SC reserves order on validity of Jayalalithaa's appointment

By J. Venkatesan

NEW DELHI, SEPT. 13. Even as the Supreme Court today reserved orders on a batch of petitions challenging the appointment of Ms. Jayalalithaa as Tamil Nadu Chief Minister by the then Governor, the Attorney-General, Mr. Soli Sorabjee, told the court that in the event of her appointment being held invalid, ``Ms. Jayalalithaa and her Council of Ministers should resign''.

A five-Judge 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, reserved orders at the conclusion of marathon arguments by the counsel for the parties for six days spread over two weeks.

Earlier, responding to queries of the Bench regarding the consequences if the court held Ms. Jayalalithaa's appointment unconstitutional, Mr. Sorabjee submitted that, in such a situation, she could not hold office thereafter.

He submitted that in the unlikely event of her not resigning, the Governor was bound to dismiss her. Once the Chief Minister resigned or was dismissed, the other Ministers appointed by her would automatically lose office. It was for the Governor to appoint any other elected leader from the AIADMK legislature party as Chief Minister and on his/her recommendation other Ministers, he said.

Mr. Sorabjee submitted that ``in the unlikely event of the party, which enjoys the confidence of the House, not nominating a leader or a person (other than Ms. Jayalalithaa) for appointment as Chief Minister, and in view of the inability of any other party to form a Ministry and Government, there would be a `breakdown of constitutional machinery' in the State, which could attract imposition of `President's rule' under Article 356 of the Constitution''.

Regarding actions and duties performed by Ms. Jayalalithaa and her Cabinet colleagues during this interregnum, Mr. Sorabjee said ``on account of the `de facto' doctrine, acts, decisions and transactions done or effected and appointments made prior to the declaration of invalidity of the Chief Minister's appointment would be saved and the same would be deemed to have been validly and lawfully done, provided the same were not in contravention of any legal or constitutional requirements''.

He contended that ``the Chief Minister prior to declaration of invalidity of her appointment could not be regarded as an intruder or usurper''.

He made it clear that ``the rule of law and constitutional values must be preserved. Courts performing their functions of constitutional adjudication and reaching their decisions are not deterred by the prospect of lurid consequences and apprehensions of chaos that may be projected''.

Mr. Sorabjee argued that the Governor did not have an absolute or unfettered discretion in the appointment of a person as Chief Minister under Article 164 (4). ``The concept of an unelected Minister is alien to parliamentary democracy and Article 164 (4) was only an exception which should not be extended to situations not contemplated by it,'' he submitted. Appearing for one of the petitioners, Mr. V. Selvaraj (a Chennai advocate), senior counsel, Mr. Fali Nariman, referred to the argument of counsel for Ms. Jayalalithaa that the `will' of the people was supreme and said ``constitutional law is not a matter of majority vote. If constitutional law comes in the way of people's mandate, it is the Constitution which alone shall prevail.''

Mr. Nariman cited a United States Supreme Court decision wherein it was held that a law enacted - after a State referendum with 94 per cent of the people favouring such a legislation - was struck down though it had the people's support. The counsel also questioned the wisdom of the Tamil Nadu Government stating that ``there is no violation of law in the Governor appointing Ms. Jayalalithaa as the Chief Minister''.

Senior counsel, Mr. Anil Divan, appearing for two petitioners, Mr. Dhananjayan Chauhan and Mr. Pratap Singh Chautala, submitted that the controversy before the court might be political in character, but so long as it involved determination of a constitutional question, the court could not decline to entertain it.

Mr. Ashok Desai, senior counsel for Mr. B.R. Kapur, contended that Article 164 (4) was intended for non-members to become Ministers for a limited period provided such a person was qualified to become a member within this period. ``It is a good governance provision, which should not be so read as to allow those persons who are ineligible at the time of appointment to become Ministers,'' he submitted.

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