In the previous post, we discussed the current scenario where the Modi Government is
considering to remove the UPA appointed Governors that are reluctant to resign.
We also studied the key points that were mentioned in the B.P. Singhal’s Case.
In the present post, we will continue the discourse on Doctrine of Pleasure in
India.
Definition
and Origin
Article 156 (1)
states that the Governor shall hold office during the pleasure of the
President. What does ‘pleasure of the President’ mean? There are various connotations
and contexts attached to this term.
Before
understanding the meaning of Doctrine of Pleasure in Indian Context, let
us first understand the genesis of this term.
The origin of
the Doctrine of Pleasure can be traced to a Latin Maxim durante
bene placito which means “during good pleasure” or “during
the pleasure of the appointer” as opposed to an office held dum bene
se gesserit which means “during good conduct”, also called quadiu
se bene gesserit (“as long as he shall behave himself well”).[1]
Black’s
Dictionary defines ‘Pleasure Appointment’ as the assignment of someone
to employment that can be taken away at any time, with no requirement for
notice or hearing.
We have borrowed
this concept from the English Law. In Dunn v. Queen[2],
the Court of Appeal referred to the old common law rule that a public
servant under the British Crown had no tenure but held that his position is at
the absolute discretion of the Crown.
However, the
Indian situation is quite different. Let us discuss how this doctrine has taken
shape in India.
Application of
Doctrine of Pleasure in India
There are three
kinds of Offices held during the Pleasure of the President that are referred to
in our Constitution.
1. Offices
held during the pleasure of the President without any restrictions –
Article 75(2) relating to ministers, Article 76 (4) relating to Attorney
General and Article 156(1) relating to Governors. There are no restrictions
whatsoever. The Governors and Ministers can be dismissed summarily by the
President.
2. Offices
held during the pleasure of the President with restrictions – “The
pleasure of the President is clearly controlled by the provisions of Art. 311,
and so, the field that is covered by Art. 311 on a fair and reasonable
construction of the relevant words used in that article, would be excluded from
the operation of the absolute doctrine of pleasure. The pleasure of the
President would still be there, but it has to be exercised in accordance with
the requirements of Art. 311”[3]. This includes Members of
defence service, Members of civil service of the Union, Member of an All-India
service, holders of posts connected with defence or any civil post under the
Union, Member of a civil service of a State and holders of civil posts under
the State.
3. Appointments
to which the said doctrine is not applicable – This includes constitutional
functionaries such as the Supreme Court Judges, the High Court Judges, the Election
Commissioners, the Comptroller and Auditor General etc. that cannot be removed
except by way of Impeachment.
Doctrine of
Pleasure in relation to the Governor
It is the first
scenario (pleasure of the President without any restrictions) that we are concerned
with in the present post. We see that there is no such thing as absolute and
unfettered discretion in India. There is a distinction between the doctrine of
pleasure as it existed in a medieval set-up and the doctrine of pleasure in a
democracy governed by Rule of Law. Where Rule of Law prevails, there is nothing
like unrestricted discretion or unaccountable action. The degree of need
for reason may vary. The degree of scrutiny during judicial review may
vary. But the need for reason exists.
Thus where there
are no express limitations or restrictions existing, it should be read as being
subject to the “fundamentals of constitutionalism”.
In the case of B.P.
Singhal v. Union of India & Another[4], the court has
categorically stated that the ‘Doctrine of Pleasure’ in its absolute
unrestricted application does not exist in India. The court further said that:
“The said
doctrine is severely curtailed in the case of government employment, as will be
evident from clause (2) of Article 310 and clauses (1) and (2) of Article 311[5].
Even in regard to cases falling within the proviso to clause (2) of Article
311, the application of the doctrine is not unrestricted, but moderately
restricted in the sense that the circumstances mentioned therein should exist
for its operation.”
Even the
Canadian Supreme Court in Wells v. Newfound land[6]
has concluded that “at pleasure” doctrine is no longer justifiable in
the context of modern employment relationship.
B.P. Singhal’s
Case also held that the doctrine of pleasure is not a licence to act with
unfettered discretion to act arbitrarily, whimsically, or capriciously. It does
not dispense with the need for a cause for withdrawal of the pleasure. In other
words, “at pleasure” doctrine enables the removal of a person holding
office at the pleasure of an Authority, summarily, without any obligation to
give any notice or hearing to the person removed, and without any obligation to
assign any reasons or disclose any cause for the removal, or withdrawal of
pleasure. However, the withdrawal of pleasure cannot be at the sweet will,
whim and fancy of the Authority, but can only be for valid reasons.
Thus, we see
that Doctrine of Pleasure refers to the discretion vested in the President to
remove various constitutional functionaries. Article 156 merely mentions that the
Governor shall hold office during the pleasure of the President. It does not
prescribe any conditions for exercising this pleasure. However, this does not
mean that the discretion is absolute, unrestricted and unfettered. The
President can remove a Governor summarily but valid explanation for such
removal must exist.
It is important
to note that most of things mentioned above have been discussed and mentioned
in the B.P. Singhal’s Case. It was a Constitutional Bench Judgment and is
considered to be a landmark case on the Doctrine of Pleasure. In the next post,
we will study the Constituent Assembly Debates relating to the Doctrine of
Pleasure and the scope of Judicial Review in such cases.
Previous: Modi Government Pushes UPA Appointed Governors to Quit; Scope of Doctrine of Pleasure in Question
Next: Constituent Assembly Debates and Sarkaria Commission Report on Removal of Governors
Next: Constituent Assembly Debates and Sarkaria Commission Report on Removal of Governors
[1] Union
of India v. Tulsiram Patel, (1985) 3 SCC 398.
[2] 1896
(1) QB 116.
[3] Moti
Ram v. N.E. Frontier Railway, AIR 1964 SC 600.
[4]
Writ Petition (Civil) No. 296 of 2004.
[5]
Article 311 (2) – Dismissal, removal or reduction in rank of persons
employed in civil capacities under the Union or a State:
(2) No such person as aforesaid shall be dismissed or
removed or reduced in rank except after an inquiry in which he has been
informed of the charges against him and given a reasonable opportunity of being
heard in respect of those charges.”
[6] 1999
(177) DL (4th) 73(SCC).
ReplyDeletePardoning Power of President
As mentioned in Article 72 of Indian Constitution, the President is empowered with the powers to grant pardons in the following situations:
Punishment is for offence against Union Law
Punishment is by a Military Court
Sentence is a death sentence