The Governor’s move is dangerous, unconstitutional

• The Governor of Tamil Nadu recently dismissed a Minister in the Council of Ministers of Tamil Nadu
• The Governor later backtracked on his decision late in the night, keeping the “dismissal” order in abeyance.
• The Governor said that continuation of the minister in the Council of Ministers will adversely impact the due process of law, including fair investigation.

Government’s power over dismissal of ministers

• Article 164: The Chief Minister is appointed by the Governor without any advice from anyone. But he appoints the individual Ministers only on the advice of the Chief Minister.
  • The Article implies that the Governor cannot appoint an individual Minister according to his discretion.
  • So, logically, the Governor can dismiss a Minister only on the advice of the Chief Minister.
  • The Chief Minister alone has the discretion to choose his Ministers.
  • He decides who the Ministers of his Council will be.
  • He also decides who will not remain as a Minister in his Council.
  • This is a political decision of the Chief Minister, who is ultimately answerable to the people.
  • The Constitution has not transferred the discretion of the Chief Minister to the Governor.
• Government of India Act, 1935: Section 51(1) says, “the Governor’s Ministers shall be chosen and summoned by him, shall be sworn as members of the council and shall hold office during his pleasure”.
  • This Section makes it clear that the Ministers shall be chosen by the Governor.
  • It also says they are dismissed by him at his discretion.
  • Thus, the Governor during the colonial rule had absolute discretion to choose a Minister and dismiss him.
• B.R. Ambedkar’s statements: There is no executive function a Governor can perform independently under the Constitution. So, choosing a Minister and dismissing him are no longer within his discretion. It is the Chief Minister who recommends the removal of a Minister.

Concept of pleasure of the Governor

• GoI Act of 1935: Section 51 - It confers on the Governor the discretion to choose as well as dismiss the Ministers.
• Article 164: The words “chosen”, “dismissal” and “discretion” were omitted. It was a significant omission which makes it clear that Constitution did not confer any discretion on Governor to choose or dismiss a Minister.

Judicial clarification

• Shamsher Singh and Anr vs State Of Punjab (1974): In it, a Bench declared that Governor can exercise his constitutional powers only with the advice of their Ministers save in a few well known exceptional situations.
• Nabam Rebia vs Deputy Speaker: A Constitution Bench reaffirmed the law laid down in Shamsher Singh and further held that the discretionary powers of the Governor are limited to the postulates of Article 163(1).

Conclusion

• The dismissal of a Minister of the Tamil Nadu Government by the Governor of the State without the advice of the Chief Minister is constitutionally wrong.
• The issue of dismissal of a Minister without the advice of the Chief Minister is one which clearly destabilises the constitutional system.