Some larger questions

Transcending the facts of the unique and unprecedented sets of litigation arising out of Jayalalithaa becoming the Chief Minister of Tamil Nadu, two questions touch the core of India's democratic polity governed by the rule of law.

WHILE the issues of law and fact in the two parallel sets of litigation arising out of Jayalalithaa's swearing-in as Chief Minister by Governor M. Fathima Beevi on May 14 are important in themselves, transcending the facts of this unique and unprecedented case are two issues which touch the core of India's democratic polity governed by the rule of law.

Jayalalithaa was convicted on October 9, 2000 in the two cases involving the purchase of TANSI property, the Jaya Publications case and the Sasi Enterprises case, and sentenced to three years' and two years' rigorous imprisonment respectively in these. She was also sentenced to one year's imprisonment in the Pleasant Stay Hotel case. The first case alone sufficed to disqualify her from contesting an election to any legislature, under Section 8(3) of the Representation of the People Act, 1951. It disqualifies one who is "convicted of any offence and sentenced to imprisonment for not less than two years from the date of such conviction" and for six years after release. Article 191(e) of the Constitution adds a constitutional bar to the legal bar: "... if he is so disqualified by or under any law made by Parliament." The Act (Section 8(4)) pointedly made a different provision for a sitting legislator since he loses an existing office unlike a candidate who loses only a prospect of victory. In the case of a sitting legislator the bar begins three months after conviction unless an appeal has been filed.

Section 389(1) of the Criminal Procedure Code empowers the appeal court to suspend the conviction or sentence or both on admission of the appeal. The Supreme Court ruled in 1995 in the Narang case that the appellant must explicitly ask for suspension of the conviction and candidly state the reason for the plea. No such suspension of conviction was applied for or granted by Jayalalithaa, admittedly. Nor did she make any earnest effort to secure expedition of hearing of the appeal, soon after October 2000, though she knew the imminence of the elections to the State Assembly. Instead, she relied on the obiter of a single Judge, vague in itself, while filing her nomination papers. All four were rejected. She was sworn in Chief Minister all the same, invoking Article 164 of the Constitution. It, however, grants a six-month grace period to acquire the qualification of membership of the legislature; not to shed a disqualification existing at the time of swearing-in.

The two parallel proceedings before the Supreme Court arise out of: (a) petitions filed in the public interest challenging the legality of her appointment as Chief Minister, and (b) the court's intervention in proceedings before the Madras High Court in her appeals against the convictions. If Jayalalithaa's appeals had been decided in her favour before the petitions in the Supreme Court were heard, they might have rendered the petitions infructuous. For, an acquittal on appeal wipes out the conviction retrospectively from the date on which it was pronounced. Hearings on the PIL petitions in the Supreme Court began on September 4. Hearings on the appeals before Justice R. Balasubramanian of the High Court on August 27 took an unfortunate turn in two respects. The Judge declined a request by the Special Prosecutor, K.V. Venkatapathi, for at least a week's time to peruse the 2,245 typed sheets of case papers he had been given. Moreover, some vital documents were missing in the set of papers. Besides, the Judge laid down a fixed time-frame for the hearing - assigning three days to each side - and declared that he would pronounce judgment immediately thereafter in open court.

Venkatapathi moved the Supreme Court for transfer of the appeals to some other High Court. By its order of August 30 the court stayed the proceedings in the High Court. The Bench comprised Justices S.P. Bharucha, Y.K. Sabharwal and Ashok Bhan. Any hopes Jayalalithaa had of victory in the appeals before September 4 were dashed.

Jayalalithaa moved the Supreme Court to vacate the stay. On September 3, the court posted her application for hearing on September 7 and on that day the court made an order by consent of the parties. The appeals will now be heard in the Madras High Court itself but by another Judge. The hearings will not begin before October 1. The Special Prosecutor must be given the missing documents before September 18. The order, the court clarified, implied no aspersion on the Judge. But the Bench remarked that "if a judge makes such a statement (about pronouncement of judgment in open court) before knowing the complexities of the matter, we have no hesitation in allowing what has been prayed for by the petitioner."

Jayalalithaa must get herself elected an MLA by November 13 if she is to retain her office as Chief Minister. The Supreme Court's ruling in S.R. Chaudhuri vs State of Punjab and Others, on August 17, bars her re-appointment for another six months. Her counsel pleaded strenuously that the hearings of appeals should commence a little earlier since she was racing against time. The Bench then observed: "We understand all that. But that does not mean justice will not be done." With the Puja holidays for the court to run from October 19 to 29, she does face a gruelling race against time.

BY the time this appears in print, the five-member Constitution Bench of the Supreme Court will, in all probability, have completed hearings on PILs and reserved its judgment. Meanwhile, as the litigation has progressed, two issues of fundamental importance have come to the fore. One concerns the integrity of the prosecution. It is a disgrace that in India - unlike in the United States and Britain - the prosecutor works under the thumb of the state. It is surely odd that the head of the state's executive should be prosecuted by a lawyer in the service of the state. That is why in the hawala case in 1996 the Supreme Court made a series of orders on public interest litigation petitions, directing the Central Bureau of Investigation (CBI) to report to the court and forbidding the closure of any probe or prosecution except with its consent.

On July 24, 2001, the First Bench of the Madras High Court, comprising Chief Justice N.K. Jain and Justice P. Thangavel, made a historic order on a petition filed by the Alandur Municipal Chairman, R.S. Bharathi, who apprehended that the prosecutors appointed by the Chief Minister would not present the case effectively. They appointed the former Advocate-General under the Dravida Munnetra Kazhagam (DMK) government, Venkatapathi, as Special Public Prosecutor in place of the State Public Prosecutor, S. Gomathinayagam, on "the principle that justice should not only be done but also seen to be done".

This principle was brazenly violated in the Kissa Kursi Kaa case in which Sanjay Gandhi and V.C. Shukla figured as accused. On February 27, 1979, the District and Sessions Judge convicted both of a conspiracy to destroy the prints and negatives of the film and sentenced them to two years' rigorous imprisonment and fine. A three-member Bench of the Supreme Court started hearing of their appeals on November 26. Indira Gandhi returned to power in January 1980. The Special Public Prosecutor, Ram Jethmalani, who had conducted the case in the trial court, was removed from the position. In his place was appointed Joginder S. Wasu. The Press Trust of India reported that Wasu "folded up his arguments within 15 minutes in reply" to the arguments of the appellants' counsel. The court allowed the appeals. It was a pathetic judgment which the Supreme Court delivered.

In the hawala case and in Jayalalithaa's case, judicial intervention secured the appointment of prosecutors who would command public confidence (without implying any aspersion on the incumbents). But we need to reflect on the need for institutional reforms - an independent Director of Public Prosecutions.

Even more far-reaching in its import and consequences, however, are the Supreme Court's observation during the hearings of the case on September 6. At the repeated assertion of counsel for Jayalalithaa K.K. Venugopal, that the "will" of the people must be respected, the Bench observed: "We are not concerned with the mandate of the people. The Constitution is supreme. That is what we are interpreting, not the people's mandate... Please consider what you are saying - that regardless of conviction she has won the elections. Today, it is a question of two to three years. Tomorrow, it may be a sentence for murder. Are we left with no standards at all?" (The Hindu, September 7). The Judges also said "the Constitution is above people's will" (The Telegraph, September 7).

This is a problem as old as Greek democracy. On her conviction of electoral offences by Justice Jag Mohan Lal Sinha of the Allahabad High Court on June 12, 1975, Indira Gandhi took the matter to "the people's court" and organised rallies in her support. The Sangh Parivar discounts the rule of law. No court is competent to pronounce on the Ayodhya issue, it has long held. It has now reverted to its earlier demand for legislation - a law passed by the majority of the day to resolve a dispute politically.

The doctrine of "the people's will" has been invoked by corrupt demagogues throughout history. It has been invoked by corrupt politicians to cock a snook at the courts, most notably the U.S. Congressman Adam Clayton Powell who had in Harlem a constituency that would always vote for him regardless of his misdeeds. On the other hand, it is not for unelected judges to usurp the legislative power and thwart the popular will.

Dr. B.R. Ambedkar told the Constituent Assembly on October 14, 1949: "It is generally understood that the provisions of the Constitution are binding upon the different organs of the state. Consequently, it is to be presumed that those who work the Constitution, those who compose the legislature and those who compose the executive and the judiciary know their functions, their limitations and their duties." In plain words, none of the three is supreme; only the Constitution is.

Articles 75(2) and 164(1) of the Constitution provide respectively that Union Ministers including the Prime Minister and State Ministers including the Chief Minister "shall hold office during the pleasure of" the President and the Governor respectively. Explaining this phrase in the Constituent Assembly on December 31, 1948, Dr. Ambedkar said: "It would be perfectly open under that particular clause... for the President to call for the removal of a particular Minister on the ground that he is guilty of corruption or bribery or maladministration, although that particular Minister probably is a person who enjoyed the confidence of the House" (Constituent Assembly Debates, Volume VII, Page 1,186).

Dr. Ambedkar added: "I think honourable members will realise that the tenure of a Minister must be subject not merely to one condition but to two conditions. And the two conditions are purity of administration and confidence of the House. The Article makes provision for both..."

Dr. Ambedkar proceeded immediately to explain the reasons for allowing the six-month grace period. Significantly, he mentioned: "A person who is otherwise competent to hold the post of a Minister has been defeated in a constituency." He did not envisage a convicted person being allowed a grace period, only a competent person.

THE U.S. Supreme Court's judgment in the Dred Scott case provoked the Civil War. Judges can err. India's Supreme Court has repeatedly erred, especially on the process of appointment of judges. But it has also rendered yeoman service in upholding the rule of law. Its observations on September 7 were made in this fine tradition. The popular will cannot subvert values or stifle the individual's conscience.

Justice Robert H. Jackson of the U.S. Supreme Court once said: "If there is any fixed star in our constitutional constellation it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein... The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, and place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections" (West Virginia State Board of Education vs Barnette 319 U.S. 624, on page 641 (1943)). This is also the raison d'etre of the doctrine of an unamendable "basic structure" of the Constitution. No constitutional amendment can build a temple or establish Hindutva.

The logic applies to Parliament no less. Its "sovereignty" is limited by the Constitution. Its privileges cannot override the citizen's fundamental rights. One hopes the court will incorporate its observations of September 7 in its judgment.

WHAT of the future? It is highly probable if not certain that Jayalalithaa will have to stand down as Chief Minister; the odds in the case before the Supreme Court are heavily against her and it is unlikely in any case, that the Madras High Court will decide her appeals in time for her to notify the Election Commission (21 days) to hold a byelection. If she wins the appeals, the interregnum of a remote-controlled Ministry will be short. If she fails, it will be a while before her appeal thereafter to the Supreme Court is heard. She will go to jail meanwhile.

What if her nominee, as Chief Minister, advises the Governor to grant her pardon? That will raise a constitutional issue of grave importance.

On September 5, the Supreme Court posed three questions on the consequences in the event of her appointment being declared invalid and asked Attorney-General Soli Sorabjee to address them. They concern the fate of her Council of Ministers; the alternative arrangement after her departure; and the consequences of her removal.

It is submitted that the Council of Ministers is dissolved as soon as its head is removed. The Governor must then invite anyone else from the All India Anna Dravida Munnetra Kazhagam (AIADMK) who is elected as leader to form a government. It is open to the court to declare that actions taken since May 14 by the departing Chief Minister are not void merely because her appointment is nullified. If the AIADMK refuses to elect a new leader, a deadlock will arise with every prospect of imposition of President's Rule and fresh elections. It is to be hoped that good sense will prevail, for a grave crisis will arise if in such an event the Rajya Sabha refuses to ratify the Proclamation imposing President's Rule. One hopes things will not descend to that level.

Jayalalithaa is the sole architect of her misfortunes. Her present travails are due entirely to her politics of hubris, opportunism and vengeance.