The Supreme Court Thursday issued notice to the central government on a petition filed by Uttarakhand Governor Aziz Qureshi challenging the union home secretary's asking him to resign in the wake of the BJP coming to power at the Centre.
A bench of Chief Justice R.M. Lodha, Justice Kurian Joseph and Justice Rohinton Fali Nariman said the matter would be heard by a five-judge bench as it involved the interpretation of article 156 of the constitution on the point of the procedure to be followed for seeking removal of the governors in the exercise of the withdrawal of president's pleasure.
The notice, returnable in six weeks, has also gone to Home Secretary Anil Goswami and the Uttarakhand government.
Questioning whether Goswami could ask him to resign or face removal, the Uttarakhand governor urged the court to examine: "What is the mode of communication, regarding any aspect of pleasure of the president under article 156 and can anyone, except for the president's secretariat, make any communication to the governor of the state regarding withdrawal of pleasure."
Qureshi has taken exception to Home Secretary Goswami asking him to either put in his papers or face removal. The phone calls, the constitutional propriety of which has been questioned by the governor, were made on July 30 and Aug 5.
Article 156 that deals with the term of office of governor says that the governor shall hold office during the pleasure of the president.
The court referred the matter to the constitution bench after senior consul Kapil Sibal said that a governor can only be removed by the president after withdrawal of the pleasure and the home secretary could not just pick up the phone and ask him to resign.
At the outset of the hearing, Chief Justice Lodha said that the main grievance of the Governor Qureshi is that the home secretary conveyed to him that he should resign.
"Someone will have to convey to them (governor). President and the prime minister will not convey. Someone will have to convey," he said as Sibal said that it was not for the home secretary to convey the decision asking the governor to quit.
Sibal said there has to be a procedure to secure the resignation of a governor, and urged the court to call for the records based on which the home secretary asked the Uttarakhand governor to resign.
Citing an earlier constitution bench judgement, Sibal said that the apex court had held that a governor is not an employee of the central government and occupies the office at the pleasure of the president.
Qureshi in his petition has contended that the conduct of the home secretary impinged upon the well-defined hierarchies of the state and unless it was checked, it would lead to "arm-twisting the governor, and may impinge upon his independence regarding discharge of important functions, ascribed by the constitution to the governor's office".
The four questions, raised in the petition, Qureshi has urged the court to address include whether the union home secretary has any "authority to call the governor of a state, who is his constitutional superior, and ask for his resignation".
He further asked the court to examine whether the conduct of the central government and the union home secretary "if allowed to continue and not forthwith proscribed, will jeopardize the constitutional scheme" and eventually could result in "arm-twisting the governor regarding important functions of the governor's office".
It also raised the question whether the action and conduct of the central government and the home secretary "has the propensity to irreparably injure the federal structure and centre-state relations".
