Can the TN Governor stand in the way of Sasikala’s elevation to CM’s post?

With dissent growing against CM-in-waiting Sasikala, can and should the Governor delay the swearing-in?
Can the TN Governor stand in the way of Sasikala’s elevation to CM’s post?
Can the TN Governor stand in the way of Sasikala’s elevation to CM’s post?
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With popular dissent growing against the imminent elevation of VK Sasikala as Chief Minister, all eyes are on the Governor Vidyasagar Rao after he left Chennai on Monday evening without a word on the swearing-in ceremony.

With several political leaders urging the Governor to intervene in some manner in Sasikala’s path to the CM’s seat, the question that arises is what powers the Governor possesses in this regard. TNM spoke to a few legal and constitutional experts to understand what options currently lie before the Governor.

On the question of whether the Governor can decline to swear in Sasikala altogether, there is some disagreement among experts. Constitutional expert Subhash Kashyap, for instance, argues that the provision that the that the Council of Ministers shall be responsible to the Assembly, does provide room for the Governor to exercise discretion on whether the person chosen by the legislature party does so. “If he thinks that a person other than that person will command the support of the House, he may go in for that person. But, of course, he will do so on the basis of some reasonable criteria. He would not do it arbitrarily.”

Not everyone agrees. As Chakshu Roy of PRS Legislative Research points out, “The will of the people is expressed by the political party. So, the only requirement in the Constitution is that after you assume the position of a Minister and you are not an elected member of the legislature, then you have to get yourself elected within the next six months.”

But this does not mean that the Governor has no choice but to immediately rush in and swear-in a Chief Minister. Yogendra Narain, Former Secretary General of the Rajya Sabha, points out that the Governor holds the discretionary power to decide the exact time and place at which the swearing-in is conducted. In the normal course of things, this discretionary power is not expected to be used. However, he says, in special circumstances, the Governor could ask for time to deliberate or to verify and consider all the facts such as judicial pronouncements.

“No legislature party can force the governor to immediately appoint a Chief Minister elected by the legislature party. It’s not necessary for him to do so.”

He adds that in the current circumstances in Tamil Nadu, there is particularly no great need to immediately appoint a Chief Minister, as it is not a question of inability to run the government, as would be the case if the previous Chief Minister had suddenly passed away.

But Yogendra caution that the specific reason for more scrutiny of VK Sasikala’s elevation needs to be carefully demarcated. He agrees that the Governor has the power to delay the swearing-in, in view of the fact that the Supreme Court could soon decide the disproportionate assets case in a way that automatically disqualifies Sasikala from the CM’s post.

However, he says, her elevation cannot be questioned on the grounds that it was Jayalalithaa and not Sasikala who received the mandate of the people in the 2016 elections.

“Whichever person the majority party in the legislature decides on who should be the Chief Minister is binding. The leader of the legislature party is appointed by the Governor as the Chief Minister. It’s absolutely clear that just because, in the election, people thought that Jayalalithaa would be the Chief Minister, that’s no ground to hold that Sasikala cannot become the CM now.”

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