Patna High Court
Indian Union Muslim League And Ors. vs Union Of India (Uoi) And Ors. on 4 August, 1998
Equivalent citations: AIR1998PAT156, AIR 1998 PATNA 156, (1999) 1 SCT 134, (1998) 3 PAT LJR 196, (1998) 3 BLJ 376
JUDGMENT B.M. Lal, C.J.
1. In the shape of public interest litigation, this petition under Article 226 of the Constitution is filed by a political wing of the Indian Union Muslim League through its Bihar State, President, Md. Kamran and its other four members, against the Union of India, State of Bihar, State of West Bengal and others, also arraying His Exeellency (H.E.) the Governor of Bihar as respondents Nos. 9 and 10 by names, Seeking quashing of the Presidential notification of transfer and appointment" of the Governor of Bihar H.E. Dr. A. R. Kidwai to the State of West Bengal and appointment of H.R., Sri Sunder Singh Bhandari as Governor of Bihar in place of H.E., Dr. A. R. Kidwai, contending that both the notifications are unconstitutional.
2. Before discussing the point in issue involved in this petition, we feel it necessary to mention that neither it was expedient nor legally permissible in view of the immunity clause under Article 361 of the Constitution to implcad H.E. the Governor of the State of Bihar as respondents Nos. 9 and 10 in their personal capacity as Governor. Besides, the petition as framed and filed in a telegraphic manner, without annexing any document, muchless the notifications in question and using unhappy words, is somewhat strange in itself and that is why repeatedly during the course of hearing we expressed that the petition as framed is not maintainable. However, without paying any heed to it, persistent insistence was made to decide it. This is how the Court, at times, has to face anomalous situation at the sad plight of Court's valuable time.
3. Thus, what we have lodecidc', in nut-shell, is that: once U.K. the Governor is appointed by the President of India in accordance with the provisions of Article 155 of the Constitution of India as appearing in Part VI, Chapter II of the Constitution and takes or subscribes oath of office as per the provisions of Article 159 of the Constitution in the State, in the instant case, in the Stale of Bihar, can he be transferred to other State, in the instant case, in the State of West Bengal, before completing the total tenure of five years.
4. The main gricvance of the petitioners is that H.E. Dr. A. R. Kidwai, respondent No. 9, was appointed by the President of India as the Governor of Bihar, who took oath of office on the 14th August, 1993, and as yet, has not completed five years term in the State of Bihar, but before he could complete the total tenure of five years in this State he has been transferred to West Bengal. According to the petitioners, this transfer is against the provisions of Clause (3) of Article 156 of the Constitution and, therefore, the order of transfer be quashed by issuing a writ in the nature of certiorate against the Union of India.
5. For the better appreciation of the point in issue, it is necessary to delve into the constitutional scheme, of the relevant provisions of the Constitution of India, which specifically and pertinently deal with it. Chapter II of the Constitution of India deals about the executive head of the State, i.e., H.E. the Governor of a Stale, who is chief executive constitutional authority and all executive powers of the State vests in him, which he exercises directly with the help of the officers of the State in accordance with the Constitution, meaning thereby U.K. the Governor acts according to the advice of the council of Ministers tendered to him inaccordance with Article 163 of the Constitution of India, except so far as he is under the Constitution, required to exereise his functions or any of them in his discretion. As such by conferment of discretionary functions, he may exercise, besides the advice of the Cabinet, only those discretionary functions, which are conferred under the Constitution.
6. However, there are certain exceptions to this provision of Article 163 of the Constitution, which we find in our Constitution under An. 239(2) appearing in Part VIII of the Constitution which deals about the Union territories. Thus where a Governor is appointed for the Union territory to administer the hill region, he can act in his discretion and in purchase of such responsibility he exercises his functions as an administrator indepenently even contrary to the advice of the council of Ministers. Relevantly the provisions of Article 371-A to 371-H as appearing in Part XXI throw light in this regard. However, as these provisions have no application for the State of Bihar, therefore, we need not detain ourselves for discussing the same in detail any further but to proceed to decide the point in issue based on Chapter II of the Constitution.
7. The relevant constitutional provisions,; i.e. Articles 155, 156 and 159 together with the form of oath and affirmation are being reproduced herein below :
155. Appointment of Governor :- The Governor of a Slate shall be appointed by the President by warrant under his hand and seal
156. Term of office of Governor :- (1) The Governor shall hold office during the pleasure of the President.
(2) The Governor may, by written under his hand addressed to the President, resign his office.
(3) Subject to the foregoing provisions of this article, a Governor shall hold office for a term of five years from the dale on which he enters upon his office:
Provided that a Governor shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office.
159. Oath or affirmation by the Governor :-
Every Governor and every person discharging the functions of the Governor shall, before entering upon his office make and subscribe in the presence of the Chief Justice of the High Court expreising jurisdiction in relation to the State, or, in his absence, the senionnost Judge of that Court available, an oath or affirmation in the following form, that is to say;-
swear in the name of God ...
"I.A.B., do. . ................. that I will solemnlyaffirm faithfully execute the office of Governor (or discharge the functions of the Governor) of.... ... (name of the State) and will to the best of my ability preserve, protect and defend the Constitution and the law and that I will devote myself to the service and well being of the people of. ......... .(name of the State)."
8. The appointment of H.E. the Governor is made according to the provisions of Article 155 of the Constitution by the President of India in accordance with the adviee tendered by the Central Cabinet to him as provided under Article 74 of the Constitution of India. Warrant of appointment is to be issued under his hand and seal.
9. Article 156 of the Constilutioin deals about the term of office of the Governor, Clause (1) whereof provides that the Governor shall hold office during the pleasure of the President, and Clause (3) thereof prescribes that a Governor shall hold office for a term of five years from the date on which he enters upon his office, .... ....
10. The submission made by the learned counsel is that once the Governor is appointed under Article 155 of the Constitution and he enters into his office, he holds office for a term of five years from the date on which he enters upon his office and, in the instant case, H.E., Dr. A. R. Kidwai entered into the office of Governor on 14-8-1993 and, therefore, he as per Clause (3) of Article 156 of the Constitution, till completes five years' term in the State of Bihar, cannot be transferred.
11. We have reproduced the provisions of Article 156 of the Constitution of India in extenso, Clause (3) whereof itself provides "subject to the foregoing provisions of this articlel which covers "the Governor shall hold office during the pleasure of the President." Therefore, five years term depends upon the 'pleasure of the President. So it is manifest that the term of office for five years provided for the Governor under Clause (3) of Act. 156 of the Constitution is not plenary in itself rather the words used "subject to the foregoing provisions of this article" make it discretionary depending upon the pleasure of, the President inasmuch as it is qualified by the words "shall hold office during the pleasure of the President.
12. Thus, under Clause (3) of Article 156 of the Constitution, it is apparent that five years term is subject to the exercise of pleasure by the President and the President of India is the best Judge for exercise of his pleasure to decide as to when and in what circumstances the term of a sitting Governor of a State should be reduced, or, instead of reducing the term, he may be transferred from one State to another or he may be asked to vacate the office. Here we may further clarify to meet the argument of the learned counsel for the petitioners that no reason is required to be assigned by the President as to how he reached to his discretion to withdraw the pleasure from one State and reposing the same for another State or reducing the term from five years, inasmuch as 'pleasure' envisaged under Clause (1) of Article 156 of the Constitution is not qualified with the words "except as expressly provided by this Constitution" as 'pleasure' has been qualified under Article 310 of the Constitution in respect of Government employees.
13. Thus dismissal of civil servants must comply with the procedure laid down under Article 3 11 (2) read with Article 310(1) of the Constitution and without affording opportunity and assigned any reason they cannot be reduced in rank, dismissed or removed from service. However, for want of these qualifying or alike words under Article 156(1) of the Constitution of India, the President of India remains the best Judge of the situation in respect of withdrawing pleasure from the office of H.K. the Governor.
14. Hence, since Article 156 of the Constitution is not couched with the similar qualifying words of immunity granted to Government servants under Article 310 of the Constitution, therefore, " withdrawal of the pleasure" comes in to operation no sooner it is withdrawn resulting in dismissal, removal or transfer of the office of Governor without observing the principle of "Audi alteram partem" as his maxim has no application. On the other hand, the maxim "salus-populi-supreme-lex" applies, which means welfare of the people is supreme.
15. Relevantly, it is also necessary to deal about the form of oath and affirmation to meet the argument as advanced by the learned counsel to the effect that in the absence of provision in the Constitution, a Governor cannot be transferred to other State. From the form of oath and affirmation as quoted above, it is manifest that the Governor will faithfully execute the "office of the Governor" of a State, here in the instant case," office of the Governor of the State of Bihar." For more clarity, again the form of oath and affirmation is being reproduced :
"I, Dr. A. R. Kidwai do swear in the name of God that I will faithfully execute the office of Governor or discharge functions of the Governor of State of Bihar and will to the best of my ability preserve, protect and defend the Constitution and the law and that I will devote myself to the service and well being of the people of State of Bihar.
Alter the word 'I,' the words "Dr. A. R. Kidwai" and at the place 'name of the State,' "State of Bihar" have been supplied by us so as to bring more clarity in the context as the original or the copy of the original papers of oath have not been produced before us.
16. Thus, what is apparent from both the relevant Articles 156 and 159 of the Constitution is that "the Governor shall hold office during the pleasure of the President," So on a conjoint reading of the relevant provisions of Articles 156 and 159 of the Constitution together with the form of oath and affirmation, what is clear and common in both the provisions, is that "a Governor shall hold office during the pleasure of the President" and while taking oath the Governor solemnly affirm the "office" of the Governor of Bihar for which he has been appointed. Therefore, "pleasure" is for the "office" and the "office" is of the State of Bihar. Hence once 'pleasure' from the "office" of the State of Bihar is withdrawn by the President, his initial "office" becomes vacant and he goes out of "office" and further while withdrawing 'pleasure' from one State and reposing the same for other State, it results in "transfer" to that State. That is how the provisions of Articles 156 and 159 work simultaneously and transfer is implicit by occurring the words "hold office during the pleasure of the President" and by virtue of the inbuilt provision, the Governor indeed can be transferred from one State to another State.
17. To be more precise and for the sake of clarity, at the cost of repetition, we have to find out as to what is the legislative intent of the set two pro visions of Articles 156 and 159 of the Constitution together with the form of oath and affirmation appended to it. The settled proposition of basic rule of interpiclation of harinunious construetion cannot be lost sight of to harmonize these two articles so that the purpose of these two Articles, particularly of the words used "hold office during the pleasure" in Article 156 and the word 'office' occurring in Article 159 cannot be defeated. The provisions of the above two Articles have to be read as a whole along with the form of oath and affirmation appended to it, to find out the real intention of placing the word 'office' in Clause (1) of Article 156 and in Article B59 and also in the form of oath and affirmation. Pleasure ot the President is with the office which the Governor holds and takes oath, in the instant case, fur the 'office of the Governor of Bihar.' Therefore, in the provisions of Clause (1) of Article 156 the word "office" if defeats the provisions of Article 159 where the word 'office' is occurring, indeed the same can not he used for reconciliation between them. Thus, care is to be taken to give harmonious interpretation so that the statutory meaning can not he destroyed or to make it otiose. Thus, what the Court has to sec is the context and the object of both the Articles 156 and 159, the nature and the precise scope of both the Articles in respect of the word "office" first to understand its nature, Ordinary or popular sense and phrase and sentence, i.e. 'hold office during the pleasure of the President' and thereafter to consider according to its grammatical meaning and that is how the intention of the legislature is to be gathered from the language used in Articles 156 and 159 and the form of oath and affirmation. Pleasure is with the office and by withdrawing the pleasure from one office of the Governor, certainly can he reposed in another office of the Governor of other State and the consequence of reposing the pleasure is terned in common parlance as shifting or transfer. Therefore, by Virtue of Clause (1) of Article 156 if pleasure is withdrawn from one office of the Governor and reposed for the office of Governor of other State, it cannot be said that there is no implicit provision, rather it emerges from these two Articles 156(1) and 159 and the form of oath and affirmation appended to it that for shifting/transfer of a Governor from the office of one State to the office of another State there is an inbuilt provision under these two Articles. Therefore, irresistible interpretation wouId be that by taking aid of these two Article while withdrawing pleasure from the office of the Governor from one State, indeed, can he reposed for the office of the Governor of another State. This is what has been done in the case of H.E. Dr. A. R. Kidwai in shifting him from other to West Bengal which, as discussed above, is permissible under the Constitution.
18. There are instances that not only once hut twice the Governors have been transferred from one State to another State in one spell of five years tenure.
19. We may state that in the Constituent Assembly, while drafting Chapter II of the Constitutions, many suggestions had been given. Those suggestions are not necessary to be discussed here as unnecessarily the record will swell. However, while explaining those suggestions by Dr. Baha Saheb Ambedkar in the present from Chapter 11 was drafted. That is how the two provisions of Articles 156 and 159 have to he reconciled in harmonizing them since in both the provisions "office of the Governor" is occurring. Therefore, we do not find any inconsistency or repugnancy in each other rather both the provisions arc consistent envisaging transfer of the Governor.
20. According to the rule of interpretation of the statute literal construction is to be give effect to. According to Lord Brougham to take the words as the legislature has given them and to take meaning which the words give naturally unless where the construction of those words either by preamble or by the context of the words in question is controlled or altered and in the words of Viscount Haldane L.C. if the language used has natural meaning we cannot depart from that meaning unless reading the statute as a whole the context directs us to do so. (Sec Attorney-
General v. Milane (1914-15) All EK (Rep) 1061 (IIL)). Therefore, language used in both the provisions have natural meaning as we have discussed above and we cannot depart from that meaning. Even reading of both the provisions, the context directs us to follow their natural meaning.
21. In a democratic set up, the structure of formation of parliamentary form of Government, at a glance of the constitutional provisions, appears to have been based on a broad principle of "doctrine of pleasure" which is synonymous to "enjoy confidence of the house" and that is how the elected representatives of the people form the Government and while continue to remain in office till the Government enjoys the pleasure/ confidence of the elected representatives of the people, it recommends and appoints constitutional functional i.e. through the process of Article 74 of the Constitution through the President of India, and the constitutional functionaries continue in offices either during the pleasure of the President or during the good conduct and behaviour and no sooner pleasure is withdrawn the constitutional functionaries who hold office during pleasure go out of, the office. Similarly on account of bad conduct and misbehaviour, if impeached by both the houses of the Parliament, that authority also goes out of the office. This is what appears to be the constitutional scheme of our Constitution.
22. Thus, it can safely be inferred that 'doctrine of pleasure' has two limbs - one is 'express' and the other is 'implied.' 'Express' is one which has been vested upon the Government statutorily or constitutionally. For example Article 156(1) of the Constitution of India. 'Implied' is one that if the very basis of the conferment of pleasure/ confidence by the representatives of the people upon the Government is withdrawn, resulting in toppling down of the Government, in that event automatically by necessary implication the pleasure conferred by the outgoing Government upon the constitutional functionaries, who enjoy their office during pleasure, deems to have been withdrawan by fiction of law.
23. In this manner doctrine of pleasure' is to be understood in the light of the 'express' and 'implied' relevant provisions of the Constitution, which are not only illustrative but also exhaustive.
24. Therefore, pleasure may be withdrawn by passing order and/or issuing notification under the statutory or constitutional provisions, which are express in nature, and also by implication the pleasure stands withdrawn automatically when the Government is toppled down by whose pleasure the constitutional functionaries were/ are appointed. That is why in the past most of the constitutional functionaries who were appointed during the pleasure of the Government, after the fall of the Government and the formation of the popular Government, voluntarily vacated the office by tendering resignation, and recently the Governor of Gujarat, H.E. Krishna Pal Singh, is the example.
25. However, there may be exception. A constitutional functionary appointed by the outgoing Government may also enjoy the pleasure of the popular Government and the popular Government on its turn may continue him to hold the office reposing the confidence/pleasure upon him either at the place where we was appointed by the outgoing Government or by withdrawing that pleasure from that place he may be shifted or transferred toother place. This shifting or transfer is manifest if we meticulously examine the provisions of Article 156 read with Article 159 and the form of oath appended to it.
26. It will not be out of place to State that the words "to hold office at the pleasure of the Crown" originated from the Latin phrase "Durantebene Placito" i.e. "during the pleasure." It means that tenure of office of a person, except where the pleasure is not qualified by providing statutory safeguard, can be terminated at any time and without assigning any clause. This rule is well known in English law which has been borrowed in our Constitution under Article 156(1).
27. Transfer from one State to another State of H.E. the Governor cannot be narrowly construed applying the general principle applicable to the Government servants. The office of H.E. the Governor of a State is not an employment under the Central Government. Even the office of H.E. the Governor is not subordinate or subservient to the Central Government. According to the provisions of the Constitution U.K. the Governor is neither amenable to the directions not accountable to the Central Government in the manner in which he carries out his functions and duties and that is why such independence has been given to the State head H.E. the Governor and, perhaps, for these reasons, removal from the office of Governor is made subject to the pleasure of the President of India, instead of adopting a long procedure of impeachment. In Hargovind Pant v. Dr. Raghukul, AIR 1979 SC 1109 this is what the Apex Court has held that the office of the Governor is not an employment under the Government of India and it does not come within the prohibition of Clause (d) of Article 319 of the Constitution.
28. Similar words occurring under Article 156(1) of the Constitution "hold office during the pleasure" came up for consideration in Terrell v. Secretary of State for the Colonies (1953) 2 All ER 490 before the Queen's Bench Division of England. In this case Hon'ble Terrell was appointed a Judge of the Supreme Court of the Straits Settlements. Though the age of superannuation was 62, but the office was during the pleasure of the Crown. In the relevant year he occupied the office of judgeship at Malaya which was one of the British colonies. Hon'ble Terrell was on leave in Australia in the year 1942 when Malaya was occupied by the Japanese forces and, as such, he was unable to resume the office until the Britishers regained control over Malaya. The judgment further reveals that before he could reach the age of superannuation, about 17 months before he was removed from the office of judgeship. Hon'ble Terrell brought an action against the order of his removal. In this context his Lordship Hon'blc Goddard, C.J. held that, "Judges in Malaya did not hold thier office during good behaviour, but they held, and always had held, office at the pleasure of the Crown, and, therefore, the claimant had held office during pleasure. The right of the Crown to dismiss at pleasure was a rule of law which could not be taken away by any contractual arrangement....."
29. Therefore, as discussed above, safely it can be inferred from a conjoint reading of the provisions of Article 156 read with Article 159 together with the form of oath appended to it by interpreting them in the manner as discussed above to reconcile the provisions, However, where the provisions of the Constitution arc silent and even reconciliation of the provisions is also not amenable, in those circumstances, conventions, precedents, usages and traditions have to be adhered to. The only care is to be taken that contrary to the specific provisions of the Constitution, conventions, precedents, usages and traditions have no role to play. There arc several precedents in the past that H.E. the Governors have been transferred from one State to another Slate.
30. In this regard Professor J. D. Mitchell in his book "Constitutional Law 2nd Edition 1968" writes that conventions cannot be regarded as less important than the rule of law. Similarly Sir W. Iver Jennings in his book "Law and the Constitution 5th Edition" refers to the constitutional conventions. "Thus within the framework of the law there is room for the development of the rules of practice, Rules which may be followed as consistently as the rules of law and which determines the procedure which the men concerned with Government follow." Mr. Mill refers to as "The unwritten maxims of the Constitution," Dicey called them "conventions of the Constitution," while Anson refers to them as "customs of the Constitution."
31. Thus, the short explanation of the constitutional conventions is that they provide the flesh which clothes the dry bones of the law. They make the legal constitutional work, they keep in touch with the growth of the ideas. A Constitution does not work by itself. It has to be worked by men. It is an instrument of national cooperation and the spirit of co-operation is as necessary as the instrumnet. The constitutional conventions are the rules elaborated for effecting that co-operation. Men have to work the old law in order to satisfy the new needs, constitutional conventions are the rules which they elaborate.
32. Our Apex Court in Supreme Court Advocates-on-record Association v. Union of India (1993) 4 SCC 441 : (AIR 1994 SC 268) has held that, "We are of the view that there is no distinction between the constitutional law and an established constitutional convention and both are binding in the fields of their operation. Once it is established to the satisfaction of the Court that a particular convention exists and is operating then the convention becomes a part of the constitutional law of the land and can be enforced in the like manner."
33. Thus, from the foregoing discussions, we hold that the Governor holds office during the pleasure of the President. This means that five years term is subject to the exercisc of the pleasure by the President and the President of India is the best judge to decide as to when and in what circumstances the term of a sitting Governor of a State may be reduced, or he may be asked to vacate or may be transferred from one State to another, and so rightly in exercise of the constitutional powers by the President of India, H.E. the Governor Dr. A. R. Kidwai is transferred from State of Bihar to the State of West Bengal and similarly, in his place, in exercise of the constitutional powers by the President of India, the appointment of H.E. the Governor Sri Sunder Singh Bhandari has been made as Governor of State of Bihar.
34. Thus, this writ petition fails and is dismissed.
S.K. Singh, J.
35. I agree.