Dr D.Ravikumar MP@WriterRavikumar
Mr. Chief Minister, Please Do Not Do This
- Ravikumar MP
In the recently concluded trust vote, a breakaway group of 25 AIADMK MLAs voted in favour of the TVK government. Whether such conduct attracts disqualification under the Tenth Schedule to the Constitution is a serious constitutional question. News reports further suggest that the Hon’ble Chief Minister is considering appointing some of these MLAs as Ministers. Whether such appointments are legally permissible is another important issue.
The legal position may be examined as follows:
In the present case, Mr. Edappadi K. Palaniswami, as the General Secretary of the AIADMK, alone possesses the authority to appoint the party Whip. The Supreme Court has unequivocally affirmed this principle in the Subhash Desai v. State of Maharashtra judgment. The Court categorically held:
“The political party and not the legislature party appoints the Whip and the Leader of the party in the House. Further, the direction to vote in a particular manner or to abstain from voting is issued by the political party and not the legislature party.”
Therefore, the whip issued by the AIADMK leadership is binding upon all members elected on the party ticket. Any MLA who defies such a whip is liable to face disqualification proceedings under Paragraph 2 of the Tenth Schedule.
At the same time, if the Hon’ble Chief Minister Mr. Vijay seeks to appoint some members of the breakaway AIADMK group as Ministers, there is, strictly speaking, no immediate constitutional prohibition against such appointments. The Supreme Court has clarified:
“Article 164(1-B) bars an MLA or a Member of the Legislative Council of a State (where one exists) from being appointed as a Minister if they have been disqualified under Para 2 of the Tenth Schedule. The bar begins to operate only upon the Member of the legislature incurring disqualification.”
The Court further observed:
“Article 164(1-B) does not interdict the appointment of a Member to the post of a Minister if a petition for their disqualification under Para 2 of the Tenth Schedule is pending adjudication before the Speaker.”
Thus, from a strictly legal standpoint, the appointment of such MLAs as Ministers may be permissible until disqualification is actually incurred. However, legality alone cannot be the sole test in matters affecting constitutional morality and democratic ethics.
Two propositions are therefore clear:
Mr. Edappadi K. Palaniswami, as General Secretary of the AIADMK, possesses the authority to appoint the party Whip. The whip issued by him is binding upon the party’s MLAs. Consequently, the 25 MLAs who voted in favour of the government, contrary to the party’s direction, are liable to face disqualification proceedings under the Tenth Schedule.
Although there may presently be no constitutional bar against appointing such MLAs as Ministers, doing so would raise serious questions of political morality and ethical propriety.
If the Hon’ble Chief Minister nevertheless intends to induct them into the Ministry, the only constitutionally cleaner course would be for those MLAs to resign their seats, join the TVK formally, and seek a fresh mandate from the people through by-elections.
Ultimately, the decisive question is political rather than legal: will the people accept such defections and re-elect those MLAs under a different party banner? That alone will test the legitimacy of such a political course.