Tamil Nadu Governor R.N. Ravi has been committing “mistakes after mistakes” on the issue of continuation of V. Senthilbalaji as a Minister without portfolio, says Madras High Court retired judge K. Chandru. According to him, the Governor can neither dismiss the Minister unilaterally nor can he seek Attorney General’s opinion on the issue.
The former judge said the Constitution does not empower the Governor to dismiss a Minister without a request emanating from the Chief Minister who alone could decide upon the members of his Cabinet and take a call on inclusion or exclusion. “It is elementary that the Governor cannot act independently on such issues,” he stressed.
Mr. Chandru said Article 164(1) of the Constitution, which states that the Governor shall appoint the Chief Minister and that other Ministers shall be appointed on the advice of the Chief Minister, was similar to Article 75(1) that deals with the appointment of the Prime Minister by the President and other Ministers on the advice of the Prime Minister.
While interpreting Article 75(1), the Supreme Court in Manoj Narula versus Union of India (2014) refused to add a disqualification prohibiting legislators with “criminal antecedents” from being sworn in as Ministers. A five-judge Bench had left it to the wisdom of the Prime Minister to take a call in accordance with the constitutional expectations from him/her.
The verdict was delivered on August 27, 2014 by the then Chief Justice of India (CJI) R.M. Lodha and Justices Dipak Misra, Madan B. Lokur, Kurian Joseph and S.A. Bobde. While Justice Misra penned the judgment for himself as well as the CJI and Justice Bode, Justices Lokur and Joseph gave individual reasons for concurring with the majority.
In that verdict, Justice Misra wrote: “At this stage, we must hasten to add what we have said for the Prime Minister is wholly applicable to the Chief Ministers too, regard being had to the language employed in Article 164(1) of the Constitution.” Therefore, the law as on date is that none but the Chief Minister could decide the members of his Cabinet, Mr. Chandru said.
When asked about the Governor having subsequently kept his dismissal order in abeyance and decided to seek opinion from the Attorney General on the advice of the Union Home Minister, the former judge said: “This is the second mistake committed by the Governor. Being the Governor of a State, he can only seek opinion from the Advocate General, not the Attorney General.”
Former Madras High Court judge D. Hariparanthaman too expressed similar opinion and said Article 191 of the Constitution provided for the disqualification of a MLA only in five contingencies, which include holding of an office of profit, being of unsound mind, becoming an undischarged insolvent, renouncing citizenship and getting disqualified under any Central law.
“The only Central law that provides for such disqualification is the Representation of the People Act of 1951, which too insists that a legislator would suffer disqualification only if he gets convicted in a criminal case and imposed with a sentence of two years or more. Apart from these instances, the Governor has no power whatsoever to remove a Minister from the Cabinet,” he said.
Mr. Hariparanthaman also said a person could not be presumed to be guilty merely because of a case having been registered against him and such a pending case could not be cited by the Governor as a reason for dismissing a Minister as long as the laws of the land were very clear and do not authorise the Governor to do so.
