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037 - Governer's Power To Dismiss Ministers or Council of Ministers - An Empricial Study (612-640)
037 - Governer's Power To Dismiss Ministers or Council of Ministers - An Empricial Study (612-640)
OF MINISTERS—AN EMPIRICAL S T U D Y
INTRODUCTION
"THE LIFE OF THE LAW", said Justice Holmes, "has not been logic: it
has been experience".1 This statement made in relation to the whole body of
law is more accurately applicable to the field of constitutional law, for this
branch of law does not consist only "of usages, commonly called conven-
tions, which without being enacted are accepted as binding by all who are
concerned in government."2 Although for the most we have a body of
legal rules in the form of our Constitution but at the same time scope for
conventions cannot be ruled aut. Rather it has been accepted that our
Constitution implies various conventions of British constitutional law to
be followed.3 Though it is nowhere mentioned in the body of our Constitu-
tion that the British or any other conventions are to be followed, yet that is
the natural consequence of its framework. As will be discussed hereinafter,
any other view of the Constitution will give a picture of the Constitution
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
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 ofthe Governor attracted the attention ofthe 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 ofthe 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 :
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
1971] GOVERNOR'S POWER TO DISMISS MINISTERS 615
preferred), and what, for lack of more suitable terms has been called presi-
dential or congressional government.',9 He defines cabinet or parlia-
mentary government as :
That system in which the real executive—the cabinet or
ministry—is immediately 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 ofthe 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
Coastitution 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
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. "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.
61 & JO VRNAL OF THE INDIA N LAW INSTITUTE [Vol. 13:4
he was not bound in all cases by the advice of his Council29 or ofthe Ministers30
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 representa-
tive of the people and not the official or nominated members.82 This
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 from
the Governor to the representatives of the people, i.e., the Ministers.34 As
a result thereof, the Government of India Act 1935 was passed by British
Parliament. The Act contemplated a federal government and in the pro-
vince, abolishing the difference of 'reserved' and 'transfered' 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.36
What the Governor could do in his discretion was the choosing, summoning
and dismissal of ministers. Apart from discretionary powers, certain
responsibilities were also imposed upon the Governor to be exercised by
him in his individual judgment. 38 While the Ministers were to be the
representatives of the people no provision was made for making them
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.37
As this Constitution also was not up to the wishes ofthe people, the federa-
tion at the centre could never come into being and the provincial governments
could also not function properly and the Governors had more opportunity
of interference in the governmental business.38 In the course of the efforts
to provide a Constitution according to the wishes ofthe 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 taken
to grant independence to India on 15th August, 1947 by dividing it
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 to
exercise his functions or any of them in his discretion."
Similar provision was there for the Central Government, see, S. 9(1)—"There shall
be a council of ministers not exceeding ten in number, to aid and advise the Governor-
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. XLVIL
1971] GOVERNOR'S POWER TO DISMISS MINISTERS 619
The specific provisions which require the Governor to act in his discretion
are article 239(2)44 and paras 946 and 1846 ofthe 6th Schedule ofthe 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
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 JC.P.S. No. 56 (1968).
58. Art. 74(1).
59. Art. 75(3),
622 JO URNAL OF THE INDIAN LA W INSTITUTE [Vol. 13:4
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. see, 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 Laski
with respect to England. "If the Constitutional doctrine of ministerial responsibility
means anything at all, the King would have to sign his own death warrant, if it was
presented to him for signature by a minister commanding a majority in Parliament. If
there is any tempering with this fundamental principle, the end of monarchy is in sight",
cited in Laski, op. cit. p. 429.
1971] GOVERNOR'S POWER TO DISMISS MINISTERS 623
The pleasure of the Governor in this sense has been held exclusive and
without any limitations. 71 But, with all respect to the decision given by
the Court, this is neither a practice in any other parliamentary government72
nor is it practicable in India to uphold this view in our present constitutional
set-up. While drawing a distinction between the parliamentary and
presidential systems of government, Dr. Ambedkar so emphatically
explained this constitutional position that it cannot be expressed in better
words than his own :
This statement applies mutatis mutandis to the position in States and this is'
one ofthe basic principles which distinguishes the cabinet government frorji
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.
(i) that the Governor cannot dismiss a minister against the advice
of the Chief Minister; and
(ii) he cannot retain a minister whom the Chief Minister does not
want.
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. See, 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,
1971] GOVERNOR'S POWER TO DISMISS MINISTERS 625
"A minister always holds his office 'at the disposal o f 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 ofthe 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'
The classic precedent for dismissal occurred in 1851" 78
At that time Lord Palmenston was compelled by Lord John Russell to give
up the charge of foreign affairs and advised the Queen accordingly who
"accepted Russell's advice and Palmerston's resignation... .This precedent
certainly established the right of the Prime Minister, with the Sovereign's
assent, to dismiss a minister or, what comes to the same thing, to demand
his resignation." 79 The source of this right is the 'pre-eminence of the
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.andtheNewCongressheadedbytheB.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 prepared to
carry on for the public good, that tradition implies a duty to resign when a hint is given,"
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.
626 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 13:4
with the Governor and on the report ofthe Governor, Presidential rule was
imposed in U.P. This instance has no precedent but the question is :
Should it become a precedent for the future?
The Constitutional provisions also do not warrant any interpretation
other than what has been the practice. The Constitution imposes a collective
responsibility upon the Ministers towards the legislature and
collective responsibility is assured by the enforcement of two prin-
ciples: first, no person is nominated to the Council except on
the advice ofthe Chief Minister, secondly, no person is retained
as a member of the Council if the Chief Minister demands his
dismissal.82
Therefore, the pleasure of the Governor is to be exercised in the light of the
collective responsibility of the ministers and not "exclusively in his dis-
cretion." 83 Non-compliance with the Chief Minister's wishes in this respect
will give him a cause to resign and the Governor shall have to find an alter-
native Chief Minister and if the outgoing Chief Minister has with him a
majority ofthe Legislative Assembly, it will be very difficult for the Governor
to find an alternative and in that case the Chief Minister shall exclude those
persons from the Council, whom he wants to exclude. It shall make the
position of the Governor very awkward and shall make him the target of
public criticism which shall vitally affect his position as a Head of the State
as well as his neutrality. The position being what it is in our Constitution,
the pleasure of the Governor to dismiss ministers cannot be interpreted
otherwise than as the pleasure of the Chief Minister.84
The above interpretation may be supported by the constitutional
background of article 164. A similar provision existed in Sec. 51(1) of the
Government of India Act, 193585 but Section 51(5) of that Act provided
that
The functions of the Governor under this section with respect
to the choosing and summoning and the dismissal of ministers
shall be exercised by him in his discretion.
The same provision was retained in Sub-clause (7) of Clause 126 of the
Draft Constitution prepared by the Constitutional Adviser, Shri B. N. Rau.86
82. Dr. B.R.# Ambedkar cited in Kaul and Shokdher, Practice and Procedure
of Parliament (1968) p. 537. A similar view has been expressed by Dr. V.N. Shukla op.
cit. p. 177.
83. The opinion expressed in Mahavir Prasad v. P.C. Ghosh, A.I.R. 1969 Cal. 198
seems to be wrong and cannot be followed as law. For a discussion of that opinion see,
K.L. Joshi, The Governor's Power to Dismiss the Ministers, 12 J.I.L.I. 127.
84. The 'Administrative Reforms Committee has also made a similar recommenda-
tion in its Report on the State Administration' at p. 11.
85. Sec. 51(1).
86. See, B. Shiva Rao, op. cit. Vol. Ill, p. 9. B.N. Rau himself criticised such
a provision in the Constitution. Id. at p. 203.
1971] GOVERNOR'S POWER TO DISMISS MINISTERS 627
should resign,92 or
(ii) 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 theB.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. But on 28th
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 the
advice ofthe Attorney-General of India and ofthe Advocate-General ofthe
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 28th 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 ofthe U.P. Governor, the advice of the Attorney-General and the
action ofthe 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 CM., 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 letters to the editor appeared in the papers.
1971] GOVERNOR'S POWER TO DISMISS MINISTERS 629
98
challenging the validity of the action of the Governor and of the
President. "
In my view the action of the Governor in not accepting the advice of
the Chief Minister, did not conform to the parliamentary democracy. But
the matter cannot be disposed of so lightly when there was difference of
opinion among the constitutional experts.
Dr. P.K. Tripathi 99a takes a new line of approach to this problem.
According to him the Governor acts on the advice of his Council of Ministers
in terms of article 163(1) of the Constitution and not on the advice of the
Chief Minister alone or of any other Minister or Ministers in the Council
of Ministers. And the advice of the Council of Ministers means the advice,
at least, of a majority of its members. 100 If it is not the advice ofthe Council
of Ministers in that sense, and is merely an advice tendered by a Chief Minister
or a minority of Ministers supporting him, then the Governor may ask the
Chief Minister under Article 167(c)101 ofthe Constitution to put his decision
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
is to resign and form a new team, if he is in that position, which may support
his views.102 Therefore, in a situation like that of U.P. where the Chief
Minister tendered his advice to the Governor to dismiss the majority ofthe
Council of Ministers, while the Ministers were determined not to resign
and were asking the Chief Minister to resign, the Governor could have
justified his stand in not accepting the advice ofthe Chief Minister by resort-
ing to article 167(c) ofthe Constitution and could have avoided much ofthe
misunderstanding and criticism.
It is submitted that even a literal reading of article 167 (c) does not
convince the writer that the word "Minister" used therein includes Chief
Minister by implication, rather it suggests a meaning quite opposed to it.
The provision runs as :
with respect to the centre, i.e., article 78.104 However, as is evident from the
Constituent Assembly Debates,105 it was introduced just to give place to
certain conventions recognised and accepted in Britain and to reconcile the
Governor's functioning on ministerial advice with his duties, to "preserve,
protect and defend the Constitution". Hence what is being done in his
name he must remain informed of that so that he may properly warn, guide
or encourage his Council of Ministers about the decisions on which they
are going to take his signatures. Almost no discussion took place on article
78 in the Constituent Assembly106 but there was a good debate on article
167(c)107 before it was adopted . However, there is nothing in that discuss-
ion which suggests that the term 'Minister' was meant to include the Chief
Minister also. On the contrary, the discussion shows that it was meant
to apply to the Ministers other than the Chief Minister so that he could have
a better hold on his colleagues.108
The British conventions also do not throw much light on this point
because such conventions seem to have fallen into disuse there.109 It, however
does not mean that there has never been such practice when the King or
Queen might have asked the Prime Minister to put a matter before the
Cabinet, on which any Minister had taken a decision without the Cabinet's
consideration.
A number of such instances are available during Queen Victoria's
reign.110 Not only that but there are also instances available where new
issues have been raised by the Queen or the King, like any Cabinet Minister,
and the Prime Minister has been asked to take immediate action without
104. There was no provision similar to Art. 167 or Art. 78 in the Government
of India Act, 1935. Nor such provision existed in the Draft Constitution prepared by the
Constitutional adviser. It was at the stage of the consideration of this draft that the
Drafting Committee introduced cl. 58-A (Art. 78) and 128-A (Art. 167) which became
Articles 65 and 147 in the Draft Constitution prepared by the Committee. See, B>
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 ofthe 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.
110. 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.
632 JO URNAL OF THE INDIAN LA W INSTITUTE [Vol. 15 : 4
Governor may block the way, even if the Chief Minister suggests him that
he has informally consulted his colleagues on telephone or otherwise. The
Governor may do so, for example, if he wants to malign the government
in the eyes ofthe people and at the same time to give a chance to the opposi-
tion to rise to the occasion. A little delay caused by the Governor in some
emergent cases may be enough to ruin the administration and to bring the
fall of the government.114 And the motive for such an action on the part
of Governor cannot be outrightly rejected in India.115
Even if it be accepted that article 167(c) is meant to apply to a
Chief Minister also, it cannot help in the matter of appointment
or dismissal of the Ministers. Political considerations apart, it is the sole
discretion ofthe Chief Minister as to whom he wants to keep in the Council,
no matter whatever be the number of Ministers. The dismissal ofthe 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 ofthe
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 ofthe 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 Minister
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.
634 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 1314
118
Minister even with respect to their number. So if the Chief Minister
wants the majority of his colleagues to be removed, who are not willing to
resign and the Governor taking help from article 167(c), insists upon the
Chief Minister to get his des ire approved from the Council, then he (the Chief
Minister) can do so by appointing a few more Ministers who would support
him and thus can achieve the desired result.119 Such an interpretation of
article 167(c) therefore, instead of helping the Governor in any manner shall
draw him into the arena of political controversy and criticism from which
he, and every constitutional head in a parliamentary system, is expected to
remain away and above.120
It is suggested, therefore, that article 167(c) does not provide any
practical solution to the problem and the only workable as well as Constitu-
tional solution is what has been suggested in the beginning of this heading,
i.e., the Governor should remove those ministers who are unwilling to
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 Bengal
on November 21, 1967 when he dismissed the Council of Ministers headed
by AjoyMukherjee. Without entering into the long political developments
behind this happening, it is enough here to narrate a few facts. Mr. Mukherjee
was heading a Coalition Ministry wherein certain differences arose. On
November 3, one ofthe Ministers, Dr. P.C. Ghosh, resigned and al ong with
17 members of the Legislative Assembly formed a new party called "The
Progressive Democratic Front". The opposition then made a claim that
the Ministry had lost the support ofthe majority in the Legislative Assembly
and that a new Ministry with Dr. Ghosh as the Chief Minister should be
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, 111.
121. It was the first occasion after the commencement of 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.
1S71] GOVERNOR'S POWER TO bISMiSS MINISTERS 635
may ascertain the will ofthe nation," 128 or at least he can exercise this power
in "grave circumstances." 120 But now the statements of law by Dicey
and Keith remain merely a part of constitutional theory clearly detached
from constitutional practice and almost all the modern writers agree on
that point. "There can never be," according to Wade and Phillips, "any
justification for the dismissal against the advice of the Prime Minister of
a Ministry which commands a majority in the House of Commons.130 There
is no justification for the Queen not to accept the advice of the Cabinet
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 ofthe 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 precedents 134 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 ofthe Constitution. 135 But in the case of India none of those
140. Wade & Phillips, op. cit. p. 82; J.R. Sivach, op. cit. p. 75.
141. The reason is that the members of ths 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 conditions of Indian State legislatures where no single
party forms the majority,
1971] GOVERNOR'S POWER TO DISMISS MINISTERS 639
CONCLUSION
Summing up, it may be said in the conclusion that after a long and
bitter experience of the past our Consitution-makers, after giving their full
thought to the matter, had established a fully responsible or parliamentary
government both at the centre and in the States. They could also envisage
the situations when difficulties could arise due to the immaturity and lack
of training in democracy on the part of politicians making it inconvenient
or even impossible to run a responsible government in any State. Therefore,
they had also provided proper safeguards to meet the situation, not by
authorising the nominal head of the State to assume powers to himself but
by imposing a duty upon the centre "to ensure that the Government of every
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
ofthe 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,
640 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 13 : 4
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.