The Hindu : Front Page : Governors' removal issue referred to Constitution Bench

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Tuesday, Jan 25, 2005

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Front Page

Governors' removal issue referred to Constitution Bench

By Our Legal Correspondent

NEW DELHI, JAN. 24. The Supreme Court today referred to a five-Judge Constitution Bench a writ petition challenging the removal of four Governors appointed during the former National Democratic Alliance regime, observing that important questions of law relating to appointment and removal of Governors required consideration by a larger Bench.

A Bench of the Chief Justice, R.C. Lahoti, and Justice G.P. Mathur, made the reference after hearing the Attorney-General, Milon Banerjee, and other counsel for the parties. Counsel for 12 AIADMK MPs said an application had been filed seeking to implead them in the case. The Bench said it was not necessary; counsel would be allowed to address the court on the issue.

In July 2004, the United Progressive Alliance Government removed Kailashpati Mishra, Kidar Nath Sahani, Babu Parmanand and Vishnu Kant Sashtri as Governors of Gujarat, Goa, Haryana and Uttar Pradesh. Admitting the petition from B.P. Singhal, a former BJP MP, challenging their removal, the court had sought a response from the Centre.

In its reply, the Centre asserted that the term of office of five years for a Governor was subject to the doctrine of pleasure of the President embodied in Article 156 (1) of the Constitution. It said: "the five-year tenure is not absolute and can be abridged at the pleasure of the President," implying that the President had unfettered powers to order the removal of Governors and these could not be questioned in a court of law.

The Centre submitted that the exercise of a power founded on the doctrine of pleasure, even though the same was on the aid and advice of the Council of Ministers, could not be questioned by the court, particularly in view of the bar of Article 361 (1) of the Constitution granting immunity to the President.

The affidavit denied the allegation that the four Governors were removed due to ideological differences. It said the allegation of the petitioner that they were removed due to differences in ideology was apparently based on some media reports and not on facts. The Centre said the Constitution did not specify any grounds for revoking the pleasure of the President resulting in the removal of the Governor and added that the Constitution also did not specify any procedure for their removal.

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