The Madras high court on Tuesday said the Chief Minister 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 in the state cabinet, as it serves no purpose and does not augur well with the principles of Constitutional ethos on goodness, good governance and purity in administration.
The first bench comprising Chief Justice S V Gangapurwala and Justice P D Audikesavalu made the observation while disposing of two quo warranto petitions filed by advocate Ramachandran and former All India Anna Dravida Munnetra Kazhagam MP J Jayavardhan and a PIL from advocate ML Ravi.
"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. 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 bench added.
The bench said, "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. The chief minister is an executive head. 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 bench said.
Citing a judgment of the Supreme Court, the bench said the Apex Court in the said judgment, expected the prime minister or the chief ministers may be well advised to consider avoiding any person in the council of ministers, against whom charges have been framed by a criminal mourt in respect of offences involving moral turpitude and also offences specifically referred to in Chapter III of the Act of 1951. Chapter III of Part II of the Act of 1951 includes the offences under the Prevention of Corruption Act, 1988 also.
The bench said it was the contention of the petitioners that if the Minister was under custody, then in that case he has disabled himself from performing any work.
The Minister enjoys the perks and allowances at the cost of the public exchequer and a person in custody cannot perform any work nor files can be sent to him and as such, though he was disabled from functioning as a Minister, he was burdening the public exchequer. Nor can he transact any business and as such, the person cannot continue as a Minister.
This argument was based more on the concern of pubic morality or Constitutional morality. Naturally, the person in custody cannot effectively perform the work of a Minister.
"In the present case, V Senthil Balaji is a Minister without Portfolio, meaning thereby, no work is allotted to him. He is a Minister for the namesake. In other words, a Minister without any work. 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. Certainly, no purpose is served by just ceremonially retaining him as a Minister", the bench added.
Referring to the submission relating to Governor exercising his discretion, the bench said 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 bench added.
Referring to the submission relating to disqualification of Senthil Balaji, the bench said in the absence of any statutory disqualification incurred by him, it would not be permissible for the
Court to issue certain directions to the Governor to take a decision in a particular manner.
More over, it would also be a matter of debate as to whether the Governor can unilaterally disqualify a person officiating as a minister, though he has not incurred any disqualification under the Constitution of India or under any statute, the bench added.
