Doctrine of necessity and Bias

Doctrine of necessity overrides
the principle of apprehended bias

J. Jayalalithaa (cropped) Facts of the case:

Ms. J. Jayalalitha was elected to the Legislative Assembly of Tamil Nadu on or, the AIADMK ticket in the General Elections held in June 1991 and on being elected as the leader of the party she was sworn-in as the Chief Minister of the State. On 2.10.1992, Dr. Subramanian Swamy preferred a petition to the State Governor under Article 192 of the Constitution of India alleging that the Chief Minister had incurred a disqualification of being a member of the Legislative Assembly of the State, in that, she being a partner in the partnership firm run in the name and style of Messrs Jaya Publications had entered into a contract with the State Government and which contract was subsisting on the date of the petition, in view of sub-clause (e) of clause (1) of Article 191 of the Constitution read with Section 9A of the Representation of the People Act, 1951

The question was whether the Chief Election Commissioner against whom she had expressed her apprehension of Bias, should be recused from the proceedings or he has to act in an advisory capacity, in case of dead lock, on the basis of Doctrine of Necessity. Continue reading

Power of President and Governors in India

Constitutional Status of President
as well as the Governors in India

India is a democratic country which has adopted British form of Parliamentary democracy by it’s Constitution. The President of India is head of Republic of India and Governor is head of the State/Province. But they are titular heads of the Government and ordinarily they can act only on the advice of the Council of Ministers, barring few exceptional situations. Following are relevant excepts from the judgment of Supreme Court of India.

Constitutional head or formal head of State:

(Per  A. N. Ray C.J. Palekar, Mathew, Chandrachud. Alagiriswami, JJ, at p. 833 & 836).

The President as well as the Governor exercises his powers and functions conferred on him by or under the Constitution on the aid and advice of his council of Ministers save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion.

The President or the Governor acts on the aid and advice of the Council of Ministers with the Prime Minister at the head in the case of the Union and the Chief Minister at the head in the case of State in all matters which vests in the executive whether those functions are executive or legislative in character. Neither the President nor the Governor is to exercise the executive functions personally.

(Per Krishna lyer J. for himself and Bhagwati J. concurring)

(i) The argument about the oath of office of President to defend the Constitution is sometimes put forward by inti- ministerialist advocates. The President defends the Constitution not by denying its spiritual essence of Cabinet responsibility-indeed he subverts it that way-but by accepting as his Constitutional function what his responsible’ ministers have decided. Can a Judge, in fulfillment of the oath of his office, ignore all binding precedents and decide according to the ad hoc dictates of his uninformed conscience ? Tribhovandas’s case answers the point in the negative. If every functionary who takes the oath by the Constitution interprets it according to his lights, this solemn document would be the source of chaos and collusion and the first casualty would be the rule of law. Such mischief cannot merit juristic acceptance.
It is clear from article 74(1) that it is the function of the Council of Ministers to advise the President over the whole of the Central field. Nothing is left to his discretion or excepted from that field by this article. By way of contract see Article 163 which is the corresponding provision for Governors and which expressly excepts certain matters in which the Governor is, by or under the constitution, required to act in his discretion. There is no such exception in the case of the President. [858FG]

However, Article 75(3) makes the Council of Ministers responsible to the House of the People. If, therefore, the President acted contrary to advice, the ministers would either resign or, since the advice tendered reflected the view of the House of the People, they would be thrown out of office by the House of the People. For the same reason, no one else would then be able to form a government. The President would, therefore be compelled to dissolve the House. Apart from the technical difficulty of carrying out the many details of a general election in such a situation the President might have to dismiss the Ministry and install a caretaker’ government to co-operate with him in ordering a general election–the consequences of the election might be most serious. if the electorate should return the same government to power, the President might be accused of having sided with Opposition and thrown the country into the turmoil and expense of a general–election in a vain attempt to get rid of a Ministry that had the support of Parliament and the people. This would gravely impair the position of the President. [858G-H; 859A-B]

If we hold that in a conflict between the Ministry and the President, the President’s Voice should prevail in the last resort, either generally or even in a particular class of cases, this would mean the elimination to that extent of the authority of a Ministry which is continuously subject to control or criticism by the house of the People in favour of the authority of a President who is not so subject. It would thus result in a reduction of the sphere of responsible government. So important a subtraction must be justified by some express provisions in out constitution. [859C-D]
If the President, in a particular case, where his own views differ front those of his Ministers, ultimately accepts their advice in defence to a well understood convention, then even if the act should result in a breach of some fundamental right, or directive principle’ enunciated in the constitution, the responsibility will be that of the ministers and not of the President. [859D-E]
The President under the Indian Constitution is not a mere figure head. Like, the King in England he will still have the right to be consulted, to encourage and to warn. Acting on ministerial advice does not necessarily mean immediate acceptance of the Ministry’s first thoughts. The President can state all his objections to any purposed. course of action and ask his Ministers in Council, if necessary, to reconsider the matter. it is only in the last resort that he must accept their final advice. [859F-G]
The President in India is not at all a glorified cipher. He represents the majesty of the State, is at the apex, though only symbolically, and has, rapport with the people and parties being above politics. His vigilant presence makes for good government if only he uses, what Bagehot described as ‘the right to be consulted, to warn and encourage.’ Indeed, Article 78 wisely said, keeps the President in close touch with the Prime Minister on matters of national importance and policy significance, and there is no doubt that the imprint of his personality may chasten and correct the political government, although the actual exercise of the functions entrusted to him. by law is in effect and in law carried on by his duly appointed mentors, i.e. the Prime Minister and his colleagues. In short, the President, like the King, has not merely been constitutionally romanticized but actually vested with a persuasive role. Political theorists are quite conversant with the dynamic role of the Crown which keeps away from politics and power and yet influences both. While he plays such a role he is not a rival centre of power in any sense and must abide, by and act on the advice tendered by his Ministers except in a narrow territory which is sometimes slippery. Of course, there is some qualitative difference between the position of the President and the Governor. The former, under Art. 74 hag no discretionary powers; the latter too has none. save in the tiny strips covered by Arts. 163 (2), 371A(1)(b) and (d), 371A(2)(b) and (f); VI Schedule para 9(2) (and VI Schedule para 18(3), until omitted recently with effect from 21-1-1972). These discretionary powers exist only where expressly spelt out and even these are not left to the sweet will of the Governor but are remote-controlled by the Union Ministry which is answerable to Parliament for those actions. Again, a minimal area centering round reports to be dispatched under Art. 356 may not, in the nature of things, be amenable to ministerial advice. [867F-H; 868A-C]

Source: Shamsher Singh v. State of Punjab,  AIR 1974 SC 2192, 1975 SCR (1) 814

Removal of the Governors by Pleasure of President of India

Governors remain in office during the pleasure of President of India

Article 156 of the Constitution of India:

Governor is Constitutional head of each State/Province in India and he is appointed by President of India. Article 153 of the Constitution provides that there shall be a Governor for each State. Article 154 vests the executive power of the state in the Governor. Article 155 provides that the Governor of a State shall be appointed by the President, by warrant under his hand and seal. Article 156 relates to term of office of Governor which provides:

156. Term of office of Governor.–(1) The Governor shall hold office during the pleasure of the President.

(2) The Governor may, by writing under his hand addressed to the President, resign his office.

(3) Subject to the foregoing provisions of this article, a Governor shall hold office for a term of five years from the date on which he enters upon his office:

Provided that a Governor shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office.

Doctrine of Pleasure of President in Constitution of India:

The Constitution refers to offices held during the pleasure of President (without restrictions), offices held during the pleasure of the President (with restrictions) and appointments to which the said doctrine is not applicable. The Articles in the Constitution of India which refer to the holding of office during the pleasure of the President without any restrictions or limitations are Article 75(2) relating to ministers, Article 76 (4) relating to Attorney General and Article 156(1) relating to Governors. Similarly Article 164(1) and 165(3) provides that the Ministers (in the States) and Advocate General for the State shall hold office during the pleasure of the Governor.

Article 310 read with Article 311 provide an example of the application of `at pleasure’ doctrine subject to restrictions. Clause (1) of Article 310 relates to tenure of office of persons serving the Union or a State, being subject to doctrine of pleasure. However, clause (2) of Article 310 and Article 311 restricts the operation of the `at pleasure’ doctrine contained in Article 310(1).

The rule of English law pithily expressed in the latin phrase `durante bene placito (“during pleasure”) has not been fully adopted either by S. 240 of the Government of India Act, 1935 or by Art. 310(1) of the Constitution. The pleasure of the President is clearly controlled by the provisions of Art. 311, and so, the field that is covered by Art. 311 on a fair and reasonable construction of the relevant words used in that article, would be excluded from the operation of the absolute doctrine of pleasure. The pleasure of the President would still be there, but it has to be exercised in accordance with the requirements of Art. 311. (See Moti Ram v. N.E. Frontier Railway, AIR 1964 SC 600)

Judicial Review of Doctrine of Pleasure of President:

The doctrine of pleasure as originally envisaged in England was a prerogative power which was unfettered. It meant that the holder of an office under pleasure could be removed at any time, without notice, without assigning cause, and without their being a need for any cause. But where rule of law prevails, there is nothing like unfettered discretion or unaccountable action. The degree of need for reason may vary. The degree of scrutiny during judicial review may vary. But the need for reason exists. As a result when the Constitution of India provides that some offices will be held during the pleasure of the President, without any express limitations or restrictions, it should however necessarily be read as being subject to the “fundamentals of constitutionalism”. Therefore in a constitutional set up, when an office is held during the pleasure of any Authority, and if no limitations or restrictions are placed on the “at pleasure” doctrine, it means that the holder of the office can be removed by the authority at whose pleasure he holds office, at any time, without notice and without assigning any cause. The doctrine of pleasure, however, is not a licence to act with unfettered discretion to act arbitrarily, whimsically, or capriciously. It does not dispense with the need for a cause for withdrawal of the pleasure. In other words, “at pleasure” doctrine enables the removal of a person holding office at the pleasure of an Authority, summarily, without any obligation to give any notice or hearing to the person removed, and without any obligation to assign any reasons or disclose any cause for the removal, or withdrawal of pleasure. The withdrawal of pleasure cannot be at the sweet will, whim and fancy of the Authority, but can only be for valid reasons.

Extent of Pleasure of the President:

A plain reading of Article 156 shows that when a Governor is appointed, he holds the office during the pleasure of the President, which means that the Governor can be removed from office at any time without notice and without assigning any cause. It is also open to the Governor to resign from office at any time. If the President does not remove him from office and if the Governor does not resign, the term of the Governor will come to an end on the expiry of five years from the date on which he enters office. Clause (3) is not intended to be a restriction or limitation upon the power to remove the Governor at any time, under clause (1) of Article 156. Clause (3) of Article 156 only indicates the tenure which is subjected to the President’s pleasure.

Removal of Governor from office:

A Governor cannot be removed on the ground that he is not sync or refuses to act as an agent of the party in power at the Centre. Though the Governors, Ministers and Attorney General, all hold office during the pleasure of the President, there is an intrinsic difference between the office of a Governor and the offices of Ministers and Attorney General. Governor is the Constitutional Head of the State. He is not an employee or an agent of the Union Government nor a part of any political team. On the other hand, a Minister is hand-picked member of the Prime Minister’s team. The relationship between the Prime Minister and a Minister is purely political. Though the Attorney General holds a public office, there is an element of lawyer-client relationship between the Union Government and the Attorney General. Loss of confidence will therefore be very relevant criterion for withdrawal of pleasure, in the case of a Minister or the Attorney General, but not a relevant ground in the case of a Governor.

When a Governor holds office during the pleasure of the Government and the power to remove at the pleasure of the President is not circumscribed by any conditions or restrictions, it follows that the power is exercisable at any time, without assigning any cause. However, there is a distinction between the need for a cause for the removal, and the need to disclose the cause for removal. While the President need not disclose or inform the cause for his removal to the Governor, it is imperative that a cause must exist. If we do not proceed on that premise, it would mean that the President on the advice of the Council of Ministers, may make any order which may be manifestly arbitrary or whimsical or mala fide. Therefore, while no cause or reason be disclosed or assigned for removal by exercise of such prerogative power, some valid cause should exist for the removal. Therefore no reason need be assigned and no cause need be shown and no notice need be issued to the Governor before removing a Governor.

The bar contained in Article 74(2) will not come in the way of the court inquiring whether there was any material on the basis of which such advice was given, whether such material was relevant for such advice and whether the material was such that a reasonable man could have come to the conclusion which was under challenge. Therefore, though the sufficiency of the material could not be questioned, legitimacy of the inference drawn from such material was open to judicial review.

Conclusions of Supreme Court in B.P. Singhal’s case:

(i) Under Article 156(1), the Governor holds office during the pleasure of the President. Therefore, the President can remove the Governor from office at any time without assigning any reason and without giving any opportunity to show cause.

(ii) Though no reason need be assigned for discontinuance of the pleasure resulting in removal, the power under Article 156(1) cannot be exercised in an arbitrary, capricious or unreasonable manner. The power will have to be exercised in rare and exceptional circumstances for valid and compelling reasons. The compelling reasons are not restricted to those enumerated by the petitioner (that is physical/mental disability, corruption and behaviour unbecoming of a Governor) but are of a wider amplitude. What would be compelling reasons would depend upon the facts and circumstances of each case.

(iii) A Governor cannot be removed on the ground that he is out of sync with the policies and ideologies of the Union Government or the party in power at the Centre. Nor can he be removed on the ground that the Union Government has lost confidence in him. It follows therefore that change in government at Centre is not a ground for removal of Governors holding office to make way for others favoured by the new government. (iv) As there is no need to assign reasons, any removal as a consequence of withdrawal of the pleasure will be assumed to be valid and will be open to only a limited judicial review. If the aggrieved person is able to demonstrate prima facie that his removal was either arbitrary, malafide, capricious or whimsical, the court will call upon the Union Government to disclose to the court, the material upon which the President had taken the decision to withdraw the pleasure. If the Union Government does not disclose any reason, or if the reasons disclosed are found to be irrelevant, arbitrary, whimsical, or malafide, the court will interfere. However, the court will not interfere merely on the ground that a different view is possible or that the material or reasons are insufficient.

[Source: B.P. Singhal v.Union of India (Supreme Court of India)]