The Governor's prerogative

Was Tamil Nadu Governor Fathima Beevi's action in appointing Jayalalitha Chief Minister justified in law?

A BENCH of the Supreme Court, consisting of Justice S.S.M. Quadri and Justice Doraiswamy Raju, while hearing a bunch of public interest petitions challenging Governor M. Fathima Beevi's decision to appoint Jayalalitha Chief Minister of Tamil Nadu, on June 4 referred the matter to a larger Bench, to be constituted by the Chief Justice of India.

The core issue involved in Jayalalitha's disqualification is the Election Commissioner's (E.C.) 1997 Order on Criminalisation of Politics. The Returning Officers (R.Os) had invoked this order to reject her nominations, and the Governor's action in appointing her Chief Minister has been questioned, since she ignored the R.Os' decision.

The E.C., no doubt, is competent to issue such an order, and the R.Os are bound by it; the courts have not addressed the question whether the R.Os, in their quasi-judicial capacity, should strictly follow the E.C's administrative directions while scrutinising the nomination papers. The problem arises only when one seeks to interpret and understand the Order, which only directs the R.Os to "take note of the legal position and decide accordingly about the validity or otherwise of the candidature of contestants disqualified under Section 8 of the RPA, 1951".

The three High Court judgments cited by the Order do not clearly constitute the legal position on the effect of appeals against conviction, on disqualification under Section 8(3) of Representation of People's Act (RPA). The E.C. has ignored the Supreme Court's judgment reversing the Madhya Pradesh High Court's judgment in the V.C. Shukla case; it has also distorted the Supreme Court's judgement in the Rakesh Singha case. Besides, the Order precedes the judgement of Justice Malai. Subramanian of the Madras High Court, which is clearly in conflict with the three High Court judgements cited in the Order. The Order also does not take into account the Supreme Court's pronouncements from time to time that the presumption of innocence continues until the final appeal is disposed of by the courts. It has been clearly shown that the "legal position" as found by the E.C. in the Order is debatable (Frontline, May 25, 2001).

In any case, the E.C's order gives the R.Os the option to either to reject or to accept the candidature of persons disqualified under Section 8 of the RPA on the basis of the "legal position". The expression "validity or otherwise" used in the direction is significant. Can the R.Os interpret the legal position as they understand it and decide the validity or otherwise of the nominations?

It appears that the E.C. approached a few days before the May 10 Assembly elections a senior advocate of the Supreme court for his opinion on its Order, probably to face any possible challenge to it from Jayalalitha.

Speaking to Frontline, the advocate said: "The E.C's Order combines sub-sections (1), (2), and (3) of Section 8 of the RPA as if they all deal with offences of the same kind. Section 8(1) covers certain heinous offences, where a stay of conviction would be required to stop disqualification. Here, the emphasis is on the nature of the offence, and the sentence is immaterial. Section 8(2) specifies certain less heinous offences, where the sentence ought to be imprisonment of minimum six months and above. Here, a stay of both conviction and sentence would be required to stop disqualification. Section 8(3), on the contrary, is not concerned with the nature of the offence, but only with the extent of the sentence, that is, a person could be convicted of any offence, but should have been sentenced to imprisonment of minimum of two years and above, to attract disqualification. Therefore, under Section 8(3), as the nature of the crime involved is irrelevant, a stay on the sentence alone is enough to stay disqualification." It is intriguing why the E.C. chose to ignore this opinion.

As for the argument that the R.Os' decision in Jayalalitha's case could have stopped her from assuming power, one needs to ask whether the Governor was bound by the R.Os' decision. Senior advocate Rajeev Dhavan has expressed the opinion that the Governor could not have ignored the decision of a statutory authority (the R.Os) or sat in appeal over it.

However, the R.Os' decision is a summary one that pays very little attention to details or formalities. That is why the RPA provides a clause in Section 100 (1)(c) that if any nomination is found to have been improperly rejected, it could be cited as a ground for declaring an election void. Therefore, according to one view, it is a misnomer to say that the R.Os had declared Jayalalitha "disqualified" under the law. They had only rejected her nominations, an act that could be challenged in the High Court. As it was not a conclusive decision, it could hardly be binding on the Governor.

Indeed, there is a danger that if a Governor has to subordinate his/her discretion in choosing a Chief Minister to an R.Os' decision, then the R.Os are capable of greater abuse of power. Anupam Gupta, an advocate from Chandigarh and a columnist on legal affairs, said: "R.Os are primarily State officials, though they are subordinate to the E.C. while on election duty. Therefore, pressure on them by the State government and the E.C. cannot be entirely ruled out. It is going too far to expect that the R.Os' decision would be completely independent and objective. As they are open to all sorts of influences, their decision cannot be binding on the Governor. If the R.Os had referred the matter to the E.C. and the E.C's decision was before the Governor, then it is a different matter." It is obvious that the R.Os' decision in the Jayalalitha case applied only to the May 10 Assembly elections.

CAN the Governor be faulted if she has only gone by the Supreme Court's opinion that presumption of innocence should prevail throughout the period of appeal?

In Padam Singh vs State of U.P. (SCC 21, Vol.I, 2000), Justices G.B. Pattanaik observed: "It must be remembered that the appellate court like the trial court has to be satisfied affirmatively that the prosecution case is substantively true and the guilt of the accused has been proved beyond all reasonable doubt as the presumption of innocence with which the accused starts continues right through until he is held guilty by the final court of appeal, and the presumption is neither strengthened by an acquittal nor weakened by a conviction in the trial court."

Jayalalitha has appealed against the trial court's order convicting her in two corruption-related cases and sentencing her to three years and two years of imprisonment, and has secured a stay on the sentence. Besides, there is also the judgment of Justice Malai. Subramanian of the Madras High Court, which clearly suggests that Jayalalitha did not suffer electoral disqualification, in view of the fact that she had her sentence stayed by the court (Frontline, May 11, 2001). In the opinion of a senior advocate of the Supreme Court, securing a stay on a sentence is far more effective, and relevant to stop disqualification under Section 8 of the RPA, than obtaining bail - the E.C's Order misses this subtle distinction.

It has been suggested that our law-makers did not intend to provide the benefit of appeal against conviction, to non-legislators who stand convicted by a trial court and are thereby disqualified under Section 8(3) of the RPA. Section 8(4) is cited to show that legislator-convicts have been given immunity from disqualification if they appealed against their conviction within three months of the trial court's order. The argument is that as Section 8(3) is silent on appeals, a similar immunity is not available to non-legislators.

There is little doubt that the language of Section 8(4) does not reflect the intention of the law-makers. If one reads Section 8(4) carefully, it would appear that a legislator-convict need not even bother about getting bail or a suspension of the sentence; it is enough if the appeal or application for revision of sentence is filed in a court. The court may not admit his appeal and grant him bail, but he does not suffer disqualification.

Indeed, there is considerable weight in Jayalalitha's complaint that the E.C. showed discrimination in accepting former Kerala Minister R. Balakrishnan Pillai's nomination under Section 8(4), while rejecting hers under Section 8(3). Section 8(4) was introduced into the Act (it was renumbered in 1989 through an amendment) on the recommendation of a Select Committee of Parliament, which considered the Representation of the People (No.2) Bill, 1950. The committee, consisting of 28 members, including its chairman, M. Ananthasayanam Ayyangar, and the then Law Minister, B.R. Ambedkar, submitted its report on March 31, 1951. The Bill was enacted in July 1951.

The Committee said in its report, while justifying the provision, Clause 7 of Chapter III, which corresponds to the present Section 8(4) of RPA:

"We do not think that persons disqualified on account of conviction should be debarred from sitting and voting in Parliament or in the legislature of a State while appeals from their conviction are pending, and we have modified sub-clause (2)/old sub-clause (3) of Clause 7 accordingly." Clearly, the intention of the Select Committee was not to restrict immunity from disqualification to sitting legislators: the language of the Bill sadly failed to reflect this sentiment. The enacted provision provided this immunity to only those convicts who on the date of conviction happened to be MPs or MLAs.

Again, if we consider that the Select Committee intended not to debar those convicted only from sitting and voting in the legislature (that is, during the legislators' current term) until the time of the disposal of their appeals by the courts, it becomes clear that the E.C. made a monumental mistake in permitting Balakrishna Pillai to contest elections.

Senior Advocate P.P. Rao explained: "Even though Justice Malai. Subramanian did not suspend Jayalalitha's conviction, his interpretation of Section 8(3) of the RPA makes sense, and it reduces the anomaly between a sitting member and a non-member."

THOSE critical of the Governor's action argue that as Jayalalitha was found "ineligible" to contest the elections, the Governor could not have taken recourse to Article 164(4) of the Constitution which enables one to be a Minister for six months without being a member of the Assembly. This view implicitly suggests that the R.Os' decision is binding on the Governor.

Parallels have been drawn with other cases where a candidate could be disqualified from contesting elections under Article 173 (Qualifications for membership of the State legislature) and Article 191 (Disqualifications). It is suggested for instance, as Rajeev Dhavan does, "that any member of the Legislative Assembly cannot be insane (Article 191(b)), but an insane person can become the Chief Minister for six months. Again, critics say that a non-citizen cannot become an MLA (Article 191(d)), but if you apply (Fathima) Beevi's logic, a non-citizen could be Chief Minister for six months." Stretching the same logic, one could ask whether a person who would be completing 25 years of age - the minimum age prescribed for an MLA under the Constitution - within the next six months could become Chief Minister. Bihar Governor Suraj Bhan had dismissed a non-MLA Minister in the Rabri Devi government, whose age was discovered to be less than 25 years.

However, appointing those disqualified under any of these provisions, based on hard facts, and as a result of judicial adjudication, as Ministers or Chief Ministers would be a fraud on the Constitution. In Jayalalitha's case, however, her "disqualification" under Section 8(3) of the RPA and therefore the presumption of her disqualification under Article 191(1)(e) of the Constitution are debatable and inconclusive. The trial court's verdict in the corruption cases against her had not reached the final stage when she was appointed Chief Minister. Therefore, the Governor cannot decide her disqualification and deny her claim head the State government until and unless the courts or the E.C. decides whether she is disqualified under the law, a senior advocate of the Supreme Court said.

In Akhtari Bi's case in the Supreme Court, Justices K.T. Thomas and R.P. Sethi (Scale, Vol.2, 2001, p.525) held that appeal being a statutory right, the trial court's verdict does not attract finality during pendency of appeal and for that purpose his trial is deemed to be continuing despite conviction. Thus if those disqualified under any of the provisions under Article 191 in accordance with law or court orders, challenge their disqualification by appealing against it, during the pendency of their appeal, they would certainly be entitled to be considered as eligible for office under Section 164(4).

Kerala Governor S.S. Kang's reported advice to Chief Minister A.K. Antony not to include Balakrishna Pillai in his Ministry since the latter has been convicted in a corruption case is cited to show that the Tamil Nadu Governor was wrong in appointing Jayalalitha Chief Minister.

Antony accepted Kang's advice, but made Balakrishna Pillai's son and an actor Ganesh Kumar a Minister. Kang's objection to appointing Balakrishna Pillai as Minister was mainly on moral grounds.

As P.P. Rao said, if Governors and the President have to act only on the basis of moral considerations, most of the ministerial posts at the Centre and in the States would be vacant.