After the furious meetings and exchanges of Wednesday and Thursday, Tamil Nadu now stands in the calm before the storm.
OPS continues to be confident of proving the numbers behind him. Sasikala’s MLAs stay mostly gathered in a resort on the East Coast Road, claiming that they are there of their own free will, and to show their support to the AIADMK General Secretary. And Governor Vidyasagar Rao is yet to reveal what action he will take next.
TNM spoke to constitutional expert Dr Subhash C Kashyap, to find out the likely scenarios that could play out in the Tamil Nadu Assembly soon.
What can the Governor do next?
Kashyap says that the Governor has four options before him:
1) He may choose to appoint any person as the Chief Minister and ask him or her to prove majority on the floor of the House. It is not necessary for him to appoint Sasikala, says Kashyap, since it is the Governor’s prerogative to appoint as CM the person who will command the support of the House. This could be either Sasikala or OPS.
2) He may ask the House to elect its leader and convey the name of the leader to him.
3) He may say that there are two candidates claiming the post of CM, and both claiming to have the support of the majority of the House. As it is not clear who holds the majority, the House should decide between them.
4) He may say that there are two persons staking the claim for Chief Ministership, and the deadlock between them cannot be resolved through counting heads. Under Article 175 (2), he may say that since the Council of Ministers is to be responsible to the House, the House may elect the Chief Minister by secret ballot. Kashyap points out that there is a historical precedent for this in the Jagadambika Pal case in UP, where ballot boxes were placed in the House to elect between Jagadambika Pal and Kalyan Singh.
In all these cases, the next Chief Minister would need to have a majority of all the members who are present and voting. If we should assume that every member of the Assembly is present and votes, then the magic number would be 117 legislators, since that would be a majority of the total number of 234 seats in the Tamil Nadu Assembly. The AIADMK’s strength in the Assembly is currently 134 MLAs, with the DMK strength standing at 89.
What about the anti-defection law?
Kashyap points out that the proceedings under the anti-defection law, laid out in the 10th Schedule of the Constitution, are separate from the proceedings of a government proving a majority. The anti-defection law states that a legislator may be disqualified from the House if he voluntarily gives up membership of the party on whose ticket he was elected, or if he disobeys a party directive, including a whip to vote in a particular fashion.
Kashyap says that in the case where the AIADMK issues a whip asking all MLAs to vote for Sasikala, and Panneerselvam or any others disobey this whip, a petition may be filed with the speaker for action to be taken against these members of the House. However, Kashyap adds, this process can take varying amounts of time depending on the Speaker, and is also further subject to judicial review, and so will not directly affect the appointment of Chief Minister in the immediate future.
One of the main exemptions available for Panneerselvam and others to escape being penalised for defection, is the clause relating to merger with another party. The law says that if two-thirds of the membership of a party choose to merge with another party, then their action will not result in disqualification.
Also important to note is that if the Governor should choose the fourth option, then the provisions of the anti-defection law would not apply since all the members of the house would have voted through secret ballot.