The Governor’s Move is Dangerous, Unconstitutional

Why in News?

• The Governor of Tamil Nadu dismissed a Minister in the Council of Ministers of Tamil Nadu. Later, the governor backtracked on his decision, keeping the “dismissal” order in abeyance.
• The TN Governor’s move to ‘dismiss’ a Minister highlights the point that the pleasure of the Governor under the Constitution of India pertaining to Ministers is not the same as that of the colonial Governor. 

 

Why the Governor’s move is Dangerous?

• Against the spirit of Federal Structure
  • This unprecedented act of dismissing a Minister of a government which enjoys an absolute majority in the State legislature, without the recommendation of the CM of the State, is going to set a dangerous precedent.
  • It has the potential to destabilise State governments putting the federal system in jeopardy. 
• Unconstitutional Move
  • If Governors are allowed to exercise the power of dismissal of individual Ministers without the knowledge and recommendation of CM, the whole constitutional system will collapse.
  • The Governor’s letter says he was invoking Articles 153, 163 and 164 of the Constitution.
  • The constitutional scheme set out in these articles give no discretion powers to the Governor in the matter of appointing and removing ministers, which is under the CM’s domain.
  • The Governor's unilateral removal of someone on the pretext that his earlier advice to fire a Minister was disregarded would be a constitutional misadventure.

 

Clarity on Governor’s Power: Governor has “No Discretion” to Dismiss a Minister

• Under Article 164 of the Constitution, the CM is appointed by the Governor without any advice from anyone.
• But the governor appoints the individual Ministers only on the advice of the CM.
• 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 CM.
• The CM 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 CM, who is ultimately answerable to the people.
• The Constitution has not transferred the discretion of the CM to the Governor.

 

Understanding the Governor’s Power in Colonial Era and in the Present Context

• During Colonial Era: The Hire and Fire Approach
  • The Government of India Act 1935 says that the Governor’s Ministers shall be chosen and summoned by him, shall be sworn as members of the council and shall hold office during his pleasure.
  • Thus, the Governor during the colonial rule had absolute discretion to choose a Minister and dismiss him.
• In the Present Context: Mere a Constitutional Head
  • Independent India has a constitutional system under which a Governor is a mere constitutional head and he can act only on the aid and advice of the Council of Ministers headed by the CM.
  • B.R. Ambedkar 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. 

 

The Pleasure Doctrine

• The pleasure doctrine has been brought into the Constitution of India from the Government of India Act, 1935.
• 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.

 

Judicial Clarifications

• Mahabir Prasad Sharma(1968) and Pratapsing Raojirao Rane(1999) : Court set aside the decisions where it was held that the Governor can exercise power under Article 164 in an unfettered manner.
• Shamsher Singh vs State of Punjab (1974): A7-judge Constitution Bench declared that the President and Governor - custodians of all executive powers, shall exercise their formal constitutional powers only in accordance with the advice of their Ministers.
• Nabam Rebia vs Deputy Speaker (2017)
• A Constitution Bench 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 of the Constitution.
  • Article 163: There shall be a Council of Ministers with the CM at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this constitution required to exercise his functions or any of them at his discretion.

 

Conclusion

• The dismissal of a Minister of the TN Government by the Governor of the State without the advice of the CM is constitutionally wrong.
• Although the Governor later held back his order of dismissal for legal consultation, but the issue of dismissal of a Minister without the advice of the CM is one which clearly destabilises the constitutional system.

 

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Q1) What is the Executive Power of the State?

As per Article 154 of the constitution The executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution. Nothing in this article shall be deemed to transfer to the Governor any functions conferred by any existing law on any other authority; or  prevent Parliament or the Legislature of the State from conferring by law functions on any authority subordinate to the Governor.

 

Q2) What is the primary condition of the Governor's office?

The Governor shall not be a member of either House of Parliament or of a House of the Legislature of any State specified in the First Schedule, and if a member of either House of Parliament or of a House of the Legislature of any such State be appointed Governor, he shall be deemed to have vacated his seat in that House on the date on which he enters upon his office as Governor.

 

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Source: The Hindu