With no clarity on the exact status of the health of TN CM J Jayalalithaa who has been hospitalized in Apollo hospital in Chennai since September 22, the state could be staring at constitutional crisis if the right steps are not taken by TN Governor Vidyasagar Rao, say legal experts. Jurists state that only if a deputy or acting CM is appointed by the Governor can the government function.
Times of India quotes senior lawyer KM Vijayan as saying, â€śOne cannot be the chief minister unless he/she is not in a position to aid and advise the governor, in his/her capacity as head of the council of ministers.â€ť
â€śIt is not an empty formality. A governor cannot afford to make compromises. Article 163 and 164 of the Constitution talk about how governor acts on the aid and advise of the council of ministers and chief minister, and how he appoints them,â€ť Vijayan told A Subramani of TOI.
A Deputy or Acting Chief Minister is however not a constitutional post. A sitting minister can be announced as Deputy Chief Minister and made in-charge of general administration.
â€śActing or deputy CM is not mentioned in the constitution. If a Chief Minister is unwell or out of the country, the acting or deputy CM, usually the senior most person in the cabinet, can discharge the duties of a Chief Minister,â€ť Subhash Kashyap, a constitutional expert told The News Minute.
This is not the first time that Tamil Nadu will possibly have a Deputy CM. In 2009, then Chief Minister M Karunanidhi owing to ill health had appointed his cabinet minister MK Stalin as Deputy CM. Many portfolios were reallocated to Stalin.
The legal reasoning behind appointing a deputy or acting CM, as Vijayan says, is that â€śit does not matter whether a vacancy has arisen or not, if the chief minister is not in a condition to offer advice to the governor, the governor has to ask every member of the cabinet to resign, then ask the legislature party to elect a new leader and appoint him/her as chief minister.â€ť
BJP leader Subramanian Swamy recently wrote to Home Minister Rajnath asking the centre to impose Presidentâ€™s rule in Tamil Nadu till Jayalalithaa is back in her seat.
Though party leaders and bureaucrats say they are confident of Jayalalithaaâ€™s return as Chief Minister, there is murmur within party circles as to who will run the government if her condition prevents her from doing so.
"The governor has a right to appoint a chief minister, and today the ground of 'incapacity to act' is available to him to exercise his options. Someone can be sworn in as an interim arrangement, since the governor can relieve or appoint anybody on the ground that the Constitution has to continue to work," a senior legal officer of the Union government is reported to have told TOI.
Meanwhile, former HC judge K Chandru had another pertinent question, where is the full-time Governor for Tamil Nadu? Rao is the Governor of Maharashtra, and only hold additional charge as Governor of TN.