The governor of Tamil Nadu, RN Ravi, experimented with a rare kind of constitutional adventurism by dismissing a sitting minister without being advised by the chief minister (CM). Of course, within hours of issuing the order, he kept it in abeyance. This action has caused consternation in political circles and shocked constitutionalists. The governor later revealed that the Union home ministry advised him to seek the opinion of the attorney general. It is baffling that such an unprecedented order — dismissing a minister of a government that enjoys an absolute majority in the assembly, without the mandatory advice of the CM — was issued without consulting the country’s top law officer.

The governor of Tamil Nadu, RN Ravi, experimented with a rare kind of constitutional adventurism by dismissing a sitting minister without being advised by the chief minister (CM). Of course, within hours of issuing the order, he kept it in abeyance. This action has caused consternation in political circles and shocked constitutionalists. The governor later revealed that the Union home ministry advised him to seek the opinion of the attorney general. It is baffling that such an unprecedented order — dismissing a minister of a government that enjoys an absolute majority in the assembly, without the mandatory advice of the CM — was issued without consulting the country’s top law officer.

The crucial constitutional question is whether the governor has the power to dismiss a minister without the advice of the CM. A minister is appointed by the governor under Article 164, on the advice of the CM. This provision makes it very clear that the governor can appoint as a minister only a person recommended by the CM. It is entirely the prerogative of the CM to select or drop his ministers. If the CM wants to drop a minister, he accordingly advises the governor, who issues the order. This is the practice in all countries that follow a parliamentary system of government.

Article 164 of the Constitution says, “The ministers shall hold office during the pleasure of the governor,” which may give an impression that the survival of a minister depends entirely on the pleasure of the governor, and that the latter can withdraw his pleasure at will.

The “pleasure of the governor” is the crucial element here. In order to understand its true import, we must go to section 51 of the Government of India Act, 1935. Subsection (1) of section 51 says that the governor shall choose his ministers who shall hold office during his pleasure. Similarly, sub-section (5) of section 51 says the function of the governor with respect to the choosing and dismissal of ministers shall be exercised at his discretion. Thus, section 51 of the Government of India Act, 1935, confers discretionary powers on the governor to choose ministers, and also to dismiss them. The pleasure doctrine has full play here. There is no provision for any advice to be given to the colonial-era governor in the discharge of his functions in this regard.

It is a matter of common knowledge that our Constitution reproduced the provisions of the Government of India Act to a large measure. Section 51 is reproduced substantially in Articles 163 and 164 of the Constitution. The pleasure doctrine is one such provision, but the Constitution’s framers made a crucial change.

While drafting Article 164, they did away with the powers of the colonial governor to choose a minister and dismiss him unilaterally, which meant that governors in the Indian Republic, unlike their British-era predecessors, did not have the power to choose ministers or dismiss them at will. Further, when the governor does not have the discretionary power to dismiss a minister without the CM’s advice, the pleasure doctrine loses its potency and becomes a formality to be invoked when a piece of advice comes from the head of state executive, namely the CM. It can, therefore, be safely concluded that governors do not have the power to dismiss a minister without the CM’s advice.

We must also seriously consider the impact of such an action by the governor on the constitutional system. The governor, who is oath-bound to protect the Constitution, may end up destabilising the constitutional order by dismissing the ministers at will. It must be remembered that the governor does not have any executive power that he can exercise independently. Under Article 163, all his functions are performed only on the aid and advice of the council of ministers, except the discretionary functions spelt out in the Constitution. In the 1974 Shamsher Singh case, the Supreme Court explicitly laid down the law relating to the powers of the governor vis-a-vis the elected government. All subsequent decisions reaffirmed it. Thus, the law stands settled on the position of the governor in our constitutional setup.

Similarly, Article 164 makes it clear that the governor has no discretion either in the appointment or removal of a minister. Both are in the domain of the CM. Ministers can remain in the cabinet only so long as they enjoy the confidence of the CM, and not of the governor.

The governor is a high constitutional functionary who is required to act with exemplary impartiality and objectivity. In the Constituent Assembly, there was even a demand from some members that active politicians should not be made governors. Though such suggestions were not taken on board at the time, neither politicians nor former bureaucrats have covered themselves with glory during their stints at Raj Bhavan. It is time that the Indian society initiated a debate about the suitability of the men and women who occupy this exalted and important constitutional post. Whether we like it or not, the centre of gravity of politics in some states is slowly tilting towards the Raj Bhavan. It is not certainly a comfortable thought.

PDT Achary is former secretary general, Lok Sabha. The views expressed are personal.