'Paneerselvam should chargesheet Sasikala'

'If the interim chief minister lodges a criminal complaint against Sasikala for grabbing power through coercion, she has to face one more case.'

K M Vijayan, lawyer and Constitutional expert, discussed with Rediff.com's Shobha Warrier the options before Tamil Nadu Governor Ch Vidyasagar Rao.

Some people say the governor has the discretionary power to decide whether to swear Sasikala in as the chief minister of Tamil Nadu, or not. Do you think so?

Yes. A governor has to consult the council of ministers after they were installed.

But before their installation, it is within the discretion of the governor to appoint the chief minister and other ministers.

Of course, the discretion has to be followed procedurally like in the S R Bommai case; he has to see whether the claimant has the majority support or not.

But as far as Sasikala is concerned, she has a bar to approach under Article 164-4, that is, without becoming an MLA, she cannot claim to be the chief minister.

It is not a problem for anyone who is an MLA. She is not an MLA and there is a criminal case pending in the Supreme Court and the judgment is awaited.

The criticism against the governor was that he did not swear in Sasikala as the chief minister...

Let me go back a little. Then governor Fatima Beevi was questioned by the Supreme Court for swearing in Jayalalithaa as the chief minister in 2001. Jayalalithaa used the opportunity to swear in to get over a hurdle.

In Sasikala's case, whether it is true or not, she has forcibly removed Paneerselvam from the post of chief minister.

So, the governor has to see whether she has any ill motive behind forcibly removing Paneerselvam from the post.

She also cannot call herself the leader of the legislature party because to be the leader of the legislature party, she has to be a member.

As per the 10th Schedule of the Constitution, legislature party means a house consisting of its members whether it is the legislative assembly or Parliament which she is not.

How does the Constitution look at calling a person who is not a member of the legislative assembly?

There is only one exception, that is 154-4, but it cannot be used as a fully enabling provision.

When you are using an exception, you have to see whether the person has an extraordinary reason to claim so.

In Sasikala's case, she has got so many cases against her. So, it is not necessary that the exception should be exercised all the time.

So, by not swearing her in till now, the governor has not done anything wrong Constitutionally?

Yes.

Some people also say that when there is so much public anger against the person, the governor should take this also into consideration before taking a decision. Is it true?

It is a very subjective matter.

When Fatima Beevi invited Jayalalithaa, it was said that she had the public support behind her and that was cited as the reason behind calling her to be the chief minister.

But it was ruled that public support is immaterial to the Constitution.

The Constitution has nothing to do with public sentiments. It has some value only when there is a very big movement like what we saw for jallikattu.

It was also said that nobody should use this exception to gain a back-door entry.

Do you think from the Constitutional point of view, what Sasikala is trying is a back door entry?

Absolutely.

The governor should not call Sasikala for two reasons.

Under 193 of the Constitution, the MLAs have a right to sit in the assembly only if they take oath under 188.

Even if somebody is elected an MLA, if s/he doesn't take the oath, s/he cannot sit in the assembly.

In the case of Sasikala, if she becomes the chief minister, how can she sit in the assembly?

This aspect has not been taken forward by anyone.

You cannot have a situation where she cannot enter the assembly until she is elected.

In the case of Jayalalithaa also, it was challenged when she was made the chief minister by Fatima Beevi, and the case was Kapoor vs Jayalalitha in 2001.

What are the Constitutionally right options in front of the governor now?

The first option in front of the governor is to call Paneerselvam and ask him to prove his majority.

The majority need not be from within the party; it can be outside support too.

There is no provision for Paneeselvam to withdraw his resignation as it has been accepted and he is the interim chief minister now.

Second option is anyone other than Sasikala from her faction can stake claim because of the pending Supreme Court verdict.

Is there any Constitutional crisis to call for President's rule in the state?

Not at the moment.

Only if none of them are able to prove a majority that a Constitutional crisis arises and Article 356 will be used.

But all attempts will be made before it is used, like asking Paneerselvam first and then any other member from the party.

Does that mean calling Sasikala cannot be an option at all?

Yes, Sasikala cannot be an option at all.

If it is done, it can be challenged in court because an exception cannot be used by someone to grab power.

What she is doing is grabbing power.

If the interim chief minister lodges a criminal complaint against Sasikala for grabbing power through coercion, she has to face one more case.

I don't know whether he will do it or not.

If I was his advisor, I would advise him to chargesheet Sasikala Natarajan first.

So, the governor can use the impending Supreme Court verdict as a reason not to call her?

Yes.

The criticism against the governor is that he is in Mumbai when there is a Constitutional crisis in Tamil Nadu. Is it a valid criticism?

No. He is the governor for both states (Maharashtra and Tamil Nadu) and there is no Constitutional crisis in Tamil Nadu.

It is not a state without a ministry.

After Jayalalithaa's death, a ministry has been sworn in.

Now also, he has made interim arrangements.

It is not that there is no council of ministers.

The Election Commission has questioned Sasikala's elevation as the AIADMK general secretary, saying the party cadres also have to elect the general secretary.

Yes, she is not elected as per the bylaws of the party.

There is no such post as the interim general secretary.

What the bylaw says is there should be a team of executives to perform the role of general secretary until a person gets elected.

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