Spell out consequences of unseating Jayalalithaa: SC

By J. Venkatesan

NEW DELHI, SEPT. 5. The Supreme Court today asked the Attorney- General, Mr. Soli J. Sorabjee, to spell out the consequences and measures to redress the same in the event of the court taking a view that the appointment of Ms. Jayalalithaa as Chief Minister of Tamil Nadu and her swearing-in on May 14 was illegal and invalid.

A Constitution Bench, comprising Mr. Justice S.P. Bharucha, Mr. Justice G.B. Pattanaik, Mr. Justice Y.K. Sabharwal, Mrs. Justice Ruma Pal and Mr. Justice Brijesh Kumar, told the Attorney-General that it was not a mere question involving an individual as other consequences (for instance, the appointment of other Ministers of the Cabinet and the subsequent actions taken by them) might follow.

The Bench said, ``suppose we were to hold that Ms. Jayalalithaa could not have been sworn in and cannot continue as Chief Minister, a question arises whether the Ministers appointed by her would also be wiped out. What happens to the Government of Tamil Nadu in the interim period? We must know what are the consequences and it has to be redressed.''

Mr. Sorabjee submitted that in the event of the court setting aside Ms. Jayalalithaa's appointment, the ``doctrine of de facto'' would follow. (According to this doctrine, it is said that all actions taken by Ms. Jayalalithaa as Chief Minister and other Ministers during this period will not be nullified). Mr. Sorabjee, however, sought time to make his submissions on the points raised by the Bench.

Continuing his arguments, he said a person convicted of a grave criminal offence involving moral turpitude should not be allowed to become a Minister, much less a Chief Minister, especially when the conviction was operating on the date of appointment.

He said ``there is an implied inhibition in Article 164 (1) prohibiting the appointment as Chief Minister a person convicted by a court of grave criminal offence, and disqualification was automatic and complete''.

Mr. Sorabjee said ``our constitutional scheme interdicts the selection and appointment of a person who has incurred disqualification as a Member of Parliament or State Legislature''. He felt that ``if a person is appointed in breach of the constitutional prohibition, the appointment is bad and void ab initio. It is non est. Subsequent events cannot obliterate or overcome the initial incompetency or incapacity of the person.''

``In a responsible representative parliamentary democracy, the Government is run by an elected Ministry. The concept of an unelected Minister is foreign to such a democracy.'' He added that Article 164 (4) - like all exceptions - should be strictly construed and should not be extended to situations not contemplated in the Constitution.

Appearing for the Centre, the Solicitor-General, Mr. Harish Salve, contended that unlimited powers were unknown to the Constitution. Article 164 (4) (by which a non-member could become a Minister) was intended to acquire the qualification (namely to become a member of the Legislature) and not to shed a disqualification within the six months time limit.

Governor's action reflected people's will: counsel

By Our Legal Correspondent

NEW DELHI, SEPT. 5. Mr. K.K. Venugopal, senior counsel for Ms. Jayalalithaa, today asserted before a Constitution Bench of the Supreme Court that the then Governor's decision to appoint Ms. Jayalalithaa as the Chief Minister of Tamil Nadu under Article 164 (4) of the Constitution ``reflected the will of the people'' and that the court should not interfere in her holding the office. Mr. Venugopal contended that the Governor's action was ``not justiciable'' and the courts should refrain from going into the question of her appointment as Chief Minister.

He maintained that the only question that should be decided by the Governor was that the person being appointed Chief Minister should enjoy the majority support of the members of the Legislature Party.

Mr. Venugopal felt it would be wholly inappropriate for the court to hold that the Governor, while selecting a person as Chief Minister, would have to convert himself/herself into a quasi- judicial body taking evidence and giving a judgment whether the person selected as Chief Minister was competent to hold the post or not.

Asked what would happen if the Legislature Party elected a 22- year old person (though the Constitution provides that only those over 25 years of age could become a member of an Assembly), as the leader, Mr. Venugopal said the Governor had no option but to appoint that person as the Chief Minister, and then Article 164 (4) (which provides a six month time limit for a non-elected member to get elected to the House) would come into operation. At this juncture, the Bench asked counsel whether or not the Governor was required to take the opinion and advice of the EC. In this case, the then Governor had not done that, the Bench added.

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