Legal restraint

The Constitution, as interpreted by the Supreme Court in 2001, is categorical as to when a non-legislator can be appointed a Minister.

Acting Governor Ch. Vidyasagar Rao with Chief Minister O. Panneerselvam at Raj Bhavan, Chennai, on February 9.

TAMIL NADU’S political stalemate may appear to unfold a constitutional crisis of sorts. The Acting Governor of Tamil Nadu, Ch. Vidyasagar Rao, as the magazine edition goes to press, wanted to wait until the delivery of the Supreme Court’s judgment in the disproportionate assets case involving V.K. Sasikala, whom the majority of the ruling All India Anna Dravida Munnetra Kazhagam (AIADMK) MLAs initially elected to replace O. Panneerselvam as the Chief Minister.

With the rival factions in the ruling party preparing themselves for the possible numbers game in the Assembly, the Acting Governor was in no hurry to precipitate the showdown by inviting one or the other to form the government. Both Panneerselvam’s resignation and Sasikala’s election as the leader of the AIADMK legislature party were tainted by allegations of duress and irregularities.

The Acting Governor apparently thought that if the judgment went against Sasikala’s acquittal by the Karnataka High Court, it would result in her disqualification as a member of the Assembly and thus relieve him of the unpleasant burden of inviting her to form the government.

In the event of Sasikala being disqualified because of an adverse verdict from the Supreme Court, Sasikala’s faction would inevitably have to elect a new leader as a substitute until and if at all she is able to erase her disqualification by using further legal remedies, or by undergoing the sentence imposed on her.

Therefore, it made sense to the Governor to wait until the delivery of the judgment, which appeared imminent. One of the two judges who heard the case, Justice Pinaki Chandra Ghose, promised Dushyant Dave, senior counsel for the appellant, the State of Karnataka, during court proceedings that the judgment would be delivered in the week beginning February 13.

But uncertainties made the Governor’s decision to wait, rather than respond to the political crisis, unwise. What if the two-judge bench, which heard the disproportionate assets case involving Jayalalithaa and Sasikala, delivered a split verdict, leading to its reference to a larger bench? That would entail a fresh hearing of the parties concerned and further deferring of the binding verdict. Can the democratic process of a swearing-in of a State Ministry wait for an uncertain judicial verdict?

The only constitutional bar against Sasikala’s appointment as the Chief Minister appears to be Article 164(4) of the Constitution. Under this provision, a Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister.

B.R. Kapoor case & threshold bar on Sasikala

Although this provision has been examined a number of times by High Courts and the Supreme Court, it is in B.R. Kapoor vs State of Tamil Nadu , delivered by the Supreme Court’s five-judge Constitution Bench in 2001, that one finds the sharpest analysis. The case arose out of writ petitions challenging the appointment of Jayalalithaa as the Chief Minister in May 2001 when she was not a member of the State Assembly. She had been convicted in a corruption case and her sentence was under stay granted by the Madras High Court. As a result, her nomination papers were rejected by the Returning Officers for the Assembly elections. The Supreme Court held in September 2001 that she stood disqualified as a result of her conviction in the case and therefore her appointment as the Chief Minister was unconstitutional. The Supreme Court held that the fact that she could legally challenge her conviction in the appellate court and thus erase her disqualification subsequently with retrospective effect was no reason to appoint her under Article 164(4) of the Constitution.

Subsequently, Jayalalithaa did prove her innocence in that case and got herself acquitted in the appellate court; she thus erased her disqualification retrospectively. But the Supreme Court’s reasoning in B.R. Kapoor was clear enough: a non-legislator who stood disqualified to be a member of the Legislative Assembly because of her conviction by a trial court for an offence specified in the Representation of the People Act could not be made a Minister or a Chief Minister under Article 164(4). The Supreme Court was categorical that any other interpretation of the provision would be contrary to the principles of the Constitution.

In 2015, a trial court in Karnataka convicted and sentenced Jayalalithaa, then Chief Minister of Tamil Nadu, in the disproportionate assets case, and she was disqualified, for the second time, from the date of conviction. Consistent with the Supreme Court’s ruling in B.R. Kapoor , she did not seek the Article 164(4) route to become Chief Minister again but waited until the Karnataka High Court acquitted her in the case and erased her conviction and disqualification retrospectively.

It is this acquittal that was appealed against in the Supreme Court by the State of Karnataka, which under the Supreme Court’s directions prosecuted the case against her. Sasikala is a co-accused in the case.

The Supreme Court’s two-judge bench, comprising Justices Pinaki Chandra Ghose and Amitava Roy, heard counsel for all the accused and the appellants in the case and reserved its verdict on June 7, 2016.

In the meantime, as Jayalalithaa passed away, the case against her is likely to abate, but those against her co-accused would survive.

But it is not this pending Supreme Court judgment but the one in B.R. Kapoor that appeared to cast a definite shadow on Sasikala’s prospects of being sworn in as the Chief Minister. All the three concurring judgments in B.R. Kapoor are unanimous that Article 164(4) cannot be used to appoint someone not qualified to be or disqualified as a member of the Assembly or as a Minister or Chief Minister. The three judgments were delivered by the then Chief Justice, G.B. Pattanaik, Justice S.P. Bharucha on behalf of himself and Justices Y.K. Sabharwal and Ruma Pal, and Justice Brijesh Kumar. Justice Pattanaik’s judgment makes the point that Article 164(4) was intended by the framers of the Constitution to appoint a competent person who was just defeated in the general election.

Justices Bharucha, Sabharwal and Ruma Pal held as follows: “The provision of sub-Article (4) of Article 164 is meant to provide for a situation where, due to political exigencies or to avail of the services of an expert in some field, it is requisite to induct into the Council of Ministers a person who is not then in the legislature.”

Justice Brijesh Kumar held in his separate judgment that the Governor was not bound by the decision of the majority party in all eventualities and that he could not be totally deprived of the element of discretion in the performance of his duties. Justice Brijesh Kumar, who had the privilege of reading the separate judgments of his colleagues on the bench, was conscious of the possible interpretation of his judgment in future.

Reading these three together, it is obvious that the person to be appointed under Article 164(4) must satisfy the following. She must have lost the just concluded general election (political exigency) but her competence is so valued by the legislature party, or the Chief Minister, that she is appointed as the Chief Minister or a Minister. The “political exigency” referred to in Justice Bharucha’s judgment need not necessarily arise only when a person loses a general election preceding the formation of a new government. It can also be a result of the non-legislator not contesting the preceding general election because of other political or constitutional commitments.

Thus Arun Jaitley would qualify to be appointed as a Union Minister under the corresponding provision of Article 75(5) in 2014: he lost the preceding general election to the Lok Sabha from Amritsar and his competence was valued by both the Prime Minister and his party.

In 1996, H.D. Deve Gowda was appointed the Prime Minister under the same provision of the Constitution because he did not contest the preceding general elections to the Lok Sabha, as he was then the Chief Minister of Karnataka who was chosen by the constituents of the United Front to be its leader in Parliament. Within six months of becoming the Prime Minister, Deve Gowda got himself elected to the Rajya Sabha. More important, he did not suffer from a possible disqualification hanging like the sword of Damocles over his head during those six months, as Sasikala would have suffered had she become the Chief Minister under Article 164(4). In S.P. Anand vs Deve Gowda , the Supreme Court, therefore, did not consider the challenge to his appointment a serious one.

Sasikala, on the contrary, was not considered as a candidate for the last Assembly elections in Tamil Nadu by the AIADMK. There is nothing to show the party or its leader considered fielding her in any of the byelections to the Assembly held after the general elections. It cannot also be said that Sasikala could not have contested the elections to the Assembly earlier because of other political or constitutional commitments.

Sasikala does not qualify for appointment under Article 164(4) The AIADMK led by her has so far been silent on political exigency, or her competence for governance, which would have been crucial in considering her appointment under Article 164(4). As the factual ingredients necessary to invoke these grounds are absent in the case of Sasikala, she does not qualify to be considered for appointment under Article 164(4) even if the Supreme Court’s judgment in the assets case is in her favour.

This is not to suggest that Sasikala may not have any competence at all that would prove an asset in governance, as compared with others. She might very well possess leadership qualities and abilities to govern that have so far remained unutilised or unrecognised. She has, in fact, all the qualifications prescribed in the Constitution to become a member of the Assembly and, therefore, the Chief Minister.

But her handicap is that she cannot invoke Article 164(4) of the Constitution to be appointed Chief Minister as the Supreme Court has restricted its use to certain limited contexts, as explained in B.R. Kapoor . She is, therefore, free to contest a byelection to seek membership of the Assembly if she is not otherwise disqualified to be a member when she files her nomination for the election.

In B.R. Kapoor , both Chief Justice G.B. Pattanaik and Justice S.P. Bharucha relied on what B.R. Ambedkar said during the Constituent Assembly debates. While discussing the draft provision of the current Article 164(4), Ambedkar 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 privilege that he is permitted is a privilege that extends only to six months.”

Despite Ambedkar’s justification of Article 164(4) in the Constituent Assembly, the Supreme Court sought to restrict its use in practice as it was meant as an exception rather than a rule. In S.R. Chaudhuri vs State of Punjab (2001), the Supreme Court quashed the reappointment of a Minister under Article 164(4) after a gap, on completion of six months, thus: “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.”

In B.R. Kapoor , the Supreme Court not only reiterated this view but further strengthened the restrictions on use of Article 164(4) by non-legislators. Justice G.B. Pattanaik held: “Founding fathers allowed a competent person to be appointed as Chief Minister or a Minister for a limited period of six months, who might have been defeated.”

Justice S.P. Bharucha held in his judgment: “The framers of the Constitution had not visualised that a non-legislator could be repeatedly appointed a Minister, for a term of six months each, without getting elected because such a course struck at the very root of parliamentary democracy. It was accordingly held that the appointment of Tej Prakash Singh as a Minister in Punjab for a second time was invalid and unconstitutional.”

Similarly, it could be contended that the framers did not visualise that a non-legislator whose very ability to get elected to the Assembly within six months was under a cloud because of the final proceedings against her in the Supreme Court could be considered for appointment as a Chief Minister under Article 164(4).

Justice Bharucha held in B.R. Kapoor : “The requirement of sub-Article (4) being such, it follows as the night the day that a person who is appointed a Minister though he is not a member of the legislature shall be one who can stand for election to the legislature and satisfy the requirement of sub-Article (4).”

If one can put it differently, he or she must be someone who can stand for election to the legislature without any doubt whatsoever to the contrary. If the Supreme Court’s imminent judgment creates a doubt about this, is it advisable for the Governor to appoint that person under the very provision that seeks to rule it out if the doubt is confirmed?

Justice Brijesh Kumar held in B.R. Kapoor : “It is no doubt true that even in written Constitution, it is not possible to provide each and every detail. Practices and conventions do develop for certain matters. This is how democracy becomes workable. But 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. The argument about implementing the will of the people in the context indicated above is misconceived and misplaced.”

Whatever the denouement in Tamil Nadu’s political crisis, a future historian would always be keen to know whether the Acting Governor of the State acted in consistence with the letter and spirit of the Supreme Court’s judgment in B.R. Kapoor in order to defend the higher constitutional values for which he had taken the oath.