Doctrine of Pleasure: Someone’s Job till Someone’s Pleasure
Author: Mr. Mudit Saxena, Galgotias University
What is Doctrine of Pleasure?
It refers to the power of the Crown (king or queen) to remove any civil servant from his/her office without providing any justification or a notice of termination to the servant i.e., the civil servant holds the office till the Crown is pleased upon him/her. It is a rule of Common Law. The civil servant if terminated cannot challenge the pronouncement of the Crown or claim for damages and is abide to follow it. Therefore, the entire duration for which a civil servant holds his/her office entirely depends upon the pleasure of the Crown which is why it is called the doctrine of pleasure. Hence, the tenure of the civil servant is not fixed. This doctrine is established on the ideology of public policy i.e. if the civil servant whose act the Crown does not find satisfactory towards the interest of the public then that public servant cannot hold the office.
The roots of this doctrine lie in England where it originated. It is a privilege that the British Crown enjoys. The origin of this doctrine can also be found the Latin phrases like “durantebeneplacito” and “durantebeneplacitoregis” meaning during good pleasure and during the good pleasure of the King respectively. The Doctrine is entirely based on the prerogative of the Crown and the King can do no wrong. The association of the Crown with the servants is only unilateral. In its various judgments as well the Privy Council has recognized the doctrine of pleasure as a necessity (Shenton v. Smith).
The Doctrine of Pleasure can and established in India with the entry of the East India Company. As the empire of the company expanded and became the supreme power, this doctrine came into force and new dimensions were also added to this doctrine. The East India Company had the power to not only remove any civil servant but also any servant under this doctrine. Despite the company being the supreme power in British India, the Crown had the ultimate power and could remove any civil servant appointed by it in the East India Company. The East India Company has incorporated this doctrine in very Charter brought by them (from 1833)This doctrine was later brought and recognized in British India by the Government of India Act, 1935 under Section 240.
- Rule of Doctrine in England
The servant always holds the office under the complete discretion of the Crown with no fixed tenure. The Crown beholds the ultimate power i.e. it may even remove a civil servant if he/she is appointed on a contractual basis and no damages will be paid by the crown. The Crown can remove the public servant which it itself appoints. Under this doctrine, the Crown possesses the power and any act done while exercising this doctrine, cannot be challenged.
Doctrine of Pleasure in India (Post-independence)
India has adopted the doctrine of pleasure like various other laws of the Common Law. This doctrine is enshrined under Article 310 of the Constitution of India. Even though the doctrine has been accepted in India, but its functionality is not accepted in its true form i.e. this doctrine does not work the same way it does in England. In India, the notion the King can do no wrong is not followed and hence, the civil servants are provided with some safeguard under Article 311 of the Constitution of India. This means that in India the relation between the head of the State and the civil servant is not unilateral therefore, the servant can sue the act done while the exercise of this doctrine. In India, this doctrine is subject to limitations imposed by the Constitution itself.
The Article 310 (1) states that “Except as expressly provided by this Constitution, every person who is a member of a defense service or of a civil service of the Union or of an all India service or holds any post connected with defense or any civil post under the Union, holds office during the pleasure of the President, and every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor of the State”. Hereby the terms “except as expressly provided” indicate that this doctrine is not absolute as in England and British India. Supreme Court Judges, Auditor General, High Court Judges, Members of Public Service Commission, Chief Election Commission are the exempted class from the doctrine of pleasure under the constitutional limitations as expressed under Article 310(1).
In India the termination of servant is not a personal right of the President or the Governor. The termination of a civil servant is subject to the clauses of Article 311 of the Constitution of India.
Limitation of the Doctrine of Pleasure in India
- The contract between the public servant and the executive can be enforced if the termination is arbitrary.
- The actions are done while exercising the power bestowed by this doctrine under Article 310 cannot be challenged for being violating the Fundamental Rights of the servant. The doctrine cannot violate the fundamental rights is guaranteed under Article 14, 15 and 16(1).
- As mentioned above Supreme Court Judges, Auditor General, High Court Judges, Members of Public Service Commission, Chief Election Commission are the exempted class from the doctrine of pleasure under the constitutional limitations as expressed under Article 310(1).
- Article 311 also imposes restrictions on this doctrine in India.
Who can get the safeguard? (Judicial Pronouncements)
This question has been a part of various debates unless it was made clear by the honourable Supreme Court of India via its judicial pronouncements. Supreme Court of India in its verdict of S. L. Agrawal v. General Manager, Hindustan Steel Limited highlighted the people who can claim for safeguard under Article 311. The constitutional bench identified the following who can claim for the protection under Article 311:
- Member of Civil Servant of Union,
- Member of Civil Servant of State,
- An All India Servant
Later in the case of State of Assam v. Kanak Chandra Dutta the Apex court stated that defence servant and another servant beyond the civil services are not included in Article 311. The Supreme Court also included temporary servants as well under Article 311 (ParshottamLalDhingra v. Union of India).
The Supreme Court in the case of Union of India v. Tulsi Ram Patel laid emphasis on the reasonability behind the termination of a servant and mandates the departmental inquiry as well as.
There have been instances where by the Supreme Court has not followed the doctrine and has given a verdict against it be it the judgment of Om Prakash v. State of UP, Jaswant Singh v. State of Punjab or Union of India v. Balbir Singh. This clearly indicates that the doctrine is not absolute in India as it is in England.
It can be clearly seen through the Constitutional Provisions that though the makers of the Constitution wanted to incorporate the Doctrine of Pleasure but not in its true essence and this was made very much clear by the interpretations and pronouncements of the Supreme Court of India. Hence, we can draw a difference between the practice of doctrine in India and England as follows:
|Nature||The doctrine is absolute in nature.||The doctrine is not absolute and is subject to constitutional limitations.|
|Challenge||The actions while exercising the power under this doctrine cannot be challenged in a court of law.||The actions while exercising the power under this doctrine can be challenged in a court of law.|
|Applicability||It is applicable on all civil servants appointed by the Crown.||It is applicable on everyone civil servant except Supreme Court Judges, Auditor General, High Court Judges, Members of Public Service Commission and Chief Election Commission.|
|Contractual Appointment||If a civil servant is appointed via a contract then even the servant can be terminated and the contract holds no value.||If a civil servant is appointed via a contract then even the servant cannot be terminated and the contract can be enforced.|
|Relation||The relation between the servant and the Crown is unilateral.||The relation is unilateral.|
Shenton v. Smith, 1895 AC 229 (PC)
Article 310(1) in The Constitution Of India 1949
1970 AIR 1150
1967 AIR 884
1958 AIR 36
1985 AIR 1416
AIR 1960 SC 409
1958 AIR 124
AIR 1998 SC 2043