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AG’s Advice Wrong, Appoint CM Before Floor Test in Tamil Nadu: Experts

AG’s Advice Wrong, Appoint CM Before Floor Test in Tamil Nadu: Experts

A file image of O Panneerselvam, Governor Vidyasagar Rao and AIADMK General secretary VK Sasikala

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New Delhi: ALL roads in Tamil Nadu seems to be leading now towards the state Assembly and an inevitable floor test on if it is O Panneerselvam or Edapadi Palaniswami – the nominee of the VK Sasikala faction – who enjoys the confidence of the House. But what if the very idea of a floor test without swearing in a full government would be violative of the Constitution?

A range of experts including former Lok Sabha Speaker Somnath Chatterjee, former Lok Sabha deputy speaker PD Thankappan Achary, and noted political scientist Sudha Pai told News18 that before he conducts a floor test and solves the crisis, the governor should first know the mind of the MLAs and install a new government.

This runs contrary to the legal advice furnished by Attorney General Mukul Rohtagi who had said there is an elected Chief Minister in O Pannerselvam, and hence a floor test can be conducted.

The three experts that News18 spoke to were united in that Panneerselvam, who is a caretaker CM, cannot be treated constitutionally as an elected chief minister lording over a council of ministers.

Chatterjee, Speaker of the 14th Lok Sabha, said Governor Vidyasagar Rao has to first appoint a Chief Minister and a council of ministers, which would fulfill the condition of an elected government being in place.

“It is only then that a floor test can be done. When there are doubts, claims and counter claims as to who holds the CM post then it would not be against the spirit of the Constitution if the governor in a bona fide manner appoints a person to be the CM and the council of ministers and then have a floor test conducted in the assembly to judge who enjoys the majority support.”

Chatterjee suggested that the right way to go about this would be to call the MLAs to the Raj Bhawan and ask their opinion individually to understand who enjoys their support.

PD Thankappan Achary, former Secretary General of Lok Sabha and an expert on Indian Constitution, concurred with Chatterjee’s observation.

“It has to be seen whether the MLAs voluntary support Palaniswamy or not, which is highly unlikely according to me. In this case, the governor has to call all the MLAs to the Raj Bhawan and ask them individually if they support Palaniswamy or not. Only after this exercise, the governor can elect a Chief Minister and a Council of Ministers,” said Achary.

He dismissed Advocate General Rohatgi’s legal advice given to the governor to conduct a composite floor test. “It is alien to the Constitution to have a floor test without having a government in place,” he told News18.

“The AG has stated that a composite floor test has to be done, which was devised by the Supreme Court in 1998 during the power struggle between Charan Singh and Jagdambika Pal in Uttar Pradesh. But floor test without an elected government in place is alien to the constitution and to the rule of law. The government has to be in office and it has to move the confidence motion. This is the function of the government and not the governor. The governor, in this case, can act only on the aid and advice of the Chief Minister and the council of Ministers. But since in this case, there is confusion over CM and council of ministers, the governor should appoint them first and then move on to the option of a floor test,” said Achary.

Sudha Pai, Professor at Centre for Political Studies at the Jawaharlal Nehru University, told News18 that a floor test cannot be an option unless there are two clear parties, one who is the government in power and the other who contends that the government does not enjoy the majority. Pai said that in the present circumstances, there is confusion amidst the government itself and hence a floor test just cannot be the immediate option as suggested by the AG.

“I do not recall a single instance when the floor test has been done without an elected government. The Governor needs to talk to the MLAs individually to assess their support and appoint the Chief Minister and Council of ministers. There exists an option of parading the MLAs but that only leads to more MLAs being horse-traded. After forming the government, a time limit can be set to prove majority on the floor of the house. There is no split in the party and it is only a fight for political power,” said Pai.

Achary dismissed Panneerselvam’s contention that he now wishes to withdraw his resignation under as the Chief Minster called such an act “unconstitutional.”

“Our Constitution has no provision which allows the withdrawal of such a resignation. He cannot even rake up the point of duress because that goes against him and qualifies him as unfit for the post of the CM. In this case the Governor should immediately allow the formation of an alternative government and in the meanwhile has asked Panneerselvam to continue as the caretaker CM,” said Achary.

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