Monday, June 23, 2014

Spring cleaning in the Raj Bhavans: deja vu with a sense of new

Guest Post by  Sujoy Chatterjee

The media has recently been abuzz with speculation regarding the fate of incumbent Governors who were either former party members of the Indian National Congress (INC) or perceived to be close to the INC (See here). Change in political guard at the Centre manifesting itself through the previous regime’s appointee-Governors’ tenures being cut short is not without precedent in India (See here). While political discussions on this issue will revolve around how the latest developments surrounding Governors is a classic case of the Bharatiya Janata Party (BJP) giving the INC a dose of its own bitter medicine, the history of 2004 has not repeated itself (at least not yet) in quite the same manner in 2014.

Rather than risking the humiliation of being removed from office before the expiry of their tenure (an ignominy which the erstwhile Governors of Uttar Pradesh, Gujarat, Haryana and Goa were subjected to on July 2, 2004), B.L. Joshi and Shekhar Dutt have pre-empted any such move by resigning (be it voluntarily or after indications to this effect from the Union Government) from the offices of Governor of Uttar Pradesh and Chhattisgarh respectively (Seehere).

Legal Precedent

Interestingly, these resignations were tendered in spite of the Governor’s tenure being secured to a certain extent by a Constitutional Bench decision of the Supreme Court (SC) in B.P. Singhal v. Union of India(2010). This judgment, the result of a public interest litigation filed against the removal of the Governors of Uttar Pradesh, Gujarat, Haryana and Goa in 2004 by the INC-led United Progressive Alliance (UPA) government, unanimously held that Governors could not be removed from office “in an arbitrary, capricious or unreasonable manner”. Speaking through Raveendran, J., the SC categorically described what would not be a valid reason for removing a Governor from office in the following words: 

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 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.”

Therefore, B.P. Singhal unambiguously precludes the BJP from using its decisive mandate in the 2014 General Elections as a valid ground for removing Governors from office.However, the SC did recognize that there are reasons based on which a Governor could validly be removed from office. B.P. Singhal enumerates some of these reasons as (i) physical/mental disability, (ii) corruption and (iii) behavior unbecoming of a Governor, while at the same time emphasizing that there could be other valid reasons as well. Rather than attempting to provide an exhaustive list of grounds on which a Governor could be removed, the SC left the issue open with the following words:

It is not possible to put the reasons under any specific heads. The only limitation on the exercise of the power is that it should be for valid reasons. What constitute valid reasons would depend upon the facts and circumstances of each case.

Political Calculations

The applicability of B.P. Singhal to the current controversy has been somewhat blunted by Joshi and Dutt’s forthright resignations. However, questions remain as to why they chose to resign. The possible thought-process behind these resignations, although overlapping in many respects, may be broadly classified into the following speculative heads:

(i)                 There was an apprehension that the Union Government would order the removal of these incumbent Governors from office unless they resigned. This apprehension could have stemmed from:

(a)                Some of the actions of the concerned Governors being interpreted by the Union Government as falling within the ambit of the three valid reasons enumerated in B.P. Singhal for removing a Governor from office;

(b)               Some of the actions of the concerned Governors falling foul of the un-enumerated yardstick which was created in B.P. Singhal for removing a Governor from office; and/or

(c)                While there were no valid grounds to remove the incumbents from office, but the Union Government would defy the principles laid down in B.P. Singhal and remove them from office as an act of political vendetta.

(ii)               The Union Government had not kept the option of forceful removal of Governors on the table, but the incumbents holding these offices felt:

(a)                The sanctity of the Governor’s office would be preserved by pre-empting a political controversy and unnecessary mudslinging; and/or

(b)               The circumstances provided the incumbents an opportunity to play the ‘victim’ card and indulge in some grandstanding.

BJP leader Sushil Kumar Modi’s comments about partisan activities being indulged in by the Governor of Bihar D.Y. Patil indicate that clauses (a) and (b) of point (i) above may have a bearing on the present controversy (See here).Similar allegations of taking politically motivated decisions may be levelled against H.R. Bharadwaj and Kamla Beniwal (the Governors of Karnataka and Gujarat respectively) as well. However, the proverbial dagger of Damocles hanging over Governor of Kerala Sheila Dikshit’s head seems to suggest that point (ii)mentioned above was the more likely consideration. Dikshit is reported to have been given a choice of either resigning on her own or be downgraded to the Raj Bhawan of ‘a smaller State’ (See here).

The corruption voodoo

The allegations of corruption against Dikshit with regard to the Commonwealth Games or the Delhi Jal Board irregularities may or may not have a bearing on her tenure as Governor, depending on which of the following schools of thought one subscribes to:

(i)                 B.P. Singhal only refers to corruption or unbecoming activities indulged in by a Governor while in office, and does not cover within its ambit actions taken by a person before he or she assumed the office of Governor;[1] or

(ii)               Dikshit’s initial appointment as Governor is itself tainted with mala fides, i.e., the intention was to shield her from any investigation or Court proceedings, and therefore she cannot be allowed to continue in office.[2]

Also in the fray is the investigation into the AgustaWestland chopper deal, where M.K. Narayanan and B.V. Wanchoo (Governors of West Bengal and Goa respectively) have so far not been interrogated because of the Constitutional posts occupied by them (See here). Narayanan and Wanchoo’s case may be slightly different from Dikshit’s though –they are at present only witnesses in the ongoing investigations and further it will be difficult to establish how irregularities in the AgustaWestland chopper deal, which came into the public domain only in 2013,had a role to play in their appointments as Governors in 2010 and 2012 respectively.


The long list of UPA’s ostensibly political appointee-Governors (See here) will ensure that there are many more developments surrounding the Governor’s office in the coming days. Curiously, while the BJP has unambiguously stated its desire for such Governors to vacate their offices, the Prime Minister whose election campaign was based on a social media-blitzkrieg has chosen to remain silent on this issue. Union Home Minister Rajnath Singh’s ambivalent comments have only added to the speculation and left everyone second-guessing about what the Union Government has in store for these Governors (See here). However, for those of us fence-sitters who relish the idea of a politico-legal showdown, the posturing over this issue is an encouraging sign that the Union Government intends to keep the Prime Minister’s promise of “acche din aagaye”, albeit in a very different context.

[1] By not keeping forceful demission from office as an option for Dikshit, the Union Government seems to be indicating that it subscribes to this understanding. It also gives a sense that the Union Government is not inclined towards taking the drastic step of removing Governors from office.
[2] This may very well be one of the un-enumerated grounds of B.P. Singhal for removing a Governor from office.
 [The author is an advocate based out of New Delhi.  This is his second guest post for our blog. The first one can be read here)
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