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Governor not ‘duty-bound’ by popular will, says SC

2001 judgment empowers him to use discretion

February 18, 2017 12:33 am | Updated December 04, 2021 11:58 pm IST - New Delhi

Tamil Nadu Governor Ch. Vidyasagar Rao greets Chief Minister Edappadi K. Palaniswami in Chennai.

Tamil Nadu Governor Ch. Vidyasagar Rao greets Chief Minister Edappadi K. Palaniswami in Chennai.

As Tamil Nadu politics witnessed a churn, the State's Governor has come under intense scrutiny for not inviting AIADMK interim general secretary V.K. Sasikala to form the government despite the fact that her faction commanded a majority in the Legislative Assembly.

In the ordinary course, the support of the elected representatives of the party commanding a majority in the Legislature reflect the “will of the people”, and the Governor would defer to it.

However, a 2001 Supreme Court precedent holds that a State Governor should not always be swayed by “popular will” or the “brute" support a chief minister aspirant enjoys from her party MLAs. It said the Constitution empowers the Governor, while appointing a chief minister, to use his discretion to ensure a stable government.

Governor Ch. Vidyasagar Rao had kept Sasikala's appointment to the constitutional post in abeyance while the Supreme Court had already indicated that its judgment in the disproportionate assets case involving Jayalalithaa, Sasikala and others, was due in a week.

As one of the accused in the 20-year-old case, if convicted — as she is now — Sasikala faced disqualification from contesting elections for a decade.

No unfettered right

The Constitution does not give elected members of a majority party unfettered right to elect an incompetent or disqualified person as chief minister, a Constitution Bench of the Supreme Court had held in the B.R. Kapur versus State of Tamil Nadu in 2001. This judgment had dealt with the appointment of Jayalalithaa as Chief Minister of Tamil Nadu.

“Governor would be acting beyond his jurisdiction and against the constitutional inhibitions and norms in appointing a disqualified person as the Chief Minister on the sole reasoning that the majority of the elected members to the legislative council have elected the person concerned to be their leader. The Constitution does not permit brute force to impede the Constitution,” Justice G.B. Pattanaik, on the five-judge Bench, noted in his separate judgment.

Another judge on the Constitution Bench, Justice Brijesh Kumar, held that “the contention that in all eventualities whatsoever the Governor is bound by the decision of the majority party is not a correct proposition. The Governor cannot be totally deprived of element of discretion in performance of duties of his office, if ever any such exigency may so demand its exercise”.

Open to appeal

In appointing Sasikala as Chief Minister, the State would have courted another round of political crisis following the Supreme Court judgment upholding her conviction for corruption and criminal conspiracy, leading to her resignation and surrender.

On Friday, a three-judge Bench led by Chief Justice J.S. Khehar indicated that the court's doors will remain open if an ineligible person with a criminal background is foisted as Chief Minister.

The court made this clear even as it allowed a petition seeking to stop the appointment of Sasikala as Tamil Nadu Chief Minister to be withdrawn as infructuous.

The petition by Satta Panchayat Iyyakam was filed before the Supreme Court convicted Sasikala of corruption and criminal conspiracy in the Jayalalithaa wealth case on February 8. The petition had come up for hearing for the first time.

The petition, filed by advocates G.S. Mani and R. Sathish, had contended that Sasikala was ineligible, even “disqualified”, from being appointed Chief Minister.

As the five-judge Constitution Bench said in Manoj Narula versus Union of India in a 2014 judgment: “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

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