The Supreme Court, through its five member Constitution Bench had upheld that the President of India did not have unfettered right to withdraw his pleasure whenever he felt so and removal of a judge is subject to judicial scrutiny. The Court refused to accept the plea of Article 156(1) that President has been conferred absolute or unfettered power to withdraw his pleasure. In one of the cases, the highest Court held that the “power of the sovereign of England has not descended on the Indian President”. He is subject to checks and balances.
In case of executive acts, he shall always be bound by the advice of the Cabinet of Ministers. If somebody appeals to him for mercy, he will forward that petition to Home Ministry and it would sit over it for any number of years as it has happened to 50 odd cases where the convict is in solitary prison for more than a decade. All that the President of India can do is ride to the Republic Day parade saluting base drawn by five horses, stay in the Rashtrapathi Bhavan, for opening and closing any function where the President is present, his permission has to be sought and obtained. He will give Padma Awards to the distinguished personalities chosen by the Home Ministry. He can refuse to sign a Bill and send it back to Parliament for its re-consideration. If it is still passed, he shall sign on a dotted line. He may be away at Russia, America or Germany, however, he will sign on the dotted line for declaring President’s Rule under Article 356 of the Constitution. He will swear in all the Ministers, Chief Justice, and diplomats like High Commissioner or Ambassador shall present their credentials to the President.
In addition, President can visit different places for doing different ceremonial acts. He will read the Government’s prepared text, where “My Government” will predominate. The Governor is appointed by the President on the basis of the whims of the ruling party in power. Being a political appointment, an attempt to impose category of values to the Post defies logic? Often, a retired and inconvenient politician wears the vestige of a colonial past- the post of Governor.
In the present judgement, the Supreme Court states that, “If the aggrieved person is able to demonstrate prima facie that his dismissal was arbitrary, mala fide, capricious or whimsical” then the Court invoking the judicial review will reinstate him. Governors can be removed for compelling reasons which as physical or mental disability and acts of corruption, was the Petitioners’ plea. But the Court held that political or subjective grounds cannot be the only reason, but valid reasons must exist depending upon the facts and circumstances. However, Court has held that the Governor may be appointed by a Government that might have been a different party from a different party in governance. That cannot be a ground for removal. The change of government need not necessarily mean that the Governor appointed by the previous Government should quit, if not, he will be retired, using the ‘pleasure of the President’. In such a case, President cannot remove his pleasure.
We had a Minister who forgot to pay Income-Tax for many scores of years. We had a Parliamentarian, a member of Lok Sabha, Chief Minsiter of a State with the support of the Opposition yet voting with the ruling party claiming that he has failed memory. They continued as Ministers without any disability.
Politicians, retired bureaucrats, or somebody whom the Government wants to provide employment, can be appointed as Governors. Are they agents of the Central Government? Or they employees of the Central Government? Does he have a security of tenure to gubernatorial office? Can a Governor be removed arbitrarily? If he does not resign on his own, can’t the Governor be forced to resign? For all these, the answer is “No” theoretically, but practically, “Yes”. With the judgement which gives leeway to the Government, it is to be seen whether the Government will stop with arbitrary removal of Governor? The appointing authority is the dismissing authority, the Court had ruled. If a Governor is appointed for some fanciful reason, the same Governor can be removed for some improbable reason; this is the philosophy of political parties across the board. Then who will decide,” discrimination”?
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