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Tamil Nadu Governor Ravi has waded into the Senthil Balaji controversy by first denying the shifting of portfolios and later by saying that Senthil Balaji should not stay in the Ministry. The governor is no stranger to controversy and has riled the DMK government in more ways than one. He apparently had the locus standi and arguably some Constitutional backing in some of his interventions in the past. Sending back Bills passed by the legislature, not signing them, holding forth on Dravidian ideology, interacting with Vice Chancellors of universities directly, as well as refusing to read out the speech prepared by the government in the Assembly seemed to have a legal veneer. But retired judge Justice D Hariparanthaman questioned even those in his interview to Inmathi. Justice Hariparanthaman held forth on a host of issues giving the legal background. Below is a summary.

What did the Governor want in his letter to the Chief Minister refusing to reallocate Senthil Balaji’s portfolios
It’s welcome that Governor Ravi changed his decision on portfolios. I am happy that the Governor has said Senthil Balaji cannot continue as Minister since he is an accused in a criminal case. But that criterion should be applied across the country – in Parliament as well as in state legislatures. Many, many MLAs, MPs and Ministers will have to resign their position then.

The legal position is that only those accused who are convicted can no longer be Ministers or MLAs and MPs. They cannot become MLAs, MPs and Ministers either. As per law, Rahul Gandhi, who was sentenced to two years jail in a criminal defamation case, has to lose his Parliament membership. When the Supreme Court found Jayalalithaa guilty in the disproportionate assets case she would have had to quit her Chief Minister’s position if she had beeIn alive and holding that office

The Governor must accept and do what the Chief Minister tells him. This is the law. Governor Ravi knows this very well but he is playing partisan politics

But people by and large believe that those who are holding public office to serve the people must quit their position if they face charges. The problem is that some 40% of the Union ministers face many kinds of criminal charges. But the party changes its stand from place to place on this issue conveniently.

In 2014, after the BJP came to power at the Centre, Amit Shah faced criminal charges in the Loya murder case. He had gone to jail regarding two encounter deaths. But he became Home Minister and had continued as Minister in Gujarat before that. The law should be changed if required in keeping with public sentiment on politicians facing criminal charges.

The Governor must accept and do what the Chief Minister tells him. This is the law. Governor Ravi knows this very well but he is playing partisan politics.

Also Read: TN Governor Ravi’s broadsides baring chinks in Dravidian armour

But the Governor is insisting that Senthil Balaji cannot continue as Minister…
The Governor has no right to say that. Article 164 of the Constitution is clear on this. Only the Chief Minister has the power to decide who can be Minister. Only if the Representation of the People Act is amended suitably can the Governor take action. But no political party, whether the BJP or the Congress, is prepared to bring in such an amendment. And such an amendment will go against the Constitutional provision that only the Chief Minister in the state and the Prime Minister in the Centre can decide who can be Minister. Governor or the President have no power on that.

The Governor stalls legislation passed by the Assembly routinely. He first agreed with the ordinance on online gambling but later refused assent to the bill passed by the legislature.

During Congress rule too, actions of governors became controversies. But since Independence no Governor has created so much controversy as Governor Ravi.

So what’s the solution? Whom should the government approach to set this right?
The state Assembly passed a resolution on this. That resolution said a law should be made that would specify the time period within which a state Governor should move forward on legislation passed by the Assembly. He cannot stall indefinitely. This was welcomed by other states too. But ultimately it’s only the people who can question such acts that are contrary to the Constitution, spirit of democracy and the federal structure.  Only the people’s intervention can solve the problem.

The Union government is using the ED to threaten Senthil Balaji, P. Chidambaram and Manish Sisodia. Then Prime Minister Indira Gandhi misused MISA during the Emergency. The BJP government is using UAPA now

Is there legal recourse for the government?
Our Constitutional model is based on the British system. But we are lagging 100 years behind in terms of Constitutional functioning. Our governments don’t function how European ones do. Then UK prime minister Boris Johnson had to face criminal proceedings. It’s unthinkable that Narendra Modi or M.K. Stalin will face any such inquiry. No ruling political party will allow this. Those who have political power will not face any criminal proceedings. This is the situation now. The allegations against Senthil Balaji were made in 2015. Neither the AIADMK government nor the DMK government acted on him. The ED that functions under the Union government is moving ahead because of BJP pressure.

The Prevention of Money Laundering Act (PMLA) that the ED uses is a law being deployed to settle political scores now. The Congress and the BJP brought POTA and TADA against extremists and terrorists. Their misuse led to their abrogation. Today UAPA and PMLA are the black laws that are misused by political parties in power. There’s no bail in case of arrest under UAPA. So parties ruling the states and the Center misuse it.

The Union government is using the ED to threaten Senthil Balaji, P. Chidambaram and Manish Sisodia. Then Prime Minister Indira Gandhi misused MISA during the Emergency. The BJP government is using UAPA now.

Also Read: Why Governor Ravi’s use of ‘Thamizhagam’ is inaccurate

Is the Constitution so weak that such misuse of law happens?
There’s a background to the PMLA. In 2002, the UN General Assembly called for such legislation on money laundering to control drug trade. Today what was intended to control drug trafficking is being used against Senthil Balaji and Manish Sisodia.

What are the limits on the discretionary powers of the Governor?
Actually the Governor really has no discretionary power. Ambedkar said that the Governor is a powerless ceremonial position. There’s no law that says it is the Governor who heads universities. The Constitution gives no such powers to the Governor.

Swearing in ministers and signing documents and files is what Governors and the President are expected to do. Parliament can remove a recalcitrant President. But the state government has no such powers. That’s why Governor Ravi is functioning as it pleases him. All over India, opposition-ruled states are seeing a battle between the government and the governor. Only suitable Constitutional amendments can stop this.

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