South China Sea
The South China Sea is a marginal sea that is located in the western Pacific Ocean
South of China and Taiwan, east of Vietnam, west of the Philippines, and north of Malaysia, Brunei, and Indonesia.
It communicates with
The East China Sea via the Taiwan Strait
The Philippine Sea via the Luzon Strait,
The Sulu Sea via the straits around Palawan,
The Java Sea via the Karimata and Bangka Straits.
The Gulf of Thailand and the Gulf of Tonkin are also part of South China Sea
The South China Sea is an important strategic location because it serves as a major shipping route for the transportation of goods between Asia and the rest of the world.
It is also rich in natural resources, including oil and gas reserves, fisheries, and minerals.
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South China Sea Dispute
China's Claim:
China claims almost the entire South China Sea, including the Paracel Islands.
Taiwan, the Philippines, Brunei, Malaysia, and Vietnam all claim territory in the region, which is thought to contain valuable oil and gas deposits.
Since 2010, China has been converting uninhabited islets into artificial islets in order to bring them under the IJN Convention on the Law of the Sea (examples would include Haven Reef, Johnson South Reef and Fiery Cross Reef).
China has been modifying the physical land features of the reefs to alter their size and structure.
It has also built airstrips on the islands of Parcel and Spratly.
Chinese fishing fleets are more interested in paramilitary work for the state than in commercial fishing.
The US strongly condemns China's construction of artificial islands and refers to it as erecting a "great wall of sand."
South China Sea Dispute
China, Taiwan, and Vietnam all claim the Paracel Islands.
China, Taiwan, Vietnam, Brunei, and the Philippines all claim the Spratly Islands.
The Philippines, China, and Taiwan all claim the Scarborough Shoal.
The Philippines had instituted an arbitration proceeding against China in the Permanent Court of Arbitration under UNCLOS on January 22, 2013.
The court ruled in favour of Philippines on July 12, 2016.
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But the court ruling was rejected by China, which had called it “null and void.”
China, which claims rights to most of the resource-rich South China Sea up to the nine-dash line, has become more assertive in recent years, leading to flare-ups in the region.
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India’s stand on the issue
India called for adherence to the 2016 arbitration decision in favour of the Philippines, which has been rejected by China.
India has maintained that it is not a party to the SCS dispute and that its presence in the SCS is to protect its own economic interests, particularly its energy security needs.
China's growing influence and presence in the South China Sea has forced India to reconsider its position.
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As part of the Act East Policy, India has begun internationalising disputes in the Indo-Pacific region in order to counter China's threatening tactics in the South China Sea.
India has also deployed its navy in the South China Sea with Vietnam to protect Sea Lanes Of Communication (SLOC), denying China any room for assertion.
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Recent issue regarding dismissal of minister in Tamil Nadu
The dismissal of V Senthil Balaji, a minister in Tamil Nadu Cabinet, by Governor RN Ravi sparked a debate as to whether the Governor has the power to take such action.
Senthil Balaji was stripped of his portfolio after his arrest in a cash-for-jobs scam.
But he remained a minister in Chief Minister MK Stalin's Cabinet and his electricity portfolio was given to Finance Minister Thangam Thennarasu.
There comes the issue of continuation of V. Senthilbalaji as a Minister without portfolio.
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In an unprecedented move, Governor RN Ravi on dismissed Senthil Balaji from the Cabinet. Later he held back the order for legal consultation.
Can a governor dismiss a minister?
The Governor can neither dismiss the Minister unilaterally nor can he seek Attorney General’s opinion on the issue.
The Constitution does not empower the Governor to dismiss a Minister without a request emanating from the Chief Minister who alone could decide upon the members of his Cabinet and take a call on inclusion or exclusion.
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“It is elementary that the Governor cannot act independently on such issues.
The Governor has no discretion in the matter of appointing and removing ministers, which is under the Chief Minister’s domain.
Article 164(1) of the Constitution, which states that the Governor shall appoint the Chief Minister and that other Ministers shall be appointed on the advice of the Chief Minister,
Similar to Article 75(1) that deals with the appointment of the Prime Minister by the President and other Ministers on the advice of the Prime Minister.
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Under Article 164 of the Constitution, the Chief Minister is appointed by the Governor without any advice from anyone.
But he appoints the individual Ministers only on the advice of the Chief Minister.
The Article implies that the Governor cannot appoint an individual Minister according to his discretion.
So, logically, the Governor can dismiss a Minister only on the advice of the Chief Minister.
The Chief Minister alone has the discretion to choose his Ministers.
The CM decides who the Ministers of his Council will be.
He also decides who will not remain as a Minister in his Council.
This is a political decision of the Chief Minister, who is ultimately answerable to the people.
The Constitution has not transferred the discretion of the Chief Minister to the Governor.
In the constitutional system under which a Governor is a mere constitutional head and he can act only on the aid and advice of the Council of Ministers headed by the Chief Minister.
There is no executive function which a Governor can perform independently under the Constitution.
Governor who appoints the Ministers. Therefore, it has to be the Governor who should dismiss them – but both are done only on the advice of the Chief Minister.
Section 51 of the Government of India Act, 1935 confers on the Governor the discretion to choose as well as dismiss the Ministers.
But when Article 164 of the Constitution was drafted, the words “chosen”, “dismissal” and “discretion” were omitted.It was a significant omission which makes it abundantly clear that the Constitution did not confer any discretion on the Governor to either choose or dismiss an individual Minister.
Article 191 of the Constitution provided for the disqualification of a MLA only in five contingencies, which include:
Holding of an office of profit
Being of unsound mind
Becoming an undischarged insolvent
Renouncing citizenship
Getting disqualified under any Central law.
The only Central law that provides for such disqualification is the Representation of the People Act of 1951, only if he gets convicted in a criminal case and imposed with a sentence of two years or more.
Apart from these instances, the Governor has no power whatsoever to remove a Minister from the Cabinet.
In the past, the framing of charges in the trial court has led to Ministers being removed, but it remains a moral high ground, and not a mandatory feature of the constitutional system.
It will be desirable if Ministers facing charges quit on their own, or they are removed by the respective Chief Ministers.
Dismissing a Minister without the recommendation of the CM of the State, is going to set a dangerous precedent and has the potential to destabilise State governments putting the federal system in jeopardy.
Famous judgements
Shamsher Singh and Anr vs State Of Punjab (1974):
Exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well known exceptional situations.
Nabam Rebia vs Deputy Speaker:
Reaffirmed the law laid down in Shamsher Singh and further held that the discretionary powers of the Governor are limited to the postulates of Article 163(1).
The Court also set aside the decisions in the Mahabir Prasad Sharma and Pratapsing Raojirao Rane cases, where it was held that the Governor can exercise power under Article 164 in an unfettered manner.
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