The press release number 40 issued by the Raj Bhavan in Chennai on Thursday, June 29, requires no serious constitutional analysis to conclude that the Tamil Nadu governor, R.N. Ravi, is egregiously wrong in his ‘dismissal’ of V. Senthil Balaji.
Senthil Balaji is a minister without portfolio in the Dravida Munnetra Kazhagam government. Reports that the governor has put on hold his decision indicate that Ravi may be mulling the possibility of using his dismissal as a Damocles’ sword over the M.K. Stalin government. There are sufficient legal grounds to warrant its complete withdrawal.
The press release begins with the observation that Balaji is facing serious criminal proceedings in a number of cases of corruption, including taking cash for jobs and money laundering.
The second sentence in the press release makes the huge unsubstantiated allegation that Balaji, abusing his position as a minister, has been influencing the investigation and obstructing the due process of law and justice.
If the governor has received any inputs which substantiates this allegation, he has not divulged them, let alone acknowledge that his office has received such inputs, which are required to be kept confidential at this stage.
The press release makes it appear as if Balaji has been found guilty of influencing the investigation and obstructing the due process of law and justice. However, the governor has not found it necessary to disclose which authority has found him guilty.
The press release acknowledges that Balaji is currently in judicial custody in a criminal case being investigated by the Enforcement Directorate. Had the governor questioned the propriety of the minister continuing without a portfolio in the DMK government, while being in judicial custody, it would have made sense, as justice should not merely be done in this case, but should be seen to be done as well.
But Ravi’s dismissal of Balaji without the aid and advice of the council of ministers, led by the chief minister, is not just unprecedented, but a remedy without constitutional legs to stand on.
The press release adds that some more criminal cases against him under the Prevention of Corruption Act and the Indian Penal Code are being investigated by the state police. Then it adds: “There are reasonable apprehensions that continuation of Thiru V. Senthil Balaji in the Council of Ministers will adversely impact the due process of law including fair investigation that may eventually lead to breakdown of the Constitutional machinery in the State”.
This sentence makes it clear that the governor merely acted on assumptions. The press release does not explain how the governor found these “apprehensions” reasonable, especially when Balaji is already in judicial custody.
The press release then makes another huge leap in its reasoning, by suggesting that these “reasonable apprehensions” “may eventually lead to breakdown of the constitutional machinery in the state”.
As any student of Indian constitution knows, the phrase “breakdown of constitutional machinery” is used as a justification for the imposition of President’s rule in a state under Article 356 of the constitution. Governor Ravi, by dismissing Balaji, appears to suggest that he has saved the state from possible imposition of President’s rule later.
It is not as if Ravi acknowledges that continuation of Balaji as a minister will inexorably lead to the breakdown of constitutional machinery in the state, inviting the imposition of President’s rule under Article 356. That the governor merely thinks that Balaji’s continuance as a Minister “may” eventually result in breakdown of constitutional machinery shows that the Raj Bhavan was only speculating, and had not found any substantial basis to conclude so.
That the governor cannot exercise his discretion under the constitution even if in order to prevent a remote possibility of a breakdown of constitutional machinery in the state is obvious. Besides, the phrase “breakdown of constitutional machinery” is not capable of yielding a precise definition which is likely to satisfy various stakeholders.
Governor Ravi has assumed – without a reasoned order – that his area of discretion extends to dismissal of a minister without the aid and advice of the council of ministers. This is completely antithetical to constitutional principles laid down by the Supreme Court in a number of cases.
In Nabam Rebia and Bamang Felix vs Deputy Speaker and others, the Supreme Court’s constitution bench examined the question of governor’s discretion in great detail. In this case, the question was raised as to whether the governor is authorised to act independently without the aid and advice of the chief minister and his council of ministers.
The constitution bench held that under Article 163(1) of the constitution, the governor can exercise only such functions in his own discretion which he is expressly required to, by or under the constitution. The bench concluded in this case that the governor can summon, prorogue and dissolve the house, only on the aid and advice of the council of ministers with the chief minister as the head. And not at his own.
The reason was that the framers of the constitution had altered their original contemplation, and consciously decided not to vest discretion with the governor, in the matter of summoning and dissolving the house, or houses, of the state legislature, by omitting sub-article (3).
In the context of Ravi’s dismissal of Balaji as a minister, it makes sense to ask whether such an exercise of discretion by the governor is legitimate, as the dismissal of ministers – without the aid and advice of the council of ministers – is not specifically mentioned in the constitution as one of the discretionary acts of the governor.
The bench was categorical in this case that the constitution has not given the governor arbitrary or imperial powers to decide what is or is not detrimental to the interests of the nation. The elected representatives are capable of taking that call, it held. The bench said that should such a remarkable situation arise, the governor would be obliged to report to the president, leaving it to her to decide on the next course of action.
Justice Madan B. Lokur, in his concurring judgment in this case, (the main judgment was pronounced by Justice J.S. Khehar) held that the ‘power’ apparently conferred on the governor must be read down to at least a ‘reasonable power’ to be exercised in accord and consonance with constitutional principles, law and the rules.
Justice Lokur held that the governor was obliged to adhere to and follow the constitutional principle, that is, to be bound by the advice of the council of ministers. In the event that advice was not available and a responsible government was not possible, the governor can resort to the “breakdown provisions” and leave it to the president to break the impasse.
Justice Lokur had added: “…[I]f the Governor chooses to ‘withdraw his pleasure’ in respect of a Minister he must exercise his discretion with the knowledge of the Chief Minister and not by keeping him in the dark or unilaterally”.