Spoils system brings back feeling of dj vu

The reported requests by the new government to some governors appointed by the then UPA government to quit brings back a feeling of déjà vu.

It has happened again and again over the decades since 1977. The spoils system is now so much a part of the process of gubernatorial appointments that every new government thinks it is justified in asking the favourites and loyalists of the previous government to make way for its own.

Article 156 of the Constitution is clear that the governor shall hold office during the pleasure of the President, and subject to that pleasure, he shall hold office for a period of five years.

But that pleasure, as the Supreme Court pointed out in B P Singhal (2010) must necessarily be subject to the “fundamentals of Constitutionalism.” The court clarified that though no reason needed to be assigned for withdrawal of the pleasure, the power under Article 156 cannot be exercised in ‘an arbitrary, capricious or unreasonable manner’.

The power will have to be exercised in ‘rare and exceptional circumstances and for valid and compelling reasons’, the court said.

The court held that while the reasons for removing a governor need not be assigned or disclosed to the individual concerned, the reasons must exist on record.

Judicial review of a limited nature would be available to the aggrieved person if there is a removal. If the aggrieved person is able to demonstrate prima facie that his removal was either arbitrary, mala fide, capricious or whimsical, the court would call upon the Union government to disclose to it the material upon which the President had acted.

If no reasons are disclosed or if the reasons are arbitrary, mala fide etc, the court would interfere. But it would not strike down an order of removal merely because a different view is possible on the materials or reasons are insufficient. A very strong case has to be made out for the court to exercise its powers.

While unbecoming behaviour, corruption or physical or mental incapacity would certainly be good grounds for removal, other compelling reasons can obviously not be enumerated.

They would have to be assessed on a case-to-case basis. But the court was clear that a governor cannot be removed only 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.

The court was also clear that a governor cannot be removed on the ground that the Union government or the party in power has lost “confidence” in him. Also, a change in government at the Centre is not a ground for removal of governors so as to make way for others favoured by the new government.

“Illegitimate and unwarranted” But while the law on the subject is well known by now, we will always have a problem about applying it. Gone are the days when persons of real eminence, ability and independence from different walks of life are made governors.

Do persons of the calibre of Dr Zakir Husain or Dr D C Pavate get appointed  anymore? Unfortunately, it is largely the “tired and retired”, the inconvenient and unwanted and the loyal and the faithful who get appointed to such positions.

Their very appointments are illegitimate and unwarranted. Do such persons get a vested right or even a semblance of a right to stick on to office, though their very appointments are the result of an abuse of power?

When it laid down those salutary principles, the Supreme Court had model governors in mind, it assumed that their appointments were proper and deserved.

“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…… Like the President, governors are expected to be apolitical, discharging purely Constitutional functions, irrespective of their earlier political background.

Governors cannot be politically active,” the apex court observed. But unfortunately, the court was not “in sync” with reality!

In cases of “back door entry” of lesser mortals like class IV employees or even junior engineers or teachers into public services, the courts show little sympathy.

“Those who come in through the back door must go out through the back door” is the principle which they often reiterate, while holding that they cannot invoke the rules of natural justice or seek to enforce procedural safeguards.

And so, if a government in its last days makes an appointment of a politician against whom there are allegations of corruption, with a self-evident motive of conferring Constitutional immunity under Article 361, would that not be a “compelling reason”? Again, if a minister of proven incompetence is kicked upstairs to a Raj Bhavan, would that not be a good ground to ask him to quit?

Some may take the hint and move out quietly. Some may wait to be removed and opt for a long and risky litigation. But it will be interesting to see who the replacements are.

Will the new government to do something completely different this time? Or do Kalyan Singh, V K Malhotra, Lalji Tandon and their likes have good horoscopes?