Governor's Power To Dismiss Ministers or Council of Ministers-An Empirical Study

GOVERNOR'S POWER TO DISMISS MINISTERS OR COUNCIL OF MINISTERS—AN
EMPIRICAL STUDY
Author(s): M.P. Singh
Source: Journal of the Indian Law Institute , OCTOBER-DECEMBER 1971, Vol. 13, No. 4
(OCTOBER-DECEMBER 1971), pp. 612-640
Published by: Indian Law Institute
Stable URL: https://www.jstor.org/stable/43950302
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GOVERNOR S POWER TO DISMISS MINISTERS OR COUNCIL
OF MINISTERS- AN EMPIRICAL STUDY
INTRODUCTION
"THE LIFE OF THE LAW", said Justice Holmes, "has not been
has been experience".1 This statement made in relation to the who
law is more accurately applicable to the field of constitutional law
branch of law does not consist only "of usages, commonly calle
tions, which without being enacted are accepted as binding by a
concerned in government."2 Although for the most we have
legal rules in the form of our Constitution but at the same time
conventions cannot be ruled out. Rather it has been accepted
Constitution implies various conventions of British constitution
be followed.3 Though if is nowhere mentioned in the body of our
tion that the British or any other conventions are to be followed, ye
the natural consequence of its framework. As will be discussed he
any other view of the Constitution will give a picture of the Con
which shall make it unworkable and out of tune.4
It is not to be inferred that for all times to come we have to depend
on British constitutional conventions and that we cannot establish our own.
Once they are adopted and followed we can modify and develop them accord-
ing to our own needs. But in bringing about any modification and change
a historical phenomenon is to be carefully noticed. And that phenomenon
is that the development in Britiain as well as in this country during the
British regime (at least from the beginning of the 20th century) has been
from autocracy to democracy and representative government. With this
historical factor at work the Britishers had been fighting since long against
their own political institutions while we had been fighting against the British
rulers. If this fact is lost sight of then we shall be doing something derogatory
to that for which we and our ancestors fought for gaining freedom and
1. The Common Law p. 1 (1881).

2. Wade & Phillips, Constitutional Law 3 (1965). "The Study of Constitutional
Law is allied not merely with history but with statecraft and with the political problems
of our great and complex national life*." James Bradley Thayer cited in Fraund,
" Constitutional Law Cases and other Problems ", Preface. (1964).
3. See, D.D. Basu, Introducion to the Constitution of India 31, (1966) V.N. Shukla,
The Constitution of India p. 75, (1964).
4. "The Conventions of the Constitution determine the manner in which the rules
of law which they presuppose are applied so that they are, in fact, the motive power of
the Constitution. In the second place, these conventions are always directed to secure
that the Constitution works in practice in accordance with the prevailing constitutional
theory of the time," Edmund Burke cited in Laski, {Parliamentary Government) in England
p. 52. (1952),

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1971] GOVERNOR'S POWER TO DISMISS MINISTERS 613
which we ultimately incorporated in our Constitution after

freedom.
The tendency of a lawyer generally is to take a logical vi
contents of law disregarding the purpose for which it exists, a
he goes on twisting the meaning of the words in such a way as m
out of context, preventing their capacity of growth. This tendenc
an object of attack and much has been advocated to bring law
life of the people.5 But the tendency still persits. In the field of
law this theory can have more dangerous effects and, therefo
written constitutions have been adopted the stand of the lawy
law courts has been a little different, i.e., they have treated the c
as a living document which has to serve the people for centurie
The provisions of the Constitution are not mathemati

formulae having their essence in their form : they are organic
institutions.... Their significance is vital, not formal, it is
gathered not simply by taking the words and a dictionary, bu
considering their origin and the line of growth.6
Keeping these basic postulates in mind the present study i

on an aspect of our Consitutition which is as much a part of
law as of political science and still more of practical politics.
ever part practical politics must be playing, it is the fu
constitutional lawyer to guide the politicians to adopt a princ
which our Constitution enjoins upon them. "The law wi
practice," says Jennings, "and the practice will follow the law
The question of the relationship between the Head of th
the Council of Ministers has throughout been a matter of g
during the British regime, during the formation of the Constitut
after the commencement of the Constitution. Much has
written on the subject.8 The Fourth General Elections (1
happenings thereafter in various states in India provided a fresh o
5. The whole sociological approach towards law demonstrates that

an appreciation of this view one may refer to Hall, Readings in Jurisprude
Stone, Legal System and Lawyer's Reasonings Ch. 1 F. 55 and Chapter
6. Justice Holmes in Communications Assens. v. Douds , 339 U.
Also Higgins , in Att. Gen. for N.S.W. v. Brewery Employees Union
469 at 611: "Although we are to interpret the words of the Constitutio
principles of interpretation as we apply to any ordinary law, these ver
interpretation compel us to take into account the nature and scope of the A
interpreting, to remember that it is a constitution, a mechanism under wh
be made and not mere act which declares what the law is to be." An
C.J., in C.P. & Berar case (1039) F.U.R. 18 at p. 37. Seervai, Constitution
(1967) 22, Shukla supra note 3, p. LXX1V.
7. Cabinet Government (1961) P. 2. See also P.S. Chaudhari : "Once legal norms
have been laid down, it would be right to say that the political behaviours must conform
to those norms." 1968, p. 51., (Journal).
8. A long bibliography of written material on the subject is given in 2 J.C.S. No. 4
at 173.

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614 JOURNAL OF THE I Ń Dt AŃ LAW INSTITUTE [Vol. IS : 4
to write and think on concrete problems which arose out of the emergence
of different parties in the legislatures, coalition governments and defections.
The offfice of the Governor attracted the attention of the people and became a
subject of controversy and criticism in regard to the part Governors played
during this period. The lawyers and the political thinkers started writing to
place the position of the Governors in the right perspective so as to put them
beyond controversy and criticism by giving the proper guidelines with respect
to their position in our constitutional structure. But no one can faresee
all the situations and problems that may arise in future requiring fresh
thinking and new solutions. The situation created by the dismissal of
Ajoy Mukherji's ministry in 1968 in West Bengal and the situation created
by the U.P. Governor's action in 1970 asking Chief Minister Charan Singh
to resign were entirely different. The two situations being different, the
solution in one cannot become a precedent for the other. The best way
to deal with different situations and problems is to correctly appreciate the
constitutional provisions so that they give the right guidelines to meet them
avoiding the possibility of a fresh controversy and criticism. For that
purpose one has to look upon the relevant constitutional provisions as parts
of the whole organism and not in isolation.
Bearing these principles in mind, it is proposed to discuss the subject
on the following lines :
1 . What is the form of government that our Constitution establishes

or proposes to establish?
2. Are there any established minimum norms for the proper
functioning of that type of government?
3. Did we have any past experience of the difficulties which could
arise by not following those minimum norms? And did the
Constitution-makers know of those difficulties at the time of
framing the Constitution ?
4. Does the Constitution leave any doubt that its makers did not
propose to provide a perfectly responsible government in the
States?
5. Is the Governor's discretionary power to dismiss the ministers
or a Council of Ministers compatible with the type of government
the Constitution provides for the States?
6. Can we lay down any general propositions for the proper func-
tioning of the type of government the Constitution provides for
the States on the basis of the constitutional provisions and the
practical experiences in the process of evolution?
In order to find out definite and workable answers to the above and
other allied questions, these are studied in their order and sequence.
"With respect to the relation of the executive to the legislature",
says Garner, "governments may be classified as cabinet government (the
terms 'ministerial', 'parliamentary' and 'responsible' are sometimes

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1971] GOVERNORS POWER TO DISMISS MINISTERS 615
preferred), and what, for lack of more suitable terms has been ca
dential or congressional government."9 He defines cabinet o
mentary government as :
That system in which the real executive - the cabinet or

ministry- is immediateiy and legally responsible to the legis-
lature or one branch of it (usually the more popular chamber)
for its political policies and acts and mediately or ultimately
responsible to the electorate ; while the titular or nominal
executive- the chief of state - occupies the position of irres-
ponsibility.10
If this is an accepted definition of the parliamentary form of government one

has no reason to doubt that Indian Constitution provides that type of govern-
ment at the centre as well as in the States.11 Although there is no rule that
no new definition can be adopted or evolved about the forms of government
unless there is a clear departure, express or implied, it is presumed that
the Constitution-makers were following the accepted models. Our
Constitution does not suggest any proposition contrary to this.
Confining ourselves to the Government at the state level, we find
that the Constitution provides for a Governor in each State12 in whom vests
the executive power of the State to be "exercised by him either directly or
through officers subordinate to him in accordance with this Constitution"13
To "aid and advise the Governor" in the exercise of his functions, "there
shall be a Council of Ministers with the Chief Minister at the head."14
However, he need not take the aid and advice of the Council of Ministers
"in so far as he is by or under this Constitution required to exercise his
functions or any of them in his discretion."15 He shall appoint the Chief
Minister and on his (the Chief Minister's) advice other ministers and all these
ministers shall hold their office "during the pleasure of the Governor."16
The Council of Ministers shall be collectively responsible to the Legislative
9. Political Science and Government (1932), p. 323.

10. Id. at 323.
11. Mr. Shiviah in his article "The Governor in the Indian Political System "
J.C.P.S. (1968) writes "that 'federation' and 'parliamentary government' are, to a cer
extent, mutually inconsistent, is a well known proposition". But I have doubt about
correctness of this proposition because out of four federal governments in the world P
K.C. Wheare mentions Australia and Canada where no doubt there are cabinet gover
ments. See, K.C. Wheare, Federal Government 33 (1967). See also K.V. Rao, Parliamen
Democracy in India p. 78 (1961). He has confused the issue by assigning certai
independent power to the President and by concluding that "it is not certain that it (Consti
tion with respect to form of Government) is based on the American model, nor doe
preclude the emergence of an English model in our country."
12. Art. 153.
13. Art. 154.
14. Art. 163(1).
15. Ibid.
16. Art. 164(1).

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él6 JOURNAL OF THE IN DÌ AN LA W INSTITUTE [Vol. 13:4
Assembly of the State.17 And no minister can continue in his office as

minister unless he is a member of the State Legislature or becomes suc
member within a period of six months from the date of assuming his cha
as such a minister.18 The Constitution does not make the Governor respon
ble to any body except to the extent that he holds his office during th
pleasure of the President and has to take an oath, before entering upon
his office, to/ 'faithfully execute the office of the Governor" and to the best
of his ability to "preserve, protect and defend the Constitution".19
the other hand the Constitution specifically immunises the Governor fr
becoming "answerable to any court for the exercise and performance o
the powers and duties of his office or for any act done or purported to
done by him in the exercise and performance of those powers and duties
In the definition of parliamentary government given above, the real executiv
i.e., the Ministry, has been made immediately responsible to the Lower Ho
of the legislature and ultimately to the electorate whose representatives t
are and who have to face an election at least once in five years21 while t
chief of the State - Governor - holds a 'position of irresponsibility
clearly brings our governments at the State level into the category of cabinet
governments.
The aforesaid conclusion based on constitutional provisions can be
further substantiated with collateral facts and materials. First, historically,
there is enough evidence of the fact that the Constitution-makers wanted
to give, and in their final estimation had given, the people a parliamentary
form of government at the centre as well as at the state level.22
Secondly, the historical aspect apart, the Constitution adopts almost
the same provisions which are given in other Constitution based on British
traditions providing for parliamentary form of governments.23
Thirdly, beyond all controversy is the observation of the Supreme
Court made in Ram Jawayďs case, where Justice Mukerjea, speaking for
17. Art. 164(2).

18. Art. 164(4). See, Har Sharan v. T.N. Singh , A.I.R. 1971, All. 237.
19. Art. 159.
20. Art. 361(1).
21. This period of five years may be shortened by an earlier dissolution of the
Legislative Assembly or extended beyond that period when a proclamation of emergency
is in operation. See, art. 172(1) and proviso thereto.
22. Reference may be made to the speech of K.M. Munshi in the Constituent
Assembly, VII C.A.D. 984-5 ; that of Sardar Patel, IV, C.A.D. p. 580 ; that of
Nehru IV C.A.D. at p. 734 and to the speech of Dr. Ambedkar while presenting the
Draft Constitution, "What the Draft Constitution proposes is the Parliamentary System"
VII C.A.D. at 32 and to the speech of Dr. Rajendra Prasad at the time of the adoption
of the Constitution, See, Shiva Rao, IV The Framing of India's Constitution, at 951,
528-9, Vol. II at 334-40 and Vol. V. at 395.
23. See, ss. 9-13 and 58-66, theB.N.A. Act 1867, ss 61-63 of the Commonwealth
of Australia Constitution Act, 1900. Although there is no provision making the real
executive (ministers) responsible towards the legislature, yet it has been so understood on
the basis of Parliamentary conventions.

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i 97i] GOVERNOR'S POWER TO DISMISS MINISTERS 6Í ?
the unanimous court said :
"Our Constitution, though federal in structure, is modelled on

the British Parliamentary system where the executive is deemed
to have the primary responsibility for the formulation of govern-
mental policy and its transmission into law through the condition
precedent to the exercise of this responsibility is its retaining
the confidence of the legislative branch of the State.24
He has clarified his point by applying this principle separately to the Union
and the State Governments.
Many more arguments may be advanced to prove the parliamentary
nature of our government25 but the purpose here is not to stretch that point
too far if it can be established by short analysis as given above. The sole
purpose of mentioning it is that since our Constitution establishes a parlia-
mentary form of government at the centre as well as State levels we can
seek guidance from those countries where such governments are working
on those matters on which our Constitutional provisions are not clear or
are silent. And in this respect Britian can be our best26 guide.
As the constitutional provisions on the form of government are very
few and give only an incomplete picture of its working, they by necessity
imply a knowledge and following of those basic principles and practices
on which the parliamentary government works.
GOVERNOR IN RELATION TO HIS COUNCIL OF

MINISTERS
1. A Historical View
The governor's office in this country is as old as 1665 when under

the Charter of 1661 a Governor was appointed at Madras.29 Since then
there has been a change in the status and powers attached to that office.
It will be beyond the scope of this study if the whole development is explained
from the very beginning to substantiate the above generalisation. Therefore,
we may start with the Government of India Act, 1919, wherein for the first
time some element of representative government was provided. The Act
provided for the appointment of a Governor in certain provinces authorising
him to act on the advice of his Council in relation to reserved subjects and
on the advice of the ministers in relation to transferred subjects.28 However,
24. A.I.R. 1955 S.C. 549 at 556. One may say that the view expressed in this
case is merely an obiter , but it may be submitted that in terms of article 141 of the
Constitution even abiter dicta of the Supreme Court are binding as law. See, I.T. Commr.
v. Vazir , A.I.R. 1959 S.C. 814 at 821.
25. For details see, K.V. Rao, supra note 11 at 58-83; Shiviah, 1 J.C.P.S. (1968)
p. 77.
26. 4 'No system of representative government has a history so continuous or so
successful as that of Great Britain", Laski op . cit., p. 13.
27. It should not be taken as denial of governorship in India prior to that but then
the word used was Subahdar under the Muslim rulers.
28. S. 46.

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he was not bound in all cases by the advice of his Council29 or of the Ministers3
and in the latter case he could refuse such advice if he saw "sufficient cause
to dissent" from their opinions.31 The Ministers were made the represent
tive of the people and not the official or nominated members.82 Th
system of government, "diarchy" as it was called, however, could not function
well as the Governor frequently used to dissent from the opinion of his
Ministers.33 The people went on fighting for a transference of powers fro
the Governor to the representatives of the people, i.e., the Ministers.34 A
a result thereof, the Government of India Act 1935 was passed by Britis
Parliament. The Act contemplated a federal government and in the pro-
vince, abolishing the difference of 'reserved' and 'transfereď subjects, it
made a provision similar to the present article 163(1) of the Constitution
in so far as the exercise of his functions by the Governor was concerned.3
What the Governor could do in his discretion was the choosing, summonin
and dismissal of ministers. Apart from discretionary powers, certa
responsibilities were also imposed upon the Governor to be exercised by
him in his individual judgment.36 While the Ministers were to be th
representatives of the people no provision was made for making the
responsible to the legislature or to any of its Houses. On the other hand
the Governor was to act under the control and direction of the Governor-
General in regard to the matters in his discretion or individual judgment.
As this Constitution also was not up to the wishes of the people, the feder
tion at the centre could never come into being and the provincial governments
could also not function properly and the Governors had more opportunit
of interference in the governmental business.38 In the course of the effor
to provide a Constitution according to the wishes of the people, a Constituent
Assembly was established in 1946. Hardly had the Assembly been able to
proceed due to the internal differences, when the decision was take
to grant independence to India on 15th August, 1947 by dividing i
into two dominious - India and Pakistan. Under the authority of the
29. S. 50(2).
30. S. 52(3).
31. Ibid.
32. S. 52(2) provided that "No minister shall hold office for a longer period than
six months unless he is or becomes an elected member of the Local Legislature."
33. See, Gwyer & Appadorai "Speeches and Documents on the Indian Constitution
1921-47" Vol. I XXXIV-XXXVI (1957).
34. Id. at XXXVIII.
35. S. 50(1) : "There shall be a council of ministers to aid and advise the Governor
in the exercise of his functions except in so far as he is by or under this Act required
exercise his functions or any of them in his discretion."
Similar provision was there for the Central Government, see, S. 9(1) - "There shal
be a council of ministers not exceeding ten in number, to aid and advise the Governo
General in the exercise of his functions except in so far as he is by or under this Act
required to exercise his functions or any of them in his discretion."
36. S. 52(1), (2).
37. S. 54.
38. S. Gwyer & Appadorai, op. cit. P. XLVII.

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1971] GOVERNOR'S POWER TÖ DÌSMISS MINISTEÈS 619
Indian Independence Act, 1947, the Government of India repe

provisions relating to the 'discretionary' functions and to th
responsibilities of the Governors.39 Following the same devel
the Constituent Assembly provided for the present provisions in which
has been left no place for any individual responsibility or for any disc
to be exercised by the Governor except in so far as it has been so
by or under this Constitution.40 This is the result of that historic
which is evolving itself in the form of political democracies. This
ment depicts that historical process, i.e., the transfer of power fr
man, whether a monarch or his nominees or any other head, to th
or to their representatives.41 This is the natural trend that takes p
democracy and we should do our best to fecilitate its smooth deve
rather than obstruct it and thereby give a chance to violent devel
And, therefore, this fact should not be overlooked, instead sh
weighed heavily while studying the relationship of the Governor
ministers under our Constitution.
2. DISCRETIONARY FUNCTIONS OF THE GOVERNOR
A departure in the language of article 163(1) from that of artic

may give a chance to think that the Constitution-makers wanted the Go
to override the wishes of his Council of Ministers at his discretion. But
this was neither the intention of the Constitution-makers42 nor is the accepted
interpretation of that provision. The Courts have held in several decisions
that
39. Ss. 51 to 56 of India (Provisional Constitution) Order, 1947.

40. The limited sphere where the Governor can exercise his discretion is discussed
below.
41. Compare similar view of Laski with regard to England. "Monarchy, to put it
bluntly, has been sold to the democracy as the symbol of itself ; and so nearly universal
has been the chorus of eulogy which has accompanied the process of sale that the rare
voices of dissent have hardly been heard." Op-cit. p. 392.
42. When this provision was being disccussed in the Constituent Assembly H.V.
Kamath moved an amendment for the deletion of the words 'except in so far as he is by
or under this Constitution required to exercise his functions or any of them in his discre-
tion' to make the Governor's position clear. See, VIII C.A.D. 489. Among others he
was supported on this point by H.N. Kunjru, Id at 492, and R.K. Chaudhari, Id
at 498. But the specific reply of T.T. Krishnamachari, Id at 490-91 and that of Dr.
Ambedkar was that in the Draft Constitution as it thus existed there were few arts.
(Arts. 144, 175 and 188) in which there was specific mention for the Governor to act in
his discretion. Keeping these articles into mind it was necessary that in the present article
it should be specifically mentioned that excepting those two provisions in all matters the
Governor shall act on the advice of his Council of Ministers. In his words "article 143
(now 163(1) ) will have to be read in conjuction with such other articles which specifically
reserve the power to the Governor. "It is not a general clause giving the Governor power
to disregard the advice of his ministers in any matter in which he finds he ought to
disregard." (Id. at 501.). He also said that those provisions could have been specifically
mentioned in Art. 163(1) itself but they were not known till then what they would be
(Id. at 501). And for these reasojis the amendment moved by Shri Kamath was
negatived (Id. at 502). However, as later on the article did not come for revision
those specific provisions could not be mentioned in Art. 163(1), but it was no tintended
tobe given any other meaning than that expressed above by Dr. Ambedkar.

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62Ò JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 13:4
all the powers exercisable by the Governor can be exercised on

the advice of the ministers except in so far as the Constitution
expressly or perhaps by necessary implication says that he can
exercise those powers in his individual discretion.43
The specific provisions which require the Governor to act in his discretion
are article 239(2)44 and paras 945 and 1 846 of the 6th Schedule of the Constitu-
tion.47 Apart from these three provisions there are certain provisions
in the Constitution which impose 'special responsibility' upon the Governor.48
But there is no scope to read discretion in 'special responsibility' and the
Governor has to act on the advice of his Council of Ministers.49 At the
most by imposing 'special responsibility' on the Governor, the Constitution
authorises the President to give directions to the Governor to implement
those provisions and in case of non-compliance to take action under article
365.50 In so far as the implied discretion of the Governor is concerned
it has been said that
though a power of the Governor to act in his discretion cannot

be inferred from the Constitution by implication, there are some
situations under the Constitution in which it may be impractica-
ble for a Governor to act upon ministerial advice, in view of the
A detailed description of deliberations in the Constituent Assembly is given by

K.C. Markandan 'Governor's Discretionary Powers - A study in the Intention of the
Constitution-Makers' 2 J.C.P.S. Pt. IV p. 115 (1968).
43. Ganamani v. Governor of Andhra , A.I.R. 1954, A.P. 9. Similar observations
have been made in Mohd. Aazm v. State of Hyderabad , A.I.R. 1958 A.P. 619 at 623.
44. Art. 239(2) "Notwithstanding anything contained in Part VI, the President
may appoint the Governor of a State, as the adminstrator of an adjoining Union Territory,
and where a Governor is so appointed, he shall exercise his functions as such administrator
independently of his Council of Ministers."
45. Para 9 relates to the sharing of royalties between the Assam Government
and the District Council in a Tribal Area of that State, where in case of a dispute the
Governor's decision in his discretion shall be final.
46. Para 18 relates to the functioning of the Governor of Assam, with respect to
certain areas in that State, as the agent of the President in his discretion.
47. Seervai is of the opinion that these express provisions are no provisions for
the exercise of his discretion by the Governor as he has to act in this matter under the
control of the President and therefore the only sphere for his discretion is by necessary
implication under article 356, and second proviso to article 200 ; op. cit. p. 775. cf the
view of Markandan, "To interpret the discretionary power of the Governor to mean any-
thing else than the power to consult the President and act accordingly is erroneous,"
op. cit. p. 131.
48. E.g., art. 371 requires the setting up and proper tunctioning oí regional Com-
mittees of the Legislative Assemblies of Andhra Pradesh and Punjab and the establishment
of separate development boards for certain areas in Maharashtra and Gujarat and alloca-
tion of funds for developmental expenditure over the said areas.
49. Basu, Commentaries on the Constitution» of India (5th ed.) Vol. 3 268.
50. Non-compliance with the Central directions by a State is a ground for
Presidential rule in that State, see, art. 365.

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very nature of such functions.51 And the situations so

contemplated are given in the second proviso to article 20052
and in article 356(1).53
The words, therefore, at the end of article 163 that "except in so far
as he is by or under this Constitution required to exercise his functions
or any of them in his discretion" are to be read with reference to these
provisions and not in a sense giving a general discretion to the Governor
to disregard the advice of the Council of Ministers. And looking from
that angle "these discretionary powers do not affect the normal position,
that like the President of India, the Governor must act on the advice of
his Council of Ministers."54 To read anything else in article 163(1) or in
any other article would not only subvert the principle of parliamentary
government but will also make the Constitution unworkable55 as the Gover-
nor cannot dispense with the necessity of keeping a Council of Ministers56
and the Council shall not like to remain in office if the Governor does
not act on its aid and advice. The specific mention of a few discretionary
powers, however, may be defended consistently with the principle of
parliamentary government57 in so far as the Governor himself cannot do
anything even in these matters except through the President or under his
superintendence, who himself acts upon the advice of his Council of
Ministers58 who are responsible to the Lower House of Parliament.59 The
Constitution-makers have taken in this way every care to establish and
protect the responsible or parliamentary form of government and every
effort must be made to uphold that principle avoiding any misleading
51. Basu op. cit. p. 266. See also Seervai op. cit. p. 775-76.
52. Art. 200 relates to the ascent of the Governor to the Bills passed by a State
Legislature and its second proviso is that " . . . . the Governer shall not assent, but
shall reserve for the consideration of the President, any Bill which in the opinion of the
Governor would, if it became law, so derogate from the powers of the High Court as to
endanger the position which that Court is by this Constitution designed to fill."
53. Under article 356(1) the Governor may report to the President that the govern-
ment of the State cannot work according to the Constitution.
54. Seervai, op. cit., p. 776. For a similar view see, P.S. Choudhri op. cit. p.
52-53.
55. ". . . it must be realised that, theory apart, all the great organs of the State
must act in harmony and co-operation, if Government is to go on." Seervai, op. cit.,
p. 775.
56. It has been held by the Supreme Court that the provisions in article 74(1) and
163(1) that "there shall be a Council of Ministers" is mandatory and there can be no
exception. U. N. Rao v. Indira Gandhi , A.I.R. 1971 S.C. 1002. It has also been
held by the Orissa High Court that functioning of the Governor in Orissa in Jan., 1971
for about two days without a Council of Ministers was unconstitutional. See, Navbharat ,
dated 22-6-71.
57. Cf. "But the whole idea of vesting discretionary powers in the head of the
State is against the basic characteristics as well as imperative conditions of smooth working
of responsible parliamentary government", Shukla, V.N., 2 J.C.P.S . No. 56 (1968),
58. Art. 74(1).
59. Art. 75(3),

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interpretation of any constitutional provision.60

The correct interpretation of article 163(1) shows that, ex
the function which the Governor can do in his discretion as stat
he cannot act without the advice of his Council of Ministers. The Constitu-
tion by expressly making the Council of Ministers as his adviser impliedly
prohibits him from taking advice from any one else. So whenever any
occasion arises to take any decision or to act in any manner the Governor
has to follow what the Council of Ministers says and not what he himself
thinks proper or what anyone else says.61 This is the principle of Parlia-
mentary government and it is to be followed if that government has to work
constitutionally.62 If the Governor as guardian of the Constitution
assumes for himself the right to reject the advice of his Council of Ministers
on any matter other than those specified above, he himself will be violating
a fundamental and very vital principle of our Constitutional system that
he has to function only on the 'aid and advice' of his Council of Ministers.63
Therefore, the best and safest course available to him is to follow the advice
of his Council of Ministers without any reservations. Professor Laski's
view that "A patriot King, whatever, the character of his opinions, is
incompatible with parliamentary democracy in the British form"64 is equally
applicable to our system. The best way to protect the Constitution
and the institutions created by it is to follow the central theme of our
system that the Head of the State is to work on the advice of his
Council of Ministers. Otherwise there will be confrontations between the
representatives of the people - the Ministers - and a nominal head and
ultimately the will of the people will prevail over the will of a single man and
as a consequence the office of the Governor may have to undergo a big
transformation in the Constitution.65 To sum up, in the words of Laski,
"my argument is that the Governor's public acts must be of an

automatic character, he must, in the public view, accept the advice
of his ministers. In private, no doubt, he can use to the full
those rights of advice and encouragement for which his supreme
60. This conclusion is supported by the Ram Jawaya case, op. cit ., and which has
been relied upon and accepted by the Constitutional authorities and others. For reference
one may look to Seervai, op. cit. p. 774, Basu, op. cit. 4th Ed. Vol. 2, p. 418.
61. Reliance by the King on the advice of anyone else except his ministers has
been characterised as 'patently unconstitutional', Laski, op. cit. p. 413.
62 . ses, V.N. Shukla - 'Federalism and Parliamentary Government' 2 J.C.P.S.
47, (1968).
63. See, Laski for expressing the similar views about the position of the King in
Britain, op. cit., p. 530-31.
64. Id. at 396.
65. Similar view has been expressed by Lord Esher and supported by La
with respect to England. "If the Constitutional doctrine of ministerial respons
means anything at all, the King would have to sign his own death warrant, if
presented to him for signature by a minister commanding a majority in Parliam
there is any tempering with this fundamental principle, the end of monarchy is in s
cited in Laski, op. cit. p. 429.

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position assures him full consideration."66
3. Appointment and Dismissal of Ministers
Apparently the words in clause (1) of ariele 164 give an

power to the Governor to appoint anyone as the Chief Mini
been so held by the Calcutta High Court.67 But in our Con
up and particularly in view of clause (2), that is not possib
such a man can be appointed a Chief Minister as carries or
him the majority of the Legislative Assembly. And it is, t
in exceptional cases that the Governor can rely upon his choi
when it is not clear who among the several claimants to the
the majority support.68 In so far as other Ministers are co
clear from the article itself that they shall be appointed onl
of the Chief Minister and the Governor shall have no choice in that. So
it is for the Chief Minister to choose his collegues who can work together
and who can secure the support of the Legislative Assembly. The Governor
may influence the choice of the Chief Minister but he cannot insist upon
a person being included in the government whom the Chief Minister does
not want. The Chief Minister's choice may be restricted because of political
and party reasons but it cannot be restricted by anyone in the strict terms of
law. The Governor cannot refuse the appointment of anyone as Minister
whom the Chief Minister wants. That is the British convention69 and the
law in terms of article 164(1). Any other interpretation of article 164(1)
shall be impracticable and absurd and shall bring the Governor into public
controversy and criticism which is incompatible with his constitutional
position.
( b ) Dismissal of Ministers
In terms of article 164(1), cited above in our Constitution, as in all

other constitutions having a parliamentary form of government the
ministers in a State hold their offices during the pleasure of the Governor.70
66. Laski, op. cit., p. 430, Art. 164(1) reads:

"The Chief Minister shall be appointed by the Governor and the other
Ministers shall be appointed by the Governor on the advice of the Chief
Minister, and the Ministers shall hold office during the pleasure of the
Governor."
Clause (2) of Article 164 is in the following terms :
"The Council of Ministers shall be collectively responsible to the Legislative
Assembly of the State."
67. Mahabir Pd. v. P.C. Ghose, A.l.R. 1969 Cal. 19ò.
68. J.R. Siwach says in "Appointment and Dismissal of the Chief Ministers"
2 J.C.P.S. (1968) p. 75 that even in such cases he has no choice because the leader of th
largest party in the Assembly must be appointed as the Chief Minister. For details an
precedents see, Jennings, op. cit . Chap. II.
69. See, Jennings, op. cit. p. 66.
70. Art. 164(1). For the Union Government similar provision is contained in
article 75(2).

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The pleasure of the Governor in this sense has been held exclus
without any limitations.71 But, with all respect to the decision gi
the Court, this is neither a practice in any other parliamentary governm
nor is it practicable in India to uphold this view in our present constitu
set-up. While drawing a distinction between the parliamentar
presidential systems of government, Dr. Ambedkar so emphat
explained this constitutional position that it cannot be expressed in
words than his own :
The President of the United States can dismiss any Secretary

at any time. The President of the Indian Union has no power
to do so, so long as his Ministers command a majority in
Parliament.73
This statement applies mutatis mutandis to the position in States and this is
one of the basic principles which distinguishes the cabinet government from
the presidential type of government.74 However, before pursuing this
point further, to understand the position clearly, it is necessary to draw a
distinction between the dismissal of individual ministers and the dismissal
of the entire Council of Ministers.
(z') Dismissal of individual ministers
Although, as stated above, theoretically each minister holds his office

during the pleasure of the Governor but, in practice, a minister holds his
office during the pleasure of the Chief Minister. As the Chief Minister is
the sole judge to choose the members of his team, heis also the sole judge
to determine whom to retain in the team and whom to oust from the team.
From this view two propositions emerge and they are -
(/) that the Governor cannot dismiss a minister against the advice
of the Chief Minister; and
(//) he cannot retain a minister whom the Chief Minister does not
want.
These are the accepted propositions of Parliamentary government and are

to be accepted as such if the Constitution has to work.
In the British Constitution it is an established fact that "a minister
always holds his office 'at the disposal of' the Prime Minister"75 and the
prerogative of the Crown to dismiss a minister "is exercised solely on the
For other constitutions see, Jennings, op. cit. p. 831, p. 207 ; the Canadian
Const. Sec. 11; the Australian Const. Sec. 62.
71. See, Mahabir Prasad v. P.C. Ghose, A.I.R. 1969 Cal. 196.
72. E.g., in England it is a recognised law of the Constitution, bee, Jennings,
op. cit. p. 207, Laski, op. cit. p. 229, Lowell, The Government of England (1912), p. 56.
73. B. Shiva Rao, op. cit. Vol. 3, p. 421.
74. See, Garner op. cit. p. 324 and 341.
75. Jennings, op . cit., p. 208,

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advice of the Prime Minister."76 Similar is the position in th

of Canada and Australia where the provisions are similar to t
However, the Prime Minister, before advising the King to dismi
shall intimate his intention to the minister concerned and as a matter of
constitutional practice the minister shall resign because he has no other
option but to resign. For,
"A minister always holds his office 'at the disposal of' the Prime
Minister, so that he may be said to have resigned - and the news-
papers will announce he has resigned- when he knows nothing
whatever about it. There are parts of the world where no public
servant is ever 'dismissed' because 'discontinued' is not such a
harsh term; similarly in Britain a minister is not dismissed, he
'resigns in order to facilitate a reconstruction of the Government'
At that time Lord Palmenston was compelled by

up the charge of foreign affairs and advised th
"accepted Russell's advice and Palmerston's resignation
certainly established the right of the Prime Mi

assent, to dismiss a minister or, what comes to
his resignation."79 The source of this right is
Prime Minister in his Cabinet.80
This instance apart, a minister resigns whenever he finds himself
unwanted in the government or becomes inconvenient to the Prime
Minister. This has been the known practice in India also.81 The only
instances available are from the State of Uttar Pradesh where this precedent
was not followed. In 1962, Algu Rai Shastri refused to resign when asked
by Chief Minister C. B. Gupta to do so. Again in 1970 in the coalition of
the^B.K.D. and the New Congress headed by the B.K.D. leader Charan Singh,
the ministers from the New Congress refused to resign when asked to do so by
the Chief Minister. In the earlier case the minister concerned resigned before
the Governor could be advised to dismiss him but in the later case the
Governor refused to follow the advice of the Chief Minister and instead
asked him (the Chief Minister) to resign. The Chief Minister did not agree
76. Id. at 207. See also Lowel, op. cit., p. 56 and Laski, op. cit. p. 229.
77. See, Dawson, Government of Canada (1949) pp. 190 and 206, and Kerr, Law
of the Australian Constitution, (1925) 218.
78. Id. at 208.
79. Id. at 210-211. About this practice Jennngs says, "there is a tradition
a kind of public-school fiction - that no minister desires office, but that he is prep
carry on for the public good, that tradition implies a duty to resign when a hint is
op. cit. p. 215.
80. Id. at p. 215.
81. For example Dr. S.P. Mukherjee and Dr. John Mathai resigned in 1950 for
reasons of difference with Prime Minister Nehru and similarly Deputy Prime Minister
Morarji Desai resigned in 1969 for differences with Mrs. Indira Gandhi and four other
ministers also resigned in the same year at the behest of the Prime Minister.

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626 JO URN AL OF THE INDIAN LA W INSTITUTE [Vol. 13:4
with the Governor and on the report of the Governor, Presidenti

imposed in U.P. This instance has no precedent but the que
Should it become a precedent for the future?
The Constitutional provisions also do not warrant any interp
other than what has been the practice. The Constitution imposes a
responsibility upon the Ministers towards the legislature and
collective responsibility is assured by the enforcement of two pr

ciples: first, no person is nominated to the Council except o
the advice of the Chief Minister , secondly, no person is retai
as a member of the Council if the Chief Minister demands
dismissal.82
Therefore, the pleasure of the Governor is to be exercised in the ligh

collective responsibility of the ministers and not "exclusively in
cretion."83 Non-compliance with the Chief Minister's wishes in th
will give him a cause to resign and the Governor shall have to fin
native Chief Minister and if the outgoing Chief Minister has w
majority of the Legislative Assembly, it will be very difficult for the
to find an alternative and in that case the Chief Minister shall exclud
persons from the Council, whom he wants to exclude. It shall m
position of the Governor very awkward and shall make him th
public criticism which shall vitally affect his position as a Head of
as well as his neutrality. The position being what it is in our Con
the pleasure of the Governor to dismiss ministers cannot be in
otherwise than as the pleasure of the Chief Minister.84
The above interpretation may be supported by the const
background of article 164. A similar provision existed in Sec. 51
Government of India Act, 193585 but Section 51(5) of that Act
that
The functions of the Governor under this section with respe

to the choosing and summoning and the dismissal of minist
The same provision was retained in Sub-cla

Draft Constitution prepared by the Constitutio
82. Dr. B.R. Ambedkar cited in Kaul and Shokdh

of Parliament (1968) p. 537. A similar view has been
cit. p. 177.
83. The opinion expressed in Mahavir Prasad v. P
seems to be wrong and cannot be followed as law. For
K.L. Joshi, The Governor's Power to Dismiss the Minis
84. The 'Administrative Reforms Committee has al
tion in its Report on the State Administration ' at p. 1 1
85. Sec. 51(1).
86. See, B. Shiva Rao, op. cit. Vol III, p. 9. B.N. Rau himself criticised such
a provision in the Constitution. Id. at p. 203.

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In the Draft Constitution prepared by the Drafting Commi

vision in Clause 126 was retained as such in Clause (6) of Ar
worth noting that neither under the Act of 1935, nor under
of the Constitution, there was any provision for the collective r
of the ministers.88 The provision for the collective respon
ministers was inserted in the Constitution for the first time
amendment to article 144 of the Draft by Dr. Ambedkar h
the same time he moved an amendment for deleting Clause (
and when one of the members asked why it should be omitt
reply of Dr. Ambedkar was, "Because we do not want to giv
cretionary power than has been defined in certain articles.
the present article was brought into the Constitution replac
provisions. Therefore, to interpret the 'pleasure' of the Go
same fashion which the Constitution-makers avoided after long d
would mean to undo what they did for us and for the smoot
parliamentary government in this country.
(ii) Dismissal of a majority of ministers and the coalitions
It shall be a rare case when a situation arises in which the Ch

may ask majority of his colleagues to resign. Practical
not allow him to do so and if he does that he will run the
outvoted in the legislature. However, should the occasion ari
ple as stated above with respect to the dismissal of individual
apply in such cases also. Such occasions may arise when the
rift in the party in power, as it happened in the All In
Party in 1969, 91 and the existing Chief Minister wants to m
with some other parties in the Assembly. The other case of
be when the Chief Minister is heading a coalition government
partner or the partners withdraw their support and the Chief M
to form a new coalition with other partners without resigni
reasonable and dignified course in such circumstances would
(0 the party or the faction of the party which does no

support the Chief Minister must call back its minister
87. Id. at p. 569.

88. It may also be noted that till this time it was not certain as to how the Governor
should be appointed. See, Art. 131 of the Draft Constitution. The present provision for
the appointment of the Governor was adopted at quite a late stage. See, C.A.D. Vol.
VIII, p . 469. In the Act of 1935 there was no provision even for the Chief Minister.
89. C.A.D. Vol. VIII, p. 503.
90. C.A.D. Vol. VIII, p. 507.
91. The effect of this rift was not as clear in the central government as it was in
the U.P. Govt. The then U.P. Chief Minister C.B. Gupta was left with a minority of
members of his party, the majority supporting Kamlapati Tripathi. But no question of
the dismissal of the Ministers arose as they themselves resigned from the government
and as the Chief Minister could not muster the support of any other party, he also later
on resigned in favour of Charan Singh- leader of the other largest party in the Assembly.

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628 JO URN AL OF THE INDIAN LA W INSTITUTE [Vol. 13:4
should resign,92 or
(i'O the Chief Minister should resign, if he has lost the majority
support in the legislature, without waiting any longer.
But the U.P. case which arose in 1970 was unique and quite strange. On a
rift having been created in the Congress party in 1969 the then Chief Minister
of U.P., Shri C. B. Gupta, resigned on February 10, 1970 when he lost the
majority support. An alternative government was formed on 17th of February
1970 by the B.K.D. with Mr. Charan Singh as the Chief Minister. The New
Congress - the largest single party in the Assembly - agreed to support it from
outside but it later on joined the government with the larger share on 19th
April, 1970.93 There was an understanding among the leaders of the New
Congress that the B.K.D. would merge into the New Congreess. Buton28th
August, 1970 the B.K.D. decided against the New Congress and withdrew its
support to the government but its ministers did not resign and insisted upon
remaining in office. The Governor stripped them of their [portfolios on
27th September94 but did not dismiss them and meanwhile asked for th
advice of the Attorney-General of India and of the Advocate-General of th
State. The former advised for the resignation of the Chief Minister and
the latter for the dismissal of the ministers named by the Chief Minister
On 28 th of September the Governor wrote to the Chief Minister expressing
his inability to accept his advice to dismiss the Ministers and asked him to
resign immediately as his continuance in the office had become unconsti-
tutional since the withdrawal of support by the major partner in the coali
tion.95 Meanwhile the Chief Minister had written several letters to the
Governor asserting his claim of majority support in the State Legislature
and requested the Governor to wait for few days till the Assembly met on
6th of October or to call the Assembly even on an early date. However,
the Governor, on 29th of September, reported to the President to
impose Presidential rule in the State as the Constitutional machinery had
broken down.96 The report was considered by the Union Cabinet on the
same day and was sent by a messenger to the President who was touring in
Russia and Presidential rule was imposed on the 2nd of October in the State
The action of the U.P. Governor, the advice of the Attorney-General and the
action of the President were largely deplored through newspapers and public
speeches.97 Writ petitions were also filed in the High Court of Allahabad
92. This was done by the new Congress in U.P. when after bifurcation of their
party in 1969 they withdrew their support to Chief Minister C.B. Gupta.
93. The number of Ministers of the two parties was like this: B.K.D- 10 cabinet
ministers including the C.M., 2 Ministers of State and 8 Deputy Ministers.
New Congress- 13 Cabinet Ministers, 7 Ministers of State and 6 Deputy Ministers.
94. See, The Hindustan Times , dated 28.9.70.
95. The Hindustan Times , dated 29.9.70.
96. See, The Hindustan Times , dated 30.9.70 and for report dated 2.10.70
97. See, The Hindustan Times, dated 30.9.70 to 3.10.70. For several weeks, a large
number of lettęrs to the editor appeared in the papers.

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1971] GOVERNOR'S POWER TOJDÍSMÍSŠ MINISTERS 62$
challenging the validity of the action of the Governor98 and o
President. 99
In my view the action of the Governor in not accepting the advi
the Chief Minister, did not conform to the parliamentary democrac
the matter cannot be disposed of so lightly when there was differen
opinion among the constitutional experts.
Dr. P.Kģ Tripathi99® takes a new line of approach to this prob
According to him the Governor acts on the advice of his Council of Mini
in terms of article 163(1) of the Constitution and not on the advice
Chief Minister alone or of any other Minister or Ministers in the Co
of Ministers. And the advice of the Council of Ministers means the
at least, of a majority of its members.100 If it is not the advice of the C
of Ministers in that sense, and is merely an advice tendered by a Chief M
or a minority of Ministers supporting him, then the Governor may
Chief Minister under Article 167(c)101 of the Constitution to put his dec
for the consideration of the Council of Ministers which he shall have to
do in terms of that provision, and if the majority of his colleagues do not
agree with his view or decision, then, naturally, it will be negatived and then
the Governor would be right in rejecting the advice tendered to him by the
Chief Minister and the Chief Minister shall have no cause to make any
complaint against the Governor and the only alternative available to him
98. See, Hindustan Times , dated 30.9.70ģ

99. Ibid, dated 7.10.70.
99 a. Dr. P.K. Tripathi, Member of the Law Commission, Government of India,
New Delhi-1, formerly Dean, Faculty of Law, Delhi University. The observation made
here is based on his discussion on the All India Radio about the Situation in U.P.
in September-October 1970 and also his discussion with the writer, for which the write
thanks him.
100. Although the proceedings of the Council of Ministers are secret and no one
has an access to them but as is the British practice the minutes of the Cabinet or Council
of Ministers must be going to the Governor which may be consisting of the decision of
the Council of Ministers with the signature of the ministers who took part in it. And
it is also the natural consequence of the collective responsibility of the Council of
Ministers that unless a matter is supported at least by a majority of them, it cannot
be called as a decision of the Council and it cannot bs forwarded to the Governor
as the decision of the Council of Ministers. My assumptions about the above pro-
cedure may be supported by the happenings in Orissa on 9 th January 1971 where
the Chief Minister with his resignation asked the Governor to dissolve the
Legislative Assembly, but the Governor accepted the resignation and did not accept the
advice of the dissolution as it did not contain the formal approval of the Council of Ministers
which the C.M. gave later on after a cabinet meeting, but their resignations had already
been accepted and, therefore, the Governor did not recognise the Cabinet. Although
the method adopted by the Governor was largely criticized, but it throws light upon the
procedure. However, to my mind, if the Chief Minister gets any decision passed in a
Cabinet meeting in which ministers of his group alone are present, there would be no
unconstitutionality in the action of the Chief Minister nor in that of the Governor if
he acts upon such a decision.
101. Article 167 : "It shall be the duty of the Chief Minister of each State -
(c) If the Governor so requires to submit for the consideration of the
Council of Ministers any matter on which a decision has been taken by a
minister but which has not been considered by the Council."

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is to resign and form a new team, if he is in that position, which may supp
his views.102 Therefore, in a situation like that of U.P. where the Ch
Minister tendered his advice to the Governor to dismiss the majority of
Council of Ministers, while the Ministers were determined not to res
and were asking the Chief Minister to resign, the Governor could hav
justified his stand in not accepting the advice of the Chief Minister by reso
ing to article 167(c) of the Constitution and could have avoided much of
misunderstanding and criticism.
It is submitted that even a literal reading of article 167 (c) does n
convince the writer that the word "Minister" used therein includes C
Minister by implication, rather it suggests a meaning quite opposed t
The provision runs as :
"It shall be the duty of the Chief Minister of each State -
(a)
(b)
(c) if th
tion of
a decis
not be
True it
office d
the Chie
provisio
within
in claus
which i
absurdit
theword
would am
"It shal
(c) if th
of the
been ta
been co
Actuall
Constitu
102. Cf.
103. One
does not
Chief Min
in clause
Chandrab

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with respect to the centre, i.e., article 78.104 However, as is evident from
Constituent Assembly Debates,105 it was introduced just to give pl
certain conventions recognised and accepted in Britain and to reconc
Governor's functioning on ministerial advice with his duties, to "pr
protect and defend the Constitution". Hence what is being done
name he must remain informed of that so that he may properly warn, g
or encourage his Council of Ministers about the decisions on which
are going to take his signatures. Almost no discussion took place on
78 in the Constituent Assembly106 but there was a good debate on
167(c)107 before it was adopted . However, there is nothing in that d
ion which suggests that the term 'Minister' was meant to include the
Minister also. On the contrary, the discussion shows that it was m
to apply to the Ministers other than the Chief Minister so that he could
a better hold on his colleagues.108
The British conventions also do not throw much light on this
because such conventions seem to have fallen into disuse there.109 It, how
does not mean that there has never been such practice when the K
Queen might have asked the Prime Minister to put a matter befor
Cabinet, on which any Minister had taken a decision without the Ca
consideration.
A number of such instances are available during Queen Vict
reign.110 Not only that but there are also instances available wher
issues have been raised by the Queen or the King, like any Cabinet M
and the Prime Minister has been asked to take immediate action w
104. There was no provision similar to Art. 167 or Art. 78 in the Gover
of India Act, 1935. Nor such provision existed in the Draft Constitution prepare
Constitutional adviser. It was at the stage of the consideration of this draft
Drafting Committee introduced cl. 58- A (Art. 78) and 128- A (Art. 167) which
Articles 65 and 147 in the Draft Constitution prepared by the Committee.
Shiva Rao, op. cit., Vol. III. pp. 350, 353-54, 358, 367 and 433.
105. Speech by Dr. Ambedkar VIII C.A.D. at 533.
106. VII C.A.D. at 1363.
107. See. C.A.D. Vol. VIII, pp. 533-547.
108. For example, defending the article K.M. Munshi said, "when a Minister acts
behind the back of his colleagues, behind the back of the Chief Minister who is responsible
for all the action of the Ministers, why cannot the Governor say, 'Here is a particular
order I feel that . . .all the Ministers must meet and consider it together' .... Therefore,
it is a safeguard which presumes the collective responsibility and powers of the Prime
Minister, and not a power which interferes with the Government." Id. at p. 541.
109. Basu, op. cit. Vol. 3, p. 280.
1 10. For example Lord Palmerston's decision to receive some foreign deputations
was sent for the consideration of the Cabinet: See, Jennings, op. cit. p. 209. And again
Jennings says, "Queen Victoria frequently asked for foreign office despatches to be sub-
mitted to the Cabinet. In 1858 and on many other occasions, she asked the Prime Minister
to bring before the Cabinet the question of the national defences," Id. at 364.
It should, however, be noted that on no occasion was the Prime Minister holding
the portfolio of either the defence or of foreign affairs, and actually the British Prime
Minister never keeps any important portfolio for himself.

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a Cabinet decision.111 But there is not even a single instance

where a Prime Minister might have been asked by the Queen to r
matter to the Cabinet on which he had taken a decision. If this p
in England suggests anything, it is this that the Queen may ask th
Minister to put a matter before the Cabinet on which anyone of his co
has taken a decision and which has not been considered by the Cab
she cannot ask the Prime Minister to put a matter before the Cab
which he himself has taken a decision.112 There is every reason f
proposition being accepted and it is that the Prime Minister is in a
to solicit the necessary support in the Cabinet for his actions and h
along with his colleagues knows that the only choice for the Cabinet is
to approve the decision of the Prime Minister or to face the fall
government in his resignation.113 It is certain that the choice shal
be for the first alternative unless the decision of the Prime Ministe
absurd - which is not expected to be - to be defensible in the Par
or before the people. But this principle cannot be applied in case
other Minister, because the non-acceptance of his decision wou
only in his resignation and not in the fall of the entire government, b
act contemplated by that Minister may be such as cannot be undo
it may bring the whole government into disrepute and, therefore, it is
for the Queen to refer the matter to the Prime Minister rather tha
a chance for the government's criticism. This proposition of the
Constitution, in the light of the conventions, may be applied mutatis m
to our Constitution to appreciate the correct meaning and import
167(c).
One may suggest here that if a Minister knows the fate of his taking
and acting on any decision not considered by the Cabinet, he will provide
no occasion for the application of article 167(c) and it is only in the case
of the Chief Minister's decision, more so where he heads a coalition, that a
question of the application of this provision shall arise. It may be submitted
here that if a Minister would not give such a chance, still less it will be given
by the Chief Minister who must be knowing his position in the Council.
An over enthusiastic Minister, to implement his personal views, may do so,
as Lord Palmerston did in England, to gain popularity at the risk of losing
his post but a Chief Minister who has to run a government would not do
that.
Authorising the Governor to the extent of asking the Chief Minister
to get his decisions approved by his Council of Ministers before he acts
upon them may sometimes be quite inexpedient and may block the smooth
functioning of the administration. In some situations immediate action
is required and the Chief Minister advises the Governor accordingly. The
111. See, Jennings, op . cit., p. 369, Laski, op. cit. p. 261.

112. Ordinarily the Governor should accept what the Chief Minister says,
even though there was no joint discussion of that matter in the Council of Ministers.
113. How the P.M. can campei the Cabinet to accept his views by announcing them
in advance in public. See, Jennings, op. cit. p. 226.

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Governor may block the way, even if the Chief Minister sug
he has informally consulted his colleagues on telephone or
Governor may do so, for example, if he wants to malign th
in the eyes of the people and at the same time to give a chance t
tion to rise to the occasion. A little delay caused by the Gov
emergent cases may be enough to ruin the administration an
fall of the government.114 And the motive for such an acti
of Governor cannot be outrightly rejected in India.115
Even if it be accepted that article 167(c) is meant to
Chief Minister also, it cannot help in the matter of app
or dismissal of the Ministers. Political considerations apart
discretion of the Chief Minister as to whom he wants to keep in
no matter whatever be the number of Ministers. The dismissal of the indivi-
dual Ministers is also not a matter which must have the approval of the
Council of Ministers. It is the concern of the Chief Minister and he must
know the consequences of the exclusion of a particular Minister. This
principle would apply whether the government is of a single party or it is
a coalition. How, after all, can the Governor keep those Ministers in
office whom the Chief Minister does not want ? Either they should vacate
their offices or the Chief Minister would make them to vacate ultimately
by his own resignation.116
The impracticability of any other approach on this point may be further
demonstrated by the fact which has already been suggested to have been
established in the Constitution117 that in the matter of appointment of the
Ministers the Constitution, in very clear terms, confers the full authority
on the Chief Ministers and there is no need to take guidance on this point
even from the British Constitution or any other Constitution having a
parliamentary form of government. In the choice or appointment of
Ministers the Constitution does not impose any restrictions on the Chief
114. And if the same principle is applied to article 78(c) relating to the centre then
such an action on the part of the President may put the independence and sovereignty of
the country in doubt in the cases of national peril such as war.
115. Such motive on the part of the Governor may arise for two reasons. Firstly,
the Governor is the appointee of the Central government and the party in power at the
centre may be the party in opposition in that State and to boost the opposition the
Governor may be influenced by the centre. Secondly, he himself, generally being a
politician, may be having allegiance to the party in opposition and, therefore, may remain
in search of a chance to wreck the government. See, Siwach, op. cit. 2 J.C. P. S. 75.
116. The English law on this point is that by the resignation of the Prime Mini ster
the offices of other Ministers do not fall vacant even if they have resigned till the Queen
accepts the resignation and they may be taken in the new Ministry without formal appoint
ment. See, Jennings, op cit. p. 86-87. But this proposition may not be exactly
applicable in India where the Constitution does not expect any Ministers outside the Council
of Ministers and the Council of Ministers is nothing without a Chief Minister at its head.
(Art. 164(1) ) and it should be regarded to have been dissolved as soon as the resignation
of the Chief Minister is accepted.
117. See, supra, appointment of Ministers. It is an established rule in England
also that for appointing the Ministers, the Prime Minister is not required to consult
his cabinet. See, Jeanings, op. cit. p. 66, 68.

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6U JÓ V RH AL OF THE ÌNDI AH LAW INSTITUTE [Vol. 13:4
Minister even with respect to their number.118 So if the Chief Mini

wants the majority of his colleagues to be removed, who are not willin
resign and the Governor taking help from article 167(c), insists upon
Chief Minister to get his desire approved from the Council, then he (the Ch
Minister) can do so by appointing a few more Ministers who would sup
him and thus can achieve the desired result.119 Such an interpretatio
article 167(c) therefore, instead of helping the Governor in any manner
draw him into the arena of political controversy and criticism from w
he, and every constitutional head in a parliamentary system, is expect
remain away and above.120
It is suggested, therefore, that article 167(c) does not provide an
practical solution to the problem and the only workable as well as Cons
tional solution is what has been suggested in the beginning of this head
i.e., the Governor should remove those ministers who are unwillin
resign and whom the Chief Minister does not want.
(iii) Dismissal of the Council of Ministers
An unprecedented121 step was taken by the Governor of West Be
on November 21, 1967 when he dismissed the Council of Ministers he
by Ajoy Mukherjee. Without entering into the long political developm
behind this happening, it is enough here to narrate a few facts. Mr. Mukhe
was heading a Coalition Ministry wherein certain differences arose. O
November 3, one of the Ministers, Dr. P.C. Ghosh, resigned and al ong
17 members of the Legislative Assembly formed a new party called 4
Progressive Democratic Front". The opposition then made a claim
the Ministry had lost the support of the majority in the Legislative Assem
and that a new Ministry with Dr. Ghosh as the Chief Minister should
formed. The Governor asked the Chief Minister to call the Assembly
Session by the end of November to judge his position in the Assembly to
which the latter did not agree and rather advised the Governor to convene
118. The Government of India, Act, 1935, for example had provided a maximum
limit of ten ministers at the centre (Sec. 9). The A.R.C, has also recommended a limit
on the number of ministers. See , Report of A.R.C, on State Admn. p. 9.
119. For example in the case of U.P. if the Governor was to support his move by
taking recourse to article 167(c), then it could be defeated by the Chief Minister just
by appointing four new ministers of Cabinet rank from any of the parties which were ready
to support him.
120. "The point is that as soon as he tries to get what is virtually a group to favour
his view; he is abandoning that neutrality in action which is of the essence of his position.
From intrigue within a Cabinet to intrigue with the opposition is a gravely short step."
Laski op. cit . p. 280.
". . . the King will be conscious that he does not give an impression that he is partial
to any party", Keith, The King and the Imperial Crown , 177.
121. It was the first occasion after the commencement oi the Constitution that
any Council of Ministers was ever dismissd. Such dismissals prior to the commence-
ment of the Constitution do not create any precedents as the then constitutional provi-
sions were different from the present ones. Hence, as has been observed later here,
those cases cannot be relied upon at all to support the Governor's power to dismiss the
Ministeries.

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1971] GOVERNORS POWER ŤO ĎISMIŠS MÍNIŠŤEŘS 63$
the Assembly on 18th December. The Governor, not being con

with the reasons given by the Chief Minister in his advice, dissol
Ministry on 2 1 st N ovember presumably on the ground that the Chief
had lost the confidence of the majority in the Legislative Assembly
knowingly avoiding to face it, and appointed Dr. P.C. Ghosh as th
Minister. The action of the Governor roused intense passions and o
ed bitter controversies. There were large-scale demonstrations
Bengal sometimes involving violence. The P.C. Ghosh Ministry als
not function as, on the opening of the Assembly session on 29th of Nov
the Speaker adjourned the session sine die holding that the dismiss
Ajoy Ministry was unconstitutional and invalid and, therefore, the
ment of the Ghosh Ministry was also unconstitutional and it could
recognised.122 Before the constitutional deadlock created by the Sp
ruling wa-s over there were defections in the ruling group and the
ended with the imposition of Presidential rule in the State on Febru
1968.123 Fresh elections for the Assembly in 1969 brought Mr. Mu
and his coalition partners in greater majority which implied furth
demnation of Governor's action of November 21, 1967.
It has been discussed above that the Governor always acts
advice of his Council of Ministers except in those matters where
function in his discretion. The discretionary functions of the Go
as mentioned there are very restricted and do not include the power to
the ministers or the Council of his Ministers in his discretion. And
this view is accepted the Governor can never dismiss the Co
Ministers unless so advised by the Council itself.
The view that the discretion of the Governor under article 163
never meant to extend to the dismissal of Ministers or of the Coun
fully supported by legislative history of the present constitution
visions.124
The Parliamentary democracies have well established conve
on this point and now it is a well recognised rule in England that s
only dismissal of a Ministry in 1783, it has never been repeated the
upon the advice of the Prime Minister.125 Some people cite Dicey
Keith127 to support the view that somewhere at a certain point th
an inherent power in the King to dismiss the "Ministers in order
122. See, The Hindustan Times , Nov. 30, 1967.

123. Meanwhile, on 14th of Feb. 1968 the Governor had summoned the A
to meet when again the Speaker relying upon his earlier ruling adjourned the
sine die.
124. Legislative history is relevant in interpretation. See, Madhava Rao Scindia
v. Union of India , A.I.R. 1971 S.C. 530 at 613.
125. Another instance of such a dismissal was when in 1834 Lord Melbournne
was compelled to resign. But the British Constitutional lawyers have doubts about its
truth and they are of the view that the P.M. resigned of his own. See, Jennings, op. cit.
p. 403, Laski, op. cit. p. 414. Lowell, op. cit. p. 57.
126. Jennings, op. cit. p. 407.
127. Keith, op. cit. p. 177. 129.

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636 JOURNAL ÔF THE INDIAN LA W INSTITUTE [Vol. 13:4
may ascertain the will of the nation,"128 or at least he can exercise this p
in "grave circumstances."129 But now the statements of law by
and Keith remain merely a part of constitutional theory clearly de
from constitutional practice and almost all the modern writers agr
that point. "There can never be," according to Wade and Phillips
justification for the dismissal against the advice of the Prime Minist
a Ministry which commands a majority in the House of Commons.130
is no justification for the Queen not to accept the advice of the Cab
till "the Constitution functions in the normal manner"131 is the view of
Jennings and for Laski it would be the violation of the Constitution by the
King if he refuses to accept the advice of the cabinet on the pretext of saving
the Constitution.132 He goes further and says that Kieth's view that
the power of dismissal "exists only for wise employment in grave circum-
stances" is unsound and no wise king would take the responsibility upon
himself to decide about "wisdom" and "gravity" of the circumstances
because a single unwise exercise of that power may put the existence of
monarchy in doubt.133 Thus in England it is a well recognised principle of
constitutional practice that even in matter of dismissal the Queen acts on
the advice of the cabinet. There are no examples available from other
parliamentary democracies where the governments were dismissed by the
Head of the State. The only examples available are from India itself which
happened under the Government of India Act, 1935. But they cannot
be cited as precedents134 to interpret the power of the Governor under article
164(1) and for the exercise thereof, for the simple reason that under that
Constitution the Governor was expressly empowered to dismiss the ministers
in his discretion. The only exercise of such discretion by the Governor
of West Bengal is enough to show that such an exercise of power is neither
the law nor it can become the practice if the parliamentary democracy is
to work.
Sir Ivor Jennings mentions few exceptional cases in which the Queen
may refuse to accede to the policies of the Cabinet to see the normal
functioning of the Constitution.135 But in the case of India none of those
128. Jeanings, op. cit. p. 407.

129. Ibid.
130. Jennings, op. cit. p. 82.
They say that even if a P.M. is in minority the advice of the P.M. should be accepte
by the King.
131. The Constitution "functions in the normal manner so long as the electo
are asked to decide between the competing parties at intervals of reasonable lengt
Jennings, op. cit. p. 412.
132. Op. cit. p. 431.
133. Id. at 415.
134. Basu, op. cit. Vol. II, p. 447, cites the examples under the Act of 1935
precedents for Governor's power to dismiss the Council of Ministers. See also Vol.
p. 271.
135. He says that the Queen "would be justified in refusing to assent to a policy
which subverts the democratic basis of the Constitution, by urmecessaiy or indefinite

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exceptionable cases is relevant in so far as the States are concer

subject to all doubts, they may be applicable in the cases o
government.136 So here also the Governor's case finds no fav
comparison between the Queen of England and the Governor
is in a more disadvantageous position in so far as the relation
the Council of Ministers is concerned,
The oath of the Governor to preserve and protect the Co
cannot help him to defend his actions against the advice of th
Ministers if he thinks that their actions are unconstitutional,
refusing to act upon the aid and advice of his Council of Minis
self shall be violating an essential principle and the provisions of t
tion. Therefore, the only alternative available to him in such c
is to submit his own resignation. In line with Keith,137 1 thin
cases the threat of resignation by the Governor would deter a wro
from pursuing its policies further and the matter may be reso
the violation of the Constitution on either side. Moreover, I
to visualize any circumstances where the Governor is the final
authority to judge the constitutionality of the actions of th
Ministers. He may at the most report to the President under
that the Government "cannot be carried on in accordance with the Constitu-
tion."
It has been suggested at high levels that the Governor would be justified
to dismiss the Council of Ministers in the interests of the purity of adminis-
tration.138 I think "the interest of the purity of administration" is a very
vague concept and giving discretionary power to the Governor, to determine
what it is, will be an unconstitutional addition to the limited discretionary
powers of the Governor. Moreover, it is inconsistent with the basic concept
of parliamentary democracy where the people, and not one man, have to
decide about all these things.
One more mooted point is that the Council of Ministers shall be liable
to be removed if it refuses to face the Assembly within a reasonable time
in the event of more than fifty per cent M.L. As representing to the Governor
in writing that they want to move a motion of no-confidence in the Ministry.139
There is some force in this argument . Yet its practical application will
involve the problem of determining the "reasonable period" within which
the Council must face the House. If we concede the principle that the
prolongations of the life of Parliament, by a gerrymandering of the constituencies in the

interests of one party, or by fundamental modifications of the electoral system to the same
end."
136. All these matters given above, Jennings, op. cit p. 412, lie in India within the
domain of the Union and the State governments have no approach to these matters.
See, articles 172, 327 and 356.
137. Op . cit . pp. 178-9.
138. See, The Hindustan Times, dated 30.9.70. See also J.R. Sivach, op. cit.
p. 75.
139. The Hindustan Times , dated 30.9.70. Sec also A.R.C . Report on Centre-
State Relations .Recommendation No. 11.

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Governor has no discretionary powers except those provided in the Con

tion then he cannot call the Assembly against the advice of his C
ofMinistersanditis they (the Council) who shall determine the rea
time within which it should be called and constitutionally the Go
must accept their advice unless it is too unreasonable to call for the
of his discretion under article 356 of the Constitution. What may
consequences of the Governor's acting against the advice of the C
of Ministers is evident from the case of West Bengal. Even if the
fear that the Chief Minister by taking time might be engineering defe
it is no defence for Governor's acting against its advice. Even
extreme case of a Chief Minister not agreeing to call the assembly
the constitutional period of 6 months, the only remedy available
Governor is to resort to article 356 and not to article 164 (1
it is not expected that any sane Chief Minister shall take such an uncon
tional step in a parliamentary democracy which may ruin his political c
Finally, it may be said that so long as the Council of Ministers
the confidence of the Legislative Assembly the Governor shall
justified in dismissing the Council of Ministers against its advice.140 An
only test to determine the confidence of the Assembly in the Coun
defeat of the government in the Assembly.141 Any other test is alw
and it must not be adopted.142 It is more so in the case of a mult
system in legislatures or coalitions in the Indian States after t
elections.
In normal cases the Council of Ministers shall immediately resign on
its defeat in the House and it shall give no opportunity to the Governor to
exercise his pleasure to dismiss the Ministers. But suppose in an extreme case
a Chief Minister does not resign even after his defeat in the Assembly or
he advises for the dissolution of the Assembly after such defeat what course
the Governor has to adopt ? In the first case the Governor may be justified
in dismissing the Chief Minister provided he is sure that there is some other
leader who can form a stable government143 yet the best course for him is
to report to the President under article 356 and the legislature be suspended
till a clear position emerges. In the latter case, i.e., where the defeated
Chief Minister advises for dissolution, the position is not very clear but the
140. Wade & Phillips, op. cit. p. 82; J.R. Sivach, op. cit. p. 75.
141 . The reason is that the members of the legislature may be criticising the govern-
ment or its individual ministers yet they may support their policies when put before them
in the House and if they do so then their criticism is no justification for treating the govern-
ment in minority.
142. Eeven defeat on any matter is not treated the defeat of the government suffi-
cient to justify the resignation. It is only when the government is defeated on a major
policy issue or a motion of no-confidence is passed that the government is required to resign
See, Basu, op. cit. p. 456; Chalmers & Hood Phillips, Constitutional Law of Great
Britain , p. 198. (1946).
143. If the Governor's choice of the new Chief Minister is found wrong on a test
in the Assembly then he would be in a very awkward position and such a position is very
much likely to arise in the present çonditions of Indian State legislatures where no single
party forms the majority,

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weight of authorities in English Law144 is in favour of accepti

of the Chief Minister. Only in those cases where there is a c
opposition ready to form a stable government and the Chief Minis
upon his advice the Governor may exercise his discretion of di
Chief Minister and that also only if there is no case made
Presidential rule under article 356.
Conclusion
Summing up, it may be said in the conclusion that after a long an

bitter experience of the past our Consitution-makers, after giving their full
thought to the matter, had established a fully responsible or parliament
government both at the centre and in the States. They could also envisa
the situations when difficulties could arise due to the immaturity and l
of training in democracy on the part of politicians making it inconvenie
or even impossible to run a responsible government in any State. Therefo
they had also provided proper safeguards to meet the situation, not by
authorising the nominal head of the State to assume powers to himself b
by imposing a duty upon the centre "to ensure that the Government of ever
State is carried on in accordance with the provisions of this Constitution.145
So if the Governor finds that the Government of the State cannot be run
in accordance with the provisions of the Constitution he can report
the matter to the President and the President, if he is satisfied about the
fact mentioned in the report, may impose the Presidential rule in the State.146
Apart from this limited discretion with the Governor he cannot exercise
his discretion to decide the State matters over the head of the Council of
Ministers or against their advice. If that is our constitutional structure
of the government and the functioning thereof, then to formulate exceptions
on any real or hypothetical grounds would be unconstitutional and would
wreck the whole scheme. This is the position with respect to the continuance
and dismissal of Ministers or a Council of Ministers as much as with respect
to other policy matters and the day to day working of the parliamentary
government in a State. Therefore, in so far as the appointment and dismissal
144. See, Wade and Phillips, op. cit. p. 82, Laski, op. cit. 410. In England King
George V accepted the advice of a P.M. who had fallen into minority.
In India also the minority government of Mrs. Indira Gandhi was allowed
dissolution of the Lok Sabha in Dec. 1970. It must, however, be noted that the minority
was not proved in the Parliament by the defeat of government. Similarly the Orissa
Government of R.N. Singh Deo would have been allowed such dissolution in Jan. 1971
but for the technical reason that the formal decision on that matter was taken after the
resignation of the Chief Minister had already been accepted. In June 1971 the Punjab
Governor allowed dissoluton of the Assembly to the Badal Ministry which had fallen
into minority.
The A.R.C, has also recommended the acceptance of the advice even of a defeated
Chief Minister to dissolve the Assembly, see, Centre-State Relations , Recommendation
No. 13.
145. Art. 355.
146. Art. 356,

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of individual Ministers is concerned, the Governor has to follow

of the Chief Minister without any exceptions147 and in so far as the
of the Chief Minister or of the Council of Ministers is concerne
no scope for the discretion of the Governor except perhaps in a
expected situation where a Chief Minister has been defeated in th
and he neither resigns nor recommends the dissolution of the
The above suggestion is based not as much upon the technicalit
words of the Constitution as upon its general scheme and the p
workable scheme of the parliamentary form of government.
M.P. Singh *
147. A.R.C, has also made a similar recommendation. See, Report on State
Administration , p. 11.
♦ LL.M., Faculty of Law, University of Delhi.

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Governor's Power To Dismiss Ministers or Council of Ministers-An Empirical Study

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Governor's Power To Dismiss Ministers or Council of Ministers-An Empirical Study

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GOVERNOR'S POWER TO DISMISS MINISTERS OR COUNCIL OF MINISTERS—AN

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1. The Common Law p. 1 (1881).

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which we ultimately incorporated in our Constitution after

The provisions of the Constitution are not mathemati

Keeping these basic postulates in mind the present study i

5. The whole sociological approach towards law demonstrates that

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1 . What is the form of government that our Constitution establishes

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That system in which the real executive - the cabinet or

If this is an accepted definition of the parliamentary form of government one

9. Political Science and Government (1932), p. 323.

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Assembly of the State.17 And no minister can continue in his office as

17. Art. 164(2).

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the unanimous court said :

"Our Constitution, though federal in structure, is modelled on

GOVERNOR IN RELATION TO HIS COUNCIL OF

The governor's office in this country is as old as 1665 when under

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Indian Independence Act, 1947, the Government of India repe

2. DISCRETIONARY FUNCTIONS OF THE GOVERNOR

A departure in the language of article 163(1) from that of artic

39. Ss. 51 to 56 of India (Provisional Constitution) Order, 1947.

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all the powers exercisable by the Governor can be exercised on

though a power of the Governor to act in his discretion cannot

A detailed description of deliberations in the Constituent Assembly is given by

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very nature of such functions.51 And the situations so

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interpretation of any constitutional provision.60

"my argument is that the Governor's public acts must be of an

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position assures him full consideration."66

3. Appointment and Dismissal of Ministers

Apparently the words in clause (1) of ariele 164 give an

In terms of article 164(1), cited above in our Constitution, as in all

66. Laski, op. cit., p. 430, Art. 164(1) reads:

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The President of the United States can dismiss any Secretary

(z') Dismissal of individual ministers

Although, as stated above, theoretically each minister holds his office

These are the accepted propositions of Parliamentary government and are

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advice of the Prime Minister."76 Similar is the position in th

At that time Lord Palmenston was compelled by

certainly established the right of the Prime Mi

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with the Governor and on the report of the Governor, Presidenti

collective responsibility is assured by the enforcement of two pr

Therefore, the pleasure of the Governor is to be exercised in the ligh

The functions of the Governor under this section with respe

The same provision was retained in Sub-cla

82. Dr. B.R. Ambedkar cited in Kaul and Shokdh

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In the Draft Constitution prepared by the Drafting Commi

(ii) Dismissal of a majority of ministers and the coalitions

It shall be a rare case when a situation arises in which the Ch