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A five-judge constitution Bench comprising Justice S P Bharucha, Justice G B Pattanaik, Justice Y K Sabharwal, Justice Ruma Pal and Justice Brijesh Kumar reserved judgment after hearing counsel for six petitioners, Jayalalithaa and the government of Tamil Nadu on the issue.
Winding up the arguments, Attorney General Soli Sorabjee told the Supreme Court that ministers in Tamil Nadu Chief Minister Jayalalithaa's cabinet will have to resign if her appointment is held unconstitutional but all decisions taken by her would be 'saved' on account of the de-facto doctrine.
Responding to queries made by a five-judge Constitution Bench hearing six petitions challenging her appointment despite convictions in corruption cases, Sorabjee said the chief minister cannot continue to hold office once her appointment is declared unconstitutional.
In the unlikely event of her failure to do so, the governor would have to dismiss her, the Attorney General said.
"After the chief minister's resignation or dismissal, as the case may be, the governor, in his discretion can immediately appoint as chief minister any other person belonging to the party, which enjoys confidence of the House, preferably the leader of the party, which in the present case is the AIADMK," he told the court.
"In the extremely unlikely event of the party, which enjoys the confidence of the House not nominating a leader or a person for appointment as chief minister, and in view of the inability of any other party to form a ministry and a government there would be breakdown of the constitutional machinery in the state, which would attract Article 356 (imposition of President's rule) of the Constitution," he said.
The Supreme Court on September five had sought to know from the Attorney General the consequences and the redressal of an eventuality that would arise if the court declared that appointment of Jayalalithaa as chief minister was illegal.
Sorabjee said the legal consequence of invalidation of the chief minister's appointment would be that all acts, decisions, transactions taken or done or appointments made by the chief minister would be without any legal efficacy and made null and void.
However, he said on account of the de facto doctrine, the acts, decisions and transactions done or effected and appointments made prior to the declaration of invalidity of the chief minister's appointment would be saved and the same would be deemed to have been validly and lawfully done, provided the same were not in contravention of any law or in violation of the Constitution.
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