Court cannot go into propriety of Jayalalithaa's appointment: counsel

By J. Venkatesan

NEW DELHI, SEPT. 12. Counsel for the Tamil Nadu Government today maintained before the Supreme Court that the ``discretion'' exercised by the Governor under Article 164 (4) of the Constitution in appointing Ms. Jayalalithaa as Chief Minister was final and the court could not go into the propriety of such an appointment.

Continuing his arguments before a five-Judge Constitution Bench, headed by Mr. Justice S.P. Bharucha, counsel Mr. P.P. Rao submitted that the Governor's discretion in this regard was ``absolute and not justiciable in a court of law''.

When the Bench asked counsel whether the Governor could ``appoint anybody regardless of the provisions of the Constitution - a lunatic, an undischarged insolvent, a person below 25 years of age and even a foreigner - as Chief Minister'', Mr. Rao answered in the affirmative. Asserting that the Governor's discretion was absolute and untrammeled, Mr. Rao contended that ``legally it is possible''.

He further submitted that such an appointment on the face of it ``may be an absurdity, but it is for the House to decide whether to accept such a person or bring a no-confidence motion to remove that person''.

When counsel submitted that the Governor's action could not be questioned in a court of law in view of the immunity under Article 361 of the Constitution, the Bench was quick to point out ``that the immunity is only to the Governor and not to the appointee. The appointee (Ms. Jayalalithaa) has to justify that her appointment was legal and in accordance with law''.

Mr. Rao cited a number of judgments to drive home the point that the courts had refrained from going into the actions of the Governor in exercise of his/her discretionary function. As the order of appointing Ms. Jayalalithaa as Chief Minister was made by the Governor without the aid and advice of the Council of Ministers, such an action was not justiciable, he contended.

Referring to Ms. Jayalalithaa's ``conviction'', counsel submitted that as the ``sentence'' had already been suspended, there was no need to suspend the ``conviction'' also. He said ``when the sentence is suspended, one wheel gets immobilised and therefore, disqualification cannot operate by the force of conviction alone''.

The Bench told counsel: ``you are advancing such arguments in this case on behalf of the State because the Chief Minister is involved. Will you advance the same argument for an ordinary citizen also. It is a contention which no court could accept''. Mr. Rao submitted that the argument could not be otherwise.

Counsel submitted that ``there are very few mass leaders in the country. The court should ensure that rule of law does not result in irreversible circumstances as it (court) could not give a better leader acceptable to the majority of the Members in the Assembly''.

Mr. Rao contended that when Ms. Jayalalithaa's appeals were pending, ``they could not be rendered infructuous either wholly or partly by making a person suffer irreparable loss due to penal consequences like disqualification during the pendency of the appeals as that would be unreasonable, unjust and unfair''.

He will continue his arguments on Thursday.

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