Disqualification issues

The Supreme Court verdict in the Lily Thomas case raises the question whether Jayalalithaa will be able to secure a stay on her conviction at some later date from an appellate court.

RJD chief Lalu Prasad (right) and BJP MP Navjot Sidhu as they arrive at the Parliament House on June 1, 2009.

TAMIL NADU Chief Minister Jayalalithaa's conviction in the disproportionate assets case and her disqualification as a Member of the State Legislative Assembly as a result of that conviction is a consequence of the Supreme Court’s judgment in the Lily Thomas case on July 10 last year. Before this judgment, Members of Parliament and Legislative Assemblies convicted and sentenced for some specified offences under the Representation of the People Act (RPA), 1951, took shelter under Section 8(4) of the Act, which gave them immunity from immediate disqualification for three months so that they could appeal against their conviction or sentence in an appellate court. Section 8(4) allowed convicted legislators to evade disqualification until such appeals were disposed of by courts. Thus, their immunity could go beyond the three months. The Lily Thomas verdict put an end to this practice by declaring Section 8(4) of the Act null and void. This meant that legislators will suffer the rigours of Section 8 of the RPA dealing with disqualification on conviction for certain offences.

Jayalalithaa has been convicted under Sections 13(2) and 13(1)(e) of the Prevention of Corruption Act (PCA), 1988. Under Section 13(1)(e), a public servant is said to commit the offence of criminal misconduct if he or she, or any person on his or her behalf, is in possession, or has, at any time during the period of his or her office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his or her known sources of income. Under Section 13(2), any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend up to seven years and shall also be liable to a fine.

Under Section 8(1)(m) of the RPA, a person convicted under the PCA shall be disqualified if the convicted person is sentenced to imprisonment from the date of such conviction, he or she shall continue to be disqualified for a further period of six years after his or her release.

The Lalu Prasad case

The PCA was not specifically mentioned in the list of offences under the RPA’s Section 8 originally. The offence under the PCA was covered under Section 8(3), which says that the person convicted of any offence and sentenced to imprisonment for not less than two years (other than any offence referred to in subsection (1) or subsection (2)) shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years after his or her release. The PCA was taken out of the ambit of Section 8(3) and inserted into Section 8(1) with effect from January 7, 2003, during the term of the National Democratic Alliance (NDA) government. This means that had Jayalalithaa been convicted and sentenced for the same offence for less than two years before January 7, 2003, she would not have suffered disqualification.

However, her sentence for more than two years explains why she is disqualified to be the Chief Minister as well. Article 164(1) of the Constitution, read with (4) enables a Chief Minister or a Minister to continue in the post for a period of six consecutive months even if he or she is not a member of the Legislature of the State and stipulates that at the expiration of this period, he or she would cease to be a Chief Minister or a Minister. The Supreme Court in B.R. Kapur vs State of Tamil Nadu (2001) held that a person convicted for a criminal offence and sentenced to imprisonment for a period of not less than two years cannot be appointed the Chief Minister of a State under Article 164(1) read with (4) and cannot continue to function as such. The conviction in the fodder scam case last year resulted in former Bihar Chief Minister and Rashtriya Janata Dal leader Lalu Prasad’s automatic disqualification from his Lok Sabha membership. However, it required the formal issue of orders disqualifying him and another convict in the fodder scam, the Janata Dal (United)’s Jagadish Sharma (elected from Saran and Jahanabad Lok Sabha constituencies respectively), by the Lok Sabha Secretary General, S. Bal Shekar, on October 23, 2013. The orders took retrospective effect from September 30, 2013, when the Special Central Bureau of Investigation (CBI) court in Ranchi convicted them. Similar orders disqualifying Jayalalithaa may have to be issued by the Secretary of the Tamil Nadu Assembly.

Stay of conviction: The Sidhu case

Jayalalithaa’s conviction and disqualification have raised the question whether she will be able to secure a stay on her conviction at some later date from an appellate court and, therefore, erase her disqualification from the Assembly until her appeal is disposed of by the appellate court. It is well settled in law that there is a distinction between suspension of sentence and stay of conviction. In certain situations, the order of conviction is executable in the sense that it may incur a disqualification. Therefore, the power under Section 389(1) of the Code of Criminal Procedure, dealing with suspension of conviction or sentence by an appellate court, can be invoked in such situations. Section 389(1) imposes only one limitation on the appellate court, that is, it has to support its order for reasons to be recorded by it in writing.

It was this route that the cricketer-turned-politician Navjot Singh Sidhu adopted in 2007 successfully. He was convicted in a road rage-cum-death case in 2006 and sentenced to a three-year prison term by the Punjab and Haryana High Court for culpable homicide. Sidhu could have used Section 8(4) (as it was yet to be declared null and void) and avoided resigning as a Member of Lok Sabha from Amritsar. Yet, he resigned, and before the Election Commission could hold the byelection to fill the vacancy caused by his resignation, he secured suspension of both his conviction and sentence from the Supreme Court.

In its judgment in the Sidhu case, the Supreme Court Bench comprising Justices G.P. Mathur and R.V. Raveendran observed: “In the event prayer made by the appellant [Sidhu] is not granted, he would suffer irreparable injury as he would not be able to contest for the seat which he has held and has fallen vacant only on account of his voluntary resignation which he did purely on moral grounds.” The Supreme Court’s suspension of his conviction and sentence enabled Sidhu to contest the byelection to the Lok Sabha.

In Sidhu’s case, the Supreme Court reasoned that the courts should exercise the power to stay conviction only in exceptional circumstances where failure to stay the conviction would lead to injustice and irreversible consequences. The court further observed that a person who resigns from Parliament or the Assembly and seeks a reelection will have greater moral authority to represent the constituency if he or she is elected. Having said this, the court added that it has to interpret the law as it stands and not on considerations that may be perceived to be morally more correct or ethical. That is, after complimenting Sidhu for displaying greater moral authority, the court appeared to be saying that it did not materially affect the final result of his petition.

Ironically, the court further confounded the issue by suggesting that it was not required to adjudicate upon the question as to what would be the effect of the order and further whether Sidhu would continue to be disqualified for the purpose of contesting the election as such an issue could arise only in an election petition, where the validity of the election might be called in question.

Despite this vague judgment, Sidhu and his party, the Bharatiya Janata Party (BJP), considered it to have erased his disqualification for the purpose of contesting the election and the Election Commission accepted his nomination for the byelection. It is possible to suggest that the Supreme Court suspended the conviction in Sidhu’s case because it was not a corruption case, as the Supreme Court has consistently taken a tough line of refusing stay of conviction in corruption cases.