The Governor wrote to the Chief Minister on October 25 saying that “Balagopal has ceased to enjoy my pleasure”, and asking him to “consider the matter with the seriousness it deserves and take action which is constitutionally appropriate”.
What does the Governor mean by saying that the Minister has ceased to enjoy his pleasure?
Although Arif Mohammed Khan has not spelt it out in so many words, he seems to be asking the Chief Minister to sack the Finance Minister.
This is what he had appeared to be threatening to do on his own earlier, when his official Twitter handle had posted on October 17: “The CM and Council of Ministers have every right to advise the Governor. But statements of individual ministers that lower the dignity of the office of the Governor, can invite action including withdrawal of pleasure.”
The central leadership of the CPI-M, which leads the Left Democratic Front (LDF) government, had reacted sharply, saying that the Constitution does not give the Governor “dictatorial powers”, and Khan’s “political bias” against the government had been “exposed”.
Thereafter, Vijayan himself had told a press conference that the Governor’s powers were “very limited”. “If someone declares that he would act contrary to the Constitution and the existing legal system, and move in that direction, that cannot be stated to be valid,” the Chief Minister had said.
But doesn’t the Constitution say that Ministers shall hold office during the pleasure of the Governor?
Yes, Article 164(1) does say that “Ministers shall hold office during the pleasure of the Governor”. This is the provision that the Kerala Governor has been seemingly alluding to.
However, barring a novel reinterpretation of the Constitution by the Supreme Court, this provision does not mean that the Governor has the power to sack a minister. There has been no occasion in the history of the republic so far of a Governor unilaterally removing a minister from the government.
Former secretary general of Lok Sabha PDT Achary had explained to The Indian Express earlier that the provision mentioning “pleasure of the Governor” did not mean the Governor has the right to dismiss the Chief Minister or Ministers at will.
“The Governor can have his pleasure as long as the government enjoys a majority in the House. The Governor can withdraw his pleasure only when the government loses majority but refuses to quit. Then he withdraws the pleasure and dismisses it,” Achary had said.
Also, he had said, “Without the advice of the Chief Minister, a Governor can neither appoint nor dismiss a minister. That’s the constitutional position.”
So what can the Governor do if he is aggrieved by the conduct of a Minister?
Achary said that if indeed a Minister lowers the dignity of the Governor or his office, as Khan has alleged, Raj Bhavan can ask the Chief Minister to inquire into the conduct of the Minister. “If it is found that the Minister has defamed or disrespected the Governor, he/ she can ask the Chief Minister to drop the Minister,” Achary said.
While this is what Khan has done, the Chief Minister is not bound to obey him. And he has already rejected the Governor’s demand. Vijayan has replied to Khan saying “my trust and confidence in K N Balagopal, a member of the Council of Ministers of the State of Kerala, holding charge of the Finance portfolio, still remain undiminished. I hope that the Governor will appreciate that no further action needs to be taken in the matter.”
Achary said: “Article 164(1) deals with the appointment of the Chief Minister and other Ministers. While the Governor does not have to seek anyone’s advice while appointing the Chief Minister, he can appoint a Minister only on the recommendation of the Chief Minister. The Governor has no power to pick anyone he chooses to make a Minister. He can appoint a Minister only on the advice of the Chief Minister.”
What has the Supreme Court said on the powers of the Governor vis-a-vis the elected government?
In ‘Shamsher Singh & Anr vs State Of Punjab’ (1974), a seven-judge Constitution Bench of the Supreme Court said: “We declare the law of this branch of our Constitution to be that the President and Governor, custodians of all executive and other powers under various Articles, shall, by virtue of these provisions, exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well known exceptional situations.”
These situations could arise if the Prime Minister or Chief Minister cease to command majority in the House, the government loses majority but refuses to quit office, and for “the dissolution of the House where an appeal to the country is necessitous”.
But even in the third scenario, the Head of State (President or Governor) “should avoid getting involved in politics and must be advised by his Prime Minister (Chief Minister) who will eventually take the responsibility for the step,” the court ruled.
In ‘Nabam Rebia And Etc. vs Deputy Speaker And Ors’ (2016) the Supreme Court had cited the observations of B R Ambedkar: “The Governor under the Constitution has no function which he can discharge by himself; no functions at all. While he has no functions, he has certain duties to perform, and I think the House will do well to bear in mind this distinction.”