‘The position of the Governor in the constitutional system of India has been clarified by the Supreme Court of India in several cases’. Photo credits: R. Ragu
Tamil Nadu Governor RN Ravi V. Senthilbalaji sackedA minister in the Council of Ministers of Tamil Nadu – As in the communication issued by the Raj Bhavan on June 29, 2023. (Governor later retracted his decision Late in the night, the “dismissal” order was kept in abeyance.) The operative part of the press release issued by the Raj Bhavan is that “there are reasonable apprehensions that the continuance of Thiru V. Senthilbalaji in the Council of Ministers will be adversely affected.” Due process of law, including fair investigation, which may eventually lead to the breakdown of the constitutional machinery in the State. That’s why the minister should be dismissed.
Editorial | constitutional audacity
This unprecedented and deliberately provocative act of sacking a minister of a government with absolute majority in the state assembly without the recommendation of the chief minister of the state is going to set a dangerous precedent and has the potential to destabilize state governments. Federal system in danger. If governors are allowed to exercise the power to dismiss individual ministers without the knowledge and recommendation of the chief minister, the entire constitutional system will collapse.
Articles and Clarity
The first thing to be examined is whether the governors have the power to dismiss a minister without consulting the chief minister. Under Article 164 of the Constitution, the Chief Minister is appointed by the Governor without any consultation. But he appoints individual ministers only on the advice of the Chief Minister. The meaning of the article is that the governor cannot appoint any individual minister according to his discretion. Therefore, logically, the Governor can only dismiss a minister on the advice of the Chief Minister.
The reason is simple. Only the Chief Minister has the right to choose his ministers. He decides who will be the ministers of his council. He also decides who will not be a minister in his council. It is a political decision of the Chief Minister, who is ultimately answerable to the public. The Constitution has not transferred the discretion of the Chief Minister to the Governor.
This point will become very clear if we look at the Government of India Act, 1935. Section 51(1) of this Act says, “The Ministers of the Governor shall be chosen and called by him, shall be sworn in and shall be held as members of the Council.” Office during your pleasure”. This section makes it clear that the ministers will be selected by the Governor. Therefore, they remain in office during his pleasure. Further, sub-section 5 of section 51 says, “The functions of the Governor with respect to the selection, summons, dismissal and fixation of the salaries of Ministers under this section shall be exercised by him in his discretion.” ,
Two things are clear from Section 51(1) and Section 51(5) of the Government of India Act, 1935. One, the ministers are selected by the Governor. Two, they are dismissed at their own discretion. Thus, during colonial rule, the governor had complete discretion to choose and dismiss a minister. Hire and Fire Approach.
sole constitutional head
Now, the action of the Governor of Tamil Nadu gives the impression that he thinks that the Governors under the Constitution of India have the same discretionary powers as the Governors appointed by Her Majesty by the Commission under the Royal Sign Manual. Perhaps the words “Ministers shall hold office during the pleasure of the Governor” in Article 164 gave him that impression. But, independent India has a constitutional system under which the Governor is only a constitutional head and can act only on the aid and advice of the Council of Ministers headed by the Chief Minister.
BR Ambedkar had clearly stated in the Constituent Assembly that there is no executive function that the Governor can exercise independently under the Constitution. Therefore, it is no longer in his discretion to choose and dismiss a minister. The Chief Minister chooses the ministers. It is the Chief Minister who recommends the removal of a minister.
It is true that the pleasure principle has been brought into the Constitution of India from the Government of India Act, 1935. But these words only 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. This is because it is the governor who appoints the ministers. Therefore, it is the Governor who should dismiss him.
As far as the Ministers are concerned, the prerogative of the Governor under the Constitution of India is not the same as that of the Colonial Governor. It is to be noted here that most of the 1935 Act has been reproduced in the Constitution. Section 51 of the Government of India Act, 1935 gives the governor the discretion to choose as well as dismiss ministers. But when Article 164 of the Constitution was drafted, the words “selected”, “dismissal” and “discretion” were removed. This was a significant lapse which made it abundantly clear that the Constitution did not give any discretion to the Governor to choose or dismiss an individual minister.
judicial clarification
The position of the Governor in the constitutional set up of India has been clarified in several cases by the Supreme Court of India. In Shamsher Singh and others v. State of Punjab (1974), a seven-judge Constitution Bench declared the law on the powers of the Governor in a republic in the following words: “We declare this branch of our Constitution to be the law. The President and the Governor The custodians of all executive and other powers under the various Articles shall, by virtue of these provisions, exercise their formal constitutional powers only in accordance with the advice of their Ministers, except in certain well-known exceptional situations. ..”
Similarly, in Nabam Rebia v. Deputy Speaker, a five-judge Constitution Bench reaffirmed the law laid down in Shamsher Singh and further held that the discretionary powers of the Governor are limited to the provisions of Article 163(1). The Court also overruled the Mahabir Prasad Sharma and Pratapsing Raojirao Rane cases, where it was held that the Governor could exercise the power under Article 164 in an unfettered manner.
In sum, the dismissal of a Minister of the Government of Tamil Nadu by the Governor of the State without consulting the Chief Minister is constitutionally incorrect. Newspaper reports suggest that the governor later withheld the order of his dismissal pending legal advice. But the matter of sacking a minister without consulting the Chief Minister is clearly destabilizing the constitutional system.
PDT Acharya is the former Secretary General of Lok Sabha