The Central government asking for the resignation of the Governors of some States has created a controversy.
Under Article 155 of the Constitution, the Governor of a State shall be appointed by the President by warrant under his hand and seal. Article 156, which prescribes the Governor’s term of office, says: “The Governor shall hold the office during the pleasure of the President.”
The doctrine of pleasure has its origins in English law. In England, the moral rule is that a civil servant of the Crown holds office during the pleasure of the Crown. This means his services can be terminated at any time by the Crown, without assigning any reason. Even if there is a contract of employment involving the Crown, the Crown is not bound by it. In other words, if a civil servant is dismissed from service he cannot claim arrears of salary or damages for premature termination. The doctrine of pleasure is based on public policy.
In India, under Article 310 even civil servants hold office at the pleasure of the President or the Governor as the case may be. That pleasure is absolute.
There are some notable exceptions in Article 310, which has adopted the English Common Law rule that public servants hold office during the pleasure of the President or the Governor. Article 311 imposes two qualifications on the exercise of such pleasure. Though the two qualifications are set out in a separate Article, they clearly restrict the operation of the rule embodied in Article 310(1). In other words, the provisions of Article 311 operate as a proviso to Article 310(1). All existing laws have been continued by Article 372, some of which, for example the Code of Civil Procedure, makes it possible for a public servant to enforce his claims against the state.
Accordingly, the Supreme Court held in State of Bihar v. Abdul Majid, (1) AIR 1954 SC 245, that the English Common Law has not been adopted in its entirely and with all its rigorous implications.
In Union of India v. Tulsiram Patel, (2) AIR 1965 SC 1416 (1437, 1438), the Supreme Court held that the “pleasure doctrine” was neither a relic of the feudal age nor was it based on any special prerogative of the British Crown but was based upon public policy. Ministers frame policies and the Legislature enacts laws and lays down the mode in which such policies are to be carried out and the object the legislation seeks to achieve. From the nature things, the task of efficiently and effectively implementing these policies and enactments, however, rests with the civil services. The members of the public are therefore vitally interested in the efficiency and integrity of such services.
In the case of the Governor, the position is entirely different. In 1989, when those who had been appointed Governors by the Congress government were dismissed by the National Front government headed by V.P. Singh, it was said the Congress government had improperly made political appointments and that it was necessary to remove corruption from public life. It was also said that the change of Governors had to be done in order to give the government an opportunity to tone up the administration.
It needs to be stated that the norms laid down by the Sarkaria Commission were not followed. The office of the Governor, who is a representative of the President in a State as the protector of the Constitution, should normally go to persons with high status in society.
In this background came the Supreme Court judgment that laid down that Governors could not be changed on the ground that there is a change of government. Nobody could question it. However, there is one practical aspect: if the Governors were appointed solely for the reason that they were erstwhile party men and should the new government should bear with such situation because there is always a clash of policy and the line of thinking. Even if the difference of opinion is subtle, should the Centre tolerate it? The answer will be in the negative.
There is another way of looking at this. Cannot Governors on their own come forward to tender resignation, rather than the Central government withdrawing its pleasure? Or if the government were to say in the words of William Makepeace Thackeray: “Business is first; pleasure afterwards,” why should the Governors stay on? Will not the public feel that ethics are eroded when a Governor seems anxious to cling on?
The resultant position is: “An unalterable and unquestioned law of the musical world required that the German text of French operas sung by Swedish artists should be translated into Italian for the clearer understanding of English-speaking audiences.”
Edith Wharton, The Age of Innocence, Book l, Chapter 1 (1920)
It is hoped that lawmakers will alter this unpleasant situation.
(A former Judge of the Supreme Court of India, S. Mohan was acting Governor of Karnataka for seven months.)
