Supreme Court of India
B.P. SINGHALversusUNION OF INDIA AND ANR.
- Citation
- 2010 INSC 286
- Decided
- 7 May 2010
- Disposal
- Disposed off
- Bench
- K G BALAKRISHNAN
Holding
A Governor may be removed at the President’s pleasure only in rare, exceptional circumstances for valid and compelling reasons, and such removal is subject to limited judicial review to prevent arbitrariness, but the President is not required to assign or disclose reasons.
Summary
In 2004 the President, on the advice of the Union Council of Ministers, removed the Governors of Uttar Pradesh, Gujarat, Haryana and Goa. A public‑interest writ petition was filed challenging the removals and seeking to read limitations into Article 156(1) of the Constitution. The Court held that the petition was maintainable for the public‑interest question, explained that the doctrine of pleasure is not unfettered and must be exercised only in rare, exceptional circumstances for valid and compelling reasons, and that a Governor cannot be removed merely for being out of sync with the central government’s policies. While the President need not assign reasons, the removal must not be arbitrary, capricious or mala‑fide and is subject to limited judicial review; if a prima facie case of arbitrariness is shown, the Union must disclose the material on which the decision was based. The Court therefore dismissed the writ petition, upholding the removals, and dismissed the related transfer petition.
Issues considered
- Whether the writ petition is maintainable?
- What is the scope of the doctrine of pleasure under Article 156?
- What is the constitutional position of a Governor?
- Are there any express or implied limitations on the power to remove a Governor under Article 156(1)?
- Is the removal of Governors under the doctrine of pleasure open to judicial review?
Legislation cited
- Constitution of Indias. Article 124, s. Article 148, s. Article 154, s. Article 155, s. Article 156(1), s. Article 156(3), s. Article 159, s. Article 218, s. Article 310, s. Article 311, s. Article 324, s. Article 56, s. Article 61, s. Article 74(2), s. Article 75(2), s. Article 76(4)
Subjects
Doctrine of pleasureGovernor removalArticle 156Judicial reviewPublic interest litigationConstitutional lawExecutive discretionArbitrarinessFundamentals of constitutionalismPolitical independence
Judgment
[2.010] 6 S.C.R. 589
B.P. SINGHAL A
v.
UNION OF INDIA AND ANR.
(Writ Petition (C) No. 296 of 2004)
MAY 7, 2010
B
[K.G.BALAKRISHNAN, CJI, S.H. KAPADIA, R.V. ·
RAVEENDRAN, B. SUDERSHAN REDDY AND P.
SATHASIVAM, JJ.]
Constitution of India, 1950: c
Article 156 - Removal of Governor on withdrawal of
President's pleasure - Judicial review - Scop~ - Limitations
upon power ofremoval of Governors under Article 156(1) -
Held: The President can remove the Governor from office at
any time without assigning any reason and without giving any D
opportunity to show cause - However, power .under Article
156(1) to be exercised in rare and exceptional circumstances
for valid and compelling reasons ·- What would be compelling .
reasons would depend upon the facts and circumstances of
each case - A Governor cannot be removed on the ground E
that he is out of sync with the policies and ideologies of the
U(lion Government or the party in power at the Centre -
Change in government at Centre is not a ground for removal
of Governors holding office - As there is no need to assign
reasons,· any removal as a consequence of withdrawal of the F
pleasure will be assumed to be valid and will be open to only
a limited judicial review - If the aggrieved person is able to
d~monstrate prima facie that his removal was either arbitrary,
malafide, capricious or whimsical, the court will call upon the ·
Union Government to disclose to the court, the material upon G
,which the President had taken the decision to withdraw the .
pleasure - If the Union Government does not disclose any
reason, or if the reasons disclosed are found to be irrelevant,
arbitrary, whimsical, or malafide, the court will interfere -
589 H
590 SUPREME COURT REPORTS [2010] 6 S.C.R.
A However, the court will not interfere mersly on the ground that
a different view is possible or that the material or reasons are
insufficient.
Articles 154 and 155 - Position of Governor under the
Constitution - Discussed.
B
Article 32 - Writ petition by way of PIL, to secure relief
for Governors who had been removed from office -
Maintainability of the writ petition - Locus of the Petitioner -
Public Interest Litigation.
c Doctrines - Doctrine of "pleasure" - Origin, scope and
applicability of - Discussed - Constitution of India, 1950 -
Article 310 rlw Article 311.
The Governors of the States of Uttar Pradesh,
D Gujarat, Haryana and Goa on 2-7-2004 were removed by
the President of India on the advice of the Union Council
of Ministers.
In the wake of removal of the Governors, writ petition
E was filed before this Court, raising a question of public
importance involving the interpretation of Article 156 of
the Constitution.
The petitioner submitted that to ensure the
independence and effective functioning of Governors,
F certain safeguards have to be read as limitations upon
the power of removal of Governors under Article 156(1)
[which provides that a Governor shall hold office during
the pleasure of the President]; that there should be some
certainty of tenure so that the Governor can discharge
G the duties and functions of his constitutional office
effectively and independently; that certainty of tenure will
be achieved by fixing the norms for removal, while
recognizing an unfettered discretion will subject a
Governor to a constant threat of removal and make him
H subservient to the Union Government, apart from
B.P. SINGHAL v. UNION OF INDIA AND ANR. 591
demoralizing him, and therefore, the removal should A
conform to the constitutional norms viz. i) removal of the
Governor to be in rare and exceptional circumstances, for
compelling reasons which make him unfit to continue in
office; ii) the Governor to be apprised of the reasons for
removal; and iii) the order of removal to be subject to B
judicial review.
The Attorney General appearing on behalf of the
respondents raised a preliminary objection to the
maintainability of the writ petition. He submitted that if the
four Governors who were removed, do not wish to seek C
. any relief and have accepted their removal without
'"Protest, no member of the public can bring a public
irrterest litigation for grant of relief to them.
On merits, the Attorney General submitted that the o
remoyal should be for a reason, but such reason need
not ,Oe communicated and also that removal by applying
the doctrine of pleasure need not necessarily relate to
any act or omission or fault on the part of the Governor.
He submitted that in essence, the object of providing that
E
the Governor shall hold office during the pleasure of the
President was that if the President lost faith in .the
Governor or found him unfit for whatever reason, he can
withdraw the presidential pleasure resulting in removal;
that the pleasure doctrine cannot be denuded of its width,
by restricting its applications to specific instances of fault
F
or misbehaviour on the part of the Governor, or by
implying an obligation to assign or communicate any
reason. for the removal. The Attorney General submitted
that in a democracy, political parties are formed on
shared beliefs and they contest election with a declared G
agenda; and if a party which comes to power with a
particular social and economic agenda, finds that a
Governor is out of sync with its policies, then it should
be able to remove such a Governor. The Attorney
General submitted that the Union Government has the H
592 SUPREME COURT REPORTS [2010] 6 S.CR.
A right to remove a Governor without attributing any fault
to him, if the President loses confidence in a Governor or
finds that the Governor is out of sync with democratic and
electoral mandate.
The questions which thus arose for consideration
were i) whether the writ petition was maintainable; ii) what
is the scope of "doctrine of pleasure" ; iii) what is the
position of a Governor under the Constitution; iv) whether
there are any express or implied limitations/restrictions
upon the power under Article 156(1) of the Constitution
C and v) whether the removal of Governors in exercise of
the doctrine of pleasure is open to judicial review.
Disposing of the writ petition and the transfer petition,
the Court
D HELD: i) Maintainability of the writ petition
1. The petitioner has no locus to maintain the petition
in regard to the prayers claiming relief for the benefit of
the individual Governors. At all events, such prayers no
E longer survive on account of passage of time. However,
with regard to the general question of public importance
referred to the Constitution Bench, touching upon the
scope of Article 156 (1) and the limitations upon the
doctrine of pleasure, the petitioner has necessary locus.
F [Para 11] (617-D]
Ranji Thomas v. Union of India - 2000 (2) SCC 81, relied
on.
S.P. Gupta vs. Union of India - 1981 (Supp) SCC 87,
G referred to.
(ii) Scope of doctrine of pleasure
2.1. The Pleasure Doctrine has its origin in English
law, with reference to the tenure of public servants under
H the Crown. [Para 12) (617-F]
B.P. SINGHAL v. UNION OF INDIA AND ANR. . 593
2.2. There is a distinction between the doctrine of A
pleasure as it existed in a feudal set-up and the doctrine
of pleasure in a democracy governed by rule of law. 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 1 9
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. [Para 13] [620-D-F] C
2.3. 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 evident from clause (2) of Article 310 and
clauses (1) and (2) of Article 311. Even in regard to cases D
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. Article
310 read with Article 311 provide an example of the E
application of 'at pleasure' doctrine subject to restrictions.
Clause (1) of Article 310 relates to tenure of office of
persons serving the Union or a State, being subject to
doctrine of pleasure. However, clause (2) of Article 310
and Article 311 restricts the oper;;ition of the 'at pleasure' F
doctrine contained in Article 310(1). [Paras 15 I
and 19)
[621-G; 623-D] .
2.4. The 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 G
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,
exc:ept by impeachment, who are not ·subject to the
doctrine of pleasure. Constitutional Assembly debates H
594 SUPREME COURT REPORTS [201 O] 6. S.C.R.
A clearly show that after elaborate discussions, varying
levels of protection against removal were adopted in
relation to different kinds of offices viz. (i) Offices to which
the doctrine of pleasure applied absolutely without any
restrictions (Ministers, Governors, Attorney General and
B Advocate General); (ii) Offices to which doctrine of
pleasure applied with restrictions (Members of defence
service, Members of civil service of the Union, Member
of All-India service, holders of posts connected with
defence or any civil post under the Union, Member of a
C 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
0
possible to mix up or extend the type of protection
against removal, granted to one category of offices, to
another category. [Para 21] [625-D-H; 626-A]
2.5. The doctrine of pleasure as originally envisaged
E 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
F 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
G 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
H pleasure of any Authority, and if no limitations or
B.P. SINGHAL v. UNION OF INDIA AND ANR. 595
restrictions are placed on the "at pleasure" doctrine, it A
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, B
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 c
the person removed, and without any obligation to assign
any reasons or disclose any cause for the removal, or
withdrawal of pleasure. However, the withdrawal of
pleasure cannot be at the sweet will, whim and fancy of
the Authority, but can only be for valid reasons. [Para 22]
0
[626-B-G] /
State of Bihar v. Abdul Majid, 1954 SCR 786; P.L.
Dhingra v. Union of India - AIR 1958 SC 36 and Moti Ram
v. N.E. Frontier Railway AIR 1964 SC 600, relied on.
E
· Union of India v. Tulsiram Patel (1985) 3 SCC 398,
. referred to.
Dunn v. Queen - 1896 (1) QB 116; Shenton v.
Smith, 1895 AC 229 and Well v. Newfound land [1999 (177)
DL (4th) 73(SCC)], referred to. · F
1
'Constitutional law of India' (4th Ed., Vol. 3, pp.2989-90)
by H.M. Seervai; Black's Dictionary and Administrative Law
by HWR Wade & CF Forsyth (9th Ed.; pp.354-355),
referred to. G
(iii) Position of a Governor under the Constitution
3.1. The Governor constitutes an integral part of !he
legislature of a State. He is vested with the legil?lative
power to promulgate ordinances while the Houses of the H
596 SUPREME COURT·REPORTS (2010] 6 S.C.R.
A legislature are not in session. The executive power of the
State is vested in him and every executive action of the
Government is taken in his name. He exercises the
sovereign power to grant pardons, reprieves, respites or
remissions of punishment. He is vested with the power
B to summon each House of the Legislature or to prorogue
either House or to dissolve the legislative assembly. No
Bill passed by the Houses of the Legislature can become
law unless it is assented to by him. He has to make a
report where he finds that a situation has arisen in which
c the Government of the State cannot be carried on in
accordance with the Constitution. He thus occupies a
high constitutional office with important constitutional
functions and duties. [Para 23] (626-H; 627-A-C]
3.2. It is evident that a Governor has a dual role. The
D first is that of a constitutional Head of the State, bound
by the advice of his Council of Ministers. The second is
to function as a vital link between the Union Government
and the State Government. In certain special/emergent
situations, he may also act as a special representative of
E the Union Government. He is required to discharge the
functions related to his different roles harmoniously,
assessing the scope and ambit of each role properly. He
is not an employee of the Union Government, nor the
agent of the party in power nor required to act under the
F dictates of political parties. There may be occasions when
he may have to be an impartial or neutral Umpire where
the views of the Union Government and State
Governments are in conflict. His peculiar position arises
from the fact that the Indian Constitution is quasi-federal
G in character. [Para 25] [630-F-H; 631-A]
3.3. In the early days of Indian democracy, the same
political party was in power both at the Centre and the
States. The position has changed with passage of time.
Now different political parties, some national and some
H regional, are in power in the States. Further one single
B..P. SINGHAL v. UNION OF INDIA AND ANR. 597
party may not be in power either in the Centre or in the A
State. Different parties with distinct (deologies may
constitute a front, to form a Government. On account. of
emergence of coalition politics, many regional parties
have started sharing power in the Centre. Many a time
there may not even be a common programme, manifesto B
or agenda among the parties sharing power. As a result,
the· agenda or ideology of a political party in power in the
State may not be in sync with the agenda or ideology of
the political partie$ \in the ruling coalition at the Centre,
or may not be in sync with the agenda or ideology of C
some of the political parties in the ruling coalition at the
Centre, but may be in sync with some other political
parties forming part of the ruling coalition at the Centre.
Further the compulsions of coalition politics may require
the parties sharing power, to frequently change their
0
policies and agendas. In such a scenario of myriad
policies, ideologies, agendas in the shifting sands of
political coalitions, there is no question of the Union
Government having Governors who are in sync with its
mandate and policies. Governors are not expected or
required to implement the policies bf the government or E
popular mandates. Their constitutional role is clearly
defined and bears very limited political overtones. The
Governor is not the agent or the employee of the Union
Government. As the constitutional head of the State,
many a time he may be expressing views of the State F
Government, which may be neither his own nor that of
the Centre (for example, when he delivers the special
address under Article'176 of the Constitution). Reputed
elder sta~esmen, able administrators and eminent
personalities, with maturity and experience are expected G
to be appointed as Governors. While some of them may
come from a political background, once they are
appointed as Governors, they owe their allegiance and
loyalty to the Constitution and not to any political party
and are required to preserve, protect and defend the H
598- SUPREME COURT REPORTS {2010] 6 S.C.R.
A Constitution (reference may be made to the terms of oath
or affirmation by the Governor, under Article 159 of the
Constitution). Like the President, Governors are expected
to be apolitical, discharging purely constitutional
functions, irrespective of their earlier political
8 background. Governors cannot be politically active. This
Court therefore rejects the contention of the respondents
that Governors should be in "sync" with the policies of
the Union Government or should subscribe to the
ideology of the party in power at the Centre. As the
C Governor is neither the employee nor the agent of the
Union Government, this Court also rejects the contention
that a Governor can be removed if the Union Government
or party in power loses 'confidence' in him. [Para 26) (631-
E-H; 632-A-G]
D State of Rajasthan vs. Union of India, 1977 (3) SCC 592;
State of Karnataka v. Union of India, 1977 (4) SCC 608 and
Hargovind Pant v. Raghukul Tilak (Dr.), 1979 (3) SCC 458,
followed.
E Rameshwar Prasad (VI) vs. Union of India, 2006 (2) SCC
1, relied on.
'Constitutional Law of India' [4th Ed., Vol.II, at p.2065) by
H. M. Seervai and Constituent Assembly Debates, (Volume
Ill pages 455 and 469) - referred to.
F -
(iv) Limitations/restrictions upon the power under Article
156(1) of the Constitution
4.1. A plain reading of Article 156 shows that when a.
Governor is appointed, he· holds the office during the'.
G pleasure of the President, which means that the Governor
can be removed from office at any time without notice and
without assigning any cause. It is also open to the
Governor to resign from offic'tl at any time. If the President
does not remove him from office and if the Governor does
H not resign, the term of the Governor will come to an end .
B.P. SINGHAL v. ·UNION OF INDIA AND ANR. 599
on the expiry of five years from the date on which he A
enters office. Clause (3) of Article 156 is not intended to
be a restriction or limitation upon the power to remove
the Governor at any time, under clause (1) of Article 156.
Clause (3) of Article 156 only indicates the tenure which
is subjected to the President's pleasure. In contrast, in B
case of Articles 310 and 311 the doctrine of pleasure is
clearly and indisputably subjected to restriction. Clause
(1) of Article 310 provides that a person serving the Union
Government holds office during the pleasure of the
" and a person serving a state government holds
President C
office during the pleasure of the Governor. The 'doctrine
of pleasure' is subjected to a restriction in Article 310(2)
and the restrictions in Article 311 (1) and (2). The most
significant restriction is contained in clause (2) of Article
311 which provides that no such employee shall be
0
dismissed or removed from service except after an
inquiry in which he has been informed of the charges
levelled against him and given a reasonable opportunity
of being heard in respect of those charges. Clause (1) of
Article 310 begins with the words "Except as expressly
provided by the Constitution". Therefore, Article 310 itself E
makes it clear that though a person serves the Union or
a State during the pleasure of the President/Governor, the
power of removal at pleasure is subject to the other
express provisions of the Constitution; and Article 311
contains such express provision which places limitations F
upon the power of removal at pleasure. By contrast,
clause (1) of Article 156 is not made subject to any other
provision of the Constitution nor subjected to any
exception. Clause (3) prescribing a tenure of five years
for the office of a Governor, is made subject to clause (1) G
which provides that the Governor shall hold office during
the pleasure of the President. Therefore, it is not possible
to accept the contention that clause (1) of Article 156 is
subj~'cted to an express restriction or limitation under
Clause (3) of Article 156. [Para 30] [634-E-H; 635-A-E] H
600 SUPREME ·COURT REPORTS [2010] 6 S.C.R.·
A 4.2. The petitioner relied upon the Report of the
Sarkaria Commission on Centre-State Relations and the
Report of the National Commission to Review the working
of the Constitution in support of his contention that
removal of a Governor should be by an order disclosing
B reasons, that the Governor should be given an
opportunity to explain his position and that the removal
should be only for compelling reasons, thereby stressing
the need to provide security of tenure for the Governors.
In this regard the Petitioner also placed reliance upon the
C Consultation Paper on "Institution of Governor under the
Constitution" published by the National Commission to
Review the Working of the Constitution. The
recommendations made in the said Reports/Consultation
Paper, howsoever logical, or deserving consideration and
acceptance, remain recommendations. They cannot
0
override the express provisions of the Constitution as
they stand. Nor can they assist in interpreting Article 156.
The very fact that such recommendations are made,
shows that the position under the existing Constitutional
provisions is otherwise. They are suggestions to be
E considered by those who can amend the Constitution.
They do not assist in interpreting the existing provisions
of the Constitution. [Para 31, 33 and 34] [635-F-G; 639-A;
640-F-H]
F 4.3. The Constituent Assembly Debates show that
several alternatives were considered and ultimately
Article 156 in its present form was adopted. The debates
disclose that (i) the intention of the founding fathers was
to adopt the route of Doctrine of Pleasure, instead of
G impeachment or enquiry, with regard to removal of
Governors; and that (ii) it was assumed that withdrawal
of pleasure resulting in removal of the Governor will be
on valid grounds but there was no need to enumerate
them in the Article. [Para 37] [645-D-G]
H
B.P. SING HAL v. UNION OF INDIA AND ANR. 601
4.4. The provision for removal at the pleasure of an A
authority without any restriction applies to Ministers as
also the Attorney General apart from Governors. Persons
of calibre, experience, and distinction are chosen to fill
these posts. Such persons are chosen not to enable
them to earn their livelihood but to serve the society. It is B
wrong to assume that such persons having been chosen
on account of their stature, maturity and experience will
be demoralized or be in constant fear of removal, unless
there is security of tenure. They know when they accept
these offices that they will be holding the office during c
the pleasure of the President. [Para 39] [646-E-G]
4.5. There is a consensus between the petitioner and
the respondent to the extent that a Governor can be
removed only for a valid reason, and that physical and
mental incapacity, corruption and behaviour unbecoming D
· of a Governor are valid grounds for removal. There is
however disagreement as to what else can be grounds
for removal. This Court is of the view that there can be
other grounds also. It is not possible to put the reasons
under any specific heads. The only limitation on the E
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. [Para 40]
[647-0, E]
F
4.6. 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 G
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-
H
602 SUPREME COURT REPORTS [2010] 6 S.C.R.
A 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
B 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. [Para 41) [647-
F-H; 648-A]
c Gompers vs. United States, 23~ US 603, referred to.
Constitutional Law of India (4th Ed.,Vol.2, page 2066) by
H.M. Seervai; Report of the Sarkaria Commission on Centre-
State Relations; Report of the National Commission to Review
D the working of the Constitution; Consultation Paper on
"Institution of Governor under the Constitution'', by the
National Commission to Review the Working of the
Constitution and Constituent Assembly Debates, referred to.
E (v) Judicial review of withdrawal of President's pleasure
5.1. 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
F 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
G imperative that a cause must exist. If one does 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
H disclosed or assigned for removal by exercise of such
B.P. SINGHAL v. UNION OF INDIA AND ANR. . 603
prerogative power, some valid cause should exist for the A
removal. Therefore, while the contention that an order
under Article 156 is not justiciable cannot be accepted,
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 is acceptable. B
[Para 42] [648-C-E]
5.2. Exercise of power under Article 156(1) is an
executive power exercised on the advice tendered by the
Council of Ministers. Though clause (2) of Article 74
provides that the question whether any, and if so what, C
advice was tendered, shall not be enquired into by any
court; the bar contained in Article 74(2)1will not come in
the way of the court inquiring whether there was any
material on the basis of which such advjce was given,
whether such material was relevant for such advice and D
whether the material was such that a reasonable man
could have come to the conclusion which was under
challenge. Therefore, though the sufficiency of the
material could not be questioned, legitimacy of the
inference drawn from such material was open to judicial E
review. [Para 47] [653-E-H; 654-A-B]
5.3. The extent and depth of judicial review will
depend upon and vary with reference to the matter under
review. In law, context is everything, and intensity of
F
review will depend on the subject-matter of review. For
example, judicial review is permissible in regard to
administrative ~ction, legislations and constitutional
1
amendments. But the extent or scope of judicial review
for one will be different from the scope of judicial review
for other. Malafides may be a ground for judicial review G
of administrative action but is not a ground for judicial
review of legislations or constitutional amendments. For
withdrawal of pleasure in the case of a Minister or an
Attorney General, loss of confidence may be a relevant
H
604 SUPREME COURT REPORTS [201 OJ 6· S.C.R.
A ground. The ideology of the Minister or Attorney General
being out of sync with the policies or ideologies of the
Government may also be a ground. On the other hand,
for withdrawal of pleasure in the case of a Governor, loss
of confidence or the Governor's views being out of sync
s with that the Union Government will not be grounds for
withdrawal of the pleasure. The rt:iasons for withdrawal
are wider in the case of Ministers and Attorney-General,
when compared to Governors. As a result, the judicial
review of withdrawal of pleasure, is limited in the case of
c a Governor whereas virtually nil in the case of a Minister
or an Attorney General. [Para 48] [654-C-G]
5.4. 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
D on the advice of the Council of Ministers. 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)
E 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
F instance of arbitrariness or malafides, in his removal, the
court will refuse to interfere. However, where a prima facie
case of arbitrariness or ma/afides is made out, the Court
can require the Union Government to produce records/
materials to satisfy itself that the withdrawal of pleasure
G was for good and compelling reasons. What will
constitute good and compelling reasons would depend
upon the facts of the case. The position, therefore, is that
the decision is open to judicial review but in a very limited
extent. [Para 49] [654-H; 655-A-E]
H
B.P. SINGHAL v. UNION OF INDIA AND ANR. 605
S.R. Bommai v. Union of India [1994 (3) SCC 1], relied A
on.
State of Rajasthan v. Union of India 1977 (3) SCC 592;
Kihota Hollohon v. Zachi/hu 1992 [Supp. (2) SCC 651]; R.C.
Poudyal v. Union. of India [1994 Supp (1) SCC 324]; Maru
Ram v. Union of India [1981 (1) SCC 107]; Kehar Singh v. B
Union of India [1989 (1) SCC 204] etc.] and Epuru Sudhakar
v. Government of Andhra Pradesh [2006 (8) SCC 161],
referred to.
Council of Civil Service Unions v. Minister for the Civil c
Service - 1985 AC 374; R (Bancoult) vs. Foreign Secretary
- 2009 (1) AC 453); Baker v. Carr, 369 US 186; Powell v.
McCormack, 395 US 486 and Ex parte Daly, 2001 (3) All ER
433 - referred to.
De Smith's Judicial Review (6th Ed. 2007 Page 15), D
referred to.
vi) Conclusions
6.1. Under Article 156(1 ), the Governor holds office E
during the pleasure of the President. Th-erefore, the
President can remove the Governor from office at any
time without assigning any reason and without giving
any opportunity to show cause. [Para 50] [655-F]
6.2. Though no reason need be assigned for F
discontinuance of the pleasure resulting in removal, the
power under Article 156(1) cannot be exercised in an
arbitrary, capricious or unreasonable manner. The power
will have to be exercised in rare and exceptional
circumstances for valid and compelling reasons. The G
compelling reasons are not restricted to those
enumerated by the petitioner (that is physical/mental
disability, corruption and behaviour unbecoming of a
Governor) but are of a wider amplitude. What would be
compelling reasons would depend upon the facts and H
606 SUPREME COURT .REPORTS [2010] 6 S.C.R.
A circumstances of each case. [Para 50] [655-H; 656-A]
6.3. A Governor cannot be removed on the ground
that he is out of sync with the policies and ideologies of
the Union Government or the party in power at the CentrP..
Nor can he be removed on the ground that the Union
8
Government has lost confidence in him. It follows
therefore that change in government at Centre is not a
ground for removal of Governors holding office to make
way for others favoured by the new government. [Para
C 50] [656-B, C]
6.4. As there is no need to assign reasons, any
removal as a consequence of withdrawal of the pleasure
will be assumed to be valid and will be open to only a
limited judicial review. If the aggrieved person is able to
o demonstrate prima facie that his removal was either
arbitrary, malafide, capricious or whimsical, the court will
call upon the Union Government to disclose to the court,
the material upon which the President had taken the
decision to withdraw the pleasure. If the Union
E Government does not disclose any reason, or if the
reasons disclosed are found to be irrelevant, arbitrary,
whimsical, or malafide, the court will interfere. However,
the court will not interfere merely on the ground that a
different view is possible or that the material or reasons
F are insufficient. [Para 50] [656-D-F]
Case Law Reference:
1981 (Supp) sec 87 referred to Para 10
2000 (2) sec 81 relied on Para 10
G
1896 (1) QB 116 referred to Para 12
1895 AC 229 referred to Para 12.1
(1985) 3 sec 398 referred to Para 12.2
H
B.P. SINGHAL v. UNION OF INDIA AND ANR. 607
1954 SCR 786 relied on Para 12.3 A
1999 (177) DL (4th) 73(SCC) referred to: Para 15
AIR 1958 SC 36 relied on Para 19
AIR 1964 SC 600 relied on Para 19
B
1911 (3) sec 592 followed Para 24
1977 (4) sec 608 followed Para 24
1979 (3) sec 458 followed Para 24
c
2006 (2) sec 1 relied on Para 24
233 us 603 referred to Para 28
1985 AC 374 referred to Para 43
2009 (1) AC 453 referred to Para 43 D
1977 (3) sec 592 referred to Para 44
1992 [Supp. (2) sec 651 referred to Para 44
1994 Supp (1) sec 324 referred to Para 45 E
I
369 us 186 referred to Para 45
395 us 486 referred to Para 45
1981 (1) sec 101 referred to Para 46
F
1989 (1) sec 204 referred to Para 46
2006 (8) sec 161 referred to Para 46
1994 (3) sec 1 relied on Para 47
G
2001 (3) All ER 433 referred to Para 48
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
296 of 2004.
Under Article 32 of the Constitution of India. H
608. SUPREME COURT REPORTS [2010] 6 S.C.R
A WITH
T.P. (C) No. 663 of 2004
G.E. Vahanvati, AG, Indira Jaisingh, ASG, Soli J.
Sorabjee, K.V. Viswanathan, H.P. Sharma, Vivek Bhati,
B Ranjeet V. Sangle (for K.S. Rana), Devdatt Kamat, Chinmoy
Pradip Sharma. T.A. Khan, Rohit Sharma, Mihir Chatterji,
Nishant Patil (for Sushma Suri, Anil Katiyar, P. Parmeswaran),
B. Raghunath, Abhishek K. (for K.V. Venkataraman) for the
appearing parties
c
The Judgment of the Court was delivered by
R. V. RAVEENDRAN, J. 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
D 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
E 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
F 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.
G The relevant constitutional provisions
3. Article 153 of the Constitution provides that there shall
be a Governor for each State. Article 154 vests the executive
power of the state in the Governor. Article 155 provides that
the Governor of a State shall be appointed by the President,
H
'!'
B.P. SINGHAL v. .UNION OF INDIA AND ANR. 609
[R.V. RAVEENDRAN, J.]
by warrant under his hand and seal. Article 156 relates to term A
of office of Governor and is extracted below:
"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 B
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: c
Provided that a Governor shall, notwithstanding the
expiration of his term, continue to hold office until his
successor enters upon his office."
(emphasis supplied) D
Submissions of Petitioner
4. The petitioner submits that a Governor, as the Head of
the State, holds a high constitutional office which carries with ·
it important constitutional functions and duties; that the fact that E
the Governor is appointed by the President and that he holds
office during the pleasure of the President does not make the
Governor an employee or a servant or agent of the Union
Government; and that his independent constitutional office is
not subordinate or subservient to the Union Government and F
he is not accountable to them for the manner in which he carries
out his functions and duties as Governor. It is contended that a
Governor should ordinarily be permitted to continue in office for
the full term of five years; and though he holds office during the
pleasure of the President, he could be removed before the G
expiry of the term of five years, only in rare and exceptional
circumstances, by observing the following constitutional norms
and requirements :
(a) The withdrawal of presidential pleasure under Article H
610 SUPREME. COURT REPORTS [2010) 6 S.C.R.
A 156, cannot be an unfettered discretion, nor can it be
arbitrary, capricious, unreasonable or malafide. The power
of removal should be used only if there is material to
demonstrate misbehaviour, impropriety or incapacity. In
other words, that removal should be only on existence of
B grounds which are similar to those prescribed for
impeachment in the case of other constitutional
functionaries.
(b) Before a Governor is removed in exercise of power
under clause (1) of Article 156, principles of natural justice
c will have to be followed. He should be issued a show
cause notice setting out the reasons for the proposed
removal and be given an opportunity of being heard in
respect of those reasons.
D (c) The removal should be by a speaking order so as to
apprise him and the public, of the reasons for considering
him unfit to be continued as a Governor.
It is also contended that the withdrawal of presidential pleasure
E resulting in removal of a Governor is justiciable, by way of
judicial review.
5. 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
F 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
G 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
H discretion will subject a Governor to a constant threat of removal
B.P. SINGHAL v. UNION OF INDIA·AND ANR. 611
[R.V. RAVEENDRAN, J.]
and make him subservient to the Union Government,. apart from A.
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
8
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 C
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 D
politics or regularly addressing political rallies, or having links
with ant,-national or subversive elements, etc.). The remo.'91 of
a Governor under Article 156 cannot be with referencro the
ideology or personal preferences of the Governor. Nor can such
removal be with any ulterior motives, as for example, to make E
place }or 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.
F
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.
I G
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
H
612 SUPREME COURT REPORTS [2010] 6 S.C R
A good. Therefore, any order of premature removal of a Governor
will be open to judicial review.
Submissions of respondents
6. The respondents in their counter affidavit have
B contended that the power of the President to remove a
Governor under Article 156(1) is absolute and unfettered. The
term of five years provided in Article 156(3) is subject to the
doctrine of pleasure contained in Article 156(1 ). The
Constitution does not place any restrictions or limitations upon
C the doctrine of pleasure. Therefore, it is impermissible to read
any kind of limitations into the power under Article 156(1 ). The
power of removal is exercised by the President on the advice
of the Council of Ministers. The advice tendered by the Council
of Ministers cannot be inquired into by any court, having regard
D to the bar contained in Article 74(2). It was therefore urged that
on both these grounds, the removal of Governor is not
justiciable.
7. The learned Attorney General appearing on behalf of the
E respondents raised a preliminary objection to the
maintainability of the writ petition. He submitted that if the four
Governors who were removed, do not wish to seek any relief
and have accepted their removal without protest, no member
of the public can bring a public interest litigation for grant of
relief to them. On merits, he submitted that the provision that
F the Governor shall hold office during the pleasure of the
Government meant that the President's pleasure can be
withdrawn at any time resulting in the removal of the Governor,
without assigning any reason. He submitted that the founding
fathers had specifically provided that Governors will hold office
G during 'the pleasure of the President, so as to provide to the
Union Government, the flexibility of removal if it lost confidence
in a Governor or if he was unfit to continue as Governor. He
shifted from the stand in the counter that the power under
Article 156(1) is an unfettered discretion. He submitted that a
H provision that the Governor shall hold office during the pleasure
B.P. SINGHAL v. UNION OF INDIA AND ANR. 613
[R.V. RAVEENDRAN, J.]
of the President, is not a licence to act arbitrarily, whimsically A
or capriciously. The Union Government did not claim any.right
to do what it pleases, as Constitution abhors arbitrariness and
unfettered discretion. He stated that the removal should be for
a reason, but such reason need not be communicated. He also
submitted that removal by applying the doctrine of pleasure B
need not necessarily relate to any act or or!'ission or fault on
the part of the Governor. He submitted that in essence, the object
of providing that the Governor shall hold office during the
pleasure of the President was that if the President lost faith in
the Governor or found him unfit for whatever reason, he can c
withdraw the presidential pleasure resulting in removal. He
submitted that the pleasure doctrine cannot be denuded of its
width, by restricting its applications to specific instances of fault
or misbehaviour on the part of the Governor, or by implying an
obligation to assign or communicate any reason for the removal.
0
8. The learned Attorney General submitted that iri a
democracy, political parties are formed on shared beliefs and
th'ey contest election with a declared agenda. If a party which
comes to power with a particular social and economic agenda,
finds that a Governor is out of sync with its policies, then it E
should be able to remove such a Governor. The learned
Attorney General was categorical in his submission that the
Union Government will have the right to remove a Governor
without attributing any fault to him, if the President loses-
confidence in a Governor or finds that the Governor is out of F
sync with democratic and electoral mandate.
Questions for consideration
9. The contentions raised give rise to the following
questions: G
(i) Whether the petition is maintainable?
(ii) What is the scope of "doctrine of pleasure"?
(iii) What is the position of a Governor under the H
/
614 SUPREME COURT REPORTS [2010] 6 S.C.R.
A Constitution?
(iv) Whether there are any express or implied
limitations/restrictions upon the power under Article
156(1) of the Constitution of India?
B (v) Whether the removal of Governors in exercise of
the doctrine of pleasure is open to judicial review?
We will consider each of these issues separately.
C (i) Maintainability of the writ petition
10. The respon8ents submitted that a writ petition by way
of PIL, to secure relief for the Governors who have been
removed from office, is not maintainable as none of the
aggrieved persons had approached the court for relief and the
D writ petitioner has no locus to maintain a petition seeking relief
on their behalf. It is pointed out that Governors do not belong
to a helpless section of society which by reason of poverty,
ignorance, disability or other disadvantage, is not capable of
seeking relief. Reliance is placed on the following observations
E of this Court in S.P. Gupta vs. Union of India - 1981 (Supp)
sec 87:
" ..... cases may arise where there is undoubtedly public
injury by the act or omission of the State or a public
authority but such act or omission also causes a specific
F
legal injury to an individual or to a specific class or group
of individuals. In such cases, a member of the public having
sufficient interest can certainly maintain an action
· challenging the legality of such act or omission, but if the
person on specific class or group of persons who are
G primarily injured as a result of such act or omission, do not
wish to claim any relief and accept such act or omission
willingly and without protect, the member of the public who
complains of a secondary public injury cannot maintain the
action, for the effect of entertaining the action at the
H instance of such member of the public would be to foist a
'
'
B.P. SINGHAL v. UNION OF- INDIAAND ANR. 615
[R.V. RAVEENDRAN, J.]
relief on the person or specific class or group of persons A
primarily injured, which they do not want."
The petitioner, by way of reply, merely pointed out another
observation in S.P. Gupta :
"But there may be cases where the State .or a public B
authority may act in violation of a constitutional or statutory
obligation or fail to carry out such obligation, resulting in
injury to public interes,t-0r what may conveniently be termed
as public injury:.as1:1istinguished from private injury. Who
would have,standing to complain against such act or C
omissionof the State or public authority? Can any member
of thepublic §_ye-fer-judicial redress? Or is the standing
limited _ooifto a certain class of persons? Or there is no
one who can complain and the public injury muct go
unredressed... ... .. D
· If the State or any public authority acts beyond the scope
of its power and thereby· causes a specific legal injury to
a person or to a determinate class or group of persons, it
would be a case of private injury actionable in the manner E
discussed in the preceding paragraphs. So also if the duty
is owed by the State or any public authority to a person or
to a determinate class or group of persons, it would give
rise to a corresponding right in such person or determinate
class or group of persons and they would be entitled to
maintain an action for judicial redress. But if no specific F
legal injury is caused to a person or to a determinate class
or group of persons by the act or omission of the State or
any public authority and the injury is caused only to public
interest, the question arises as to who can maintain an
action for vindicating the rule of 1aw and setting aside the G
unlawful action or enforcing the performance· of the public
duty. If no one can maintain an action for redress of such
public wrong or public injury, it would be disastrous for the
rule of law, for it would be open to the State or a public
authority to act with impunity beyond the scope of its power H
616 SUPREME COURT REPORTS [201 O] 6 S.C.R.
A or in breach of a public duty owed by it. The Courts cannot
countenance such a situation where the observance of the
law.is left to the sweet will of the authority bound by it,
without any redress if the law is col')travened. The view has
therefore been taken by the Courts in many decisions that
B whenever there is a public wrong or public injury caused
by an act or omission of the State or a public authority
which is contrary to the Constitution or the law, any member
of the public acting bona fide and having sufficient interest
can maintain an action for redressal of such public wrong
c or public injury. The strict rule of standing which insists that
only a person who has suffered a specific legal injury can
maintain an action for judicial redress is relaxed and a
broad rule is evolved which gives standing to any member
of the public who is not a mere busy-body or a
D meddlesome interloper but who has sufficient interest in
the proceeding."
11. A similar public interest litigation came up before a
Constitution Bench of this Court in Ranji Thomas v. Union of
India - 2000 (2) sec 81, seeking intervention of this court to
E restrain the President of India from "forcibly" extracting
resignations from various Governors and Lt. Governors. Prayer
(a) therein sought quashing of the resignations of certain
Governors and Lt. Governors and prayer (b) sought a direction
restraining the President from accepting the "involuntary and
F forced" resignation of Governors and Lt. Governors. Prayer (c)
was a general prayer for a declaration that communication of
the President seeking the resignation of Governors and Lt.
Governors was ultra vires the Constitution. Dealing with the
contention that such a petition was not maintainable this Court
G observed:
"The learned Attorney General appearing for the Union of
India submits that this public interest litigation is not
maintainable at the instance of the petitioner, since none
of the Governors or Lt. Governors have approached this
B.P. SINGHAL v. UNION OF INDl.A AND ANR. 617
[R.V. RAVEENDRAN, J,.]
cburt or protested against their being asked to resign and A
that the petitioner cannot challenge an act which the party
affected does not wish to nor intend to challenge. He relies
upon the obseNations made by this Court in the case of
S.P.' Gupta v. Union of India [1981 (Supp) SCC:87].
~. I
8
Insofar as prayers (a) and (b) in the writ petition are
concerned, we find force in the submission of the learned
Attorney General. But, insofar as prayer (c) of the writ
petition is .cgncerned, it raises an important public issue
and involves the interpretation of Article 156 of the C
Constitution of India: As at present advised, we do not think
that we can deny locus \to the petitioner .
for raising that
issue."
The petitioner has no locus to maintain the petition in regard
to the prayers claiming relief for the benefit of the individual D
Governors. At all events, such prayers no longer survive on
account of passage of time. However, with regard to the
general question of public importance referred to the
Constitution Bench, touching upon the scope of Article 156 (1)
and the limitations upon the doctrine of pleasure, the petitioner E
has necessary locus.
(ii) Scope of doctrine of pleasure
12. The Pleasure Doctrine has its origin in English law, with
reference to the tenure of public servants under the Crown. In F
Dunn v. Queen - 1896 (1) QB 116, the Court of Appeal
referred to the old common law rule that a public seNant unc:Jer
the British Crown had no tenure but held his position at the
absolute discretion of the Crown. ltwas obseNed:
G
"I take it that persons employed as the petitioner was in
the seNice of the Crown, except in cases where there is
some statutory provision for a higher tenure of office, are
ordinarily engaged on the understanding that they hold their
employment at.the pleasure of the Crown. So I think that H
618 SUPREME COURT REPORTS [2010] 6 S.C.R.
A there must be imported into the contract for the
employment of the petitioner, the term which is applicable
to civil servants in general, namely, that the Crown may put
an end to the employment at its pleasure. It seems to me
that it is the public interest which has led to the term which
8 I have mentioned being imported into contracts for
employment in the service of the Crown. The cases cited
show that, such employment being for the good of the
public, it is essential for the public good that it should be
capable of being determined at the pleasure of the Crown,
c except in certain exceptional cases where it has been
deemed to be more for the public good that some
restrictions should be imposed on the power of the Crown
to dismiss its servants."
(emphasis supplied)
D
(12.1) In Shenton v. Smith [1895 AC 229], the Privy
Council explained that the pleasure doctrine was a necessity
because, the difficulty of dismissing those servants whose
continuance in office was detrimental to the State would, if it
E were necessary to prove some offence to the satisfaction of a
jury (or court) be such, as to seriously impede the working of
the public service.
(12.2) A Constitution Bench of this Court in Union of India
F v. Tulsiram Patel - (1°985) 3 SCC 398 explained the origin of
the doctrine thus:
"In England, except where otherwise provided by statute,
all public officers and servants of the Crown hold their
appointments at the pleasure of the Crown or durante
G bene placito ("during good pleasure" or "during the
pleasure of the appointer") as opposed to an office held
dum bene se gesserit ("during good conduct"), also called
quadiu se bene gesserit ("as long as he shall behave
himself well"). When a person holds office during the
H pleasure of the Crown, his appointment can be
B.P. SINGHAL v. UNION OF INDIA AND ANR. 619
[R.V. RAVEENDRAN, J.]
terminated at any time without assigning cause. The A
exercise of pleasure by the Crown can, however, be
restricted by legislation enacted by Parliament because in
the United Kingdom Parliament is sovereign .. : .... "
(emphasis supplied)
B
(12.3) In State of Bihar v. Abdul Majid - 1954 SCR 786,
another Constitution Bench explained the doctrine of pleasure
thus:
"The rule that a civil servant holds office at the pleasure of c
the Crown has its origin in the latin phrase "durante bene
p/acito" ("during pleasure") meaning that the tenure of office
of a civil servant, except where it is otherwise provided by
statute, can be terminated at any time without cause
assigned. The true scope and effect of this expression is
0
that even if a special contract has been made with the civil
servant the Crown is not bound thereby. In other words, civil
servants are liable to dismissal without notice and there
is no right of action for wrongful dismissal, that is, that they
cannot claim damages for premature termination of their
services." E
(12.4) H.M. Seervai, in his treatise 'Constitutional law of
India' (4th Ed., Vol. 3, pp.2989-90) explains this English
Crown's power to dismiss at pleasure in the following terms:
F
"In a contract for service under the Crown, civil as well as
military, there is, except in certain cases where it is
otherwise provided by law, i111ported into the contract a
condition that the Crown has the power to dismiss at
pleasure .... Where the general rule prevails, the Crown is G
not bound to show good cause for dismissal, and if a
servant has a grievance that he has been dismissed
unjustly, his remedy is not by a law suit but by an appeal
of an official or political kind ...... If any authority
representing the Crown were to exclude the 'power of the
H
620 SUPREME COURT REPORTS · [2010] 6 S.C.R.
A Crown to-dismiss at pleasure by express stipulation, that
would be a violation of public policy and the stipulation
cannot derogate from the power of the Crown to dismiss
at pleasure, and this would apply to a stipulation that the
service was to be terminated by a notice of a specified
period of time. Where, however, the law authorizes the
B
making of a fixed term contract, or subjects the pleasure
of the Crown to certain restrictions, the pleasure is pro
tanto curtailed and effect must be given to such law."
(12.5) Black's Dictionary defines 'Pleasure Appointment'
C as the assignment of someone to employment that can be
taken away at any time, with no requirement for notice or
hearing.
13. Th.ere is a distinction between the doctrine of pleasure
D 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
E 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
F reasonably and for public good.
14. The following classic statement from Administrative
Law (HWR Wade & CF Forsyth - 9th Ed. - Pages 354-355)
is relevant in this context :
G "The common theme of all the authorities so far mentioned
is that the notion of absolute or unfettered discretion is
rejected. Statutory power conferred for public purposes is
conferred as it were upon trust, not absolutely - that is to
say, it can validly be used only in the right and proper way
which Parliament when conferring it is presumed to have
H
B.P. SINGHAL v. -UNION OF INDIA AND ANR. 621
[R.V. RAVEENDRAN, J.]
intended. Although the Crown's lawyers have argued in A
numerous cases that unrestricted permissive language
confers unfettered discretion, the truth is that, in a system
based on the rule of law, unfettered government discretion
is a contradiction in terms. The real question is whether
the discretion is wide or narrow, and where the legal line B
is to be drawn. For this purpose everything depends upon
the true intent and meaning of the empowering Act.
The powers of public authorities are therefore essentially
different from those of private persons. A man making his C
will may, subject to any rights of his dependants, dispose
of his property just as he may wish. He may act out of
malice or a spirit of revenge, but in law this does not affect
his exercise of his power. In the same way a private person
has an absolute power to aTlow whom he likes to use his
land, to release a debtor, or where the law permits, to evict D
a tenant, regardless of his motive. This is unfettered
discretion. But a public authority may do none of these
things unless it acts reasonably and in good faith and upon
lawful and relevant grounds of public interest ...... The
whole conception of unfettered discretion is inappropriate E
to a public authority, which possesses powers solely in
order that it may use them for the public good. There is
nothing paradoxical in the imposition of such legal limits. It
would indeed be paradoxical if they were not imposed."
F
(emphasis supplied)
15. It is of some relevance to note that the 'Doctrine of
Pleasurei'. 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 G
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
moderate!~ 1-estricted in the sense that the circumstances
mentioned therein should exist for its operation. The Canadian H
622 SUPREME. COURT REPORTS (2010] 6 S.C.R..
A Supreme Court in Wells v. Newfound land [1999 (177) DL (4th)
73(SCC)] has concluded that "at pleasure" doctrine is no longer
justifiable in the context of modern employment relationship.
16. In Abdul Majid (supra), this Court considered the scope
· of the doctrine of pleasure, when examining whether the rule
8
of English Law that a civil servant cannot maintain a suit against
the State or against the Crown fqr the recovery of arrears of
salary as he held office during the pleasure of the crown,
applied in India. This Court held that the English principle did
C not apply in India. This Court observed :
"It was suggested that the true view to take is that when
the statute says that the office is to be held at pleasure, it
means "at pleasure", and no rules or regulations can alter
or modify that; nor can section 60 of the Code of Civil
D Procedure, enacted by a subordinate legislature be used
to construe an Act of a superior legislature. It was further
suggested that some meaning must be given to the words
"holds office during His Majesty's pleasure" as these words
cannot be ignored and that they bear the meaning given
E to them by the Privy Council in l.M. Lall's case. [75 l.A.225]
In our judgment, these suggestions are based on a
misconception of the scope of this expression. The
expression concerns itself with the tenure of office of the
civil servant and it is not implicit in it that a civil servant
F serves the Crown ex gratia or that his salary is in the nature
of a bounty. It has again no relation or connection with the
question whether an action can be filed to recover arrears
of salary against the Crown. The origin of the two rules is
different and they operate on two different fields."
G
[emphasis supplied]
17. This shows the 'absoluteness' attached to the words
'at pleasure' is in regard to tenure of the office and does not
H
B.P. SINGHAL v. UNION OF INDIA AND ANR. 623
[R.V. RAVEENDRAN, J.]
affect, any constitutional or statutory restrictions/limitations which A
may\apply.
'18. The Constitution refers to offices held during the
pleasure of the President (without restrictions), offices held
during the pleasure of the President (with restrictions) and also
8
appointments to which the said doctrine is not applicable. The
Articles in the Constitution of India which refer to the holding of
office during the pleasure of the President without any
restrictions or li,mitations are Article 75(2) relating to ministers,
Article 76 (4) relating to Attorney General and Article 156(1)
relating to Governors. Similarly Article 164(1) and 165(3) C
provides that the Ministers (in the States) and Advocate
General for the State shall hold office during the pleasure of the
Governor.
19. Article 310 read with Article 311 provide an exam pie D
of the application of 'at pleasure' doctrine subject to restrictions.
Clause (1) of Article 310 relates to tenure of office of persons
serving the Union or a State, being subject to doctrine of
pleasure. However; clause (2) of Article 310 and Article 311
restricts the operation of the 'at pleasure' doctrine contained E
in Article 310(1 ). For convenience, we extract below clause (1)
of Article 310 referring to pleasure doctrine and clause (2) of
Article 311 containing the restriction on the pleasure doctrine:
"310. Tenure of office of persons serving the Union or a
State - (1) Except as expressly provided by this
F
Constitution, every person who is a member of a defence
service or of a civil service of the Union or of an all-India
service or holds any post connected with defence or any
civil post under the Union holds office during the pleasure
of the President, and every person who is a member of a G
civil serv1ce of a State or holds any civil post under a State
holds office during the pleasure of the Governor of the
State.
)()()()()()(
H
624 SUPREME COURT REPORTS [2010] 6 s.C R
A 311. Dismissal, removal or reduction in rank of persons
employed in civil capacities under the Union or a State : ·
(1) )()()()()()()(
(2) - No such person as aforesaid shall be dismissed or
B removed or reduced in rank except after an inquiry in which
he has been informed of the charges against him and
given a reasonable opportunity of being heard in respect
of those charges."
c This Court in P.L. Ohingra v. Union of India - AIR 1958 SC
36, referred to the qualifications on the pleasure doctrine under
Article 310:
"Subject to these exceptions our Constitution, by Art.
310(1 ), has adopted the English Common Law rule that
D public servants hold office during the pleasure of the
President or Governor, as the case may be and has, by
Art. 311, imposed two qualifications on the exercise of
such pleasure. Though the two qualifications are set out
in a separate Article, they quite clearly restrict the
E operation of the rule embodied in Art. 310(1 ). In other
words the provisions of Art. 311 operate as a proviso to
Art. 310(1)."
Again, in Moti Ram v. N.E. Frontier Railway - AIR 1964 SC
F 600, this Court referred to the qualifications to which pleasure
doctrine was subjected in the case of government servants, as
follows:
"The rule of English law pithily expressed in the latin
phrase 'durante bene placito ("during pleasure") has not
G been fully adopted either by S. 240 of the Government of
India Act, 1935 or by Art. 310(1) of the Constitution. The
pleasure of the President is clearly controlled by the
provisions of Art. 311, and so, the field that is covered by
Art. 311 on a fair and reasonable construction of the
H relevant words used in that article, would be excluded from
B.P. SINGHAL v. UNION OF INDIA AND ANR. . 625
[R.V. RAVEENDRAN, J.]
the operation of the absolute doctrine of pleasure. The A
pleasure of the President would still be there, but it has to
be exercised in accordance with the requirements of Art.
311."
20. The Constitution of India also refers to other offices
8
whose holders do not hold office during the pleasure of the
President or any other authority. They are: President under
Article 56; Judges of the Supreme Court under Article 124;
Comptroller & Auditor General of India under Article 148; High
Court Judges under Article 218; and Election Commissioners C
under Article 324 of the Constitution of India. In the case of
these constitutional functionaries, it is specifically provided that
they shall not be removed from office except by impeachment,
as provided in the respective provisions.
21. Constitution of India thus provides for three different D
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 E
subject to the doctrine of pleasure. Constitutional 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 F
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, Member
of an All-India service, holders of posts connected with defence G
or any civil post under the Union, Member 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, H
626 SUPREME COURT REPORTS [2010] 6 S.C.R.
A it is not possible to mix up or extend the type of protection
against removal, granted to one category of offices, to another
category.
22. The doctrine of pleasure as originally envisaged in
B 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.
C 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
D a
"fundamentals of constitutionalism". Therefore in 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,
E 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 r.eed for a cause for
withdrawal of the pleasure. In other words, "at pleasure" doctrine
F 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. The withdrawal of pleasure
G cannot be at the sweet will, whim and fancy of the Authority, but
can only be for valid reasons.
(iii) Position of a Governor under the Constitution
23. The Governor constitutes an integral part of the
H legislature of a State. He is vested with the legislative power
B.P. SING HAL v. UNION OF INDIA AND ANR. . 627
[R.V. RAVEENDRAN, J.]
to promulgate ordinances while the Houses of the legislature, A
are not iri session. The executive power of the State is vested
in him and every executive action of the Government is taken
in his name. He exercises the sovereign power to grant
pardons, reprieves, respites or remissions of punishment. He
is vested with the power to summon each House of the B
Legislature or to prorogue either House or to dissolve the
legislative assembly. No Bill passed by the Houses of the
Legislature can become law unless it is assented to by him.
He has to make a report where he finds that a situation has
arisen in which the Government of the State cannot be carried c
on in accordance with the Constitution. He thus occupies a high
constitutional office with important constitutional functions and
duties.
24. In State of Rajasthan vs. Union of India - 1977 (3)
SCC 592, a Constitution Bench of this Court described the D
position of Governor thus:
"67. The position of the Governor as the Constitutional
head of State as a unit of the Indian Union as well as the
formal channel of communication between the Union and E
the State Government, who is appointed under Article 155
of the Constitution "by the President by Warrant under his
hand and seal," was also touched in the course of
arguments before us. Qn the one hand, as the·
Constitutional head of the State, he is ordinarily bound, by F
reason of a constitutional convention, by the advice of his
Council of Ministers conveyed to him through the Chief
Minister barring very exceptional circumstances among
which may be as pointed out by my learned brothers
Bhagwati and Iyer, JJ., in Shamsher Singh's case, (1974 G
(2) sec 31 ), a situation in which an appeal to the
electorate by a dissolution is called for. On the other hand,
as the defender of "the Constitution and the law" and the
watch-dog of the interests of the whole country and well-
being of the people of his State in particular, the Governor H
628 SUPREME COURT REPORTS (2010] 6 S.C.R.
A is vested with certain discretionary powers in the exercise
of which he can act independently. One of his independent
functions is the making of the report to the Union
Government on the strength of which Presidential power
under Article 356(1) of the Constitution could be exercised.
B In so far as he acts in the larger interests of the people,
appointed by the President "to defend the constitution and
the Law" he acts as an observer on behalf of the Union
and has to keep a watch on how the administrative
machinery and each organ of constitutional government is
c working in the state. Unless he keeps such a watch over
all governmental activities and the state of public feelings
about them, he cannot satisfactorily discharge his function
of making the report which may form the basis of the
Presidential satisfaction under Article 356(1) of the
Constitution."
D
(emphasis supplied)
In State of Karnataka v. Union of India [1977 (4) SCC 608], a
seven-Judge Bench of this Court held :
E
'The Governor of a State is appointed by the President and
holds office at his pleasure. Only in some matters he has
got a discretionary power but in all others the State
administration is carried on by him or in his name by or
with the aid and advice of the Ministers. Every action, even
F
of an individual Minister, is the action of the whole Council
and is governed by the theory of joint and collective
responsibility. But the Governor is there, as the head of the
State, the Executive and the Legislature, to report to the
Centre about the administration of the State."
G
Another Constitution Bench of this Court in Hargovind Pant vs.
Raghukul Tilak (Dr.) - 1979 (3) SCC 458], explained the status
of the Governor thus:
"It will be seen from this enumeration of the constitutional
H
B.P. SINGHAL v. UNION OF INDIA AND ANR. 629
[R.V. RAVEENDRAN, J.]
powers and functions of the Governor that he is not an A
employee or servant in any sense of the term. It is no
doubt true that the Governor is appointed by the President
which means in effect and substance the Government of
India, but that is only a mode of appointment and it does
not make the Governor an employee or servant of the B
Government of India. Every person appointed by the
President is not necessarily an employee of the
Government of India. So also it is not material that the
Governor holds office during the pleasure of the President
: it is a constitutional provision for determination of the c
term of office of the Governor and it does not make the
Government of India an employer of the Governor. The
Governor is the head of the State and holds a high
constitutional office which carries with it important
constitutional functions and duties and he cannot,
0
therefore, even by stretching the language to a breaking
point, be regarded as an employee or servant of the
Government of India. He is not amenable to the directions
of the Government of India, nor is he accountable for them
for the manner in which he carries out his functions and
E
duties. He is an independent constitutional office which is
not subject to the control of the Government of India. He is
constitutionally the head of the State in whom is vested the
executive power of the State and without whose assent
there can be no legislation in exercise of the legislative
power of the State. There can, therefore, be no doubt that F
the office of Governor is not an employment under the
Government of India and it does not come within the
prohibition of clause (d) of Article 319 ........ it is impossible
to hold that the Governor is under the control of the
Government of India. His office is not sub-ordinate or G
subservient to the Government of India. He is not amenable
to the directions of the Government of India, nor is he
accountable to them for the manner in which he carries out
his functions and duties."
(emphasis supplied) H
630 SUPREME COURT REPORTS . [2010] 6 S.C.R.
A In Rameshwar Prasad (VI) vs. Union of India - 2006 (2) SCC
1 this Court reiterated the status of Governor as explained in
Hargovind Pant, and also noted the remark of Sri G.S. Pathak,
a former Vice-President that "in the sphere which is bound by
the advice of the Council of Ministers, for obvious reasons, the
B Governor must be independent of the centre" as there may
be cases "where the advice of the centre may clash with
advice of the State Council of Ministers" and that "in such
cases the Governor must ignore the centre's 'advice' and act
on the advice of his Council of Ministers." We may also refer
c to the following observations of H. M. Seervai, in his treatise
'Constitutional Law of India' [4th Ed., Vol.II, at p.2065]
"It is clear from our Constitution that the Governor is not
the agent of the President, because when it was intended
to make the Governor an agent of the President it was
D expressly provided - as in Para 18(2), Schedute VI
(repealed in 1972). It is equally clear from our Constitution
that the Governor is entrusted with the discharge of his
constitutional duties. In matters on which he must act on
the advice of his Ministers - and they constitute an
E overwhelming part of his executive power - the question
of his being the President's agent cannot arise."
25. It is thus evident that a Governor has a dual role. The
first is that of a constitutional Head cf the State, bound by the
F advice of his Council of Ministers. The second is to function as
a vital link between the Union Government and the State
Government. In certain special/emergent situations, he may also
act as a special representative of the Union Government. He
is required to discharge the functions related to his different
G roles harmoniously, assessing the scope and ambit of each role
properly. He is not an employee of the Union Government, nor
the agent of the party in power nor required to act under the
dictates of political parties. There may be occasions when he
may have to be an impartial or neutral Umpire where the views
of the Union Government and State Governments are in conflict.
H
B.P. SINGHAL v.. UNION OF INDIA AND ANR. 631
[R.V. RAVEENDRAN, J.]
His· peculiar position arises from the fact that the Indian A
Constitution is quasi-federal in character. In State of Karnataka'
(supra), this Court observed :
"Strictly speaking, our Constitution is not of a federal
character where separate, independent and sovereign 8
States could be said to have joinedto form a nation as in
the United States of America or as may be the position in
some other countries of the world. It is because of that
feason that sometimes it has been characterized as quasi-
federal in nature. Leaving the functions ofthe judiciary C
apart, by and large the legislative and the executive
functions of the Centre and the States have been defined
and distributed, but, even so, through it all runs an overall
thread or rein in the hands of the Centre in both the fields."
In S.R.Bommai v. Union of India [1994 (3) SCC 1], a nine- D
Judge Bench of this Court described the Constitution oflndi~
as quasi-federal, being a mixture of federal and unitary·
elements leaning more towards the latter.
26. In the early days of Indian democracy, the same E
political party was in power both at the Centre and the States.
The position has changed with passage of time. Now different
political parties, some national and some regional, are in power
in the States. Further one single party may not be in power
either in the Centre or in the State. Different parties with distinct F
ideologies may constitute a front, to form a Government. On
account of emergence of coalition politics, many regional
parties have started sharing power in the Centre. Many a time
there may not even be a common programme, manifesto or
agenda among the parties sharing power. As a result, the
agenda or ideology of a political party in power in the State may G
r<ot be in sync with the agenda or ideology of the political parties
in the ruling coalition at the Centre, or may not be in sync with
the agenda or ideology of some of the political parties in the
ruling coalition at the Centre, but may be in sync with some
other political parties forming part of the ruling coalition at the H
632 SUPREME -COURT REPORTS [2010] 6 S.C.R.·
A Centre. Further the compulsions of coalition politics may require
the parties sharing power, to frequently change their policies
and agendas. In such a scenario of myriad policies, ideologies,
agendas in th~; shifting sands of political coalitions, there is no
question of the Union Government having Governors who are
B in sync with its mandate and policies. Governors are not
expected or required to implement the policies of the
government or popular mandates. Their constitutional role is
clearly defined and bears very limited political overtones. We
have already noted that the Governor is not the agent or the
C employee of the Union Government. As the constitutional head
of the State, many a time he may be expressing views of the
· State Government, which may be neither his own nor that of the
Centre (for example, when he delivers the special address
under Article 176 of the Constitution). Reputed elder statesmen,
D able administrators and eminent personalities, with maturity and
experience are expected to be appointed as Governors. While
some of them may come from a political background, once they
are appointed as Governors, they owe their allegiance and
loyalty to the Constitution and not to any political party and are
required to preserve, protect and defend the Constitution (see
E the terms of oath or affirmation by the Governor, under Article
159 of the Constitution). Like the President, Governors are
expected to be apolitical, discharging purely constitutional
functions, irrespective of their earlier political background.
Governors cannot be politically active. We therefore reject the
F contention of the respondents that Governors should be in
"sync" with the policies of the Union Government or should
subscribe to the ideology of the party in power at the Centre.
As the Governor is neither the employee nor the agent of the
Union Government, we also reject the contention that a
G Governor can be removed if the Union Government or party in
power loses 'confidence' in him.
27. We may conclude this issue by referring to the vision
of Sri Jawaharlal Nehru and Dr. B. R. Ambedkar expressed
H during the Constituent Assembly Debates, in regard to the
B.P. SINGHAL v. UNION OF INDIA AND ANR. 633
[R.V. RAVEENDRAN, J.]
office of Governor (Volume Ill Pages 455 and 469). Sri Nehru A
said:
"But on the whole it probably would be desirable to have
people from outside - eminent people, sometimes people
who have not taken too great a part in politics ...... he
8
would nevertheless represent before the public someone
slightly above the party and thereby, in fact, help that
government more than if he was considered as part of the
party machine."
Dr. B. R. Ambedkar stated : C
"If the Constitution remains in principle the same as we
intend that it should be, that the Governor should be a purely
constitutional Governor, with no power of interference in the
administration of the province ...... " o
(iv) Limitations/restrictions upon the power under Article
156(1) of the Constitution of India
28. We may now examine whether there are any express
or implied limitations or restrictions on the power of removal of E
Governors under Article 156(1). We do so keeping in mind the
following words of Justice Holmes : "the provisions of the
Constitution are not mathematical formulas having their
essence in their form; they are organic, living institutions ..... The
significance is vital, nor formal; it is to be gathered not simply F
by taking the words and a dictionary, but by considering their
origin and the line of their growth" (see : Gompers vs. United
States - 233 US 603).
Effect of clause (3) of Article 156
G
29. It was submitted on behalf of the petitioners that the
doctrine of pleasure under Article 156(1) is subject to the
express restriction under. clause (3) of Article 156. It was
submitted that there is a significant difference between Articles
75(2) and 76 (4) which provide for an unrestricted application H
634 SUPREME COURT REPORTS [2010] 6 S.C.R.
A of the doctrine, and Article 156(1) which provided for
application of the doctrine subject to a restriction under Article
156(3). It is pointed out that in the case of Ministers and the
Attorney General, Articles 75 and 76 do not provide any period
of tenure, whereas clause (3) of Article 156 provides that in the
B case of Governors, the term of office will be five years. It is
submitted that Clause (1) of Article 156 providing that the
Governor shall hold office during the pleasure of the President,
should be read in consonance with Clause (3) or Article 156
which provides that subject to clause (1) and subject to the
C Governor's right to resign from his office, a Governor shall hold
office for a term of five years from the date on which he enters
office. The petitioner interprets these two clauses of Article 156
thus: The tenure of office of the Governor is five years. However,
before the expiry of that period the Governor may resign from
office, or the President may, for good and valid reasons relating
0
to his physical/mental inability, integrity, and behaviour, withdraw
his pleasure thereby removing him from office.
30. A plain reading of Article 156 shows that when a
Governor is appointed, he holds the office during the pleasure
E of the President, which means that the Governor can be
removed from office at any time without notice and without
assigning any cause. It is also open to the Governor to resign
from office at any time. If the President does not remove him
from office and if the Governor does not resign, the term of the
F Governor will come to an end on the expiry of five years from
the date on which he enters office. Clause (3) is not intended
to be a restriction or limitation upon the power to remove the
Governor at any time, under clause (1) of Article 156. Clause
(3) of Article 156 only indicates the tenure which is subjected
G to the President's pleasure. In contrast, we can refer to Articles
310 and 311 where the doctrine of pleasure is clearly and
indisputably subjected to restriction. Clause (1) of Article 310
provides that a person serving the Union Government holds
office during the pleasure of the President and a person serving
H a state government holds office during the pleasure of the
B.P. SINGHAL v. UNION OF INDIA AND ANR. . 635
[R.V. RAVEENDRAN, J.]
Governor. The 'doctrine of pleasure' is subjected to a restriction A
in Article 310(2) and the restrictions in Article 311 (1) and (2).
The most significant restriction is contained in clause (2) of
Article 311 which provides that no such employee shall be /
dismissed or removed from service except after an inquiry in
which he has been informed of the charges levelled against him B
and given a reasonable opportunity of being heard in respect
of those charges. Clause (1) of Article 310 begins with the
words "Except as expressly provided by the Constitution".
Therefore, Article 310 itself makes it clear that though a person
serves the Union or a State during the pleasure of the c
President/Governor, the power of removal at pleasure is subject
tEJ the other express provisions of the Constitution; and Article
31'1 contains such express provision which places limitations
upon the power of removal at pleasure. By contrast, clause (1)
of Article 156 is not made subject to any other provision of the
0
Constitution nor subjected to any exception. Clause (3)
prescribing a tenure of five years for the office of a Governor,
is made subject to clause (1) which pro·1ides that the Governor
shall hold office during the pleasure of the PreSident. Therefore,
it is not possible to accept the contention that clause (1) of
Article 156 is subjected to an express restriction or limitation E
under Clause (3) of Article 156.
Reports of Commissions
31. The petitioner relied upon the Report of the Sarkaria F
Commission on Centre-State Relations and the Report of the
National Commission to Review the working of the
Constitution in support of his contention that removal of a
Governor should be by an order disclosing reasons, that the
Governor should be given an opportunity to explain his position G
and that the removal should be only for compelling reasons,
thereby stressing the need to provide security of tenure f()r, the
Governors.
32. The Report of the Sarkaria Commission on Centre
. State Relations (Vol.1 Chapter IV) dealt with the role of a H
636 SUPREME COURT REPORTS [2010] 6- S.C,R.
A Governor and made the following recommendations with
regard to his term of office:
"4.7.08 ......... We recommend that the Governors tenure
of office of five years in a State should not be disturbed
except very rarely and that too for some extremely
B
compelling reason. It is indeed very necessary to assure
a measure of security of tenure to the Governor's office."
The reason assigned by the Commission for the said
recommendation was as follows:
c
"Further, the ever-present possibility of the tenure being
terminated before the full term of 5 years, can create
considerable insecurity in the mind of the Go~ernor and
impair his capacity to withstand pressures, resist
D extraneous influences and act impartially in the discharge
of his discretionary functions. Repeated shifting of
Governors from one State to another can lower the
prestige of this office to the detriment of both the Union
and the State concerned. As a few State Governments
have pointed out. Governors should not be shifted or
E transferred from one State to another by the Union as if
they were civil servants. The five year term of Governor's
office prescribed by the Constitution in that case loses
much of its significance."
F The Commission also noted the following suggestions received
in favour of and against the suggestion for providing security
of tenure (para 4.8.01 ):
Suggestions for security of tenure
G Suggestions against security of tenure
(i) A Governor should have a guaranteed tenure so that he
can function impartially. The different procedures suggested for .
Governor's removal, are-
H (a) The same procedure as for a Supreme Court Judge.
B.P. SINGHAL v. UNION OF INDIA AND ANR. 637
[R.V. RAVEENDRAN, J.]
(b) An investigation into the Governor's conduct by a A
parliamentary Committee.
(c) Impeachment by the State Legislature.
(d) Inquiry by the Supreme Court.
B
(e) Written request from the Chief Minister, followed by a
resolution of the Legislative Assembly.
(f) Recommendation of the Inter-State Council.
(ii) Tenures should not be guaranteed to a Governor C
because-
(a) the nature of his duties and functions and the manner
of their performance are fundamentally different from those of
a Judge. The former has a multi-faceted role and his duties are D
mainly non-judicial, while those of a Judge are entirely judicial
to be discharged in his own independent judgment; '
(b) it will be difficult to remove a Govemor who is not of
the requisite ability and impartiality, or who is not able to function E
smoothly with the Chief Minister or who does not function in
coordination with the Union.
The Commission after considering the matter 'in detail, made
the following recommendations regarding security of tenure:
F
"4.8.07. While it is not advisable to give the same security
of tenure to a Governor as has been assured to a Judge
of the Supreme Court, some safeguard has to be devised
against arbitrary withdrawal of President's pleasure, putting
a premature end to the Governor's tenure. The intention G
of the Constitution makers in prescribing a five-year term
for this office appears to be that the President's pleasure
on which the Governor's tenure is dependent, will not be
withdrawn without cause shown. Any other inference would
render clause (3) of Article 156 largely otiose. It will be but .H
638 SUPREME COURT.REPORTS [2010] 6 S.C.R.
A fair that the Governor's removal is based on procedure
which affords him an opportunity of explaining his conduct
in question and ensures fair consideration of his
explanation, if any.
4.8.08. Save where the President is satisfied that, in the
B
interest of the security of the State, is it not expedient to
do so, as a matter of healthy practice, whene_ver it is
proposed to terminate the tenure of a Governor before the
expiry of the normal terms of five years, he should be
informally apprised of the grounds of the proposed action
c and afforded a reasonable opportunity for showing cause
against it. It is desirable that the President (which, in effect,
means the Union Council of Ministers) should get the
explanation, if any, submitted by the Governor against his
proposed removal from office, examined by an Advisory
D Group consisting of the Vice-President of India and the
Speaker of the Lok Sabha or a retired Chief Justice of
India. After receiving the recommendations of this Group,
the President may pass such orders in the case as he may
deem fit.
E
4.8.09. We recommend that when a Governor, before the
expiry of the normal term of five years, resigns or is
appointed Governor in another State, or his tenure is
terminated, the Union Government may lay a statement
F before both Houses of Parliament explaining the
circumstances leading to the ending of his tenure. Where
a Governor has been given an opportunity to show cause
against the premature termination of his tenure, the
statement may also include the explanation given by him
in reply. This procedure would strengthen the control of
G
Parliament and the Union Executive's accountability to it."
The Inter State Council accepted the said recommendation of
the Sarkaria Commission. It is stated that the matter is
thereafter pending consideration before the Central
H Government.
B.P. SINGHAL v. UNION OF INDIA AND ANR. 639
[R.V. RAVEENDRAN, J.]
33. Reference was next made to a Consultation Paper on A
"Institution of Governor under the Constitution" published by the
National Commission to Review the Working of the
Constitution, to elicit public opinion and generate public debate.
The recommendations proposed were as under :
B
"Accordingly, we recommend that Articles 155 and 156 of
the Constitution be amended to provide for the following:
(a) the appointment of the Governor should be
entrusted to a committee comprising the Prime
Minister of India, Union Minister for Home affairs, C
the Speaker of the Lok Sabha and the Chief
Minister of the concerned State. (Of course, the
composition of the committee is a matter of detail
which can always be settled once the principal idea
is accepted; D
(b) the term of office, viz., five years, should be made
a fixed tenure;
(c) the provision that the Governor holds office '.'during
the pleasure of the President' be deleted: E
(d) provision be made for the impeachment of the
Governor by the State Legislature or',th,e,same lines
as the impeachment of the1 Presideht by the
Parliament. (The procedure for impeachment of the F
President is set out in Article 61). Of course, where
there is no Upper House of Legislature in any State,
appropriate changes may have to be made in the
proposed Article since Article 61 is premised upon
the existence of two Houses of Parliament." G
We extract below the relevant portions of the recommendations
made by the National Commission (different from what was
, prefp_o$edk.after considering the responses received:
"8.14.2 After carefully considering the public responses and H
640 SUPREME COURT REPORTS · [2010] 6 S.C.R.
A after full deliberations, the Commission does not agree to
dilute the powers of the President in the matter of selection
and appointment of Governors. However, the Commission
feels that the Governor of a State should be appointed by
the President, after consultation with the Chief Minister of
B that State. Normally the five year term should be adhered
to and removal or transfer of the Governor should be by
following a similar procedure as for appointment i.e. after
consultation with the Chief Minister of the concerned State.
8.14.3 The Commission recommends that in the matter of
c selection of a Governor, the following maters mentioned
in para 4.16.01 of Volume I of the Sarkaria Commission
Report should be kept in mind:
He should be eminent in some walk of life.
D
He should be a person from outside the State.
He should be a detached figure and not too
intimately connected with the local politics of the
State.
E
He should be a person who has not taken too great
a part in politics generally, and particularly in the
recent past.
F 34. These recommendations howsoever logical, or
deserving consideration and acceptance, remain
recommendations. They cannot override the express provisions
of the Constitution as they stand. Nor can they assist in
interpreting Article 156. The very fact that such
recommendations are made, shows that the position under the
G existing Constitutional provisions is otherwise. They are
suggestions to be considered by those who can amend the
Constitution. They do not assist in interpreting the existing
provisions of the Constitution.
H
B.P. SINGHAL v. UNION OF INDIA AND ANR. .641
[R.V. RAVEENDRAN, J.]
/ Constituent Assembly Debates A
35. Both sides relied upon the Constituent Assembly
Debates to support their respective interpretation of Article
156(1 ). The petitioners contended that the founuing fathers
proceeded on the assumption that the removal will only be on
8
the ground of bribery and corruption, violation of the
Constitution, or any other legitimate ground attributable to an
act or omission on the part of the Governor; The respondents
point out that security of tenure and other alternatives were
considered and consciously rejected to opt for Governors C
holding office during the pleasure of the President.
36. The Constitutional Assembly debates shows that Mr.
K.T. Shah had proposed an amendment that "the Governor shall
hold office for a term of five years from the date on which he
enters upon his office, and shall during that term be irremovable D
from his office." He moved another amendment for addition of
a clause that a Governor may be removed from office by reason
of physical or mental incapacity duly certified, or if found guilty
of bribery or corruption. He stated :
E
"This is, as I conceive it, different fundamentally from the
appointment during the pleasure of the President. The
House, I am aware, has just passed a proposition by which
the Governor is to be appointed by the President and it
would be now impossible for any one to question that
proposition. I would like, however to point out, that having F
regard to the appointment as against the elective principle,
we must not leave the Governor to be entirely at the mercy
or the pleasure of the President. We should see to it, at
ariy rate that if he is to be a constitutional head of the.
province, if he is to be acting in accordance with the advice G
of his ministers, if we desire to remove any objection that
might possibly be there to the principle of nomination, we
should see to it that at least while he is acting correctly, in
accordance with the Constitution following the advice of his
ministers, he should not be at the mercy of the President H
642 SUPREME COURT REPORTS [2010] 6 S.C.R.
A who is away from the Province and who is a national and
not a local authority. This is all the more important pending
the evolution of a convention, such as was suggested by
one of the previous speakers, that the appointment, even
if agreed to, should be on the advice of the local Ministry.
B I do not know if such a convention can grow up in India,
but even if it grows up, and particularly if it grows up, it
would be of the utmost importance that no non-provincial
authority from the Centre should have the power to say that
the Governor should be removable by that authority; So
c long as he acts in accordance with the advice of the
constitutional advisers of the province, he should I think be
irremovable during his term of office, that is, five years
according to this article.
There is of course a certain provision with regard to
D resignation voluntarily or other contingencies occurring
whereby the Governor may be removed. But, subject to
that, and therefore to the entire Constitution, the period
should be the whole period and not at the pleasure of the
President."
E
Prof. Shibban Lal Saksena also objected to the proposed
Article (in the present form). He said :
"Just now we have accepted a provision whereby the
Governor shall be nominated by the President. Already we
F feel that there democracy has been abandoned. f:>Jow, Sir,
comes this provision whereby the Governor shall hold
office only at the pleasure of the President. Even in the
case of the Supreme Court, we have provided that once
the Judges of the Supreme Court has been appointed, they
G will be removable only after an address presented by both
the Houses of Parliament, and by two-thirds majority of the
members present and voting. In the case of the Governor,
you want to make a different provision. It seems to me, Sir,
to be an extraordinary procedure and it completely takes
H away the independence of the Governor. He will be purely
.B.P. SINGHAL v. UNION OF INDIA AND ANR. 643
[R.V. RAVEENDRAN, J.]
a creature of the President, that is to say, the Prime Minister A
and the party in power at the Centre. When once a
Governor has been appointed, I do not see why he should
not continue in office for his full term of five years and why
you should make him removable by the President at his
whim. It only means that he must look to the President for B
continuing in offic~ and so continue to be subservient to
him. He cannot be independent. He will then have no
respect. Sir, Dr. Ambedkar has not given any reasons why
he has made this change. Of course, the election of the
Governors has been done away with, but why makes him c
removable by the President at his pleasure? The original
article says: "A governor may, for violation of the
Constitution, be removed from office by impeachment
........ It means that a Governor can only be removed by
impeachment by both the Houses. Now, he will be there b
only at the pleasure of the President. Such a Governor will -
have no independence and my point is that the Centre
might try to do some mischief through that man. Even if he
is nominated, he can at least be independent if after he is
appointed he is irremovable. Now, by making him continue E
in office at the pleasure of the President, you are taking
away his independence altogether. This is a serious
1
deviation and I hope the House will consider it very
carefully. Unless he is able to give strong reasons for
making this change, I hope Dr. Ambedkar will withdraw his
amendment." F
Sri Lokanath Misra expressed a slightly different point of view:
"Mr. President, Sir, after having made the decision that
Governors shall be appointed by the President, it naturally G
follows that the connected provisions in the Draft
Constitution should accordingly be amended, and in that
view, I accept the amendment that has now been moved
by Dr. Ambedkar. That amendment suggests that the
Governor shall be removable as the President pleases, that H
644 SUPREME COURT REPORTS [2010] 6 S.C.R.
A is, a Governor shall hold office during the pleasure of the
President and that whenever he incurs the displeasure of
the President, he will be out. When the President has
appointed a man, in the fitness of things the President must
have the right to remove him when he is displeased, but
B to remove the evil that has now crept in by doing away with
election for the office of the Governor, it would have been
much better if the State legislature too had been given the
power to impeach him not only for violation of the
Constitution but also for misbehaviour. I use the word
c 'misbehaviour' deliberately because, when a Governor
who is not necessarily a man of that province is appointed
to his office, it is but natural that the people of the province
should have at least the power to watch him, to criticize
him, through their chosen representatives. If that right had
been given, in other words, if the provision for the
D
impeachment of the Governors by the State legislatures
had been there, it would have been a safeguard against
improper appointment of Governor by the President. One
of the main objections to the appointment of the Governor
by the President has been that he will be a man who has
E
no roots in the province and no stake, that he will be a man
who will have no connection with the people, that he will
be a man beyond their reach and therefore can go on
merrily so long as he pleases the President, the Prime
Minister of the Union and the Premier of the Province. But
F they are not all. It would have been much better if the
Governor's removal had been made dependent not only
on the displeasure of the President but on the displeasure
of the State legislature also which represents the people
and that would have been a safeguard against the evil that
G has been caused by the provision for the appointment of
Governor by the President."
Dr. B.R. Ambedkar replied thus:
"Sir, the position is this: this power of removal is given to
H
B.P. SINGHAL v. UNION OF INDIA AND ANR. 645
[R.V. RAVEENDRAN, J.]
the President in general terms. What Professor Shah wants A
is that certain grounds should be stated in the Constitution
itself for the removal of the Governor. It seems to me that
when you have given the general power, you also give the
power to the President to remove a Governor for
corruption, for bribery, for violation of the Constitution or B
for any other reason which the President no doubt feels is
legitimate ground for the removal of the Governor. It seems,
therefore, quite unnecessary to burden the Constitution with
all these limitations stated in express terms when it is
perfectly possible for the President to act upon the very c
same ground under the formula that the Governor shall hold
office ,during his pleasure. I, therefore, think that it is
unnecessary fo categorize the conditions under which the
President may undertake the removal of the Governor."
37. Thereafter the Article in the present form was adopted, D
· rejecting the suggestions/amendments proposed by Mr. K.T.
Shah, Prof. Shibban Lal Saksena and Mr. Lokanath Mishra. The
debates show that several alternatives were considered and
ultimately the Article in its present form was adopted. The
debates however disclose the following: . E
(i) The intention of the founding fathers was to adopt
the route of Doctrine of Pleasure, instead of
impeachment or enquiry, with regard to removal of
Governors. F
(ii) It was assumed that withdrawal of pleasure
resulting in removal of the Governor will be on valid
grounds but there was no need to enumerate them
in the Article.
G
38. In Constitutional Law of India (4th Ed.,Vol.2, page
2066) H.M. Seervai refers to the scope of Article 156(1) thus:
"A difficulty, however, arises from the fact that the Governor
holds office during the pleasure of the President and can H
646 SUPREME COURT REPORTS [2010) 6 S.C.R.
A be removed by him. As the President acts on the advice
of his ministry, it may be contended that if the Governor
takes action contrary to the policy of the Union Ministry he
would risk being removed from his post as Governor, and,
therefore, he is likely to follow the advice of the Union Govt.
B Whilst not denying the force of this contention, it is
submitted that Article 156(1) has a very different purpose.
It is submitted that a responsible Union Ministry would not
advise, and would not be justified in advising the removal
of a Governor because in the honest discharge of his duty,
c the Governor takes action which does not fall in line with
the policy of the Union Ministry. To hold otherwise would
mean that the Union executive would effectively cor.trol the
State executive which is opposed to the basic scheme of
our federal Constitution. Article 156(1) is designed to
secure that if the Governor is pursuing courses which are
D
detrimental to the State or to India, the President can
remove the Governor from his office and appoint another
Governor. This power takes the place of an impeachment
which clearly is a power to be exercised in rare and
exceptional circumstances."
39. The provision for removal at the pleasure of an
authority without any restriction, as noticed above, applies to
Ministers as also the Attorney General apart from Governors.
Persons of calibre, experience, and distinction are chosen to
F fill these posts. Such persons are chosen not to enable them
to earn their livelihood but to seNe the society. It is wrong to
assume that such persons having been chos8n on account of
their stature, maturity and experience will be demoralized or be
in constant fear of removal, unless there is security of tenure.
G They know when they accept these offices that they will be
holding the office during the pleasure of the President.
Need for reasons
40. The petitioner contends that the removal of a Governor
H can only be for compelling reasons which is something to do
B.P. SINGHAL v. UNION OF INDIA AND ANR. 647
[R.V. RAVEENDRAN, J.]
with his capacity to function as a Governor. According tc;i the A
1
petitioner, physical or mental disability, acts of corruptio n or
moral turpitude or behaviour unbecoming of a Governor like
being involved in active politics, or indulging in. subversive
activities are valid reasons for removal. In other words, it is
contended that there should be some fault or draw back in the B.
Governor or in his actions before he could be removed from
office. On the other hand, it is contended by the respondents
that removal need not only be for the reasons mentioned by the
petitioner but can also be on two otfier grounds, namely, loss
of confidence in the Governor or the Governor being out of sync C
with the policies and ideologies of the Union Government.
There is thus a consensus to the extent that a Governor can be
removed only for a valid reason, and that physical and mental
incapacity, corruptiof! and behaviour unbecoming of a Governor
are valid grounds for removal. Ther~;fs however disagreement
0
as to what else can be grounds for removal. We are of the view
that there can be other grounds also. , It is not possible to put
the reasons under any specific heads. The only limitation on the
~xercise 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. E
41. We have however already rejected the contention that
the Governor should be-iri sync with the ideologies of the Union
Government. Therefore, a Governor cannot be removed on the
ground that he is not sync or refuses to act as an agent of the F
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 G
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 betweeri the Prime Minister and a Minister is
purely political. Though· the Attorney General holds a public H
648 SUPREME COURT REPORTS [2010] 6 S.C.R.
A 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.
B
(v) Judicial review of withdrawal of President's pleasure
42. 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
C 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
D 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
E 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.
F
43. The traditional English view was that prerogative
powers of the Crown conferred unfettered discretion which
could not be questioned in courts. Lord Ruskill attempted to
enumerate such prerogative powers in Council of Civil Service
G Unions v. Minister for the Civil Service - 1985 AC 374 :
"Prerogative powers such as those relating to the making
of treaties, the defence of the realm, the prerogative of
mercy, the grant of honours, the dissolution of Parliament
H and the appointment of ministers as well as others are not,
B.P. SINGHAL v. UNION OF INDIA AND ANR. 649
[R.V. RAVEENDRAN, J.]
I think susceptible to judicial review because their nature A
and subject matter are such as not to be amenable to the
judicial process. The courts are not the pla'ce wherein to
determine whether a treaty should be concluded or the
armed forces disposed in a particular manner or
Parliament dissolved on one date rather than another." B
However, the contemporary English view is that in principle even
such 'political questions' and exercise of prerogative power will
be subject to judicial review on principles of legality, rationality
or procedural impropriety. (See decision of House of Lords in C
: R (Bancoult) vs. Foreign Secretary - 2009 (1) AC 453). In
fact, De Smith's Judicial Review (6th Ed. 2007 Page 15) states
"Judicial review has developed to the point where it is
possible to say that no power - whether statutory or under D
the prerogative - is any longer inherently unreviewable.
Courts are charged with the responsibility of adjudicating
upon the manner of the exercise of public power, its scop~
and its "substance. As we shall see, even when
discretionary powers are engaged, they are not immune E
from judicial review."
44. In State of Rajasthan v. Union of ln'Q[a 1977 (3) SCC
592 , this Court (Bhagwati J., as he then was), held:
"But merely because a question has a political complexion F
that by itself is no ground why the Court should shrink from .
performing its duty under the Constitution if it raises an
issue of constitutional determination ..... the Court cannot
fold its hands in despair and declare 'Judicial hands off.
So long as a question arises whether an authority under G
the Constitution has acted within the limits of its power
or exceeded it, it can certainly be decided by the court.
Indeed it would be its constitutional obligation to do so .
. .. This Court is the ultimate interpreter of the Constitution
H
650 SUPREME COURT REPORTS [2010) 6 S.C.R.
A and to this Court.is assigned the delicate task of
determining what is the power conferred on each branch
of Government, whether it is limited, and if so, what are
the limits and whether any action of that branch
transgresses such limits. It is for this Court to uphold the
B constitutional values and to enforce the constitutional
limitations. That is the essence of the rule of law. . ..
Where there is manifestly unauthorizeq exercise of power
under the Constitution, it is the duty of the Court to
intervene. Let it not be forgotten, that to this Court as much
c as to other branches of Government, is committed the
conservation and furtherance of democratic values. The
Court's task is to identify those values in the constitutional
plan and to work them into life in the cases that reach the
Court. ... The Court cannot and.should not shirk this
responsibility .... "
D
In the said decision, Chandrachud, J. (as he then was)
observed thus :
"They may not choose to disclose ·them but if they do so,
E as they have done now, they cannot prevent a judicial
scrutiny thereof for the limited purpose of seeing whether
the reasons bear any rational nexus with the action
proposed. I am inclined to the opinion that the Government
cannot claim the credit at the people's bar for fairness in
F disclosing the reasons for the proposed action and at the
same time deny to this Court the limited power of finding
whether the reasons bear the necessary nexus or are
wholly extraneous to the proposed action. The argument
that "if the Minister need not give reasons, what does it
matter if he gives bad ones" overlooks that bad reasons
G
can destroy a possible nexus and may vitiate the order on
the ground of mala fides."
In Kihota Hollohon v. Zachilhu 1992 [Supp. (2) SCC 651] this
Court held:
H
B.P. SINGHAL v. UNION OF INDIA AND ANR. 651
[R.V. RAVEENDRAN, J.]
"The principle that is applied by the courts is that in spite A
of a finality clause it is open to the court to examine whether
the action of the authority under challenge is ultra vires the
powers conferred on the said authority. Such an action can
be ultra vires for the reason that it is in contravention of a
rTiandatory provision of the law conferring on the authority B
the power to take such an action. It will also be ultra vires
the powers conferred on the authority if it is vitiated by mala
fides or is colorable exercise of power based on
extraneous and irrelevant considerations."
45. In R. C. Poudyal v. Union of India [1994 Supp (1) SCC C
324]; in the context of Article 371-F, it was contended on behalf
of Union of India that the terms and conditions of the admission
of a new territory into the Union are eminently political questions
which the Court should decline to decide as these questions
lack adjudicative disposition. A Constitution Bench of this Court q
referred to various decisions of the American Supreme Court
including Baker v. Carr, 369 US 186 and Powell v.
McCormack, 395 US 486 where the question whether the
'political thickets' docrine was a restraint on judicial power, was
considered, and held that certain controversies previously E
immune from adjudication, were justJciable, apart from
narrowing the operation of the doctrine in other areas. This
Court held : '
"The power to admit new States into the Union under F
Article 2 is, no doubt, in the very nature of the power, very
wide and its exercise necessarily guided by political issues
of considerable complexity many of which may not be
judicial manageable. But for that reason, it cannot be
predicated that Article 2 confers on the Parliament an G
unreviewable and unfettered power immune from judicial
scrutiny. The power is limited by the fundamentals of the
Indian constitutionalism and those terms and conditions
which the Parliament may deem fit to impose, cannot be
inconsistent and irreconcilable with the foundational
H
652 SUPREME COURT REPORTS [2010] 6 S.C.R.
A principles of the Constitution and cannot violate or subvert
the constitutional scheme."
(emphasis supplied]
46. This Court has examined in several cases, the scope
B of judicial review with reference to another prerogative power
- power of the President/Governor to grant pardon etc., and to
suspend, remit or commute sentences. The view of this Court
is that the power to pardon is a part of the constitutional
scheme, and not an act of grace as in England. It is a
C 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 ma/a fide. While the President or the Governor
D 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
E 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
F 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
G [vide Maru Ram v. Union of India [1981 (1) SCC 107], Kehar
Singh v. Union of India [1989 (1) SCC 204] etc.]. In Epuru
Sudhakar v. Government of Andhra Pradesh [2006 (8) SCC
161], one of us (Kapadia J.) balanced the exercise of
prerogative power and judicial review of such exercise thus:
H "The controlling factor in determining whether the exercise
B.P. SINGHAL v. UNION OF INDIA AND ANR. 653
[R.V. RAVEENDRAN, J.]
of prerogative power is subject to judicial review is not its A
source but its subject matter. It can no longer be said that
prerogative power is ipso facto immune from judicial
review ....... Rule of Law is the basis for evaluation of all
decisions. The supreme quality of the Rule of Law is
fairness <lnd legal certainty. The principle of legality B
occupies a central plan in the Rule of Law·. Every
prerogative has to be the subject to the Rule of Law. That
rule cannot be compromised on the grounds of political
expediency. To go by such considerations would be
subversive of the fundamental principles of the Rule of Law c
and it would amount to setting a dangerous precedent. The
Rule of Law principle comprises a requirement of
"Government according to law''. The ethos of "Government
according to law" requires the prerogative to be exercised
in a manner which is consistent with the basic principle of
0
fairness and certainty."
47t. Exercise of power under Article 156(1) being an
executive power exercised on the advice tendered by the
Council of Ministers, the question is whether the bar contained
in clause (2) of Article 74 will apply. The said clause provides E
that the question whether any, and if so what, advice was
tendered, shall not be enquired into by any court. This clause
has been the subject- matter of a nine-Judge Bench decision
in S.R. Bommai v. Union of India [1994 (3) SCC 1]. This Court
has held that Article 74(2) merely bars an inquiry into the F
question whether any, and if so what, advice was tendered by
the Council of Ministers to the President but does not bar the
scrutiny of the material on the basis of which the President has
made the order. This Court also held that while an order issued
in the name of the President could not be challenged on the G
ground that it was contrary to the advice tendered by the Council
of Ministers or was issued without obtaining the advice from
the Ministers, it does not bar the court from calling upon the
Union of India to disclose to the court the material on which the
President has formed the requisite satisfaction. The bar H
654 SUPREME COURT REPORTS (2010] 6 S.C.R
A contained in Article 74(2) will not come in the way of the court
inquiring whether there was any material on the basis of which
such advice was given, whether such material was relevant for
such advice and whether the material was such that a
reasonable man could have come to the conclusion which was
B under challenge. Therefore, though the sufficiency of the
material could not be questioned, legitimacy of the inference
drawn from such material was open to judicial review.
48. The extent and depth of judicial review will depend upon
C and vary with reference to the matter under review. As observed
by Lord Steyn in Ex parte Daly (2001 (3) All ER 433], in law,
context is everything, and intensity of review will depend on the
subject-matter of review. For example, judicial review is
permissible in regard to administrative action, legislations and
constitutional amendments. But the extent or scope of judicial
D review for one will be different from the scope of judicial review
for other. Mala tides may be a ground for judicial review of
administrative action but is not a ground for judicial review of
legislations or constitutional amendments. For withdrawal of
pleasure in the case of a Minister or an Attorney General, loss
E of confidence may be a relevant ground. The ideology of the
Minister or Attorney Gerleral being out of sync with the policies
or ideologies of the Government may also be a ground. On the
other hand, for withdrawal of pleasure in the case of a Governor,
loss of confidence or the Governor's views being out of sync
F with that the Union Government will not be grounds for
withdrawal of the pleasure. The reasons for withdrawal are
wider in the case of Ministers and Attorney-General, when
compared to Governors. As a result, the judicial review of
withdrawal of pleasure, is limited in the case of a Governor
G whereas virtually nil in the case of a Minister or an Attorney
General.
49. 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
H of the Council of Ministers. Therefore, even though under Article
B.P. SINGHAL v. UNION OF INDIA AND ANR. 655
[R.V. RAVEENDRAN, J.]
156(1) the removal is at the pleasure of .the President, the A
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 s
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. c
Consequently, where the aggrieved person is not able to
establish a prima facie instance of arbitrariness or malafides,
in his removal, the court will refuse to interfere. However, where
a prima facie case of arbitrariness or malafides is made out,
the Court can require the Union Government to produce
0
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 E
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.
50. We summarise our conclusions as under : F
(i) Under Article 156(1 ), the Governor holds office during
the pleasure of the .President. Therefore, the President can
remove the Governor from office at any time without
assigning any reason and without giving any opportunity
to show cause. G
(ii) Though no reason need be assigned for discontinual')_Ce
of the pleasure resulting in removal, the power under .
Article 156(1) cannot be exercised in an arbitrary,
capricious or unreasonable manner. The power will have
to be exercised in rare and exceptional circumstances for H
656 SUPREME COURT REPORTS [2010] 6 S.C.R.
A valid and compelling reasons. The compelling reasons are
not restricted to those enumerated by the petitioner (that
is physical/mental disability, corruption and behaviour
unbecoming of a Governor) but are of a wider amplitude.
What would be compelling reasons would depend upon the
8 facts and circumstances of each case.
(iii) A Governor cannot be removed on the ground that he
is out of sync with the policies and ideologies of the Union
Government or the party in power at the Centre. Nor can
he be removed on the ground that the Union Government
c has lost confidence in him. It follows therefore that change
in government at Centre is not a ground for removal of
Governors holding office to make way for others favoured
by the new government.
(iv) As there is no need to assign reasons, any removal
0
as a consequence of withdrawal of the pleasure :will be
assumed to be valid and will be open to only a limited
judicial review. If the aggrieved person is able to
demonstrate prima facie that his removal was either
arbitrary, malafide, capricious or whimsical, the court will
E call upon the Union Government to disclose to the court,
the material upon which the President had taken the
decision to withdraw the pleasure. If the Union Government
does not disclose any reason, or if the reasons disclosed
are found to be irrelevant, arbitrary, whimsical, or malafide,
F the court will interfere. However, the court will not interfere
merely on the ground that a diffe~ent view is possible or
that the material or reasons are insufficient.
51. The writ peiition is disposed of accordingly.
G TP (C) No.663 of 2004
52. In view of our decision in WP(C) No.296 of 2004, this
Transfer Petition is dismissed.
8.8.8. Petitions disposed of.
H
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