Editor's note: This article was originally published on 10 February. It is being republished in light of the fact that the Supreme Court is expected to announce its verdict in the disproportionate assets case on Tuesday.
The ongoing O Pannerselvam (OPS) versus VK Sasikala saga now has a third critical player, who will command Tamil Nadu’s eyes and ears in the next few days — Governor C Vidyasagar Rao. Now, it will be not only his decision, but also how fast he takes it, that will decide the fortunes of the current protagonists.
Both OPS and Sasikala have presented their cases to Rao. OPS hasn’t disclosed what his plea to the governor was, but from his earlier remarks it may be safely surmised that he wants his resignation to be withdrawn and be allowed to prove his majority in the Assembly. Sasikala too hasn’t said anything in public, but she couldn’t have done anything other than presenting evidence of the support of a majority of the AIADMK MLAs and staking her claim to be sworn in as the chief minister at the earliest.
Rao’s office too hasn’t made any disclosure and nobody knows what he’s going to do except that he will take time to explore his discretionary powers under Article 163 (2). Although the limitations of the governor’s discretion have been clarified by a constitutional bench of the Supreme Court in the Nabam Rebia and Bamang Felix versus Deputy Speaker and others last year in which the apex court quashed Arunachal Pradesh governor JP Rajkhowa's decision to advance the Assembly session from 14 January, 2016 to 16 December, 2015, nothing prevents him from taking some new testing shots.
In fact, that’s also what former finance minister and eminent lawyer P Chidambaram told The Hindu: "Constitutionally, the governor is bound to swear in the leader elected by a party which enjoys a majority, there is, however, a small window where the governor can exercise his discretion and say, 'For the following reasons, I would like to wait for a few days'. It (window of discretion) has not been tested constitutionally yet, but it is, I believe, available to the governor."
Academic literature shows that the governor indeed has some freedom of circumstantial discretionary powers although the interpretations of the basic text of Article 163 (2) have been limited by the SC verdict on Arunachal Pradesh. Rao can still explore his possibilities and exercise them even if they are open to judicial review. In the light of the 2016 verdict, Sasikala should feel more secure, but that the governor is still free to test the "window of discretion" even at the risk of being challenged in a court will put OPS in a relaxed state of mind.
Sasikala obviously wants it to happen immediately, but OPS can wait and wants to wait. The longer the imbroglio lasts, the better for him. Sasikala has no time and is in a hurry, while OPS has all the time in the world and would want to take it easy.
The legal grounds for OPS’ argument that he was made to resign under duress or that he had been duped into resigning by Sasikala to get his resignation withdrawn are extremely weak going by the verdict on Arunachal Pradesh. Justice JS Khehar, who led the five-judge bench, was decidedly clear on how far can a governor go. "The governor must remain aloof from any disagreement, discontent or dissension, within political parties. The activities within a political party, confirming turbulence, or unrest within its ranks, are beyond the concern of the governor. The governor must steer clear of any political horse-trading, and even unsavoury political manipulations."
In fact, under law, OPS doesn’t have a case. If at all Rao allows him to withdraw the resignation, it will be certainly at the risk of getting rapped by the judiciary.
A finer reading of Article 163 (2) actually makes it clear that the discretionary powers of the governor are not absolute. This is what the Article says: "If any question arises whether any matter is or is not a matter as respects which the governor is by or under this Constitution required to act in his discretion, the decision of the governor in his discretion shall be final, and the validity of anything done by the governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion."
The operative portion here is the word 'discretion', but also part of the sentence that reads “…governor is by or under this Constitution required to act in his discretion…”. In other words, the discretion must be constitutionally justifiable.
However, the space that the governor can use a little more freely is how he decides who can be the chief minister or who can be given a chance because the Constitution doesn’t stipulate any guidelines. In fact, various governors have used different yardsticks for making this decision.
Before acceding to Sasikala’s claim of majority, the governor can make his own assessment based on media reports or other inputs that the MLAs have been forcefully detained, they are unreachable, and their signatures might have been forced. Nothing prevents him from disbelieving the signatures submitted by Sasikala and hence putting off his decision until he is satisfied. As former Chief Justice of India AK Sarkar, notes (Office of the Governor: A Critical Study, JR Siwach, Sterling Publishers, 1977), "The governor should make endeavours to appoint a person who has been found by him as a result of his soundings to be most likely to command a stable majority in the legislature.”
Athough the Supreme Court order on Arunachal Pradesh did relax the invincibility of the discretionary power of the governor, its application will not be free from supportive material. In the case of the Arunachal Pradesh governor’s intervention, the material was against him; but if Rao has enough evidentiary material to go ahead in applying his discretion, he will be justified.
Anyway, what OPS wants is time and nothing else. The longer it takes, the harder for Sasikala for three reasons: One, it won’t be easy to keep 130 people insulated from the rest of the world for more than a few days; two, OPS’ continuation as the caretaker chief minister will check her influence on the state administration, particularly the police; and three, an adverse verdict on the disproportionate assets case will finish her political career before it even takes off.
Under all these circumstances, the chances of the MLAs switching loyalty is rather high. It’s certainly not principles that are keeping the MLAs with her, but the possibility of staying in power. The moment they realise it’s slipping out of her hand, they will switch sides.
And there is nothing that can prevent Rao from taking his time because that discretion hasn’t been judicially reviewed yet.
Updated Date: Feb 14, 2017 09:47 AM