Doctrine of Pleasure

There are certain common law principles that were adopted by the Indian constitution. One such principle is the Doctrine of pleasure. In England, the doctrine is a special prerogative of The Crown and gives unrestricted power to appoint civil servants and discharge them of their duties at their pleasure. However, the application of the doctrine in the Indian context doesn’t confer absolute power on the President and the State governor.

 

The constitution refers to three types of offices that are held under the pleasure of the President. The three can be categorized as offices held during the pleasure of the government without restrictions, hold the office at the pleasure of the president with restriction and the third are the officials who are exclusively exempted from the pleasure doctrine under the constitution.^[1]

 

Article 310 (1) of the Indian Constitution embodies the Doctrine of Pleasure and assigns this power to the president in case of people who are members of or any post connected to the defense services, the civil servants of the union or of the all India services. The governor of the state holds similar power over members of a state civil service or “any civil post under the state”^[2]. The listed members hold their post at the pleasure of the president or the governor of a state.

 

Another difference between the application of the Doctrine in England and India is that the power in India is subject to limitations. Article 311 provides the civil servant with the right to  natural justice through procedural safeguards that are to be followed while exercising power under the doctrine of pleasure. Clause 1 of article 311 states that no listed members can be removed by a person subordinate to the person or office who appointed them. Article 311 (2) states that no person belonging to the listed members can be dismissed or removed or reduced in rank without them being informed and given a reasonable opportunity to be heard with respect to the charges against him. However, once penalty is imposed on those charges, it is not necessary for the person to be given an opportunity to be heard on the charges. This clause will not be applicable if according sub causes of Article 311 (2) exempt (a) where the dismissal, removal or lowering of rank of a person of conduct lead to “his conviction on a criminal charge”^[3]; (b) where the authority holding the power of the doctrine is satisfied for a reason recorded in writing that an inquiry is impracticable or where the President or the State Governor, depending on the case, is satisfied that it is not expedient to hold the inquiry in the interest of state Security. Article 311 (3) gives the final deciding power, on whether an inquiry as under clause (2) is reasonably practicable, to the authority empowered to remove, dismiss or reduce the persons rank. Hence the right to be heard is limited by the power of the authority to dismiss depending on reasonable practicability. It is not absolute power in that there needs to be a reason and the exercise of the power has to be fair, just and reasonable^[4] and not at the “pleasure” of the Authority. The restriction of article 311(1) and (2) are based on public policy and in the interest of the public because the Article gives a sense of security of tenure to the civil servants.^[5]

 

Article 309 provides that subject to the provisions of the constitution, acts made by the appropriate legislation may regulate the recruitment and conditions of services of persons appointed to public services and posts in connection with the affairs of the union or the state. The proviso to this article gives the president or the governor the power to make such rules regulating the conditions of service of persons appointed for civil services of the union or state. The term “Conditions of services” here encompass a multiple of includes the dismissal of an official.^[6]

 

 

THE SUPREME COURT ON THE DOCTRINE OF PLEASURE

 

The supreme court in the case of Union Of India And Another vs Tulsiram Patel And Others^[7] while considering Article 311 (2) and clause (3) laid down that before the constitutional right to an inquiry is denied the first consideration should be the conduct of the government servant justifies the penalty of removal, dismissal or reduction of rank. The court also said that the disciplinary authority assesses whether it is reasonable practicability to conduct an inquiry under the second proviso of Article 311 clause (2). Since such authority generally knows what’s happening on the ground and is the best judge to decide reasonable practicability of the inquiry but the court further said that this power to decide is not binding on the court to the extent of its power of judicial review in matter where administrative discretion is exercised.  Hence this gives the person who was penalized without inquiry under Article 311 (2) provisos the right to appeal where the correctness of the decision will be subject to review apart from their constitutional remedy of judicial review.^[8]

 

The supreme court in the case of Jaswant Singh v. State of Punjab^[9] reaffirmed the applicability of judicial review to provisos of Article 311 clause (2) and (3) and added that “finality can certainly be tested in a court of law and interfered with if the action is found to be arbitrary or malafide or motivated by extraneous considerations or merely a ruse to dispense with the enquiry.”^[10]

 

As shown, the doctrine of pleasure applicable in India is different from the Crown’s application and another way in which they differ significantly is that the matters where there is a breach on the part of the Government, then the matter is justiciable.^[11] When a sub-inspector was dismissed form service and later reinstated, the Supreme court upheld his claim for payment of arrears for the dismissal period on the grounds that “quantum merit or contract”^[12], hence being different form the Crown’s application where there is no judicial review.  The person appointed at the pleasure of the crown doesn’t have the right to maintain an action against the crown for compensation as well. ^[13]

 

The constitutional bench in the case of B.P Singhal v. Union of India & Another^[14] held that the use of the doctrine of pleasure was not be done arbitrarily or in a capricious manner. There needs to be a cause and this aspect cannot be dispensed with. The withdrawal of pleasure “can only be for valid reasons”. This court also commented on cases that fall under the proviso to Article 311(2) and said that the application of the doctrine is moderately restricted “in the sense that the circumstances mentioned therein should exist for its operation.”^[15]

 

 

 

 

 

^[1] Srividya Sastry, ‘Doctrine of Pleasure as Under the Indian Constitution’,  <http://www.legalservicesindia.com/article/1643/Doctrine-of-Pleasure-as-under-the-Indian-Constitution.html> ( Accessed on 17 September 2020)

^[2] Clause (1) Article 311, The Constitution of India, 1950

^[3] Clause (1) Article 311, The Constitution of India, 1950

^[4] Shankar Dass v. Union of India, AIR 1985 772

^[5] Union Of India And Another vs Tulsiram Patel And Others on 11 July, 1985 AIR 1416

^[6] State Of Madhya Pradesh & Ors vs Shardul Singh, AIR 1966 MP 193

^[7] 1985 AIR 1416

^[8] Union Of India And Another vs Tulsiram Patel And Others, 1985 AIR 1416

^[9] 1991 AIR 385

^[10] Jaswant singh v. State of Punjab, 1991 AIR 385

^[11] The State Of Bihar vs Abdul Majid, 1954 AIR 245

^[12] The State Of Bihar vs Abdul Majid, 1954 AIR 245

^[13] The State Of Bihar vs Abdul Majid, 1954 AIR 245

^[14] MANU/SC/0350/2010

^[15] B.P. Singhal vs Union Of India & Anr, MANU/SC/0350/2010