Doctrine of Pleasure in Indian constitution
Introduction:
The civil services were introduced by British in India. The doctrine of pleasure is a common law rule. The origin can be traced from England; the normal rule is that a civil servant of the crown holds his office during the pleasure of the crown. This means that his services can be terminated at any time by the crown, without assigning and informing any particular reason. The doctrine of pleasure is based on the public policy.
Doctrine of pleasure in India:
Article 310 of the Indian Constitution deals with the incorporation the Common law doctrine of pleasure. It expressly provides that all the persons who are members of the Defence Services or the Civil services of the Union or of All- India services hold office during the pleasure of the president. Similarly, members of the state services hold office during the pleasure of the Governor. Though doctrine of pleasure is accepted in India as it is developed in India, it has not been completely accepted in India. It is not blindly followed as it is followed in England; there are modifications in the doctrine. It can be limited by the constitutional provisions. A civil servant in India could always sue the Crown for the arrears of salary. Under Indian constitution there are certain categories of people are excluded from the operation of this doctrine:
a) Judges of the Supreme Court;
b) Judges of High Courts;
c) Chie Election Commissioner;
d) Comptroller and Auditor General of India.
The civil servants can also be excluded from the operation of the doctrine because they have been provided with some protection under Article 311 of Indian Constitution, thus the doctrine application can be limited to civil servants as well.
Article 311 of Indian Constitution: Article 311 provides the following safeguards to civil servants against any arbitrary dismissal from their posts:
1) No person holding civil post under the Union or the states shall be dismissed, or removed by the authority subordinate to that by which he was appointed.
2) The civil servants are provided with the right of being heard, this right embodies the principal of natural justice by giving a chance to the civil servant to prove his innocence. This article is very important because the civil servant is given the opportunity for being heard. Under this article, reasonable opportunity is mentioned this is likely to be considered as the meaning of natural justice. Thus, the accused is having the chance to disprove the charges levied on him by this article.
Then such an opportunity is provided to a civil servant, the requirement of reasonable opportunity being afforded to him will be fulfilled.
Persons entitled for the safeguard: These protections are provided for some certain set of people working for government, all the Government servants are not entitled with protection of this right. Thus, Article 311 of Indian Constitution provides the right to be protected.
The following people are;
a) Civil service of the union;
b) All India service; and
c) Civil service of any state.
d) People who hold a civil post under the Union or any state.
Hence, the people from the above mentioned categories are entitled with the protection.
These safeguards are nit available to defence personnel or even a civilian employee in defence service. They can be dismissed from their service without any prior notification.
Restriction on doctrine of pleasure:
The Constitution lays down the following restrictions on the exercise of doctrine of pleasure:
1) The pleasure of the president or Governor is controlled by provisions of Article 311 of Indian Constitution, so as Article 311 is excluded from the exercise of operation of doctrine of pleasure. The pleasure must be exercised in accordance with the procedural safeguards provided by Article 311.
2) The service contract between the civil servant and government may be enforced.
3) The fundamental rights guaranteed under the Indian constitution are restrictions on the doctrine of pleasure and hence this doctrine can be resorted freely. Doctrine of pleasure s subject to the fundamental rights. Articles 14, 15, and 16 of Indian Constitution imposed limitations on the exercise of the doctrine.
Thus, the general principle relating to Civil services has been laid down under Article 310 of the Indian Constitution to the effect that government servants holds office during the pleasure of the government and Article 311 imposes restrictions on the privileges of dismissal at the pleasure in the form of safeguards.
Exceptions to the safeguards:
The Article 311 of Indian Constitution provides protections to ensure the interests are protected, and there are certain exceptions to this protection. Civil servant cannot claim protection, while the exceptions arise in a case. The following are the exceptions:
1) If any civil servant has been found guilty of an offence, he is not entitled for the protection under Article 311 to him and such cases of the criminal offence; he will be removed for the misconduct of behavior without getting the chance of being heard.
2) The second exception is that where in cases regarding the disciplinary charged with the allegations made against him, if he thinks that it is not practicable to hold an enquiry for the same, the he has the power to not to hold such enquiry.
3) The security of the state is the reasons under Article 311 and the protection of it being the last exception. This right is in the hands of President as the Governor as the case may be. Whenever, the President or the Governor is satisfied that it is not in the interest of the security of state to hold an enquiry, and then such enquiry can be stopped.
Conclusion:
Therefore, as the Doctrine of pleasure has been adopted from England, there were modifications made in the Indian context as per the social structure in India. The Judiciary is the key role for this doctrine because of the power of judicial review. The main reason for which Articles 310 and 311 has been incorporated in the constitution is still working today, and the insight of corruption in future for which such provisions are included.
Author: Saba banu,
Pendekanti law college, 3rd year BA LLB student