SC Concur with Madras HC Order, Leaves to Tamil Nadu CM to Decide on Continuing Arrested Minister in Cabinet

Manas Dasgupta

NEW DELHI, Jan 5: The Supreme Court on Friday upheld the Madras High Court’s order holding the chief minister’s prerogative to decide if an arrested minister should continue in the cabinet as a minister without portfolio.

“The high court was right to consider whether the Governor has the power to dismiss a minister and left it to the Chief Minister to decide whether the person concerned should continue as a minister,” a Supreme Court bench of Justice Abhay Shreeniwas Oka said on Friday. “We do not think there is any scope for interference in this. We agree with the view of the Madras High Court, and no interference is required,” the Supreme Court said. The court held that the arrested Tamil Nadu minster V Senthil Balaji cannot be removed without the consent of the Chief Minister and dismissed a request by a social activist ML Ravi for his removal.

The Supreme Court’s judgment agreed with the Madras High Court’s verdict that said the Chief Minister can decide whether Mr Balaji, a minister from the ruling DMK, should be removed as a “minister without a portfolio in the state cabinet as being in the jail he serves no purpose.” Social activist ML Ravi had challenged the Madras High Court’s decision that Mr Balaji can continue as a minister in the Tamil Nadu government despite his arrest by the Enforcement Directorate in a money laundering case.

The minister enjoys the perks and allowances funded by public money and a person in custody cannot do official work, the petitioner said, explaining why Mr Balaji should be removed. Mr Balaji was arrested on June 14 last year in a money laundering case initiated by the ED based on a cash-for-job case filed by the Central Crime Branch police, Chennai, when he was the transport minister during the previous AIADMK regime.

In early August, unaccounted-for valuables worth more than ₹ 16 lakh and ₹ 22 lakh in cash were allegedly recovered from the home of a driver after fresh searches were conducted against Mr Balaji and others in connection with the money laundering probe.

The Supreme Court said the Madras High Court did right to restrain itself and pass the ball to Chief Minister M.K. Stalin to take a call about the continuance of Mr Balaji as a Minister without portfolio. The High Court in its order though had agreed with the chief minister’s prerogative to decide on the continuance of a minister in the cabinet, it had held as “constitutional travesty. While asking the chief minister to take a decision on Mr Balaji’s prospects in the government, it had pointedly observed that “a Minister without portfolio is a constitutional travesty… Political compulsion cannot outweigh the public morality, requirements of good/clean governance and constitutional morality.”

Justice Oka also agreed with the High Court’s finding that the Governor did not have the discretionary power to unilaterally dismiss a government Minister. “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 Madras High Court had noted in its September 5 order.

Mr Ravi had challenged the Governor’s volte face on June 29, 2023 when the latter had first issued an order dismissing Mr Balaji as Minister of Electricity and Excise with “immediate effect,” only to issue a second order just hours later keeping the first one in abeyance. Mr Ravi said the Governor’s decision to put on hold the dismissal of the Minister was “arbitrary and ultra vires to the Constitution.”

“He cannot take back his order as he is functus officio… and the High Court, instead of directing his removal, had merely advised the Chief Minister to take a decision about the continuance of Mr Balaji as a Minister without portfolio,” the petitioner argued.

The train of events unrolled on June 16 last year when the Chief Minister wrote to the Governor to reallocate Mr Balaji’s portfolios to Finance Minister Thangam Thennarasu and to retain the former as a Minister without portfolio. The same day saw the Governor reallocate the portfolios to Mr Thennarasu but disagreed with the continuation of Mr Balaji as a minister as he was facing “criminal proceedings for moral turpitude.” He issued an order sacking Mr Balaji as a minister only to reverse the decision hours later, presumably at the advice of the centre.