Sasikala vs OPS: Legal options available for governor

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Chennai, Feb 10: The turmoil in Tamil Nadu continues as Governor Vidyasagar Rao is yet to take a decision on the future of the government. After meeting both O Panneerselvam and Sasikala Nataraja, the governor has sent a report to the Centre. The governor has also sought legal opinion on how to deal with the ongoing political crisis in the state.

OPS is currently the caretaker chief minister of the state. While he has offered to withdraw his resignation, the law does not permit him to do so. Sasikala, on the other hand, has the numbers and has staked a claim to form the government in TN.

Vidyasagar Rao

The legal opinion given to the government in this matter will be based on the guidelines laid down by the Supreme Court in the SR Bommai judgement.
The broad message in the Bommai verdict is that the majority enjoyed by the council of ministers should be tested on the floor of the House.

In this case, the governor will have to take a call on whether to invite Sasikala to form the government or permit OPS to prove his majority on the floor of the house. Parliamentary convention demands that the governor has to appoint the leader of the ruling party as the CM. However, if there is no clear picture, he may allow another person of his discretion to act as the CM. In both the cases, the nominated person has to prove their majority within one month.

The Bommai verdict
Article 356 of the Indian Constitution deals with the provisions in case of failure of constitutional machinery in the state. Broadly, it deals with the imposition of President's rule in the state. However, there has been misuse of this article in the past and hence the SC while interpreting the same laid down guidelines. Here are the guidelines...

--The majority enjoyed by the council of ministers shall be tested on the floor of the House.

--Centre should give a warning to the state and a time period of one week to reply.

--The court cannot question the advice tendered by CMs to the President, but it can question the material behind the satisfaction of the President. Hence, Judicial Review will involve three questions only:
--Is there any material behind the proclamation?

--Is the material relevant?

--Was there any malafide use of power?

If there is improper use of Article 356 then the court will provide remedy.

--Under Article 356(3), powers of the President has been limited. Hence, the President shall not take any irreversible action until the proclamation is approved by the Parliament and can't dissolve the assembly.

--Article 356 is justified only when there is a breakdown of constitutional machinery and not administrative machinery.

--Article 356 shall be used sparingly by the Centre, otherwise it is likely to destroy the constitutional structure between the Centre and the states. Even Dr BR Ambedkar envisaged it to remain a 'dead letter' in the constitution.

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