Controversy regarding office of governor

(MainsGS2:Separation of powers between various organs dispute redressal mechanisms and institutions.)

Context:

• Recently the office of the Kerala Governor evoked nationwide attention for his remark “... the statements of individual Ministers that lower the dignity of the office of the Governor can invite action including withdrawal of pleasure”.

Doctrine of pleasure:

• The pleasure doctrine is a concept derived from English common law, under which the crown can dispense with the services of anyone in its employ at any time.
• In India, Article 310 of the Constitution says every person in the defence or civil service of the Union holds office during the pleasure of the President, and every member of the civil service in the States holds office during the pleasure of the Governor.
• However, Article 311 imposes restrictions on the removal of a civil servant as it provides for civil servants being given a reasonable opportunity for a hearing on the charges against them.
• There is also a provision to dispense with the inquiry if it is not practicable to hold one, or if it is not expedient to do so in the interest of national security.
• In practical terms, the pleasure of the President referred to here is that of the Union government, and the Governor’s pleasure is that of the State government.

Insight into provisions:

• Article 164 of the Constitution, which says the Chief Minister shall be appointed by the Governor and other Ministers shall be appointed by the Governor on the Chief Minister’s advice, adds that “the Ministers shall hold office during the pleasure of the Governor”.
• There have been instances of Governors dismissing Chief Ministers, but those were related to constitutional situations in which the legislative majority of the incumbent ministry was in doubt.
• The pleasure doctrine exists only in a constitutional sense, and is exercised by the Governor only on the advice of the Chief Minister, thus the term ‘pleasure of the Governor’ is used as a euphemism to refer to the Chief Minister’s power to drop a Minister from the Council of Ministers.

Historical understanding:

• Understanding the constitutional meaning of Article 164(1), which is different from its literal meaning, requires a historical reading of the provision.
• The draft Constitution, prepared by the Constitutional Adviser in October 1947, contained Article 126, according to which, “Governor’s Ministers shall be chosen and summoned by (the Governor) and shall hold office during his pleasure”.
• This Article, which was made part of the draft of the erstwhile Article 144, was discussed at length in the Constituent Assembly.
• The general discretion with the Governor was taken away, and the Cabinet was given the authority to rule. 
• Amendment to the draft Article 144 moved by B.R. Ambedkar resulted in the present constitutional scheme of Articles 163 and 164.

Withdrawing pleasure:

• The foundational theory of India’s constitutional democracy is that the function of the appointed Governor is always subject to the policies of the elected government, and not vice-versa.
• Article 163(1) says that the Council of Ministers must aid and advise the Governor. However, according to Article 163(2), the Governor can act in his discretion in certain matters as permitted by the Constitution.
• This would mean that the Governor is generally bound by the Cabinet decision except when he has a legitimate right to invoke his discretion, say, for example, in deciding on sanction to prosecute a Cabinet Minister or in his decisions as Administrator of a Union Territory, as per the orders of the President of India, etc.
• Thus according to experts, Article 164, which contains the provision relevant in the context of the Kerala Governor’s tweet and letter is inseparable from Article 163.
•  Therefore, it follows that unless the Cabinet or the Chief Minister advises the expulsion of a Minister, the Governor cannot cause the exit of a particular Minister by “withdrawing pleasure”.

View of founding father:

• One finds a democratic reading of Article 164 in the Constitution Bench judgment of the Supreme Court of India in Shamsher Singh vs State of Punjab (1974).
• In Shamsher Singh, for the purpose of comparison, the Supreme Court extracted Dr. B.R. Ambedkar’s introductory statement made in the Constituent Assembly.
•  Dr. B.R. Ambedkar said: “The President of the United States is not bound to accept any advice tendered to him by any of his secretaries. The President of the Indian Union will be generally bound by the advice of his Ministers. He can do nothing contrary to their advice nor can he do anything without their advice. The President of the United States can dismiss any Secretary at any time. The President of the Indian Union has no power to do so, so long as his Ministers command a majority in Parliament”.

Others scholars view:

• Scholar Subhash C. Kashyap has put it pithily, “The words ‘during pleasure’ were, always understood to mean that the ‘pleasure’ should not continue when the Ministry had lost the confidence of the majority; and the moment the Ministry lost the confidence of the majority, the Governor would use his ‘pleasure’ in dismissing it”.
• Therefore, the Article implies that the Governor is only a titular head of the State and that if the Cabinet has majority, the Governor cannot act against the Cabinet.

Conclusion:

• Justice V.R. Krishna Iyer in Shamsher Singh judgement - “The omnipotence of the President and of the Governor at State level is…. with the obvious intent that even where express conferment of power or functions is written into the Articles, such business has to be disposed of decisively by the Ministry answerable to the Legislature and, through it, vicariously to the people, thus vindicating our democracy instead of surrendering it to a single summit soul, whose deification is incompatible with the basics of our political architecture....”