Abstract
The common law principle of the “Doctrine of Pleasure” has been incorporated in the Indian Constitution by means of Article 310 on the basis of ‘public policy’, ‘public interest’ and ‘public good’. The rule embodied in Article 310(1) lays down that all civil servants and defence personnel of the Union serve ‘during the pleasure of the President’ and are subject to removal from their office if the President deems it necessary. But, this doctrine operates subject to general constitutional limitations. In order to avoid adopting the doctrine in an absolute sense, Article 311 was included in the Constitution which imposes restrictions on the exercise of powers under Article 310 and ensures that no civil servant is terminated by an authority subordinate in rank to the appointing authority. Clause (2) of the Article 311 ensures that the principles of natural justice are followed and the civil servant cannot be removed without being given a reasonable opportunity to defend himself. Such limitations are however taken away by the second proviso to clause (2) of Article 311. Moreover, clause (c) of the second proviso Article 311(2) provides that a civil servant may be removed where the President or the Governor, as the case may be, is satisfied that it is necessary to do so in the interest of the security of the state without holding any inquiry, recording any reasons and without following the principles of natural justice. There has been a lot of debate and research with respect to whether the doctrine is controlled by the Fundamental Rights and the scope of judicial review. The aim of this paper is to determine the scope of judicial review with respect to clause (c) of the second proviso to Article 311(2) and whether the courts can question the satisfaction of the President under the same.
Keywords: Doctrine of pleasure, article 311, president, civil servant
Introduction
In England, a civil or a public servant serves at the pleasure of the Crown, that is to say, any public servant appointed under the Crown has a right to hold office as long as the Crown deems it necessary. The tenure of a public servant can therefore, be terminated at any time if the Crown wishes to do so. This discretion is regarded as the ‘The Doctrine of Pleasure’. The doctrine has its origin in the English Common Law. The justification for the rule is that the Crown should not be bound to continue in public service any person whose conduct is not satisfactory. This Doctrine is absolute in Britain and can only be restricted by an Act of the Parliament.
In India, this doctrine was adopted in the Constitution under Part XIV, Article 310. However, the provision of goodwill of the Crown was replaced by pleasure of the President in case of public servants in Defence services or civil services of the union.3 Similarly, in the states, officers in civil services could hold their office at the pleasure of the governor. Article 310 remains till date one of the most debatable provisions of the Constitution. However, unlike England, the doctrine of pleasure under Article 310 of the Indian Constitution does not operate without restrictions. Since, the doctrine draws its power from the Constitution itself, it is subject to constitutional limitations. The limitations to the doctrine are provided in Article 311 of the Constitution which acts as a protection for public servants. Article 311(1) provides that no civil servant can be removed by an authority subordinate to the authority by which he was appointed. Article 311(2) provides a safeguard to the civil servants in accordance with the Principles of Natural Justice and stipulates that no civil servant may be dismissed, removed or reduced in rank except after an enquiry in which he has been informed of all the charges against him and given a reasonable opportunity to be heard in respect of those charges. The limitations provided in Article 311 have been discussed in great detail in a number of cases and research papers. Interestingly, the second proviso to Article 311(2) by way clauses (a), (b) and (c) provides three situations where the protections guaranteed under Article 311 do not apply. These clauses are as follows:
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or
(b) where the authority empowered to dismiss or remove a person or to reduce him in rank ins satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or
(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry.
This article will attempt to discuss in detail the abovementioned proviso to Article 311(2). Further, in light of the recent developments and the rise in the instances of actions taken under Article 311(2)(c) in our region, this article will specifically discuss the constitutionality of clause (c) of the proviso and whether any order made by the President or the Governor under Article 311(2)(c) is subject to judicial review.
The Exceptions to Article 311-
Clauses (a) & (b)
Clause (a) of the second proviso to Article 311 provides that the disciplinary authority is not required to hold an inquiry or give an opportunity to the civil servant to present his case if he has been convicted on a criminal charge because of his misconduct as a civil servant. The disciplinary authority should be convinced that the conviction of the concerned civil servant is sufficient proof of misconduct on his part. The reasons why clause (a) allows the disciplinary authority to forgo the inquiry are based on the fact that the disciplinary authority has already taken into consideration the judgement of the Criminal Court, the gravity of the offence, the impact of the offence on the administration and the entire conduct of the civil servant. The courts can always set aside an order passed under clause (a) if it is found to be arbitrary or grossly excessive. In Shankar Dass v. India, the Supreme Court emphasized that the power under clause (a) of the second proviso to Article 311(2) must be exercised ‘fairly, justly and reasonably’ and that ‘ the right to impose a penalty carries with it the duty to act justly.’
Clause (b) of the second proviso to Article 311 allows an authority to forgo an inquiry where it is not reasonably practicable to hold such an inquiry. But, this only applies in cases where a dismissal, removal or reduction in rank is justified to be the appropriate punishment for the misconduct of the public servant. The nature of the situation that makes holding an inquiry impracticable is a question the courts have looked into. In Union of India v. Tulsiram Patel, the Supreme Court held that “..it is not a total or absolute impracticability which is required by clause (b). What is required is that holding an inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation”. In Kuldip Singh v. State of Punjab, the court observed that the disciplinary authority is the best judge of the situation. However, the authority is required to record the reasons in writing for not holding an inquiry into the matter. The Supreme Court has also emphasized that a disciplinary authority is not expected to dispense with an inquiry lightly or arbitrarily. The Court can also examine ex facie whether the reasons for not holding an inquiry are germane, and if not it can hold that the exercise of power was bad and without jurisdiction.
Clause (C) – A Relic of the Colonial Past?
Although it is a settled position of law that the ‘the doctrine of pleasure’ has not been adopted in the Constitution of India in an absolute sense or without reasonable restrictions (Parshotam Lal Dhingra v/s Union of India), clause (c) provides the President or the Governor with powers which are as limitless as those of the Crown in England. Under clauses (a) and (b) the satisfaction has to be that of the disciplinary authority whereas under clause (c) it is that of the President or the Governor, as the case may be. If the President or the Governor is satisfied that ‘in the interest of the state, it is not expedient to hold an inquiry, he/she can dismiss the public servant without affording him the protection provided under Article 311. The security of the state being of paramount importance, all other interests are subordinate to it.12 In Jagdish v. State of Bombay, the question whether the satisfaction of the President could be challenged came up before the court. The petitioner pointed out that there was no material from which the President could be satisfied that it was not expedient to give to the petitioner an opportunity of showing cause against his proposed dismissal. The court held that “..to make such matter a justiciable issue would mean that the Court should be also satisfied about such expediency and then only the order of the President passed under the powers given by the Constitution should be upheld by the Court. This would amount to substituting satisfaction of the Court in place of the satisfaction of the President. It is possible that what may satisfy the President may not satisfy the Court. What may be found expedient by the President may not be so found by the Court. If Courts were to demand proof of such satisfaction and the evidence of material on which the satisfaction was reached, the Courts would be virtually depriving the President of the powers and confidence which the Constitution in its wisdom has reposed in the President.” Moreover, there is no requirement for the recording any reasons for the satisfaction in clause (c) and the same was upheld by the Supreme Court in Union of India v. Tulsiram Patel. 14 In this case the Supreme Court also held that the question is not whether the security of state has actually been affected or not but only that the President or the Governor is satisfied that it is not expedient to hold an inquiry ‘in the interest of the security’ of the state.
Scope of Judicial Review
The construction of clause (c) restricts the scope of judicial review to a great extent but the same is not completely immune from it. In A.K. Kaul v. Union of India, 16 the Supreme Court observed that any order passed under Article 311(2)(c) can be subject to judicial review only on the ground that the satisfaction of the President or the Governor is vitiated by mala fides or is based on wholly extraneous or irrelevant grounds. Therefore, the government is obliged to place before the court relevant material and disclose the nature of the activities on the basis of which the satisfaction of the President or the Governor was arrived at and the court has jurisdiction to determine whether such activities have a reasonable nexus with the interest of the security of the state.17 However, the court does not interfere with an order passed under Article 311(2)(c) without there being a clear case of abuse of power. Even if the material on which the action is taken is weak or inconclusive, the court does not question the adequacy or the correctness of the material. In Union of India v. Balbir Singh, 18 the Supreme Court reiterated that the court can examine the circumstances on which the satisfaction of the President/Governor is based so long that the court does not substitute its own opinion for that of the President/Governor. The court spelled out the boundaries of the scope of judicial review of the “President’s Satisfaction” in the following points:
(1) That the order would be open to challenge on the ground of mala fides or being based wholly on extraneous and/or irrelevant grounds;
(2) Even if some of the material on which the action is taken is found to be irrelevant the Court would still not interfere so long as there is some relevant material sustaining the action;
(3) The truth or correctness of the material cannot be questioned by the Court nor will it go into the adequacy of the material and it will also not substitute its opinion for that of the President;
(4) The ground of mala fides takes in, inter alia, situations where the proclamation is found to be a clear case of abuse of power or what is sometimes called fraud on power;
(5) The Court will not lightly presume abuse or misuse of power and will make allowance for the fact that the President and the Council of Ministers are the best judge of the situation and that they are also in possession of information and material and Constitution has trusted their judgment in the matter;
(6) This does not mean that the President and the Council of Ministers are the final arbiters in the matter or that their opinion is conclusive.
Considering this view of the court, it is abundantly clear that the court has excluded its jurisdiction over the question of the correctness or authenticity of the material produced before it to justify an order passed under Article 311(2)(c) and merely verifies whether the material or evidence produced is somehow relevant in sustaining the action. Even if the material is inadequate or barely relevant, the court shall not interfere with the satisfaction of the President or Governor as the case may be. Also, it can be further concluded that even if the courts have not completely excluded the powers of the President from the scope of judicial review, the satisfaction of the President has been held to be non-justiciable.19 It is a settled position that whenever powers are conferred upon a authority by the constitution, the same have to be exercised within the limitations provided in the constitution and since the judiciary has be entrusted with the responsibility to interpret the constitution, the scope of judicial review is always available with respect to such powers, unless expressly excluded by a provision of the constitution. The courts have had a similar view in respect of Article 356(1) of the constitution wherein also the phrase ‘if the President is satisfied’ has been used. Before the 44th Amendment to the Constitution, Article 356 contained a clause (5) which stated that “the satisfaction of the President mentioned in clause (1) shall be final and conclusive and shall not be questioned in any Court on any ground.” However, despite this provision which seemed to expressly exclude the scope of judicial review, a number of distinguished judges opined that the power of judicial review by the courts could not be curtailed if the satisfaction was based on completely irrelevant, extraneous and mala fide grounds.20 Most notably, P.N Bhagwati J. held that if the satisfaction is mala fide or is based on wholly extraneous or irrelevant grounds, the Court would have the jurisdiction to examine it, because in that case there would be no satisfaction of the President in regard to the matter which he is required to be satisfied. But at the same time, it was observed in The State of Rajasthan & Ors. v. Union of India Etc. Etc. (supra) and S.R. Bommai v. Union Of India21 that the satisfaction of the President has to be scrutinized within the acknowledged parameters viz., illegality, irrationality and mala fides. The same parameters have been applied when the courts have dealt with the question of the satisfaction of the President/Governor under Article 311(2)(c), which has significantly restricted the scope of judicial review.
Upon analysing the leading cases on the scope of judicial review under clause (c) of the second proviso to Article 311(2), it can be concluded that the courts have been largely hesitant in interfering with the orders passed under Article 311(2)(c). The courts have mostly upheld the orders of the President/Governor on the pretext that the second proviso to Article 311(2) has been inserted in the Constitution as a matter of public policy and in public interest and for public good.
Conclusion
The ‘Doctrine of Pleasure’ is essentially an autocratic concept that has its roots in the authoritarian rule of the Crown in England. When Britain established colonies throughout the world, the doctrine was incorporated to provide unfettered executive power to the Crown. Hence, the doctrine of pleasure has been adopted by the nations governed by common law, including India, US, Canada, UK, and Australia. The question that arises is to what extent should the doctrine of pleasure be applied in a democracy. The Constitution of India adopted the position laid down by Section 240(1) of the Government of India Act, 1935. During the Constituent assembly debates there were only two minor amendments moved against Section 240(1) but both were rejected and the entire section was reproduced in the Constitution.22 Whenever such discretionary powers are conferred on the executive, there remains a scope for arbitrariness. But, there is no absolute power given in the Constitution either to the Government or the civil servants. The courts have held time and again, that Article 310 of the constitution which incorporates the doctrine of pleasure is controlled by the Fundamental Rights. A constitution bench has declared that equality is a basic feature of the Constitution and the content of Article 14 has been expanded to non-arbitrariness, compliance with rules of Natural Justice eschewing irrationality, etc. 23 Thus, the protections guaranteed under Article 311 are in line with the Principles of Natural Justice, Right to Equality, and the spirit of democracy. However, these protections cease to exist when pleasure of the President or the Governor under clause (c) of the second proviso to Article 311(2) comes into force. As discussed earlier, the scope of judicial review under clause (c) is very narrow and restrictive. The courts have even held that Article 14 cannot be invoked when the President exercises his powers under Article 311(2)(c). It can be argued that the very objective of Article 311 is defeated by the inclusion of clause (c) and the doctrine of pleasure has been adopted by the Indian Constitution from the British Crown in an absolute sense. The protections given under Article 311 to enable the civil servants to serve without bias or fear of the Government are considerably weakened by clause (c). While the judiciary has always tried to maintain a balance between the functioning of the government and the rights of the civil servants, its role under Article 311(2)(c) is a superficial one. The question whether there should be a shift in the current position with regards to the Doctrine of Pleasure and the pleasure and satisfaction of the President should come under the scrutiny of the courts in more comprehensive manner is one that the author leaves for the courts and the readers to ponder over.