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[8/4, 12:27] sekarreporter1: senthil balaji case. WRITTEN ARGUMENTS OF ADVOCATE K. SAKTHIVEL SUBMITTED ON BEHALF OF THE PETITONER. chief justice bench orders reserved https://sekarreporter.com/senthil-balaji-case-written-arguments-of-advocate-k-sakthivel-submitted-on-behalf-of-the-petitoner-chief-justice-bench-orders-reserved/

 

 

IN THE HIGH COURT OF JUDICATURE AT MADRAS

(SPECIAL ORIGINAL JURISDICTION)

 

W.P. No. 20129 of 2023

 

M.L. Ravi

…Petitioner

v.

The Principal Secretary to the Governor

Government of Tamil Nadu

And 3 ors.

…Respondents

 

WRITTEN ARGUMENTS OF ADVOCATE K. SAKTHIVEL

SUBMITTED ON BEHALF OF THE PETITONER

 

  1. The Petitioner has preferred the above Writ Petition challenging the D.O. Letter No. 0014-RBTN/2023 dated 29.06.2023 of the Governor of Tamil Nadu keeping in abeyance of his D.O. Letter No. 0013-RBTN/2023 dated 29.06.2023 dismissing the 3rd Respondent Mr. V. Senthil Balaji from the council of ministers with immediate effect under Articles 154, 163 and 164 of the Constitution of India on the grounds:
    1. that the Governor has no power of review, modification of his orders,
    2. doctrine of functus officio is applicable to the acts of the governor therefore he cannot review his own orders.
    3. the Governor being an independent constitutional authority, should not have acted at the instance of Union Minister for Home Affairs, and thereby, his action is unconstitutional and is an arbitrary exercise of power.

 

  1. The Public Interest Litigation has been filed by ML Ravi, who is a social activist, a practicing advocate, and the president of Desiya Makkal Sakthi Katchi.

 

  1. The 3rd Respondent Mr. V. Senthil Balaji, is a minister in the council of ministers for the state of Tamil Nadu, and he has been implicated in number of criminal cases known as “Jobs for Cash Scam”.

 

  1. In this regard, the Hon’ble Supreme Court vide its judgement dated 16.05.2023 in Balaji v. Karthik Dasari and anr. [SLP(Criminal) No. 12770-12781 of 2022] made a number of observations and directions in the corruption and money-laundering cases. Thereafter, the Governor of Tamil Nadu sent a letter dated 31.05.2023 to the Chief Minister of Tamil Nadu recommending the removal of 3rd Respondent Mr. V. Senthil Balaji from the council of ministers during the pendency of the criminal proceedings against him in order to ensure the due process of law, in order to maintain constitutional morality for which the Chief Minister of Tamil Nadu responded vide letter dated 01.06.2023 stating that the Governor overstepped his constitutional limits.

 

  1. Thereafter, the 3rd Respondent Mr. V. Senthil Balaji was arrested by the Enforcement Directorate on 14.06.2023, and he was remanded in judicial custody thereafter. While so, the Chief Minister of Tamil Nadu wrote a letter dated 15.06.2023 recommending allocation of portfolios of the 3rd Respondent to other ministers citing the reason that the 3rd Respondent was hospitalised for treatment, and also conveyed that the 3rd Respondent would continue as a “minister without portfolio”. On such receipt of letter from the Chief Minister of Tamil Nadu, the Governor of Tamil Nadu by way of letter dated 15.06.2023 asked for full facts, and the Chief Minister of Tamil Nadu wrote back a letter dated 15.06.2023 insisting on him to act without delay on his earlier letter dated 15.06.2023.

 

  1. Thereafter, the Governor by way of letter dated 16.06.2023 agreed to the recommendation of the Chief Minister of Tamil Nadu regarding reallocation of portfolios held by the 3rd Respondent to two other ministers, but disagreed to the 3rd Respondent continuing as a “minister without portfolio”. Immediately, the Government of Tamil Nadu issued a Press Release No. 1190 dated 16.06.2023 stating that the 3rd Respondent would continue as a “minister without portfolio”. The said Press Release was challenged in W.P. No. 18813 of 2023 on the ground that once the Governor of Tamil Nadu having withdrawn the pleasure under Article 164 of the Constitution of India, the same should be deemed as dismissal of the Minister, and the Government of Tamil Nadu has no constitutional authority to declare that such dismissed minister being continued as a minister, and there are other writ petitions filed for writ of quo warranto questioning under what authority the 3rd Respondent is functioning as minister without portfolio.

 

  1. When the above writ petitions were pending before this Hon’ble Court, the Governor of Tamil Nadu by was of D.O. Letter No. 0013/RBTN/2023 dated 29.06.2023 dismissed the 3rd Respondent from the council of ministers with immediate effect on the apprehensions of the governor that continuation of 3rd Respondent as a minister would continue to obstruct the due process of law and disturb the course of justice which might eventually lead to breakdown of constitutional machinery in the state.

 

  1. Subsequent to the issuance of letter dismissing the 3rd Respondent from the council of ministers, the Governor of Tamil Nadu in D.O. Letter No. 0014/RBTN/2023 dated 29.06.2023 kept in abeyance of the order of dismissal of the 3rd Respondent by way of his D.O. Letter No. 0013/RBTN/2023 dated 29.06.2023 on the advice of Union Minister of Home Affairs who instructed the Governor of Tamil Nadu to seek the opinion of Attorney General, and as he would be approaching the Attorney General for his opinion; against which the above writ petition has been preferred on the grounds stated above.

 

ARGUMENTS

This Hon’ble Court directed to state whether this Hon’ble Court has got powers to issue notice to the Governor and questioning the actions of the Governor in view of Article 361 of the Constitution of India and also whether the Governor acting under Article 154, 163 and 164 of the Constitution of India has powers to remove a minister from the council of ministers without the advice of the Chief Minister in addition to the powers of the Governor with respect to review, revisit, modification, or keeping any of his orders in abeyance under the Constitution of India. Therefore, by way of answer to the three pertinent questions, the arguments were placed:

 

  1. Whether this Hon’ble Court has got powers to issue notice to the Governor and questioning the actions of the Governor in view of immunity provided in Article 361 of the Constitution of India?
    • Whenever the actions of the Governor are 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 actions of the governor, and the only restriction contemplated under Article 361 of the Constitution is that the Governor/President of India cannot be made as a party to any proceedings questioning his action and also his inaction in respect of any mala fide, arbitrary, ultra vires and unconstitutional act performed by him, and also to quash the same, as the Constitution of India is supreme and it is only the rule of law that governs everybody including the Governor of a state/President of India. Thereby, Governor of a state/President of India whenever exceeds his authority and acts in an arbitrary and mala fide way, the constitutional courts have been empowered to review the same and quash the same. Thereby, there is no immunity of Governor/President even for his official acts if the same is mala fide, arbitrary in nature and ultra vires.

 

  • Scope of Judicial Review as Rameshwar Prasad and ors. (VI) v. Union of India and anr. [(2006) 2 SCC 1]
    • This is the case wherein the Governor sent a report to the President of India recommending the newly constituted assembly to be kept in suspended animation, and later on dissolving the assembly by proclamation under Article 356 of the Constitution of India. In this case, the question of immunity to the governor as provided in Article 361 and the powers of the constitutional courts to issue notice to the governor was elaborately discussed and held as follows in para 19:

The Constitution of India grants immunity to the Governor as provided in Article 361. Article 361(1), inter alia, provides that the Governor shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in exercise and performance of those powers and duties. It is submitted by learned Attorney General and Additional Solicitor General that in view of Article 361(1), this Court may not issue notice to the Governor. While we accept the submission but, at the same time, it is also necessary to note that the immunity granted to the Governor does not affect the power of the Court to judicially scrutinize the attack made to the proclamation issued under Article 356(1) of the Constitution of Indiaon the ground of mala fides or it being ultra vires. It would be for the Government to satisfy the court and adequately meet such ground of challenge. A mala fide act is wholly outside the scope of the power and has no existence in the eyes of law. Even, the expression “purporting to be done” in Article361 does not cover acts which are mala fide or ultra vires and, thus, the Government supporting the proclamation under Article 356(1) shall have to meet the challenge. The immunity granted under Article 361 does not mean that in the absence of Governor, the ground of mala fides or proclamation being ultra vires would not be examined by the Court.

 

  • In the same Judgement, the scope of Judicial review is discussed in para 103 by referring to the State of Rajasthan Vs Union of India [(1977) 3 SCC 592], as follows:

“103. In State of Rajasthan case ,there was a broad consensus among five of the seven Judges that the Court can interfere if it is satisfied that the power has been exercised mala fide or on “wholly extraneous or irrelevant grounds”. Some learned Judges have stated the rule in narrow terms but not a single learned Judge held that the proclamation is immune from judicial scrutiny.”

 

  • Again, referring to State of Rajasthan Vs Union of India (1977)3SCC 592, in para 155 it is observed as follows:

“155. In state of Rajasthan in para 185 (SCC p.673),Untwalia,J observed that this Court is powerless to interfere with such an order which is ultra vires,wholly illegal or mala fide as in such a situation it will tantamount in law to be no order at all”

 

  • It is particularly discussed on the question of personal immunity from answerability provided in Article 361 in para 173 as follows:

“The personal immunity from answerability provided in Article 361 does not bar the challenge that may be made to their actions. Under law, such actions including those actions where the challenge is based on the allegations of mala fides are required to be defended by the Union of India or the State, as the case may be. Even in cases where personal mala fides are alleged and established, it would not be open to the Governments to urge that the same cannot be satisfactorily answered because of the immunity granted. In such eventuality , it is for the respondent defending the action to satisfy the Court either on the basis the material on record or even filing the affidavit of the person against whom such allegation of personal mala fides are made. Article 361 does not bar filling of an affidavit if one wants to file on his own. The bar is only against the power of the Court to issue notice or making the president or the Governor answerable”

 

It is further held in Paras 177,178 and 179 as follows:

“177. In G.D.Karkare v. T.L.Shevde construing the expression ‘purporting to be done ‘it was held that any act, though not done in pursuance of the Constitution, may nevertheless be accorded this protection if the act professes or purports to be done in pursuance of the Constitution. It was further explained that though the Governor is not amenable to the process of the Court but it cannot be said that the High Court cannot examine his action and grant relief in the absence of authority making the decision.

 

  1. In State v. Kawas Manekshaw Nanavati [AIR 1960 Bombay 502] full Bench of the High Court held that Article 361 only gives personal protection to the Governor. It is not necessary that the Governor should be a party to the proceeding. Validity of actions can be considered and decided in the absence of the Governor. In The State of W. B v. Sallendra NathBose it was held that a citizen is not without redress even though he cannot implead the Governor as a party but can be given relief.

 

  1. The position in law, therefore, is that the Governor enjoys complete immunity. Governor is not answerable to any Court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties. The immunity granted by Article361(1) does not, however, take away the power of the Court to examine the validity of the action including on the ground of malafides.”

 

  • Thereby it is clear that as held in Rameshwar Prasad and ors. (VI) v. Union of India and anr. [(2006) 2 SCC 1] that the immunity granted to the governor does not affect the power of the court to judicially scrutinise of the actions of the governor on the ground of mala fides or it being ultra vires. Further it is held that it would be for the government to satisfy the court and adequately meet such ground of challenge, and further it is held that the expression “purporting to be done” in Article 361 does not cover acts which are mala fide or ultra vires. It is also pertinent to note that the court can scrutinise the actions of the Governor even without the Governor being party to the proceedings.

 

  • Scope of judicial review as contemplated in P. Singhal v. Union of India and anr. [(2010) 6 SCC 331]
    • This is a case challenging the removal of four Governors on the advice of the council of ministers of the union government wherein the question of judicial review has been elaborately discussed. In this case, it was held by the Hon’ble Supreme Court that no public power, including constitutional power may be exercisable arbitrarily or mala fide. In para 76, it is stated as follows:

 

It is not a matter of privilege but a matter of performance of official duty. All public power including constitutional power shall never be exercisable arbitrarily or mala fide. While the President or the governor may be the sole judge of the sufficiency of facts and the propriety of granting pardons and reprieves, the power being an enumerated power in the Constitution, its limitations must be found in the Constitution itself. The courts exercise limited power of judicial review to ensure that the President considers all relevant materials before coming to this decision. As the exercise of suck power is of the widest amplitude, whenever such power is exercised it is presumed that the President acted properly and carefully after an objective consideration on all aspects of the matter. Where the reasons are given, the court may interfere if the reasons are found to be irrelevant. However, when reasons are not given, the court may interfere only where the exercise of power is vitiated by self-denial on wrong appreciation of full amplitude of the power under Article 72 or where the decision is arbitrary, discriminatory, or mala fide.

 

  • Thus it is clear that it is reiterated again in P.Singhal’s case the power of constitutional courts to interfere if the actions or inactions whether with the given reasons or without reasons whenever the decision is arbitrary, discriminatory, or mala fide, and also whenever the constitutional authorities are exceeding their constitutional limitations.

 

  • Powers of the court as contemplated in State of Rajasthan and ors. v. Union of India [(1997) 3 SCC 592]
    • This is a case wherein the challenge is relating to Union Home Minister writing to the Chief Ministers that the legislative assembly of each of the states involved will be dissolved after a proclamation under Article 356, wherein it is specifically observed that whenever the constitutional authorities exceed their limitations the judiciary can interfere to safeguard the constitutionality as held in para 40:
  1. This Court has never abandoned its constitutional function as the final judge of constitutionality of all acts purported to be done under the authority of the Constitution. It has not refused to determine questions either of fact or of law so long as it has found itself possessed’ of power to do it and the cause of justice to be capable of being vindicated by its actions. But, it cannot assume unto itself powers the Constitution lodges elsewhere or undertake tasks entrusted by the Constitution to other departments of State which may be better equipped to perform them. The scrupulously discharged duties of all’ guardians of the Constitution include the duty not to transgress the limitations of their Own constitutionally circumscribed powers by trespassing into what is properly the domain of other constitutional organs. Questions of political wisdom or executive policy only could not be subjected to judicial control. No doubt executive policy must also be subordinated to constitutionally sanctioned purposes. It has its sphere and limitations. But, so long as it operates within that sphere, its operations are immune from judicial interference. This is also a part of the doctrine of a rough separation of powers under the Supremacy of the Constitution repeatedly propounded by this Court and to which the Court unswervingly adheres even when its views differ or change on the correct interpretation of a particular constitutional provision.

 

It is again reiterated in para 149 of the abovesaid judgement as follows:

It is necessary to assert in the clearest terms, particularly in the context of recent history, that the Constitution is Suprema lex, the paramount law of the land, and there is no department or branch of government above or beyond it. Every organ of government, be it the executive or the legislature or the judiciary, derives its authority from the Constitution and it has to act within the limits of its authority. No one howsoever highly placed and no authority howsoever lofty can claim that it shall be the sole judge of the extent of its power under the Constitution or whether its action is within the confines of such power laid down the Constitution. This Court is the ultimate interpreter of the Constitution and to this Court is assigned the delicate task of determining what is the power conferred on each branch of government, whether it is limited, and if so, what are the limits and whether any action of that branch transgresses such limits. It is for this Court to uphold the, constitutional values and to enforce the constitutional limitations. That is the essence of the rule of law.

 

  • The above judgement makes it very clear that whenever the constitutional authorities have failed to act within this sphere or limitations or whenever there is arbitrary exercise of power, mala fide, or ultra vires, the constitutional courts cannot be a mute spectator as the constitutional courts are the ultimate interpreter of the constitution, and the constitutional courts have been assigned the delicate task of determining on what power is conferred on each branch of government, or is there any arbitrary, mala fide, ultra vires action on part of the constitutional functionaries including the governor or the president of India, the courts can interfere by way of judicial review in order to uphold constitutional values and to enforce constitutional limitations. Thereby, this Hon’ble Court has got powers to make a judicial review of the actions of the governor whether it is discretionary or taken on the advice of the council of ministers.

 

  1. Whether the Governor acting under Articles 163 and 164 of the Constitution of India has powers to remove a minister from the council of ministers without the advice of the Chief Minister?
    • Article 164 of the Constitution of India reads as follows
  • 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: Provided that in the State of Bihar, Madhya Pradesh and Orissa, there shall be a Minister in charge of tribal welfare who may in addition be in charge of the welfare of the Scheduled Castes and backward classes or any other work.
  • The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State
  • Before a Minister enters upon his office, the Governor shall administer so him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule
  • A Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister
  • The salaries and allowances of Ministers shall be such as the Legislature of the State may from time to time by law determine and, until the Legislature of the State so determines, shall be as specified in the Second Schedule the Advocate General for the State.

 

  • Article 164 contains two parts, firstly appointment of the Chief Minister and other ministers, and secondly, dismissal of the ministers. As far as the first part is concerned, appointment of ministers shall be only on the advice of the Chief Minister. On the other hand, as far as the second part is concerned, the ministers shall hold office during the pleasure of the governor is not qualified on the advice of the Chief Minister. Thereby, the governor can dismiss a minister using his discretion in case the governor withholds the pleasure on such minister. The constitutional makers were very clear that even though such a power of removal of a minister is provided to the governor, they did not provide such a withdrawal of pleasure in the case of Chief Minister. Thereby, the constitutional makers have consciously framed Article 164 providing the discretionary power on the governor of a state to remove a minister to whom the governor has withdrawn the pleasure.

 

  • Reading of Article 163 only strengthens the above view that there are certain discretions whereby the decision of the governor shall be final and the same is outside the scope of council of ministers. Article 164 contemplates certain functions wherein the governor is required to exercise as per the constitution in his discretion. Though the constitution has not enumerated such functions wherein the governor can use his discretion, it has to be construed that the constitutional makers have left to the wisdom of interpreting the constitution in a given circumstances as they expected that the constitution is not a static one but an evolving process to meet the new circumstances and situations. Thereby, the combined reading of Articles 163 and 164 makes it very clear that under extraordinary circumstances the governor can always use his discretion to remove a minister in order to safeguard the constitutional values.

 

  • It is also pertinent to note that even the advice of the Chief Minister as contemplated in Article 164 is not strictly to be followed by the governor in the appointment of ministers, and it is a qualified one by attending circumstances whereby the governor of a state can always exercise his discretion to reject the advice of the Chief Minister in case such advice of the Chief Minister is contrary to the provisions of the Constitution of India. Such circumstances contemplated in other parts of Constitution of India may arise when the Chief Minister advices to appoint a foreigner, or a person who has been convicted for an offence under Section 8A of the Representation of People’s Act, or an insolvent, or a lunatic person. Therefore, even the advice of the Chief Minister at the time of appointment of Chief Minister is not the absolute right of the Chief Minister but a qualified one by reading of the other provisions of Constitution of India. Thereby, the governor is expected to act in upholding the Constitution of India in case the advice of the Chief Minister in appointment of a minister is contrary to the Constitution of India. Thereby, the same analogy is applicable in the case of removal or dismissal of a minister, and in order to uphold the constitutional values, the governor can always use his discretion to remove a minister without the advice of the Chief Minister.

 

  • As stated above, what is contemplated under Article 164 is that the minister shall hold office during the pleasure of the governor, and by using the specific word “the pleasure of the governor”, the Constitution has excluded the advice of the Chief Minister in respect of removal of a minister. In case the Chief Minister advices to remove a minister, the same can also be construed as if the governor has lost the pleasure with respect to such a minister. Therefore, the governor has powers to remove a minister from the council of ministers even without the advice of the Chief Minister under Article 164 of the Constitution of India.

 

  • In R. Kapoor v. State of Tamil Nadu and anr. [(2001) 7 SCC 231] the scope of the discretionary powers of the governor have been held as follows:
  1. But submissions were made by learned counsel for the respondents in respect of the Governors powers under Article 164 which call for comment. The submissions were that the Governor, exercising powers under Article 164(1) read with (4), was obliged to appoint as Chief Minister whosoever the majority party in the legislature nominated, regardless of whether or not the person nominated was qualified to be a member of the legislature under Article 173 or was disqualified in that behalf under Article 191, and the only manner in which a Chief Minister who was not qualified or who was disqualified could be removed was by a vote of no- confidence in the legislature or by the electorate at the next elections. To a specific query, learned counsel for the respondents submitted that the Governor was so obliged even when the person recommended was, to the Governors knowledge, a non-citizen, under-age, a lunatic or an undischarged insolvent, and the only way in which a non-citizen or under-age or lunatic or insolvent Chief Minister could be removed was by a vote of no-confidence in the legislature or at the next election.

 

  1. The nomination to appoint a person who is a non-citizen or under-age or a lunatic or an insolvent as Chief Minister having been made by the majority party in the legislature, it is hardly realistic to expect the legislature to pass a no-confidence motion against the Chief Minister; and the election would ordinarily come after the Chief Minister had finished his term.

 

  1. To accept learned counsels submission is to invite disaster. As an example, the majority party in the legislature could recommend the appointment of a citizen of a foreign country, who would not be a member of the legislature and who would not be qualified to be a member thereof under Article 173, as Chief Minister under Article 164(1) read with (4) to the Governor; and the Governor would be obliged to comply; the legislature would be unable to pass a no- confidence motion against the foreigner Chief Minister because the majority party would oppose it; and the foreigner Chief Minister would be ensconced in office until the next election. Such a dangerous such an absurd interpretation of Article 164 has to be rejected out of hand. The Constitution prevails over the will of the people as expressed through the majority party. The will of the people as expressed through the majority party prevails only if it is in accord with the Constitution. The Governor is a functionary under the Constitution and is sworn to preserve, protect and defend the Constitution and the laws (Article 159). The Governor cannot, in the exercise of his discretion or otherwise, do anything that is contrary to the Constitution and the laws. It is another thing that by reason of the protection the Governor enjoys under Article 361, the exercise of the Governors discretion cannot be questioned. We are in no doubt at all that if the Governor is asked by the majority party in the legislature to appoint as Chief Minister a person who is not qualified to be a member of the legislature or who is disqualified to be such, the Governor must, having due regard to the Constitution and the laws, to which he is subject, decline, and the exercise of discretion by him in this regard cannot be called in question.

 

  1. If perchance, for whatever reason, the Governor does appoint as Chief Minister a person who is not qualified to be a member of the legislature or who is disqualified to be such, the appointment is contrary to the provisions of Article 164 of the Constitution, as we have interpreted it, and the authority of the appointee to hold the appointment can be challenged in quo warranto proceedings. That the Governor has made the appointment does not give the appointee any higher right to hold the appointment. If the appointment is contrary to constitutional provisions it will be struck down. The submission to the contrary unsupported by any authority must be rejected.

 

  • In P. Special Police Establishment v. State of M.P. and ors. [(2004) 8 SCC 788] has considered the aspects of the powers of the governor wherein the powers of the governor in granting sanction to prosecute the ministers against the advice of the council of ministers, it was held as follows:
  1. Mr. Sorabjee submits that even though normally the Governor acts on the aid and advice of the Council of Ministers, but there can be cases where the Governor is by or under the Constitution required to exercise his function or any of them in his discretion. The Constitution of India expressly provides for contingencies/cases where the Governor is to act in his discretion. Articles 239(2), 371A(1)(b), 371A(2)(b), 371A(2)(f) and Paragraphs 9(2) and 18(3) of the Sixth Schedule are some of the provisions. However, merely because the Constitution of India expressly provides, in some cases, for the Governor to act in his discretion, can it be inferred that the Governor can so act only where the Constitution expressly so provides. If that were so then Sub-clause (2) of Article 163 would be redundant. A question whether a matter is or is not a matter in which the Governor is required to act in his discretion can only arise in cases where the Constitution has not expressly provided that the Governor can act in his discretion. Such a question cannot arise in respect of a matter where the Constitution expressly provides that the Governor is to act in his discretion. Article 163(2), therefore, postulates that there can be matters where the Governor can act in his discretion even though the Constitution has not expressly so provided.

 

And again in para 12,

“… a seven Judges’ Bench of this Court has already held 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. Some of the exceptions are as set out hereinabove. It is however clarified that the exceptions mentioned in the Judgment are not exhaustive. It is also recognized that the concept of the Governor acting in his discretion or exercising independent judgment is not alien to the Constitution. It is recognized that there may be situations where by reason of peril to democracy or democratic principles an action may be compelled which from its nature is not amendable to Ministerial advice. Such a situation may be where bias is inherent and/or manifest in the advice of the Council of Ministers.”

 

  • It is also pertinent to refer P. Singhal v Union of India and anr. [(2010) 6 SCC 331] on the question of Doctrine of Pleasure on the withdrawal of the same which has been elaborately discussed and held in para 32 as follows:

Therefore, on a constitutional setup, when an office is held during the pleasure of any authority, and if no limitations or restrictions are placed on the “at pleasure” doctrine, it means that the holder of the office can be removed by the authority at whose pleasure he holds office, without notice, and without assigning any cause.

 

  • The combined reading of R. Kapoor v. State of Tamil Nadu and anr., M.P. Special Police Establishment v. State of M.P. and ors. and B.P. Singhal v Union of India and anr., it is clear 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. But the abovesaid judgements makes it very clear that the governor has no license to act with unfettered discretion, to act arbitrarily, whimsically, or capriciously, but can only be for a valid reason. Though the governor is not expected to assign any reasons, but it is expected of a governor to assign reasons for the removal or withdrawal of pleasure. Thus, the governor has powers to remove a minister without advice of a Chief Minister in case of governor withdraws his pleasure with any minister.

 

  • In the case on hand, the governor has initially informed the Chief Minister to drop the 3rd Respondent minister from the council of ministers as he has withdrawn the pleasure with the 3rd Respondent, and in spite of it, the Chief Minister refuses to drop the minister. Thereafter, in the emerging situations wherein the governor apprehends that continuation of the 3rd Respondent would obstruct the due process of law and disturb the course of justice which the governor infers that it may eventually lead to breakdown of constitutional machinery in the state and therefore, the governor dismisses the 3rd Respondent from the council of ministers with immediate effect by way of D.O. Letter No. 0013/RBTN/2023 dated 29.06.2023 assigning the reasons for such dismissal. Therefore, the action of the governor, in removing the 3rd Respondent from the council of ministers is constitutionally valid.

 

  1. Whether the Governor has powers of reviewing, revisiting, modifying, or keeping any of his orders in abeyance under the Constitution of India?
    • The Constitution of India does not provide any powers on the governor to review, revisit, modify, or keep in abeyance of his any orders. As the power of review is not an inherent power either by specifically conferring the same, or by necessary implications. When the Constitution of India has not conferred on the governor any inherent powers or even by necessary implication, the governor cannot review, or keep in abeyance any of his orders. Thereby, once an order has been passed by the governor the same reaches finality, and the doctrine of functus officio is applicable in all the decisions/orders of the governor. If there is no finality of the orders of the governor, the same may result in chaos and confusion in the state in respect of many constitutional functions. For instance, if such a power of review is given to the governor, the governor may appoint a chief minister and after sometime he may withhold the same and, in that scenario, there will be disruption in the normal functioning of the executive, and such similar circumstances can be stated wherein the power of review is provided to the governor without attaining any finality to the decisions or orders of the governor. Therefore, the constitutional makers thought about such unwanted situations, has not conferred the power of review of his own actions by the governor. The doctrine of functus officio exists to provide a clear point to bring quietus to the dispute and without it, decision-making bodies could endlessly revisit their decisions. Any decisions or orders of the governor is always subject to the review of constitutional courts.

 

  • For this purpose, Kashinath G Jalmi and anr. v. The Speaker and ors. [(1993) 2 SCC 703] wherein the Speaker of a Legislative Assembly by functioning as a statutory authority under Schedule X of the Constitution has power to review his decision was discussed, and it was held in para 38 as follows:

The challenge to the orders dated 7th and 8th March, 1991 made by the Acting Speaker under the purported exercise of power of review, setting aside the earlier orders of the Speaker disqualifying Ravi S. Naik, Chopdekar and Bandekar under the Tenth Schedule, is made by the appellants on the ground that the Speaker does not have any power of review under the Tenth Schedule. It was stated in Patel Narshi Thakershi and Ors. v. Pradyumansinghji Arjunsinghji, AIR 1970 SC 1273, thus “It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication.”

 

  • In Shirish Q. Kamat v. Union of India [CDJ 2022 BHC 193]
  1. In Bajrang Bahadur Singh (supra), the Hon’ble Supreme Court has held that notwithstanding the finality accorded to the Governor’s decision under Article 192(1) of the Constitution, any person aggrieved by a decision of the Governor under Article 192 can approach the High Court by initiating appropriate proceedings within eight weeks from the date of the decision of the Governor. Such proceedings have to be heard by a Bench of at least two Judges and dispose of within eight weeks from the date of initiation without fail.

 

  1. Thus, even the decision of the Governor under Article 192 is final being subject only to judicial review, according to the settled parameters of the exercise of the power of judicial review in such cases. This is a strong indication that there can be no inherent power of review in the Governor that can be read into the provisions of Article 192 of the Constitution by necessary implication. As pointed out earlier, the provisions in the CPC or the provisions in Articles 137 and 145 confer no powers of review on a Governor acting under Article 192 of the Constitution.

 

  1. From the aforesaid discussion, we hold that no power of review is vested in H.E. Governor…

 

  • Thereby it is clear that the governor does not have the power of review or revisit or modify or keep in abeyance of any of his earlier orders as the constitution has not inherently provided or the same can be inferred by necessary implications.

 

  1. Whether the action of the governor in issuing D.O. Letter No. 0014/RBTN/2023 dated 29.06.2023 keeping in abeyance of D.O. Letter No. 0013/RBTN/2023 dated 29.06.2023 is in exercise of arbitrary power and ultra vires to the Constitution of India?
    • The governor of Tamil Nadu removes the 3rd Respondent by way of D.O. Letter No. 0013/RBTN/2023 dated 29.06.2023 with immediate effect. Thereby, as soon as such removal order with immediate effect is passed, the 3rd Respondent is to be construed as dismissed from the council of ministers. Later on, the governor of Tamil Nadu issues D.O. Letter No. 0014/RBTN/2023 dated 29.06.2023 keeping his earlier removal order in abeyance for the reason that the Union Home Minster has advised him to consult the Attorney General and therefore for the purpose of seeking advice of the Attorney General keeps the order of removal in abeyance till such consultation process gets over. There are three things which can be inferred in the impugned letter:
      • Firstly, what the status of 3rd Respondent is, subsequent to the dismissal of the 3rd Respondent from the council of ministers. In case, the 3rd Respondent is treated as removed from council of ministers, then the 3rd Respondent is not continuing as a minister at the time when keeping in abeyance letter was issued. The Governor has completely ignored the interregnum period from the time of dismissal and issuance of order of keeping the earlier order in abeyance. In case the governor inclines to rethink about the earlier order of dismissal, the only way out contemplated in the Constitution of India is that the 3rd Respondent ought to have been sworn in as a minister again, instead of issuing the impugned letter of keeping the earlier order in abeyance. The act of such exercise by the governor is not only arbitrary exercise of power, but also ultra vires to the Constitution of India.

 

  • Secondly, the governor of a state, is an independent constitutional functionary, and he is not subordinate to government of India, nor he has to abide by advice of the ministers in the government of India. Whereas, the governor of Tamil Nadu openly admits that on the advice of the union home minister, to consult the Attorney General, he is keeping his earlier orders in abeyance. Thereby, the governor of Tamil Nadu has failed to act independently as contemplated in the Constitution of India and thereby, the impugned action of the governor is ultra vires to the Constitution of India. It is pertinent to consider the observations made in Hargovind Pant v. Dr. Raghukul Tilak and ors. [1979 (3) SCC 458] with respect to independent constitutional office of the governor:

…if one applies this test to the office of Governor, it is impossible to hold that the Governor is under the control of the Government of India. His office is not subordinate or subservient to the Government of India. He is not amenable to the directions of the Government of India, nor is he accountable to them for the manner in which he carries out his functions and duties. His is an independent constitutional office which is not subject to the control of the Government of India.

 

  • Thirdly, the governor has been empowered to make necessary consultations as he deems fit and proper in the given circumstances prior to taking any decision/makes an order but thereafter, having taken a decision, he is not expected to revisit the same by seeking the advice from the Attorney General or from anybody else. If such a situation is accepted, the orders of the governor shall not have any finality resulting in confusions and destabilisation of constitutional machineries. In the impugned order keeping in abeyance, the governor admits of discussing with the union home minister subsequent to the order of removal and has taken the advice of the union minister to consult the Attorney General, such an exercise is arbitrary in nature.

 

  • Therefore, the governor by keeping in abeyance of his earlier order has acted arbitrarily and ultra vires to the Constitution of India and therefore, the impugned order deserves to be quashed as the result of arbitrary exercise of power and ultra vires to the Constitution of India.

 

  1. Reply argument to the arguments of the Learned Advocate General of Tamil Nadu
    • The Learned Advocate General of Tamil Nadu has placed arguments as if the governor is only a formal head and he has to necessarily act only in accordance with advice of the Chief Minister by relying on Shamsher Singh v State of Punjab and anr. [(1974) 2 SCC 831] and Nabam Rebia and Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly and ors. [(2016) 8 SCC 1] and, matters relating to appointment and removal of ministers under Article 164 is outside the ambit of Article 226 of the Constitution of India by relying on Ghouse Muhideen v. Government of India [2002 (3) LW 136].

 

  • Firstly, as far as matters under Article 164 of Constitution of India is outside the scope of Article 226 is concerned, the same is contrary to the ratio laid down in State of Rajasthan v. Union of India [(1977) 3 SCC 592], Rameshwar Prasad and ors. (VI) v. Union of India and anr. [(2006) 2 SCC 1], and R. Kapoor v. State of Tamil Nadu and anr. [(2001) 7 SCC 231] wherein it is explicitly stated that the constitutional courts are the ultimate interpreter of the constitution and the constitutional courts 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 limits, and whether any action of that branch transgresses such limits, and thereby, the argument of matters under Article 164 of Constitution of India is outside the scope of Article 226 is not justifiable in view of the ratios held in the above cases.

 

  • Secondly, as far as the arguments of the Learned Advocate General of Tamil Nadu in respect of governor having to act in accordance with the advice of the Chief Minister, the judgements relied by him in Shamsher Singh v State of Punjab and anr. [(1974) 2 SCC 831] and Nabam Rebia and Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly and ors. [(2016) 8 SCC 1], has the answers contrary to the view proposed by the Learned Advocate General of Tamil Nadu. In para 48 of Shamsher Singh case, it is clearly stated that “save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion, and in para 154 it is stated as if the advice of council of ministers need not be taken by the governor in a few well-known exceptional situations, and it is more particularly stated as follows:

 

“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”

 

In the case of Nabam Rebia, the Learned Advocate General relies on para 386 to insist that the governor chooses to withdraw the 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. But in the case on hand, it can be inferred from the facts that the governor kept the chief minister of his displeasure with respect to the 3rd Respondent continuing as a minister, and therefore, the chief minister was not kept in the dark in the dismissal of the 3rd Respondent as it is clear from the exchange of letters between the chief minister and the governor. Therefore, the governor has acted as contemplated in the Nabam Rebia case in the removal of 3rd Respondent from the council of ministers.

 

  • Thirdly, the Learned Advocate General of Tamil Nadu relied on Y.S. Rajasekara Reddy and ors. v. Nara Chanrababu Naidu and ors. [AIR 2000 AP 142] for the purpose of powers of the governor, and it is pertinent to refer to para 23 of the said judgement which clarifies the governor has got discretionary power under certain circumstances where a Chief Minister or a minister can be dismissed as follows:

This is so in keeping with the well-established democratic values and conventions, inspite of the fact that Article 164(1) of the Constitution permits the Chief Minister to continue in office only during the pleasure of the Governor. The Governor might nevertheless face extraordinary situations where he would be constrained for promoting public good and safeguarding the interest of the State to invoke the pleasure doctrine and terminate the tenure of the office of the Chief Minister, though such instances would be few and rare. There being many imponderable, the circumstances under which a Chief Minister or a Minister would render himself unfit to hold the office and is liable to be removed from the post could not be exhaustively enumerated in the Constitution, or for that matter, even in any law made by the Parliament. Presumably, it is for that reason the discretion in the matter is vested exclusively in a high dignitary like the Governor by the Constitution.

 

  1. Therefore, it is vividly clear that though the governor has acted within his constitutional limitations by assigning reasons in the termination of the 3rd Respondent from the council of ministers by way of D.O. Letter No. 0013/RBTN/2023 dated 29.06.2023, has acted arbitrarily and ultra vires to the Constitution of India by keeping his earlier order of removal in abeyance in D.O. Letter No. 0013/RBTN/2023 dated 29.06.2023, and the same deserves to be quashed, and thus render justice.

Dated at Chennai on this the 3rd day of August, 2023.

 

  1. COUNSEL FOR THE PETITIONER

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