#dnaEdit: The Beniwal case

It is natural that the BJP-led NDA government of Prime Minister Narendra Modi should be disliking Congress-led UPA-appointed governors, especially Kamla Beniwal who, as Gujarat governor, crossed swords with Modi, then Gujarat Chief minister. The NDA government advised and nudged these governors to quit and it made political sense. The new government should have the right to appoint its own people in the Raj Bhavans across the country because that is considered one of the natural privileges that accrue to  the parties and coalitions holding office at the Centre. The incumbent governors should have gracefully resigned as did the legal officers like the attorney-general, the solicitor general and others. But governors like Beniwal, Kerala governor Sheila Dikshit and Maharashtra governor Sankarnarayan have hung on.

There is no clarity on the procedure for the removal of governor in the Constitution. Articles 155 to 158 refer to the appointment, term, qualifications and conditions of holding office. There is no reference whatsoever for removal or dismissal and unlike in the case of the President who can be removed through impeachment under Article 61, Article 156 (3) states that the governor shall hold office for a term of five years. This can be interpreted to mean that there is no way of removing a governor until the completion of the term. The most that can be done is transfer the governor from one state to another. Article 156 (1) says that the governor holds office “during the pleasure of the President” and this could be interpreted to mean that the President can withdraw “the pleasure” any time. However arbitrariness is not allowed in Constitutional matters.

The government has recommended the removal of governor Beniwal on the flimsy reason that she misused her office in Gujarat to fly frequently to her home state Rajasthan. Beniwal’s indulgence may hurt the sentiments of austere Gandhians but it does not provide a credible legal base for her removal from a Constitutional post. The other charge against her is that as member of a farmers’ cooperative she filed a false affidavit stating that she was farm labourer along with other members of the cooperative and the registrar of cooperatives in Rajasthan had passed strictures against the cooperative. In strictly legal terms, those who filed false affidavits should have been hauled up for perjury in a court of law, convicted and punished. That would have provided a clear legal basis for disqualifying Beniwal from holding a Constitutional post. But no one has taken the issue to the logical legal end. Is there then a case of moral turpitude? If there is, it has to be established through a known legal process.

We are not concerned here about Beniwal as much as about the Constitutionality of the decision. And it is an important issue. If norms and procedures are not followed, it sets a dangerous precedent for any party at the Centre. This Constitutional lacuna in the removal of governors has to be remedied. The issue throws up a plethora of questions about the rationale of the Central government-appointed governor in a federal system. The President’s office is an elective one. The governor who functions in the state as the chief executive, like the President at the Centre, should also be elected. Jammu and Kashmir constitution had a provision for the state assembly electing its Sadr-e-Riyasat or governor. The governor in the present system is not standing on a firm Constitutional basis. The Centre should not be treating the governor as its representative or agent in the states. It is an untenable position.