, but why makes him c removable by the President at his pleasure? The original article says: "A governor may, for violation of the Constitution, be removed from office by impeachment ........ It means that a Governor can only be removed by impeachment by both the Houses. Now, he will be there b only at the pleasure of the President. Such a Governor will - have no independence and my point is that the Centre might try to do some mischief through that man. Even if he is nominated, he can at least be independent if after he is appointed he is irremovable. Now, by making him continue E in office at the pleasure of the President, you are taking away his independence altogether. This is a serious 1 deviation and I hope the House will consider it very carefully. Unless he is able to give strong reasons for making this change, I hope Dr. Ambedkar will withdraw his amendment." F

Sri Lokanath Misra expressed a slightly different point of view:

"Mr. President, Sir, after having made the decision that Governors shall be appointed by the President, it naturally G follows that the connected provisions in the Draft Constitution should accordingly be amended, and in that view, I accept the amendment that has now been moved by Dr. Ambedkar. That amendment suggests that the Governor shall be removable as the President pleases, that H

644 SUPREME COURT REPORTS [2010] 6 S.C.R.

A is, a Governor shall hold office during the pleasure of the President and that whenever he incurs the displeasure of the President, he will be out. When the President has appointed a man, in the fitness of things the President must have the right to remove him when he is displeased, but B to remove the evil that has now crept in by doing away with election for the office of the Governor, it would have been much better if the State legislature too had been given the power to impeach him not only for violation of the Constitution but also for misbehaviour. I use the word c 'misbehaviour' deliberately because, when a Governor who is not necessarily a man of that province is appointed to his office, it is but natural that the people of the province should have at least the power to watch him, to criticize him, through their chosen representatives. If that right had been given, in other words, if the provision for the impeachment of the Governors by the State legislatures had been there, it would have been a safeguard against improper appointment of Governor by the President. One of the main objections to the appointment of the Governor by the President has been that he will be a man who has no roots in the province and no stake, that he will be a man who will have no connection with the people, that he will be a man beyond their reach and therefore can go on merrily so long as he pleases the President, the Prime Minister of the Union and the Premier of the Province. But F they are not all. It would have been much better if the Governor's removal had been made dependent not only on the displeasure of the President but on the displeasure of the State legislature also which represents the people and that would have been a safeguard against the evil that G has been caused by the provision for the appointment of Governor by the President."

Dr. B.R. Ambedkar replied thus:

"Sir, the position is this: this power of removal is given to H

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[R.V. RAVEENDRAN, J.]

the President in general terms. What Professor Shah wants is that certain grounds should be stated in the Constitution itself for the removal of the Governor. It seems to me that when you have given the general power, you also give the power to the President to remove a Governor for corruption, for bribery, for violation of the Constitution or for any other reason which the President no doubt feels is legitimate ground for the removal of the Governor. It seems, therefore, quite unnecessary to burden the Constitution with all these limitations stated in express terms when it is perfectly possible for the President to act upon the very c same ground under the formula that the Governor shall hold office ,during his pleasure. I, therefore, think that it is unnecessary fo categorize the conditions under which the President may undertake the removal of the Governor."

37Copy pinpoint37. Thereafter the Article in the present form was adopted, D · rejecting the suggestions/amendments proposed by Mr. K.T. Shah, Prof. Shibban Lal Saksena and Mr. Lokanath Mishra. The debates show that several alternatives were considered and ultimately the Article in its present form was adopted. The debates however disclose the following: . E

(i) The intention of the founding fathers was to adopt the route of Doctrine of Pleasure, instead of impeachment or enquiry, with regard to removal of Governors. F (ii) It was assumed that withdrawal of pleasure resulting in removal of the Governor will be on valid grounds but there was no need to enumerate them in the Article. G

38Copy pinpoint38. In Constitutional Law of India (4th Ed.,Vol.2, page 2066) H.M. Seervai refers to the scope of Article 156(1) thus:

"A difficulty, however, arises from the fact that the Governor holds office during the pleasure of the President and can H

646 SUPREME COURT REPORTS [2010) 6 S.C.R.

A be removed by him. As the President acts on the advice of his ministry, it may be contended that if the Governor takes action contrary to the policy of the Union Ministry he would risk being removed from his post as Governor, and, therefore, he is likely to follow the advice of the Union Govt. B Whilst not denying the force of this contention, it is submitted that Article 156(1) has a very different purpose. It is submitted that a responsible Union Ministry would not advise, and would not be justified in advising the removal of a Governor because in the honest discharge of his duty, c the Governor takes action which does not fall in line with the policy of the Union Ministry. To hold otherwise would mean that the Union executive would effectively cor.trol the State executive which is opposed to the basic scheme of our federal Constitution. Article 156(1) is designed to secure that if the Governor is pursuing courses which are D detrimental to the State or to India, the President can remove the Governor from his office and appoint another Governor. This power takes the place of an impeachment which clearly is a power to be exercised in rare and exceptional circumstances."

39Copy pinpoint39. The provision for removal at the pleasure of an authority without any restriction, as noticed above, applies to Ministers as also the Attorney General apart from Governors. Persons of calibre, experience, and distinction are chosen to F fill these posts. Such persons are chosen not to enable them to earn their livelihood but to seNe the society. It is wrong to assume that such persons having been chos8n on account of their stature, maturity and experience will be demoralized or be in constant fear of removal, unless there is security of tenure. G They know when they accept these offices that they will be holding the office during the pleasure of the President.

Need for reasons

40Copy pinpoint40. The petitioner contends that the removal of a Governor H can only be for compelling reasons which is something to do

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[R.V. RAVEENDRAN, J.]

with his capacity to function as a Governor. According tc;i the A 1 petitioner, physical or mental disability, acts of corruptio n or moral turpitude or behaviour unbecoming of a Governor like being involved in active politics, or indulging in. subversive activities are valid reasons for removal. In other words, it is contended that there should be some fault or draw back in the B. Governor or in his actions before he could be removed from office. On the other hand, it is contended by the respondents that removal need not only be for the reasons mentioned by the petitioner but can also be on two otfier grounds, namely, loss of confidence in the Governor or the Governor being out of sync C with the policies and ideologies of the Union Government. There is thus a consensus to the extent that a Governor can be removed only for a valid reason, and that physical and mental incapacity, corruptiof! and behaviour unbecoming of a Governor are valid grounds for removal. Ther~;fs however disagreement 0 as to what else can be grounds for removal. We are of the view that there can be other grounds also. , It is not possible to put the reasons under any specific heads. The only limitation on the ~xercise of the power is that it should be for valid reasons. What constitute valid reasons would depend upon the facts and circumstances of each case. E

41Copy pinpoint41. We have however already rejected the contention that the Governor should be-iri sync with the ideologies of the Union Government. Therefore, a Governor cannot be removed on the ground that he is not sync or refuses to act as an agent of the party in power at the Centre. Though the Governors, Ministers and Attorney General, all hold office during the pleasure of the President, there is an intrinsic difference between the office of a Governor and the offices of Ministers and Attorney General. Governor is the Constitutional Head of the State. He is not an employee or an agent of the Union Government nor a part of any political team. On the other hand, a Minister is hand-picked member of the Prime Minister's team. The relationship betweeri the Prime Minister and a Minister is purely political. Though· the Attorney General holds a public H

648 SUPREME COURT REPORTS [2010] 6 S.C.R.

A office, there is an element of lawyer-client relationship between the Union Government and the Attorney General. Loss of confidence will therefore be very relevant criterion for withdrawal of pleasure, in the case of a Minister or the Attorney General, but not a relevant ground in the case of a Governor. B (v) Judicial review of withdrawal of President's pleasure

42Copy pinpoint42. 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, while we do not accept the contention that an order under Article 156 is not justiciable, we accept the contention 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. F

43Copy pinpoint43. The traditional English view was that prerogative powers of the Crown conferred unfettered discretion which could not be questioned in courts. Lord Ruskill attempted to enumerate such prerogative powers in Council of Civil Service G Unions v. Minister for the Civil Service - 1985 AC 374 :

"Prerogative powers such as those relating to the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament H and the appointment of ministers as well as others are not,

B.P. SINGHAL v. UNION OF INDIA AND ANR. 649

[R.V. RAVEENDRAN, J.]

I think susceptible to judicial review because their nature A and subject matter are such as not to be amenable to the judicial process. The courts are not the pla'ce wherein to determine whether a treaty should be concluded or the armed forces disposed in a particular manner or Parliament dissolved on one date rather than another." B

However, the contemporary English view is that in principle even such 'political questions' and exercise of prerogative power will be subject to judicial review on principles of legality, rationality or procedural impropriety. (See decision of House of Lords in C : R (Bancoult) vs. Foreign Secretary - 2009 (1) AC 453). In fact, De Smith's Judicial Review (6th Ed. 2007 Page 15) states

"Judicial review has developed to the point where it is possible to say that no power - whether statutory or under the prerogative - is any longer inherently unreviewable. Courts are charged with the responsibility of adjudicating upon the manner of the exercise of public power, its scop~ and its "substance. As we shall see, even when discretionary powers are engaged, they are not immune from judicial review."

44Copy pinpoint44. In State of Rajasthan v. Union of ln'Q[a 1977 (3) SCC 592 , this Court (Bhagwati J., as he then was), held:

"But merely because a question has a political complexion that by itself is no ground why the Court should shrink from . performing its duty under the Constitution if it raises an issue of constitutional determination ..... the Court cannot fold its hands in despair and declare 'Judicial hands off. So long as a question arises whether an authority under the Constitution has acted within the limits of its power or exceeded it, it can certainly be decided by the court. Indeed it would be its constitutional obligation to do so . . .. This Court is the ultimate interpreter of the Constitution H

650 SUPREME COURT REPORTS [2010) 6 S.C.R.

A and to this Court.is assigned the delicate task of determining what is the power conferred on each branch of Government, whether it is limited, and if so, what are the limits and whether any action of that branch transgresses such limits. It is for this Court to uphold the B constitutional values and to enforce the constitutional limitations. That is the essence of the rule of law. . .. Where there is manifestly unauthorizeq exercise of power under the Constitution, it is the duty of the Court to intervene. Let it not be forgotten, that to this Court as much c as to other branches of Government, is committed the conservation and furtherance of democratic values. The Court's task is to identify those values in the constitutional plan and to work them into life in the cases that reach the Court. ... The Court cannot and.should not shirk this responsibility .... " D In the said decision, Chandrachud, J. (as he then was) observed thus :

"They may not choose to disclose ·them but if they do so, as they have done now, they cannot prevent a judicial scrutiny thereof for the limited purpose of seeing whether the reasons bear any rational nexus with the action proposed. I am inclined to the opinion that the Government cannot claim the credit at the people's bar for fairness in disclosing the reasons for the proposed action and at the same time deny to this Court the limited power of finding whether the reasons bear the necessary nexus or are wholly extraneous to the proposed action. The argument that "if the Minister need not give reasons, what does it matter if he gives bad ones" overlooks that bad reasons can destroy a possible nexus and may vitiate the order on the ground of mala fides."

In Kihota Hollohon v. Zachilhu 1992 [Supp. (2) SCC 651] this Court held: H

B.P. SINGHAL v. UNION OF INDIA AND ANR. 651

[R.V. RAVEENDRAN, J.]

"The principle that is applied by the courts is that in spite of a finality clause it is open to the court to examine whether the action of the authority under challenge is ultra vires the powers conferred on the said authority. Such an action can be ultra vires for the reason that it is in contravention of a rTiandatory provision of the law conferring on the authority the power to take such an action. It will also be ultra vires the powers conferred on the authority if it is vitiated by mala fides or is colorable exercise of power based on extraneous and irrelevant considerations."

45Copy pinpoint45. In R. C. Poudyal v. Union of India [1994 Supp (1) SCC C 324]; in the context of Article 371-F, it was contended on behalf of Union of India that the terms and conditions of the admission of a new territory into the Union are eminently political questions which the Court should decline to decide as these questions lack adjudicative disposition. A Constitution Bench of this Court q referred to various decisions of the American Supreme Court including Baker v. Carr, 369 US 186 and Powell v. McCormack, 395 US 486 where the question whether the 'political thickets' docrine was a restraint on judicial power, was considered, and held that certain controversies previously E immune from adjudication, were justJciable, apart from narrowing the operation of the doctrine in other areas. This Court held : '

"The power to admit new States into the Union under F Article 2 is, no doubt, in the very nature of the power, very wide and its exercise necessarily guided by political issues of considerable complexity many of which may not be judicial manageable. But for that reason, it cannot be predicated that Article 2 confers on the Parliament an G unreviewable and unfettered power immune from judicial scrutiny. The power is limited by the fundamentals of the Indian constitutionalism and those terms and conditions which the Parliament may deem fit to impose, cannot be inconsistent and irreconcilable with the foundational H

652 SUPREME COURT REPORTS [2010] 6 S.C.R.

A principles of the Constitution and cannot violate or subvert the constitutional scheme."

(emphasis supplied]

46Copy pinpoint46. This Court has examined in several cases, the scope B 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 this 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 C 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 ma/a fide. While the President or the Governor D 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. Courts exercise a limited power of judicial review to ensure that the President considers all relevant materials before coming to his decision. As the exercise of such power is of the widest amplitude, whenever such power is exercised, it is presumed that the President acted properly and carefully after an objective consideration of all aspects of the matter. Where reasons are given, court may interfere if the reasons are found to be irrelevant. However, when reasons are not given, court may interfere only where the exercise of power is vitiated by self-denial on wrong appreciation of the full amplitude of the power under Article 72 or where the decision is arbitrary, discriminatory or mala fide G [vide Maru Ram v. Union of India [1981 (1) SCC 107], Kehar Singh v. Union of India [1989 (1) SCC 204] etc.]. In Epuru Sudhakar v. Government of Andhra Pradesh [2006 (8) SCC 161], one of us (Kapadia J.) balanced the exercise of prerogative power and judicial review of such exercise thus:

H "The controlling factor in determining whether the exercise

B.P. SINGHAL v. UNION OF INDIA AND ANR. 653

[R.V. RAVEENDRAN, J.]

of prerogative power is subject to judicial review is not its source but its subject matter. It can no longer be said that prerogative power is ipso facto immune from judicial review ....... Rule of Law is the basis for evaluation of all decisions. The supreme quality of the Rule of Law is fairness <lnd legal certainty. The principle of legality occupies a central plan in the Rule of Law·. Every prerogative has to be the subject to the Rule of Law. That rule cannot be compromised on the grounds of political expediency. To go by such considerations would be subversive of the fundamental principles of the Rule of Law c and it would amount to setting a dangerous precedent. The Rule of Law principle comprises a requirement of "Government according to law''. The ethos of "Government according to law" requires the prerogative to be exercised in a manner which is consistent with the basic principle of 0 fairness and certainty."

47t. Exercise of power under Article 156(1) being an executive power exercised on the advice tendered by the Council of Ministers, the question is whether the bar contained in clause (2) of Article 74 will apply. The said clause provides that the question whether any, and if so what, advice was tendered, shall not be enquired into by any court. This clause has been the subject- matter of a nine-Judge Bench decision in S.R. Bommai v. Union of India [1994 (3) SCC 1]. This Court has 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. This Court also held that while an order issued in the name of the President could not be challenged on the ground that it was contrary to the advice tendered by the Council of Ministers or was issued without obtaining the advice from the Ministers, it does not bar the court from calling upon the Union of India to disclose to the court the material on which the President has formed the requisite satisfaction. The bar H

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A contained in Article 74(2) will not come in the way of the court inquiring whether there was any material on the basis of which such advice was given, whether such material was relevant for such advice and whether the material was such that a reasonable man could have come to the conclusion which was under challenge. Therefore, though the sufficiency of the material could not be questioned, legitimacy of the inference drawn from such material was open to judicial review.

48Copy pinpoint48. The extent and depth of judicial review will depend upon and vary with reference to the matter under review. As observed by Lord Steyn in Ex parte Daly (2001 (3) All ER 433], in law, context is everything, and intensity of review will depend on the subject-matter of review. For example, judicial review is permissible in regard to administrative action, legislations and constitutional amendments. But the extent or scope of judicial review for one will be different from the scope of judicial review for other. Mala tides may be a ground for judicial review of administrative action but is not a ground for judicial review of legislations or constitutional amendments. For withdrawal of pleasure in the case of a Minister or an Attorney General, loss of confidence may be a relevant ground. The ideology of the Minister or Attorney Gerleral being out of sync with the policies or ideologies of the Government may also be a ground. On the other hand, for withdrawal of pleasure in the case of a Governor, loss of confidence or the Governor's views being out of sync with that the Union Government will not be grounds for withdrawal of the pleasure. The reasons for withdrawal are wider in the case of Ministers and Attorney-General, when compared to Governors. As a result, the judicial review of withdrawal of pleasure, is limited in the case of a Governor G whereas virtually nil in the case of a Minister or an Attorney General.

49Copy pinpoint49. 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

B.P. SINGHAL v. UNION OF INDIA AND ANR. 655

[R.V. RAVEENDRAN, J.] 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. Whether the removal of Governor is open to judicial review? What Article 156(1) dispenses with is the need to assign reasons or the need to give notice but the need to act fairly and reasonably cannot s be dispensed with by Article 156(1 ). 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. c Consequently, where the aggrieved person is not able to establish a prima facie instance of arbitrariness or malafides, in his removal, the court will refuse to interfere. However, where a prima facie case of arbitrariness or malafides is made out, the Court can require the Union Government to produce 0 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 E 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.

50Copy pinpoint50. We summarise our conclusions as under : F (i) 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. G (ii) Though no reason need be assigned for discontinual')_Ce of the pleasure resulting in removal, the power under . Article 156(1) cannot be exercised in an arbitrary, capricious or unreasonable manner. The power will have to be exercised in rare and exceptional circumstances for H

656 SUPREME COURT REPORTS [2010] 6 S.C.R.

A valid and compelling reasons. The compelling reasons are not restricted to those enumerated by the petitioner (that is physical/mental disability, corruption and behaviour unbecoming of a Governor) but are of a wider amplitude. What would be compelling reasons would depend upon the 8 facts and circumstances of each case. (iii) 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. Nor can he be removed on the ground that the Union Government c has lost confidence in him. It follows therefore that change in government at Centre is not a ground for removal of Governors holding office to make way for others favoured by the new government. (iv) As there is no need to assign reasons, any removal 0 as a consequence of withdrawal of the pleasure :will be assumed to be valid and will be open to only a limited judicial review. If the aggrieved person is able to demonstrate prima facie that his removal was either arbitrary, malafide, capricious or whimsical, the court will call upon the Union Government to disclose to the court, the material upon which the President had taken the decision to withdraw the pleasure. If the Union Government does not disclose any reason, or if the reasons disclosed are found to be irrelevant, arbitrary, whimsical, or malafide, the court will interfere. However, the court will not interfere merely on the ground that a diffe~ent view is possible or that the material or reasons are insufficient.

51Copy pinpoint51. The writ peiition is disposed of accordingly. G TP (C) No.663 of 2004

52Copy pinpoint52. In view of our decision in WP(C) No.296 of 2004, this Transfer Petition is dismissed.

8.8.8. Petitions disposed of. H