Responding to the act of Kerala Governor Arif Mohammed Khan withdrawing the pleasure in the Finance Minister KN Balagopal, constitutional law expert and former Secretary General of the Lok Sabha Mr. PDT Achary said that a Governor can take such a decision only on the advice of the Chief Minister.
"The Governor can withdraw the pleasure only on the advice of the Chief Minister. Pleasure after all, is not a personal or individual matter. It is constitutional pleasure.That means, when the Government in office has majority in the legislature, the Governor has pleasure and when the Government loses its majority, the pleasure comes to an end. So that is how the pleasure operates. It is not that the Governor can just withdraw his pleasure. When there is a Government in office which has majority in the house, the Governor's pleasure is supposed to continue and at no stage till the Government loses its majority in the house can the Governor withdraw that pleasure", he said.
Speaking in an interview with LiveLaw, he explained that under the Constitution, the Governor acts in exercise of the executive functions only on the aid and the advice of the Council of Ministries. The Supreme Court has made it very clear that the Governor cannot act independently other than on the advice of the Council of Ministries. Withdrawing the pleasure from a Minister is also part of the Executive function of the Governor. That means, he cannot do that except on the advice of the Chief Minister.
"Therefore, the point is that the Governor cannot withdraw the pleasure from a minister unless the Chief minister asks him or advices him to withdraw that pleasure", he said.
"If the Governor says I am withdrawing my pleasure on the Minister without the advice of the Chief Minister, there is no withdrawal of the pleasure constitutionally speaking. The withdrawal of the pleasure by the Governor becomes constitutionally valid only with the advice of the Chief Minister", he added. A unilateral withdrawal of the pleasure by the Governor has no Constitutional consequence.
Article 164(1) cannot be read literally
He further opined that Article 164(1) of the Constitution, which says "the Ministers shall hold office during the pleasure of the Governor" cannot be read literally. The said Article has to be read along with Article 163(1) which mandates that the Governor shall exercise his functions at the aid and advice of the Council of Ministers headed by the Chief Minister.
"If you interpret it literally, if you interpret it to mean then the Governor's pleasure is individual and the Governor can withdraw the pleasure any time, then no Government will be stable. If the Governor can withdraw pleasure at will, how does the system work? Then the system will collapse. That is not what is intended by the Constitution", he said while reiterating that Articles 164(1) and 163(1) have to be read together.
The view that Governor can act independently to remove a Minister will be against the "democratic spirit and the Constitutional scheme".
"Some people may interpret literally and say that look the Governor alone has the power to discontinue his displeasure and so on. But that is not how it is. If that were so, then the result would be that there would be a total collapse of the the Constitutional system. Can the Governor dismiss any Minister? It is not possible. There's no such power available to the Governor in the Constitution".
Governor can act independently only when the Constitution expressly confers such powers.
He added that a Governor can act independently only when the constitution confers the powers to exercise the discretion. Removal of a minister is not at all an area where the Governor can exercise independent discretion.
The Constitution has specifically laid down provisions whereby the Governor can exercise independent discretion. For example, in relation to administration of tribal areas in North Eastern States, the Governor has been given some independent powers. Also, appointment of the Chief Minister after an election is another area, as there is no Council of Ministers available at that time to give aid and advice to the Governor.
Doctrine of pleasure has origin in Monarchy.
He further said that Dr.Ambedkar has explained in the Constituent Assembly that the word "pleasure" was used as it was used in most of the Constitutions in the commonwealth countries.
"Dr.Ambedkar said that since it is used it is being used in all the Constitutions in the Commonwealth countries, so we are also using it. He said there is nothing beyond that and we should not attach any other meaning to this", Achary said.
He further stated that the doctrine of pleasure originated in the United Kingdom. In the olden days, there was monarchy and the King could dispense with the services of ministers at his pleasure. Later on, when the Constitutional system stabilized and democracy came into existence, the Parliament became the centre of power. But monarchy was retained notionally. So the monarch's pleasure actually meant the pleasure of the government.
"The basic principle is that a monarch or a President or a Governor cannot exercise executive power except on the advice of the Council of ministers",he said.