INTRODUCTION

The dynamics of the political powers changed in many states after the fourth General Elections.
The main problems arising were that the dormant offices became active in the cusp of power and
authority. The game of defections and redefections dominated most of the scene of politics since
then. It seemed like the union, the house, the speaker as well as the governor interse, did not
enjoy peaceful and friendly relations in many states and precisely in the state of Punjab and West
Bengal. The result of which was that several controversies began and dragged themselves to not
just political arena but also courtrooms.

CHAPTER-2: CASE STUDY

The dismissal of ministry for judicial considerations under the governor's authority was brought
to the forefront by the case of Mahabir Prasad v. Prafulla Chandra.1 The constitution as under
article 164(1) contemplates the governor's pleasure, and the same was discussed under the
aforementioned case. The article reads as:

“The Chief Minister shall be appointed by the Governor and other ministers shall be appointed
by the Governor on the advice of the chief minister, and ministers shall hold office during the
pleasure of the governor-provided that in the state of Bihar, Madhya Pradesh and Odisha, there
shall be a minister in charge of tribal welfare who may in addition be in charge of the welfare of
the scheduled caste and backward classes or any other work.”

The problem left for examination here was that whether the word pleasure under this article
constitutionally gave powers to the Governor to have discretionary power to dismiss the ministry
arbitrarily, on subjective considerations.

The brief facts of the case disclose that after 1967 elections no single party was able to gain
majority in the West Bengal Legislative Assembly (hereinafter referred to as the Assembly) to
form a union on its own. This lead to several parties joining a coalition government by the name
of the United Front, to secure majority in the assembly. They selected Shri Ajoy Mukherjea as
their leader who in accordance with the parliamentary practices was appointed as the chief
minister. On November 1, 1967 a Minister of the party by the name of Dr. PC Ghose resigned

1
AIR 1969 Cal. 198
which led to the withdrawal of support of several other members and it was claimed that the
union front ministry has lost its majority in the state. Following the same, the Chief Minister
declined the governor's order to summon the Legislative Assembly not later than November 30th
1967. The Governor then on 21st November 1967 dismisses the union front ministry and Dr PC
Ghose was later announced as the Chief Minister with two ministers in the Council of Ministers.

The installation of the new ministry at the cost of the dismissal of the old one was challenged by
a petition the grounds of which were that the Governor did not confirm upon him an arbitrary or
discretionary power to dismiss the ministers. The main argument was that the Governor was
bound to act on the advice of the Council of Ministers, or at any rate, of the chief minister in the
matters of dismissing the chief minister of the Council of Ministers. Article 74 of the
Constitution was also relied upon which stated that there has to be a Council of Ministers, with
the Prime Minister at the head to aid and advice the president in the exercise of his functions. it
was further submitted that the Council of Ministers and the Chief Ministers had to advise the
Governor and the Governor did not have discretionary or arbitrary powers for dismissing the
Prime Minister in the name of Prime Minister holding the office at his pleasure. article 154 of the
Constitution was also referred which confirms executive power on the Governor, under which
the Governor has to "act in accordance" with the constitution and it was urged that clause 1 of
article 154 that with clause 1 of article 163 makes it clear that Governor could act only on the
advice of the Council of Ministers. The further contention was that under clause 2 of article 164
the, the Council of Ministers is collectively responsible to the Assembly of the state, and that
being so the Assembly was the only authority which could remove the council of minister.

However, the same was not accepted by the court. In the opinion of the court:

“Clause 1 of article 164 of the constitution provides that the ministers shall hold office during
the pleasure of the Governor. This exercise of pleasure by the Governor, however, has not been
fettered by any conditions of restrictions. The withdrawal of the pleasure by the Governor is a
matter entirely in the discretion of the Governor. The provision in clause 1 of article 164, that
the ministers shall be collectively responsible to the Legislative Assembly of the state does not in
any manner fetter or restricts the governor's power to withdraw the pleasure during which the
ministers hold office. But there is no such limitation or condition to the pleasure of the Governor
prescribed by article 164 and it must therefore, be held that the right of the Governor to
withdraw the pleasure during which ministers holds office, is absolute and unrestricted.
Furthermore, having regard to the provision in clause 2 of article 163 the exercise of the
discretion by the Governor in withdrawing pleasure cannot be called in question in this
proceeding.”

The inference to the same is that in the exercise of the discretionary power of a Governor, it can
dismiss the ministers at his own will and this cannot be made subject to any scrutiny. An
extension of the same opinion has also let the courts necessarily to discover any relationship
between clauses 1 and 2 of article 164 of the constitution.

Thus the root of governor’s pleasure goes through the area of dismissal of ministers. A notable
fact is that the office of the Governor is created under article 153 of the constitution, and the
same is appointed by the President2 and holds office during the pleasure of the President.3 The
state legislature incorporates the Governor as well.4 A state's executive power is invested in him;5
also several executive actions of the state are to be exercised in his name. 6 He is under an oath or
affirmation to preserve, protect and defend the constitution and the law.7

PROCEDURAL HISTORY

The aforementioned case was an application for a rule nisi in a petition in order to invoke a writ
of quo warranto. The above stated petition was moved on January 12, 1968, when an order was
made directing the petitioner to serve notice of this application on the respondents. The same was
followed by an issue of notice in the name of the respondents who appeared in this application,
but some of them oppose the issue of a rule nisi, while others supported the petition.

CHAPTER 3: ANALYSIS

2
INDIA CONST. Art. 155.
3
INDIA CONST. Art. 156 (1).
4
INDIA CONST. Art. 153.
5
INDIA CONST. Art. 154 (1).
6
INDIA CONST. Art. 166 (1).
7
INDIA CONST. Art. 159.
Now if an assumption is made that the Governor has unfettered powers to cause dismissal of the
Council of Ministers, an apparent inconsistency between clauses 1 and 2 of article 164 would be
visible. Again clause 4 of article 164 makes it incumbent upon a Minister who is not a Minister
or a member of Legislature, to become a member of Legislature within 6 months and if it fails to
do the same then his authority would be ceased. In other words the Assembly would like the
Minister to act in a responsible and collective manner to the Legislature of which he must
become a member as required under the constitution and the same brings pleasure of the
Governor to a secondary place.

By a look into the union scheme about the relationship of the executive head and his Council of
Ministers does indicate that, mutatis mutandis, the pattern is the same. The main motive of the
Constitution is to ensure that parliamentary setup both at the centre and the states is ensured. 8
The President, just like the Governor, is the head under a title, but unlike the Governor, the
president has vast powers.

The British conventions which have a pivotal role in formation of parliamentary government
may also provide useful clues in regards to the same. In United Kingdom, the ministers are
appointed by the Crown who hold their offices during the Crown's pleasure, do according to
conventions the leader of a party which has a majority in the House of Commons gets appointed
as Prime Minister.9 By the theories, the ministers are the servants to the Crown, but practically,
they are collectively responsible to the House of Commons. It would be unconstitutional 10 if the
Crown dismisses them while they are enjoying the confidence of the House of Commons.11

The underlying principle the cabinet is dependent upon the House of Commons’ support became
clear during the 40s of the 19th Century as stated by Emden: “subsequently to 1841 hardly any
doubt has been thrown on the principle of dependence of a ministry on a majority in the House
of Commons.”12 The Crown can through heredity be in danger if it preferably this message the
Council of Ministers at the pleasure and disregards the wishes of the House. 13 In the same
manner, any dismissal that has been done by the president of a Minister having support of the
8
Austin Grenville, The Indian Constitution: The Corner Stone of the Nation 139 (1st ed. 1966).
9
Keith, Constitutional Law 5 (7th ed. 1959).
10
7 Halsbury’s Laws of England, ( 3rd ed. 1954).
11
Jennings, Cabinet Government, 408-11 (3rd. ed. 1959); Wade & Phillips, Constitutional Law 172 (7th ed. 1965).
12
Emden, Cecil S., The People and the Constitution 159 (2nd ed., 1956).
13
Supra Note 10. At 362-63.
Lok Sabha i.e the house of the people, would be a constitutional impropriety which may lead to
the president under article 61 of the constitution getting impeached. The principles enshrined by
the parliamentary democracy are their present in the centre and the state in a likewise manner
except for the article 163 clause 2.14

The focal point of the recent controversies has been article 163 which speaks about the
discretionary power of the Governor. clause 1 of article 163 has two parts: (a) the Governor who
is the executive head of the state has to be provided with a Council of Ministers who would aid
and advice the Governor in the exercise of his functions and (b) having discretionary powers
which could be exercised in certain situations e.g. where there has been no majority achieved by
a single party or coalition of several parties, or where there is a lack of strength in political
parties due to loss of defection, the Governor has the power to call upon a person to form the
government as he deems fit according to his own conscience. Again, reserving of a bill under
article 200 is the discretion of the Governor.

As expressly stated he should exercises discretionary powers being independent of the Council
of Ministers. Therefore under clause 2 of article 239 of the constitution, the governor of a state as
the administrator of an adjoining union territory functions independent of his Council of
Ministers. Again, the governor of Assam enjoys discretionary powers in relation to several tribal
areas that surround the state and also exercises his discretionary powers upon quality
administration of the same. Similarly the governor of Andhra Pradesh has been given a special
responsibility in respect of regional committee is under the constitution enshrined in article 371.
The maintenance of law and order in the state is a special responsibility given to the governor of
Nagaland under article 371 A. in all probability, the Governor may also act in his discretion in
making a report to the president under article 356 of the Constitution of India.

However, it is a matter of doubt as to whether the discretionary powers can be used by him
independent of the Council of Ministers and even of the State Legislature in other cases.
Moreover in arguendo, the Governor has the freedom and the discretionary power for exercise in
appointment of the chief ministers and other ministers. it is a matter of fact that the bare reading
of the clause 1 of article 164 gives the idea that the Governor shall appoint the chief ministers.
But does he really have the freedom to do so? The answer may be a no. It is safe matter of fact
14
INDIA CONST. Art. 163.
that the Governor has no choice where the majority party in the house has an accepted leader. the
discretionary power can be exercised by him where there is no clear majority or there is no
recognized leader of the party in majority. His objective assessment is needed in such situations.
the several tasks conducted by him become all the more difficult in cases where there are laws
related to defections, even then his judgment and discretion is based on the support that the
House has given him. in the same manner, while dismissing a chief minister, Governor cannot
withdraw his pleasure with unfettered discretion. Substantial views by Dr BR Ambedkar have
not been given regarding the fact that the Governor can use his unfettered discretion as the same
is stated by High Court. Dr BR Ambedkar while speaking in the constituent assembly said:

“The position of the Governor is exactly the same as the position of the president.”

However, it may be noted, that the ministry which enjoys confidence of the Lower House cannot
be dismissed by the Governor, though he can get it dismissed by President for violating the
constitution under article 356.15

The backbone of the Parliamentary form of Government are the clauses 2 of Article 164 and 3 of
Article 75 which required the Council of Ministers shall be collectively responsible to the lower
house. This gives a clear suggestion that though the Council of Ministers are appointed by the
President or the Governor as the case may be and holds office during their pleasure yet his
pleasure is really vested in the lower house of the parliament or the state legislature as the case
may be.16 Therefore there must be clear coincidence between the withdrawal of the governor's
pleasure and the withdrawal of the support to the Minister by the Assembly. The interpretation of
this particular clause is in conformity with the parliamentary form of government. 17 One of the
key and integral elements of the parliamentary form of government is governance by the elected
representatives of the people. If the permission is granted for him to dismiss the popular
government on his subjective satisfaction it would "cut at the root of parliamentary government
to which our country is fortunately committed." 18 several judicial examinations have been taken

15
DD Basu, Constitutional Law, 10th ed., 2015.
16
Rao, K.V., Parliamentary Democracy of India: A Critical Commentary 68 (1st ed., 1961).
17
G.C. Venkata Subbarao, Commentary on the Constitution 377 (1st ed. 1967).
18
State of Punjab v. Satya Pal, 1969 AIR 903.
of the doctrine of pleasure in regards to the sector of civil services in India under the constitution.
In Moti Ram v. N.E. Frontier Fly.19 The SC opined that:

“There can be no doubt that the pleasure contemplated by clause 1 of article 310 must be
exercised subject to limitations prescribed by article 311.”

The cases of judicial examinations in regards to the doctrine of pleasure have not been anything
new for the courts. The concept has been existing since a long time. As discussed in the
aforementioned chapter the discretion of the governor's pleasure can undermine the concept of
parliamentarianism in the country. The Calcutta High Court was not warranted to assume that:

“The constitution has not conferred the power on the Legislative Assembly of the state to dismiss
or removed from office the Council of Ministers. If a motion of no confidence has been passed
against it in the Legislative Assembly of the state, it will then be the Governor to withdraw the
pleasure during which the Council of Ministers hold office.”20

the particular view indeed has its own set of inconsistencies with the Constitution's spirit, and
does not help to construct the constitutional provisions in a harmonious manner. the principle of
collective responsibility to the House would have been absent if the Governor was to be the sole
authority for the removal of ministers. this also makes clause 4 of article 164 redundant to the
extent of a Minister need not getting elected to the legislature for 6 months in the pleasure of the
Governor was the only sort of consideration in the appointment of removal of the Minister. it
would be an unrealistic apprehension if one apprehends that a ministry may not vacate a
particular office even after getting defeated in the House. It would be rather impossible for a
defeated ministry to formulate policies and get several laws passed in the House, particularly the
laws related to appropriation of moneys out of consolidated funds even if they are temporary.

Moreover in arguendo, the argument that the house will be prorogued shall not be an answer that
is complete for the power to prorogue assembly is in the hands of the Governor. 21 therefore
clause 1 of article 164 must be read taking into consideration clause 2 of the same article. there
can be no presumption regarding the fact that any clause that has been incorporated into the

19
AIR 1964 SC 600.
20
Supra Note. 1
21
INDIA CONST. Art. 174 (2) (a).
constitution is intended to be without effect.22 It is shown by the working of the Constitution that
the fact that a ministry shall not vacate office after its defeat in the house is not to be considered
maintainable.

It was a clear intention of the constituent assembly that after the forfeiture of confidence of an
assembly, operation should not be permitted to remain in the office by the Governor. The
framers of the Constitution explicitly opined that:

‘During the pleasure' is always understood to mean that the pleasure shall not continue
notwithstanding the fact that the ministry has lost the confidence of the majority. The moment the
ministry has lost confidence of the majority, it is presumed that the president will exercise his
pleasure in dismissing the ministry.23

It is the reason that it is necessary to mention in the Constitution the process of impeachment of
ministers, since they are the ones responsible to the House and can be removed by the House.
The Queen the United Kingdom and the Governor in India can be said to be an unequal
pedestal,24 particularly in regards to the dismissal of ministers. The essence of the Parliamentary
form of Government lies in the chief executive acting under the advice of his ministers and at the
same time enlarging the field of independent action by the Governor is fraught with Grave
danger in parliamentary democracy.

CONCLUSION

The above discussion clearly construes that the office of a Governor is not meant to supersede
the state legislature in matter of dismissal of the Ministries that are popular. The rejection of the
idea of a Governor being elected corroborates the proposition further. He has to remain the
nominal head of the state. His main responsibility is to keep the Union of India in an integrated
and united condition and the same has been incorporated by the values that the constitution has
laid down. At the same time, he is not supposed to thwart the democratic processes brewing
within the confines of the constitution.

22
Marbury v. Madinson, 1 Cranch 137.
23
Dr. B.R. Ambedkar, Speech in the Constituent Assembly.
24
Ram Jawaya v. State of Punjab, AIR 1955 SC 549 at 556.
The fourth general elections lead to an eclipse of a single party rule in both the state and the
centre. The discussions have renewed regarding the provisions concerning the office of
governor; and have at the same time created confusions in the interpretation of articles 163 and
164 of the Constitution. As there is advancement in the political scenarios it would lead to more
Complex situations regarding the exercise of discretion under clause 2 of article 163. Hence it
has become a necessity to clearly state the situations demanding independent exercise of
discretion by the Governor. Foremost and amendment in the constitution is required.

If it any point of time the Governor feels the council of minister has lost the support of the house,
it should be incumbent upon him to decide the matter on the floor of the House without waiting
for any advice from the Council of Ministers to summon the Assembly.

Since appointing a Governor has become a matter of controversies, it becomes unnecessary

matter of fact that while appointing a Governor, a President must at least have the support of
2/3rd members of the Lok Sabha or one half of the members of both Houses of the Parliament.

BRIEF HISTORY

The Congress had a clear majority in most of the state’s legislative assemblies prior to the fourth
election. This caused the ministries of several provinces to be more or less stable. Moreover,
since both the centre and the state were ruled by the same party therefore the possibility of a
serious centre-state dispute was close to impossible. This led the governor to have no useful role
and beyond any public controversy. Once Governor Shri Prakasa commented that:

Very often I had felt that it was being made increasingly difficult for self-respecting persons to
accept the office of a Governor.25

After 1967 a question arose as to whether the governor's actions were legitimate, in many states
and he was dragged into politics. it was under suspicion that the action of the governor of
Rajasthan in recommending the imposition of president's rule in the state and the suspension of
state assembly soon after the general election in 1967 in spite of the fact that the non Congress
groups in the assembly in combination and clear majority and Express their desires to the
Governor to form a coalition government was guided by the main motive to ensure the

25
Sri Prakasa, Are Governors Necessary, The Indian Express, p. 4 October 1, 1962.
installation of Congress party to power. The act of dismissal of the Union Front Ministry of West
Bengal and appointment of Dr PC Ghosh as the chief minister of the state by Mr. Dharma Vira
resulted in law and order getting abrogated and several controversies arising out of it regarding
the discretionary powers of the Governor. Opinions differed regarding the same as to whether Mr
Dharm Vira was justified constitutionally as he read his address, and the same was prepared by
his Council of Ministers, on March 6 1969, as the first joint session of the West Bengal state
legislature took place. The matter of fact is that he skipped two paragraphs which had in them
critical references relating to the dismissal of Mr. Ajoy Mukherjee's ministry in 1967.

Another instance of open criticism occurred on October 6 1970 when Mr B Gopala Reddi had
recommended president's rule in U.P, in October 1970 in spite of the fact that Mr Charan Singh,
the then Chief Minister of UP was ready to face the Assembly in an open session.