Can a governor exercise his ‘discretion’ to dismiss a minister without consulting the chief minister?

The governor of Tamil Nadu, R.N. Ravi has taken an unprecedented decision to dismiss a minister of the council of ministers without taking any aid and advice from the chief minister of Tamil Nadu or other council of ministers for that matter. Is this in line with the Constitutional provisions and the decisions set-out by the Supreme Court in various similar judgments?

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THE unprecedented decision of the governor of Tamil Nadu to dismiss V. Senthil Balaji from the council of ministers without having any form of consultation with the chief minister, M.K. Stalin, or his cabinet, has received a fair amount of criticism from different quarters.

Even the Union home minister, Amit Shah, had to step in and advise the governor to first obtain an opinion from the Attorney General for India (AGI).

Now, Governor Ravi has, in another unprecedented move, put his decision in abeyance pending the opinion of the AGI.

The legal question that looms large is: Whether a governor can dismiss a minister without the aid and advice of the council of ministers headed by the chief minister?

Reasons recorded by Governor Ravi to dismiss Balaji

On June 29, Governor R.N. Ravi, in a demi-official (DO) letter to Chief Minister Stalin informed the latter that he had dismissed Balaji from the council of ministers with immediate effect.

The governor relied heavily on the scathing observations made by the Supreme Court in its two Orders dated September 8, 2022, and May 16, 2023 respectively, against Balaji while the court was hearing appeals concerning the investigation into the cash-for-job scam. 

The observations, inter alia, pertained to the conduct of the investigation officer who did not include offences under the Prevention of Corruption Act against Balaji. 

The court also wondered whether the complainant would have entered into a compromise if Balaji had not become a minister again in the new regime (referring to the Dravida Munnetra Kazhagam or DMK government). 

The governor, in his DO letter, observed that even after repeated observations of the Supreme Court about the continuing disruptive influence of Balaji on the course of the investigation, he was kept on as a minister, which emboldened him to intimidate and obstruct even income tax authorities.

Also read: Tamil Nadu governor dismisses minister without consulting chief minister, holds decision on Union home minister's intervention

The governor further stated in his letter that the income tax officers conducted a raid of the premises and persons associated with Balaji on May 28, 2023, during which Balaji's supporters prevented the raid from being conducted, physically assaulted and injured the income tax officers and snatched valuable documents from their custody.

The letter further noted that the situation had worsened to such an extent that the income tax officers had to seek protection and help from the Central Reserve Police Force (CRPF) because the local police were not responding adequately to the situation.

The governor, thus, concluded that there were reasonable apprehensions that Balaji's continuation as a minister would continue to obstruct the due process of law and disrupt the course of justice.

Further, the governor said such a situation could eventually lead to a breakdown of the constitutional machinery in the state. For these reasons, he was proceeding to dismiss Balaji from the cabinet, the governor said in the letter.

How far can the observations made by the Supreme Court be relied upon by a governor while exercising his discretion?

There is no doubt that the Supreme Court did indeed make some critical observations against Balaji for his role in the cash-for-job scam. At best, the court's observations can wield moral authority over the chief minister on whose recommendation the governor had appointed the minister. 

However, the court's observations cannot be used by the governor to usurp the power of dismissal without the chief minister making a recommendation in this regard. 

Apparently, Governor Ravi also alluded to the possible "breakdown of constitutional machinery in the state" if Balaji was allowed to continue as minister.

This is referable to Article 356 of the Constitution which confers power upon the President to impose his rule in a state if he is satisfied with the report from the governor or otherwise, that the government of the state cannot be carried on in accordance with the provision of the Constitution.

If that was indeed the case, the governor ought to have reported the matter to the President of India, who in turn, could have acted on the report, subject to the aid and advice of the Union cabinet.

The majority decision of the Supreme Court in Rameshwar Prasad versus Union of India (2006) observed that, "the ground of maladministration by a state government enjoying a majority is not available for invoking power under Article 356 adding the remedy for corruption or similar ills and evils lies elsewhere and not in Article 356(1)."

Thus, in the Balaji case, merely based on an assumption that because he is accused of corruption, his continuation as a minister would lead to breakdown of the constitutional machinery, appears to be quite a far-fetched argument.

Whether a governor has the power to dismiss a minister sans advice from the chief minister?

Article 163(1) 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 their functions, except insofar as they are, under the Constitution, required to exercise their functions or any of them at their discretion."

The governor appoints the chief minister under Article 164(1) of the Constitution. The Article also provides that the ministers shall hold office "at the pleasure" of the governor. The Article does not expressly state that the withdrawal of that pleasure by the governor shall be only on the advice of the chief minister. 

A seven-judge Bench of the Supreme Court, in Samsher Singh v. State of Punjab (1974), extensively discussed the powers of a governor under the Constitution. 

In the case, the appellants had been dismissed from subordinate judicial services by an Order of the governor on the advice of the chief minister. The appellants contended before the Supreme Court that a governor could exercise the powers and functions of the appointment and removal of members of the subordinate judicial services only personally.

The State, however, argued that the governor could only exercise power on the subject matter on the aid and advice of the council of ministers.

The Bench held that a governor acts on the aid and advice of the council of ministers in executive action and is not required by the Constitution to act without such aid and advice or even against the aid and advice of the council of ministers.

It also held that wherever the governor has any discretion, they must exercise that discretion in harmony with the council of ministers.

The Bench ruled that the appointment as well as the removal of the members of the subordinate judicial service was an executive action of the governor to be exercised on the aid and advice of the council of ministers in accordance with the provisions of the Constitution. 

On the relief aspect, the Bench ruled in favour of the appellants on the facts and circumstances of the case not because of the involvement of the governor but for the reason that their services had been terminated in violation of the service rules applicable to them.

Also read: Maharashtra political crisis judgment: A detailed analysis

Pertinently, in the Samsher Singh case, the Bench highlighted the Articles in the Constitution where the expression "acts in his discretion" is used in relation to the powers and functions of the governor and speaks of special responsibilities of the governor. These Articles are 371-A(1)(b), 371-A(1)(d), 371-A(2)(b) and 371-A(2)(f).

If the exercise of a functionary is beyond the purview of the aid and advice of the council of ministers but is in accordance with the Constitution, the governor can act "in his discretion".

There are three more areas where a governor may make his decisions based on his satisfaction.

First, it is for the governor to invite a political party to stake a claim to form the government. 

Second, under Article 200, the governor's discretionary powers are that he can give assent, withhold or refer a Bill for Presidential assent under Article 200.

Third, in a situation where the governor has reason to believe that the chief minister and the council of ministers have lost the confidence of the House, it is open to the governor to require the chief minister and the council of ministers to prove their majority in the House through a floor test.

Only in a situation, where the government in power is seen to have lost the confidence of the majority after the floor test, it would be open to the governor to exercise the powers vested under Article 174 without any aid and advice.

Also read: Supreme Court's Madhya Pradesh floor-test judgment is a scathing indictment of India's political class

A five-Judge Bench in Nabam Rebia & Bamang Felix versus Dy. Speaker, Arunachal Pradesh Legislative Assembly (2016 SC), relying upon the decision of the Supreme Court in Samsher Singh reiterated that even though the governor may be authorised to exercise some functions, under different provisions of the Constitution, the same is required to be exercised only based on the aid and advice tendered under Article 163, unless the governor has been expressly authorised, by or under a constitutional provision, to discharge the function concerned, in their own discretion.

The Bench rejected the argument that the governor had the freedom to determine when and in which situation his individual discretion would apply without the aid and advice of the chief minister and the council of ministers.

It also rejected the contention that whenever the governor, in discharge of his functions, takes a decision at his discretion, the same would be final and binding and beyond the purview of judicial review.

Is the doctrine of pleasure absolute?

The Constitution provides for three different types of tenure:

(i) When the office is held during the pleasure of the President (or a governor);

(ii) When the office is held during the pleasure of the President (or a governor), subject to restrictions;

(iii) When the office is held for specified terms with immunity against removal, except by impeachment, and who are not subject to the doctrine of pleasure (see B.P. Singhal versus Union of India (2010 SC)). 

Commenting on the doctrine of pleasure, the Supreme Court in B.P. Singhal case observed that this doctrine was subject to a restriction in Article 310(2) and the restrictions in Articles 311(1) and (2).

The most significant restriction, the court said, was contained in clause (2) of Article 311, which provides that no such employee shall be dismissed or removed from service except after an inquiry. Thus, after the commencement of the Constitution, which seeks to establish the rule of law, there cannot be unfettered exercise of the doctrine of pleasure.

In the B.P. Singhal case, the Supreme Court observed that there was a difference between the doctrine of pleasure as it existed in a feudal set-up and the doctrine of pleasure in a democracy which is governed by the rule of law.

"In a nineteenth century feudal set-up, unfettered power and discretion of the Crown was not an alien concept. However, in a democracy governed by rule of law, where arbitrariness in any form is eschewed, no government or authority has the right to do what it pleases," the Supreme Court said.

The argument that the governor has unregulated discretion to exercise his pleasure to remove a minister is untenable, more so in the absence of any advice from the council of ministers. The removal of a minister is not a situation where the governor can act at his own discretion.

In fact, Justice Madan B. Lokur, in his concurring opinion in the Nabam case, observed that, "if the governor chooses to 'withdraw his pleasure' in respect of a minister he must exercise his discretion with the knowledge of the chief minister and not by keeping him in the dark or unilaterally."

Lokur sought to explain it further by giving the example of the appointment and removal of an advocate general. 

He stated, "It cannot be anybody's case that the governor, in exercise of his discretion, may appoint any eligible person as the advocate general without any reference to the council of ministers and also 'withdraw his pleasure' at any time in respect of the advocate general thereby removing him from his office. 

"The purpose of all these provisions is to indicate that the discretion given to the governor is not all-pervasive or all-encompassing as is suggested by the learned counsel for the respondents."

Allegiance of the governor towards the ruling party

The B.P. Singhal case arose in the wake of the removal of the governors of Uttar Pradesh, Gujarat, Haryana and Goa on July 2, 2004, after the United Progressive Alliance (UPA)-I came to power.

The Supreme Court observed that the governors were not an employee of the Union government, nor agents of the party in power nor were they required to act under the dictates of political parties.

However, the practical application of the above observation appears to be dubious. We can see that since the commencement of the Constitution, the office of the governor has been abused for making and unmaking of the state governments.

Recently, we have witnessed how the then Maharashtra Governor Bhagat Singh Koshyari played an active role in the toppling of the government headed by Uddhav Thackeray. 

We have also been witnessing how governors have been crippling the day-to-day functioning of the state government ruled by non-BJP parties.

It was only after the intervention of the Supreme Court that the Punjab governor convened a session of the state assembly.

It required the Supreme Court's intervention for the Telangana governor to clear multiple Bills, which were collecting dust in her office for months.

The hasty conduct of Governor R.N. Ravi in dismissing Balaji from the cabinet, is also not 'above board'.  Chief Minister M.K. Stalin, in his letter to the governor, reminded him of his inaction over requests from the government to grant sanction to investigate/prosecute former ministers and public servants for offences committed during the previous All India Anna Dravida Munnetra Kazhagam (AIADMK) government.

Stalin further said that the governor has not even acted upon a request from the Central Bureau of Investigation (CBI) to sanction prosecution in the Gukta scam case. 

The dual standards of the Governor are 'writ large' for everybody to see.

Governors need to be reminded of what the Supreme Court had observed in the Nabam case and that they are nominated by the President on the aid and advice of the Union cabinet. 

Such a nominee, the Supreme Court said, cannot have overriding authority over representatives of the people, who constitute the House or Houses of the state legislature (on being duly elected from their respective constituencies) and/or even the executive government functioning under the council of ministers with the chief minister as its head. 

"Allowing the governor to overrule the resolve and determination of the state legislature or the state executive would not harmoniously augur with the strong democratic principles enshrined in the provisions of the Constitution," the Supreme Court had warned in the above case.

At the same time, it is also for the Tamil Nadu chief minister to give due deference to the scathing observations made by the Supreme Court against his minister. 

Chief Minister Stalin ought to have taken the lead by recommending the removal of his minister who is neck-deep in corruption cases. Propriety demands that a minister resign from office when he is sent to judicial custody.