This suggests that the governor is satisfied that Sasikala enjoys majority support in the AIADMK, despite claims to the contrary by the faction led by the chief minister O. Panneerselvam.
The only hurdle that Sasikala faces to get the governor’s invitation is Article 164(4) of the constitution, which says that a minister who for any period of six consecutive months is not a member of the state legislature shall, at the expiration of that period, cease to be a minister.
J. Jayalalithaa case
Article 164(4) was examined in depth in B.R.Kapoor v State of Tamil Nadu by the Supreme Court’s five-judge constitution bench on September 21, 2001. The bench, presided over by the then Chief Justice of India G.B. Pattanaik, comprised Justices S.P. Bharucha, Y.K. Sabharwal, Ruma Pal and Brijesh Kumar. There were three concurring judgments in the case, two given by Justices Pattanaik and Kumar separately, and the one delivered by Justices Bharucha, Sabharwal and Pal, and authored by Justice Bharucha.
The matter before the court then was that J. Jayalalithaa, who was not a member of the legislative assembly at the time, was sworn-in as the chief minister on May 14, 2001, following the assembly elections.
She could not contest the elections because her nomination papers were rejected by the returning officers because her conviction and sentencing in two criminal cases under the Indian Penal Code and the Prevention of Corruption Act disqualified her under Section 8(3) of the Representation of People Act, 1951.
She had been sentenced to undergo three years rigorous imprisonment in the first case and two years rigorous imprisonment in the second case. She had gone on appeal against her conviction but this was pending before the Madras high court.
The Supreme Court held that a person suffering disqualification as a member of the assembly cannot be appointed as a minister or a chief minister under Article 164(4), and thus quashed Jayalalithaa’s appointment as chief minister.
Har Sharan Verma case
In B.R. Kapoor, the Supreme Court examined the previous decisions of the court on Article 164(4). The very first case it considered was Har Sharan Verma v Shri Tribhuvan Narain Singh, Chief Minister, Uttar Pradesh (1971), which was also decided by a constitution bench.
The chief minister, in that case, was appointed at a time when he was not a member of either house of the state legislature. The petitioner, Har Sharan Verma, contended that Article 164(4) applies only when a minister, who is already a member of the legislature of the state, loses his seat, and the idea behind it is to give him a period of six months to get himself reelected.
Har Sharan Verma also pointed to a bizarre possibility, if the alternative view is favoured: it would be possible for a governor to appoint a chief minister and ministers, none of whom are members of the state legislature. He said that this could not have been contemplated by the framers of the constitution.
The Supreme Court rejected this contention saying that if the legislative assembly, to whom the council of ministers would be collectively responsible, endorses this unlikely council of ministers there is nothing in the constitution that makes this appointment illegal.
The Supreme Court, after citing instances of ministers being permitted to assume office and function without getting elected to the legislatures for a limited period in England, Australia and South Africa, concluded that Article 164(4) had an ancient lineage and there was no reason to whittle down the plain thrust of the provision by confining it to cases where a person being a member of the legislature and a minister loses his seat.
Despite this setback before the constitution bench, Har Sharan Verma petitioned the Supreme Court twice after Tribhuvan Narain Singh to challenge similar cases, but was unsuccessful.
H.D. Deve Gowda’s case
In S.P.Anand v H.D.Deve Gowda, a petition was filed challenging the appointment of Deve Gowda, who was not a member of either house of parliament, as the prime minister in 1996. In deciding the case, the Supreme Court relied on B.R. Ambedkar’s view expressed in the Constituent Assembly debates, which defended Article 164(4). Ambedkar was quoted as having said:
“It is perfectly possible to imagine that a person who is otherwise competent to hold the post of a minister has been defeated in a constituency for some reason and which, although it may be perfectly good, might have annoyed the constituency, and he might have incurred the displeasure of that particular constituency. It is not a reason why a member so competent as that should not be permitted to be appointed a member of the cabinet on the assumption that he shall be able to get himself elected from the same constituency or from another constituency. After all the privileges that he is permitted is a privilege that extends only to six months.”
In S.P.Anand, the court rebutted the challenge to Article 75(5) – the parliamentary equivalent to Article 164(4) – by holding that a person who is appointed the prime minister is chosen by the elected representatives of the people and can occupy the position only if he enjoys the confidence of the majority of the elected representatives in the Lok Sabha. The court further reasoned that even though a prime minister may not be a member of either house of parliament, once he is appointed he and his ministers become answerable to the house and the principle of collective responsibility governs the democratic process.
Repeated use of Article 164(4) discouraged
The only instance when the Supreme Court struck down Article 164(4) before Jayalalithaa was in S.R. Chaudhuri v State of Punjab (2001). In S.R. Chaudhuri, a minister, who was not a member of the state legislature, resigned before completing six months and was reappointed after a gap, taking advantage of the silence in Article 164(4) against such reappointments. It is in this context that the Supreme Court observed as follows:
“Article 164(4) is, therefore, not a source of power or an enabling provision for appointment of a non-legislator as a Minister even for a short duration. It is actually in the nature of a disqualification or restriction for a non-member who has been appointed as a Chief Minister or a Minister, as the case may be, to continue in office without getting himself elected within a period of six consecutive months.”
The Supreme Court reproduced this paragraph in B.R. Kapoor.
Additional restrictions in B.R.Kapoor
In B.R.Kapoor, the bench was categorical:
“It would be unreasonable and anomalous to conclude that a minister who is a member of the legislature is required to meet the constitutional standards of qualification and disqualification but that a minister who is not a member of the legislature need not. Logically, the standards expected of a minister who is not a member should be the same as, if not greater than, those required of a member.” (emphasis added)
In B.R. Kapoor, the Supreme Court went into the question of whether the governor is bound by the decision of the majority party while appointing the chief minister. The court accepted the view that the choice of the majority party regarding appointment of its chief minister is normally accepted, and rightly so. But the contention that in all eventualities whatsoever the governor is bound by the decision of the majority party is not a correct proposition, it said.
“The governor cannot be totally deprived of [the] element of discretion in performance of duties of his office, if ever any such exigency may so demand its exercise. The argument about implementing the will of the people in the context indicated above is misconceived and misplaced,” Justice Kumar held in his concurrent judgment.
In their separate judgment Justices Bharucha, Sabharwal and Pal held:
“We are in no doubt at all that if the governor is asked by the majority party in the legislature to appoint as chief minister a person who is not qualified to be a member of the legislature, or who is disqualified to be such, the governor must, having due regard to the constitution and the laws, to which he is subject, decline, and the exercise of discretion by him in this regard cannot be called in question.”
The governor, the bench held, is a functionary under the constitution and is sworn to preserve, protect and defend the constitution and the laws (Article 159).
Therefore, if the Tamil Nadu governor thinks that he should defer the invitation to Sasikala, in order to preserve, protect and defend the constitution and the laws in view of the imminent judgment of the Supreme Court, which could go against her, that is a perfectly valid exercise of his discretion in an exigency such as this.
In the event of the Supreme Court’s judgment going against her, her disqualification to be a member of the state legislature, and as a chief minister, would be retrospective, but the decisions taken by her as the chief minister, till the delivery of the judgment, would be irreversible, if appointed earlier.
This problem would not arise if the judgment is in her favour and her appointment as the chief minister, is delayed by just a few days.