The disqualification debate

Published : May 12, 2001 00:00 IST

The seeming discrimination in allowing R. Balakrishna Pillai to contest in Kerala while rejecting Jayalalitha's papers in Tamil Nadu emerges as the most contentious point in the disqualification debate.

IF the campaign in Tamil Nadu lacked dash and colour, there has been plenty of sound and fury over the disqualification of All India Anna Dravida Munnetra Kazhagam (AIADMK) general secretary Jayalalitha from contesting. Election platforms reverberated with the cut and thrust of arguments; newspapers discussed the Election Commission of India's Order of August 28, 1997, which virtually barred the former Chief Minister from contesting.

Jayalalitha filed her nominations from four constituencies - Krishnagiri, Andipatti, Bhuvanagiri and Pudukottai. The Returning Officers rejected her nominations on two grounds. The first ground was that she has been convicted and sentenced to two years' and three years' of imprisonment in two cases of corruption against her, and so Section 8 (3) of the Representation of the People Act disqualifies her from contesting. The 1997 order states that disqualification under Section 8 of the RPA for conviction for offences mentioned in the Act "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..."

Her papers were rejected also on the ground that Section 33 (7) (b) of the RPA bars candidates from filing nominations from more than two constituencies.

Her disqualification to contest is a major obstacle to her being sworn in Chief Minister even if her party wins an absolute majority in the 234-member Assembly. The overwhelming legal opinion is that the Governor cannot have her sworn in Chief Minister even if a victorious AIADMK elects her as the leader of the legislature party unless the Madras High Court sets aside her conviction. Senior Advocate N. Natarajan, former Union Finance Minister and lawyer P. Chidambaram, former Tamil Nadu Law Minister and advocate S. Madhavan, and Janata Party president Subramanian Swamy argue that Jayalalitha cannot make use of the provision that allows a person who is sworn in Chief Minister to get elected within six months. Natarajan asked: "When the disqualification starts under the RPA from the date of conviction and continues for six years even after the person serves the sentence, how can she competently get elected? Even after six months, she suffers the same disqualification."

What has generated controversy is the seeming "discrimination" in the RPA which allows a sitting legislator like R. Balakrishna Pillai of the Kerala Assembly to contest, even though he has been convicted and sentenced to five years of imprisonment.

Jayalalitha was convicted and sentenced by P. Anbazhagan, Special Judge, Chennai, on October 9, 2000 to three years' rigorous imprisonment in the "Jaya Publications case", involving a deal for land of the State-owned Tamil Nadu Small Industries Corporation (TANSI) when she was Chief Minister from 1991 to 1996. In the "Sasi Enterprises case", the same Judge convicted and sentenced her to two years' rigorous imprisonment. Her close friend Sasikala Natarajan received similar sentences. The sentences were handed down to both under Sections 120-B (punishment for criminal conspiracy) and 409 (criminal breach of trust by a public servant or banker, merchant or agent) of the Indian Penal Code (IPC), and Sections 13 (2) and 13 (1) (c) and (d) of the Prevention of Corruption Act.

Jayalalitha appealed to the High Court, which suspended the sentences and granted her bail in November 2000. But the High Court did not suspend the convictions. She filed writ petitions in April 2001 seeking suspension of the convictions so that she could contest the elections. She, however, did not challenge the Election Commission's order.

Section 8 (3) of the RPA says that "a person convicted of any offence and sentenced to imprisonment for not less than two years (other than any offence referred to in sub-section (1) or sub-section (2) ) shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period six years since his release."

Section 8 (4) of the RPA states that "Notwithstanding anything in sub-section (1), sub-section (2) and sub-section (3), a disqualification under either sub-section shall not, in the case of a person who on the date of 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 by the court."

Section 33 (7) (b) of the RPA says that "Notwithstanding anything contained in sub-section (6) or in any other provisions of this Act, a person shall not be nominated as a candidate for election in the case of a general election to the Legislative Assembly of a State (whether or not held simultaneously from all Assembly constituencies) from more than two Assembly constituencies in that State." This provision was introduced in the RPA in 1996.

So Jayalalitha cannot contest elections for a minimum of three years plus six (years after her release), unless the High Court sets aside her conviction. Jayalalitha was not a legislator when she was convicted in the two cases. She was defeated at Bargur in the 1996 Assembly elections.

In Kerala, the Returning Officer of the Kottarakara constituency accepted the nomination of Balakrishna Pillai, a former Kerala Minister, who was sentenced by a special court to five years' rigorous imprisonment in "the Edamalayar case". The Kerala High Court had suspended the sentence but not the conviction. The Returning Officer said he accepted the nomination after studying Section 8(4) of the RPA and a Calcutta High Court judgment. The Supreme Court had not taken any decision on the Section till date, he said. As a sitting MLA, Balakrishna Pillai was entitled to enjoy the benefit of Section 8(4) of the RPA, he said.

JAYALALITHA quickly alleged that "an injustice" had been done to her. She said officials in Kerala were not forced to reject the nomination unlike in Tamil Nadu where, she alleged, Chief Minister M. Karunanidhi had "threatened" officials. She also alleged that her papers were rejected to pave the way for Chennai Mayor M.K. Stalin to succeed his father Karunanidhi as Chief Minister.

Harkishan Singh Surjeet, general secretary, Communist Party of India (Marxist), which is an ally of the AIADMK, alleged that "two different standards" had been adopted. He wondered whether "sitting MLAs are allowed" to commit crimes. He, however, did not blame the Dravida Munnetra Kazhagam (DMK) government for the rejection of Jayalalitha's papers.

Karunanidhi said he was not happy over the rejection of Jayalalitha's nominations. "The law had done its duty," he said. He stoutly denied that his government had interfered in the rejection. "In a democratic battle, I want to take on the enemy face-to-face. I don't want to fight the enemy after tying his hands." Besides, Karunanidhi asked: "If the enemy has willingly trapped herself (by filing her nominations from four constituencies), how can I be held responsible for it ?"

The controversy subsided when Chief Election Commissioner Dr. M.S. Gill on April 30 concurred with the decisions taken by the Returning Officers both in Tamil Nadu and Kerala. He said the Election Commission's order of August 28, 1997 had legal backing and the returning officers had correctly interpreted it. The law was "clear" on the exemption given to sitting MLAs like Balakrishna Pillai. Section 8 of the RPA had been upheld by two separate orders of the Madras High Court in April this year, he said.

The subject of the Election Commission's Order dated August 28, 1997, No.509/Disqln./97-J.S.I., was "Criminalisation of politics - participation of criminals in the electoral process as candidates - disqualification on conviction for offences - effect of appeal and bail - regarding." It pointed out 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 election fray and contesting as candidates." The Order, however, pointed out that "Section 8 of the Representation of the People Act, 1951, lays down the conditions under which a person would be disqualified on grounds of conviction for contesting the elections to the Parliament and Legislature of a State..." The Order quoted from the judgments of High Court and the Supreme Court that convicted persons should not be allowed to stand in the election.

The six-page Order said, "Now, therefore, the Election Commission has, after taking due note and paying due regard to the above judicial pronouncements of the Hon'ble Supreme Court and the Hon'ble High Courts, come 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).

"Accordingly, the Election Comm-ission, in exercise of its powers of superintendence, direction and control of elections to Parliament and State Legislatures vested by Article 324 of the Constitution, hereby directs that all the Returning Officers, at the time of scrutiny of nominations, must take note of the above legal position and decide accordingly about the validity or otherwise of the candidature of the contestants disqualified under the said section 8 of the Representation of the People Act, 1951."

M.S. Gill and then Election Commissioner G.V.G. Krishnamurthy reportedly drafted the Order. Gill himself said on April 30 that the Order had quoted extensively from three judgments of the Madhya Pradesh, Allahabad and Himachal Pradesh High Courts. "The Himachal Pradesh High Court (order) was upheld by the Supreme Court. There is no case in which any other court has taken an opposite view", Gill said.

The Order changed the legal position overnight because, according to Era Sezhiyan, former Member of Parliament, "until August 1997, the Election Commission followed the procedure that a person, convicted under one or other of the statutory provisions of disqualification and released on bail during the pendency of his appeal, is not disqualified from contesting an election." (The Hindu, April 30, 2001). "I strongly feel that there is no legal validity" for the Order, Sezhiyan said. He added, "If a change in the law or its application is to be made, it can be done only by Parliament by amending the provisions involved or by the court by its interpretation and decision." While it was true that for the conduct of free and fair elections, the Constitution and the Election Law have vested the Election Commission with enough powers, there was a limitation under Article 324. "The order of August 1997 is illegal and invalid; it is a clear case of arbitrary action and of deliberate defiance of Parliament and the Court," he said.

V. Ramaswami, former Supreme Court Judge, writing in The Hindu on April 10, 2001, said it was "doubtful" whether the Election Commission could give a direction under Article 324 "which (the direction) interferes or has the tendency to interfere with the decision of the Returning Officer who has to exercise his independent judicial mind in the determination of the question on disqualification." Ramaswami spoke about the "vice of discrimination" in Section 8 of the RPA. He argued that if Section 8 (4) of the RPA "is construed as treating differently a person who has been convicted, with reference to his position as a Member of Parliament or legislature of a State from others who are not, then it may be hit by the vice of discrimination under Article 14 of the Constitution."

The Election Commission came into the picture in deciding the validity of Jayalalitha's nominations after Justice Malai. Subramanian of the Madras High Court stated that "there may not be any disqualification" for Jayalalitha to contest the elections even as he dismissed her two writ petitions seeking suspension of her convictions so that she could be a candidate. On her apprehension that should she be disqualified her statutory right to contest would be affected, the Judge said: "All these aspects have to be placed before the Election Commission and not before this court."

Earlier, appearing for the State, N. Natarajan, Senior Public Prosecutor in the corruption cases against Jayalalitha, contended that the spirit of the RPA's disqualification clauses was that persons convicted for criminal offences should not be allowed to be candidates in elections. Natarajan said that no distinction should be made between political public servants and bureaucratic public servants insofar as the conviction was under the Prevention of Corruption Act because the interest of purity of administration should prevail over any other consideration.

P.P. Rao, Senior Advocate and counsel for Jayalalitha, quoted from the orders of the Supreme Court and High Courts which said that the courts had the power to suspend conviction under the Code of Criminal Procedure if the damage that one would suffer would be irreversible in case he or she succeeded in appeal. The Supreme Court had said the presumption of innocence should prevail throughout the period of appeal (Frontline, May 11, 2001).

On April 24, when nominations were scrutinised, there was fear of violence but Jayalalitha instructed the AIADMK cadres to stay calm. The Returning Officers for Andipatti, Bhuvanigiri, Krishnagiri and Pudukottai, S. Jaya, P. Santhanam, M. Mathivanan and E. Kandasamy respectively, rejected Jayalalitha's nominations either because, under Section 8 (3) of the RPA, her disqualification started from the date of conviction by the trial court or because she filed her nominations from four constituencies or on both the counts.

The Returning Officers rejected arguments from Jayalalitha's counsel including Siddharth Shankar Ray, V. Ramaswami, N. Jothi and K. Malaisamy that the High Court had suspended her sentence and so the Election Commission's Order did not hold good. Jothi and Malaisamy argued that a candidate could file nominations from more than two constituencies but reserved the right to contest in two.

Subramanian Swamy, election agent for V.S. Chandralekha, who had filed her nominations from Andipatti, highlighted three points before the Returning Officer. The first was that Jayalalitha had admitted in her nomination of her being convicted under the PCA for two years (and three years). This attracted Section 8 (3) of the RPA and implied her disqualification from contesting. The second point was that since the Returning Officers were subject to the control, superintendence and discipline of the Election Commission, they should comply with its Order. The third was that the Madras High Court had dismissed her petition seeking a stay on her conviction. Besides, she had never challenged the validity of the Election Commission's Order.

Chidambaram also said there was no way Jayalalitha could become Chief Minister. The convention was that a Minister or a Chief Minister against whom the police filed a charge-sheet would resign. Former Union Minister Sedapatti R. Muthiah and former Bihar Chief Minister Laloo Prasad Yadav resigned under similar circumstances. Chidambaram said: "There is no precedent for a person convicted and sentenced by a court to be sworn in Chief Minister. I have every faith that the Tamil Nadu Governor will respect the Constitution." It was not possible for the Governor who gave the sanction to the State government to prosecute Jayalalitha in the corruption cases to invite her to form the government, Chidambaram said.

Subramanian Swamy said the rule that one should get elected to the legislature within six months of becoming the Chief Minister was applicable only to those who were not disqualified from becoming a member of the legislature.

Former Law Minister S. Madhavan said: "It may be political chicanery to claim that a person barred by the RPA to contest the election can be sworn in Chief Minister. But it will be ruinous for democratic governance." Madhavan said Jayalalitha had filed nominations from four constituencies even after giving an undertaking before the Returning Officer that she had not filed nominations from more than two.

When asked about the "discrimination" in the RPA between a sitting MLA or MP, and others, Natarajan said the Election Commission was a constitutional body which took decisions on the basis of the Constitution to maintain purity in elections. It interpreted laws, expressed its views and directed its officers uniformly. So one did not have the right to say that this was wrong or one-sided. If any party was genuinely aggrieved over its views, that party should necessarily seek clarification from a court of law. Without doing that, it was not good in democracy to criticise the Commission.

According to Natarajan, lawmakers decided on the qualification and disqualification in an enactment. The object of Section 8 (3) of the RPA was there in the object and reasons of the Act itself, which said that criminalisation of politics should be avoided. "No one till today can say it is wrong. But Section 8 (4) is meant for a totally different situation. It gives weight to the will of the people because it comes into play after a person gets elected to the Assembly or Parliament, and his becoming guilty of a crime after that."

Natarajan added: "If it is felt now that such a person should be immediately disqualified, it is for the people to make proper amendments to that section. In the absence of this, the Election Commission's hands are tied. It has to go by the law that is available."

Sign in to Unlock member-only benefits!
  • Bookmark stories to read later.
  • Comment on stories to start conversations.
  • Subscribe to our newsletters.
  • Get notified about discounts and offers to our products.
Sign in


Comments have to be in English, and in full sentences. They cannot be abusive or personal. Please abide to our community guidelines for posting your comment