B P SINGHAL Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS writ petition under Article 32 of the Constitution of India, raising a question of public importance involving the interpretation of Article 156 of the Constitution, has been referred to the Constitution Bench, by a two Judge Bench of this Court on 24.1.2005.

(2.) THE writ petition is filed as a public interest litigation in the wake of the removal of the Governors of the States of Uttar Pradesh, Gujarat, Haryana and Goa on 2.7.2004 by the President of India on the advice of the Union Council of Ministers. THE petitioner sought : (a) a direction to the Union of India to produce the entire files, documents and facts which formed the basis of the order dated 2.7.2004 of the President of India; (b) a writ of certiorari, quashing the removal of the four Governors; and (c) a writ of mandamus to respondents to allow the said four Governors to complete their remaining term of five years. THE relevant constitutional provisions

(3.) DURING the hearing, the petitioner slightly shifted his stand. Mr. Soli J. Sorabjee, learned senior counsel appearing on behalf of the petitioner, submitted that to ensure the independence and effective functioning of Governors, certain safeguards will have to be read as limitations upon the power of removal of Governors under Article 156(1) having regard to the basic structure of the Constitution. He clarified that the petitioner's submission is not that a Governor has a fixed irremovable tenure of five years, but that there should be some certainty of tenure so that he can discharge the duties and functions of his constitutional office effectively and independently. Certainty of tenure will be achieved by fixing the norms for removal. On the other hand, recognizing an unfettered discretion will subject a Governor to a constant threat of removal and make him subservient to the Union Government, apart from demoralizing him. Therefore, the removal should conform to the following constitutional norms : Norm 1 - Removal of Governor to be in rare and exceptional circumstances, for compelling reasons which make him unfit to continue in office: The tenure of a Governor is five years under clause (3) of Article 156. But clause (3) is subject to clause (1) of Article 156 which provides that a Governor holds office during the pleasure of the President. This only means that he could be removed any time during the said period of five years, for compelling reasons which are germane to, and having a nexus with, the nature of his office and functions performed by him, as for example, (a) physical or mental disability; (b) corruption; (c) violation of Constitution; and (d) misbehaviour or behaviour unbecoming of a Governor rendering him unfit to hold the office (that is indulging in active politics or regularly addressing political rallies, or having links with anti-national or subversive elements, etc.). The removal of a Governor under Article 156 cannot be with reference to the ideology or personal preferences of the Governor. Nor can such removal be with any ulterior motives, as for example, to make place for another person who is perceived to be more amenable to the central government's wishes and directions, or to make room for a politician who could not be accommodated or continued in the Council of Ministers. Norm 2 - A Governor should be apprised of the reasons for removal : Though there is no need for a formal show cause notice or an enquiry, principles of fair play requires that when a high constitutional functionary like the Governor is sought to be removed, he should be apprised of the reasons therefor. Norm 3 - The order of removal is subject to judicial review: In a democracy based on Rule of Law, no authority has any unfettered and unreviewable discretion. All powers vested in all public authorities, are intended to be used only for public good. Therefore, any order of premature removal of a Governor will be open to judicial review. Submissions of respondents