Senthil Balaji's Dismissal on Hold: Can Governor Remove a Minister From Cabinet?

Earlier on Thursday, Tamil Nadu governor RN Ravi ordered the dismissal of the minister "with immediate effect."

The standoff between the governor and government in Tamil Nadu hit a fever pitch on Thursday when the former – without consulting the chief minister – removed Balaji from the Council of Ministers.

(Photo: The Quint)

Hours after Tamil Nadu Governor RN Ravi announced the dismissal of Minister V Senthil Balaji from the Council of Ministers on Thursday, 29 June, the Raj Bhavan issued a second notice, placing the contentious order on hold.

In the second notice, addressed to Chief Minister MK Stalin, the governor said:

"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 … Meanwhile, the order of dismissal of the minister Thiru V Senthil Balaji may be kept in abeyance until further communication from me."

The standoff between the governor and the Dravida Munnetra Kazhagam (DMK) government in Tamil Nadu hit a fever pitch on Thursday when the former – without consulting the chief minister – removed Balaji from the Council of Ministers.

Even as the dismissal is on hold, the question remains – does the governor have the power to dismiss a minister?

What's the Protocol? Experts Explain

Senthil Balaji was arrested two weeks ago over a cash-for-jobs scam that came to light in 2015 – when he was the transport minister in the Jayalalithaa Cabinet.

After his arrest, the DMK minister fell unconscious and reportedly underwent a coronary angiogram.

Though he is currently in judicial custody and being investigated by the Enforcement Directorate (ED), CM Stalin had retained him as a minister without portfolio – handing his electricity portfolio to Finance Minister Thangam Thennarasu.

But in what appears to be a first-of-its-kind decision in the country's history, the Raj Bhavan, in a press release on Thursday, said that as Balaji "is facing serious criminal proceedings in a number of cases of corruption," the governor has dismissed him from the Council of Ministers with immediate effect.

"There are reasonable apprehensions that [the] continuation of Thiru V Senthil Balaji in the Council of Ministers will adversely impact the due process of law," the release said.

The appointment of the chief minister and other ministers comes under Article 164(1) of the Constitution.

According to Article 164(1):

"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."

This 'pleasure', however, does not mean the governor can remove or appoint a minister on his own, Supreme Court lawyer Shadan Farasat explained to The Quint.

"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 further said that if the governor goes ahead with this decision, it will be set aside by any court without a doubt. "That's a central constitutional position, there is no iota of doubt about that," he added.

Farasat further said that the DMK government can challenge the decision in a court.

So, when does the governor have the power to dismiss a government? Only when the government loses a majority and refuses to step down. Speaking to India Today, Supreme court advocate KV Dhananjay said:

"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."

In any case, the dismissal of a minister is not under the purview of the powers of the governor, and he must consult the CM before doing so, the expert told the publication.

What Have DMK & BJP Said?

Chief Minister MK Stalin told reporters on Thursday that the governor does not have the right to dismiss the minister and that the DMK government will move legally.

"Governor doesn't have the right (to dismiss a sitting minister) and we will face this legally," he said, according to news agency PTI.

DMK leader A Saravanan lashed out at the governor for "undermining the constitution."

"He [the governor] is catering to the Sanatan Dharma. The law of the land isn't determined by the Sanatan Dharma. For a governor, the constitution should be the Bible, Gita, and Quran. He is acting like a clown, trying to appease his political masters. His order isn't even worth the paper it was drafted on. It must be consigned to the dustbin," Saravanan said, as per PTI.

On the other hand, the Bharatiya Janata Party reasoned that the governor has powers to dismiss and appoint ministers. BJP spokesperson Narayanan Thirupathy told the media, "The governor is the constitutional head of the state. He has got very right to dismiss as he appoints the minister."

"Senthil Balaji was appointed by the governor. He has given the reasons as to why he was dismissed. The governor has taken a moral and legal decision by dismissing Senthil Balaji," Thirupathy said.