Tamil Nadu Governor Retracts ‘Unconstitutional’ Move to Sack Minister

The face-off between Tamil Nadu RN Ravi and MK Stalin-led DMK-headed ruling alliance dramatically increased on Thursday night with the governor unilaterally sacking minister V Senthil Balaji, arrested by the Enforcement Directorate in an alleged cash-for-jobs scam on June 14.

Moments after Balaji’s removal, Stalin told reporters that the governor “does not have the powers to dismiss him [Balaji]” and that the state government would counter it legally.

However, Ravi retracted his controversial decision within five hours the same night following advice by Union home minister Amit Shah that it would be “prudent” to first seek legal opinion.

Two letters accessed exclusively by NDTV reveal how the governor changed his decision.

In the first letter, containing six pages, announcing Balaji’s sacking, the governor cited his constitutional right to dismiss the minister by overriding the DMK government.

“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, your advice or to put it more appropriately your insistence to retain Thiru V. Senthil Balaji against my advice as a member of the Council of Ministers reflects your unhealthy bias,” Ravi wrote.

Since Balaji is facing “serious criminal proceedings in a number of cases of corruption, including taking cash for jobs and money laundering”, there are reasonable apprehensions that 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 breakdown of the constitutional machinery in the state”, he added.

“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,” Ravi further added.

However, around 11.45 pm, the governor issued another letter, of only one page, reading: “I have been advised by the Hon’ble Union Minister of Home Affairs that it would be prudent to seek the opinion of the Attorney General also.”

Writing that he would approach the attorney general for his opinion, Ravi wrote: “Meanwhile, the order of dismissal of the minister Thiru V. Senthil Balaji may be kept in abeyance until further communication from me.”

The controversy triggered the question: Does the governor have the power to dismiss a minister?

The DMK cited the 1980 Supreme Court (SC) judgement in Maru Ram Etc. Etc vs Union Of Lndia & Anr, which ruled that the President and governors cannot act unilaterally.

“The President and the governor … are but functional euphemisms promptly acting on and only on the advice of the Council of Ministers save in a narrow area of power … In the matter of exercise of the powers under Articles 72 and 161, the two highest dignitaries in our constitutional scheme act and must act not on their own judgement but in accordance with the aid and advice of the ministers,” the apex court had ruled.

Article 164(1) states: “The chief minister shall be appointed by the governor and the other ministers shall be appointed by the governor on the advice of the chief minister, and the ministers shall hold office during the pleasure of the governor.”

SC lawyer Shadan Farasat told The Quint that Ravi’s move was “totally unconstitutional” adding that the word ‘pleasure’ does not mean the governor can remove or appoint a minister on his own.

“The governor’s move was totally unconstitutional. No governor can arbitrarily remove ministers. He or she can only do it on the aid and advice of the chief minister. If the appointment of ministers is on the aid and advice of the CM, how can a governor remove a minister without consulting the CM?” he asked.

Even if Ravi goes ahead with the decision, “it will be set aside by any court without a doubt”, he said adding that the state government can challenge the decision in a court. “That’s a Central constitutional position; there is no iota of doubt about that.”

Constitutional expert and former Lok Sabha secretary general and PDT Achary too said that the governor “cannot remove a minister on his own. He can do so only at the recommendation of the chief minister (CM)”.

“If the governor is allowed to remove ministers on his own, he can dismiss any number of ministers at his will. This is not permitted by the Constitution,” he told Deccan Herald.

The phrase “the ministers shall hold office during the pleasure of the governor” does not mean the governor can dismiss the CM or ministers at will, Achary added. “But it cannot be interpreted that the governor can withdraw the pleasure on his own. He can do so only at the recommendation of the chief minister, who represents the council of ministers.”

Senior SC advocate Sanjay Hegde echoed Achary’s view. “We have a parliamentary system and not a presidential one. Governors and Presidents reign; they do not rule,” he said.

In 1974, the SC ruled in Shamsher Singh vs State of Punjab that there cannot be a parallel administration within the state by allowing the governor to go against the advice of the council of ministers.

In the 2016 judgement on Nabam Rebia And Etc. vs Deputy Speaker And Ors, the SC cited the observations of BR Ambedkar, “The governor under the Constitution has no function which he can discharge by himself; no functions at all. While he has no functions, he has certain duties to perform, and the House will do well to bear in mind this distinction.”

The governor can dismiss a government only when the government loses its majority and refuses to step down.

“A Governor can recommend to the President the dismissal of the state government based on the prevailing political situation. However, it’s the President who has to make the final call,” SC advocate KV Dhananjay told India Today.

“But dismissal of a minister from the Cabinet is not under the purview of the powers of the governor and he has to act on the aid and advice of the elected chief minister,” he added.

Last October, Kerala governor Arif Mohammad Khan sent a letter to the CM stating that finance minister KN Balagopal had ceased to enjoy the “pleasure” of his office for having made some statements in public against him. He has also threatened publicly that he would sack ministers for speaking against him.

Achary had told The Hindu that “if a minister has to be removed from the post, it can only be on the advice of the chief minister”.

The CPIML Liberation, one of the partners in the Bihar ruling coalition, demanded Ravi’s removal for “transgressing his jurisdiction” on Friday.

CPIML Liberation general secretary Dipankar Bhattacharya told PTI that Ravi had been “repeatedly transgressing his jurisdiction and indulging in acts of gubernatorial adventurism”.

“The governor has been emboldened by the arrogance of the Narendra Modi-led government. Every non-BJP government is being treated as an enemy,” he said adding that the Centre has “weakened the country’s autonomous authorities and attempts are being made to destroy the federal structure”.

The polit bureau of the CPI(M) has also strongly condemned the action of the Governor, and called upon the President of India to recall him forthwith.

“This is a totally unconstitutional act as the Governor has no right to appoint or remove ministers, except on the advice of the Chief Minister,” the party said in a statement.

It said Ravi had “been taking a series of steps, which amounts to interference in the politics of the state and in the running of the state government.  The latest outrageous move to dismiss a minister, though kept in abeyance, makes it amply clear that he is not fit to hold the Constitutional post of Governor.”