Dismissing a Chief Minister

Print edition : August 26, 2011

THE history of independent India is studded with resignations by Central and State Ministers, including Chief Ministers, on the grounds of misdemeanour, judicial strictures and the like. R.K. Shanmukham Chetty, K.D. Malaviya, A. Raja, Dayanidhi Maran, Pratap Singh Kairon, A.R. Antulay, Biju Patnaik and Bakshi Ghulam Mohammed fall into the same category.

In none of these cases were the offences as grave as those proved against B.S. Yeddyurappa, former Chief Minister of Karnataka. None averted resignation for as long as he did, with the backing of the Bharatiya Janata Party (BJP) high command.

Beyond a doubt, Karnataka Lokayukta Justice Santosh Hegde's report squarely censures Yeddyurappa besides some others. His tenure in office had been scandalous for long. The report rendered it impossible to tolerate.

The Lokayukta could not have failed to consider Sections 13 and 14 of the Karnataka Lokayukta Act, 1984. He has not made a recommendation under Section 13 that the Chief Minister should not continue to hold the post held by him. It is utterly puerile to say that he ought to have made an order to initiate a prosecution of the culpable. Who would have enforced the order and how?

The Act makes the Lokayukta more powerful than the Lokayukta appointed under, say, Maharashtra's Act of 1972. It belongs to the phase when Chief Minister Ramakrishna Hegde brought in one progressive law after another. Codification of legislative privileges was one.

Another was the Karnataka Freedom of Press Bill (No. 12 of 1988). It provided immunity to journalists from disclosure of source of information except in extreme conditions and under a court order, guaranteed a right to information and made it enforceable, and imposed penalties for intimidation of journalists by physical attacks and for forcible prevention of circulation of newspapers and periodicals.

Governor's powers

The BJP high command, after an indecent delay of months, asked Yeddyurappa to step down. Regardless, the time has come to consider the Governor's powers and duties under the Constitution quite irrespective of those under the Act.

It is not a matter to be discussed lightly or in a partisan spirit. It must be emphasised that the conventions on dismissal from office apply equally to the Prime Minister and the Chief Minister. The Chairman of the Drafting Committee, B.R. Ambedkar, made that amply clear in the Constituent Assembly on December 30, 1948, when speaking of the few discretionary powers of the head of state. The position of the Governor is exactly the same as the position of the President ( Constituent Assembly Debates; Volume VII, page 1,158).

Article 75 (2) of the Constitution says the Ministers shall hold office during the pleasure of the President. Article 164 (1) contains an identical provision in respect of the Governor and his Ministers. The language is based on British practice. The Supreme Court has ruled repeatedly that the conventions of the British Constitution apply to our parliamentary democracy and are enforceable by the courts.

On the issue of dismissal, the debates in the Constituent Assembly clinch the issue. Ambedkar's clarification simply leaves no room for controversy. Speaking on December 31, 1948, he said: Article 62 (2) [of the Draft] states that the Ministers shall hold office during the pleasure of the President. That means a Minister will be liable to removal on two grounds. One ground on which he would be liable to dismissal under the provisions contained in clause (2) of Article 62 would be that he has lost the confidence of the House, and, secondly, that his administration is not pure, because the word used here is pleasure'. It would be perfectly open under the particular clause of Article 62 for the President to call for the removal of that particular Minister on the ground that he is guilty of corruption or bribery or maladministration, although that particular Minister probably is a person who enjoyed the confidence of the House ( Constituent Assembly Debates; Volume VII, page 1,185).

This does not warrant dismissal on suspicion, no matter how strong or reasonable it is. The carpetbaggers who asked President Zail Singh to dismiss Prime Minister Rajiv Gandhi were as ignorant of the law as they were of political morality. Ambedkar's language was unambiguous the Minister must be guilty of corruption or bribery or maladministration. There must be proof or a finding of guilt; maladministration covers misconduct.

An interesting case of dismissal by reason of misconduct arose in 1932 when Jack Lang, the Premier of New South Wales, repudiated the payment of interest on state loans due to the Commonwealth in spite of the decision of the High Court of Australia in favour of the validity of the Financial Agreements Enforcement Act of the Commonwealth. He defied the ruling, and the Governor was compelled to dismiss his Ministry. Referring to the incident, Keith wrote that the paramount duty of the King's representative is to carry out the law of the Constitution and he is entitled to demand from Mr Lang obedience to that law, and, in the event of refusal of the demand, to exercise his constitutional power of removal.

Ivor Jennings held: The most elementary qualification demanded of a Minister is honesty and incorruptibility. It is, however, necessary not only that he should possess this qualification but also that he should appear to possess it ( Cabinet Government; page 106).

This is close to Rajaji's formulation. A person on trial for committing an offence is entitled to the benefit of the doubt. But in the case of a public servant, it is the state, representing the people, which is entitled to the benefit.

If there is a cloud on his reputation, the Minister himself ought to resign. But does the doubt protect him from dismissal from office?

Apart from corruption or misconduct, the head of state is justified in dismissing a Prime Minister whose policy subverted the democratic basis of constitution (page 412).

Geoffrey Marshall holds that dismissal would be appropriate if a government, by illegal or unconstitutional administrative action, were to violate some basic convention of constitutional behaviour. ( Constitutional Conventions; Oxford University Press; page 27).

In our politically charged atmosphere such dicta are open to misconstruction. The basics are clear the attempted subversion must be manifest (for example, in June 1975) or the guilt fairly established. The Governor would have been justified in sacking Yeddyurappa if he had not resigned.

A.G. Noorani