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Governor sack row before 5-judge bench

New Delhi, Aug. 21: The Supreme Court today referred to a five-judge Constitution bench a petition filed by Uttarakhand governor Aziz Qureshi who has challenged the NDA government’s move to sack him if he doesn’t resign on his own.

The petition also questioned the Union home secretary’s authority to tell a governor to step down, which, Qureshi said, amounted to insubordination.

Home secretary Anil Goswami had called up Qureshi twice, asking him to resign.

The three-judge bench initially said the President — at whose “pleasure” the governor holds office, according to Article 156 of the Constitution — or the Prime Minister may not directly ask a governor to step down.

“If the President desires, somebody will have to convey the message. The President will not convey it. The Prime Minister may not convey it. So, somebody has to convey it, who will convey it?” Chief Justice R.M. Lodha, who was heading the bench, asked.

Senior counsel Kapil Sibal and Vivek Tankha, who appeared for Qureshi, said apart from the propriety of the Union home secretary conveying the message, the issue involved a vital constitutional question: whether the Centre could arbitrarily sack a governor following a change of government.

Sibal cited a May 2010 ruling of the apex court when a five-judge Constitution bench had said governors couldn’t be arbitrarily sacked and any such terminations were subject to judicial review.

The three-judge bench, which also included Justices Kurien Joseph and R.F. Nariman, then issued notices to the Centre and the home secretary. The court asked them to respond within six weeks and referred the matter to a five-judge bench.

Qureshi was appointed governor of Uttarakhand in May 2012. Although his term is due to end in May 2017, home secretary Goswami telephoned him twice — on July 30 and August 5, that is after the NDA government assumed charge on May 26 — asking him to resign. If he didn’t, he would be sacked, Goswami told Qureshi.

Earlier this month, the Centre sacked Mizoram governor Kamla Beniwal who, as Gujarat governor, had several run-ins with Prime Minister Narendra Modi when he headed the Gujarat administration.

Some other governors tendered their resignation after the new BJP-led dispensation insisted that they step down.

Qureshi has raised the following questions in the petition filed through counsel Rishabh Sancheti:

• Whether the Union home secretary has the authority to call a state governor, who is constitutionally his superior, and ask him to resign;

• Whether such conduct of the Union government and the home secretary would, if allowed to continue, jeopardise the constitutional scheme as the government could arm-twist a governor regarding important functions by threatening him with termination;

• Whether any authority, except for the President’s secretariat, can make any communication to a governor regarding withdrawal of pleasure;

• Whether the conduct of the respondents could irreparably injure the federal structure and Centre-state relations; and

• Whether Goswami had acted in severe breach of his official position and needed to be reprimanded.

In 2010, BJP leader B.P. Singhal had challenged the then UPA government’s move to sack governors appointed by an earlier NDA government.

A five-judge Constitution bench had then rejected the contention that the governor should be in sync with the ideologies of the Union government.

“Therefore, a governor cannot be removed on the ground that he is not in sync or refuses to act as an agent of the party in power at the Centre,” the bench had said.