UNDER LEGAL SIEGE

Print edition : September 15, 2001

With the Supreme Court intervening decisively in Jayalalithaa's legal battles, her second tenure as Tamil Nadu Chief Minister appears to be nearing an end.

SUKUMAR MURALIDHARAN T.S. SUBRAMANIAN V. VENKATESAN

JAYALALITHAA was sworn in Chief Minister of Tamil Nadu on May 14, 2001, by M. Fathima Beevi, a former Judge of the Supreme Court who happened then to be the Governor of the State. There were questions of legal rectitude and constitutional propriety involved in the decision, which seemingly eluded the comprehension of the Governor. Ironically though, most editorial writers in the national press easily managed to negotiate these seemingly complex questions without the benefit of legal education, even less with the experience of a tenure on the nation's highest judicial forum.

Chief Minister Jayalalithaa. Her tenure seems likely to end in stricture and admonition from the Supreme Court.-T.A. HAFEEZ

Fathima Beevi soon found herself evicted from the gubernatorial mansion in Chennai for her failure to exercise any form of ethical oversight over a government she had sworn in without a clear constitutional sanction. And now, sooner rather than later, Jayalalithaa's own tenure as Chief Minister seems likely, but for completely unforeseen developments, to end in stricture and admonition from the Supreme Court.

Politically, Jayalalithaa will now be compelled to do under duress what she should have done four months back as a gesture of faith in basic democratic norms. And any pretence of sagacity that she might affect, any effort to portray her impending resignation as a sacrifice of her own interests in the larger cause of safeguarding accountability and probity in public life, will be undermined by a record of reckless adventurism since her political resurrection in the Tamil Nadu Assembly elections.

Indeed, no Chief Minister in India has at any given time been under scrutiny by quite as many constitutional and statutory authorities. Even as the Supreme Court deliberates upon the legitimacy of her claim to remain as Chief Minister, the Madras High Court is hearing appeals against her conviction for corruption, the National Human Rights Commission is inquiring into her arbitrary use of police powers against political adversaries, and the Press Council of India is investigating her efforts to deny the media its rightful democratic space.

For those of a facetious disposition, willing to accede to the demands of convenience, the Indian Constitution is what is made of it by governments, subject only to the occasional restraints of judicial intervention. For those more seriously engaged in politics and the defence of democratic rights, the Constitution embodies weightier principles - it is nothing less in fact than the embodiment of the popular will. The hearings before a Constitution Bench of the Supreme Court on Jayalalithaa's eligibility to be sworn in have provided an opportunity to affirm a basic verity of politics: the popular franchise is exercised under the Constitution and cannot in any instance provide a mandate to disregard the central principles of constitutionalism. A convicted person who has failed to secure a suspension of conviction is ineligible to contest elections to any legislative body. And being ineligible to contest, he or she would not be entitled to hold a position of ministerial authority, including that of Chief Minister.

The Supreme Court of India. The stipulations laid down by it have put Jayalalithaa's political fortunes precariously balanced on a sequence of crucial dates.-M. LAKSHMANAN

The presumption of innocence is a basic principle of jurisprudence in India, applicable until the last judicial appeal is exhausted. Yet for reasons connected to the growing concern over corruption in public life, this principle has tentatively been modified in law - if not in fact - for those found guilty of malfeasance while holding public office. The benefit of the doubt is now applied to an individual found guilty of corruption, to the extent that he or she is spared the need to spend time in prison immediately. Nor is this person deprived of the normal rights of an ordinary citizen. But if he or she were to entertain ambitions of elected office, the burden of proof would stand reversed. Innocence would have to be established beyond all reasonable doubt, if necessary by approaching the highest forum of judicial determination, before he or she is allowed the right to contest for elected office.

This position in law is not firmly established yet, since it is the outcome of several different circumstances. First, the Supreme Court has in a case involving the Prevention of Corruption Act, issued the dictum that a suspension of conviction would not normally be given, prompting various High Courts to follow the example and thereby establish a fairly clear convention. Read in conjunction with Article 8 of the Representation of the People Act, this means that an individual held guilty of corruption and sentenced to a certain term of imprisonment would be disqualified from holding elected office. The Election Commission in 1997 underlined this new orthodoxy by directing Returning Officers to disqualify any candidate who remained convicted, irrespective of the status of his or her appeal. In its order, the Commission made it clear that it was basing its new position on a number of court judgments.

Jayalalithaa filed her nomination papers from four different constituencies for the Assembly elections in Tamil Nadu, and was disqualified from all of them. She chose not to contest the decisions of the Returning Officers in the four constituencies through an election petition in the Madras High Court, and assumed office as Chief Minister in the expectation that the basis of her disqualification would be removed in good time for her to secure a seat in the Tamil Nadu Assembly. The Election Commission's 1997 Order has not thus far come under legal challenge. What is more, the Supreme Court has held unequivocally that a suspension of conviction will not be granted in a case involving the PCA. Even if the sentence handed down by a trial court can be suspended during the process of appeal, the individual convicted will be deemed, for all legal purposes, to be under conviction until his or her final appeal is disposed of. After hearing Jayalalithaa's petition in April 2001, Justice Malai. Subramanian of the Madras High Court made certain observations apparently in her favour. However, he failed to give her the critical relief sought - suspension of her conviction.

Despite all these vicissitudes, Jayalalithaa assumed office as Chief Minister, only to be challenged through quo warranto petitions in the Madras High Court to vacate office. Similar challenges cropped up in other judicial forums, prompting the Supreme Court to gather all the petitions into its jurisdiction. And after a preliminary hearing of the case in July, a Supreme Court Bench decided to refer all the questions before it to a Constitution Bench.

In hearings before the Constitution Bench which started on September 4, the advocates appearing for Jayalalithaa seem to have taken the tack that she was entitled to assume office as Chief Minister under Article 164(4) of the Constitution. Anybody could assume ministerial office for a period of six months, said K.K. Venugopal, senior counsel appearing for the Chief Minister, without fulfilling the prior condition of being a member of an elected legislative body.

M. Fathima Beevi, who as Governor readily swore in Jayalalithaa Chief Minister in May.-T.A. HAFEEZ

Unfortunately, this did not quite address the substance of the petitions that had been filed before the Supreme Court, one of which argued in its opening paragraph that "(t)here has been no case where Article 164(4) has been utilised for swearing in a Chief Minister who has been disqualified under Election law because of a conviction under the Prevention of Corruption Act and who has failed to get a stay from the court."

In other words, the Constitution required a Minister or Chief Minister to be a member of an elected legislative body, and at the time she was sworn in Chief Minister, Jayalalithaa was disqualified from membership of a legislative body. The six-month grace period granted to a person otherwise qualified for election to seek membership of a legislative body did not apply here.

Fali S. Nariman, senior counsel for one of the petitioners, submitted before the Bench that the Governor ought to have gone by the fact that on the date of appointment of Jayalalithaa as Chief Minister, she was ineligible to become a member of the legislature. Article 164(4), he said, was only an ad hoc provision and an exception which allowed a ministerial appointee who had the necessary qualifications to acquire membership of the legislature within a period of six months.

Additional Solicitor-General Harish Salve, appearing in assistance of the court, argued that Article 164(4) was only intended for an unqualified person to acquire the necessary qualification. It was a conditional waiver given to a strong constitutional requirement for ministerial status. And in the case of Jayalalithaa the waiver had been wrongly invoked because she was not merely unqualified by virtue of not being a member of the legislature but disqualified from membership by virtue of her conviction.

Similar submissions were made by Attorney-General Soli Sorabjee who appeared in aid of the court, and senior advocates Ashok Desai and Anil Divan who appeared for other petitioners. Counsel for Jayalalithaa apparently took the position that Article 164(4) had a specific purpose, which was to enable an individual who was not a member of the legislature to acquire the necessary qualification for ministerial status within a period of six months. In this respect, the Article did not distinguish between those who were unqualified by virtue of having lost - or not contested - an election, and those who were disqualified by virtue of election law. In other words, the respondent Jayalalithaa could be freed from the legal constraints inhibiting her assumption of ministerial office within the period of six months granted under Article 164(4). That would bestow retrospective legitimacy to the Governor's action in swearing her in.

Senior counsel K.K. Venugopal, appearing for Jayalalithaa, repeatedly emphasised that Article 164(4) did not impose any qualifying requirements for ministerial posts. And where this domain of silence prevailed, the popular will should be allowed to hold sway, he contended. Venugopal's repeated emphases on the popular will led at one stage to a query from Justice S.P. Bharucha, the seniormost member of the Constitution Bench otherwise composed of Justices G.B. Pattanaik, Y.K. Sabharwal, Ruma Pal and Brajesh Kumar. The popular will was irrelevant to the concerns of the court, the Judge said. What was important was the constitutional position.

Special Prosecutor K.V. Venkatapathi. He sprang a surprise.-K. PICHUMANI

This observation from the Bench underlines the truth that a franchise exercised under a constitutional order cannot in any circumstances provide a mandate to override the fundamentals of constitutionalism. Constitutional and legal prohibitions exist on Jayalalithaa acquiring membership of a legislative body. Her counsel has contended that there are no similar proscriptions on her becoming a Minister or a Chief Minister. Indeed, the basis of her disqualification could well cease to exist within the six-month period of waiver that has been granted for Ministers to hold office without membership in the legislature. Article 164(4) had no provisions on the qualifications necessary for one to be sworn in Minister or Chief Minister. In this respect it was substantively different from other clauses of the Constitution, which laid down strict qualifying requirements for the posts of President and Governor. Again, while it was true that a Governor's decision in appointing a Chief Minister could be subject to judicial review, this could only be on grounds of arbitrariness, mala fide or failure to exercise appropriate thought. None of these applied in this case since the Governor simply went by an electoral verdict and the decision of a party with a majority in the legislature in swearing in Jayalalithaa Chief Minister.

Speaking for the Bench, Justice Bharucha tacitly admitted that there was an area of ambiguity in the Constitution in this respect. But it was an ambiguity that the Supreme Court intended to address and resolve. Its observations on the people's mandate seem to indicate that if it is called upon to adjudicate a supposed conflict between an electoral outcome and the rule of law, it will tilt towards the latter. The court, in the opinion of most legal experts, would not like to don the garb of political populism in the present circumstances. And it would be difficult for it to refute the proposition that under constitutional principles only a person who is qualified for membership can become a Minister under Article 164(4).

Strong indications of the mind of the court came from a pointed inquiry directed towards Attorney-General Sorabjee: what would be the consequences if Jayalalithaa's appointment were to be declared void and orders issued for her to vacate office? Sorabjee's response was that certain irreversible actions would, in accordance with the 'doctrine of necessity', have to remain unopened. A Chief Minister's resignation was normally taken to mean that the entire Council of Ministers went with her or him. The new Chief Minister would, however, have the option of retaining the same council or appointing another one of his or her choice.

There is another range of possibilities which the Attorney-General did not touch upon. If the All India Anna Dravida Munnetra Kazhagam (AIADMK) Legislature Party were to follow up an adverse Supreme Court judgment and elect a new leader, the matter would be quickly resolved. But there is in the situation inherent potential for constitutional gridlock, should the AIADMK Legislature Party decide that Jayalalithaa is the person uniquely qualified to lead it. This will be a clear case of constitutional governance becoming impossible in the State, provoking the imposition of President's Rule. But this ultimate recourse of the Central government too is subject to the ratification of both Houses of Parliament. And the political arithmetic of Parliament does not exactly guarantee the smooth passage of any resolution imposing President's Rule in Tamil Nadu.

The senior lawyer and legal scholar Rajeev Dhavan warns that President's Rule should not be thought of as a remedy. Rather, the Supreme Court should think of other caretaker possibilities, if necessary by issuing specific directions on how a constitutional impasse could be avoided.

Counsel for Jayalalithaa addressed the prospect of political instability and unrest in the event of her eviction from office. He urged the Bench to consider the possibility of applying its findings on Article 164(4) with prospective effect. This would mean that Jayalalithaa could complete her six-month tenure and then quit in the event that she has failed to acquire the necessary qualification for holding ministerial post in the intervening period. The reasoning here is that in swearing in Jayalalithaa as Chief Minister the Governor did not have the benefit of the judicial wisdom of the Constitution Bench. And since the new constitutional orthodoxy is only now being affirmed, it would be unfair to hold the Governor's actions in May to the standards that did not then exist.

Senior Counsel K.K. Venugopal who is appearing for Jayalalithaa in the Supreme Court.-S. MAHINSHA

Few legal experts are convinced by this line of argument. Rajeev Dhavan, for instance, points out that the Bench is dealing with a clutch of quo warranto petitions which have demanded Jayalalithaa's removal from office. Moreover, it is a fundamental fact of the judicial process that it takes infinitely less time to commit an error than for a judicial determination of error to be arrived at. But this does not mean that the consequences of the error can be allowed to persist for much longer after the judicial determination. In a case involving the public interest in good governance, it would be extremely inappropriate for the court to endorse the doctrine of prospective application, argue certain legal scholars.

Meanwhile, there has been meanwhile another sequence of dramatic events connected with the hearing of Jayalalithaa's appeal against her conviction in two cases of corruption. In the Jaya Publications and Sasi Enterprises cases, known jointly as the TANSI (or Tamil Nadu Small Industries Corporation) cases, she has been sentenced to terms of rigorous imprisonment of three and two years respectively. In the Pleasant Stay Hotel case, she has been sentenced to a year's imprisonment.

These are the original sources of Jayalalithaa's legal travails, since the two convictions in the TANSI case, being under the scope of Section 8(3) of the Representation of the People Act, resulted in her disqualification from contesting the Assembly elections held in May. Crucially, she has chosen not to contest the implicit reversal of the presumption of innocence under which she was disqualified. But all her convictions are now under appeal in the Madras High Court, where they have become the arena for bitter partisan wrangling by different elements of the Bar.

In November 2000, Justice Akbar Basha Khadri of the Madras High Court directed that her appeals against conviction should be heard "expeditiously" and disposed of within two months. Concurrently, he declined to suspend her conviction, though she benefited from a suspension of sentence for the duration of the appeals process. Legal experts affiliated with the AIADMK insist that this directive from the Bench was wantonly flouted by the prosecution while M. Karunanidhi's Dravida Munnetra Kazhagam (DMK) was in power.

Jayalalithaa's appeals were first posted before Justice S. Jagadeesan. Again there was a phase of partisan wrangling about his suitability for the case. A section of the Madras High Court Bar insisted that the appeals should be heard by a Division Bench since it involved a matter of the greatest public importance. The rival grouping denounced this demand as a thinly veiled assault on the integrity of the judiciary.

Attorney-General Soli Sorabjee.-SHANKER CHAKRAVARTY

By a ruling in July 2001, the Madras High Court held that the case for the prosecution would continue to be represented by K.V. Venkatapathi, who served as Advocate-General in the DMK government. This order was issued on the well-respected grounds that nobody could be a credible prosecutor in his (or her) own case. An Advocate-General or Public Prosecutor appointed by Jayalalithaa could not, in other words, be expected to pursue the cases against her with the necessary objectivity and dispassion.

IN mid-August, Jayalalithaa's cases were assigned to Justice R. Balasubramanian, who proceeded - in an evident effort to project a sense of purpose - to declare that he would start hearings on August 27, hear the case continuously over a period of time, and, as soon as the arguments were over pronounce judgment in open court. Unfortunately, in subsequent pleadings before the Supreme Court, this statement of intent was cast in a distinctly less favourable light: as signs of a certain frivolity or intent.

Hearings on the appeals began on the appointed day, but advocate Venkatapathi then managed to set in train a sequence of rapidly developing events that seemed decisively to scupper the Judge's intent to settle matters at the earliest. He first registered his protest in the court over the scales being tilted against him. Crucial documents had not been given to him, he said, such as the statements of the accused under Section 313 of the Criminal Procedure Code. Moreover, he had only just managed to gain access to the huge volume of case papers, running to over 2,000 pages, and needed at least a week to study them.

Justice Balasubramanian, however, indicated that he was inclined to allow the defence counsel to present their arguments, though he assured Venkatapathi that he would be given "sufficient time" to read the necessary papers. Venkatapathi then launched a flanking operation that took legal circles in Chennai completely unawares. Even while attending the court proceedings in the Madras High Court, he lodged a petition with the Supreme Court, pleading for a stay on the hearing of Jayalalithaa's appeals. Mentioning this petition before a Bench comprising Justices S.P. Bharucha, Y.K. Sabharwal and Ashok Bhan, Attorney-General Sorabjee described the court's denial of essential documents to Venkatapathi as "an extraordinary event". "Whether the proceedings can be termed a farce or a tragedy," Sorabjee continued, it would be "expedient in the interest of justice that these appeals are directed to be transferred from the Madras High Court to any other High Court, especially in view of the fact that the appellant is the Chief Minister of the State."

In granting a stay on proceedings, the Supreme Court took a dim view of the proceedings in Chennai. It cannot "disregard lightly" the statement of advocate Venkatapathi that he had been denied necessary case papers, said the Bench. It was improper on the part of the court to have summarily rejected his perfectly reasonable request and order at the same time that counsel for the appellant continue with his arguments. "If what is stated in the transfer petition is correct," the Judges concluded, "and in the circumstances, we have no reason, prima facie, to disbelieve it, it is appropriate that notice be issued on the transfer petition and that the continuance of the hearing of the criminal appeals be stayed."

The Madras High Court building. Now the hearings in Jayalalithaa's appeals will not begin before October 1.-S. THANTHONI

This was evidently a major setback for Jayalalithaa in her race to beat the six-month deadline to qualify for membership of the legislature, especially since it came before the Constitution Bench hearing the petitions against her appointment as Chief Minister had given expression to some of its deepest concerns then. When the Constitution Bench opened its hearings, Justice Bharucha thought it appropriate to mention to senior counsel Venugopal that he had received a flood of telegrams emanating from Chennai denouncing Venkatapathi as a 'liar'. To Justice Bharucha's observation that this was reprehensible behaviour, Venugopal added his own assessment that it could be "counter-productive".

When the stay on proceedings in Jayalalithaa's appeal was taken up next time, the Supreme Court evidently came to the finding that Justice Balasubramanian had followed an improper procedure. But it softened the rigour of this finding by underlining that its decision to transfer the case to another Judge of the Madras High Court was not in any way a reflection on Justice Balasubramanian's competence or integrity.

The Supreme Court also directed Venkatapathi to furnish before the registry of the High Court the list of documents that he wished to peruse for the purpose of arguing his case. Such a request was to be made before September 10 and complied with at the earliest. Following this, the hearings could begin before a Judge to be nominated by the incoming Chief Justice within a week of assuming charge. In no case, however, could the hearings begin before October 1, this being in the assessment of the Supreme Court, the earliest date by which all the precedent conditions for a fair judicial procedure could be met.

Just a day after the Supreme Court gave this ruling, Justice B. Subhashan Reddy from the Andhra Pradesh High Court was appointed Chief Justice of the Madras High Court. One of the grounds on which Jayalalithaa could have complained of undue delay has now been removed. Justice Subhashan Reddy will now have to assign her appeals against conviction to a Judge of the High Court within a week of assuming office.

With all these stipulations laid down by the Supreme Court, Jayalalithaa's political fortunes stand precariously balanced on a sequence of crucial dates. The option of quitting office after six months and being sworn in again has been eliminated by a recent Supreme Court ruling, in a case involving a Punjab Minister who had utilised precisely such a stratagem to avoid securing membership of the legislature while enjoying all the powers and prerogatives of ministership. For Jayalalithaa's failure to secure membership in the legislature before November 13 would involve her resignation or dismissal as Chief Minister.

IF the High Court were to commence hearings on her appeals on October 1 and dispose of them within a reasonable period, her status and eligibility for membership of the legislature could be clear by early November. This would enable her to make a rough estimate of the duration of the interregnum between her resignation from office and possible return to power. Of course, if the High Court were to uphold her conviction and reaffirm the sentence handed down by the trial court, this interregnum would be of indefinite duration. On the other hand, if she were to be acquitted, she would be free of all encumbrance and could contemplate a return to power within the reasonable time required for the Election Commission to conduct a byelection. If the High Court were to uphold her conviction and mitigate her sentence to a period less than two years, she would be free of the disqualification for membership of the legislature. But she may, depending upon the circumstances to be determined by the High Court, have to commence serving her sentence while pursuing her appeal before the Supreme Court. This would, to put things mildly, be a rather serious constraint on her ambitions to return to chief ministerial authority at the earliest.

Jayalalithaa and her close associate Sasikala, who is also convicted in the TANSI land cases.-N.BALAJI

The deliberations of the Constitution Bench of the Supreme Court, of course, constitute the other main factor that has a bearing on the future of politics in Tamil Nadu. Hearings are expected to be concluded in this case some time in September, following which the Bench is expected to reserve judgment. Although it is always hazardous and generally inadvisable to speculate on the possible time-frame within which a Constitution Bench can resolve an issue of far-reaching import, a final judgment during the pendency of Jayalalithaa's appeal in the High Court cannot be ruled out. And if the observations made by Justice Bharucha and his associates on the Bench are any indication, then the Supreme Court currently seems of the mind that between popular franchise and the rule of law, the latter must necessarily take precedence. This means that Jayalalithaa's eviction from office through judicial fiat could come much earlier than the November 13 deadline.

Democratic politics, it is often said, cannot function as a proprietary business. Nor can political morality be subordinate to the personal insecurities of any politician. Jayalalithaa may well imagine that the AIADMK victory in the May 2001 Assembly elections was a mandate for her personally to govern. The party is of course a proprietary concern in which she has sole ownership rights. But in terms of democratic principles, the May 2001 verdict was a mandate for the party, which could elect anybody who has the necessary qualifications to lead it in the mission of governing the State. Jayalalithaa's personal insecurities, her own vulnerabilities and her sense of isolation prevented her from seeking this perfectly reasonable recourse in May. Today she may well find from a considerably weakened position that she really has no other option.

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