10/5/2014

The doctrine of pleasure and some Governors tenures - The Hindu

Opinion Open Page

The doctrine of pleasure and some Governors tenures
S. Mohan

The Central government asking for the resignation of the Governors of some States has created a controversy.
Under Article 155 of the Constitution, the Governor of a State shall be appointed by the President by warrant under his
hand and seal. Article 156, which prescribes the Governors term of office, says: The Governor shall hold the office
during the pleasure of the President.
The doctrine of pleasure has its origins in English law. In England, the moral rule is that a civil servant of the Crown
holds office during the pleasure of the Crown. This means his services can be terminated at any time by the Crown,
without assigning any reason. Even if there is a contract of employment involving the Crown, the Crown is not bound
by it. In other words, if a civil servant is dismissed from service he cannot claim arrears of salary or damages for
premature termination. The doctrine of pleasure is based on public policy.
In India, under Article 310 even civil servants hold office at the pleasure of the President or the Governor as the case
may be. That pleasure is absolute.
There are some notable exceptions in Article 310, which has adopted the English Common Law rule that public
servants hold office during the pleasure of the President or the Governor. Article 311 imposes two qualifications on the
exercise of such pleasure. Though the two qualifications are set out in a separate Article, they clearly restrict the
operation of the rule embodied in Article 310(1). In other words, the provisions of Article 311 operate as a proviso to
Article 310(1). All existing laws have been continued by Article 372, some of which, for example the Code of Civil
Procedure, makes it possible for a public servant to enforce his claims against the state.
Accordingly, the Supreme Court held in State of Bihar v. Abdul Majid, (1) AIR 1954 SC 245, that the English Common
Law has not been adopted in its entirely and with all its rigorous implications.
In Union of India v. Tulsiram Patel, (2) AIR 1965 SC 1416 (1437, 1438), the Supreme Court held that the pleasure
doctrine was neither a relic of the feudal age nor was it based on any special prerogative of the British Crown but was
based upon public policy. Ministers frame policies and the Legislature enacts laws and lays down the mode in which
such policies are to be carried out and the object the legislation seeks to achieve. From the nature things, the task of
efficiently and effectively implementing these policies and enactments, however, rests with the civil services. The
members of the public are therefore vitally interested in the efficiency and integrity of such services.
In the case of the Governor, the position is entirely different. In 1989, when those who had been appointed Governors
by the Congress government were dismissed by the National Front government headed by V.P. Singh, it was said the
Congress government had improperly made political appointments and that it was necessary to remove corruption
from public life. It was also said that the change of Governors had to be done in order to give the government an
opportunity to tone up the administration.
It needs to be stated that the norms laid down by the Sarkaria Commission were not followed. The office of the
Governor, who is a representative of the President in a State as the protector of the Constitution, should normally go to
persons with high status in society.
In this background came the Supreme Court judgment that laid down that Governors could not be changed on the
ground that there is a change of government. Nobody could question it. However, there is one practical aspect: if the
Governors were appointed solely for the reason that they were erstwhile party men and should the new government
should bear with such situation because there is always a clash of policy and the line of thinking. Even if the difference
of opinion is subtle, should the Centre tolerate it? The answer will be in the negative.
There is another way of looking at this. Cannot Governors on their own come forward to tender resignation, rather than
the Central government withdrawing its pleasure? Or if the government were to say in the words of William Makepeace
Thackeray: Business is first; pleasure afterwards, why should the Governors stay on? Will not the public feel that
ethics are eroded when a Governor seems anxious to cling on?
The resultant position is: An unalterable and unquestioned law of the musical world required that the German text of
French operas sung by Swedish artists should be translated into Italian for the clearer understanding of Englishspeaking audiences.
Edith Wharton, The Age of Innocence, Book l, Chapter 1 (1920)
It is hoped that lawmakers will alter this unpleasant situation.
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10/5/2014

The doctrine of pleasure and some Governors tenures - The Hindu

(A former Judge of the Supreme Court of India, S. Mohan was acting Governor of Karnataka for seven months.)
Keywords: Governors' resignation, Central government, Governor appointment, Governors term
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