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

Guest Post by  Sujoy
Chatterjee



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

Rather than risking the humiliation of being
removed from office before the expiry of their tenure (an ignominy which the
erstwhile Governors of Uttar Pradesh, Gujarat, Haryana and Goa were subjected
to on July 2, 2004), B.L. Joshi and Shekhar Dutt have pre-empted any such move
by resigning (be it voluntarily or after indications to this effect from the
Union Government) from the offices of Governor of Uttar Pradesh and
Chhattisgarh respectively (Seehere).
Legal
Precedent
Interestingly, these resignations were tendered
in spite of the Governor’s tenure being secured to a certain extent by a
Constitutional Bench decision of the Supreme Court (SC) in B.P. Singhal v. Union of India(2010).
This judgment, the result of a public interest litigation filed against the removal
of the Governors of Uttar Pradesh, Gujarat, Haryana and Goa in 2004 by the
INC-led United Progressive Alliance (UPA) government, unanimously held that Governors
could not be removed from office “in an arbitrary, capricious or unreasonable
manner”. Speaking through Raveendran, J., the SC categorically described what
would not be a valid reason for
removing a Governor from office in the following words: 
A Governor cannot be removed on the ground
that he is out of sync with the policies and ideologies of the Union Government
or the party in power at the Centre. Nor can he be removed on the ground that
the Union Government has lost confidence in him. It follows therefore that
change in government at Centre is not a ground for removal of Governors holding
office to make way for others favoured by the new government
.”
Therefore, B.P.
Singhal
unambiguously precludes the BJP from using its decisive mandate in the
2014 General Elections as a valid ground for removing Governors from office.However,
the SC did recognize that there are reasons based on which a Governor could
validly be removed from office. B.P.
Singhal
enumerates some of these reasons as (i) physical/mental disability,
(ii) corruption and (iii) behavior unbecoming of a Governor, while at the same
time emphasizing that there could be other valid reasons as well. Rather than
attempting to provide an exhaustive list of grounds on which a Governor could
be removed, the SC left the issue open with the following words:
It is not possible to put the reasons under
any specific heads. The only limitation on the exercise of the power is that it
should be for valid reasons. What constitute valid reasons would depend upon
the facts and circumstances of each case
.
Political
Calculations
The applicability of B.P. Singhal to the current controversy has been somewhat blunted by
Joshi and Dutt’s forthright resignations. However, questions remain as to why they
chose to resign. The possible thought-process behind these resignations,
although overlapping in many respects, may be broadly classified into the
following speculative heads:
(i)                
There was an apprehension that the Union
Government would order the removal of these incumbent Governors from office
unless they resigned. This apprehension could have stemmed from:
(a)               
Some of the actions of the concerned Governors being
interpreted by the Union Government as falling within the ambit of the three valid
reasons enumerated in B.P. Singhal for
removing a Governor from office;
(b)              
Some of the actions of the concerned Governors falling foul
of the un-enumerated yardstick which was created in B.P. Singhal for removing a Governor from office; and/or
(c)               
While there were no valid grounds to remove the
incumbents from office, but the Union Government would defy the principles laid
down in B.P. Singhal and remove them
from office as an act of political vendetta.
(ii)              
The Union Government had not kept the option of
forceful removal of Governors on the table, but the incumbents holding these
offices felt:
(a)               
The sanctity of the Governor’s office would be
preserved by pre-empting a political controversy and unnecessary mudslinging;
and/or
(b)              
The circumstances provided the incumbents an
opportunity to play the ‘victim’ card and indulge in some grandstanding.
BJP leader Sushil Kumar Modi’s comments about
partisan activities being indulged in by the Governor of Bihar D.Y. Patil indicate
that clauses (a) and (b) of point (i) above may have a bearing on the present
controversy (See here).Similar
allegations of taking politically motivated decisions may be levelled against
H.R. Bharadwaj and Kamla Beniwal (the Governors of Karnataka and Gujarat
respectively) as well. However, the proverbial dagger of Damocles hanging over
Governor of Kerala Sheila Dikshit’s head seems to suggest that point (ii)mentioned
above was the more likely consideration. Dikshit is reported to have been given
a choice of either resigning on her own or be downgraded to the Raj Bhawan of ‘a
smaller State’ (See here).
The
corruption voodoo
The allegations of corruption against Dikshit
with regard to the Commonwealth Games or the Delhi Jal Board irregularities may
or may not have a bearing on her tenure as Governor, depending on which of the
following schools of thought one subscribes to:
(i)                
B.P. Singhal only
refers to corruption or unbecoming activities indulged in by a Governor while
in office, and does not cover within its ambit actions taken by a person before he
or she assumed the office of Governor;[1]
or
(ii)              
Dikshit’s initial appointment as Governor is
itself tainted with mala fides, i.e.,
the intention was to shield her from any investigation or Court proceedings,
and therefore she cannot be allowed to continue in office.[2]
Also in the fray is the
investigation into the AgustaWestland chopper deal, where
M.K. Narayanan and B.V. Wanchoo (Governors of West Bengal and Goa respectively)
have so far not been interrogated because of the Constitutional posts occupied
by them (See here). Narayanan
and Wanchoo’s case may be slightly different from Dikshit’s though –they are at
present only witnesses in the ongoing investigations and further it will be difficult
to establish how irregularities in the AgustaWestland chopper deal, which came
into the public domain only in 2013,had a role to play in their appointments as
Governors in 2010 and 2012 respectively.
Conclusion
The long list of UPA’s ostensibly political
appointee-Governors (See here) will
ensure that there are many more developments surrounding the Governor’s office
in the coming days. Curiously, while the BJP has unambiguously stated its
desire for such Governors to vacate their offices, the Prime Minister whose
election campaign was based on a social media-blitzkrieg has chosen to remain silent
on this issue. Union Home Minister Rajnath Singh’s ambivalent comments have
only added to the speculation and left everyone second-guessing about what the Union
Government has in store for these Governors (See here).
However, for those of us fence-sitters who relish the idea of a politico-legal
showdown, the posturing over this issue is an encouraging sign that the Union
Government intends to keep the Prime Minister’s promise of “acche din aagaye”,
albeit in a very different context.

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