The Constitution of India is the fountainhead from which all our laws derive their authority and force. This is next Article in the series on constitutional provisions in order to aid our readers in understanding them.
156. Term of office of Governor.—
(1) The Governor shall hold office during the pleasure of the President.
(2) The Governor may, by writing under his hand addressed to the President, resign his office.
(3) Subject to the foregoing provisions of this article, a Governor shall hold office for a term of five years from the date on which he enters upon his office:
Provided that a Governor shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office.
Pleasure of the President: The Pleasure Doctrine has its origin in English law, with reference to the tenure of public servants under the Crown. There is a distinction between the doctrine of pleasure as it existed in a feudal set-up and the doctrine of pleasure in a democracy governed by Rule of Law. In a nineteenth century feudal set-up unfettered power and discretion of the Crown was not an alien concept. However, in a democracy governed by Rule of Law, where arbitrariness in any form is eschewed, no Government or Authority has the right to do what it pleases. The doctrine of pleasure does not mean a licence to act arbitrarily, capriciously or whimsically. It is presumed that discretionary powers conferred in absolute and unfettered terms on any public authority will necessarily and obviously be exercised reasonably and for public good. It is of some relevance to note that the ‘Doctrine of Pleasure’ in its absolute unrestricted application does not exist in India. The said doctrine is severely curtailed in the case of government employment, as will be evident from clause (2) of article 310 and clauses (1) and (2) of article 311. Even in regard to cases falling within the proviso to clause (2) of article 311, the application of the doctrine is not unrestricted, but moderately restricted in the sense that the circumstances mentioned therein should exist for its operation.3
Constitution of India provides for three different types of tenure: (i) Those who hold office during the pleasure of the President (or Governor); (ii) Those who hold office during the pleasure of the President (or Governor), subject to restrictions; (iii) Those who hold office for specified terms with immunity against removal, except by impeachment, who are not subject to the doctrine of pleasure. Constituent Assembly debates clearly show that after elaborate discussions, varying levels of protection against removal were adopted in relation to different kinds of offices. We may conveniently enumerate them: (i) Offices to which the doctrine of pleasure applied absolutely without any restrictions (Ministers, Governors, Attorney-General and Advocate-General); (ii) Offices to which doctrine of pleasure applied with restrictions (Members of defence service, Members of civil service of the Union, Members of an All-India service, holders of posts connected with defence or any civil post under the Union, Members of a civil service of a State and holders of civil posts under the State); and (iii) Offices to which the doctrine of pleasure does not apply at all (President, Judges of Supreme Court, Comptroller & Auditor General of India, Judges of the High Court, and Election Commissioners). Having regard to the constitutional scheme, it is not possible to mix up or extend the type of protection against removal granted to one category of offices to another category.1
The doctrine of pleasure as originally envisaged in England was a prerogative power which was unfettered. It meant that the holder of an office under pleasure could be removed at any time, without notice, without assigning cause, and without there being a need for any cause. But where rule of law prevails, there is nothing like unfettered discretion or unaccountable action. The degree of need for reason may vary. The degree of scrutiny during judicial review may vary. But the need for reason exists. As a result when the Constitution of India provides that some offices will be held during the pleasure of the President, without any express limitations or restrictions, it should however necessarily be read as being subject to the “fundamentals of constitutionalism”. Therefore in a constitutional set up, when an office is held during the pleasure of any Authority, and if no limitations or restrictions are placed on the “at pleasure” doctrine, it means that the holder of the office can be removed by the authority at whose pleasure he holds office, at any time, without notice and without assigning any cause. The doctrine of pleasure, however, is not a licence to act with unfettered discretion, to act arbitrarily, whimsically, or capriciously. It does not dispense with the need for a cause for withdrawal of the pleasure. In other words, “at pleasure” doctrine enables the removal of a person holding office at the pleasure of an Authority, summarily, without any obligation to give any notice or hearing to the person removed, and without any obligation to assign any reasons or disclose any cause for the removal, or withdrawal of pleasure. But, the withdrawal of pleasure cannot be at the sweet will, whim and fancy of the Authority, but can only be for valid reasons.1
There is a consensus to the extent that a Governor can be removed only for a valid reason and that physical and mental incapacity, corruption and behaviour unbecoming of a Governor are valid grounds for removal. There is however disagreement as to what else can be grounds for removal. It is true that there can be other grounds also. It is not possible to put the reasons under any specific heads. The only limitation on the exercise 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. 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 between the Prime Minister and a Minister is purely political. Though the Attorney-General holds a public 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.1
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 it is not possible to accept the contention that an order under article 156 is not justiciable, it is true 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.1
Judicial review of removal: Exercising the power of judicial review in the context of sufficiency of reasons is a 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 mala fide. While the President or the Governor 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.1
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 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 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. Consequently, where the aggrieved person is not able to establish a prima facie instance of arbitrariness or mala fides, in his removal, the court will refuse to interfere. However, where a prima facie case of arbitrariness or mala fides is made out, the Court can require the Union Government to produce 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 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.1
Notwithstanding the expiration of the term: The Governor is to continue to hold office ‘notwithstanding the expiration of his term’. The effect of these words is to exclude all questions of the legality of the holding of office by a Governor after the expiry of his term. There must always be a Governor under article 153 and the interregnum is avoided by the proviso. It is, of course, to be expected that a new Governor will be nominated in time but circumstances may come into being which may take the holder beyond his five years’ term without a successor being named. It may not always be possible to appoint a Governor within the term of the incumbent. No doubt the provisions of article 160 may be resorted to but even that may not be sufficient to prevent an interregnum. Therefore, it is legitimate to hold that a person once appointed a Governor continued to hold that office till his successor enters upon his office. This successor may be appointed under article 155 or an order may be made under article 160.
Article 156 apparently lays down the term of the office of Governor. The corresponding provisions in the Constitutional Adviser’s Draft Constitution as also in the 1948 Draft Constitution of the Drafting Committee prescribed the term of office as four/five years and then by way of provisos said that a Governor (a) could resign (at any time), (b) could be removed (at any time), and (c) otherwise was to continue till a successor took over.
However, article 156 as adopted by the Constituent Assembly and as it now stands in the Constitution, almost imperceptibly and seemingly most innocuously but, in fact, most significantly, turned the position upside down. The article now does not in the main provide that the term of office is five years. Instead, it says that every Governor holds office “during the pleasure of the President” which means that a Governor would last only so long as the Union Government pleases or he/she enjoys its pleasure. “Subject to” this main provision i.e. if he/she is not removed earlier and also if he/she does not resign earlier, the term of office shall be five years. All this makes it normal and quite legitimate under the Constitution that the Governors do not always enjoy an uninterrupted five year term. The significance of the departure made becomes clearer when it is noted that in case of offices like those of President (article 56) and Vice-President (article 67), the main provision lays down the 5 year term and then gives the provisos.
Suggestions have been made for amending article 156 to lay down normally a fixed tenure of a five year term. However, the Constitution Commission (2002) after carefully considering the public responses to all such suggestions did not agree “to dilute the powers of the President” but did recommend that “normally the five-year term should be adhered to” and earlier removal should be “after consultation with the Chief Minister of the concerned State.”
Source: Dr Subhash C Kashyap, Constitutional Law (Universal)