Legal scholar Upendra Baxi defines crisis as a situation where the structure of a social system allows fewer possibilities for problem solving than are necessary for the continued existence of the system, where people desire change, but are unable to initiate or attain it. There arises a perception of crisis. Crisis is not a situation, it is the incapacity to act.
The incapacity of Governor of Tamil Nadu Ch Vidyasagar Rao to take a timely, independent, judicious and constitutionally correct decision once again brought this office under unembellished disparagement by letting down this high office and betraying the high hopes of the framers of the constitution.
Tamil Nadu Chief Minister O Panneerselvam (OPS) who was appointed to the post after the death of Jayalalithaa, tendered his resignation on February 5 citing ‘personal reasons’, requested the governor to accept his resignation and relieve the Council of Ministers of Tamil Nadu appointed by him on December 6, 2016. The same day, V K Sasikala, who was earlier appointed AIADMK general secretary, was chosen leader of AIADMK’s legislative party. She was supposed to be sworn in on February 6.
But regardless of the party sending the letter of support from the legislators to the governor and asking him to administer the oath of office to Sasikala, there was no response from Raj Bhavan. Later, the resignation of O Panneerselvam was accepted by the governor. The state was pushed into disorder on February 7 when OPS charged Sasikala with forcing him to vacate the CM’s post and claimed that he holds the confidence of the House.
Now, his resignation is already accepted by the governor and lawfully, he cannot withdraw it. The later developments are worrisome. Some 130 MLAs supporting Sasikala, as it is claimed, were taken to a luxury resort away from the state headquarters to ensure that they don’t jump ship is a distressing trend. The disproportionate assets verdict involving Sasikala which is likely to come for final sentencing in the Supreme Court, is another crucial fact which the governor has to take into consideration.
So far as the text of the Constitution (Article 164) is concerned, the appointment of the chief minister is to be made by the governor in his discretion, but this legal position does not disclose true picture. The very concept of collective responsibility borrowed from the British Constitution makes it clear that the discretion of the governor is very much conditioned by the party position in the House [Mahabir Prasad v Prafulla Chandra, 1969].
The Supreme Court has now made it clear that the governor's discretion in the appointment of a chief minister is not unfettered. If the governor appoints a person as the chief minister, who was not qualified to be a member of the state assembly, his/her appointment would be ultra-virus under Article 164 of the Constitution. The court also laid down that, “The Governor cannot, in the exercise of his discretion or otherwise, do anything that is contrary to the Constitution.”
So, the governor’s discretion has no sense when a party has the majority in the House. Where no political party gets absolute majority, how the governor, in appointing the chief minister, decides whether the person he is going to appoint enjoys the confidence of the House? Different governors have used different methods in the past.
Widest support
Various committees and commissions have made recommendations while choosing a chief minister, particularly the Sarkaria report, provide the following considerations:
(a) The party or a combination of parties which commands the widest support in the assembly should be called upon to form the government; (b) The governor’s task is to see that a government is formed and not to try to form a government which pursues policies which he approves; (c) If there is a single party having absolute majority, the governor must ask the leader of that party to form the government; (d) If there is no such party, the governor should act in order of preference, that is: (i) pre-poll alliance; (ii) the single largest party staking a claim to form a government with the support of others including independents; (iii) a post-electoral alliance with all partners joining the government; (iv) A post–electoral alliance with some joining the government and some parties supporting from outside; and (v) the governor while going through the process described above should select a leader who in his opinion is most likely to command the majority in the assembly. Besides, the person so selected should be called to prove its majority within 30 days on the floor of the House, and only there.
The collective trust in the legislature is founded on the bedrock of the constitutional trust. However, this is a case where one side even in the floor test does not trust the other and the other claims that there is no reason not to have the trust. Hence, there is the need and necessity to have a neutral perceptionist to see that absolute objectivity is maintained when the voting takes place. The Supreme Court in Jagdambika Pal v State of UP, 1998 directed convening of a composite floor test between contending parties to ascertain who out of two (Kalyan Singh and Pal, in this case) enjoyed a majority in the UP Legislative Assembly.
Later, a three-judge bench of the Supreme Court (2005) directed the pro-tem speaker of the Jharkhand Legislative Assembly to conduct a composite floor test in the assembly to ascertain the majority between Chief Minister Shibu Soren, appointed by the governor, or former chief minister Arjun Munda.
The governor takes oath to preserve, protect and defend the constitution (to the best of his ability). His judicious mind may save the state from premature elections or plausible judicial intervention that may once again ridicule the institution of governor after the fiasco in Uttarakhand and Arunanchal Pradesh.
(The writer is Deputy Registrar, Supreme Court of India, New Delhi)