center state relation

Governor row: NDA following UPA example

New Delhi: TIMES NEWS NETWORK





The NDA government has started nudging seven Congress-appointed governors to quit in what can escalate political tensions.Sources in the government said Union home secretary Anil Goswami called up the governors and suggested that they put in their papers. They are M K Narayanan in West Bengal, Sheila Dikshit in Kerala, Margaret Alva in Rajasthan, Kamla Beniwal in Gujarat, B L Joshi in UP, K Sankaranarayanan in Maharashtra and Devendra Konwar in Tripura.
The development can lead to a protracted political battle and is sure to end up in court. At least one of the gov
ernors is learnt to have turned down the Centre’s suggestion saying the government should convey it to her in writing if it wants her to quit before her term runs out. By nudging half-a-dozen Congress-appointed governors to quit, the NDA government is following the example set by the UPA government which, after coming to power in 2004, got rid of BJP appointees in Raj Bhavans, including Vishnukant Shastri (UP), Kailashpati Mishra (Gujarat), Babu Parmananad (Haryana) and Kedarnath Sahni (Goa).The decision led to a major showdown between NDA and UPA. So much so that BJP MP B P Singhal went to Supreme Court the same year, challenging the removal. The court, in its May 2010 order, held 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 now al lows the BJP government to build a file containing the reasons for a governor's removal prior to the council of ministers making such a recommendation to the President. Though the President can return the file, he must sign the recommendation in the event of Cabinet reiterating its decision. The government seems determined to go the whole hog and does not see the requirement laid down by the SC as an impediment. Sources said the Cabinet may make recommendations seeking the removal of governors.
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Centre in a hurry, but Governors won’t quit

U.P. Governor Joshi resigns;NDA-Congress confrontation likely

With several Congress appointees in no hurry to step down as Governors, the NDA government’s attempts to have its own nominees in Raj Bhavans could lead to a full blown confrontation with the principal Opposition party. Uttar Pradesh Governor B.L. Joshi on Tuesday resigned taking the hint from the Union government, but Governors of Kerala (Sheila Dikshit), Assam (J.B. Patnaik) and Karnataka (H.R. Bhardwaj) made it clear that they would not quit.

Removal of Governor with change of guard at Centre is against court ruling

Removal of a Governor cannot be done in an arbitrary or unreasonable manner. A Governor of a State cannot be removed on the ground that he/she is out of sync with the policies and ideologies of the party in power at the Centre.

Removing the Governor after change of government will be against the spirit of the Supreme Court’s ruling in 2010 that a change in government at the Centre was not a ground for removal of Governors to make way for those favoured by the new government. Such a removal could be done only for special and compelling reasons.

In 2010, a constitutional bench of the Supreme Court interpreted these provisions and laid down some binding principles (B.P. Singhal v. Union of India). In this case, the newly elected central government had removed the Governors of Uttar Pradesh, Gujarat, Haryana and Goa in July, 2004 after the 14^th Lok Sabha election. When these removals were challenged, the Supreme Court held:

1. The President, in effect the central government, has the power to remove a Governor at any time without giving him or her any reason, and without granting an opportunity to be heard.
2. However, this power cannot be exercised in an arbitrary, capricious or unreasonable manner.  The power of removing Governors should only be exercised in rare and exceptional circumstances for valid and compelling reasons.
3. The mere reason that a Governor is at variance with the policies and ideologies of the central government, or that the central government has lost confidence in him or her, is not sufficient to remove a Governor.  Thus, a change in central government cannot be a ground for removal of Governors, or to appoint more favourable persons to this post.
4. A decision to remove a Governor can be challenged in a court of law.  In such cases, first the petitioner will have to make a prima facie case of arbitrariness or bad faith on part of the central government.  If a prima facie case is established, the court can require the central government to produce the materials on the basis of which the decision was made in order to verify the presence of compelling reasons.

In summary, this means that the central government enjoys the power to remove Governors of the different states, as long as it does not act arbitrarily, without reason, or in bad faith.

BUT what did UPA said for its action in 2009 ?.:

party comes in power  with asocial and economic agenda and if it is found that governor is not in sync or antithetical to its policies then it could remove .

thus govt can remove governor without any attribution or fault if it doesnt have confidence in him.

(guess wat SC said NO)

Other's opinion :

senior advocate and former Additional Solicitor-General K.V. Viswanathan :

 the high office of the Governor would be brought into disrepute if it was subjected to the “spoils system” under which the party in power after winning the election rewards its loyalists. 

the “pleasure” mentioned in Article 156 was not whim and caprice of the party in power and political considerations should be kept out.

senior advocate M.N. Krishnamani 

For proper governance, a Governor can be removed from office.

The doctrine of ‘pleasure’ and some Governors’ tenures

English law origins

The doctrine of pleasure has its origins in English law. In England, the moral rule is that a civil servant of the Crown holds office during the pleasure of the Crown. This means his or her services can be terminated at any time by the Crown, without assigning reasons. Even if there is a contract of employment involving the Crown, the Crown is not bound by it. In other words, if a civil servant is dismissed from service, he cannot claim arrears of salary or damages for premature termination. The doctrine of pleasure is based on public policy.

In India, under Article 310 even civil servants hold office at the pleasure of the President or the Governor, which is absolute.

Exceptions

There are some notable exceptions in Article 310, which has adopted the English Common Law rule that public servants hold office during the pleasure of the President or the Governor. 

Article 311 imposes two qualifications on the exercise of such pleasure.

Though the two qualifications are set out in a separate Article, they clearly restrict the operation of the rule embodied in Article 310(1). In other words, the provisions of Article 311 operate as a proviso to Article 310(1). All existing laws have been continued by Article 372, some of which, for example the Code of Civil Procedure, makes it possible for a public servant to try and enforce his claims against the state.

Accordingly, the Supreme Court held in State of Bihar v. Abdul Majid , (1) AIR 1954 SC 245, that the English Common Law has not been adopted in its entirety and with all its rigorous implications.

In Union of India v. Tulsiram Patel , (2) AIR 1965 SC 1416 (1437, 1438), the Supreme Court held that the “pleasure doctrine” was neither a relic of the feudal age nor was it based on any special prerogative of the British Crown, but based on public policy.

Different roles

Ministers frame policies and the Legislature enacts laws and lays down the mode in which such policies are to be carried out and the object the legislation seeks to achieve.

From the nature of things, the task of efficiently and effectively implementing these policies and enactments, however, rests with the civil service. The public are therefore vitally interested in the efficiency and integrity of the service.

In the case of the Governor, the position is different. In 1989, when those who had been appointed Governors by the Congress government were dismissed by the National Front government led by V.P. Singh, it was said the Congress government had improperly made political appointments and that it was necessary to remove corruption from public life.

It was also said that the change of Governors had to be done in order to give the government an opportunity to tone up the administration.

Sarkaria Commission

The norms laid down by the Sarkaria Commission were not followed. The office of the Governor, who is a representative of the President in a State as the protector of the Constitution, should normally go to persons with high status in society.

In this background came the Supreme Court judgment that laid down that Governors could not be changed on the ground that there is a change of government. Nobody could question it.

However, there is one practical aspect: if the Governors were appointed solely for the reason that they were erstwhile partymen, should the new government bear with such a situation, because there is always a clash of policy and the line of thinking. Even if the difference of opinion is subtle, should the Centre tolerate it? The answer will be in the negative.

The Venkatachaliah Commission (2002) similarly recommended that ordinarily Governors should be allowed to complete their five year term.  If they have to be removed before completion of their term, the central government should do so only after consultation with the Chief Minister.

The Punchhi Commission (2010) suggested that the phrase “during the pleasure of the President” should be deleted from the Constitution, because a Governor should not be removed at the will of the central government; instead he or she should be removed only by a resolution of the state legislature.

Why wait?

There is another way of looking at this. Cannot Governors on their own come forward to tender their resignation, rather than the Central government having to withdraw its pleasure?

Or if the government were to say, in the words of William Makepeace Thackeray: “Business is first; pleasure afterwards,” why should the Governors stay on? Will not the public feel that ethics are eroded when a Governor seems anxious to cling on?

The resultant position is: “An unalterable and unquestioned law of the musical world required that the German text of French operas sung by Swedish artists should be translated into Italian for the clearer understanding of English-speaking audiences.” (Edith Wharton, The Age of Innocence , Book l, Chapter 1, 1920)

Will the lawmakers devote some serious attention to this in order to alter the unpleasant situation?

Language policy unchanged: PMO

VARGHESE K. GEORGE &

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After the Union Home Ministry’s May 27 instruction to government departments to use Hindi compulsorily in their social media communications spiralled into a political controversy, the Prime Minister’s Office (PMO) clarified on Friday that the directive applied only to Hindi-speaking States and did not amount to a change in policy.

“This is neither a new policy nor an attempt to impose the use of Hindi on any non-Hindi-speaking State,” a PMO release said.

The PMO clarification came in the wake of loud protests from Tamil Nadu, capped by a letter from Chief Minister Jayalalithaa who urged Prime Minister Narendra Modi to ensure “that English is used on social media.”

The release said the instruction was only a follow-up to the Ministry’s circular on March 10 — when the United Progressive Alliance was in power — to the same effect. “It was a routine circular and the government has no intention to impose Hindi on any State,” said Union Minister of State for Home Kiren Rijiju.

DMK chief M. Karunanidhi had earlier said the Centre was trying to impose Hindi against the wishes of the people. Congress leader P. Chidambaram had said, “There will be a backlash in non-Hindi states, in particular in Tamil Nadu ... The government is advised to proceed with caution.”

Governors: creatures of presidential pleasure

It seems wrong to sack governors; political realities dictate something else

Illustration: Jayachandran/Mint

Every time a new government comes to power in New Delhi, a game of musical chairs begins with the governors of Indian states. For many of the governors appointed by the Manmohan Singh government, the music is about to stop. The governors of Uttar Pradesh and Chhattisgarh resigned. A number of others—Kerala, Maharashtra and West Bengal among others—are in danger of losing their jobs.

This has led to outrage that the Narendra Modi government is behaving unconstitutionally. A judgment of the apex court (B.P. Singhal vs the Union of India, 2010) has been pressed into service to “codify” the process of removal of governors. It has been argued that a governor is not a chaprassi who can be sacked at the whims of a capricious Union government.

These contentions sound wonderful on paper but in the real world they will lead to dangerous consequences. They are based on a misunderstanding, or more accurately, a modern and fashionable re-interpretation of the governor’s job.

Constitutionally, the governor of a state is a curious hybrid. On the one hand, he is the executive head of the state (Article 154 of the Constitution), which means that he heads a state—which in its own sphere, is sovereign. On the other hand, he is appointed by the President (Article 155 of the Constitution) and not elected (as the President is). Thus, he is subordinate to the President. The authority to remove him lies with the President at whose “pleasure” he remains in office (Article 156(1) of the Constitution). The President’s “pleasure”, while exercised by him, is always based on the advice of his council of ministers. In effect, by a chain of actions, the governor’s appointment and removal are based on what the Union council of ministers, led by the prime minister, wants.

Politically, of course, the situation is far more clear and unambiguous. In a country as diverse as India and one that is very hard to govern, the governor is the eyes and ears of the Union government. Among all constitutional offices, his is the most political one: The governor not only signs Acts of state legislatures into laws but he also has far greater powers of control over state governments as compared with the President: he alone starts the process of dismissing a state government in case of breakdown of constitutional machinery (Article 356 of the Constitution).

These features of the governor’s position and role are not arbitrary. The framers of the Constitution thought about them carefully and the constitutional provisions reflect this accurately. If the “arbitrary” removal of governors is ended, these features, too, will be changed. Placing the governor on the same footing as other constitutional functionaries (for example, the Comptroller and Auditor General, judges of the supreme court and high courts, the chief election commissioner) ignores the fact that a governor’s office is political while these other high functionaries are apolitical authorities. To say that a governor should be removed only on the grounds of misbehaviour, mental or physical disability, corruption etc., ignores the political reasons that may make his removal necessary. And political reasons, by their nature, cannot and should not be sought to be defined.

The other, even more dangerous, consequence of trying to define and limit “presidential pleasure” is to tinker with executive authority. Executive authority is meant to handle all kinds of situations while governing a country—from external threats, to economic progress to internal disturbances among many that can be imagined. To define and limit it will be a dangerous reduction in the powers of the Union government.

In the instant case, it does seem distasteful that the Modi government is trying to get rid of the governors appointed by the previous government. This cycle of capriciousness has to end somewhere and at some time. This is as good a time as any. If the government does go ahead with getting rid of governors, it should be transparent about it and clearly state the reasons for their dismissal.

To end the problem, the solution lies in a cross-party consensus in the appointment of governors. True, stability in the tenure of governors is not a bad idea. But for the security of tenure of governors the appointment process, too, should be broad-based. Unlike jostling in the legislative arena, appointment of governors can certainly be less partisan. Political parties can agree, for example, not to appoint persons to this vital position if they are suspected of wrongdoing in earlier jobs (as chief ministers, to give a current example). As in many other high-level appointments where a committee comprising the prime minister, the leader of opposition and others takes the appointing decision, something similar should be done in the case of governors.