The Restrictions on Doctrine of Pleasure under the Indian Constitution & Comparing the Applicability of The Doctrine with India and USA

Nov 19, 2020

The Doctrine of Pleasure as a concept originated from the “royal prerogative”, which was exercised by the crown when India was under British rule. The East India Company, however, didn’t have the authority to exercise this doctrine as they weren’t the supreme ruling power. It is therefore derived from the common law of England. In England, the crown is in command of the Civil Services and the officials shall be allowed to serve as long as they please the crown. The moment the crown isn’t pleased with their services, it can order their dismissal without any proper reason. Alternatively, they can be removed or reduced to a lower rank. They aren’t allowed to question the crown’s decision either. Although India adopted this concept, we modified it to fit our socio-political structure. In India, the President has the power to dismiss public servants of the union, and the Governor has the power to dismiss the public servants of each state. Here, public servants do not include people who serve in the armed forces.

After the end of the East India Company’s rule in 1858, the Indian administration was under the direct control of the crown. Following this, the Government Act 1919 and 1935 were put in place. They adopted the Doctrine of Pleasure and said that it was not based on the only prerogative, but also public policy as laid down by J.R. Baroni v. Secretary of State. The first time that statutory restrictions were adopted in India’s model was under Section 19-B of the 1919 Act. It imposed restrictions on the exercise of the crown’s pleasure in stating that a subordinate authority could not dismiss an official and if in case he is dismissed by a subordinate, the dismissal would be void. In the 1935 Act, Section 96-B of the 1919 Act was incorporated into Section 240 of the 1935 Act. Under sub-section (3), it is clearly stated that no action can be taken against any office until he has been given a reasonable opportunity to show cause against the proposed action. Reduction of rank was previously not mentioned in the 1919 Act, but it has been taken into consideration in the 1935 Act.

After the enactment of the Constitution, these provisions were provided for under Article 310 that essentially enforces the same things. It, however, lays down certain exceptions to this doctrine. Judges of both the Supreme Court and high courts, the Chief Election Commissioner and the Comptroller and Auditor General of India are excluded from serving at the pleasure of the President of India. This doctrine is therefore not absolute like its England counterpart. It is subject to constitutional provisions under both Article 310 and 311, which provides civil servants with protection against this doctrine and Article 308 that provides them with constitutional status. These articles follow Section 240 of the Government of India Act 1935 in saying that no one who is a subordinate authority or rank to the officer can dismiss him. Only someone of equal or higher authority has the power to dismiss a civil servant. The Constitution also upholds the right to be heard of these civil servants. They have to follow proper procedures and first, carry out a preliminary enquiry to confirm the charges. The accused officer has to be informed of the allegations against him and should then be given a reasonable chance to testify in the case. He is allowed to present his arguments before the deciding authority and give his witness statements. He also has the right to cross-examine the opposition’s witnesses after listening to their testimony. However, suppose the civil servant is being held on criminal charges. In that case, the procedure established by the Constitution will not apply, and he can immediately be removed from his post for misconduct without having to undergo any procedure. In Tulsiram Patel v. Union of India, the SC held that all the provisions and protections put in place under the doctrine of pleasure including the exceptions have been included based on public policy, public interest and public good and not just as a prerogative. In Sardari Lal v. Union of India, the bench reiterated that the President or governor could not delegate their right to exercise the doctrine of pleasure as it would be outside the scope of power under Article 154. However, in Shamshir Singh v. State of Punjab, the SC overruled this decision and stated that the President and governor act on the aid of the Council of Ministers.

When we compare the model adopted by India with that of the USA, we can see some obvious differences. The President was conferred with absolute powers under this doctrine to remove federal employees in 1789. This was, however, established only in principle and not exercised for decades. This led the entire federal services system into turmoil by 1828. The high levels of inefficiency led to the enactment of the Tenure of Office Act of 1820, which limited the term of civil servants to four years. In 1867 however, Congress passed an amendment act prohibiting the President from dismissing officials appointed without the US Senate’s approval. After a case of a mass dismissal of thousands of employees, the Civil Service Reform Act was enacted, thereby guaranteeing federal employees with a guarantee against arbitral decisions and decisions influenced by favouritism, discrimination and partisanship. The act also protected the civil servants from unlawful methods of removal without any hard evidence to prove claims of a legal violation or abuse of power, among other things.  

Therefore, the tenure of civil servants under Article 310(1) is at the pleasure of the President or governor. Their powers are exercised on advice from the Council of Ministers or under the authority of Section 309 of the Indian Constitution. Well, both systems have their pros and cons, but their efforts are commendable.