A Comparative Study of Doctrine of Pleasure
A comparative study on the evolution and application of doctrine of pleasure.
Evolution of Doctrine of Pleasure
Doctrine of Pleasure is a concept well accepted principle in India. The power of the Queen or Crown is enjoyed by the President and Governor, as Head of the Union and State, respectively. According to the doctrine, the President and the Governor shall be vested with a power to remove a civil servant. The doctrine in its real sense provides complete power to make such termination without granting any justification or notice. Thus, a civil servant shall hold his office during the pleasure of the Crown.
The doctrine took its entry in Indian soil after the establishment of East India Company. The British introduced Civil Services for better governance. Even though Company had the authority to both appoint and remove civil servants, the Crown remained as the ultimate authority. The source of her power was from the doctrine This was even included in the Charter of 1833.
Further after enactment of Government of India Act the doctrine formed part of the Indian jurisprudence.[1] But after the adoption of Constitution, the doctrine was added with some modifications. The arbitrary power granted through the doctrine was modified to include some limitations. Also, there is a change in the usage of words. The “goodwill of the Crown” was replaced by the “pleasure of the President”. The doctrine in the present form is embodied under Part XIV, Art. 310 of the Constitution of India.
The Art. states as follows:
“Except for the provisions provided by the Constitution, a civil servant of the Union works at the pleasure of the President and a civil servant under a State works at the pleasure of the Governor of that State.”
The Art. provides that the power granted is subject to the provisions of the Constitution. This ensures independence of some bodies like, the Supreme Court, High Court, Controller and Auditor General, Chief Election Commission, etc. These offices are expressly excluded by the constitution itself.[2]
Limitations on the Application of the Doctrine
The application of doctrine is subject to certain limitations, which ensure reasonableness of the President’s decision. The basic common law limitation is non-arbitrariness. Any termination made as per the doctrine should not be arbitrary. Further the Section itself provides that the exercise of such authority shall not in conflict with other provisions of the Constitution. The power can be challenged if it is exercised in violation of the Fundamental Rights guaranteed under Art. 14, 15, 16, etc. [3]
In addition to the above, Art. 311[4] also extends protection to the civil servants. Mainly two safeguards are enumerated under the Art.
No dismissal by authority subordinate than which appointed him. - A CIVIL SERVANT can only be appointed by a person holding equivalent to or superior authority to the one who appointed him.
Reasonable opportunity of being heard. Clause (2) of the Art. provide for a three-step process. An enquiry should be conducted, accused civil servant should be informed of the charges against him and he should be given a reasonable opportunity to represent himself.
Any action of removal or terminational without following these steps shall be void.[5] Any remedy against an illegal removal shall be through the judiciary. The apex court has held that the Court has the power to judicially review the satisfaction of the president. If such satisfaction is based on irrelevant ground the same can be set aside. [6]
All these measures ensure that the civil servants are not arbitrarily dismissed or reduced in rank and ensure security of tenure.[7] Thus, the Constitution by itself has suitably struck a balance by imposing appropriate limitation against the non-arbitrary exercise of the power granted through the doctrine of pleasure.
Application of doctrine in other countries
United Kingdom
The doctrine was first established in UK. All the countries following the doctrine trace its origin to UK. There is explicit rule in UK that civil servants shall hold office during the pleasure of the Crown.[8] The rule is absolute in nature, meaning the civil servant has very few opportunities of remedy against any arbitrary exercise of this power. The first instance where the Courts tried to interpret the rule is in Shelton v. Smith[9]. It was held the Crown had the absolute power to dismiss any civil servant, even those appointed for a fixed term. This view was subsequently reaffirmed through numerous other judgments. [10]
Later in Riordan v. War Office[11], it was held the power of Crown was absolute and could be restricted only through a Statute. The aim of the doctrine was to produce a ‘organic unity’ between the Crown and the civil servant. This will ensure smooth flow of power and better governance.[12] The Official Secrets Act, 1989 impose a restriction on the rule. In cases where the power is used by Crown to make orders forcing the civil servant to act illegally or to carry out politically biased actions. The civil servant can approach the Civil Service Commission.[13]
Under the Law on Public Function and Statute of civil servant, state government under the direction of the Central Government has added procedure for termination of civil servants that is independent of will of parties. Also, Crown is liable to pay damages for the injuries caused by common law duties.
Further under various legislations like Trade Union and Labour relations Act of 1992, there are provisions which allow civil servants to form Union and to exercise their right of collective bargaining. The Employment Rights Act provides for protection of civil servants, by imposing certain restrictions on the Crowns power. Except on the ground of national security a minister cannot remove a civil servant.[14]
Also, under the Act, civil servants are granted similar employment rights like that of the private sector employees. The Parliamentary Comm. in 2000 went on to make certain recommendations in the Civil Service Bill No.2, to ensure compliance with Recruitment Code of Civil Service Commission in order to free civil servants from political bias.[15]
United States of America
The application of the doctrine in the country began in 1789, along with the drafting of the Constitution. The Constitution provided that the President along with the senate shall be sole authority to make appointments in the post of civil servants.[16] In regard to the question of removal the constitution was silent. Later the Supreme Court clarified the position and held the power of removal shall vest with the appointing authority.[17] Hence, the President was conferred with absolute authority to remove federal employees.[18]
Later in 1867 an amendment was brought about in the 1820 Act[19] which prevented unilateral removal of federal officers without the Senate’s approval. But in 1970 and 1971, there was huge retrenchment of state employees, who were appointed by the previous government.[20] Thus, the Civil Service Reforms Act was enacted in 1978, which was aimed at providing protection against arbitrary removal, simply based on personal or political favouritism.[21]
In addition to the two Tenure of Office Acts and the Civil Service Reforms Act, the Pendleton Act of 1883 and the Hatch Act of 1939 ensured interfered discharge of duties by civil servants.[22] Also, these legislations were aimed at granting protection to the civil servants against arbitrary removal without proper evidence or lawful cause. Also, these Legislations simply disregarded the application of Doctrine of Pleasure in the appointment and removal of civil servants. There were more specific procedures laid down to regulate the removal of civil servants who held their office for a fixed period.
Australia
As a consequence of the colonial rule the application of the doctrine is well founded on the British administration of the doctrine. The rule laid down in Shenton v. Smith[23] was applied in concurrence. After the introduction of the doctrine to the Australia legal regime, the application of the same took a great shift after the 19th century. Unlike England, public service in Australia was termed contractual in nature. Thus, the terms of their contract provided rights and privileges. His contract was termed ‘his chief right’.
In the landmark case of Lucy v Commonwealth[24], Court highlighted S. 84 of the Constitution and S. 60 of Commonwealth Public services Act, in restricting the Crown’s power to remove on pleasure.
Even though legislations were brought in for the protection of the CIVIL SERVANTs against arbitrary removal. They were either subject to the powers of the Crown or regulated only some aspects of removal. Thus, even when there was no express rule of the doctrine Courts were always bound by implied expressions.[25]
The federal Public Service Act of 1902, passed by the Parliament, restricted the power of the Crown in exercising pleasure. The Act was amended in 1922 to make fix termed of employment to civil servants, but was removed in 19999. The amendment was breakthrough in the protection of civil servants. Numerous Comm. like Disciplinary Appeals Comm., Promotion Appeals Comm. and Re-appointments Review Comm., was introduced.
The Comm. comprised of an independent officer appointed by the Public Service Board. [26]
The enactment of Australian Government Employees Act in 1984 was part of the contemporary approach of the protection against arbitrary removal.[27] Through this legislation it was clear that the Crown’s power to remove civil servants on pleasure is lost.[28]
Canada
The origin and development of doctrine of pleasure in Canada was very similar to that of Australia. Both of them followed the path of other common law countries. The unique feature of the Canadian Constitution was it indorsed the appointment of civil servants by the Members of Parliament based on the recommendations made by the Commissioners. Also, the Ministerial Treasury Board made the payments towards the civil servants under the collective bargaining structure.[29] Numerous legislations were passed to restrict the Crown’s arbitrary exercise of power after 1849. But all of them suffered weaknesses due the colonial clutches.
After the Canadian independence in 1867, a new Act named the Civil Services Act 1868 was brought in.[30] The Act could not completely fulfil its purpose, as appointments were even then based on political patronage. Later in 1882 another Civil Service Act was brought in. It established a system called the Board of Civil Service Examiners, who examined the candidates and appointed them based on merit.[31] Even though the new Act made no much a difference, but at the least could prevent appointment of illiterates.
It was only in 1908, that a unified central recruitment system was established for the appointment of independent and efficient civil servants.[32] The Act of 1908 established a Commission solely for appointment of civil servant on the basis of competitive examinations. The World War I, disrupted the whole system. Finally, in 1917, then Prime Minister Borden took a genuine effort to completely reform the civil servant appointment system. As a consequence, The Act of 1918 was passed.[33]
Conclusion
The research has attempted to describe the doctrine of pleasure and its further development under few common law jurisdictions, in order to draw a comparative study between them. Further to analyse whether the present form of application in India adequate for the protection of civil servants.
The doctrine even though traces a common origin to British legal system. The development, since its origin was very diverse, in different countries. In UK, there is still remnants of the doctrine found in their statute. But other common law countries have expressly or impliedly disregarded the application of the doctrine. India is still holding on to the doctrine, even though the rule is subject to limitations.
After disregarding the application by the countries, different laws were framed to grant independence to their civil servants. But still in countries like US, the appoints are still made based on political partisan and those officers not in line with the political ideology, at different instances, were removed from office. Countries like Canada established a board or commission for ensuring appointment of neutral civil servants through centralised examinations.
In Australia there was a steady development. The doctrine was first replaced by the contractual terms of employment. The civil servants could claim their rights and privileges after referring to the terms of the contract. Further legislations were brought in to regulate the process and make the civil servants more independent. Canada on the other hand just after its independence, made attempts to regulate the procedure using a unified central appointing system. Thus, the rule laid down by the doctrine was always subject to reform. Indian law saw very little or no change after the adoption of the constitution. The power of the Crown is now transferred to the President or Government.
The Indian law intact with only few limitations on the executive’s power. The civil servants should always be promoted to take a neutral approach. Irrespective of the party in power, they should be allowed to take independent decisions for promotion of public good. Thus, in order to grant such independence, there should be a specific procedure laid down through a statute, to regulate appointment, removal, remuneration, etc. of civil servants.
End-Notes:
Doctrine of Pleasure is a concept well accepted principle in India. The power of the Queen or Crown is enjoyed by the President and Governor, as Head of the Union and State, respectively. According to the doctrine, the President and the Governor shall be vested with a power to remove a civil servant. The doctrine in its real sense provides complete power to make such termination without granting any justification or notice. Thus, a civil servant shall hold his office during the pleasure of the Crown.
The doctrine took its entry in Indian soil after the establishment of East India Company. The British introduced Civil Services for better governance. Even though Company had the authority to both appoint and remove civil servants, the Crown remained as the ultimate authority. The source of her power was from the doctrine This was even included in the Charter of 1833.
Further after enactment of Government of India Act the doctrine formed part of the Indian jurisprudence.[1] But after the adoption of Constitution, the doctrine was added with some modifications. The arbitrary power granted through the doctrine was modified to include some limitations. Also, there is a change in the usage of words. The “goodwill of the Crown” was replaced by the “pleasure of the President”. The doctrine in the present form is embodied under Part XIV, Art. 310 of the Constitution of India.
The Art. states as follows:
“Except for the provisions provided by the Constitution, a civil servant of the Union works at the pleasure of the President and a civil servant under a State works at the pleasure of the Governor of that State.”
The Art. provides that the power granted is subject to the provisions of the Constitution. This ensures independence of some bodies like, the Supreme Court, High Court, Controller and Auditor General, Chief Election Commission, etc. These offices are expressly excluded by the constitution itself.[2]
Limitations on the Application of the Doctrine
The application of doctrine is subject to certain limitations, which ensure reasonableness of the President’s decision. The basic common law limitation is non-arbitrariness. Any termination made as per the doctrine should not be arbitrary. Further the Section itself provides that the exercise of such authority shall not in conflict with other provisions of the Constitution. The power can be challenged if it is exercised in violation of the Fundamental Rights guaranteed under Art. 14, 15, 16, etc. [3]
In addition to the above, Art. 311[4] also extends protection to the civil servants. Mainly two safeguards are enumerated under the Art.
No dismissal by authority subordinate than which appointed him. - A CIVIL SERVANT can only be appointed by a person holding equivalent to or superior authority to the one who appointed him.
Reasonable opportunity of being heard. Clause (2) of the Art. provide for a three-step process. An enquiry should be conducted, accused civil servant should be informed of the charges against him and he should be given a reasonable opportunity to represent himself.
Any action of removal or terminational without following these steps shall be void.[5] Any remedy against an illegal removal shall be through the judiciary. The apex court has held that the Court has the power to judicially review the satisfaction of the president. If such satisfaction is based on irrelevant ground the same can be set aside. [6]
All these measures ensure that the civil servants are not arbitrarily dismissed or reduced in rank and ensure security of tenure.[7] Thus, the Constitution by itself has suitably struck a balance by imposing appropriate limitation against the non-arbitrary exercise of the power granted through the doctrine of pleasure.
Application of doctrine in other countries
United Kingdom
The doctrine was first established in UK. All the countries following the doctrine trace its origin to UK. There is explicit rule in UK that civil servants shall hold office during the pleasure of the Crown.[8] The rule is absolute in nature, meaning the civil servant has very few opportunities of remedy against any arbitrary exercise of this power. The first instance where the Courts tried to interpret the rule is in Shelton v. Smith[9]. It was held the Crown had the absolute power to dismiss any civil servant, even those appointed for a fixed term. This view was subsequently reaffirmed through numerous other judgments. [10]
Later in Riordan v. War Office[11], it was held the power of Crown was absolute and could be restricted only through a Statute. The aim of the doctrine was to produce a ‘organic unity’ between the Crown and the civil servant. This will ensure smooth flow of power and better governance.[12] The Official Secrets Act, 1989 impose a restriction on the rule. In cases where the power is used by Crown to make orders forcing the civil servant to act illegally or to carry out politically biased actions. The civil servant can approach the Civil Service Commission.[13]
Under the Law on Public Function and Statute of civil servant, state government under the direction of the Central Government has added procedure for termination of civil servants that is independent of will of parties. Also, Crown is liable to pay damages for the injuries caused by common law duties.
Further under various legislations like Trade Union and Labour relations Act of 1992, there are provisions which allow civil servants to form Union and to exercise their right of collective bargaining. The Employment Rights Act provides for protection of civil servants, by imposing certain restrictions on the Crowns power. Except on the ground of national security a minister cannot remove a civil servant.[14]
Also, under the Act, civil servants are granted similar employment rights like that of the private sector employees. The Parliamentary Comm. in 2000 went on to make certain recommendations in the Civil Service Bill No.2, to ensure compliance with Recruitment Code of Civil Service Commission in order to free civil servants from political bias.[15]
United States of America
The application of the doctrine in the country began in 1789, along with the drafting of the Constitution. The Constitution provided that the President along with the senate shall be sole authority to make appointments in the post of civil servants.[16] In regard to the question of removal the constitution was silent. Later the Supreme Court clarified the position and held the power of removal shall vest with the appointing authority.[17] Hence, the President was conferred with absolute authority to remove federal employees.[18]
Later in 1867 an amendment was brought about in the 1820 Act[19] which prevented unilateral removal of federal officers without the Senate’s approval. But in 1970 and 1971, there was huge retrenchment of state employees, who were appointed by the previous government.[20] Thus, the Civil Service Reforms Act was enacted in 1978, which was aimed at providing protection against arbitrary removal, simply based on personal or political favouritism.[21]
In addition to the two Tenure of Office Acts and the Civil Service Reforms Act, the Pendleton Act of 1883 and the Hatch Act of 1939 ensured interfered discharge of duties by civil servants.[22] Also, these legislations were aimed at granting protection to the civil servants against arbitrary removal without proper evidence or lawful cause. Also, these Legislations simply disregarded the application of Doctrine of Pleasure in the appointment and removal of civil servants. There were more specific procedures laid down to regulate the removal of civil servants who held their office for a fixed period.
Australia
As a consequence of the colonial rule the application of the doctrine is well founded on the British administration of the doctrine. The rule laid down in Shenton v. Smith[23] was applied in concurrence. After the introduction of the doctrine to the Australia legal regime, the application of the same took a great shift after the 19th century. Unlike England, public service in Australia was termed contractual in nature. Thus, the terms of their contract provided rights and privileges. His contract was termed ‘his chief right’.
In the landmark case of Lucy v Commonwealth[24], Court highlighted S. 84 of the Constitution and S. 60 of Commonwealth Public services Act, in restricting the Crown’s power to remove on pleasure.
Even though legislations were brought in for the protection of the CIVIL SERVANTs against arbitrary removal. They were either subject to the powers of the Crown or regulated only some aspects of removal. Thus, even when there was no express rule of the doctrine Courts were always bound by implied expressions.[25]
The federal Public Service Act of 1902, passed by the Parliament, restricted the power of the Crown in exercising pleasure. The Act was amended in 1922 to make fix termed of employment to civil servants, but was removed in 19999. The amendment was breakthrough in the protection of civil servants. Numerous Comm. like Disciplinary Appeals Comm., Promotion Appeals Comm. and Re-appointments Review Comm., was introduced.
The Comm. comprised of an independent officer appointed by the Public Service Board. [26]
The enactment of Australian Government Employees Act in 1984 was part of the contemporary approach of the protection against arbitrary removal.[27] Through this legislation it was clear that the Crown’s power to remove civil servants on pleasure is lost.[28]
Canada
The origin and development of doctrine of pleasure in Canada was very similar to that of Australia. Both of them followed the path of other common law countries. The unique feature of the Canadian Constitution was it indorsed the appointment of civil servants by the Members of Parliament based on the recommendations made by the Commissioners. Also, the Ministerial Treasury Board made the payments towards the civil servants under the collective bargaining structure.[29] Numerous legislations were passed to restrict the Crown’s arbitrary exercise of power after 1849. But all of them suffered weaknesses due the colonial clutches.
After the Canadian independence in 1867, a new Act named the Civil Services Act 1868 was brought in.[30] The Act could not completely fulfil its purpose, as appointments were even then based on political patronage. Later in 1882 another Civil Service Act was brought in. It established a system called the Board of Civil Service Examiners, who examined the candidates and appointed them based on merit.[31] Even though the new Act made no much a difference, but at the least could prevent appointment of illiterates.
It was only in 1908, that a unified central recruitment system was established for the appointment of independent and efficient civil servants.[32] The Act of 1908 established a Commission solely for appointment of civil servant on the basis of competitive examinations. The World War I, disrupted the whole system. Finally, in 1917, then Prime Minister Borden took a genuine effort to completely reform the civil servant appointment system. As a consequence, The Act of 1918 was passed.[33]
Conclusion
The research has attempted to describe the doctrine of pleasure and its further development under few common law jurisdictions, in order to draw a comparative study between them. Further to analyse whether the present form of application in India adequate for the protection of civil servants.
The doctrine even though traces a common origin to British legal system. The development, since its origin was very diverse, in different countries. In UK, there is still remnants of the doctrine found in their statute. But other common law countries have expressly or impliedly disregarded the application of the doctrine. India is still holding on to the doctrine, even though the rule is subject to limitations.
After disregarding the application by the countries, different laws were framed to grant independence to their civil servants. But still in countries like US, the appoints are still made based on political partisan and those officers not in line with the political ideology, at different instances, were removed from office. Countries like Canada established a board or commission for ensuring appointment of neutral civil servants through centralised examinations.
In Australia there was a steady development. The doctrine was first replaced by the contractual terms of employment. The civil servants could claim their rights and privileges after referring to the terms of the contract. Further legislations were brought in to regulate the process and make the civil servants more independent. Canada on the other hand just after its independence, made attempts to regulate the procedure using a unified central appointing system. Thus, the rule laid down by the doctrine was always subject to reform. Indian law saw very little or no change after the adoption of the constitution. The power of the Crown is now transferred to the President or Government.
The Indian law intact with only few limitations on the executive’s power. The civil servants should always be promoted to take a neutral approach. Irrespective of the party in power, they should be allowed to take independent decisions for promotion of public good. Thus, in order to grant such independence, there should be a specific procedure laid down through a statute, to regulate appointment, removal, remuneration, etc. of civil servants.
End-Notes:
- Section 240, the Government of India Act, 1935
- Art. 310(1),
- Mathew, A. M. (2018) ‘Doctrine Of Pleasure Whether An Impediment To Governor’s Functioning’, International Journal of Legal Developments & Allied Issues, 4(5). Available at: http://ijldai.thelawbrigade.com/wpcontent/uploads/2018/09/Anne-Maria-Mathew.pdf
- Article 311 of Constitution of India
- Khem Chand vs. Union of India, (1987) 0 CALLT 56 HC
- State Of Bihar v. Abdul Majid, AIR 1954 245
- Parshotam Lal Dhingra v. Union of India, AIR 1958 SC 36
- Madhusudan Saharay, Adoption of Foreign Doctrines by the Supreme Court 308 (Eastern Law House, ed., 2011)
- [1895], A.C. 229.
- Dunn v. The Queen, [1896], 1 Q.B. 116.
- [1959] 1 W.L.R. 1046
- Shakti Mohan, Legislative Provisions Regarding Civil Servants After Independence And Their Relationship With Doctrine Of Pleasure, Indian Streams Research Journal.
- Siddharth Thapliyal, Poonam Rawat, Doctrine of Pleasure in major Common law Countries: Interpretation & Correlation, International Journal of Recent Technology and Engineering (IJRTE) ISSN: 2277-3878, Volume-8 Issue-2, July 2019.
- Section 193,
- Supra Note 13
- Art. II of Constitution of U.S.
- Ex parte Hennen, 38 U.S. (12 Pet.) 230 (1839)
- Tenure of Office Act of 1820
- Ibid
- Mark R. Joelson, Legal Problems in the Dismissal of Committees in the United States, Britain, and France, 12 AM. J. COMP. L. 149 (1963).
- Supra Note 13
- JAMES, S., 2005. Patronage Regimes and American Party Development from ‘The Age of Jackson’ to the Progressive Era. British Journal of Political Science, 36(1), pp.39-60.
- [1895], A.C. 229.
- Lucy v Commonwealth (1923) 33 CLR 229
- Press-files.anu.edu.au. 2021. Chapter 2. The Reshaping of Australian Public Service Employment Law. [online] Available at: http://press-files.anu.edu.au/downloads/press/p81291/mobile/ch02.html.
- Ibid
- Supra Note 13
- Dixon v Commonwealth [1981] FCA 80
- Supra Note 13
- R. M. Dawson, The civil service of Canada (London, 1929), Available at: http://faculty.marianopolis.edu/c.belanger/quebechistory/encyclopedia/Civilservice-CanadianHistory.htm
- Ibid
- Supra Note 13
- Romualdi, T., 2020. The State of The Canadian Appointment Process After Liberal Reforms. [online] Scholar.uwindsor.ca. Available at: https://scholar.uwindsor.ca/cgi/viewcontent.cgi?article=1145&context=major-papers