Legal experts raise questions about the validity of the Election Commission's Order on disqualification and see certain incongruities with regard to the powers of the Returning Officers in this context.
DID the Returning Officers (R.Os) concerned err in rejecting the nomination papers of All India Anna Dravida Munnetra Kazhagam general secretary Jayalalitha in four constituencies in Tamil Nadu while those of Kerala Congress(B) leader and former Minister R. Balakrishna Pillai were accepted in Kottarakkara constituency in Kerala? Chief Election Commissioner M.S. Gill has endorsed both decisions, saying that the Election Commission's (E.C.) Order issued in August 1997 had legal backing and that the R.Os had interpreted it correctly. While Jayalalitha attracted disqualification under Section 8(3) of the Representation of the People Act (RPA), 1951, Balakrishna Pillai derived benefit from Section 8(4) of the Act. According to Gill, Section 8(4) says that conviction against a Member of Parliament or a Member of the Legislative Assembly gets postponed for three months from the date of the trial court order, and once an appeal is filed disqualification does not come into effect till the disposal of the appeal.
The acceptance of Balakrishna Pillai's nomination has been challenged in the Kerala High Court. Whatever the outcome of this case, observers see certain incongruities in this context with regard to the R.Os' powers.
First, there is lack of clarity about the contents of the E.C.'s Order of 1997. Legal experts, for instance, pointed out that the Order suffers from insufficient phraseology. Its operative part says: "The disqualification under Section 8 of the Representation of the People Act, 1951, for contesting elections to Parliament and State Legislatures, on conviction for offences mentioned therein, takes effect from the date of conviction by the trial court, irrespective of whether the convicted person is released on bail or not during the pendency of appeal (subject, of course, to the exception in the case of sitting members of Parliament and State Legislatures under sub-section (4) of the said Section 8 of the Representation of the People Act, 1951)."
The Order is silent about suspension of sentence by an appellate court. Suspension of sentence amounts to a stay and it appears that there have been occasions when courts have granted bail to convicted persons without suspending the sentence. It is argued that since Jayalalitha has secured, by means of a stay order, the suspension of the sentence imposed by the trial court, the E.C.'s Order may not strictly apply in her case.
However, since the Order cites three High Court judgments to assert that suspension of sentence alone is not sufficient to prevent disqualification, it could well be suggested that the operative part of the Order should be understood in the context of the court rulings cited in it. A convict who has secured bail could argue that his sentence also stands suspended, but a convict who has secured a suspension of sentence through a stay order appears to be on a stronger wicket.
For Section 8(3) of the RPA to be invoked against a person, it is necessary that he or she should have been convicted and sentenced to imprisonment for not less than two years. Some legal experts suggest that if the sentence is dormant because of a stay order secured from an appellate court, Jayalalitha may be right in arguing that Section 8(3) could not be invoked against her. P.P. Rao, a senior lawyer, argues that if sentence is suspended, conviction does not come into operation. Conviction minus sentence is an inconsequential finding, he says. According to him, Justice Malai Subramanian's 'inconsistent' judgment (dismissing Jayalalitha's writ petition in the Madras High Court seeking suspension of her conviction in two corruption cases) has perhaps resulted in the R.Os' decision against Jayalalitha. (P.P. Rao appeared in the Madras High Court in the case on behalf of Jayalalitha.)
The chief culprit in this controversy, according to senior lawyer Rajeev Dhavan, is the E.C.'s Order. He says: "It is not a detailed circular. It treats the grant of bail and suspension of sentence as two sides of the same coin, which I consider is inexactitude of phraseology. The E.C. must have been absolutely clear about its stand. If the Returning Officer has to decide, then it should have said so, and refrained from issuing this circular."
Experts raise the following questions: If R.Os are quasi-judicial officers according to the E.C., why do they need this Order? In that case, can the E.C. issue administrative directions to R.Os? In the absence of the Order, can R.Os not interpret the relevant provisions in the RPA and enforce them?
In its order the E.C. has cited the Allahabad High Court's judgment in the Sachindra Nath Tripathi vs Doodnath case. A reading of the judgment shows that the criticism of the E.C.'s Order is not entirely without legal merit. Doodnath was convicted by the trial court for offences under Sections 302 and 307 of the Indian Penal Code and was on bail during the period of the election. While declaring his election to be void, the High Court said: "The disqualification, which is an automatic effect of conviction, springs up right at the time of pronouncement of conviction, which finding is yet to be reversed or set aside... It is to be seen as to what is the effect of the bail granted to the respondent before the date of filing the nomination paper. If no bail is granted and the execution of the sentence is not suspended by the stay orders then the accused will remain in jail and the only effect of granting bail is that he is released from the confinement. Grant of bail does not interfere with the finding of conviction and that cannot render the disqualification automatically emerging from conviction inoperative."
The E.C.'s Order also cites the Supreme Court's judgment in the Rakesh Singha case. Although the Supreme Court dismissed Singha's appeal against the Himachal Pradesh Court's ruling (in Vikram Anand vs Rakesh Singha, etc.) that Singha's election was void in view of his conviction in a criminal case, it did not dismiss Singha's election appeal. A careful reading of the Supreme Court's judgment, say experts, shows that it was Singha's counsel who withdrew the election appeal, conceding that it became irrelevant in view of the dismissal of his appeal in the criminal case. But the E.C.'s Order says that the Supreme Court "dismissed the election appeal holding that Shri Singha was disqualified ab initio for contesting election under Section 8(3) of the RPA, 1951." However, experts point out that the Supreme Court did not use the expression ab initio, and indeed, had no occasion to consider Singha's election appeal, which was withdrawn by his counsel. Therefore, the E.C.'s claim about the disqualification of Singha under Section 8 (3) of the RPA appears to be the result of an oversight and, perhaps, a wrong impression.
Some analysts point to the E.C.'s failure to consider the Supreme Court's judgment in the V.C. Shukla case. The E.C.'s Order cites the Madhya Pradesh High Court judgment in Purshottamlal Kaushik vs Vidya Charan Shukla, declaring as void Shukla's election to the Lok Sabha in 1980 in view of his conviction in a criminal case. The court held that the R.O. must depend on facts as they existed on the date of scrutiny of nominations to decide the validity of the nomination and that the R.O's acceptance of Shukla's nomination was wrong. However, by the time Shukla's election appeal was heard by the Supreme Court, he was acquitted in the criminal case on appeal. Applying the 'doctrine of relation back', the Supreme Court held Shukla's election to be valid.
Although the Supreme Court did not consider whether the suspension of sentence would stop disqualification, this judgment is considered relevant. According to P.P. Rao, the judgment shows that if the appeal of one who is convicted - whose nomination stands rejected by the R.O. - is allowed by the superior court, then disqualification would mean an irreparable loss. There is another scenario: the R.O. accepts the nomination of a convict who has filed an appeal and the convict wins the election; if the appeal is dismissed, then it could result in disqualification, necessitating a byelection. In such a case, disqualification would not mean an irreparable loss.
According to P.P. Rao, the offences covered by Section 8(3) of the RPA were not considered very serious by the law-makers and that was why they were not included under Section 8(1) or Section 8(2). Under Section 8(1), mere conviction is sufficient for disqualification, and under Section 8(2) conviction and sentence up to six months' imprisonment would attract disqualification. According to P.P. Rao, if Section 8(4) gives immunity from disqualification for sitting MPs and MLAs if they have appealed against their conviction and till the case is disposed of, the law-makers would not have intended to deny the benefit of suspension of sentence to a non-legislator who might have been convicted by a trial court. He does not think that the spirit of Section 8(4) is to give protection to the current term of a legislator facing conviction, and not to help him or her contest an election. He said: "The language of this sub-section does not suggest that. It gives unqualified immunity for the first three months, and extends it till the appeal, filed within those three months, is disposed of. It could be appeal or application for revision in respect of conviction or sentence. The intention of the law-makers is clear. Under the rule of law, presumption of innocence continues till the appeal is disposed of. Hence, how can you disqualify a person during the interregnum, and inflict a punishment? It could be defective wording, but there is need to reconcile Section 8(4) and 8(3) of the RPA in order to avoid a serious anomaly."
If Jayalalitha is indeed aggrieved by the E.C.'s Order, why has she not challenged its legal validity? According to some observers, she tried to interpret the Order in her favour through her counsel. It is argued that her problems do not stem from the Order, but from the manner in which it is sought to be implemented. As the Order is not a "binding" document, her plea to the R.Os was to ignore the Order, which "directed" them to decide the validity of her candidature in the light of what the E.C. had vaguely found as the legal position. The R.Os were apparently not convinced by her argument that they should, according to the R.Os' manual/handbook of 1998, reject a nomination only if there was a clear case of disqualification. Even if there was the slightest doubt on this, they should accept the nomination. An "improper rejection", counsel for Jayalalitha argued, would have serious consequences.
If the AIADMK wins a majority of seats in the Assembly elections, the Governor would be faced with a ticklish situation. It is not clear whether the Governor can invite Jayalalitha to form the government but there seems to be no legal impediment to her being sworn in Chief Minister. Experts say that whatever the post-election scenario, Jayalalitha could legally challenge the rejection of her nomination. If her appeal against conviction is allowed in the meantime, she can contest again.