A phased removal of governors is on the cards as the BJP-led NDA government sees an opportunity to do what the UPA government did in 2004 — sacking four BJP-leaning politicians as governors of Uttar Pradesh, Haryana, Gujarat and Goa — notwithstanding a Supreme Court judgment.
The BJP leadership, after consulting constitutional experts, felt that phased withdrawal of President’s pleasure (read removal of governors) under Article 156(1) of the Constitution would not fall foul of the five-judge constitution bench judgment which had ruled that a regime change at the Centre would not justify removal of governors.
Senior BJP leaders Murli Manohar Joshi, Yashwant Sinha and V K Malhotra have been speculated among names who could fill the vacancies in Raj Bhavans that may arise should the NDA government decide to get rid of UPA appointees.
Article 156(1) provides that “the governor shall hold office during the pleasure of the President” and that he would hold office for five years if he continued to enjoy the confidence of the President.
The UPA government’s decision in 2004 to remove Vishnu Kant Shastri (UP), Babu Parmanand (Haryana), Kailashpati Mishra (Gujarat) and Kidarnath Sahni (Goa) was challenged in the Supreme Court by BJP MP B P Singhal the same year. The court in its May 2010 order had said that governors were not employees of the Union government to warrant removal on the ground of loss of ‘confidence’ in them.
However, the judgment had provided an important exception which would allow the BJP government to build a file containing the reasons for a governor’s removal prior to the council of ministers headed by the prime minister making such a recommendation to the President.
The Constitution bench said, “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 malafide.
“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.”
The apex court had said if a governor’s removal was challenged, it would always presume there was a compelling reason for such action. It had said the onus was on the aggrieved person to show that the removal was arbitrary. Only after he established arbitrariness of removal that a court would seek records from the government, it had said.
Leaving out newly-created Telangana, there are nine states in which the UPA government had appointed governors either this year or last year — Sheila Dikshit (Kerala), D Y Patil (Bihar), S C Jamir (Odisha), Nirbhay Kumar (Arunachal Pradesh), V K Duggal (Manipur), K K Paul (Meghalaya), S D Patil (Sikkim), Devanandh Konwar (Tripura) and Ashwini Kumar (Nagaland).
There are six states where governors have served between 2 to 3 years — B V Wanchoo (Goa), Syed Ahmed (Jharkhand), Ram Naresh Yadav (Madhya Pradesh), V Purushothaman (Mizoram), Margaret Alva (Rajasthan) and Aziz Qureshi (Uttarakhand).
And those who are at the fag end of their five-year tenure are E S L Narasimhan (Andhra Pradesh), J B Patnaik (Assam), Shekhar Dutt (Chhattisgarh), Kamala Beniwal (Gujarat), Urmila Singh (Himachal Pradesh), Jagannath Pahadia (Haryana), M K Narayanan (West Bengal), B L Joshi (UP), Shivraj Patil (Punjab), K Shankaranarayanan (Maharashtra), H R Bharadwaj (Karnataka) and N N Vohra (J&K) who has in fact exceeded his five-year tenure.