Thiruvananthapuram: An unusual warning. This is how legal experts termed the controversial tweet of Governor Arif Mohammad Khan that he was empowered to “invite action including withdrawal of pleasure” against ministers.
There was never an occasion before when a Governor initiated the strict action of removing a minister unilaterally. According to provisions of Article 164 of the Indian Constitution, the ministers can continue in their posts for such extended periods allowed by the Governor.
However, the legal fraternity is divided over a Governor’s constitutional power to remove a minister. A section argues the Kerala Governor’s warning is in line with the powers granted under the Constitution. The Governor can, in fact, remove the ministers appointed out of “discretion” and when that “pleasure” no more exists, they opined. Another section points out that such “dictatorial powers” are not vested with the “agent of the Centre”.
Article 163 of the Constitution mentions the Council of Ministers. There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, it says. “If any question arises whether any matter is or is not a matter as respects which the Governor is by or under the Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final. The validity of anything done by the Governor shall not be called in question….”
“The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister. The Ministers shall hold office during the pleasure of the Governor,” cites Article 164. One section of experts argues that the Governor can remove ministers using this provision of the Constitution.
However, former Lok Sabha Secretary General P D T Achary says the Governor cannot remove a minister in their own capacity without obtaining the sanction of the Chief Minister or consulting with the latter. If the Chief Minister allows it, then the Governor is empowered to remove the minister.
“It’s not right to interpret the ‘pleasure’ (The Ministers shall hold office during the pleasure of the Governor) mentioned in the Constitution as one likes. If a Governor removes a minister in their own capacity, that will result in ‘parallel governance’. A Governor is not authorized legally to interfere in the governance and is bound to act based on the advice of the cabinet,” Achary said.
Meanwhile, legal experts pointed out that if a Governor acts unilaterally in removing a minister, the Government can approach the court. A Governor can recommend to the President the dismissal of the state Government based on the prevailing political situation. However, it’s the President who has to make the final call. The first Kerala government was dismissed based on the Governor’s recommendation.