Drama at TN Raj Bhavan: How Governor's sacking of minister violated constitution

Tamil Nadu: Why did Tamil Nadu Governor R.N. Ravi dismiss and then restore the Minister of Dravida Munnetra Kazhagam government? This story goes revolves around press release number 40. It is the most controversial decision in Indian politics.

On June 29, the Raj Bhavan issued a Press Release. The governor dismissed the minister V Senthil Balaji.

Later the governor did a U-turn and put his decision on hold. Whether governor has sufficient legal grounds to warrant the complete withdrawal?

The governor said that Balaji was facing serious criminal proceedings in a number of cases of corruption including taking cash for jobs and money laundering.

The governor made a 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.

Reports said the governor has received inputs to substantiate his allegation. He, however, has not divulged them, let alone acknowledge that his office has received such inputs.

Now, look at the second aspect of the press release that 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.

What can IPC do?

The press release said that some more criminal cases against the ministers under the Prevention of Corruption Act and the Indian Penal Code are being investigated by the state police. Then it added: “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 a fair investigation that may eventually lead to the breakdown of the Constitutional machinery in the State.”

Reports from Chennai said it was totally based on the governor’s assumptions and apprehensions. It is despite the fact that the minister was 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”.

Can the phrase “breakdown of constitutional machinery” be used as a justification for the imposition of the President’s rule in a state under Article 356 of the Constitution? It means Governor Ravi has dismissed Balaji suggesting that he has saved the state from the possible imposition of the President’s rule.

Where is the ‘reasonable order’?

Earlier Governor gave five-page-long reasoning why he has sacked Minister Balaji.

“I am conscious of the fact that under ordinary circumstances, a governor acts on the aid and advice of the council of ministers. However, in the instant case of your advice or, to put it more appropriately, your insistence to retain V Senthil Balaji against my advice as a member of the council of ministers reflects your unhealthy bias., facing `serious criminal proceedings in a number of cases of corruption, including taking cash for jobs and money-laundering….There are reasonable apprehensions that the continuation of V Senthil Balaji as a minister will continue to obstruct the due process of law and disrupt the course of justice. Such a situation may eventually lead to the breakdown of the constitutional machinery in the state….Under such circumstances and the powers conferred to me under articles 154, 163, and 164 of the constitution, I hereby dismiss V Senthil Balaji from the Council of Ministers with immediate effect,” he said.

Then, the U-turn happens on Thursday night. Governor Ravi withdrew his earlier order to dismiss Balaji. The DMK had then said that the governor has no power to take such a decision while threatening legal action against him. On June 30, the media reported Ravi’s order dismissing Balaji from the Cabinet was placed under abeyance by the Raj Bhavan following the Union Home Ministry’s intervention. DMK's official organ Murasoli said Ravi’s dismissal directive was “put on hold within five hours as per the advisory of the Union Home Ministry.”

It was ‘late night development’. Tamil Nadu Governor RN Ravi withdrew his own order dismissing State Minister V Senthil Balaji from the Cabinet, apparently to consult legal experts, after he faced severe backlash from parties opposed to the BJP.

What does Constitution say?

The state executive is made up of the Governor, Chief Minister, Council of Ministers, and Advocate-General of State. Governor, as President, heads the state government. Article 153-167 in the Indian Constitution deal with the provisions related to the state governments of the country. Governor is a titular head or constitutional head and at the same time, he is the agent of the centre as the union government nominates Governor in each state.

This lesson about Constitution is this:

The Governor should know that, unlike elections of the President, there is no direct or indirect election for the post of Governor. The office of a governor is not a part of the union executive and is an independent constitutional office. The governor doesn’t serve the union government and neither is subordinate to it. The nomination of a governor by the Union and his appointment by the President in India is based on the Canadian model of government.

The Governor holds the office under the ‘pleasure’ of the President; his office has no fixed term. President can remove the Governor and the grounds upon which he may be removed are not laid down in the constitution. However, the Governor may also get transferred from one state to another by the President, or hold as in charge of two States also. He also can be reappointed and can be ‘removed’, though not specifically explained in the Constitution of India.

The Governor should also know, like the other Governors, has Executive Powers like:

• Every executive action that the state government takes, is to be taken in his name.

• How an order that has been taken up his name is to be authenticated, the rules for the same can be specified by the Governor.

• He may/may not make rules to simplify the transaction of the business of the state government.

• Chief Ministers and other ministers of the states are appointed by him.

• It is his responsibility to appoint Tribal Welfare Minister in the states of Chattisgarh, Jharkhand, Madhya Pradesh, and Odisha. (The Governor of TN is not included among these states)

• He appoints the advocate general of states and determines their remuneration.

• He appoints the following people: State Election Commissioner, Chairman and Members of the State Public Service Commission, and Vice-Chancellors of the universities in the state.

• He seeks information from the state government

• A constitutional emergency in the state is recommended to the President by him.

• The governor enjoys extensive executive powers as an agent of the President during the President’s rule in the state.

There are such many other powers of the Governor, which should be explained before they get instructions from the Home Minister of the Centre.

Let us see what SC says:

The Supreme Court gave the landmark judgment in Shamsher Singh &Anr vs State Of Punjab in 1974 which elaborated on the ‘discretionary’ powers of the President of India and the governors. The SC says:

“…the President and Governor, custodians of all executive and other powers under various Articles, shall, by virtue of these provisions, exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well-known exceptional situations”.

The ruling also enumerated these exceptions:

“a) the choice of Prime Minister (Chief Minister), restricted though this choice is by the paramount consideration that he should command a majority in the House;

b) the dismissal of a Government which has lost its majority in the House but refuses to quit office;

c) the dissolution of the House where an appeal to the country is necessary, although in this area the Head of State should avoid getting involved in politics and must be advised by his Prime Minister (Chief Minister) who will eventually take responsibility for the step”.

Simply put, the governor’s discretion can be exercised in cases where the governor has reasons to believe that the chief minister and his/her council of ministers have lost the confidence of the House, or when the government has lost its majority but refuses to quit office.