That Wasn’t A Capital Idea – On Ministers dismissal by Governor

Source- The post is based on the article “The Governor’s move is dangerous, unconstitutional” and the article “A misadventure” published in “The Hindu” on 1st July 2023.

Syllabus: GS 2- Issues pertaining to federalism

Relevance– Governor role in federal matters

News- The Governor of Tamil Nadu, R.N. Ravi, has dismissed V. Senthilbalaji, a Minister in the Council of Ministers of Tamil Nadu on June 29, 2023. The Governor later backtracked on his decision late in the night.

After dismissal of the Minister, the Tamil Nadu Governor again wrote to the Chief Minister that he was holding the order in abeyance and was seeking the opinion of the Attorney General of India.

What are the issues involved in this matter?

Governor seeking ex post facto legal opinion reflects poorly on his decision-making prowess.

This unprecedented act of dismissing a Minister without the recommendation of the Chief Minister of the State, is going to set a dangerous precedent. It 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 recommendation of the Chief Minister, the whole constitutional system will collapse.

What does the constitutional provision say about the Governor’s power to dismiss a 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 Chief Minister alone has the discretion to choose and dismiss his Ministers. This is a political decision of the Chief Minister, who is ultimately answerable to the people.

It is true that the pleasure doctrine has been brought into the Constitution of India from the Government of India Act, 1935. The pleasure of the Governor under the Constitution of India is not the same as that of the colonial Governor. Thus, the Governor during the colonial rule had absolute discretion to choose a Minister and dismiss him.

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.

As per Article 164, the Ministers shall hold office at the pleasure of the Governor. But independent India has a constitutional system. The Governor is a mere constitutional head and can act only on the aid and advice of the Council of Ministers.

B.R. Ambedkar had stated 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.

What is the stand of the judiciary regarding the position of the Governor in India’s Constitutional setup?

In Shamsher Singh and Anr vs State Of Punjab (1974), SC held that the President and Governor are custodians of all executive and other powers under various Articles.

They shall exercise their formal constitutional powers in accordance with the advice of their Ministers except in under few circumstances mentioned in the constitution.

Similarly, in Nabam Rebia vs Deputy Speaker, a Constitution Bench of five judges reaffirmed the law laid down in Shamsher Singh. It further held that the discretionary powers of the Governor are limited to the postulates of Article 163(1).

What should be the best course of action in such a scenario?

Any call to remove a Minister is an appeal to moral sense rather than a legal requirement. For the Governor to remove someone unilaterally is nothing but a constitutional misadventure.

It will be desirable if Ministers facing charges quit on their own, or they are removed by the respective Chief Ministers.

In the past, the framing of charges in the trial court has led to Ministers being removed, but it remains a moral high ground. It is not a mandatory feature of the constitutional system.