Doctrine of Pleasure

    0
    8794

    In News

    • Kerala Governor and the State government have major differences over multiple issues. 

    About Controversy

    • The latest controversy arose after the Governor sought the resignation of several vice-chancellors following a Supreme Court judgement setting aside the appointment of the Vice-Chancellor of a technology university. 
    • As a fallout of comments made by the State’s Finance Minister, K. N. Balagopal, the Governor, has also sought his dismissal from his Cabinet, declaring that he has withdrawn the pleasure of having him in the Council of Ministers.

     

    Doctrine of Pleasure

    • Origin: 
      • The pleasure doctrine is a concept derived from English common law.
      • Under it, the crown can dispense with the services of anyone in its employ at any time. 
    • Article 310 of Indian Constitution: 
      • It says every person in the defence or civil service of the Union holds office during the pleasure of the President, and every member of the civil service in the States holds office during the pleasure of the Governor. 
    • Article 311:
      • It imposes restrictions on the removal of a civil servant. 
      • It provides for civil servants being given a reasonable opportunity for a hearing on the charges against them. 
      • There is also a provision to dispense with the inquiry if it is not practicable to hold one, or if it is not expedient to do so in the interest of national security. 
      • In practical terms, the pleasure of the President referred to here is that of the Union government, and the Governor’s pleasure is that of the State government.
    • Article 164: 
      • The Chief Minister is appointed by the Governor; and the other Ministers are appointed by the Governor on the CM’s advice. 
      • It adds that Ministers hold office during the pleasure of the Governor. 
      • In a constitutional scheme in which they are appointed solely on the CM’s advice, the ‘pleasure’ referred to is also taken to mean the right of the Chief Minister to dismiss a Minister, and not that of the Governor. 
      • In short, the Governor of an Indian State cannot remove a Minister on his own.

    Supreme Court on one Vice-Chancellor’s appointment

    • In a case challenging the appointment of Dr. M.S. Rajasree as V-C of the APJ Abdul Kalam Technological University, Thiruvananthapuram, the Supreme Court held that her appointment was contrary to the regulations of the University Grants Commission (UGC). 
    • Protocol was not followed: 
      • The particular infirmity was that the Search Committee had identified only one candidate and recommended the name to the Chancellor for appointment. 
      • Under UGC regulations, a panel of three to five names should be recommended so that the Chancellor has a number of options to choose from. 

     

    Governor’s Reaction

    • The Governor, in his capacity as Chancellor of universities, responded by directing the V-Cs of nine universities to resign the very next day, contending that the infirmities pointed out by the Supreme Court in one case also vitiated their appointments. 
    • The apex court had declared that an appointment not in line with the UGC regulations would be ab initio void that is invalid from the very beginning. 
    • Each of those appointments were either made on the basis of a single recommendation or were recommended by a panel in which the Chief Secretary was a member (contrary to the Regulations that say its members should be persons of eminence in the field of higher education). 

    Governor

    • About: 
      • He/she is the Chief Executive Head of a State.
      • Like the President of India, he is a nominal (titular or constitutional) head and also acts as an agent of the central government. Therefore, the office of governor has a dual role.
    • Articles 153 to 167 in Part VI of the Constitution deal with the State Executive, which comprises the Governor, the Chief Minister, the Council of Ministers and the Advocate General of the State.
      • There is no office of Vice-Governor (in the state) like that of Vice-President at the Centre.
      • Usually, there is a governor for each state, however, the 7th Constitutional Amendment Act, 1956 facilitated the appointment of the same person as a governor for two or more states.
    • Appointment
      • 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.
      • He/she is appointed by the President by warrant under his hand and seal.
        • As held by the Supreme Court in 1979, it is an independent constitutional office and is not under the control of or subordinate to the Central government.
      • While drafting the Constitution, the Canadian model of Governor’ appointment by the Centre was accepted in the Constituent Assembly.
    • Oath
      • The Governor has to make and subscribe to an oath or affirmation, which is administered by the Chief Justice of the concerned State’s High Court and in his/her absence, the senior-most judge of that court available.
    • Qualifications
      • The Constitution lays down only two qualifications for the appointment of a person as a governor.
        • He/she should be a citizen of India.
        • He/she should have completed the age of 35 years.
      • Additionally, two conventions have also developed in this regard over the years. 
        • He/she should be an outsider, meaning not belonging to the State of appointment so as to remain free from the local politics.
        • While appointing the Governor, the President is required to consult the Chief Minister of the State concerned, so that the smooth functioning of the constitutional machinery is ensured.
    • Conditions
      • Should not be a member of either House of Parliament or a House of the state legislature. If any such person is appointed as governor, he/she is deemed to have vacated his/her seat in that House on the date on which he/she enters upon the office as the Governor.
      • Should not hold any other office of profit.
      • Entitled without payment of rent to the use of official residence (the Raj Bhavan).
      • Entitled to such emoluments, allowances and privileges as may be determined by Parliament.
      • When the same person is appointed as the governor of two or more states, the emoluments and allowances payable to him are shared by the states in such proportion as determined by the President.
      • Emoluments and allowances cannot be diminished during his term of office.
      • During the term of office, he/she is immune from any criminal proceedings, even in respect of personal acts and cannot be arrested or imprisoned.
        • However, after giving two months’ notice, civil proceedings can be instituted against during the term of office in respect of his personal acts.
    • Tenure:
      • A Governor holds office for a term of five years from the date on which he/she enters upon the office.
      • However, this term of five years is subject to the pleasure of the President.
        • However, the Constitution does not lay down any grounds upon which a Governor may be removed by the President.
        • The Supreme Court in 2010 held that the Governors cannot be changed in an arbitrary and capricious manner with the change of power. A five-judge Constitution bench headed by Chief Justice K G Balakrishnan held that a Governor can be replaced only under “compelling” reasons for proven misconduct or other irregularities.
      • Further, he/she can resign at any time by addressing a resignation letter to the President.
      • The President may transfer a Governor appointed to one state to another state for the rest of the term. Further, a Governor whose term has expired may be reappointed in the same State or any other State.
    • Functions and Powers
      • Executive Powers
      • Legislative Powers
      • Financial Powers
      • Judicial Powers
      • The Governor has no diplomatic, military or emergency powers like the President.

    Way Ahead

    • The National Commission to Review the Working of the Constitution appointed by the Atal Bihari Vajpayee government in 2000 recommended significant changes in the selection of Governors.
      • The Commission suggested that the Governor of a State should be appointed by the President, after consultation with the Chief Minister of that State.
      • Normally the five year term should be adhered to and removal or transfer of the Governor should be by following a similar procedure as for appointment i.e., after consultation with the Chief Minister of the concerned State.
    • The Sarkaria Commission:
      • That was set up in 1983 to look into Centre-state relations, and proposed that the Vice President of India and Speaker of Lok Sabha should be consulted by the Prime Minister in the selection of Governors.
    • The Justice Madan Mohan Punchhi Committee
      • That was constituted in 2007 and proposed in its report that a committee comprising the Prime Minister, Home Minister, Vice President, Speaker, and the concerned Chief Minister should choose the Governor.
      • It recommended deleting the Doctrine of Pleasure from the Constitution, but backed the right of the Governor to sanction the prosecution of ministers against the advice of the state government. 
      • It also argued for a provision for impeachment of the Governor by the state legislature. 

    Source: TH

    RELATED ARTICLESMORE FROM AUTHOR