Governor cannot act unilaterally in dismissing minister without aid and advice of council of ministers: Legal experts

Legal experts on Friday voiced surprise at Tamil Nadu Governor R N Ravi’s unprecedented order unilaterally dismissing jailed minister V Senthil Balaji from the council of ministers, only to keep it in abeyance hours later amid mounting criticism.

In a sudden development on Thursday, the governor dismissed Balaji, who was recently arrested in an alleged cash-for-jobs scam, from the state council of ministers. However, under fire from the ruling DMK and other parties, he later informed Chief Minister MK Stalin that he wanted the order to be kept in abeyance and will seek legal opinion on the issue.

Former attorney general Mukul Rohatgi, commenting on the development, said, “Governor has no business to dismiss a minister unilaterally. He has exceeded his jurisdiction. How can he decide who should be in the cabinet and who should not be in the cabinet? He has to act on the aid and advice of the council of ministers.”

Senior advocate Ajit Sinha said it was not advisable for the governor to act unilaterally and sack a minister.

“It was not advisable for him to take a decision unilaterally. It is a settled law of the constitution bench of the Supreme Court in the 1994 (S R) Bommai case. At the most, he can suggest to the chief minister to take action against the minister but the governor has to act on aid and advice of the council of ministers. Ultimately, it is in the name of the governor that a decision to dismiss will be taken but he can’t act unilaterally,” Sinha said.

In March 1994, a nine-judge constitution bench of the apex court gave a landmark judgement in the S R Bommai case with respect to Article 356 and its arbitrary use by the central governments.

Another senior lawyer, who did not wish to be named, said a governor cannot act on his own in such matters after the 1974 verdict of the Supreme Court in the Shamsher Singh case.

“The Shamsher Singh case dealt with the power of the president and governor. In the western system of governance, the president and governor have no individual discretionary powers except very limited ones. Otherwise, he is bound entirely by the aid and advice of the council of ministers.

“He does not have independent power to remove a minister. Otherwise, the entire federal structure will fall because if the governor has this power, then tomorrow he can say he will dismiss the entire government,” he said.

In the SR Bommai case, which dealt with imposition of the President’s Rule under Article 356, the top court held, “The office of the Governor is a vital link and a channel of impartial and objective communication of the working of the Constitution by the State Government to the President of India. He is to ensure protection and sustenance of the constitutional process of the working of the Constitution in the State playing an impartial role.”

It had said the governor should play an important role, and in his dual undivided capacity as a head of the State, he should impartially assist the President.

“As a constitutional head of the State Government in times of constitutional crisis he should bring about sobriety,” the SC had said in its verdict.

In the 1974 case of Shamsher Singh versus State of Punjab which dealt with appointment of subordinate judges, the top court held, “We declare the law of this branch of our Constitution to be that 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 top court, in its 2020 verdict in Shivraj Singh Chouhan versus Speaker of Madhya Pradesh Assembly held, “The powers which have been entrusted to the Governor are, generally speaking, exercised on the basis of the aid and advice of the Council of Ministers in terms of the provisions of Article 163 (1).

It said Article 163(1) stipulates that the Council of Ministers with the chief minister as its head would aid and advise the governor in the exercise of his functions except where the Constitution requires the governor to exercise his functions or any of them at his discretion.

On Thursday, in an official release, the Tamil Nadu Raj Bhavan said, “There are reasonable apprehensions that the continuation of V Senthil Balaji in the Council of Ministers will adversely impact the due process of law, including fair investigation that may eventually lead to the breakdown of Constitutional machinery in the State.”

“Senthil Balaji is facing serious criminal proceedings in a number of cases of corruption, including taking cash for jobs and money laundering. Abusing his position as a minister, he has been influencing the investigation and obstructing the due process of law and justice,” the release said, adding “Under these circumstances, the Governor has dismissed Senthil Balaji from the Council of Ministers with immediate effect.”

Balaji is currently a minister without portfolio.

Following 47-year-old Balaji’s arrest on June 14, he was retained by the government as a minister without portfolio and the subjects held by him were allocated to Finance Minister Thangam Thennarasu (Electricity) and Housing Minister Muthusamy (Excise).

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The governor had initially returned the file related to reallocation of portfolios to the state government, but eventually he gave his consent to the proposal.

Balaji is currently in judicial custody in a criminal case being investigated by the ED. A few other criminal cases against him under the Prevention of Corruption Act and the IPC are being investigated by the state police.

After his arrest, Balaji had complained of chest pain and was admitted to a government hospital. Later, he underwent a bypass surgery at a private hospital.

On May 31, the governor had sent a letter to the chief minister asking him to drop Balaji from the Cabinet, and the very next day Stalin had given a detailed reply.

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