Frontline met Cho S. Ramaswamy, Editor of the Tamil weekly Thuglak, to get his views on the issue of Jayalalitha's disqualification. Excerpts from the interview he gave T.S. Subramanian:
You said recently that there was no legal bar on Jayalalitha being sworn in Chief Minister. But you also pointed out that Union Ministers Sedapatti R. Muthiah or Bihar Chief Minister Laloo Prasad Yadav had to resign when charges were framed against them.
The Constitution has not laid down that only persons who are not disqualified on the date of the Governor's invitation can become Chief Minister. In the Article empowering the Governor to invite a person to take office as Chief Minister, the Constitution could have said the person so appointed by the Governor shall on the date of such invitation be one who does not suffer any disqualification as prescribed in law. It has merely said the Governor will appoint the Chief Minister and if the person concerned does not become a member of the Assembly in six months, he will lose the post.
Let us look at it in an academic way. A person has been convicted and sentenced to two years imprisonment and has been disqualified to contest the elections. But if the MLAs of the majority party elect that person as their leader, and that person stakes claim to form the government, can the Governor say, "I don't see any chance of your becoming an MLA"? The higher court may turn aside the lower court's judgment or it can reduce the sentence to less than two years or it could grant a stay on the conviction. Any one of these eventualities will enable the person to contest a byelection. How can the Governor anticipate the judgment of the appeal court and say, 'No, I don't think any court will allow your appeal'?
Supposing the appellate court does not turn aside the conviction within six months...
He or she will lose the office (of chief ministership).
Take a hypothetical situation. Now 234 members (the strength of the Tamil Nadu Assembly) are elected and the Assembly is full. There is no vacancy. But the majority party chooses a person from outside the Assembly to lead them. Can the Governor say, 'I see no possibility of your becoming an MLA because all seats are filled'? (If) the Governor can tell a person in the earlier instance that there is no possibility of his appeal being allowed, the Governor can say now in this context that he sees no possibility of a seat falling vacant. What is the guarantee that one person will resign? Why should the Governor administer the oath of office to someone from outside the Assembly when all the seats are filled and there is no possibility of anybody getting elected?
Supposing the Governor wants to go into the morality of the entire issue, the Governor has to take this into consideration. The Representation of the People Act allows a sitting MLA or member of Parliament to contest the election and become an MLA or MP even if he or she has been subjected to a conviction and sentenced to imprisonment. Such a person can now become Chief Minister because he is qualified to contest. There is no disqualification attached to him or her. You take the case of Balakrishna Pillai in Kerala. Supposing he had been in Tamil Nadu. He does not contest the election but he is still qualified under the Representation of the People Act (to contest the election) because he is a sitting MLA. Can he stake his claim?To become the Chief Minister?
Yes, to become the Chief Minister. The Governor cannot tell him, 'You are disqualified.' He is qualified under the exemption given under Section 8 (4) of the Representation of the People Act. So where is the morality in that? A sitting MLA in an Assembly can contest the election, or even without contesting the election, he is qualified and can become the Chief Minister. But a person who is not an MLA, if he gets convicted, cannot stake his claim. What is the morality in this?
Going into conventions, persons against whom charges have been framed have had to vacate their office. Laloo Prasad Yadav had to go. Sedapatti Muthiah was asked to go. There are several such instances. If that is so in the case of persons against whom there is no conviction as yet, the same should apply to the person already convicted. But as per this convention, it cannot apply to a person who has been convicted and held to be disqualified under a statute.
Unless and until that conviction is stayed and acquittal obtained, that person cannot assume office as per convention. But will these conventions be accepted as law or not? The courts have not so far given an opinion on this matter. The courts have not so far said the persons against whom charges have been framed cannot continue as Minister or Chief Minister. The matter has not so far reached the courts.
The conventions are political conventions. But depending on the attitude of the judge who hears such a case in future, it may be held that the Constitution should not be interpreted in a manner that will lead to absurdities because political conventions have been built in such a way that even persons facing charges cannot hold office. That convention must be accepted, and he may decide the case accordingly, saying that it is the spirit of the Constitution. Or a different judge may say that he can only go by what the Constitution has explicitly stated. Since the Representation of the People Act allows a sitting MLA to get elected and become the Chief Minister even while facing a sentence of more than two years, there is no reason why a person who has gone in appeal against his conviction should not assume office. That may the view of another judge. It all depends on the attitude the judge takes.
But in my opinion, no law should be interpreted in such a manner that it will lead to absurd conclusions. The conclusion that a convicted person cannot become an MLA but can become a Chief Minister should not be read into the law because it will not be a good precedent. So in my opinion Jayalalitha will be well advised to opt out of the race for chief ministership even if she wins majority and thereby help create good conventions. The letter of the law is in her favour. But it will be better if she acts in favour of creating good conventions.