The Governor’s Move is Dangerous, Unconstitutional

1 Jul 2023

Context:

Recently, the Tamil Nadu Governor’s move to ‘dismiss’ a Minister highlights the point that the pleasure of the Governor under the Constitution of India insofar as it relates to Ministers is not the same as that of the colonial Governor.

Power to Dismiss a Minister:

Article 164 of the Indian Constitution: It states that the Chief Minister is appointed by the Governor without any advice from anyone. But he appoints the individual Ministers only on the advice of the Chief Minister.
- The Chief Minister alone has the discretion to choose his Ministers.
- He also decides who will not remain as a Minister in his Council.
- The Constitution has not transferred the discretion of the Chief Minister to the Governor.
Words of Dr. B.R. Ambedkar: Choosing a Minister and dismissing him are no longer within Governor’s discretion. It is the Chief Minister who chooses the Minister. It is the Chief Minister who recommends the removal of a Minister.

Difference between Government of India Act 1935 and Constitutional Power on Dismissal of a Minister:

As per Section 51(1) and Section 51(5) of the Government of India Act, 1935, the Ministers were chosen by the Governor and they were dismissed by him at his discretion.
- Thus, the Governor during the colonial rule had absolute discretion to choose a Minister and dismiss him.
Undoubtedly, much of the Act of 1935 has been reproduced in the Constitution.
Section 51 of the Government of India Act, 1935 confers on the Governor the discretion to choose as well as dismiss the Ministers.
But when Article 164 of the Constitution was drafted, the words “chosen”, “dismissal” and “discretion” were omitted.
- It was a significant omission which makes it abundantly clear that the Constitution did not confer any discretion on the Governor to either choose or dismiss an individual Minister.

Issues Related to Office of Governor:

Governor Discretionary Power:
- Giving or withholding assent to a Bill passed by the state legislature
- At the time, for a party to prove its majority, generally after a hung verdict in an election.
Lack of Guidelines for Exercise of his/her Power:
- For appointing a Chief Minister or dissolving the Assembly.
- No prescribed time limit set to withhold assent to a Bill.
- For his recommendations to the President for invoking President’s Rule.

Committees Recommendations:

Regarding the Selection of Governors:
- The National Commission To Review the Working of the Constitution appointed in 2000 suggested that the Governor of a State should be appointed by the President, after consultation with the Chief Minister of that State.
Sarkaria Commission:
- Set up in 1983 to look into Centre-state relations, suggested that the Vice President of India and Speaker of Lok Sabha should be consulted by the Prime Minister in the selection of Governors.
Punchhi Committee:
- Constituted in 2007, proposed that a committee comprising the Prime Minister, Home Minister, Vice President, Speaker, and the concerned Chief Minister should choose the Governor.
- It recommended deleting the “Doctrine of Pleasure” from the Constitution, but supported the right of the Governor to sanction the prosecution of ministers against the advice of the state government.
- Provision for impeachment of the Governor by the state legislature was also suggested.

Related Judicial Judgments:

Shamsher Singh and Anr vs State Of Punjab (1974): A seven- judge Constitution Bench declared that the President and Governor exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well known exceptional situations.
Nabam Rebia vs Deputy Speaker Case (2016): A Constitution Bench of five judges reaffirmed that the discretionary powers of the Governor are limited to the postulates of Article 163(1).
- The Court also set aside the decisions in the Mahabir Prasad Sharma and Pratapsing Raojirao Rane cases, where it was held that the Governor can exercise power under Article 164 in an unfettered manner.

Way Forward:

Clear Guidelines: A legislature should be enforced, prescribing clear cut guidelines regarding the exercise of powers by the Governor.
Time Boundation: Time limit should be prescribed for withholding bills.
Work on Recommendations: Need to work upon the recommendations of various committees.
- India is a Parliamentary democracy, hence Parliament should prevail and similarly the scenario suited for democratically elected State Legislature.

Additional Information:

Doctrine of Pleasure:
- This doctrine originated in England. In England, the Crown is regarded as the Executive head and the civil services are part of the Executive.
- The doctrine of Pleasure means that the Crown has the power to terminate the services of a civil servant at any time they want without giving any notice of termination to the servant.
- This doctrine is based on the concept of public policy and whenever the Crown feels that a civil servant should be removed from his office because keeping him will be against public policy, the Crown can remove such servant.
Provision in India:
- In India, Article 310 of the Indian Constitution embodies the provision for this doctrine (but not absolute in India).
- According to Article 310, except for the provisions provided by the Constitution, a civil servant of the Union works at the pleasure of the President and a civil servant under a State works at the pleasure of the Governor of that State.
- This implies that the operation of the Doctrine of Pleasure can be limited by constitutional provisions.
- Under the constitution, the following are excluded from the operation of this doctrine:
  - Judges of the Supreme Court
  - Judges of the High Courts
  - Chief Election Commissioner
  - Comptroller and Auditor General of India.
- Thus, this doctrine is not absolute and is subject to Constitutional provisions.
- The civil servants can also be excluded from the operation of this doctrine because they have been provided with some protection under Article 311 and thus this doctrine’s application can be limited to civil servants as well.