This article is written by Gargi Lad. The article provides a detailed analysis of the landmark case of B.P Singhal vs. Union of India (2010). The article further elaborates on the facts of the case, issues, as well as the arguments made by both parties. It refers to various committee reports and forms a critical analysis of the case. The article also looks into the rationale behind the judgement and future implications of the case. It delves into the powers bestowed upon the President and how the same should be exercised with regards to the removal of the Governor. 

Introduction

Governors, usually called the nominal heads of the State, are individuals who represent the State before the Central Government. The role that a Governor plays is quite vital for maintaining balance between the states and the Centre. A Governor is appointed by the President, but he is not an employee of the centre. He works for the State. However, his functions are of such a nature that they work for both the Centre and the State. There is no master-servant relationship between the President and the Governor, even though the Governor’s appointment was made by the President.

The B.P. Singhal vs. Union of India (2010) case laid down a list of binding principles and a skeleton for what the doctrine of pleasure is, by comprehensively interpreting Articles 155 (appointment of Governor) and 156 (term of office of Governor) of the Indian Constitution. The case upholds constitutional principles and limits the President’s powers granted by the Constitution itself. Since the phrase “pleasure of the President” was interpreted in manners favouring the President, the Court set a framework via this case, regarding when the Governor would be removed by the President and what the term would be otherwise. The interpretation of the doctrine of pleasure here was narrowed down by the courts to avoid misuse and arbitrariness.

Details of the case

Name of the case

B.P. Singhal vs. Union of India 

Parties

Petitioner: B.P. Singhal

Respondent: Union of India

Court

Supreme Court of India

Case Type

Civil Original Jurisdiction

Constitutional Bench

Chief Justice K G Balakrishnan, Justice P Sathasivam, Justice B Sudershan Reddy, Justice R. V. Raveendran and Justice S H Kapadia

Date of Judgement

May 7th, 2010

Citation

2010 6 SCC 331

Background of the case

Governor

A Governor is the nominal head of a State, who has the role of overlooking the functioning of the State and its organs. He works in accordance with the advice of the council of ministers. The Governor is a vital link between the State and the Centre, as he reports directly to the Central Government, raises any concerns that the State has with the Centre, and is the face of that State. According to Article 153, every State ought to have a Governor. However, there exist certain exceptions wherein two states have one common Governor, such as Mr. Devanand Konwar, who served as a Governor for both Bihar and West Bengal.

Governors are appointed by the President and their term of holding that public office is mentioned under Article 156. According to Articles 155 and 156 of the Constitution of India, the President appoints the Governor for a period of five years and the Governor holds office only at the pleasure of the President. The responsibility of nominating a Governor for each state has been given to the Central Government. It is pertinent to note that the office of the Governor is an independent constitutional office and the Governor does not work under the Union Government. 

Qualifications of the Governor- Only a person who is an Indian citizen and has completed at least 35 years of age is eligible to become a Governor, as per Article 157 of the Indian Constitution. It is important to note that the Governor should not be a member of the House of Parliament or the House of Legislature and should not hold any other office of profit. 

Resignation by the Governor- The Constitution also lays down that the Governor holds office at the pleasure of the President. According to Article 156(2), the Governor can resign from his office by writing to the President of India.

Committee Reports

Sarkaria Commission

This Commission was also known as the Commission on Centre-State Relations. It was established to distribute powers and responsibilities amongst the State and the Centre and to avoid any interference that may lead to disputes between them. The Government of India set up this Commission in 1983, with the aim of overseeing and recommending changes that were needed for the proper functioning of both Central and State Governments and enhance their efficiency by effectively distributing their powers. The chairman of this Commission was R.S. Sarkaria, along with two other members, namely, Shri B. Sivaraman and Dr. S. R. Sen. 

The Commission observed that in cases where there is an unstable State government, a state emergency is proclaimed. Here, the Governor plays a role of high importance and impact. These scenarios highlighted that a Governor played important roles in maintaining Centre-State relations and adequately exercising the powers given to him. Further, the Commission separately dealt with Governors under Chapter 4 of the report, which delved into the appointment, removal, significance and role of the Governor, in detail. The Commission recommended the following to remove an aspect of partiality in the actions of the Governor towards the centre and to maintain a harmonious relationship between the State and the Centre:

•  A Governor shall be an eminent individual from outside the State.
• He shall not be actively involved in any kind of local politics.
• He shall not have been an active part of any recent political acts.

Along with this, the Commission received a list of suggestions regarding what the removal process for the Governors of each state could be:

•  Inquiry by the Supreme Court
•  Investigation into his conduct by state committee
•  Process similar to that of a Supreme Court judge
•  Impeachment  

The removal of a Governor cannot be done in the manners stated above, as a Governor is a member of the executive and dispenses multifaceted functions. His powers are diverse and he works for both the Union and the State. The committee gave its recommendation on the list given above, stating:

• There can be no inquiry held by the Supreme Court for the decision to remove a Governor, as this involves interference by the judiciary in the functioning of the executive. If the inquiry is held by the Supreme Court, the decision might be of a nature that is in favour of the judiciary.
• State committees might have a negative bias towards the Governor if it is assumed that a Governor dispenses functions for both the Union and the State. The state committee might find the Governor to be biassed and in turn, remove him from the post.
• Removal processes similar to those of a Supreme Court judge cannot be followed, as the functions, role and power of a Supreme Court judge and that of a Governor are completely different and thus the procedure for the removal of both cannot be the same.

The Commission, in further paragraphs, also mentioned that the Governor shall not be removed without giving any adequate reasons or grounds. He shall be given a guarantee of serving for the term defined in the Constitution of India, which is, 5 years, to serve the country impartially. As under Paragraph 4.7.08 of the report, the Commission stated clearly that the term of the Governor shall not be disturbed by anyone until a rare and compelling reason exists. Once they believe that such reasons exist, the Union shall lay a statement before both houses of Parliament, and the Governor shall be given a chance to be heard and to show cause against his removal.

Venkatachaliah Commission

The Commission was established in the year 2000. It was also known as the National Commision to review the working of the Constitution and was headed by former Chief Justice of India Justice M.N. Venkatachaliah. Soli Sorabjee and B. P. Jeevan Reddy were some of the members of this committee. It aimed to establish a fair appointment procedure for Governors and also accurately determine his/her role.

The Governor of any state shall be appointed by a committee composed of the Prime Minister, the speaker of the Lok Sabha, the Home Minister and the Chief Minister of the State where the Governor is being appointed. Governors should be allowed to complete a 5-year term. If any removal has to take place, the Central Government shall do it with advice from the Chief Minister. The role of the Governor is to act as a friend, philosopher and guide to the State Government and to use the discretionary powers bestowed on him in rare cases only. He or she shall not interfere in the daily administrative functioning of the State.

Punchhi Commission

This Commission, established in 2007, consisted of Justice Madan Mohan Punchhi (former Chief Justice of India), as chairman. Some of the notable members were Mr. Dhirendra Singh (former Secretary to the Government of India) and Mr. Vijay Shankar (former director of the Central Bureau of Investigation) as member secretary. The Commission, in the report submitted in 2010, recommended that the phrase “during the pleasure of the President”, be deleted from the provision altogether, as it was deemed to be violative of the Governor’s right to hold the post and also prevents him from exercising his duties properly. It implies that a Governor can be removed at any time at the will of the Central Government, and this may impact his decision making power, since he might be biased towards making decisions as per the Union Government’s ideas. The Commission laid down a solution for this, in its further recommendations- it suggested that the removal of the Governor may instead happen by way of a resolution in the State Legislature, as it would ensure stability in his term as Governor and would also be fair, rather than arbitrary. His decision making power would not be impacted.

Doctrine of pleasure

Scope 

The Privy Council, in the case of Shenton vs. Smith (1895), highlighted the importance of the doctrine of pleasure. The Council stated that this doctrine holds a lot of importance because, in the absence of it, the removal of a civil servant who might have a negative effect on the State, would become difficult. 

This doctrine was also upheld in the case of Dunn vs. Queen (1896). The Court was of the opinion that civil servants have no fixed tenure and the Crown may decide their term or tenure on the basis of its discretion. The Crown has the right to exercise its discretionary power with regards to the term, as the servants work under it and hence shall work in accordance with its rules. If that is not the case, the civil servant may be terminated from the post, and his tenure would end there. The Court also referred to the common rule and was of the opinion that because such public servants are employed for public good, such employment should be determined by the Crown itself. However, in certain exceptional circumstances, for the welfare of the people, certain restrictions could be imposed on the powers that were given to the Crown.

History of the doctrine of pleasure

In India

The President is considered to be the head of the Executive Union and holds the same position as that of the Crown. Hence, the President has been given the power to remove a civil servant under the doctrine of pleasure. Similarly, a civil servant of the State is considered to work at the pleasure of the Governor.  It is pertinent to note that even though this doctrine is followed in India, it was accepted only after certain modifications were made to the original concept as introduced in England. 

In England

As the East India Company entered India, they brought the concept of the doctrine of pleasure along with them. It is derived from the Latin phrases, durante bene placito and durante bene placito regis, which mean “during good pleasure of” and “during good pleasure of the King” respectively. Any decision that was made by the King could not be questioned because he was considered to be the representative of God. Even after independence, this doctrine was considered important, as English law still has a major impact on the Indian legal system. It states that the employees of the Government are similar to the civil servants of the Crown. The application of the same can be seen during the appointment and termination of posts of the Government wherein members are chosen as per the discretion of the Union Government, and removed as per the will of the President.

Facts of B.P. Singhal vs. Union of India (2010)

B. P. Singhal, a former member of the Parliament, filed a public interest litigation under Article 32 (remedies for enforcement of rights conferred by this Part), which highlighted the need for interpretation of Article 156 of the Constitution of India, which deals with the term of the Governor. On the advice of the Union Council of Ministers, the President of India, on July 2, 2004 removed the Governors of four states- Uttar Pradesh, Haryana, Goa and Gujarat. The petitioner sought a writ of certiorari for quashing the removal of the four Governors by the President of India and also a writ of mandamus in order to allow the Governors to complete their remaining terms.

Issues raised

1. Whether the petition is maintainable?
2. What is the scope of doctrine of pleasure?
3. What is the position of the Governor as per the constitution?
4. Whether there are any express or implied limitations/restrictions on the power given under Article 156(1) of the Constitution?
5. Whether the removal of Governors in exercise of the doctrine of pleasure is subject to judicial review?

Laws Involved in the case

Article 156 of the Indian Constitution

Article 156 was discussed and interpreted comprehensively in this case. The doctrine of pleasure, as stated under this provision, was interpreted by the Court, in a manner that does not involve granting unlimited power to the President.

Article 156(1) of the Indian Constitution

Clause (1) concerns itself with how the term of the Governor shall be operative at the “pleasure of the President.” When there is a mention of the doctrine of pleasure, it can be seen that this provision gives the President unlimited power to remove the Governor from his office, without any reasoning, on the mere basis of his wish. This shows an absolute use of power by the President, over the public office of the Governor and how the Centre controls the State Government. The provision lacks words such as, “on reasonable grounds” or “with proper reasoning.”

Article 156(2) of the Indian Constitution

This provision states that a Governor may resign from his office, by writing to the President.

Article 156(3) of the Indian Constitution

According to Article 156(3), the Governor’s term would be five years, which is equal to the term of the President. This provision is also an implied provision of the doctrine of pleasure, as the Governor shall continue to hold the office until the term of the President is in place.

Article 32 of the Indian Constitution

This provision is also called the heart and soul of the Constitution, by Dr. B.R. Ambedkar, as Article 32 provides for protection against actions of the State, that lead to violations of the fundamental rights of the people. The right to Constitutional remedies as guaranteed under Article 32 itself is a right, and hence a writ petition arising out of a violation cannot be denied by the Apex Court. Under Article 32, the aggrieved, whose fundamental right is violated, can approach the Supreme Court and seek remedy for the violation. The remedy can be sought through a writ petition, and as the article states, there are five types of writs that one can file before the Supreme Court of India:

• Mandamus
•  Habeas corpus
• Certiorari
• Quo warranto
•  Prohibition

An aggrieved person is usually the one who files a writ petition in the Supreme Court, but this can also be done by a person who is not a complete stranger to the case, such as a relative or a friend of the aggrieved, in situations of habeas corpus. Writs can also be filed in the public interest and are called public interest litigations. They are a collection of writs filed for the same cause or subject matter. In this matter, writs of mandamus and certiorari, were filed against the Central Government for the removal of four Governors, of the states of Haryana, Goa, Gujarat and Uttar Pradesh.

Article 74 of the Indian Constitution

Article 74 of the Indian Constitution delves into the duty of the Council of Ministers. The President is required to act on the advice of the Council and take their aid when it comes to necessary decisions made for the functioning of the government. The Council of Ministers shall advise the President on all matters and the President shall exercise his powers in accordance with the advice received. In cases with respect to removal of Government posts and removals from public offices, the Council shall advise the President regarding the same and he may then take further action by exercising the power given to him under the Constitution.

Arguments of the parties

Petitioners 

Maintainability of the petition

The petitioners asserted that the petition is maintainable, while relying on the judgement of S.P. Gupta vs. Union of India (1981), The court in this case, answered the question of whether a petition against public injury exists and who could file the same. The court opined that there might be an injury to the public interest (also termed a public injury) when the State or a public authority acts in violation of a constitutional obligation. Any member acting bona fide for the benefit of the public and having interest in the case may file a petition and maintain action for redressal. 

Scope of doctrine of pleasure

Regarding the term of the Governor, the petitioner was not adamant on an irrevocable tenure, but contended that there should be certainty in the term, in order to let the Governor efficiently discharge his duties. Constantly keeping the Governor under the threat that he may be removed from his position by the President, may make him a servant of the Union Government, as he would constantly try to be in the good books of the President to avoid his removal. There ought to be certain fixed rules regarding the removal of the Governor. 

Position of the Governor

The Governor is considered to be a very crucial part of the legislature of a State. The Governor, also called the head of the State, holds high constitutional values and duties. Each and every action that is taken by the government is taken in the name of the Governor. All the bills that are passed by the House of Legislature, are passed by the Governor before it becomes a law. The Governor generally is known for carrying out crucial constitutional functions. One of the major functions of the Governor is to act as a link between the Union Government and the State Government. When required, he also acts as an umpire who is unbiased and takes decisions on behalf of the State.

The fact that he is appointed by the President and holds his term according to the President’s pleasure, does not make him a servant of the Union and he is not accountable to the Union for any actions that are taken by him during this term. They also contended that his post is not subordinate to that of the Union and that his office as Governor, is independent. They stated that there are certain norms that should be followed in order to remove a Governor. The norms are as follows:

• Norm 1- Removal can take place only when the Governor is deemed to be unfit.
• Norm 2- Informing the Governor regarding the removal.
• Norm 3- Judicial review of the removal.

Express or implied limitations/restrictions on the power given under Article 156(1) of the Constitution of India 

It was argued by the petitioner that there are certain restrictions under the doctrine of pleasure. There is a clear difference between Article 75(2), Article 76(4) and Article 156(1). Articles 75 and 76 provide for no restrictions on the doctrine of pleasure and Article 156 lays down certain restrictions on the same. The petitioner also interpreted the two provisions of the Constitution and opined that although the Governor holds office for five years, before expiry, he can resign voluntarily or be removed by the President. The most important restriction is that no employee shall be dismissed until and unless an inquiry has been made and the employee has been informed about the charges. The petitioner relied on the Report of the Sarkaria Commission on Centre-State Relations to support his arguments that removal can only be done after reasons for the same have been mentioned.

Removal of Governors in exercise of the doctrine of pleasure is subject to judicial review

It was contended that in a democracy where the rule of law prevails and there is no supreme authority beyond the Constitution, nobody has unlimited powers, and the removal of a constitutional post like that of a Governor is subject to judicial review. According to the rule of law, all powers vested in authorities by the Constitution should only be used for the public interest. Any order of removal of the Governor before his term ends shall be subject to a review.

To summarise, the petitioner sought three reliefs from the Court. Firstly, they sought a direction to the Union Government, to produce documents and files that form the basis of the order passed by the President on July 2, 2004. They also sought a writ of certiorari to quash the removal of the four Governors, and lastly, a writ of mandamus to allow the said four Governors to complete their terms.

Respondent

Maintainability of the petition

The respondents argued that the petition must be held as non-maintainable, since the aggrieved party did not approach the court for relief. They relied on the S.P. Gupta vs. Union of India (1981) judgement for the same, citing that the complaint of a member of the public, for a secondary public injury, cannot be maintained if the specific group of persons who are primarily injured, do not claim any relief. Hence they contended that Mr. B.P. Singhal had no locus standi to maintain this petition on behalf of the concerned Governors who were removed from office. The Governors belong to a respectable and known part of society and are not individuals deprived of the ability to seek relief and hence, a petition on their behalf shall not be held to be maintainable. 

Scope of doctrine of pleasure

The respondent was of the clear view that the Governor shall hold the office at the pleasure of the President and his removal shall not be due to a reason, such as, the Governor is unfit to hold the post or there exists corruption, etc. The Governor can be removed from his post at any time, as per the discretion of the President. This is because the President is the head of the country and he gets to choose and appoint a Governor of his choice for the betterment of the states and the proper functioning of the country. This upholds the concept of doctrine of pleasure, by stating that if and when situations of loss of confidence or lack of trust arise, a President has free will to remove a Governor from his post and terminate his office with immediate effect. The act of doing so, upholds the principles of the English law. There, it is the rule of the Crown that prevails, and here, it is the will of the President.

Position of the Governor

The respondent maintained a strict opinion that the position of the Governor in the country and a State, is that of an employee of the Union Government and that he does not hold any individual post that is independent of the government. They stated that the Governor ought to be in sync with the ideas and ideologies of the Union Government and hence, shall be removed if his ideas do not match that of the Union Government. The Governor is a person who imagines what a State must be like, and acts in a way that benefits the State government. However, the Governor also acts under the President, as the State and the Union government must work in symphony. Hence, his ideas shall be in consonance with those of the President. If the President finds any discrepancy in his opinions or finds that his ideas have no sync with the ideas of the Union, he may terminate him from the post of the Governor. The Governor relies on the confidence laid in him by the President. In case there is a loss of confidence in the Governor, the President may terminate him from his position.

Express or implied limitations/restrictions on the power given under Article 156(1) of the Constitution of India

The respondent argued that the Governor can also be removed if there is a loss of confidence in the Governor or if the ideologies of Governor and the Union Government do not match. As Article 156 clearly states, he shall hold the post at the pleasure of the President. There are no limitations on that power. They stated that ministers also hold posts as per the pleasure and discretion of the President and the same shall be applied to the post of Governor in the interest of the public.

Removal of Governors in exercise of doctrine of pleasure is subject to judicial review

It was put forward by the respondent that the removal of a Governor takes place by order of the President. The order depends on the discretion of the President, who forms his opinion based on the advice that is tendered to him by the ministers. As per the provisions of the Constitution of India, the aid and advice given by the ministers cannot be inquired into, by any court of law. This is where the doctrine of separation of powers comes into play, and hence, judicial review of a President’s action shall not take place.

Judgement in B.P. Singhal vs. Union of India (2010)

Rationale behind the judgement

Maintainability of the petition

The Court relied on the case of Ranji Thomas vs. Union of India (1990), in which a public interest litigation was filed for intervening to restrict the President of India from extracting resignation of various Governors. The court in this case had held that the Governors who were asked to resign, had not contended against it. Hence, the petitioner cannot challenge or protest the decision of the President because the party that had been affected, had no intention to challenge the same in the first instance. The court minutely observed and heard arguments from both sides and decided the case. However, it must be noted that though the aggrieved Governors had not approached the court to challenge their removal, the petition was still maintainable on the grounds that it gave rise to a public injury or harmed the public interest. The court couldn’t deny the fact that the public’s interest was at stake and merely because the aggrieved hadn’t challenged their removal, the petition couldn’t be sidelined. 

Scope of doctrine of pleasure

The Court relied upon varied cases that interpreted the need, scope and significance of the doctrine of pleasure to decide on the scope of this doctrine that would be applicable in the current times. 

The Court referred to the State of Bihar vs. Abdul Majid (1954) case, which upheld the doctrine of pleasure. The case dates back to 1954 and dealt with the English principle that civil servants are bound to a term as per the pleasure of the Crown and that they cannot enforce any special contract that states the opposite. However, the Supreme Court in the current matter also looked into whether a civil servant could file a case against the State or the Crown, for recovery of arrears of his rightful salary, as he held office at the pleasure of the Crown/State. The Court was against this principle and stated that it would not be applicable to India.

The Court interpreted the doctrine of pleasure by distinguishing between how the pleasure of the President is used among three sets of public posts and how the doctrine is applied with or without restrictions. Further, looking at the constitutional debates, it can be seen that varying levels of protection against the removal of servants were adopted.

• At the pleasure of the President (absolute power without restrictions)- applies to ministers, Governors, Attorney General and Advocate General.
• At the pleasure of the President (with certain restrictions)- applies to members of the defence and civil services, holders of posts connected to the civil or defence of the Union.
• No doctrine of pleasure applies to the President, Judges of the Supreme Court, or of High Courts.

Position of the Governor

The position of a Governor was described specifically in the case of State of Rajasthan vs. Union of India (1977). The Governor is considered to be the constitutional head of the State and is also a channel of communication between the Union and the State. Additionally, the Governor is bound by the advice given to him by the Council of Ministers. However, the Governor is also given certain discretionary powers, which allow him to act independently. One of the independent functions he performs is making reports to the Union Government. He is also required to supervise the working of each organ of the government in the State.

The status of a Governor was also discussed in the case of Hargovind Pant vs. Dr. Raghukul Tilak (1979). It was held that the Governor is not an employee or a servant of the Government, even though he is appointed by the President. It is not necessary that every person employed by the President is an employee of the Government. For the above mentioned reasons, the Governor is also not accountable for the way in which he carries out his functions. The office of the Governor is not subordinate to that of the Government of India. The Governor, being the head of the State, has the authority to approve state legislations and also holds powers related to the executive. 

Express or implied limitations/restrictions on the power given under Article 156(1) of the Constitution of India

The Court relied on the petitioner’s contention regarding the removal of a Governor, which was based on the Report of the National Commission to Review the Working of the Constitution and the Report of the Sarkaria Commission on Center-State Relations. The Court observed that the security of tenure of a Governor and a Supreme Court Judge is different, due to a difference in the scope of position and work. The Commission recommended that the Governor cannot be removed without a cause shown. The Commission also stated that the grounds for removal should be communicated to the Governor before he is terminated from his post. The Court relied on the above stated Commission findings to decide on this matter. 

Application of judicial review to the removal of Governors in exercise of doctrine of pleasure 

The Court referred to the case of R. Bancoult  vs. Foreign Secretary (2008). This case was related to an appeal against the judgement, which held Section 9 of the British Indian Ocean Territory to be invalid. The judgement was delivered by a Divisional Court and was further upheld by the Court of Appeal. In the appeal, the court held that on principles of rationality and legality, judicial review of the exercise of prerogative power can take place.

Further, the Court turned towards Epuru Sudhakar vs. Government of Andhra Pradesh (2006). In brief, a person was accused of murdering a political opponent and hence, was awarded the death sentence. The Governor had granted him pardon, but the Supreme Court quashed this pardon and stated that any pardoning power of a Governor can be quashed if such decision has been made on the basis of caste or religion. The Court, while deciding on the current case, was of the opinion that the subject matter is the main factor which determines whether prerogative power is subject to judicial review or not. The basic factor of evaluation of every decision is rule of law and every prerogative power should be subject to it. Prerogative power should only be exercised in a manner which is fair and certain. 

The Court also cited the cases of State of Rajasthan vs. Union of India (1977) and Kihota Hollohon vs. Zachilhu (1992). Questions were raised regarding the validity of the Tenth Schedule of the Indian Constitution. The court ultimately held that anti-defection laws do not violate any free speech rights. It was observed that regardless of any finality clause, the courts have the power to determine whether the actions of the authority are ultra vires the powers that have been vested in them. Any action which is malafide or is in contravention of any mandatory provision can be considered to be ultra vires.

Issue-wise judgement

Maintainability of the petition

The petitioner had no locus standi for relief being sought from the court. However, he had sufficient locus standi for maintaining his writ petition with regards to the scope of Article 156(1) and the doctrine of pleasure. 

Scope of doctrine of pleasure

In the current scenario, the use of this doctrine is different from the use of the doctrine of pleasure in earlier times, and there ought to be a distinction drawn between the two. The doctrine is used in democratic situations in a country like India, where the rule of law prevails over everything and the government has no right to act as it pleases or in an arbitrary manner. 

This doctrine is not a licence given to the government to act according to its whims and fancies. The doctrine shall be exercised in the interest of the public only, since this is a discretionary power. The Court was of the opinion that in India, the power to use the doctrine is not absolute and unfettered, but rather moderately restricted by the provisions present in the Constitution itself. Article 310(2), Article 311(1) and Article 311(2) contain the restrictions imposed on this power, so as to avoid any arbitrariness.

Direction given by the Court regarding the provision containing the term “at the pleasure” has no express limitations on the same and shall be read in accordance with the fundamentals of constitutionalism. There shall exist a valid reason to exercise the power, like in the public interest and not as per the mere wish of the Government. Along with this, the Court established that the degree of need for giving a reason for removal may vary depending on the circumstances of the case, but the need for giving a reason always exists.

Position of the Governor 

Since the initial stages of the establishment of the Constitution, the State and Centre had the same political parties in power. However, this has changed with time. The emerging concept of coalition politics has changed this view, wherein the regional parties share power along with the Union. The Court hence opined that the role of the Governor is that of a dual nature. The Governor, firstly, is the constitutional head of the State when he acts in accordance with the advice tendered by the Council of Ministers. Secondly, he also functions as a link between the Centre and the State. In some situations wherein the circumstances are such that the Governor is expected to discharge a function that he does not always discharge, he may step into the shoes of a special representative of the Union Government. However, this neither makes him the servant of the Union, nor the agent who discharges functions on behalf of the party holding majority.

Express or implied limitations/restrictions on the power given under Article 156(1) of the Constitution

There is no instance that shows that clause (1) of Article 156 is treated with any express limitation or restriction, and it is not accepted that clause (1) is subject to any express restriction imposed by clause (3). Removal of offices of ministers or the Attorney General of India, without any restriction, is permitted, as the intention of their office is to serve society, and when they assume office, they are made aware that their post is subject to the pleasure of the President. This is possible because the relationship between a President and the minister is purely political and different from the relationship between the President and the Governor. Reasons like loss of confidence in the Governor or his ideologies not being in support of those of the Union, cannot be used as reasons for his removal from the post of Governor, that is, because the Governor is an independent individual and not a servant of the Union. Ministers who have a different approach or idea than that of the Union might be harmful, as the primary purpose of their appointment is to serve the Union and be in sync with their ideologies. 

Application of judicial review to the removal of Governors in exercise of doctrine of pleasure 

There is a vast difference between the need for a cause and the need for disclosure of that cause. Courts have a limited power of judicial review in such cases. The Court elaborately identified situations wherein they can interfere in the removal of Governors, and when they cannot. In instances where the President has provided reasons for the removal of the Governor, the court can interfere if the reason that the President has provided is irrational or irrelevant. In cases where there is no reason provided by the President for the removal of the Governor from his post before his term ends, the court has a limited power of judicial review. The power can be exercised when the decision of removal is deemed to be either arbitrary, discriminatory or malafide. The extent of the power to excuse judicial review depends on the matter. Grounds like loss of confidence in the Governor cannot  be held as valid grounds and hence, would require judicial review.

Analysis of B.P. Singhal vs. Union of India (2010)

The case of B.P. Singhal vs. Union of India (2010) highlights that the President, without giving any reason or justification, can remove the Governor from his post. On the other hand, this case also lays down that the removal of the Governor should not be unreasonable. This creates a loophole, as the President can state any reason for the removal of any such Governor and whether his actions were reasonable or not depends on the facts of each case. This loophole also creates a situation wherein the President might get away with the decision that was made for such removal, even when it was not justified. 

This case has failed to provide clarity with respect to the burden of proof. Ideally, the President should prove that his decision was justified and not biased towards a political party. Instead, the Governor has been asked to prove that the removal was malafide. The right to be heard, which is an important aspect of natural justice, is also violated in case the President removes the Governor without any justification. Further, when the President removes the Governor, it also narrows down the court’s power of judicial review, as the President is not bound to give any reasons for the removal. It is also pertinent to note that such an act forces the Governor to please the President while performing his duties.

The laws in India are heavily influenced by the laws already existing in England. However, more clarity regarding when and how to use the doctrine of pleasure, is required. The major difference here is that India runs on a democratic system, whereas England doesn’t. Democracy on its own creates a responsibility to act for public good and interest and hence, the constant use of the doctrine of pleasure might not really be well suited for India.

Further implications of the case 

Rajendra Prasad Baudh vs. State Of U.P. Thru Secy. Housing And (2016)

The Court in the case of Rajendra Prasad Baudh vs. State of UP Thru Secy. Housing and Urban Planning (2016), also applied the principles that were laid down in the case of B.P. Singhal vs. Union of India (2010), which held that while exercising its power of nomination, the Government also has the power to exercise its discretion, but such discretion is not unfettered. The Court held that they would not interfere just because a different view of the action taken is possible. Any interference would only be done by the Government when the action taken is malafide or arbitrary in nature and absolutely requires interference.

Sunny K. George vs. State Of Kerala (2016)

In the case of Sunny K. George vs. State of Kerala (2016), the court referred to the case of B.P. Singhal vs. Union of India (2010), which has already discussed what amounts to the pleasure of the government and what does not. The petitioner also referred to this judgement, where it was laid down that the doctrine of pleasure as it existed a few years ago, and the doctrine that exists along with the concept of the rule of law, are very different. It was also held that this doctrine does not allow any authority to act arbitrarily. However, the court was of the opinion that a nomination of a member of a syndicate and the appointment of a Governor, as discussed in the B.P. Singhal case, are not the same.

Union Of India And Ors vs. Major S.P. Sharma And Ors (2014)

B.P. Singhal vs. Union of India (2010) was referred again in the case of Union of India And Ors. vs. Major S.P. Sharma and Ors. (2014), wherein the court discussed that in a place where rule of law exists, there does not exist a concept of unaccountable actions. This case discussed and held that the doctrine of pleasure does not give a person the power to remove a person from his post without any valid reasons. It also upheld that judicial review cannot be removed completely, but the degree of scrutiny may vary in different cases.

Conclusion

This landmark case of B.P Singhal vs. Union of India (2010), sums up how the power given to the President is discretionary and shall be used sparingly in rare and special circumstances, wherein the continuation of the office might lead to harm to the public interest. The Court clearly highlighted that the Governor is the Constitutional head of the State and should not work for the benefit of a political party. The case also gives clarity on the fact that the President has the power to remove the Governor at any point in time, but such removal should not be unlawful or unreasonable. Such removal can only take place in exceptional circumstances. Further, because the post of the Governor is a non-political one, he cannot be removed merely because the cabinet does not have faith in the Governor or if there is a change of Central Government. This case also points out that the burden of proof to show that his removal was arbitrary and malafide, is on the Governor.  This case clarified varied doubts regarding the exercise of power granted to the President, as well as the use of the doctrine of pleasure.

Frequently Asked Questions (FAQs)

What is a public interest litigation (PIL)?

It is a case filed for the protection of the interests of the public at large, wherein a significant number of people’s interests are at stake. Such interests can be pecuniary or constitutional. PILs are extensions of writ jurisdictions and hence, can be filed before either the Supreme Court or any High Court.

What is the writ of Mandamus?

Mandamus means “we command.”. This writ is issued as a command by a superior court to an inferior court or an individual holding a public office to perform its official duties or to correct any act that was an abuse of the discretionary power given to them.

What is the writ of certiorari?

Certiorari means “to be made more certain.” The writ of certiorari is used by a higher or superior court to review the cases tried in the lower courts. The higher court investigates such matters and further passes its opinion on them. It can quash any order passed by a lower court or also transfer it to any other judicial authority for consideration.

What is the doctrine of pleasure?

According to this doctrine, at any given point in time, the Crown has the power to terminate the services of a civil servant without any proper notice of termination. This is because it is considered that civil servants work at the pleasure of the Crown. If the Crown feels that keeping a civil servant is against public policy, then the Crown has the power to remove them.

Who is a Governor?

A Governor is the nominal head of the State who has the role of overlooking the functioning of the State and its organs. He is a vital link between the State and the Centre, as he reports directly to the Central Government, raises any concerns that the State has with the centre, and is the face of that State.

What are the roles and functions of the Governor?

The role of the Governor is to act as a friend, philosopher and guide to the State government and to use discretionary powers bestowed on him, in rare cases only. The Governor takes decisions for the State and acts in representative capacity for the State.

Does the Governor have the power of exercising his pleasure?

The Governor of a State is granted powers under Article 310 of the Constitution, wherein he can remove a person holding the post of  civil service under the State or any civil post in the State, if he deems that person to be unfit for the post. This is when he may exercise his pleasure in determining who is capable of holding the post and who is not. Exercising his power in this manner, is the right way to exercise the power granted to him and the correct use of the doctrine of pleasure. He may not be compelled to give reasons for the removal of that person, as it is his discretion to keep a person in that post or not.

References

• https://www.lawcolumn.in/doctrine-of-pleasure-under-indian-constitution/
• https://www.insightsonindia.com/2019/09/17/insights-into-editorial-all-the-Presidents-men/ 

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