Context: Tamil Nadu Governor R. Ravi’s decision to unilaterally dismiss with immediate effect arrested Minister V. Senthilbalaji from the Council of Ministers only to hurriedly backtrack his decision tests the constitutional limitations on the role of the Governor and pushes the Raj Bhavan into uncharted political territory. So, the primary question which emanates is whether withdrawal of pleasure by the Governor unilaterally allowed under the constitutional set-up?
The State Executive consists of the Governor, who is the head of the State, and the Council of Ministers with the Chief Minister at its head. The Governor acts as:
- Constitutional Head of a State under Article 153 and 154, and as
- An agent of the Centre as he holds office during the pleasure of the President under Article 156.
- The governor is neither directly elected by the people nor indirectly elected by a specially constituted electoral college as is the case with the president.
- Under Article 155, Governor is appointed by the President by warrant under his hand and seal. In a way, he is a nominee of the Central government.
- Under Article164, Governor appoints the Chief Ministers and other Ministers and the Ministers holds office during the pleasure of the Governor.
Meaning of Withdrawal of pleasure
- “Pleasure of the Governor” did not mean the Governor has the right to dismiss the Chief Minister or Ministers at will. The “pleasure” of the Governor is understood to flow from the fact that the government enjoys majority on the floor of the House. The Governor can have his pleasure if the government enjoys a majority in the House.
- The Governor can withdraw his pleasure only when the government loses majority but refuses to quit. Then he withdraws the pleasure and dismisses it. Without the advice of the Chief Minister, a Governor can neither appoint nor dismiss a minister.
- Surya Narain Choudhary vs Union of India (1981) – Rajasthan High Court held that the pleasure of the President was not justiciable, the Governor had no security of tenure and can be removed at any time by the President withdrawing pleasure.
Supreme Court to Aid & Advice under Art. 163
- Article 163 of the Constitution states that there shall be a Council of Ministers with the Chief Minister 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 in his discretion. However, the discretion as such has neither been elaborated nor provided explicitly under the Indian Constitution.
Shamsher Singh v State of Punjab –
- Seven Judge Constitution Bench held that the Governor must exercise “formal constitutional powers only upon, and in accordance with the aid and advice of their ministers, save in a few well-known exceptional situations.
- These exceptions relate to dismissal of a government that has lost its majority or decision to invite a party to form the government. In both these circumstances, the aid and advice of the Council of Ministers becomes unavailable or unreliable.
- Court also held that the Governor has no right to refuse to act on the advice of the Council of Ministries. Such a position is antithetical to the concept of ‘responsible government’.”
- Similar issue arose when Governor of Kerala withdrew pleasure from Finance Minister KN Balagopal – Responding to this, constitutional law expert and former Secretary General of the Lok Sabha Mr. PDT Achary said that a Governor can take such a decision only on the advise of Chief Minister.
- The Supreme Court, in its recent ruling in Shiv Sena case relating to the political crisis in the Maharashtra government, cautioned against the Governor stepping in to settle political rivalry.
- Thus, Governor must act according to the mandates of the Constitution and should avoid political confrontation with the elected government especially with respect to withdrawal of pleasure.