The Governor’s move is dangerous, unconstitutional – Analysing the Doctrine of Pleasure | 1 July 2023 | UPSC Daily Editorial Analysis

What's the article about?

• It talks about the nature of the Governor's power to dismiss any minister from the Council of Ministers (CoM).

Relevance:

• GS2: Structure, Organization and Functioning of the Executive; Indian Constitution—Historical Underpinnings, Evolution, Features, Amendments, Significant Provisions and Basic Structure;
• Essay;
• Prelims

Context:

• In an unprecedented move, the Governor of Tamil Nadu dismissed a minister from the Council of Ministers (CoM) of the TN government independently of the CM and its CoM.
• In this article, we will analyse this action of the Governor from multiple perspectives and  examine whether Governors have the power to dismiss an individual Minister without the advice of the Chief Minister.

Constitutional Provision:

• Under Article 164 of the Constitution, 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 Article implies that the Governor cannot appoint an individual Minister according to his discretion. So, logically, the Governor can dismiss a Minister only on the advice of the Chief Minister.
• The reason is simple. The Chief Minister alone has the discretion to choose his Ministers. He decides who the Ministers of his Council will be. He also decides who will not remain as a Minister in his Council.
• This is a political decision of the Chief Minister, who is ultimately answerable to the people. The Constitution has not transferred the discretion of the Chief Minister to the Governor.

Government of India Act, 1935:

• As per the section 51(1) of this colonial Act, ministers are appointed by the governor general and he can dismiss them at any time. Thus, clearly exhibiting the pleasure doctrine.

• It should be noted here that 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.

Thoughts of Dr. B.R. Ambedkar:

• The father of the Indian Constitution has clearly envisioned the role of governor as ceremonial Constitutional Head.
• He had stated unambiguously in the Constituent Assembly that there is no executive function which a Governor can perform independently under the Constitution.
• So, choosing a Minister and dismissing him are no longer within his discretion. It is the Chief Minister who chooses the Minister. It is the Chief Minister who recommends the removal of a Minister.

Judicial Pronouncements:

• In Shamsher Singh and Anr vs State Of Punjab (1974), a seven- judge Constitution Bench declared the Law on the Powers of a Governor in the Republic must be exercised only on the aid and advice of CoM headed by the CM.
• In Nabam Rebia vs Deputy Speaker, a Constitution Bench of five judges reaffirmed the law laid down in Shamsher Singh and further held 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:

• The rising number of conflicts between governors and the elected CoM headed by the CM are more due to political causes than healthy disagreements. Thus, it is important to maintain constitutional molarity among the political communities.