CALCUTTA HIGH COURT’S DISMISSAL OF PIL SEEKING REMOVAL OF THE GOVERNOR: AN ANALYSIS

INTRODUCTION

A Public Interest Litigation (Ramaprasad Sarkar v. Union of India) was filed by Advocate Rama Prasad Sarkar before the Calcutta High Court. The PIL sought the removal of Jagdeep Dhankar, Governor of West Bengal, from his post for allegedly portraying himself as the ‘mouthpiece of Bhartiya Janta Party’[1] and not acting in the best interest of the state. The petitioner felt that the Governor was destroying the very fabric of federalism, a part of the basic structure of the constitution, by acting as a mouthpiece of the Union government. References were made to the fact that the governor not only never missed an opportunity to lambast the functioning of the state of affairs but also maligned the West Bengal government. Furthermore, it was alleged that the Governor surpassed the (state) Council of Ministers on various occasions and dictated the officials directly. Governor, being the formal head is bound by the aid and advice of the Council of Ministers, therefore, his observations about the functioning of various ministries under the State Government carry deeper political repercussions and they have the potential to affect the federal structure and amount to a misuse of political office [2].

It must be noted that the Governor and the state government have been at loggerheads with one another for quite some time now. While it is not unusual for different parties to be at variance, however, they need to work in tandem with parliamentary democracy to ensure public good and welfare. West Bengal has experienced a bitter tussle between Governor and state government, particularly after the elections. Both the ruling party, Trinamool Congress, and Jagdeep Dhankar have been exceptionally vocal in their criticisms. As a result, discharging duties with utmost efficiency has become more difficult. The aforementioned case amplifies long-running face-offs.

ARGUMENTS ADVANCED

The learned counsel for the petitioner argued that the Governor should be removed from the office and that the Union Government should not use the post for furthering their political activities. Reference was made to B.P. Singhal v. Union of India and Another (2010) 6 SCC 331 [3] wherein it was stated that the governor is neither an agent nor an employee of the Union government[4]. The governor is expected to act apolitically and in consonance with the constitutional spirit.

The petitioner also referred to Article 361 [5] of the Constitution. Article 361 throws light on the ‘protection of President and governors’ i.e., immunity enjoyed by them. Petitioner argued that the immunity provided to the Governor under the aforementioned article is not absolute. Governors are subject to judicial proceedings in cases of arbitrariness, dishonesty, and bad faith [6]. The case of Rameshwar Prasad v. Union of India [7]was cited. Here, the Apex Court ruled that Governor was not exempted from judicial scrutiny simply because of the immunity conferred to him/her under Article 361. To further the argument, the petitioner said that Article does not provide immunity to the Governor in cases wherein he unequivocally passes political comments and other such remarks in a partisan fashion.

In defence of the Respondent, the Solicitor General argued that the writ petition itself was not maintainable and the grounds for removing the governor were not tenable. Additionally, he commented that the petition has to be discussed with exemplary costs.

JUDGEMENT OF THE CALCUTTA HIGH COURT

The Division Bench consisted of Chief Justice Prakash Shrivastava and Chief Justice Rajarshi Bhardwaj. The bench with reference to Article 361 stated that the Governor cannot be held liable for the acts done by him in furtherance of discharging his powers and duties as stated in the constitution. The governor cannot be made answerable to any Court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties[8]. Such immunity can be revoked or interfered with in cases wherein mala fide is proved. However, the article does not cover the scope of ‘remarks’, ‘tweets’ made by the Governor.

The Court also made a mention of the judgments laid down in Nabam Rebia v. Registrar General, Guwahati High Court and Ors[9] and M. Kannadasan v. Union of India rep. by Ministry of Home Affairs and Another [10] which set forth the fact that the Central Government cannot be directed to remove the governor. The bench also clarified that B.P. Singhal v. Union of India and Another (2010) 6 SCC 331 would not be applicable here, particularly because the Apex Court had pronounced its decision after the Governor was removed, whereas in the current scenario the PIL was filed in order to remove the Governor.

The appointment of the Governor is outlined in Article 155. Whereas the terms and duration of the office are mentioned in Article 156. It states that the Governor shall hold office during the ‘pleasure of the President for a term of five years[11]. Additionally, the court also stated that any removal as a consequence of withdrawal of pleasure will be assumed to be valid and will be open to only a limited judicial review [12]. Taking into consideration the aforementioned factors coupled with limited scope for judicial scrutiny the bench dismissed the petition. The evidence furnished were merely some tweets, a newspaper article, and a letter by the Governor. No inadequacy on the part of the governor could be inferred from these limited findings. Accordingly, the PIL was dismissed in light of the current situation.

CONCLUSION

The feud between the governor and the state governments is not a hidden fact. The tussle has been intense over the past few years, especially in states like Maharastra, Karnataka, West Bengal, etc. The image of the office of the governor being ‘the agent of center’ is the heart of the dispute. As a result, the state’s functioning is impacted and the state-centre balance is disrupted. The state of West Bengal has been in the spotlight in this regard, particularly in the wake of the elections. The aforementioned case is just one of the instances that exemplifies the strained relations between the parties. The PIL was dismissed by the High Court primarily on the grounds that exists a constitutional mandate that has to be followed in a prescribed manner. An individual cannot be removed from office by relying merely on tweets, articles, and other such documents. This goes against the procedure of removal of the Governor outlined in the constitution. The Calcutta High Court fittingly affirmed the constitutional provisions.

It is crucial to maintain harmony and to uphold the spirit of federalism in its truest form. In order to accomplish this, the Governor must refrain from bypassing state Councils of Ministers or making jarring remarks about the state’s functioning. On the other hand, the Chief Minister should abstain from making bitter remarks about the authority at the state and central levels. The Constitution seeks to ensure a fine balance through federalism for distribution among various legislative, executive and financial powers. It is thus imperative that the functionaries maintain a fine balance among these, failing to which constitutional disputes are bound to arise the casualty of which would be the welfare of citizens.

Author(s) Name: Anaya Nandish Shah (Gujarat National Law University, Gandhinagar)