Tamil Nadu Governor’s refusal to re-induct Ponmudy’s position a “virtual breach of the Constitution,” says Supreme Court

Singhvi: Another instance of the “obstructive tactics of the Governor”

On March 17 2024, the Governor of Tamil Nadu refused to re-induct Ponmudy on the ground that the Supreme Court had “only suspended, not set aside” his conviction. On 19 December 2023, Ponmudy was convicted by the Madras High Court in a case concerning assets that he and his wife had allegedly amassed which were disproportionate to their income. 

On 11 March 2024, Justices A.S. Oka and Ujjal Bhuyan stayed the conviction, stating that “irreversible situation will be created if the conviction is not suspended.” Singhvi explained that in case he is later held to be innocent, the “eighth-time appointed MLA’s” lost term could not be restored.

Subsequently, the Election Commission and the Legislative Assembly removed the disqualification as per Section 8 of the Representation of the People Act, 1951 (ROPA). The provision stipulates that a person convicted of any offence and sentenced to imprisonment of at least two years shall be disqualified from the date of conviction. It also states that the disqualification “shall not take effect” if an appeal is brought against the conviction. In this case, the Court had explicitly stayed the Madras High Court’s conviction.

Singhvi narrated that after this, the Chief Minister recommended reinstating Ponmudy. The Governor refused, citing violation of “constitutional morality.” “It appears to escape the Governor that it is he who is violating constitutional morality,” Singhvi argued. 

Singhvi pointed out that the Governor’s refusal to pass a decision of the Legislative Assembly was a pattern, and came after the Supreme Court had already pulled him up for withholding his assent to 10 bills. He argued that this was a deliberate attempt at slowing the process down. “Ultimately they know they have to swear him in. But they wait for the Court’s Order.” 

“Mr. Attorney General, what is your Governor doing?” CJI Chandrachud asked. “Please tell the Governor that we are taking a very serious view on this.” Attorney General R. Venkataramani, stated that he had not received a copy of the application, and asked time till tomorrow to place his arguments. “I have a lot to say,” he said. 

The Court then asked about the sequence of events after the Madras High Court reversed the trial Court’s acquittal. Senior Advocate P. Wilson narrated that as per the Supreme Court’s judgement in Lily Thomas v Union of India (2013) and Section 8 of ROPA, Ponmudy had resigned soon after the High Court’s decision. After that, the Chief Minister alloted that portfolio to another Minister. “We want him back as a Higher Education Minister,” as he is the “most experienced person in the Cabinet.”

CJI Chandrachud noted that the “only request” then, was to reassign Ponmudy his previous position and not to have him take oath again as the Court’s stay order restored his position as an MLA. Wilson explained that as per the decision in Lily Thomas, even Rahul Gandhi was not required to be sworn in again. 

Attorney General: Due process has to be followed in the Supreme Court

The Attorney General, while insisting that he will make substantial arguments tomorrow, raised a technical irregularity in the case. He argued that an Interlocutory Application had been filed in an “entirely unconnected” Writ Petition. The main case, he said, concerned the Governor’s power to withhold consent for the passing of Bills under Article 200 of the Constitution. “There has to be some due process,” he said. The Tamil Nadu government cannot approach the Court saying their fundamental right has been violated, attracting Article 32. The Chief asked: “What if they had filed a separate suit?” The Attorney General answered that they could use that procedure, but he had “serious objections” to claiming a fundamental right violation. 

“Is that the best argument of the Governor? That I will defend my constitutionally illegal conduct by pointing fingers at how they have come to the Court?” CJI Chandrachud asked. “What do we close our eyes to?… this technical problem which Dr. Singhvi faces” or “the virtual breach of the Constitution by the governor?” 

Venkataramani hesitated to say “anything in defence of what the Governor has done,” till tomorrow’s hearing, but insisted that he stood by the technical concerns raised. He warned that if this process is allowed, states will begin to rush to the Court with writ petitions. 

Justice J.B. Pardiwala explained that “Once the substantive order of conviction is suspended, there is no conviction. Once there is no conviction you can’t say that you are tainted or that there is a blemish.”

CJI Chandrachud stated that if they did not hear from the Attorney General in “a positive manner” by tomorrow, the Bench would pass an Order directing the Governor to “act in accordance with the Constitution.” When the Attorney General further insisted that the procedural irregularity was a serious issue, a visibly frustrated CJI stated that they would hear the case right now and pass an order if that was the only submission.

Firmly, the Chief stated “we are seriously concerned about the conduct of the governor in this case…This is not the way. He has defied the Supreme Court of India.” When a division Bench of the Court stayed the conviction, the Governor “has no business” to say that it “does not wipe out the conviction and it is nonexistent.” “When the Supreme Court of India stays a conviction, the law has to be followed,” he said. 

The Bench indicated that the Attorney General will be heard tomorrow, and that the Court will deliver a judgement.