Madras High Court
S.Ramachandran vs 4 V.Senthil Balaji on 5 September, 2023
W.P.Nos.18823 of 2023 etc.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.09.2023
CORAM :
THE HON'BLE MR.SANJAY V.GANGAPURWALA, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE P.D.AUDIKESAVALU
W.P.Nos.18823, 18813, 20069 and 20129 of 2023
W.P.No.18823 of 2023:
S.RAMACHANDRAN .. Petitioner
Vs
1 THE STATE OF TAMIL NADU
REP. BY ITS CHIEF SECRETARY
SECRETARIAT, FORT ST. GEORGE
CHENNAI- 600 009.
2 THE PRINCIPAL SECRETARY TO
GOVERNOR OF TAMIL NADU
RAJ BHAVAN, SARDAR PATEL ROAD
GUINDY, CHENNAI - 600 022.
3 THE MINISTRY OF LAW AND JUSTICE
REP. BY ITS SECRETARY TO GOVT
4TH FLOOR, A-WING, SHASTRI BHAWAN
NEW DELHI-110 001.
4 V.SENTHIL BALAJI .. Respondents
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W.P.No.18813 of 2023:
M.L.RAVI .. Petitioner
Vs
1 THE PRINCIPAL SECRETARY TO GOVERNOR
GOVERNMENT OF TAMIL NADU
RAJ BHAVAN, GUINDY
CHENNAI - 600 032.
2 THE DIRECTOR
DEPARTMENT OF INFORMATION AND PUBLIC
RELATIONS GOVERNMENT OF TAMIL NADU
SECRETARIAT, FORT ST. GEORGE,
CHENNAI - 600 009.
3 THE PRINCIPAL SECRETARY TO GOVERNMENT
GOVERNMENT OF TAMIL NADU
(HOME SECRETARY), SECRETARIAT
FORT ST. GEORGE
CHENNAI- 600 009.
4 V.SENTHIL BALAJI .. Respondents
W.P.No.20069 of 2023:
DR.J.JAYAVARDHAN .. Petitioner
Vs
1 PRINCIPAL SECRETARY
GOVERNOR OF TAMIL NADU
RAJ BHAVAN, CHENNAI - 600 022.
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2 STATE OF TAMIL NADU
CHIEF SECRETARY
GOVERNMENT OF TAMIL NADU
ST.GEORGES FORT, CHENNAI-600 009.
3 PRINCIPAL SECRETARY
TAMIL NADU LEGISLATIVE ASSEMBLY
TAMIL NADU LEGISLATURE, SECRETARIAT
ST.GEORGES FORT
CHENNAI-600 009.
4 PRINCIPAL SECRETARY
PUBLIC DEPARTMENT
GOVERNMENT OF TAMIL NADU
ST.GEORGES FORT, CHENNAI-600 009.
5 SENTHIL BALAJI .. Respondents
W.P.No.20129 of 2023:
M.L.RAVI .. Petitioner
Vs
1 PRINCIPAL SECRETARY TO GOVERNOR
GOVERNMENT OF TAMIL NADU
RAJ BHAVAN, GUINDY
CHENNAI 600 022
2 THE SECRETARY TO GOVERNMENT
PUBLIC DEPARTMENT
GOVERNMENT OF TAMILNADU
SECRETARIAT, FORT ST. GEORGE
CHENNAI 600 009
3 V.SENTHIL BALAJI .. Respondents
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Prayer in W.P.No.18823 of 2023: Petition filed under Article 226 of
the Constitution of India seeking issuance of a writ of quo warranto
to be issued calling upon the respondents to answer under what
authority the respondent No.4 is holding the post of State Minister
and consequently remove the respondent No.4 from the post of
State Minister.
Prayer in W.P.No.18813 of 2023: Petition filed under Article 226 of
the Constitution of India seeking issuance of a writ of certiorari to
call for the entire records of the 2nd Respondent in Press Release
No. 1190 dated 16.06.2023 and quash the same in so far as it
relates to ordering continuance of the 4th respondent as Minister
without portfolio.
Prayer in W.P.No.20069 of 2023: Petition filed under Article 226 of
the Constitution of India seeking issuance of a writ of quo warranto
directed against the 5th respondent requiring him to show cause by
what authority he retains the Constitutional post of Minister of the
State of Tamil Nadu.
Prayer in W.P.No.20129 of 2023: Petition filed under Article 226 of
the Constitution of India seeking issuance of a writ of certiorari to
call for the entire records of the D.O. Letter No.0014/RBTN/2023,
dated 29.06.2023 issued by the Governor of Tamilnadu and quash
the same.
For the Petitioner in : Mr.S.Sheik Ismail
W.P.No.18823 of 2023
For the Petitioner in : Mr.Shakthivel
W.P.Nos.18813 and for Mr.T.Sivaganansambandan
20129 of 2023;
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For the Petitioner in : Mr.V.Raghavachari
W.P.No.20069 of 2023 Senior Counsel
for Mr.I.S.Inbadurai
For the Respondents 1, : Mr.R.Shunmugasundaram
2 and 4 in Advocate General
W.P.No.18823 of 2023; assisted by Mr.P.Muthukumar
Respondents 2 to 4 in State Government Pleader
W.P.No.18813 of 2023; and Ms.A.G.Shakeenaa
Respondents 2 to 5 in for respondents 1 and 2
W.P.No.20069 of 2023;
and Respondents 2 and
COMMON ORDER
(Order of the Court was made by the Hon'ble Chief Justice)
The primordial issues involved are qua the continuation of
V.Senthil Balaji as a Cabinet Minister of the State of Tamil Nadu
consequent to his arrest and as to whether a Minister could continue
in office without being assigned any responsibilities and duties, that
is without any portfolios, while in judicial custody.
2. The entire controversy triggered off as a sequel to the
action taken by the Enforcement Directorate pursuant to the
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direction given by the Apex Court in the judgment dated 16.5.2023
passed in SLP (Cri) No.12779 to 12781 of 2022, whereby the
Enforcement Directorate was directed to proceed with the case
registered against V.Senthil Balaji and conclude the investigation
within two months.
3. Pursuant to the aforesaid direction given by the Apex Court,
the Enforcement Directorate registered a case on 14.6.2023 under
Section 4 of the Prevention of Money Laundering Act, 2002 and
V.Senthil Balaji was arrested by the Enforcement Directorate on
14.6.2023.
4. Consequent thereto, the Governor of Tamil Nadu issued an
order dated 17.6.2023 notifying the re-allocation of portfolio of
V.Senthil Balaji upon the recommendation and advice of the Chief
Minister and took serious objections to his continuance as a Minister
without portfolio. On 29.6.2023, the Governor addressed a letter
dismissing V.Senthil Balaji from the Council of Ministers and
observed that his continuation will not only lead to obstruction of
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due process of law and disrupt the course of justice, but also would
lead to breakdown of the Constitutional machinery in the State. The
said letter was kept in abeyance on the same day by the Governor,
awaiting the opinion of the Attorney General for India.
5. It is in this aforesaid background that the petitioners have
filed these writ petitions.
6.1. Mr.V.Raghavachari, learned Senior Counsel appearing on
behalf of the petitioner in W.P.No.20069 of 2023, who had prayed
for issuance of a quo-warranto, submits that though V.Senthil Balaji
does not completely suffer a disqualification as a Member of
Legislative Assembly under the Representation of People Act, 1951
(for brevity, hereinafter referred to as, “the Act of 1951”), he has
virtually forfeited his office as a Minister on account of being
arrested and detained in prison, or in other words by being in
judicial custody. As V.Senthil Balaji is in the judicial custody, he
has disabled himself from performing the duties and responsibilities
of being a public servant and, as such, he ought not to continue as
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a Minister, more so when the Governor has expressed his
displeasure in the continuation of V.Senthil Balaji as a Minister citing
moral turpitude.
6.2. It is further submitted that the Constitutional function of
the Council of Ministers headed by the Chief Minister is to aid and
advise the Governor in the exercise of his functions, however, if
there is a Constitutional breach or deviant behaviour of those in
public office, the Governor can act in his own discretion. This
discretionary power of the Governor emanates from the various
salutary principles laid down by the Apex Court in the case of Manoj
Narula v. Union of India1, wherein the very first question framed for
opinion was whether a person having criminal background and/or
charged with an offence involving moral turpitude be appointed as a
Minister in the State or Central Government. He submitted that,
while answering the issue, the Constitution Bench had made it clear
that Constitutional morality, good governance and Constitutional
trust are the basic norms for holding a public office.
1 (2014) 9 SCC 1
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6.3. Emphasizing the significance of first basic norm for
holding a public office, i.e., Constitutional morality, learned Senior
Counsel submitted that, basically, it means to go down to the norms
of the Constitution and not to act in a manner which is violative of
the rule of law or arbitrary. To fortify the said submission, reliance
was placed on the decisions of the Apex Court in B.R. Kapur vs.
State of T.N.2 and Manoj Narula (supra).
6.4. Apropos the second basic norm, i.e., good governance,
learned Senior Counsel submitted that good governance requires
the Government to rise above narrow private interests or parochial
political outlook and aim at doing good for the larger public interest.
The faith of the people is the root of the idea of good governance
which means reverence for citizenry rights and respect for
fundamental and statutory rights and deference for unwritten
Constitutional values, veneration for institutional integrity and
inculcation of accountability to the collective at large.
2 (2001) 7 SCC 231
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6.5. Qua the third basic norm, i.e., Constitutional Trust,
learned Senior Counsel submitted that the choice of a Minister is left
to the good sense of the Prime Minister or the Chief Minister, as the
case may be. Drawing our attention to the observation made by
H.M.Seervai in Constitutional Law of India (Vol.24th Edn. Page
No.2060), wherein it is observed that "If the constitution is to be
successfully worked, an attempt must be made to improve the
political atmosphere and to lay down and enforce standards of
conduct, required for the successful working of the constitution", he
submitted that a Minister, accused of a financial scandal, should not
be permitted to continue in public office, as he forfeits his right to
occupy a public office that demands a high degree of morality. He
added that the presumption of innocence pending a criminal case
has a different connotation when it comes to accusation as against a
person aspiring to be a Minister and such presumption of innocence
in criminal jurisprudence has no relevance in the light of the
emphatic observation made by the Apex Court in the case of Manoj
Narula (supra).
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6.6. Pointing out the view expressed in the concurring
judgment of Hon'ble Justice Kurian Joseph in the case of Manoj
Narula (supra), learned Senior Counsel argued that the Courts are
designated with a duty to protect and safeguard the conscience of
the Constitution of India. Right or Wrong, for Court is not in the
ethical sense of morality but in the Constitutional Sense of morality.
It is also submitted that the Apex Court in the case of Manoj Narula
(supra), while dealing with persons in conflict with laws has
observed that there is "No quarrel under criminal jurisprudence, a
person is presumed to be innocent until he is convicted but is there
not a stage where a person is presumed to be culpable and hence
called upon to face trial on the court framing charges".
6.7. He hastened to add that, in the present factual matrix,
V.Senthil Balaji has suffered a legal disqualification as has been held
in the aforesaid judgment of the Apex Court.
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6.8. Learned Senior Counsel, relying on the case of Manoj
Narula (supra), further submitted that the Supreme Court vests the
power on the Courts to indicate the Constitutional ethos, good
governance and purity in administration and constantly reminds the
Constitutional functionaries to preserve, protect and promote the
same.
6.9. Referring to the judgment of the Apex Court in the case
of Y.Balaji v. Karthik Dasari3, he submitted that the Apex Court had
indicted V.Senthil Balaji and had expressed surprise as to why the
Enforcement Directorate should have "adopted an ostrich like
approach, without trying to find out where and whom the huge
money generated in the scam had gone is something unheard of"
(Paragraph 109 of SLP Cri 12779 & 12781 of 2022). The Apex Court
had invoked the provisions of the Prevention of Corruption Act,
1988 and directed the State to complete investigation within a
period of two months. Therefore, there exists sufficient material
against V.Senthil Balaji to face a criminal trial. He submitted that
3 [SLP (Cri) 12779 and 12781 of 2022]
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the observations made by the Apex Court would imply that
witnesses were tampered and the prosecution had been derailed at
the behest of men in power. The continuation of V.Senthil Balaji as
a Minister would render the apprehension expressed by the
Supreme Court to be true.
6.10. It is further submitted that V.Senthil Balaji, by his own
conduct, has disabled himself from continuing as a Minister. For
instance, the Minister sitting in prison cannot ask the Secretary of
the State to get the files concerning any of the Departments without
breaching the oath of office. To be a Minister the provisions of
Articles 163 and 164 of the Constitution of India need to be adhered
strictly. It is not just the provisions of the Constitution that ought to
be looked into for governance, but the manner in which the Articles
are interpreted by the Apex Court and various High Courts.
6.11. It is argued that the Constitution of India offers great
privileges and imposes onerous duties and responsibilities on the
Minister in comparison to that of an elected Legislative Member. The
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Minister is a part of the executive functions of the State, apart from
being a Legislator, and shares information concerning the
sovereignty of the State and its administration. V.Senthil Balaji does
not satisfy most of the limbs of Article 164 of the Constitution of
India. V.Senthil Balaji does not satisfy the above owing to his
incarceration, which disqualifies him from continuing as a Minister.
It is placed on record that his role/right to continue as a MLA is not
questioned. The argument of the respondents that every MLA is
eligible to be a Minister is misconceived. Eligibility is different from
suitability. Not all eligible men are suitable to don the Constitutional
post of a Minister.
6.12. To fortify the said plea, reliance is placed on the
judgment of the Apex Court in the case of N.Kannadasan v. Ajoy
Khose and another4. In the said decision, the Apex Court reiterated
while highlighting the importance of the independence and
impartiality of Judiciary as the basic feature of the Constitution, held
that a quo-warranto could be issued in cases of non-user, neglect,
4 (2009) 7 SCC 1
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misuse or abuse of office and resultantly, the holder forfeits his
right to occupy a public office.
6.13. Relying on the decision of a Constitution Bench of the
Apex Court in B.R.Kapur (supra), more particularly paragraph (92),
learned Senior Counsel submits that the present writ petition is
maintainable and it is for V.Senthil Balaji to establish on what
authority he continues to hold office.
6.14. It is vehemently submitted that a Minister cannot
survive without a portfolio. Pointing out Rules 4 and 5 of the Tamil
Nadu Business Rules and Secretariat Instructions, which speak of
the role of a Minister, he submitted that Schedule 1 specifically
assigns portfolio/portfolios to Minister or Ministers. A harmonious
reading of the Statutory Rules 4 and 5 with Schedule 1 would dawn
to the irresistible conclusion that a Minister cannot survive without a
portfolio.
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6.15. Referring to the judgment of the Apex Court in the case
of M.Karunanidhi vs. Union of India5, he submitted that there are
three facts that are of relevance in deciding whether there could be
a Minister without portfolio charging the exchequer, viz., (i) that a
Minister is appointed or dismissed by the Governor and is therefore,
subordinate to him, whatever be the nature and status of his
Constitutional function; (ii) that a Chief Minister or a Minister gets
salary from the public for the public work done or the public duty
performed by him; and (iii) that the said salary is paid to the Chief
Minister or the Minister from the Government funds.
6.16. He further submitted that Article 164(5) of the
Constitution of India clearly elucidates the salary and other
allowances payable to a Minister. There would be no justification for
a person to unjustly enrich himself from the State exchequer, while
occupying a public office without performing any duty attached to
the office he holds. Sitting in jail, he is incapable of transacting any
business that the law enjoins upon him and if he is allowed to do so,
5 (1979) 3 SCC 431
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any material, irrespective of its secretive nature, would have to be
scanned thoroughly by the prison authorities before it reaches the
hands of V.Senthil Balaji, and such an act would amount to direct
breach of the oath of secrecy administered to V.Senthil Balaji under
the Third Schedule of the Constitution of India.
6.17. It is added that Rules 31 (1), (3) and 38 of the Tamil
Nadu Business Rules and Secretariat Instructions empowers a
Minister to call for files from any Department of the Cabinet,
irrespective of the portfolio assigned to him. V.Senthil Balaji, by
virtue of being designated as a Minister, would be well within his
Rights to demand for the investigation files, wherein, he has been
cited as an accused by the State. Such a situation is against the
ethos of criminal jurisprudence. In support of the said submission,
reference is made to the decision of the Apex Court in the case of
M.P.Special Police Establishment v. State of Madhya Pradesh and
others6.
6 (2004) 8 SCC 788
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6.18. Learned Senior Counsel, on the basis of the aforesaid
submissions, prayed for issuance of a quo-warranto, forbearing
V.Senthil Balaji from being a Minister in the Cabinet in the State of
Tamil Nadu.
7.1. Mr.S.Sheik Ismail, learned counsel for the petitioner in
W.P.No.18823 of 2023, submitted that the appointment of V.Senthil
Balaji as a Minister is under Article 164(1) of the Constitution of
India. Though the appointment of a Minister is based on the aid and
advice of a Chief Minister, the continuance of a Minister in office is
purely based on the pleasure of the Governor and as such, V.Senthil
Balaji is not entitled to remain in his office against basic Constitutional
Principles. However, the State of Tamil Nadu had merely sought a
change of portfolio on medical grounds and not on the ground that the
concerned Minister is in judicial custody and is not in a position to
carry out his official functions.
7.2. It is submitted that when the Governor of State has in
express terms notified on 17.6.2023 that the Governor does not agree
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with the continuance of V.Senthil Balaji as a Minister without any
portfolio, V.Senthil Balaji ought to have been removed from the
Council of Ministers with immediate effect, as V.Senthil Balaji has lost
the pleasure of the Governor.
7.3. It is further submitted that the Governor addressed a
detailed letter on 29.6.2023 to the Chief Minister, dismissing V.Senthil
Balaji from the Council of Ministers, taking strong objections to the
manner in which the Chief Minister had requested re-allocation of
portfolios due to the ill-health of V.Senthil Balaji and had completely
failed to mention about the pending criminal cases against V.Senthil
Balaji. The Governor had categorically observed in his letter dated
29.06.2023 that the continuation of V.Senthil Balaji will not only lead
to obstruction of due process of law and disrupt the course of justice,
but also lead to breakdown of the Constitutional machinery in the
State. The letter dated 29.06.2023 issued by the Governor is sufficient
to establish that V.Senthil Balaji has lost the pleasure and confidence
of the Governor within the meaning of Article 164 of Constitution and
therefore, has no authority to continue as a Minister. The fact that the
earlier letter dated 29.06.2023 has been kept in abeyance does not
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change the fact that the Governor has lost confidence in V.Senthil
Balaji. The order of dismissal was kept in abeyance only awaiting the
opinion from the Attorney General and the same in no way changes
the stand that the Governor has lost confidence in V.Senthil Balaji to
continue as a Minister.
7.4. It is also contended that the continuation of V.Senthil Balaji
as a Minister is against the Constitutional values and is clearly
immoral. There is a strong likelihood that the entire State machinery
would be utilised for the protection and service of V.Senthil Balaji, who
is an accused undergoing investigation and trial relating to offences of
moral turpitude.
7.5. It is submitted that, under Article 164 of the Constitution
of India, appointment of a Minister is by the Governor and his
continuance is also based on the pleasure of the Governor. When
such is the case, V.Senthil Balaji, being a Minister, is undoubtedly
subordinate to the Governor and ought to vacate the office when
the Governor expresses displeasure over the continuance of
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V.Senthil Balaji as a Minister. When V.Senthil Balaji has been
administered the oath of office by the Governor and appointed as a
Minister under Article 164, the power of a Governor under Article
164 of the Constitution includes the power to dismiss a Minister at
his discretion and as such, there cannot be any restriction or fetters
upon such power being exercised by the Governor. There is no
limitation or condition to the pleasure of the Governor prescribed by
Article 164(1) and therefore, the right of the Governor to withdraw
the pleasure, during which the Ministers hold office, is absolute and
unrestricted. While the appointment of a Minister is with the advice
of the Chief Minister, the Governor has the authority to remove a
person as a Minister. To buttress the said argument, reliance is
placed on the decisions of the Apex Court in Emperor v. Sibnath
Banerji7, and Rao Shiv Bahadur Singh v. State of Vindhya Pradesh8.
7.6. Learned counsel placed heavy reliance on a decision of
the Bombay High Court in the case of Namdeo Kashinath Aher v.
7 AIR 1945 PC 156
8 (1953) 2 SCC 111
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H.G. Vartak9 and a decision of the Punjab and Haryana High Court
in the case of S.Tara Singh v. Director Consolidation of Holdings,
Punjab10, to contend that it is open to a Governor under the
Constitution to dismiss an individual Minister at his pleasure.
7.7. The position of law adumbrated above was subsequently
confirmed by the Supreme Court in the case of M.Karunanidhi
(supra) to the effect that a Minister is appointed or dismissed by the
Governor and is, therefore, subordinate to him whatever be the
nature and status of his Constitutional functions.
7.8. It is further submitted that the inaction by the respondents
in removal of V.Senthil Balaji from the post of Minister and retaining
him in the Cabinet as a Minister without portfolio is a gross example of
the issue of criminalization of politics; and merits interference by this
Court, particularly in view of the observation of the Supreme Court in
relation to the investigation in the present case. The act of V.Senthil
Balaji is in breach of Clauses 1(a) and 4.1.(a) pertaining to disclosure
9 AIR 1970 Bom 385, 388
10 AIR 1958 Punj 302
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of assets, income and acceptance of gifts/consideration from those
whom he may have official dealings with.
7.9. Drawing the attention of the Court to the decision of the
Apex Court in PUCL v. Union of India11, wherein it was held that
disclosure of antecedents makes the election a fair one and the
exercise of the right of voting by the electorate also gets sanctified, it
is submitted that such a right is paramount for democracy.
7.10. It is submitted that the investigation in the offences
against V.Senthil Balaji, prima facie, discloses that V.Senthil Balaji has
assets beyond his disclosed means and there has been recovery of
proceeds of crime, indicating breaches of the Code of Conduct of
Ministers. Therefore, V.Senthil Balaji has no authority whatsoever to
remain in office as a Member of the Council of Ministers, when he has
been remanded to judicial custody for the offences committed under
the Prevention of Money Laundering Act, 2022 and such offences
relate to "moral turpitude".
11 (2013) 10 SCC 1
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7.11. Learned counsel for the petitioner vociferously argued that
those who break the law should not make the law. Persons with
criminal backgrounds should not enter the legislature, which is a
powerful wing/element of governance, and pollute it. As such, as a
natural consequence, they cannot be Ministers. It is undoubtedly clear
that the respondents are duty-bound to ensure "purity in governance".
He placed much emphasis on the judgment of the Apex Court in Public
Interest Foundation & Ors. v. Union of India12. In this regard, reliance
was also placed on the 246th Law Commission Report and the
observations of the Apex Court in the case of Manoj Narula (supra),
which were elaborately referred by Mr.V.Raghavachari, learned
Senior Counsel, were reiterated.
7.12. Learned counsel relied on a judgment in the case of
K.Prabhakaran v. P.Jayaraman13, in support of his submission that
those who break the law should not make the law and the purpose
sought to be achieved by enacting disqualification on conviction for
certain offences is to prevent persons with criminal background
12 (2019) 3 SCC 224
13 (2005) 1 SCC 754
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from entering into politics and the House – a powerful wing of
governance.
7.13. Concluding his arguments, learned counsel referred to a
judgment of the Delhi High Court in Dr.Nand Kishore Garg v.
Government of NCT of Delhi and others [W.P.(C) No.10207 of 2022,
dated 27.7.2022], wherein it is emphatically held that while it is not
for the Court to issue directions to the Chief Minister, it is the duty
of the Court to remind these key duty holders about their role to
uphold the tenets of the Constitution.
8.1. Mr.K.Sakthivel, learned counsel for the petitioner in
W.P.Nos.18813 and 20129 of 2023, submitted that the Governor
has no power of review or modification of his orders and, therefore,
the action of keeping his order in abeyance is ultra vires the
Constitution of India. The Governor, being an independent
Constitutional Authority, should not have acted at the instance of
the Union Minister for Home Affairs and, therefore, his action is
unconstitutional, ultra vires and is an arbitrary exercise of power.
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8.2. It is further submitted that whenever the action of the
Governor is mala fide, arbitrary and ultra vires, the immunity
granted under Article 361 of the Constitution of India does not
prevent the Constitutional Courts to review the action of the
Governor and quash the same. The only restriction contemplated is
that the Governor cannot be made as a party to any of the
proceedings questioning his action and/or his inaction. To bolster
his argument, he placed reliance on the judgment of the Apex Court
in Rameshwar Prasad and others v. Union of India14, wherein it was
held that the immunity granted to the Governor does not affect the
power of the Court to judicially scrutinise the actions of the
Governor on the ground of mala fides or it being ultra vires. For the
very same proposition, the judgments in the case of B.P.Singhal v.
Union of India and another15; and State of Rajasthan and others v.
Union of India16 have been relied upon.
14 (2006) 2 SCC 1
15 (2010) 6 SCC 331
16 (1997) 3 SCC 592
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8.3. It is further submitted that the Governor has got
discretionary power in the matter of removal of a Minister, as the
Minister holds office during the pleasure of the Governor. Though
the Governor is not expected to assign any reasons, it is expected
that the Governor assigns reasons for the removal or withdrawal of
pleasure. In effect, it is contended that the Governor has powers to
remove a Minister. In support of the said submission, reliance is
placed on the decisions in M.P.Special Police Establishment,
B.P.Singhal and B.R.Kapur (supra).
8.4. It is submitted that the Governor, by letter dated
29.6.2023, dismissed V.Senthil Balaji from the Council of Ministers
with immediate effect on the apprehension that his continuation
would continue to obstruct the due process of law and disturb the
course of justice which might eventually lead to breakdown of the
Constitutional machinery in the State. The action of the Governor
has to be interpreted in the context of existence of an extraordinary
situation necessitating removal of V.Senthil Balaji exercising the
power under Article 164 of the Constitution of India and therefore,
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the action of the Governor in removing V.Senthil Balaji is well within
the Constitutional limitations.
8.5. Anent the power of the Governor to review, revisit,
modify or keep his orders in abeyance, it is submitted that the
Governor does not have such power, as neither the Constitution has
inherently provided the same, nor the same can be inferred by
necessary implication. To strengthen his argument, he placed
reliance on the judgment of the Apex Court in Dr.Kashinath
G. Jalmi and another v. The Speaker and others17; besides the
judgment of the Bombay High Court in Shirish Q. Kamat v. Union of
India18.
8.6. It is further submitted that the letter of the Governor
keeping the order of removal of V.Senthil Balaji in abeyance is
arbitrary and ultra vires the Constitution and deserves to be
quashed, inasmuch as having taken a decision, the Governor is not
expected to revisit the same by seeking the advice from the
17 (1993) 2 SCC 703
18 CDJ 2022 BHC 193
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Attorney General. If such a situation is accepted, the orders of the
Governor shall not have any finality resulting in confusion and
destabilisation of the Constitutional machinery. That apart, the
Governor admits of discussing with the Union Home Minister
subsequent to the order of removal and such an exercise is
arbitrary. In this regard, reference has been made to the judgment
of the Apex Court in the case of Hargovind Pant v. Dr. Raghukul
Tilak and others19.
9.1. Refuting the arguments advanced by learned Senior
Counsel and learned counsel for the petitioners,
Mr.R.Shunmugasundaram, learned Advocate General submitted that
the Governor cannot dismiss a Minister using his discretion. The
Draft Constitution had a provision to remove a Minister, which was
omitted by the Constituent Assembly after debate. In support of the
said submission, reliance is placed on the judgments of the Apex
Court in Shamsher Singh v. State of Punjab20 and Manoj Narula
(supra).
19 (1979) 3 SCC 458
20 (1974) 2 SCC 831
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9.2. It is contended that the 'pleasure' can be withdrawn by
the Governor only on the aid and advice of the Chief Minister and
not on the personal satisfaction of the Governor. It is added that
even while exercising discretion under Article 200 of the
Constitution of India, the Governor cannot exercise his executive
functions personally. Referring to the judgment in the case of
Nabam Rebia and Bamang Felix v. The Deputy Speaker, Arunachal
Pradesh Legislative Assembly21, it is contended that for 'withdrawal
of pleasure' in respect of a Minister, the Governor must exercise his
discretion with the knowledge of the Chief Minister and not by
keeping him in the dark or unilaterally.
9.3. Referring to the judgment of the Apex Court in the case
of Nabam Rebia (supra), it is further submitted that the argument
that a Governor has the freedom to determine when and in which
situation he should take a decision in his own discretion without the
aid and advice of the Chief Minister and his Council of Ministers, was
rejected.
21 (2016) 8 SCC 1
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9.4. Alluding to the judgment in Manoj Narula (supra), it is
further submitted that it is not for the Court to issue any directions
to the Prime Minister or the Chief Minister, as the case may be, as
to the manner in which they should exercise their power and that is
the Constitutional prerogative of those functionaries who are called
upon to preserve, protect and defend the Constitution. In support of
his plea qua the prerogative of the Chief Minister, learned Advocate
General also referred to the decision in F.Ghouse Muhiddeen v.
Government of India22.
9.5. In support of his submission that a duly elected
representative of the people can only be removed through the
process of law connected with the Constitution irrespective of the
fact, howsoever, his act may be immoralistic or unethical, heavy
reliance has been placed on the decision of the Andhra Pradesh
High Court in Y.S.Rajasekara Reddy and others v. Sri Nara
Chandrababu Naidu and others23.
22 (2002) 3 LW 136
23 AIR 2000 AP 142
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9.6. It is further submitted that the remuneration of a Member
of Legislative Assembly is Rs.1,05,000/- per month, whereas the
remuneration of a Minister is Rs.80,000/- and allowances.
Therefore, a Minister does not receive any extra or more
remuneration than a MLA as contended by the petitioners, as such,
as an extra burden on the public exchequer.
9.7. Relying upon the decisions in (i) F.Ghouse Muhiddeen
(supra); (ii) K.R.Ramaswamy alias Traffic Ramaswamy v. The
State24; (iii) Ramachandran v. M.G.Ramachandran and others25; and
(iv) Y.S.Rajasekara Reddy (supra), it is submitted that a writ of
quo-warranto for removing a Minister is not maintainable. He
further submitted that to issue a quo-warranto, V.Senthil Balaji
must first be declared as not qualified to hold office in the light of
the proposition expounded by the Apex Court in Keisham
Meghachandra Singh v. Hon'ble Speaker, Manipur Legislative
Assembly and others26.
24 2012 2 CTC 481
25 (1987) 100 LW 178
26 2020 SCC OnLine SC 55
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10.1. In replication, it is submitted by Mr.K.Sakthivel, learned
counsel for the petitioner that the Constitutional Courts are the
ultimate interpreters of the Constitution and they are assigned the
delicate task of determining what is the power conferred on each
branch of Government and whether it is limited and, if so, what are
the limitations. Therefore, the argument of learned Advocate
General that matters under Article 164 of the Constitution of India
are outside the scope of Article 226 of the Constitution of India is
not justifiable in the light of the law enunciated by the Supreme
Court in the State of Rajasthan; Rameshwar Prasad; and B.R.Kapur
(supra).
10.2. Refuting the argument of learned Advocate General that
in case the Governor chooses to 'withdraw the pleasure' in respect
of a Minister, he must exercise his discretion with the knowledge of
the Chief Minister, it is submitted that the Governor kept the Chief
Minister informed of his 'displeasure' about V.Senthil Balaji
continuing as a Minister and therefore, the Governor acted in
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conformity with the proposition laid down in the case of Nabam
Rebia (supra).
10.3. Lastly, it is submitted that though the Governor has
acted within his Constitutional limitations by assigning reasons for
the termination of V.Senthil Balaji from the Council of Ministers, the
subsequent act of keeping the said order in abeyance deserves to
be quashed as arbitrary and ultra vires the Constitution.
11. We have heard learned counsel on either side and
pondered over the submissions made in the light of the facts on
record and the constitutional framework.
12. In the State of Tamil Nadu, the Legislature shall consist of
the Governor and the two Houses viz., the Legislative Council and
the Legislative Assembly as provided under Article 168 of the
Constitution of India. The composition of the Legislative Assembly is
provided under Article 170 of the Constitution of India and the
composition of the Legislative Counsel is provided under Article 171
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of the Constitution of India. The qualification for Membership of the
State Legislature is prescribed under Article 173 of the Constitution,
which provides that the person shall not be qualified to be chosen to
fill a seat in the Legislature of a State unless he (a) is a citizen of
India and makes and subscribes before some person authorised in
that behalf by the Election Commission an oath or affirmation
according to the form set out for the purpose in the Third Schedule;
(b) is, in the case of a seat in the Legislative Assembly, not less
than twenty-five years of age and in the case of a seat in the
Legislative Council, not less than thirty years of age; and
(c) possess such other qualifications as may be prescribed in that
behalf by or under any law made by Parliament.
13. Section 5 r/w Section 6 of the Act of 1951 provides that “a
person shall not be qualified to be chosen to fill a seat in the
Legislative Council of a State to be filled by election unless he is an
elector for any Assembly Constituency in that State”. Section 8 of
the Act of 1951 provides for disqualification on conviction for certain
offences. Section 8(1) provides for disqualification on the ground for
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corrupt practices. A person found guilty of corrupt practices by the
order under Section 99 of the Act of 1951 would incur
disqualification. Other grounds for disqualification are provided
under Section 9 to Section 11(1) of the Act of 1951. The
Constitution of India nor the Act of 1951 provides for
disqualification of a Minister from the State Legislative Assembly
and/or Council, than the one providing for being a Member of the
Legislative Assembly and/or the Council.
14. The petitioners could not point out any provisions either in
the Constitution of India nor the Act of 1951, which dis-entitles the
person in custody or against whom chargesheet has been filed
from being a Member of the Legislative Assembly/Council and/or a
Minister of the State Legislature. The petitioners' contention is more
on the morality of a person, who is under custody and against
whom chargesheet has been filed, to continue as a Minister and that
too, as a Minister without portfolio.
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15. In the instant case, the Governor of the State of Tamil
Nadu has passed an order communicating that V.Senthil Balaji is
removed as a Minister, but subsequently, on the very same day,
kept the same in abeyance.
16. Much emphasis was placed by Mr.S.Sheik Ismail and
Mr.Shakthivel, learned counsel for the respective petitioners that
the Governor does not have powers to review. It needs to be
considered that the Court cannot issue notice to the Governor. The
same is well settled in the case of Rameshwar Prasad (supra). More
over, the Governor was acting in his executive capacity and not
under any statutory provisions to contend that the statute should
prescribe powers for review for the authority to exercise it. The
argument that the power of review does not exists would be
available in case the power under the statute or regulations are
being exercised. The Governor was acting in his executive capacity,
as such, it would be no gainsaying that he has no power of review.
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17. In the case of B.R. Kapur (supra), appointment of a
person as a Chief Minister was a clear infringement of the
Constitutional Provision and in that circumstance, the Apex Court
observed that a writ of quo-warranto must be issued. However, in
the present case, as observed above, no such disqualification, either
in the Constitution of India or under the Act of 1951 is pointed out.
18. Reliance on the case of N.Kannadasan (supra) may not
enure to the benefit of the petitioners. In the said case, an
Additional Judge was found by the Collegium of the Supreme Court
to be ineligible for appointment as a Permanent Judge or
reappointment as an Additional Judge. In that premises, it is held
that he is not eligible to be recommended for the appointment as
the President of State Commission.
19. In the case of M.Karunanidhi (supra), the Court was
dealing with the aspect of repugnancy between the Tamil Nadu
Public Men (Criminal Misconduct) Act, 1973, the Prevention of
Corruption Act, 1988 and the Criminal Law (Amendment) Act, 1952.
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In the said case, the Apex Court had observed that a Minister is
appointed or dismissed by the Governor and is therefore,
subordinate to him and the salary is paid to the Chief Minister or a
Minister from the Government funds. The Apex Court in paragraph
49 of the said case held that, “We are not at all concerned in the
instant case as to the circumstances under which the Governor can
appoint or dismiss the Chief Minister”.
20. In the case of M.P.Special Police Establishment (supra),
the Apex Court was dealing with the grant of sanction for
prosecution of Ministers. In the said case, sanction was applied for
from the Ministers for prosecuting the two Ministers. The Council of
Ministers held that there was no iota of material available against
both the Ministers. The Council of Ministers refused sanction on the
ground that no prima facie case has been made out. The Governor
opined that the available documents and facts were enough to show
that prima facie case for prosecution had been made out. The
Governor, accordingly, granted sanction for prosecution under
Section 197 of the Criminal Procedure Code. The Apex Court in the
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facts of the case observed that, “the normal rule is that the
Governor acts on the aid and advice of the Council of Ministers and
not independently or contrary to it. But, there are exceptions under
which the Governor can act in his own discretion”. As discussed
above, it appears that the Governor can act in his own discretion, or
where bias is inherent and/or manifest in the advice of the Council
of Ministers or on those rare occasions where on facts the bias
become apparent and/or the decision of the Council of Ministers is
shown to be irrational and based on non-consideration of relevant
factors.
21. In the case of Public Interest Foundation (supra), the Apex
Court had observed that, “Though criminalisation of politics is a
bitter truth, Court cannot usurp power which it does not have”. The
Apex Court in the said case has further held as follows:
“The Constitutional functionaries, who have taken
the pledge to uphold the Constitutional Principles,
are charged with the responsibility to ensure that
the existing political framework does not get
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tainted with the evil of corruption. However,
despite this heavy mandate prescribed by our
Constitution, our Indian Democracy, which is the
world's largest Democracy, has seen a steady
increase in the level of criminalisation that has
been creeping into Indian polity. This unsettlingly
increasing trend of criminalisation of politics, to
which our Country has been a witness, tends to
disrupt the Constitutional ethos and strikes at the
very root of our democratic form of Government”.
The Apex Court further held that, “Still then no disqualification for
membership can be laid down by the Court beyond Articles 102(a)
to (d) and the law made by Parliament under Article 102(e)”.
22. In the case of K.Prabhakaran (supra), the Apex Court was
considering the date from which disqualification is incurred by an
elected representative as per the provisions of the Representative of
People Act, 1951.
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23. In the case of Dr.Nand Kishore Garg (supra), it was
observed that, “it is not for the Court to issue directions to the Chief
Minister, it is the duty of the Court to remind these key duty holders
about their role with regard to uphold the tenets of our Constitution”.
24. In the case of Rameshwar Prasad (supra), relied on by the
petitioners, the Apex Court was dealing with the invocation of power
under Article 356 of the Constitution, where the dissolution of the
Bihar Legislative Assembly was ordered under the Presidential
Proclamation dated 23.05.2005 It was observed in the facts of the said
case that even if the principle of limited judicial review is applied, such
proclamation cannot stand judicial scrutiny, as the satisfaction was
based on only extraneous and irrelevant grounds.
25. In the case of B.P.Singhal (supra), the Apex Court held that,
“a Governor cannot be removed on grounds: (1) that he is out of sync
with policies and ideologies of Union Government or party in power at
the Centre, or (2) that Union Government or party in power at Centre
has lost “confidence” in him”. It further held that the scope of judicial
review is very limited.
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26. Reliance on the judgment of the Apex Court in the case of
Dr.Kashinath G. Jalmi (supra) would not be of much assistance to
the petitioners. In the said case, the Apex Court observed that the
Speaker shall function as a statutory authority under the Tenth
Schedule of the Constitution of India. The Speaker shall be required
to decide the question of disqualification of a Member of the House
on the ground of conviction. In that context, the Apex Court held
that the Speaker, while functioning as a statutory authority, has no
power to review his decision on the question of disqualification.
27. In the absence of any statutory disqualification incurred by
V.Senthil Balaji, it would not be permissible for the Court to issue
certain directions to the Governor to take a decision in a particular
manner. More over, it would also be a matter of debate as to
whether the Governor can unilaterally disqualify a person officiating
as a Minister, though he has not incurred any disqualification under
the Constitution of India or under any statute.
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28. In the case of Hargovind Pant (supra), the Apex Court was
considering the case of reversion passed against the petitioner therein
by the Acting Vice Chancellor of the University of Rajastan.
29.1. In the case of Samsher Singh (supra), the Apex Court
observed that the decision of the Minister or Officer under the Rules
of Business made under Article 166(3) of the Constitution of India is
the decision of the Governor. The Apex Court observed that making
a report under Article 256 of the Constitution of India, the Governor
will be justified in exercising his discretion even against the aid and
advice of the Ministers. The reason is that the failure of the
Constitutional machinery may be because of the conduct of the
Council of Ministers. Thus, the discretionary power is given to the
Governor to enable him to report to the President, who, however
must act on the advice of the Council of Ministers in all matters. In
this context, Article 163(2) is explicable that the decision of the
Governor in his discretion shall be final and the validity shall not be
called in question. In paragraph 57 of the said judgment, it is
observed by the Apex Court that, “the President or the Governor
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acts on the aid and advice of the Council of Ministers with the Prime
Minister at the head in the case of the Union and the Chief Ministers
at the head in the case of State in all matters which vests in the
Executive whether those functions are executive or legislative in
character. Neither the President nor the Governor is to exercise the
executive functions personally”.
29.2. In paragraphs 139 and 154 of the Samsher Singh
(supra), the Apex Court observed thus:
139. Of course, there is some qualitative
difference between the position of the President and
the Governor. The former, under Article 74 has no
discretionary powers; the latter too has none, save
in the tiny. strips covered by Articles 163 (2),
371A(1)(b) and (d), and (f), VI Schedule. para 9(2)
[and VI Schedule, para 18(3); until omitted recently
with effect from January 21, 1972]. These
discretionary powers exist only where expressly spelt
out and even these are not left to the sweet will of
the Governor but are remote-controlled by the Union
Ministry which is answerable to Parliament for those
actions. Again, a minimal area centering round
reports to be despatched under Article 356 may not,
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in the nature of things, be amenable to Ministerial
advice. The practice of sending periodical reports to
the Union Government is a pre-constitutional one
and it is doubtful if a Governor Could or should
report behind the back of his Ministers. For a
Centrally appointed constitutional functionary to
keep a dossier on his Ministers or to report against
them or to take up public stances critical of
Government policy settled by the Cabinet or to
interfere in the administration directly these are
unconstitutional faux pas and run counter to
Parliamentary system. In all his constitutional
functions' it is the Ministers who act; only in the
narrow area specifically marked out for discretionary
exercise by the Constitution, he is untramelled by
the State Ministers acts and advice. Of course, a
limited free-wheeling is available regarding) choice
of Chief Minister and dismissal of the Ministry, ,as in
the English practice adapted to Indian conditions.
...
154. 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
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save in a few well-known exceptional situations.
Without being dogmatic or exhaustive, these
situations relate to (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
necessitous, 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 the responsibility for the step.
We do not examine in detail the constitutional
proprieties in these predicaments except to utter the
caution that even here the action must be compelled
by the peril to democracy and the appeal to the
House or to the country must become blatantly
obligatory. We have no doubt that de Smith's
statement [ Constitutional and Administrative Law —
by S.A. De Smith — Peguin Books on Foundations of
Law] regarding royal assent holds good for the
President and Governor in India:
“Refusal of the royal assent on the ground that
the Monarch strongly disapproved of a Bill or that it
was intensely controversial would nevertheless be
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unconstitutional. The only circumstances in which
the withholding of the royal assent might be
justifiable would be if the Government itself were to
advise such a course — a highly improbable
contingency — or possibly if it was notorious that a
Bill had been passed in disregard to mandatory
procedural requirements; but since the Government
in the latter situation would be of the opinion that
the deviation would not affect the validity of the
measure once it had been assented to, prudence
would suggest the giving of assent.”
30.1. In the case of Nabam Rebia and Bamang Felix (supra),
the Apex Court observed as follows:
“308. All the seven learned Judges constituting
the Bench were explicit and unequivocal in their view
that the principle of Cabinet responsibility is firmly
entrenched in our constitutional democracy and that
our Constitution does not accept any "parallel
administration" or"dyarchy". A fortiori the discretion
available to the Governor under Article 163 of the
Constitution is not all-pervasive but is circumscribed
by the provisions of the Constitution, with a small
ventilator available, in some given exceptional
situations by or under the Constitution. In this
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context, it is interesting to note that this Court did
not even advert to the comparatively recent decision
rendered in Satya Pal Dang26 which virtually
sanctified the vast exercise of power by the
Governor. Therefore, it must be assumed that Satya
Pal Dang2 should be confined to its unique and
extraordinary facts reminiscent of the happenings in
the age of the Stuarts or did not necessarily lay
down the correct law given the more than blanket
powers of the Governor that that decision approved
or had nothing to do with Article 163 of the
Constitution.
386. Article 163 of the Constitution and the
discretionary exercise of functions of the Governor
comes under the heading of Council of Ministers and
is suggestive of executive governance or executive
issues concerning the Council of Ministers. In this
context, reference may also be made to Article 164
of the Constitution which provides for the
appointment of the Chief Minister of the State by the
Governor and the appointment of other Ministers on
the advice of the Chief Minister. The appointment of
the Chief Minister is based on the postulate that he
commands or is expected to command the support
of a majority of Members of the Legislative
Assembly. Therefore, it is not as if the Governor has
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untrammelled discretion to nominate anyone to be
the Chief Minister of a State. Similarly, if 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. In this
context, reference may also be made to Article 165
of the Constitution which deals with the appointment
of the Advocate General for the State. He is
appointed by the Governor and holds office during
the pleasure of the Governor and receives such
remuneration as the Governor may determine. It
cannot be anybody's case that the Governor, in
exercise of his discretion, may appoint any eligible
person as the Advocate General without any
reference to the Council of Ministers and also
“withdraw his pleasure” at any time in respect of the
Advocate General thereby removing him from his
Office. The purpose of all these provisions is to
indicate that the discretion given to the Governor is
not all-pervasive or all-encompassing as is
suggested by the learned counsel for the
respondents.”
30.2. The decision of the Constitution Bench of the Apex Court
in the case of Nabam Rebia and Bamang Felix (supra) is explicit
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that if 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, meaning thereby, that there should be consensus with
the Chief Minister.
31. The Draft Article 143 is serial numbered as Article 163 in
the Constitution of India. It was emphasized by Dr.B.R. Ambedkar
that, "the clause is a very limited clause; it says: ‘except insofar as he
is by or under this Constitution’. Therefore, Article 163 will have to be
read in conjunction with such other Articles which specifically reserve
the powers to the Governor. It is not a general clause giving the
Governor power to disregard the advice of his Ministers, in any matter
in which he finds he ought to disregard”.
32.1. In paragraph 4.1.03 of the Justice M.M.Punchhi
Commission report, the observation of Dr.B.R.Ambedkar highlighted
the Constitutional role of the Governor vis-a-vis Article 163 of the
Constitution of India in following terms:
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"The Governor under the Constitution has no
functions which he can discharge by himself; no
functions at all. While he has no functions, he has
certain duties to perform, and I think the House will
do well to bear in mind this distinction.
......
This Article, nowhere, either in clause (a) or clause
(b) or clause (c), says that the Governor in any
particular circumstances may overrule the Ministry.
Therefore, the criticism that has been made that this
Article somehow enables the Governor to interfere or
to upset the decision of the Cabinet is entirely beside
the point, and completely mistaken.”
32.2. The Apex Court in the case of Nabam Rebia and Bamang
Felix (supra) further referred to Justice M.M.Punchhi Commission
report with reference to Article 163(2) of the Constitution of India, as
contained in paragraph 4.5. The same reads thus:
“The important observations in the Justice
M.M. Punchhi Commission report, with reference to
Article 163(2), are contained in paragraph 4.3.03.
Relevant extract of the same is reproduced below:
“4.5. ... Article 163(2) gives an impression that
the Governor has a wide, undefined area of
discretionary powers even outside situations an
impression needs to be dispelled. The Commission is
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of the view that the scope of discretionary powers
under Article 163(2) has to be narrowly construed,
effectively dispelling the apprehension, if any, that
the so-called discretionary powers extends to all the
functions that the Governor is empowered under the
Constitution. Article 163 does not give the Governor
a general discretionary power to act against or
without the advice of his Council of Ministers. In fact,
the area for the exercise of discretion is limited and
even in this limited area, his choice of action should
not be nor appear to be arbitrary or fanciful. It must
be a choice dictated by reason, activated by good
faith and tempered by caution.
The Governor’s discretionary powers are the
following: to give assent or withhold or refer a Bill
for Presidential assent under Article 200; the
appointment of the Chief Minister under Article 164;
dismissal of a Government which has lost confidence
but refuses to quit, since the Chief Minister holds
office during the pleasure of the Governor;
dissolution of the House under Article 174;
Governor’s report under Article 356; Governor’s
responsibility for certain regions under Article 371-A,
371-C, 371-E, 371-H etc. These aspects are now
considered below: ..."
32.3. The Constitution Bench observed that, “the inferences
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drawn in the Justice M.M. Punchhi Commission report extracted
hereinabove, are in consonance with the scheme of the functions and
powers assigned to the Governor, with reference to the executive and
legislative functioning of the State, and more particularly with
reference to the interpretation of Article 163”. The Constitution Bench
further observed that “We endorse and adopt the same, as a correct
expression of the constitutional interpretation, with reference to the
issue under consideration”.
32.4. In view of the above, it will have to be held that if 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 unilaterally. In the present case, the Chief Minister
had never consented for the exercise of discretion by the Governor.
33. Much has been argued upon the right of the Members of the
Legislative Assembly to officiate as a Minister, though under custody
and charges being framed. As observed, neither the Constitution of
India nor the Act of 1951 disqualifies a person to be a Member of the
State Legislative Assembly after he is under custody or is undergoing
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trial after framing of the charges. Similarly, no other disqualification is
prescribed for a person of Legislative Assembly to be a Minister.
Article 166(3) of the Constitution of India mandates that the Governor
shall make rules for the more convenient transaction of the business of
the Government of the State and for the allocation among the
Ministers of the said business insofar as it is not business with respect
to which the Governor is by or under this Constitution required to act
in his discretion. Pursuant to this, the Business Rules are prepared.
The Minister of State and the Cabinet Ministers are allocated business
as per the Business Rules.
34. It is the contention of the petitioners that if the Minister is
under custody, then in that case he has disabled himself from
performing any work. The Minister enjoys the perks and allowances at
the cost of the public exchequer and a person in custody cannot
perform any work nor files can be sent to him and as such, though he
is disabled from functioning as a Minister, he is burdening the public
exchequer, nor he can transact any business and as such, the person
cannot continue as a Minister. This argument is based more on the
concern of pubic morality or Constitutional morality. Naturally, the
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person in custody cannot effectively perform the work of a Minister. In
the present case, V.Senthil Balaji is a Minister without Portfolio,
meaning thereby, no work is allotted to him. He is a Minister for the
name sake. In other words, a Minister without any work. Such a
person certainly will not be entitled for any allowances because he will
not be officiating any work nor any work is allotted to him. Certainly,
no purpose is served by just ceremonially retaining him as a Minister.
35.1. The Apex Court in the case of Manoj Narula (supra) has
observed as follows:
“149. Good governance is only in the hands of
good men. No doubt, what is good or bad is not
for the court to decide: but the court can always
indicate the constitutional ethos on goodness,
good governance and purity in administration and
remind the constitutional functionaries to
preserve, protect and promote the same. Those
ethos are the unwritten words in our Constitution.
However, as the Constitution makers stated, there
is a presumption that the Prime Minister/Chief
Minister would be well advised and guided by such
unwritten yet constitutional principles as well.
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According to Dr. B. R. Ambedkar, as specifically
referred to by my learned brother at paragraph-70
of the leading judgment, such things were only to
be left to the good sense of the Prime Minister,
and for that matter, the Chief Minister of State,
since it was expected that the two great
constitutional functionaries would not dare to do
any infamous thing by inducting an otherwise unfit
person to the Council of Ministers. It appears, over
a period of time, at least in some cases, it was
only a story of great expectations. Some of the
instances pointed out in the writ petition indicate
that Dr. Ambedkar and other great visionaries in
the Constituent Assembly have been bailed out.
Qualification has been wrongly understood as the
mere absence of prescribed disqualification.
Hence, it has become the bounden duty of the
court to remind the Prime Minister and the Chief
Minister of the State of their duty to act in
accordance with the constitutional aspirations. To
quote Dr. Ambedkar:
“However, good a Constitution may be, it is
sure to turn out bad because those who are called
to work it happen to be a bad lot. However, bad a
Constitution may be, it may turn out to be good if
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those who are called to work it happen to be a
good lot. The working of a Constitution does not
depend wholly upon the nature of the
Constitution.” .”
35.2. In the case of Manoj Narula (supra), the Apex Court
observed that, “Good governance is only in the hands of good men.
No doubt, what is good or bad is not for the court to decide: but the
court can always indicate the constitutional ethos on goodness,
good governance and purity in administration and remind the
constitutional functionaries to preserve, protect and promote the
same. Those ethos are the unwritten words in our Constitution”.
35.3. The Apex Court in paragraph 152 of the said judgment
has observed as thus:
“152. No doubt, it is not for the court to
issue any direction to the Prime Minister or the
Chief Minister, as the case may be, as to the
manner in which they should exercise their power
while selecting the colleagues in the Council of
Ministers. That is the constitutional prerogative of
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those functionaries who are called upon to
preserve, protect and defend the Constitution. But
it is the prophetic duty of this Court to remind the
key duty holders about their role in working the
Constitution. Hence, I am of the firm view, that
the Prime Minister and the Chief Minister of the
State, who themselves have taken oath to bear
true faith and allegiance to the Constitution of
India and to discharge their duties faithfully and
conscientiously, will be well advised to consider
avoiding any person in the Council of Ministers,
against whom charges have been framed by a
criminal court in respect of offences involving
moral turpitude and also offences specifically
referred to in Chapter III of The Representation of
the People Act, 1951.”
35.4. The Apex Court, in the said judgment, expected the
Prime Minister or the Chief Ministers may be well advised to
consider avoiding any person in the Council of Ministers, against
whom charges have been framed by a Criminal Court in respect of
offences involving moral turpitude and also offences specifically
referred to in Chapter III of the Act of 1951. Chapter III of Part II of
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the Act of 1951 includes the offences under the Prevention of
Corruption Act, 1988 also.
36. In the case of Keisham Megachandra Singh (supra), relied on
by learned Advocate General, the Apex Court did not accept the
contention of the appellant therein that the Apex Court may issue a
writ of quo-warranto, quashing the appointment of the Minister of the
Cabinet. The Apex Court observed that declaration under the Tenth
Schedule from being a MLA and consequently, Minister must first be
decided by the exclusive authority in his behalf, namely, the Speaker
of the Legislative Assembly.
37. A Minister is a people's representative and as a Minister is
conferred with Legislative and Executive powers, the business of the
Government is performed in consonance with the Business Rules by a
Minister only with respect to the portfolio assigned to him. With the
Cabinet System of Governance, the entire Cabinet is responsible for its
collective decisions, so also for its individual Ministerial decisions. The
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Ministers without portfolios do not have any specific Ministries, nor
they do have carved out responsibilities. The Chief Minister is an
Executive Head. It is the responsibility of an Executive Head to assign
Ministerial responsibilities to an elected representative. However, if he
feels that a particular elected representative cannot be assigned the
responsibility of a Minister, there cannot be moral or Constitutional
basis to retain such a Member of the Legislative Assembly as a Minister
without portfolio, which would be opposed to the ethos, good
Governance and Constitutional morality or integrity.
38. The Founding Fathers of our Constitution may not have
comprehended corrosion of good and clean Governance to an extent
that a person would be retained as a Minister without portfolio, that
too while in custody nor did they envisaged that the Executive Head
would reward an elected Member the status of a Minister, though
finding him not fit to discharge the responsibilities of a Minster. A
Minister without portfolio is a constitutional travesty.
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39. The present petition brings to the fore the erosion of the high
standards of characters and conduct demanded from the Members of
the Legislature. The petitioners expect and legitimately so high
standards of moral conduct by the persons in power. The Chief Minister
is the repository of the people's faith. Political compulsion cannot
outweigh the public morality, requirements of good/clean governance
and the Constitutional morality.
40. The Chief Minister of the State of Tamil Nadu may be well
advised to take a decision about the continuance of V.Senthil Balaji
(who is in judicial custody) as a Minister without Portfolio, which serves
no purpose and which does not augur well with the Principles of
Constitutional ethos on goodness, good governance and purity in
administration.
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41. With the aforesaid observations, these writ petitions stand
disposed of. There will be no order as to costs. Consequently,
W.M.P.Nos.18042, 18054, 19417, 19419, 19474 & 19478 of 2023 are
closed.
(S.V.G., CJ.) (P.D.A., J.)
05.09.2023
Index : Yes/No
Neutral Citation : Yes/No
sasi/drm
To:
1 THE CHIEF SECRETARY
THE STATE OF TAMIL NADU
SECRETARIAT, FORT ST. GEORGE
CHENNAI- 600 009.
2 THE PRINCIPAL SECRETARY TO
GOVERNOR OF TAMIL NADU
RAJ BHAVAN, SARDAR PATEL ROAD
GUINDY, CHENNAI - 600 022.
3 THE SECRETARY TO GOVT
THE MINISTRY OF LAW AND JUSTICE
4TH FLOOR, A-WING, SHASTRI BHAWAN
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NEW DELHI-110 001.
3 THE PRINCIPAL SECRETARY TO GOVERNOR
GOVERNMENT OF TAMIL NADU
RAJ BHAVAN, GUINDY
CHENNAI - 600 032.
4 THE DIRECTOR
DEPARTMENT OF INFORMATION AND PUBLIC
RELATIONS GOVERNMENT OF TAMIL NADU
SECRETARIAT, FORT ST. GEORGE
CHENNAI - 600 009.
5 THE PRINCIPAL SECRETARY TO GOVERNMENT
GOVERNMENT OF TAMIL NADU
(HOME SECRETARY), SECRETARIAT
FORT ST. GEORGE
CHENNAI- 600 009.
6 PRINCIPAL SECRETARY
TAMIL NADU LEGISLATIVE ASSEMBLY
TAMIL NADU LEGISLATURE, SECRETARIAT
ST.GEORGES FORT, CHENNAI-600 009.
7 PRINCIPAL SECRETARY
PUBLIC DEPARTMENT
GOVERNMENT OF TAMIL NADU
ST.GEORGES FORT, CHENNAI-600 009.
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THE HON'BLE CHIEF JUSTICE
AND
P.D.AUDIKESAVALU,J.
(sasi/drm)
W.P.Nos.18823, 18813, 20069
and 20129 of 2023
05.09.2023
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