Reportable  

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO.296 OF 2004

B.P. Singhal       ……. Petitioner

Versus

Union of India & Anr.      …… Respondents

WITH

TP (Civil) No.663 of 2004

J U D G M E N T

R. V. RAVEENDRAN J.

This writ petition under Article 32 of the Constitution of India, raising  

a question of public importance involving the interpretation of Article 156 of  

the Constitution, has been referred to the Constitution Bench, by a two Judge  

Bench of this Court on 24.1.2005.

2. The writ petition is filed as a public interest litigation in the wake of  

the  removal  of  the  Governors  of  the  States  of  Uttar  Pradesh,  Gujarat,  

Haryana and Goa on 2.7.2004 by the President of India on the advice of the  

Union Council  of Ministers. The petitioner sought : (a) a direction to the  

Union of India to produce the entire files, documents and facts which formed  

the basis of the  order dated 2.7.2004 of the President of India; (b) a writ of  

certiorari,  quashing the removal of the four Governors;  and (c) a writ  of  

mandamus to respondents to allow the said four Governors to complete their  

remaining term of five years.

The relevant constitutional provisions

3.     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, by warrant under his hand and seal. Article 156  

relates to term 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  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:

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Provided that a Governor shall, notwithstanding the expiration of his term,  continue to hold office until his successor enters upon his office.”

(emphasis supplied)

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  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  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  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 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  

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demonstrate misbehaviour,  impropriety or incapacity.  In other words, that  removal should be only on existence of 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 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.  

(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 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  independence  and  effective  functioning  of  

Governors, certain safeguards will have to be read as limitations upon the  

power of removal of Governors under Article 156(1) having regard to the  

basic  structure  of  the  Constitution.  He  clarified  that  the  petitioner’s  

submission is not that a Governor has a fixed irremovable tenure of five  

years,  but  that  there  should  be  some  certainty  of  tenure  so  that  he  can  

discharge the duties and functions of his constitutional office effectively and  

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independently.  Certainty of tenure will be achieved by fixing the norms for  

removal. On the other hand, recognizing an unfettered discretion will subject  

a Governor to a constant threat of removal and make him subservient to the  

Union Government, apart  from demoralizing him. Therefore, the removal  

should conform to the following constitutional norms :   

Norm 1 – Removal of Governor to be in rare and exceptional circumstances,   

for  compelling reasons which make him unfit  to continue in office:   The  

tenure of a Governor is five years under clause (3) of Article 156. But clause  

(3) is subject to clause (1) of Article 156 which provides that a Governor  

holds office during the pleasure of the President. This only means that he  

could  be  removed  any  time  during  the  said  period  of  five  years,  for  

compelling  reasons  which  are  germane  to,  and having  a  nexus  with,  the  

nature of his office and functions performed by him, as for example,  (a)  

physical or mental disability; (b) corruption; (c) violation of Constitution;  

and (d) misbehaviour or behaviour unbecoming of a Governor rendering him  

unfit  to  hold the  office  (that  is  indulging in  active  politics   or  regularly  

addressing political rallies, or  having links with anti-national or subversive  

elements, etc.). The removal of a Governor under Article 156 cannot be with  

reference to the ideology or personal preferences of the Governor. Nor can  

such removal be with any ulterior motives, as for example, to make place for  

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another  person  who  is  perceived  to  be  more  amenable  to  the  central  

government’s wishes and directions, or to make room for a politician who  

could not be accommodated or continued in the Council of Ministers.  

Norm 2  –  A Governor  should  be  apprised  of  the  reasons  for  removal  :  

Though there  is  no  need for  a  formal  show cause  notice  or  an  enquiry,  

principles of fair play requires that when a high constitutional functionary  

like the Governor is sought to be removed, he should be apprised of the  

reasons therefor.  

Norm 3 – The order of removal is subject to judicial review:  In a democracy  

based on Rule of Law, no authority has any unfettered and unreviewable  

discretion.  All  powers  vested in all  public  authorities,  are intended to be  

used only for public good. Therefore, any order of premature removal of a  

Governor will be open to judicial review.

Submissions of respondents  

6. The  respondents  in  their  counter  affidavit  have  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  

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Constitution does not place any restrictions or limitations upon 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 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 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 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 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  

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Governor.  He shifted from the stand in the counter that the power under  

Article 156(1) is an unfettered discretion. He submitted that a provision that  

the Governor shall hold office during the pleasure of the President, is not a  

licence  to  act  arbitrarily,  whimsically  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  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 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. 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.

8. The learned Attorney General submitted that in a democracy, political  

parties are formed on shared beliefs and they contest election with a declared  

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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 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  

sync with democratic and electoral mandate.  

Questions for consideration  

9. The contentions raised give rise to the following questions:   

(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 Constitution?

(iv) Whether there are any express or implied limitations/restrictions upon  the power under Article 156(1) of the Constitution of India?

(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.

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(i) Maintainability of the writ petition    

10. The  respondents  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 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 of this Court in S.P. Gupta vs. Union of India – 1981  

(Supp) SCC 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  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 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 instance of such member of the public would be to foist a  relief on the person or specific class or group of persons primarily injured,  which they do not want.”  

The petitioner, by way of reply, merely pointed out another observation in  

S.P. Gupta :  

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“But there may be cases where the State or a public authority may act in  violation of a constitutional or statutory obligation or fail to carry out such  obligation, resulting in injury to public interest or what may conveniently  be  termed  as  public  injury  as  distinguished  from  private  injury.  Who  would have standing to complain against such act or omission of the State  or  public  authority?  Can  any  member  of  the  public  sue  for  judicial  redress? Or is the standing limited only to a certain class of persons? Or  there  is  no  one  who  can  complain  and  the  public  injury  must  go  unredressed……..

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 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 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 law and setting aside the 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 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 contravened. The  view  has  therefore  been  taken  by  the  Courts  in  many  decisions  that  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 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  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) SCC 81,  

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seeking  intervention  of  this  court  to  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 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 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  Court  or protested against  their  being asked to resign and that  the  petitioner cannot challenge an act which the party affected does not wish  to nor intend to challenge. He relies upon the observations made by this  Court in the case of S.P. Gupta v. Union of India [1981 (Supp) SCC 87].

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 concerned, it raises an important public  issue and involves the interpretation of Article 156 of the 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 Governors.  At all  events,  

such prayers no longer  survive on account of passage of time. However,  

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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.

(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 Dunn v. Queen - 1896 (1)  

QB 116, the Court of Appeal  referred to the old common law rule that a  

public servant under the British Crown had no tenure but held his position at  

the absolute discretion of the Crown. It was observed:   

“I take it that persons employed as the petitioner was in the service 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  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   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, 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)

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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 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  v. Tulsiram  

Patel - (1985) 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 bene placito (“during good pleasure” or “during  the pleasure of the appointor”) 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 pleasure of the Crown, his appointment can be terminated at any time   without  assigning  cause. The  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)

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 the Crown  has  its  origin  in  the  latin  phrase  “durante  bene  placito”  (“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  

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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.”

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:

“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, imported  into the contract a condition that the Crown has the power to dismiss at  pleasure….Where the general  rule  prevails,  the Crown is  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 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 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’ as the assignment  

of  someone  to  employment  that  can  be  taken  away  at  any  time,  with  no  

requirement for notice or hearing.   

13. There is a distinction between the doctrine of pleasure as it existed in  

a feudal set-up and the doctrine of pleasure in a democracy governed by rule  

of law. In a nineteenth century feudal set-up unfettered power and discretion  

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of the Crown was not an alien concept. However, in a democracy governed  

by  Rule  of  Law,  where  arbitrariness  in  any  form  is  eschewed,  no  

Government or Authority has the right to do what it pleases. The doctrine of  

pleasure  does  not  mean  a  licence  to  act  arbitrarily,  capriciously  or  

whimsically. It is presumed that discretionary powers conferred in absolute  

and unfettered terms on any public authority will necessarily and obviously  

be exercised reasonably and for public good.  

14. The  following  classic  statement  from  Administrative  Law  (HWR  

Wade & CF Forsyth – 9th Ed. – Pages 354-355) is relevant in this context :  

“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  intended. Although the Crown’s lawyers have argued in 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 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 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 allow whom he likes to use his land, to release a debtor, or where  the  law  permits,  to  evict  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 to a public authority, which possesses powers  

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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.”   

(emphasis supplied)

15. It is of some relevance to note that the ‘Doctrine of Pleasure’ in its  

absolute unrestricted application does not exist in India. The said doctrine is  

severely curtailed in the case of government employment, as will be evident  

from clause (2) of Article 310 and clauses (1) and (2) of Article 311. Even in  

regard to cases falling within the proviso to clause (2) of Article 311, the  

application of the doctrine is not unrestricted, but moderately restricted in  

the  sense  that  the  circumstances  mentioned  therein  should  exist  for  its  

operation. The Canadian 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 of English Law that a  

civil servant cannot maintain a suit against the State or against the Crown for  

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 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  

17

Civil 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 to them by the Privy Council in I.M. Lall’s case. [75 I.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  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.”

[emphasis supplied]

17. This shows the ‘absoluteness’ attached to the words ‘at pleasure’ is in  

regard  to  tenure  of  the  office  and  does  not  affect  any  constitutional  or  

statutory restrictions/limitations which 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  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 limitations 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)  provides  that  the  Ministers  (in  the  

States)  and  Advocate  General  for  the  State  shall  hold  office  during  the  

pleasure of the Governor.       

18

19. Article  310  read  with  Article  311  provide  an  example  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 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 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 civil service of a State or holds any  civil post under a State holds office during the pleasure  of the Governor  of the State.

xxxxxx

311. Dismissal, removal or reduction in rank of persons employed  in civil capacities under the Union or a State : -  (1) xxxxxxx (2)  -  No  such  person  as  aforesaid  shall  be  dismissed  or  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.”

This Court in  P.L. Dhingra v. Union of India - AIR 1958 SC 36, referred to  

the qualifications on the pleasure doctrine under Article 310:

19

“Subject to these exceptions our Constitution, by Art. 310(1), has adopted  the English Common Law rule that 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 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 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 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 relevant words used in that article,  would be excluded from the operation of the absolute doctrine of pleasure.  The  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 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 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.  

20

21. Constitution of India thus provides for three different types of tenure:  

(i)  Those who hold office during the pleasure of the President (or Governor);  

(ii) Those who hold office during the pleasure of the President (or Governor),  

subject to restrictions; (iii)  Those who hold office for specified terms with  

immunity against removal, except by impeachment, who are not subject to the  

doctrine of pleasure. 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  

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 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, it is not  

21

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 England was a  

prerogative power which was unfettered. It meant that the holder of an office  

under  pleasure  could  be  removed  at  any  time,  without  notice,  without  

assigning cause, and without there being a need for any cause. But where  

rule  of  law  prevails,  there  is  nothing  like  unfettered  discretion  or  

unaccountable action. The degree of need for reason may vary. The degree  

of scrutiny during judicial review may vary. But the need for reason exists.  

As a result when the Constitution of India provides that some offices will be  

held during the pleasure of the President, without any express limitations or  

restrictions, it  should however necessarily be read as being subject to the  

“fundamentals  of  constitutionalism”.  Therefore  in  a  constitutional  set  up,  

when  an  office  is  held  during  the  pleasure  of  any  Authority,  and  if  no  

limitations or restrictions are placed on the “at pleasure” doctrine, it means  

that  the  holder  of  the  office  can  be  removed by  the  authority  at  whose  

pleasure he holds office, at any time, without notice and without assigning  

any cause. The doctrine of pleasure, however, is not a licence to act with  

unfettered discretion to act arbitrarily, whimsically, or capriciously. It does  

22

not dispense with the need for a cause for withdrawal of the pleasure. In  

other words, “at pleasure” doctrine enables the removal of a person holding  

office at the pleasure of an Authority, summarily, without any obligation to  

give any notice or hearing to the person removed, and without any obligation  

to assign any reasons or disclose any cause for the removal, or withdrawal of  

pleasure. The withdrawal of pleasure 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 legislature of a State.  

He is vested with the legislative power to promulgate ordinances while the  

Houses of the 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 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 the Government of the State  

23

cannot be carried 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 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 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. On  the  one  hand,  as  the  Constitutional  head of  the  State,  he  is  ordinarily  bound,  by  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 (2) SCC 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 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.  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 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.”

                                                        (emphasis supplied)

24

In  State of Karnataka v. Union of India [1977 (4) SCC 608], a seven-Judge  

Bench of this Court held :  

“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  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.”

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 powers and  functions of the Governor that  he is not an 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  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 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, 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 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 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 subservient to the  

25

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)

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 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  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 expressly provided – as in Para 18(2),  Schedule  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  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  of  the  State,  bound  by  the  advice  of  his  Council  of  

26

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 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.  His  peculiar  position  

arises from the fact that the Indian 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 States could be said to  have joined to 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 reason that sometimes it has been characterized as  quasi-federal  in  nature.  Leaving  the  functions  of  the  judiciary  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-Judge Bench of this  

Court described the Constitution of India as quasi-federal, being a mixture of  

federal and unitary elements leaning more towards the latter.

27

26. 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  

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  

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  

not 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 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  

the shifting sands of political coalitions, there is no question of the Union  

Government  having  Governors  who  are  in  sync  with  its  mandate  and  

28

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  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,  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 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 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  

29

employee  nor  the  agent  of  the  Union  Government,  we  also  reject  the  

contention that  a  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 during the Constituent Assembly  

Debates, in regard to the office of Governor (Volume III Pages 455 and 469).  

Sri Nehru 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  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 :

“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……”

(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 Governors under Article  

156(1). We do so keeping in mind the following words of Justice Holmes :  

30

“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 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      

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 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  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) of Article 156 which provides that subject to clause (1) and  

31

subject to the 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  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  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 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 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  

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Article 310 provides that a person serving the Union Government holds office  

during the pleasure of the President and a person serving a state government  

holds 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  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 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 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) 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 subjected to an express  

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restriction or limitation under Clause (3) of   Article 156.

Reports of Commissions

31. 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 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.

32. The  Report  of  the  Sarkaria  Commission on  Centre  State  Relations  

(Vol.1 Chapter IV) dealt with the role of 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 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:  

“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  Governor  and  impair  his  capacity  to  withstand  pressures,  resist  

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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  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.”  

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 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—  

(a) The same procedure as for a Supreme  Court Judge.  

(b)  An  investigation  into  the  Governor's  conduct by a parliamentary Committee.  

(c)  Impeachment by the State Legislature.  

(d)  Inquiry by the Supreme Court.  

(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 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  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  Governor  who  is  not  of  the  requisite  ability and impartiality, or who is not able  to  function  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:  

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“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  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 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 interest of the  security of the State, is it not expedient to do so, as a matter of healthy  practice, whenever 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 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 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.  

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 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  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 Government.  

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33. Reference was next  made to a Consultation Paper  on “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 :  

“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,  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;

(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:

(d) provision be made for the impeachment of the Governor by the  State  Legislature  on  the  same  lines  as  the  impeachment  of  the  President by the Parliament. (The procedure for impeachment of  the 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.”

We extract below the relevant portions of the recommendations made by the  

National Commission (different from what was proposed), after considering  

the responses received:

“8.14.2    After carefully considering the public responses and 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  

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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 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. • 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. • He should be a person who has not taken too great a part in  

politics generally, and particularly in the recent past.

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  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.  

Constituent Assembly Debates

35. Both sides relied upon the Constituent Assembly Debates to support  

their respective interpretation of Article 156(1). The petitioners contended  

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that the founding fathers proceeded on the assumption that the removal will  

only  be  on  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  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 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 :  

“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 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 any rate that if he is to be a constitutional head of the  province,  if  he  is  to  be  acting  in  accordance  with  the  advice  of  his  ministers,  if  we desire  to  remove any objection that  might possibly be  

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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 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. 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 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  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.”

         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 feel  that  there democracy has  been abandoned. Now, 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 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 away the independence of the Governor.  He will  be purely a creature of the President,  that  is  to say,  the Prime  Minister 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  continuing in office 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 removable  

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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  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 in office at the  pleasure  of  the  President,  you  are  taking  away  his  independence  altogether. This is a serious 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.”  

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  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 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 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 ‘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 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 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  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  

41

evil that 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 the President in  general terms. What Professor Shah wants 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 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  same ground  under the formula that the Governor shall hold office during his pleasure.  I, therefore, think that it is unnecessary to categorize the conditions under  which the President may undertake the removal of the Governor.”

37. Thereafter  the Article in the present form was adopted, 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:  

(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.

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(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.   

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 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. 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, 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 control 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 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 fill  these posts.  Such persons are chosen not  to  

enable them to earn their livelihood but to serve the society. It is wrong to  

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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 the pleasure of the  

President.  

Need for reasons

40.   The petitioner contends that the removal of a Governor can only be for  

compelling reasons which is something to do with his capacity to function as  

a Governor. According to the petitioner, physical or mental disability, acts of  

corruption 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 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 other grounds, namely, loss of confidence  

in the  Governor or the Governor being out of sync 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  

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and mental incapacity, corruption and behaviour unbecoming of a Governor  

are valid grounds for removal. There is however disagreement as to what  

else can be grounds for removal. 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 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.  

41. We have however already rejected the contention that the Governor  

should be in 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 party in power at the Centre. Though  the  Governors,  

Ministers and Attorney General, all hold office during the pleasure of the  

President, there is an intrinsic difference between the office of a Governor  

and  the  offices  of  Ministers  and  Attorney  General.   Governor  is  the  

Constitutional Head of the State. He is not an employee or an agent of the  

Union Government nor a part of any political team.  On the other hand, a  

Minister  is  hand-picked  member  of  the  Prime  Minister’s  team.  The  

relationship between the Prime Minister and a Minister is purely political.  

Though the Attorney General holds a public office, there is an element of  

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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.  

(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 restrictions, it follows that the power is exercisable at  

any  time,  without  assigning  any  cause.  However,  there  is  a  distinction  

between the need for a cause for the removal, and the need to disclose the  

cause for removal. While the President need not disclose or inform the cause  

for his removal to the Governor, it is imperative that a cause must exist. If  

we do not proceed on that premise, it would mean that the President on the  

advice  of  the  Council  of  Ministers,  may  make  any  order  which  may be  

manifestly arbitrary or whimsical or mala fide. Therefore, while no cause or  

reason be disclosed or assigned for removal by exercise of such prerogative  

power, some valid cause should exist for the removal. Therefore, while 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  

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cause need be shown and no notice need be issued to the Governor before  

removing a Governor.        

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 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  and  the  appointment  of  ministers  as  well  as  others are not, I think susceptible to judicial review because their nature  and subject matter are such as not to be amenable to the judicial process.  The courts are not the place 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.”

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 : R (Bancoult) vs. Foreign  

Secretary – 2009 (1) AC 453). In fact, De Smith’s Judicial Review (6th Ed.  

2007 Page 15) states :  

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“Judicial review has developed to the point where it is possible to say that  no power -- whether statutory or under 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 scope  and its substance. As we shall see, even when discretionary powers are  engaged, they are not immune from judicial review.”

44. In State of Rajasthan v. Union of India 1977 (3) SCC 592 , this Court  

(Bhagwati J., as he then was)  held:  

“But merely because a question has a political complexion 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 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 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 constitutional values and to enforce the constitutional limitations. That is   the  essence  of  the  rule  of  law.  … Where  there  is  manifestly  unauthorized  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  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….”  

In the said decision, Chandrachud, J. (as he then was) observed thus :

“They may not choose to disclose them but if they do so, 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 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 can destroy a possible nexus and may vitiate  the order on the ground of mala fides.”

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In Kihota Hollohon v. Zachilhu 1992 [Supp. (2) SCC 651] this Court held:  

“The principle that is applied by the courts is that in spite 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 mandatory provision of the law conferring on the authority 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 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  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 immune from adjudication, were justiciable, apart  

from narrowing the operation of the doctrine in other areas. This Court held :

“The power to admit  new States into the Union under  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 unreviewable and  

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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  principles  of  the  Constitution and cannot violate or subvert the constitutional scheme.”  

[emphasis supplied]        

46. This Court has examined in several cases, the scope 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  

constitutional  responsibility  to  be  exercised  in  accordance  with  the  

discretion contemplated by the context. It is not a matter of privilege but a  

matter  of  performance  of  official  duty.  All  public  power  including  

constitutional  power,  shall  never  be  exercisable  arbitrarily  or  mala  fide.  

While the President or the Governor may be the sole Judge of the sufficiency  

of facts and the propriety of granting pardons and reprieves, the power being  

an enumerated power in the Constitution, its limitations must be found in the  

Constitution  itself.  Courts  exercise  a  limited  power  of  judicial  review to  

ensure that the President considers all relevant materials before coming to  

his  decision.  As  the  exercise  of  such  power  is  of  the  widest  amplitude,  

whenever such power is exercised, it is presumed that the President acted  

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properly and carefully after an objective consideration of all aspects of the  

matter. Where reasons are given, court may interfere if the reasons are found  

to be irrelevant. However, when reasons are not given, court may interfere  

only  where  the  exercise  of  power  is  vitiated  by  self-denial  on  wrong  

appreciation of the full amplitude of the power under Article 72 or where the  

decision is arbitrary, discriminatory or mala fide [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:

“The controlling factor in determining whether the exercise of prerogative  power is subject to judicial review is not its 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 and legal  certainty. The principle of legality 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 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 fairness and certainty.”

47. 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  

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clause provides 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  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 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 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  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.

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   48. The extent and depth of judicial review will depend upon 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 review for one will be different from the scope of judicial review for  

other.  Mala  fides 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  of  confidence  may  be  a  relevant  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 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 whereas virtually nil in the  

case of a Minister or an Attorney General.  

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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 of the Council of Ministers. Therefore,  

even  though  under  Article  156(1)  the  removal  is  at  the  pleasure  of  the  

President, the exercise of such pleasure is restricted by the requirement that  

it should be on the advice of the Council of Ministers.  Whether the removal  

of Governor is open to judicial review? What Article 156(1) dispenses with  

is the need to assign reasons or the need to give notice but the need to act  

fairly  and  reasonably  cannot  be  dispensed  with  by  Article  156(1).  The  

President in exercising power under Article 156(1) should act in a manner  

which is not arbitrary, capricious or unreasonable. In the event of challenge  

of withdrawal of the pleasure, the court will necessarily assume that it is for  

compelling reasons. Consequently, where the aggrieved person is not able to  

establish a prima facie  instance of arbitrariness or 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 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  

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relations, and the flexibility available to the Government in such matters, it  

is needless to say that there will be no interference unless a very strong case  

is made out. The position, therefore, is that the decision is open to judicial  

review but in a very limited extent.  

50. We summarise our conclusions as under :

(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.  

(ii) Though no reason need be assigned for 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 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 circumstances of each  

case.

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(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 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 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 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, 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 are insufficient.

51. The writ petition is disposed of accordingly.

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TP (C) No.663 of 2004

52. In  view  of  our  decision  in  WP(C)  No.296  of  2004,  this  Transfer  

Petition is dismissed.  

………………………..CJI (K G Balakrishnan)

…………………………J. (S H Kapadia)

………………………..J. (R V Raveendran)

………………………..J. (B Sudershan Reddy)

New Delhi; ……………………….J. May 7, 2010.    (P Sathasivam)  

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