The mid-2001 State Assembly election outcomes will bring no cheer to the BJP, but are likely to boost the Congress(I)'s political stock. In Tamil Nadu, Jayalalitha and the AIADMK-led front seem to be riding a powerful popular wave, but her disqualification introduces a factor of great political uncertainty. A look at her prospects and the legal-political road ahead.
THE outcomes of the Assembly elections in four major States - two each in the southern and eastern regions of India - and one southern Union Territory are certain to have a major national political impact. While they can bring no cheer at all to the party ruling at the Centre, the Bharatiya Janata Party, they are likely to boost the stock of the main Opposition party, the Congress(I), in a significant way.
Pre-election public opinion polls and other indications have sent the signal out into the polity that the Congress(I) would emerge victorious in Assam and Kerala, be on the winning side in Tamil Nadu (even if in the capacity of a very junior partner), and fare reasonably well in Pondicherry. However, in West Bengal, amidst the chaotic, bizarre pre-election power play indulged in by Mamata Banerjee's Trinamul Congress in a desperately opportunist search for a winning formula, the political stock of both the Congress(I) and the BJP took a beating. A resurgent Left Front, with realistically scaled-down expectations, looked set to score yet another famous political victory.
One major issue that has come to the fore in this round of State Assembly elections is the question of electoral disqualification on account of criminal conviction. As a result of a drastic change in the legal position that occurred in 1997 but has been little noticed until now, the supremo of the All India Anna Dravida Munnetra Kazhagam (AIADMK), Jayalalitha, has become the first major figure on the national political stage to be declared disqualified by the electoral process on account of conviction in corruption cases. The acceptance in a Kerala constituency of the nomination of R. Balakrishna Pillai, a former Kerala Congress(B) Minister, who has actually been convicted and sentenced to a longer term of imprisonment than Jayalalitha, has highlighted the existence of a strange and shocking anomaly in the electoral law. To put it simply, the electoral law as it now stands discriminates, in an unjustifiable way, between sitting legislators and other, non-privileged citizens with respect to their prospective right to contest elections under comparable circumstances.
In popular terms, Jayalalitha is clearly riding a powerful wave captured by several pre-election public opinion surveys and political commentaries. All the indicators point to the AIADMK-led front, a formidable political combination that includes the Tamil Maanila Congress (TMC), the Congress(I), the two Communist parties, and the Pattali Makkal Katchi (PMK), not just winning decisively in Tamil Nadu, but sweeping the polls in a way familiar to those who have followed the 1991 and 1996 State Assembly outcomes. What is clear beyond the shadow of a doubt is that the pendulum has swung a long, long way from the conjuncture of circumstances that shaped the powerful anti-Jayalalitha wave in the last Tamil Nadu Assembly election.
Why and how precisely this has happened might be a matter of psephological and media discussion and conjecture for weeks to come, but the sharp swing of the pendulum is - a political fact. Given an electoral system that translates leads, especially sizable leads, in vote share disproportionately into seats, given the distinctive patterns of electoral fragmentation and alliance arithmetic in the State, and given the decidedly bipolar nature of the State-wide contest, a difference of anything in excess of ten percentage points between the vote shares of the two fronts means a clean electoral sweep for the favoured front.
Why, under the circumstances, the AIADMK supremo took the legal-political route she did and suffered a significant setback to her own prospects of becoming Chief Minister of the State must remain a matter of conjecture. But political setback it is, even if Jayalalitha appears to have succeeded in converting the rejection of her nomination in four Assembly constituencies into some kind of sympathy factor among her committed mass following, and especially among women voters.
The legal problem Jayalalitha faced ever since her conviction and sentences in two cases, by a special court, in October 2000 was a formidable political obstacle in any case. She has been convicted of offences under the Prevention of Corruption Act and also some sections of the Indian Penal Code. She has been sentenced to jail terms of three years in one case and two years in another (these sentences are to run concurrently). Ever since her conviction, her political future has hinged on the appeals process. As expected, she appealed to the Madras High Court, which suspended her sentences and granted her bail in November 2000. Other criminal cases against the prospective Chief Minister, including the 'disproportionate wealth case', are in different stages of prosecution or investigation. All this has introduced a factor of great uncertainty in the State's politics.
Back to the wall, the AIADMK supremo has fought back determinedly. She has demonstrated, against the odds, that she is an important political leader on the national stage. In an excruciatingly protracted run-up to the State elections, when much was uncertain even about the shape of the two alliances, she kept everyone guessing. She promptly declared herself the next Chief Minister of Tamil Nadu and it seemed a credible enough declaration at the political level. Yet she delayed moving the Madras High Court for a stay of her conviction. Neither did she challenge in court the real legal obstacle in her path, the Election Commission of India's Order of August 28, 1997 on the subject of "Criminalisation of Politics - participation of criminals in the electoral process as candidates - disqualification on conviction for offences - effect of appeal and bail - regarding."
The particulars and legal-political significance of this Order have not received the informed public and media discussion they have warranted. In effect, the Order changed the law relating to 'Disqualifi-cation on conviction for certain offences', that is the application of Section 8 of the Representation of the People Act, 1951.
This section provides for disqualification of candidates to parliamentary and State Assembly elections on account of conviction for different categories of offences. Under sub-section (3) of Section 8, a person convicted of "any other offence" [that is, an offence not mentioned in sub-sections (1) and (2)] and sentenced to imprisonment for not less than two years shall be disqualified "from the date of such conviction and shall continue to be disqualified for a further period of six years since his release."
Prior to the Election Commission's Order of August 28, 1997 (which was crafted by Dr. M.S. Gill, the Chief Election Commissioner, and G.V.G. Krishnamurthy, then an Election Commissioner), persons who had been convicted of disqualifying offences under Section 8 but had gone on appeal were allowed to contest elections. Basing itself on the recent decisions of three High Courts - the Madhya Pradesh High Court, the High Court of Judicature at Allahabad, and the Himachal Pradesh High Court - and on a judgment by the Supreme Court, and noting that the country was facing "the serious problem of criminalisation of politics in which criminals, i.e., persons convicted by courts of law for certain offences, are entering into [the] election fray and contesting as candidates," the Election Commission introduced a radical change in the rules of the game. It came to "the considered view that 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]." In its Order, the Election Commission, invoking its powers of superintendence, direction and control of elections to Parliament and State legislatures vested by Article 324 of the Constitution, directed all returning officers, at the time of scrutiny of nomination, to "take note of the above legal position and decide accordingly..."
This was the major obstacle Jayalalitha faced in her ambitious and spirited drive for the chief ministership. In April 2001, she unsuccessfully moved the Madras High Court to get her convictions stayed so that she could contest. (While she got some consolation from the single Judge's non-binding view that "conviction and sentence are inseparable twins under the law," that "the moment the sentence is suspended, conviction is deemed to have been suspended," and that therefore Jayalalitha might not face disqualification, she failed to get the relief sought - suspension of the conviction.) Strangely, she did not challenge the validity or constitutionality of the Election Commission's Order of August 28, 1997. Eventually, her nomination filed in four constituencies (which also ran against a provision in the electoral law that limits a candidate to filing nominations in two constituencies per election) was rejected in all four by the returning officers.
This means it is unlikely that Jayalalitha can be sworn in immediately as Chief Minister under the constitutional provision that enables an unelected person to be sworn in Minister, Chief Minister or even Prime Minister and given six months to be elected. Somebody else - almost certainly her nominee since the AIADMK leads the alliance, no question about that - can take the chair in the event of the AIADMK-led front winning the Assembly elections. Legally, given the bland, non-demanding wording of Articles 164(4) and 75(5) of the Constitution, the issue is arguable. Should a triumphant Jayalalitha or the legislators backing her press the demand for swearing her in as an expression of the people's will, the Governor of Tamil Nadu will find herself in a hot seat. It is even conceivable that Centre-State relations will come under strain. The democratic and best legal course open to the AIADMK supremo is frontally to challenge the Election Commission's Order of August 28, 1997 in the Supreme Court, among other things on the ground that the differential rules of the game that currently apply to sitting legislators vs other citizens are "hit by the vice of discrimination under Article 14 of the Constitution" (as one legal expert has put it).
After all, sub-section (4) of Section 8 of the Representation of the People Act, 1951 protects sitting legislators in a constitutionally as well as morally indefensible way: A disqualification under this section "shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the court."
Jayalalitha's not being an MLA at the time of her convictions was entirely fortuitous. She happened to lose at Bargur in the 1996 Assembly contest, else she would be protected from disqualification by the electoral law, just as Balakrishna Pillai has been in Kerala. The law continues to be an ass, at least in certain respects, and this represents both an obstacle and an opportunity for the once and future Chief Minister of Tamil Nadu.
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