In the last few weeks, after the 16th Lok Sabha election, there has been some debate around powers of the central government to remove Governors.  News reports have suggested that the central government is seeking resignations of Governors, who were appointed by the previous central government.  In this blog, we briefly look at the key constitutional provisions, the law laid down by the Supreme Court, and some recommendations made by different commissions that have examined this issue. What does the Constitution say? As per Article 155 and Article 156 of the Constitution, a Governor of a state is an appointee of the President, and he or she holds office “during the pleasure of the President”.  If a Governor continues to enjoy the “pleasure of the President”, he or she can be in office for a term of five years.  Because the President is bound to act on the aid and advice of the Council of Ministers under Article 74 of the Constitution, in effect it is the central government that appoints and removes the Governors. “Pleasure of the President” merely refers to this will and wish of the central government. The Supreme Court’s interpretation In 2010, a constitutional bench of the Supreme Court interpreted these provisions and laid down some binding principles (B.P. Singhal v. Union of India). In this case, the newly elected central government had removed the Governors of Uttar Pradesh, Gujarat, Haryana and Goa in July, 2004 after the 14th Lok Sabha election. When these removals were challenged, the Supreme Court held:

  1. The President, in effect the central government, has the power to remove a Governor at any time without giving him or her any reason, and without granting an opportunity to be heard.
  2. However, this power cannot be exercised in an arbitrary, capricious or unreasonable manner.  The power of removing Governors should only be exercised in rare and exceptional circumstances for valid and compelling reasons.
  3. The mere reason that a Governor is at variance with the policies and ideologies of the central government, or that the central government has lost confidence in him or her, is not sufficient to remove a Governor.  Thus, a change in central government cannot be a ground for removal of Governors, or to appoint more favourable persons to this post.
  4. A decision to remove a Governor can be challenged in a court of law.  In such cases, first the petitioner will have to make a prima facie case of arbitrariness or bad faith on part of the central government.  If a prima facie case is established, the court can require the central government to produce the materials on the basis of which the decision was made in order to verify the presence of compelling reasons.

In summary, this means that the central government enjoys the power to remove Governors of the different states, as long as it does not act arbitrarily, without reason, or in bad faith. Recommendations of Various Commissions Three important commissions have examined this issue. The Sarkaria Commission (1988) recommended that Governors must not be removed before completion of their five year tenure, except in rare and compelling circumstances.  This was meant to provide Governors with a measure of security of tenure, so that they could carry out their duties without fear or favour.  If such rare and compelling circumstances did exist, the Commission said that the procedure of removal must allow the Governors an opportunity to explain their conduct, and the central government must give fair consideration to such explanation.  It was further recommended that Governors should be informed of the grounds of their removal. The Venkatachaliah Commission (2002) similarly recommended that ordinarily Governors should be allowed to complete their five year term.  If they have to be removed before completion of their term, the central government should do so only after consultation with the Chief Minister. The Punchhi Commission (2010) suggested that the phrase “during the pleasure of the President” should be deleted from the Constitution, because a Governor should not be removed at the will of the central government; instead he or she should be removed only by a resolution of the state legislature. The above recommendations however were never made into law by Parliament.  Therefore, they are not binding on the central government.

Mr. Vaghul, our first Chairperson, passed away on Saturday.  I write this note to express my deep gratitude to him, and to celebrate his life.  And what a life he lived!

Mr. Vaghul and I at his residence

 

 

 

 

 

 

 

Our past and present Chairpersons,
Mr. Vaghul and Mr. Ramadorai

Industry stalwarts have spoken about his contributions to the financial sector, his mentorship of people and institutions across finance, industry and non-profits.  I don’t want to repeat that (though I was a beneficiary as a young professional starting my career at ICICI Securities).  I want to note here some of the ways he helped shape PRS.

Mr Vaghul was our first chairman, from 2012 to 2018.  When he joined the board, we were in deep financial crisis.  Our FCRA application had been turned down (I still don’t know the reason), and we were trying to survive on monthly fund raise.  Mr Vaghul advised us to raise funds from domestic philanthropists.  “PRS works to make Indian democracy more effective.  We should not rely on foreigners to do this.”.  He was sure that Indian philanthropists would fund us.  “We’ll try our best.  But if it doesn’t work, we may shut down.  Are you okay with that?”  Of course, with him calling up people, we survived the crisis.

He also suggested that we should have an independent board without any representation from funders.  The output should be completely independent of funders’ interest given that we were working in the policy space.  We have stuck to this advice.

Even when he was 80, he could read faster than anyone and remember everything.  I once said something in a board meeting which had been written in the note sent earlier.  “We have all read the note.  Let us discuss the implications.”  And he could think three steps ahead of everyone else.

He had a light touch as a chairman.  When I asked for management advice, he would ask me to solve the problem on my own.  He saw his role as guiding the larger strategy, help raise funds and ensure that the organisation had a strong value system.  Indeed, he was the original Karmayogi – I have an email from him which says, “Continue with the good work.  We should neither be euphoric with appreciation or distracted by criticism.” And another, "Those who adhere to the truth need not be afraid of the consequences".

The best part about board meetings was the chat afterwards.  He would have us in splits with stories from his experience.  Some of these are in his memoirs, but we heard a few juicier ones too!

Even after he retired from our Board, he was always available to meet.  I just needed to message him whenever I was in Madras, and he would ask me to come home.  And Mrs. Vaghul was a welcoming host.  Filter coffee, great advice, juicy stories, what more could one ask for?

Goodbye Mr. Vaghul.  Your life lives on through the institutions you nurtured.  And hope that we live up to your standards.

Madhavan