The Governor’s move is dangerous, unconstitutional

General Studies Paper 2

Context

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.

The underlying issue

This unprecedented and deliberately provocative act of dismissing a Minister of a government which enjoys an absolute majority in the State legislature, without the recommendation of the Chief Minister of the State, is going to set a dangerous precedent and has the potential to destabilise State governments putting the federal system in jeopardy.

If Governors are allowed to exercise the power of dismissal of individual Ministers without the knowledge and recommendation of the Chief Minister, the whole constitutional system will collapse.

 The powers

• What needs to be examined first is whether Governors have the power to dismiss an individual Minister without the advice of the Chief Minister.
• 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.
• Articles and clarity
• This point would become absolutely clear on looking at the Government of India Act, 1935 which 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.
• The Section in the Act makes it clear that the Ministers shall be chosen by the Governor. So, they hold office during his pleasure.
• Further, sub-section of the Section 51 says that the functions of the Governor under this section with respect to the choosing and summoning and the dismissal of Ministers and with respect to the determination of their salaries, shall be exercised by him in his discretion.
• A mere 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 Chief Minister.
• R. Ambedkar had stated unambiguously in the Constituent Assembly that there is no executive function which a Governor can perform independently under the Constitution.
• It is true that the pleasure doctrine has been brought into the Constitution of India from the Government of India Act, 1935. But these words simply refer to the formal act of issuing the order of dismissal which is to be done by the Governor, but only on the advice of the Chief Minister.
• Judicial clarification
• The position of the Governor in India’s Constitutional setup has been clarified by the Supreme Court of India in a number of cases.
• In Shamsher Singh and Anr vs State Of Punjab (1974), a seven- judge Constitution Bench declared that the President and Governor, custodians of all executive and other powers under various Articles, shall exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers.
• Similarly, 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).

Conclusion

• In sum, the dismissal of a Minister of the Tamil Nadu Government by the Governor of the State without the advice of the Chief Minister is constitutionally wrong. Newspaper reports suggest that 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 Chief Minister is one which clearly destabilises the constitutional system.