Legal challenge

The question of Jayalalithaa's continuance in office as Tamil Nadu Chief Minister is set to come up before a Constitution Bench of the Supreme Court.

IN the coming weeks, certain proceedings in the Supreme Court and the Madras High Court will be keenly watched, for these forums will decide the question of the continuance of Jayalalithaa as the Chief Minister of Tamil Nadu. Admitting a batch of public interest petitions relating to this issue on July 20, a three-member Bench of the Supreme Court noted that they raised "a question of great constitutional importance". Justice S.P. Bharucha, Justice Y.K. Sabharwal and Justice Brijesh Kumar observed that "a question of great constitutional importance arises in these matters, namely, whether a person who has been convicted of a criminal offence and whose conviction has not been suspended pending appeal, can be sworn in and can continue to function as Chief Minister of a State."

The Bench directed that the petitions be heard by a Constitution Bench (consisting of no fewer than five Judges). "Given the importance and urgency, they be listed in the week commencing September 3, subject to the administrative directions of the Chief Justice of India before whom these papers shall be placed," it added.

In the Madras High Court, Jayalalithaa has appealed against her conviction and sentence of imprisonment by a trial court in the Jaya Publications and Sasi Enterprises cases. Either an acquittal or a reduction in the sentence to less than two years of imprisonment is necessary for her to contest an election to the State Assembly and continue as Chief Minister. And she has to get elected before November 14. Under the Constitution, a person who is not a member of the legislature can be sworn in Minister but he or she has to get elected as a legislator within six months. Article 164 (4) stipulates: "A Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister." Jayalalithaa took office on May 14.

In an important development, the High Court directed on July 23 that former Advocate-General K.V. Venkata-pathy should conduct the cases against Jayalalithaa instead of State Public Prosecutor S. Gomathinayagam. The First Bench comprising Justices N.K. Jain and P. Thangavel gave this direction on a petition filed by R.S. Bharathi, an advocate belonging to the Dravida Munnetra Kazhagam (DMK). Venkatapathy was Advocate-General during 1996-2001 when the DMK was in power.

In his petition, Bharathi wanted the Centre to appoint impartial special prosecutors to handle Jayalalithaa's appeals in the Jaya Publications, Sasi Enterprises and Pleasant Stay Hotel cases. She was convicted and sentenced to one year's imprisonment in the Pleasant Stay Hotel case. Bharathi argued that if the State were to be represented by the Public Prosecutors appointed by Jayalalithaa, justice would be negated and the rule of law impaired. Jayalalithaa had been found guilty of acts of corruption committed during her tenure as Chief Minister from 1991 to 1996. But now (after her return to power on May 14), "an accused is in actual charge of the conduct of the prosecution also," he asserted.

In their order, Justice Jain and Justice Thangavel said they had no doubt that the Public Prosecutor appointed by the government would discharge his duties fairly and as per law. "But once the matter is brought to the notice of the court, and one of the appellants is now heading the government, and keeping in view the principle that justice should not only be done but also seen to be done, we deem it proper to direct the government to appoint another counsel to represent the Public Prosecutor on the prosecution side in the pending appeals." If Venkatapathy did not want to take it up, the Public Prosecutor already appointed would conduct the appeals, they decided.

Jayalalithaa's appeals are likely to be listed for hearing any time now. The procedure adopted in appeals is that all material papers are typed for convenience and counsel for both sides depend on these records. An advocate said the papers are ready.

On October 9, 2000, P. Anbazhagan, Special Judge, Chennai, convicted and sentenced Jayalalithaa to three years' rigorous imprisonment in the Jaya Publications case, one of the two cases involving the transfer of land belonging to the government-owned Tamil Nadu Small Industries Corporation (TANSI). In the Sasi Enterprises case, she was convicted and sentenced to two years' imprisonment. Her close friend Sasikala Natarajan also received similar sentences. Jayalalithaa and Sasikala were partners in these two firms. The allegation against them was that these two firms bought TANSI's property at prices below the market value when Jayalalithaa was Chief Minister and thus obtained pecuniary advantage. They were sentenced under various sections of the Indian Penal Code and the Prevention of Corruption Act.

Jayalalithaa appealed to the High Court, which suspended her sentences and granted her bail in November 2000. But the court did not stay the conviction.

Having been convicted and sentenced to two years' and three years' imprisonment, Jayalalithaa was disqualified from contesting the Assembly elections in May under Section 8 (3) of the Representation of the People Act (RPA). Returning Officers in all the four constituencies where she filed nominations rejected her papers. But her party swept to power defeating the DMK, and Governor M. Fathima Beevi swore her in Chief Minister without any fuss. The Governor's action set off a controversy.

QUO warranto petitions were filed in both the Supreme Court and the Madras High Court seeking the quashing and setting aside of Jayalalithaa's appointment as Chief Minister. The petitions in the apex court were filed by B.R. Kapur, Pratap Singh Chautala, M.L. Sharma, B.L. Wadhera and Dhananjay Chauhan. In the High Court, the petitions were filed by advocate V. Selvaraj, Chyang Ching, Janata Party president Subramanian Swamy and J. Mohanraj. The petition filed by Selvaraj asked Jayalalithaa to explain under what authority she was holding office when she had been barred from contesting elections. It sought an interim injunction restraining her from functioning as Chief Minister.

A Bench comprising Justice Jain, Justice K. Sampath and Justice Thangavel dismissed the petitions in limine on June 29. It observed that since similar petitions were pending before the Supreme Court, the High Court could not go into the merits of the case. The petitioners were at liberty to appeal to the Supreme Court, it said. Selvaraj filed a special leave petition (SLP) in the Supreme Court, challenging the dismissal of his petition by the High Court.

Kapur's petition in the Supreme Court raised several questions. Can a person become Minister or Chief Minister when he or she has been disqualified from contesting the elections under Section 8 (3) of the RPA? Is a law-breaker - a person who has been disqualified because of his/her conviction - eligible to become a law-maker? Will not the appointment of Jayalalithaa as Chief Minister hamper the pending cases against her? And so on.

On June 4, Justice Syed Shah Mohammad Quadri and Justice D. Raju of the Supreme Court ordered notices to Jayalalithaa and the Union of India on these petitions. They asked Attorney-General Soli Sorabjee to assist the court in the hearing of the cases and referred the petitions to a three-member Bench because of the importance of the legal questions raised.

Chautala's petition alleged that the Governor appointing and administering the oath of office to Jayalalithaa "is unconstitutional and is contrary" to the provisions of the RPA. "She is ineligible to hold office of the Chief Minister of Tamil Nadu under the provisions of Article 164 (4) of the Constitution and the provisions of Section 8 (3) of the Election Law," the petition argued.

Senior counsel Anil Divan, who appeared for Chautala, said: "The basic postulate of representative government is undermined and subverted when a person who is convicted and disqualified, and whose 'stay application' (on conviction) had been rejected by the Madras High Court and, therefore, prevented by law from entering the precincts of the legislature as a member, is appointed a Chief Minister." Divan said the impugned appointment might lead to persons convicted of grave offences, murder, rape and so on, and who had been "disqualified", being appointed Ministers in a State or even at the Centre.

"If the logic of this appointment is upheld, the same person may resign the office a little before six months and then again may be invited to occupy the office of the Chief Minister if the majority party so decides," he reasoned, contending that "the impugned decision, far from upholding the rule of law, legitimises the rule of outlaw."

Divan said: "Article 191 (1) (e) of the Constitution raised a bar against a person if he is so disqualified by or under any law made by Parliament, and thus the bar under Section 8 (of the RPA) was elevated to the level of a constitutional bar." He argued that constitutional interpretation "must be in line with morality, observance of law, and discouraging corrupt and criminal elements from holding office" and that "the appointment of a convicted and corrupt official is wholly against constitutional morality."

When the petitions came up for hearing before Justice Bharucha, Justice Sabharwal and Justice Brijesh Kumar on July 20, Soli Sorabjee said the questions raised by the petitions needed to be dealt with expeditiously.

An application from DMK general secretary K. Anbazhagan for impleadment in the case was dismissed because, Justice Bharucha said, the Bench did not want to convert the matter into "a publicity or political affair". The Bench dismissed the petition from M.L. Sharma as he was not present during the hearing. When Subramanian Swamy sought the transfer of his petition from the Madras High Court to the Supreme Court, the Bench directed that his petition should be tagged on to other petitions. The Bench also decided that Selvaraj's SLP should be tagged on to other petitions.