Continuance Of Senthil Balaji As Minister Without Portfolio Serves No Purpose, Doesn’t Augur Well With Principles Of Constitutional Ethos: Madras HC
The Madras High Court yesterday observed that the continuance of V. Senthil Balaji being in judicial custody as a Minister without portfolio will serve no purpose as the same does not augur well with the principles of Constitutional ethos.
The Court was dealing with a batch of writ petitions filed by Advocate S. Ramachandran and Former AIADMK MP J. Jayavardhan and a PIL (Public Interest Litigation) filed by Advocate M.L. Ravi.
A Division Bench comprising Chief Justice Sanjay V. Gangapurwala and Justice P.D. Audikesavalu held, “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. … 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.”
The Bench said that a minister without a portfolio is a constitutional travesty.
Senior Advocate V. Raghavachari, Advocate S. Sheik Ismail, and Advocate K. Sakthivel appeared on behalf of the petitioners while Advocate General R. Shunmugasundaram, State Government Pleader P. Muthukumar, and Advocate A.G. Shakeenaa represented the respondents.
The primary issues involved were 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. The entire controversy triggered off as a sequel to the action taken by the Enforcement Directorate (ED) pursuant to the direction given by the Apex Court whereby the ED was directed to proceed with the case registered against Senthil Balaji and conclude the investigation within two months. Pursuant to such a direction given by the Apex Court, the ED registered a case under Section 4 of the Prevention of Money Laundering Act, 2002 (PMLA) and Senthil Balaji was arrested.
Consequent thereto, the Governor of Tamil Nadu issued an order notifying the re-allocation of portfolio of Balaji upon the recommendation and advice of the Chief Minister and took serious objections to his continuance as a Minister without portfolio. The Governor then addressed a letter dismissing Balaji from the Council of Ministers and observed that his continuation will not only lead to obstruction of 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. It was in this background that the petitioners filed writ petitions.
The High Court in view of the aforesaid background of the case noted, “… 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.”
The Court said that 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 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”, further noted the Court.
The Court observed that Balaji is a Minister without portfolio, meaning thereby, no work is allotted to him and hence is a minister for the sake of name i.e., without any work. It said that 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 and no purpose is served by just ceremonially retaining him as a minister.
“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 Ministers without portfolios do not have any specific Ministries, nor they do have carved out responsibilities”, also said the Court.
The Court added that the Chief Minister is an Executive Head and 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.
“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. … 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”, observed the Court.
Furthermore, the Court remarked that the Chief Minister is the repository of the people's faith and a political compulsion cannot outweigh the public morality, requirements of good/clean governance and the Constitutional morality.
Accordingly, the High Court disposed of the writ petitions.
Cause Title- S. Ramachandran v. The State of Tamil Nadu & Ors.
