A judicial jolt

THE continuance of Jayalalithaa as Chief Minister of Tamil Nadu has come under a question mark following the categorical ruling of the Supreme Court against public servants convicted of corruption holding public offices. "It is necessary that the Court should not aid the public servant who stands convicted for corruption charges to hold public office until he is exonerated after conducting a judicial adjudication at the appellate or revisional level," said Justices K.T. Thomas and S.N. Variava on August 2, while quashing the appeal of an officer of a nationalised bank who was dismissed from service after being convicted and sentenced to imprisonment by a lower court on charges of corruption.

The two-member Bench made it clear that the Court would not condone corruption among public servants. "When a public servant was found guilty of corruption after a judicial adjudicatory process by a court of law, judiciousness demands that he should be treated as corrupt until he is exonerated by a superior court," it laid down. A lower court had convicted Jayalalithaa and sentenced her to imprisonment in October 2000 for acts of corruption during her Chief Ministership from 1991 to 1996. And the law categorises Ministers, Members of Parliament, Assembly Speakers and legislators as public servants.

Jayalalithaa was convicted and sentenced to two years' and three years' imprisonment in the Jaya Publications and Sasi Enterprises cases under the Prevention of Corruption Act and the Indian Penal Code. Under Section 8 (3) of the Representation of the People Act (RPA), she was disqualified from contesting the elections to the State Assembly in May 2001. But her party, the All India Anna Dravida Munnetra Kazhagam (AIADMK), swept to power. Governor M. Fathima Beevi installed her as Chief Minister. Public interest petitions challenging the Governor's action will be heard by the Supreme Court in September. Jayalalithaa has appealed to the Madras High Court against the orders of the Special Judge convicting and sentencing her.

The Supreme Court's unequivocal observation shocked the AIADMK, which had already been unnerved by its verdict on July 31 confirming the conviction of K. Ponnusamy, a member of Jayalalithaa's Cabinet in the previous term. He was convicted under the Prevention of Corruption Act for possessing wealth disproportionate to his known sources of income when he was a public servant from May 1993 to May 9, 1996. Justices Thomas and Variava said: "Both the trial court and the High Court were right in convicting the appellant."

In the light of the Supreme Court's observations in the bank officer's case, B.R. Kapur, an advocate, filed a public interest petition, arguing that since Jayalalithaa was a public servant, the apex court's judgment was fully applicable to her and her continuance as Chief Minister was "illegal". He prayed that the Supreme Court restrain her from continuing as Chief Minister.

IN its order on August 2, the Supreme Court dismissed the bank officer's appeal for suspending his conviction. The officer was convicted and sentenced to one year's imprisonment by a lower court. The Punjab and Haryana High Court suspended his sentence but declined to suspend the conviction.

Quoting several judgments, Justices Thomas and Variava observed: "The legal position, therefore, is this: though the power to suspend an order of conviction, apart from the order of sentence, is not alien to Section 389 (1) of the Code (of Criminal Procedure), its exercise should be limited to very exceptional cases. Merely because the convicted person files an appeal in challenge of the conviction, the court should not suspend the operation of the conviction. The court has a duty to look at all aspects including the ramifications of keeping such conviction in abeyance ..."

The Bench added: "The legal position can be laid down that when the conviction is on a corruption charge against a public servant, the appellate court or the revisional court should not suspend the order of conviction during the pendency of the appeal even if the sentence of imprisonment is suspended. It would be a sublime public policy that the convicted public servant is kept under the disability of the conviction in spite of keeping the sentence of imprisonment in abeyance till the disposal of the appeal or revision."

While the Supreme Court has held now and in its earlier rulings that conviction and sentence formed two separate compartments, Justice Malai. Subramanian of the Madras High Court held on April 11 that "conviction and sentence are inseparable twins". He gave this new interpretation to the Code of Criminal Procedure when Jayalalithaa filed writ petitions seeking a stay on her conviction to enable her to contest the elections. Justice Malai. Subramanian said: "It can be safely held that conviction and sentence are inseparable twins under the law. The moment the sentence is suspended, conviction is deemed to have been suspended. Otherwise, the framers of the Code would have taken care to provide for stay of conviction or suspension of conviction also."

The High Court judge, however, dismissed Jayalalithaa's plea for suspending the conviction. Had the conviction been under Section 409 of the Indian Penal Code, he said, the court would not have hesitated to suspend the conviction if that was necessary to enable her to exercise the democratic right of contesting the elections. "But since the conviction was also for an offence under Section 13 (1) (c) and (d) read with Section 13 (2) of the Prevention of Corruption Act, this court is unable to exercise its discretion in her favour," he explained.

Besides ruling that conviction and sentence were separate, Justices Thomas and Variava laid down:

"Corruption by public servants has now reached a monstrous dimension in India. Its tentacles have started grappling even the institutions created for the protection of the republic... When a public servant who is convicted of corruption is allowed to continue to hold public office, it would impair the morale of the other persons manning such office.

"Consequently that would erode the already shrunk confidence of people in such public institutions besides demoralising the other honest public servants who would either be colleagues or subordinates of the convicted person. If honest public servants are compelled to take orders from proclaimed corrupt officers on account of the suspension of conviction, the fallout would be one of shaking the system itself."

WHAT will be the effect of this judgment on the corruption cases against Jayalalithaa?

N. Natarajan, Senior Advocate, pointed out that for the past 20 years the Supreme Court had been taking a serious view of problems such as criminalisation of politics, corruption, breach of trust and nepotism by political and bureaucratic public servants.

In State (Delhi Administration) vs V.C. Shukla, the Supreme Court held in 1980 that the term 'high public or political office' used in the Special Courts Act "contemplates only a special class of officers or politicians who may be categorised as follows: (1) officials wielding extraordinary powers entitling them to take major policy decisions and holding positions of trust and answerable and accountable for their wrongs; (2) persons responsible for giving to the State a clean, stable and honest administration; (3) persons occupying a very elevated status in whose hands lies the destiny of the nation."

The apex court added: "The rationale behind the classification of persons possessing the aforesaid characteristics is that they wield wide powers which, if exercised improperly by reason of corruption, nepotism or breach of trust, may mar or adversely mould the future of the country and tarnish its image... It is, therefore, not only proper but essential to bring such offenders to book at the earliest possible opportunity."

Natarajan said that the Supreme Court's consistent stand against condoning criminalisation of politics or corruption by highly placed public servants was reiterated by the Election Commission of India's Order (No.509/Disqln./97 - J.S.I) dated August 28, 1997 that dealt with the issue of criminalisation of politics and participation of criminals in the electoral process as candidates. (It was under this Order that Jayalalithaa was barred from contesting the elections. The returning officers of four constituencies where she filed nomination papers rejected her papers on the ground that she had been disqualified under Section 8 (3) of the RPA.)

Natarajan stressed that for more than two decades the Supreme Court had been wanting to eliminate corruption in high places. Section 8 (3) of the RPA, he said, reflected the will of the people. This section stated 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 of six years since his release."

This legislative mandate was clearly emphasised by the recent judgment of the Supreme Court, Natarajan pointed out. "The view of the Supreme Court, once expressed, binds the entire nation."

Natarajan observes: "The controversy that arose in the aftermath of the Madras High Court judgment whether the issue of conviction and sentence were one and the same or they are two different aspects is of no significance when we look back at the controversy in the light of the current Supreme Court judgment. One has to lay emphasis on an interpretation of this nature more, if not totally, for the welfare of the nation and the benefit of the people. The Supreme Court's judgment reflects the correct position and emphasises the avoidance of criminalisation of politics."

Asked if Jayalalithaa cannot hold office if she were to be acquitted by the Madras High Court but the Supreme Court stays the acquittal in an appeal, Natarajan said, "Hypothetically answering the question, as mentioned in Section 8 (3) of the RPA, the disqualification mentioned therein will start running as long as the conviction is in existence. No doubt, if the acquittal is given by the High Court, one may say the conviction will be wiped out. One may claim that since the conviction is not there, Section 8 (3) of the RPA will not apply. But in my opinion (that) situation may not arise if an appeal to the Supreme Court is preferred. In a matter like this, in view of the avowed policy of the Supreme Court, it will definitely stay the operation (of the order) of the High Court and settle the matter finally in the appeal. What is agitating the Supreme Court for the past two decades is criminalisation of politics, corruption, nepotism and breach of trust among highly placed bureaucratic and political public servants."