THE SINGHAL
EFFECT
Redefining Power Dynamics and The Strain on
Federalism
Bhavya Gupta (B23059)
1
“A true federal balance requires not just a structure but a spirit, when power is centralised,
democracy is diluted” – Justice D.Y. Chandrachud.
I. Introduction
As of early 2024, around 17 out of 28 governors have been appointed from direct political affiliations
and only 18% of the total tenures of governors have been of full 5 years - in light of such, it becomes
vital to take a look back at one of the legal cornerstones, concerning the office of governor in India i.e
the case of B.P Singhal v. Union of India 1 (‘B.P. Singhal’).
Former governor of Gujarat, B.K Nehru once described the constitutional position as reserved for a
“burnt out superannuated member of the ruling party for whom a governorship is a kind of luxury
retirement. Another former governor defined her role as a “super hostess”.
The forefathers envisaged the office of the governor to be a ceremonial constitutional head of state,
maintaining a bridge between the centre and the state and acting as a safeguard of the federal structure
under the constitution. At present, the position of the Governor has been reduced to a retirement package
for politicians, and political considerations trump the constitutional requirements of an appointed (as
opposed to elected) Head of the state2. Successive union governments have grossly abused their power
and have essentially planted their people in State capitals to further their narrow political interests, thus
dismantling the constitutional notion of federalism. The continuing tradition of Governors being
routinely changed with a change in the Central Government has brought into question the neutrality and
transparency of this office. Despite the affirmation by the Supreme Court of a secure tenure for the
Governor in B. P. Singhal, contentious questions remain.
In this commentary, I will first contextualise the office of the governor within the Indian political
landscape, tracing its historical origins and constitutional debate. I will then analyse the legal and
political implications of the decision in B.P Singhal, examining the abundance of discretionary power
vested in the office leading to further opacity and occlusions and its impact on centre-state relations.
Lastly, I examine the existing mechanisms (or lack thereof) to check the arbitrary removals and the
following implications for democratic accountability.
II. Situating the Governor in India
1
B.P. Singhal v Union of India (2010) 6 SCC 331.
2
Nayakara Veeresha, “Governing the Governors” (Deccan Herald, 27 November 2023) accessed 9 August 2024
2
The office of the Governor is essentially a by-product of colonial rule that was appointed under the
Company and the Crown for ease of administration and to oversee provinces, exert control and ensure
loyalty to the Crown. This model was retained post-independence and the role of the Governor, and
their appointment process was of much debate during the nation-building exercise.
In the Constituent Assembly debates, Jawaharlal Nehru argued that a governor should be someone who
remains largely outside the sphere of politics, “eminent people, who have not taken too great a part in
politics”3The assembly envisaged a person who was an active member of public life, could contribute
to government functioning and act as a representative of the masses by bringing their own expertises.
K.M Munshi, in his speech, put forth an idea of a governor that, “would remain independent with a
detached frame of mind rather than someone wedded to party politics”.4 A look at these suggestions
paints a picture of certain aspirations for the office of the governor occupied by someone of impeccable
integrity, unaffected by party politics and an independent constitutional head.
Today the Governor is the Chief Executive Officer of the state.5 The Executive power of the state is
vested in them and all executive actions of the state are taken in their name. 6 Similar to the role of the
President, the Governor is also a constitutional ruler or a nominal figure. Governors of Indian states
have been vested with powers and functions at the state level as that of the President at the capital.7
Under the Constitution of India, the Governor of a State possesses wide powers and functions, i.e.,
executive, legislative, financial and judicial.
In the completed Constitution, Article 155 lays down the procedure for the appointment of a governor
and states that they shall be appointed by the President by warrant under his hand and seal8. Article 156
lays down the ‘Term of office of Governor’ which states that the governor shall hold office during the
pleasure of the president and foregoing other provisions for a term of five years.9 Read together these
imply that, if a governor continues to enjoy the “pleasure of the president10”, they can be in office for
the stated period. Though under Article 7411, the President is bound to act on the aid and advice of the
council of ministers which in effect implies that it is the central government that appoints and removes
the governors. “Pleasure of the President” is equivalent to the whims and fancy of the central
3
Jawaharlal Nehru, Speech in Constituent Assembly Debates, Vol. VIII. (1949, May 31).Retrieved from
http://164.100.47.194/Loksabha/Debates/cadebadvsearch.aspx
4
K.M Munshi, Speech in Constituent Assembly Debates, Vol. VIII(1949, May 31). Retrieved from
http://164.100.47.194/Loksabha/Debates/cadebadvsearch.aspx
5
Ishika Kedwal, “Indian Federalism and Governor – Challenges Therein”, SSRN (2022)
6
Ibid
7
Ibid
8
The Constitution of India, 1950, Article 155
9
The Constitution of India, 1950, Article 156
10
Doctrine of Pleasure means that the services of the officer in question can be terminated at any time by the
sovereign, without any official assignment of reason.
11
The Constitution of India, 1950, Article 74
3
government in the shadows of the Presidential seal. For the removal of the Governor, the Constitution
does not provide the system of impeachment as it is provided for the removal of the President. H.M
Seervai famously said that Governors hold office during the pleasure of the President and can be
removed by him at any time during their term of office, but this only extends to cases of immorality and
indecency.12 It is not necessary to provide for the removal of Governors by impeachment or by a process
analogous to impeachment. 13 He can be removed on the grounds of gross delinquency, namely
corruption, bribery and violation of the Constitution.14
III. The Ripples of the Singhal Judgement
The case of B.P. Singhal questioned the validity of the then Presidents’s – APJ Abdul
Kalam’s, decision (on the advice of the council of ministers of the UPA government) to remove the
Governors of Uttar Pradesh (Vishnu Kant Shastri), Gujarat (Kailashpati Mishra), Haryana (Babu
Paramand), and Goa (Kendra Nath Sahani), after assuming power in the 14th Lok Sabha general
elections of 2004; with no specific reasons given for their removal. 15 The key issues brought forth by
both parties were on – a) the scope of the doctrine of pleasure, b) examining the existence of
express/implied limitations upon the powers under Art. 156(1), and c) whether the removal of governors
in the exercise of the doctrine of pleasure is open to judicial review. The petitioner requested the
production of documents and facts which led to the order of removal, essentially asking for the
reasoning behind the decision and also filed a Writ of Certiorari requesting the quashing of the order
and re-in-station of the four governors.16
A four-judge constitutional bench of the Supreme Court ruled that the President, i.e. the Central
Government, has absolute power to remove the Governor of a state at any point in time, without having
to offer the Governor any ground for dismissal, and/or opportunity to be heard. It however observed
that such power cannot be exercised arbitrarily and unreasonably. 17 The same must be exercised only
in rare circumstances when compelling reasons require that such a course of action be adopted. Further,
the Court stated that the fact that the Governor is not predisposed to the policies of the newly elected
Central Government can in no way be interpreted as sufficient ground to remove him. The Court
12
Hormasji Maneckji Seervai, Constitutional Law of India, Vol. II, Fourth Edition, 2022, p.2022
13
Piyush Khandelwal and Lakshyaraj Singh, “Governor and Indian Federalism”, Indian journal of law and legal
research, Vol. IV, Issue VI.
14
Ibid
15
B.P. Singhal v Union of India (2010) 6 SCC 331.
16
Ibid
17
Ibid
4
observed that the Central Government cannot choose to dismiss the existing Governors only to replace
them with favourable persons.18
The apex court held that “the doctrine of pleasure is not a license to act with unfettered discretion, to
act arbitrarily, whimsically or capriciously. It does not dispense with the need for cause for withdrawal
of the pleasure and as such the doctrine of pleasure is not free of restrictions”19.
Lastly, the Court held that a decision to remove a Governor may be challenged in a court of law;
however, the onus shall lie on the petitioner to make a prima facie case of mala fides and arbitrariness
against the Central Government. Once mala fide has been established, the Central Government may be
required by the court to produce evidence establishing compelling reasons requiring such drastic action
on its part. In other words, the Central Government does have the power to remove the Governors of
various states, provided such removal is due to compelling reasons and not mere political
convenience − its decision must be bona fide, and not arbitrary, or borne out of malice. This ensures
that the Governor is no longer reduced to a political stooge of the Central Government and has
reasonable security of tenure.
This judgement would alter the landscape of centre-state relations for the foreseeable future.
Before deciding on the matter, the bench weighed the advantages and disadvantages of the arguments
propounded by both parties. The bench in all their deliberation failed to recognise that their judgement
was sub-silentio on multiple points, leaving much room for future varied and often incorrect
interpretations and leaving several essential questions unanswered.20 The judgment makes it optional
for the President to provide their justification for the governor’s removal. All the while stating that to
bring forth the question of improper removal, the governor would have to make a prima facie case. This
puts the burden of proof on the aggrieved Governor who must establish a case, and furnish evidence
that their removal was arbitrary, capricious and malicious without even knowing the reasonings for such
removal.
What this does, is further encourage and facilitate political manoeuvring in the administration be it due
to a change in government or on ‘displeasing’ the President. This paradox is also vague in its phrasing
thus allowing for the misuse of this power.
The principles established in B.P. Singhal have been upheld and continue to guide the removal process
of Governors. It remains a key reference point for courts ensuring constitutional ‘propriety’ of executive
actions concerning the office of the governor.
18
Ibid
19
Anviti Chaturvedi, “Removal of Governor: What ones the law say?” PRS Blog (2014)
20
Siddharth Peter de Souza & Aayush Agarwala, “The need for ‘nudges’ by the Supreme Court of India: the
case for appointment and removal of the governors in India”, Indian Journal of Public Administration, pp. 1-19
5
IV. Perceptions of bias and consequent effect on centre-state relations
The Indian system of governance was imagined to be quasi-federal with a unitary bias. Across
governments everywhere, the centre has had a tendency to gradually encroach upon the powers of the
states to the detriment of the latter. 21 Most State governments have found themselves in an adversarial
relationship with the Governors.
Post the B.P. Singhal judgment, while the Supreme Court's ruling aimed to curb arbitrary dismissals of
Governors, perceptions of bias in gubernatorial appointments and removals have persisted, affecting
Centre-State relations. Despite the judgment's emphasis on having “valid” reasons for removal, the
process remains politically charged, with states often viewing the appointment or dismissal of
Governors as driven by the Centre's political motives rather than constitutional considerations.22 This
perception of bias is particularly pronounced when Governors appear to act in ways that align closely
with the central government’s interests, especially during politically sensitive situations like the
imposition of President's Rule or calling for a Floor Test. Such actions can exacerbate tensions between
the Centre and states, leading to accusations of partisanship and undermining trust in the impartiality of
the gubernatorial office. Although the B.P. Singhal judgment provided a framework for protecting
Governors from arbitrary removal, it has not fully dispelled concerns about the political underpinnings
of these decisions, leaving the issue of perceived bias as a lingering challenge in Centre-State relations.23
There exists an abundance of discretionary power leading to opacity and occlusion in the centre of state
relations farthing weighing the centre’s power on the weighing scale of federalism.
V. Reconciling executive discretion and Rule of Law
There has been much discourse on the matter of gubernatorial removal. Several committees and
commissions have grappled with the same and have suggested recourses that can be adopted to solve
the issues.
The Administrative Reforms Commission of 196924 proposed the appointment of Governors for states
to be individuals with extensive experience in public service and administration, who are not affiliated
with any political party. The Rajamannar Committee25, established by the Tamil Nadu government in
21
Gurbachan Singh Jagat, “centre-state friction taking its toll on governance” The Tribune (2021)
22
Nikhil Iyer, “Removal of Governors: a fraud on the Constitution”, Rostrum Law Review, Vol. II, Issue. II.
23
Ibid
24
Report of the Administrative Reforms Commission (Government of India, 1969)
25
Report of the Committee on the Role of the State in the Economy (Government of Tamil Nadu, 1978)
6
1978, suggested that the Central government should engage in discussions with the chief ministers of
the states before appointing a Governor.
The Sarkaria Commission of 1988 26 put forward several recommendations for the selection of
Governors. It suggested that Governors should be chosen in consultation with the Chief Minister of the
respective state, be accomplished in their respective fields, come from outside the state, have a neutral
stance in politics or not have been actively involved in recent political activities, and not be a member
of the ruling party. Regarding the removal of Governors, the commission recommended that a
Governor's term, which is typically five years, should only be terminated if questions arise about their
morality, dignity, or adherence to constitutional norms. If such removal is considered, the State
27
Government should be informed and consulted. The Venkatachaliah Commission similarly
recommended that ordinarily Governors should be allowed to complete their five-year term. If they
have to be removed before the completion of their term, the central government should do so only after
consultation with the Chief Minister. The Punchhi Commission 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.
Suggestions of a) a codified framework, b) parliamentary oversight and c) consultations between Centre
and state governments, can and should be applied, as they are practical in their views placing objective
criteria over political expediency.28 Impartiality and independence of the office can be ensured by
simply providing a secure tenure – the same has fared well for the judges of higher courts and other
constitutional functionaries.29 Their removal through impeachments would maintain a check over their
activities. This shift of power would not undermine the Centre’s authority as the governor would still
be bound to the Centre in matters of referring bills, recommendations of State emergencies and in the
original aim of furthering general goodwill between the Centre and State. Additionally, it would benefit
the state in exercising its autonomy and maintaining the stability of governors even with changing
governments.
26
Report of the Sarkaria Commission on Centre-State Relations (Government of India, 1988)
27
Report of the national commission to review the working of the constitution (Government of India, 2002)
28
Siddharth Peter de Souza & Aayush Agarwala, “The need for ‘nudges’ by the Supreme Court of India: the
case for appointment and removal of the governors in India”, Indian Journal of Public Administration, pp. 1-19
29
Snehil Singh, “Reforming the Office of the Governor”, Hindustan Times (2022) (last accessed 11 September
2024)
7
Embedding them into the fabric of governance, would result in balancing executive discretion with the
constitutional frameworks thus reinforcing the integrity of Indian federalism. Governors would thus be
able to make decisions in the public interest rather than political interest. 30
VI. Conclusion
While it is indeed recognised that the Indian Constitution aimed for the creation of a federal republic
with a unitary structure, it is vital to identify that the political climate has changed from how it was in
the mid-20th century. The India we know today is no longer reeling from colonial departure and fear of
secession and domestic revolts. Thus, there’s no need to concentrate power in the central government
in fear of the states. The states today are politically and economically strong and well-bound to the
nation. The people are well aware of the importance of a well-oiled inter-dependant system that is
advantageous to all and stake their association with the Union31. The Central government has remained
at the apex of the political machinery. Therefore, a transfer in the power of appointment and removal
of a Governor to the State would not undermine the power of the centre.
The continued relevance and necessity of the position of Governor is often understated. While
commentators and regional political pundits have long argued for the abolition of the post, one cannot
deny that it continues to serve essential constitutional functions.32 In times of constitutional crises in
states, it is the figurehead of the Governor who ensures the continuance of the state, even when
no government has ascended to power, and/or is incapable of governing effectively.33 The Governor
also serves as a neutral mediator in case of informal dispute settlements within the various state organs
and continues to be perceived by many as the conscience of the community within the state, despite
the political trappings of this office. 34 Thus, the abolition of this office would be shortsighted and
harmful, but it cannot be denied that several alterations are much needed to ensure the smooth
functioning of federalism.
30
Ibid
31
Gautam Bhatia, “Do we need the office of the governor”, The Hindu (2018) (last accessed 11 August 2024)
32
Ibid
33
Ibid
34
Ibid 25
