The relevant Article in the Constitution which throws light on this question is Article 164. It says that the Chief Minister shall be appointed by the governor and other ministers are appointed by him on the advice of the Chief Minister.
The Governor of Tamil Nadu, RN Ravi’s decision to dismiss a state minister, though it has been kept in abeyance after a few hours, has understandably evoked a lot of discussion in the media. Once again, this episode brought into focus the issue of the power of the governor vis-a-vis the elected government. The most pertinent question which arises in this context is whether the governor has the power to dismiss a minister without being advised to do so by the Chief Minister.
The relevant Article in the Constitution which throws light on this question is Article 164. It says that the Chief Minister shall be appointed by the governor and other ministers are appointed by him on the advice of the Chief Minister. This Article makes it clear that the governor can appoint other ministers only on the advice of the Chief Minister. Article 164 further says that the ministers hold office at the pleasure of the governor which means that if the governor withdraws his pleasure from an individual minister he cannot remain in office.
Now, the question is what exactly is the meaning of the pleasure of the governor and whether the governor is free to withdraw his pleasure at will. Under the constitution, the governor can perform his functions only on the advice of the council of ministers. Of course, he has been entrusted with some discretionary functions which he can perform without such advice from the chief minister. But appointing or dismissing a minister does not come in the category of discretionary functions. The Constitution (Article 371A, 371C, 371E, 371H, etc.) confers some special responsibilities on the governor in the matter of administration in the states of Nagaland, Manipur, Sikkim and Arunachal Pradesh.
Similarly, the governor in exercise of his discretionary power makes a report to the president under Article 356 about the breakdown of the constitutional machinery. These are the functions which he performs at his discretion without the aid and advice of the council of ministers under the constitution. So far as the rest of the matters are concerned, he can act only on the aid and advice of the council of ministers. Thus, it is clear that the governor can withdraw his pleasure only with the aid and advice of the Chief Minister. The words “Ministers shall hold office during the pleasure of the governor” have no other meaning.
The Supreme Court had examined the position of the Governor in a state in a number of cases in the past. Shamsher Singh Vs the State of Punjab (1974) declared that the governor is the constitutional head and has no executive power which he can exercise independently. He can act only on the aid and advice of the council of ministers. In 2016, the Nabam Rebia case reaffirmed the law declared by Shamsher Singh.
During colonial rule, the governors were the real rulers who had the discretion to choose ministers and also to dismiss them at will. Section 51 (1) and (5) of the Government of India Act 1935 provides so. But Free India’s constitution excluded these provisions. Although, some members of the Constituent Assembly wanted to make free India’s governors as powerful as the colonial governors on the specious ground that politicians are not well educated and therefore they would not be able to run the administration effectively. This argument was out rightly rejected by Dr. BR Ambedkar who clarified that the governor under the constitution has no executive function to perform independently and should always act on the aid and advice of the council of ministers.
It cannot be presumed that the governors of present-day India are not aware of their constitutional position. Maybe they come under different pressures. The political situation prevailing today is very very different from that in 1949 when the constituent assembly adopted the Constitution. The draftsmen of the constitution thought it safer to use the established terminology used in the Government of India Act 1935. The words and expressions used in that act had acquired fixed and stable meanings. That is the reason we find terms such as ‘pleasure’ and phraseology like “the executive power of the state shall be vested in the governor” in the constitution.
The fact is that the executive power of the state can be exercised only by the elected government. But the above phraseology has been entirely borrowed from the Government of India Act 1935. Maybe there is a need to take a fresh look at many of these phrases and use terms and expressions which need no interpretation to make sense to the citizens.
(PDT Achary former Lok Sabha Secretary General)